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  4. Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) - [2025] QIRC 172

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Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2)[2025] QIRC 172

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2)[2025] QIRC 172

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) [2025] QIRC 172

PARTIES:

Queensland Services, Industrial Union of Employees

(Notifier)

v

Council of the City of Gold Coast

(Respondent)

CASE NO:

D/2020/82

PROCEEDING:

Arbitration of Industrial Dispute

DELIVERED ON:

7 July 2025

MEMBER:

Knight IC

HEARD AT:

Southport

ORDERS:

  1. As to the questions for arbitration:
  1. 1.
    Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020?
  1. The answer to Question 1 is: 'No'
  1. 2.
    Was the review of the Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2018 to 2 January 2020, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy?
  1. The answer to Question 2 is: 'No'
  1. 3.
    Does Mr Brendan Soustal have an entitlement to the continuation of the Market Equity Payment post the City's termination of said payment on 2 January 2020?
  1. The answer to Question 3 is: 'Yes'

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – Dispute notified by the Union – discontinuation of Market Equity Payment provided within an employment offer – dispute the subject of conciliation – dispute referred to arbitration – questions for arbitration determined by the Commission in Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2020] QIRC 181 – employment contract – terms and conditions of employment – decision answers questions dealing with the proper construction of the employment contract – where Council contends the Gold Coast's Critical Skills Flexible Remuneration Policy governs the Market Equity Payment – where the Union disagrees – where the Council contends a review was undertaken – where the Union contends this review was deficient – where the Council contends employee does not have an entitlement to the continuation of the Market Equity Payment – where the Union disagrees – Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy does not govern the Market Equity Payment – Market Equity Payment paid to the employee was not reviewed properly in accordance with offer of employment – employee has entitlement to continuation of Market Equity Payment post the City's termination of payment.

LEGISLATION AND INSTRUMENTS:

City of Gold Coast Certified Agreement 2019

City of Gold Coast Critical Skills Flexible Remuneration Policy

Gold Coast City Council Certified Agreement 2012

Queensland Local Government Industry (Stream A) Award – State 2017

CASES:

Actrol Parts Pty Ltd v Coppi (No 2) (2015) 257 IR 179

Benge v Bluescope Steel (AIS) Pty Ltd (No 2) [2020] FCCA 515

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

CBA v Barker (2014) 253 CLR 169

CFMEU v Personnel Contracting (2022) 96 ALJR 89

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Director of Public Prosecutions (DPP) (Vic) v Le (2007) 240 ALR 204

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640

Galafassi v Kelly (2014) 87 NSWLR 119

Goldman Sachs JBWere Services Pty Ltd Nikolich (Goldman Sachs) (2007) FCAFC 120

Goswami v BPL Adelaide Pty Ltd [2021] FCCA 302

Harpham v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCA 1473

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

Maurice Alexander Management Pty Ltd v Sato [2023] ICQ 014

McKeith v Royal Bank of Scotland Group PLC [2016] 92 NSWLR 326

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2020] QIRC 181

Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567

R F Hill Ltd v Mooney [1981] IRLR 258

Reynolds v Southcorp Wines Pty Ltd (2002) 122 FCR 310

Rigby v Ferodo Ltd [1988] ICR 29

Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 315 ALR 243

Royal Bank of Scotland PLC v James [2016] NSWCA 36

Sargent v ASL Developments Ltd (1974) 131 CLR 634

Stratton v Illawara County Council (1979) 2 NSWLR 701

Tokyo Network Computing Pty Ltd v Tanaka [2004] NSWCA 263

Willis v Health Communications Network Ltd (2007) 167 IR 425

APPEARANCES:

Mr J. Donaghy of the Queensland Services, Industrial Union of Employees for the applicant.

Ms C. Jackson and Ms U. Chowdhury for the Council of the City of Gold Coast.

Reasons for Decision

Introduction

  1. [1]
    In a Notice of industrial dispute[1] filed by the Queensland Services, Industrial Union of Employees ('the Union') on behalf of Mr Brendan Soustal, it is contended Mr Soustal was deprived of a Market Equity Payment ('MEP'), which formed part of the terms and conditions of his employment.[2] 
  2. [2]
    According to the Union, the Council of the City of Gold Coast ('the Council') discontinued Mr Soustal's MEP payment without adequate review, either in accordance with Mr Soustal's Offer of Employment and/or the Critical Skills Flexible Remuneration Policy ('CSFR Policy').
  3. [3]
    In response, the Council maintains the MEP was in fact an 'at risk' temporary incentive payment, paid as an allowance to Mr Soustal and governed by the CSFR Policy, which according to the Council, provided a pathway for it to review the MEP after a period of two years, for the purpose of determining whether the continuation of the payment was warranted.[3]
  4. [4]
    The controversy between the parties therefore is whether the Council's cessation of the MEP payment after two years breached the agreement made between Mr Soustal and the Council at the time he commenced the role or, in the event it applies, whether the Council complied with the CSFR Policy when it elected to discontinue the MEP.
  1. [5]
    The dispute was unable to be resolved by way of conciliation and was referred to the Commission, as currently constituted, for arbitration. 

Questions To Be determined

  1. [6]
    The parties were unable to reach agreement on the questions for arbitration, which were determined following a separate hearing:[4]
    1. Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020?
    2. Was the review of the Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2018 to 2 January 2020, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy?
    3. Does Mr Brendan Soustal have an entitlement to the continuation of the Market Equity Payment post the City's termination of said payment on 2 January 2020?[5]

Agreed Facts 

  1. [7]
    The parties to the arbitration prepared a Statement of Agreed Facts, namely: 
  1. HISTORICAL MATTERS
  1. Recruitment & Appointment
  1. 1.
    The Applicant’s member, Brendan Soustal (Mr Soustal) submitted an application for vacancy number 22155 with Council of the City of Gold Coast (the City) for the role of Coordinator Data Insights and Visualisation in August of 2017.
  1. 2.
    The role advertised required the successful candidate to lead a team of skilled and experienced people who actively manage and promote innovation and agile data delivery in alignment with the organization’s digital vision, creating a workplace culture that promotes innovative thinking and transforms the way we work and deliver data and services.
  1. 3.
    The role of Coordinator is required to:
  1. a)
    Lead a team of skilled and experienced people who actively manage and promote innovation and agile data delivery in alignment with the organization’s digital vision, creating a workplace culture that promotes innovative thinking and transforms the way we work and deliver data and services.
  1. 4.
    The key deliverables of the advertised position were:
  1. a)
    Proactively work with key stakeholders to provide guidance on data insights and visualisation
  1. b)
    Coordinate the data insights and visualisation function, shaping its future direction, contributing to operational plans, managing resources and achieving performance objectives.
  1. c)
    Develop and maintain positive relationships with key internal and external stakeholders including suppliers, key internal stakeholders, and ICT industry representatives.
  1. d)
    Understand the implications and opportunities around digital data innovation with awareness of the latest digital technologies, data visualisation tools and trends.
  1. e)
    Contribute proactively to the adoption of geographic analysis to enhance digital data visualisation
  1. f)
    Contribute knowledge of digital data approaches to accelerate adoption of digital data self-service capability in Business and service areas
  1. 5.
    The advertisement further required that the successful candidate:
  1. b)
    Displays personal drive and integrity by demonstrating courage and accepting responsibility.
  1. c)
    Communicates with influence and effectively engages with suppliers and internal stakeholders to build constructive outcomes and resolve issues.
  1. d)
    Leads, manages and mentors resources in an environment of change, with commitment to corporate people management and development frameworks.
  1. e)
    Supports strategic direction: seeks information from a variety of sources and uses judgement to determine the validity and use of the information.
  1. f)
    Demonstrates commitment to safety from both a leadership and personal perspective.
  1. g)
    Commits to model positive leadership behaviours, consistent with those contained in the Leadership Capability Framework
  1. 6.
    As part of the recruitment process Mr Soustal was interviewed by Ms Susan Hunter, Executive Coordinator – Data Intelligence (Ms Hunter), Mr Darren Santer, Coordinator Data Design & Management (Mr Santer) and Mr Richard Ellis, Coordinator – Business Management (Mr Ellis). At the conclusion of the recruitment process Mr Soustal was identified by the recruitment panel as the preferred candidate.
  1. 7.
    On or about 25 October 2017, the Chief Executive Officer approved the application of a Market Equity payment to be applied to the Coordinator Data Insights and Visualisation role.
  1. 8.
    On 13 November 2017, Ms Joanna Forgan, Senior Recruiter (Ms Forgan), provided in writing to Mr Soustal, via email an offer of employment with the City.
  1. 9.
    On 16 November 2017, Mr Soustal confirmed in writing to Ms Forgan, via email, that he accepted the role.
  1. 10.
    On or about 5 December 2017, Mr Soustal provided, via email, to Ms Forgan, documentation broadly referred to as induction documents, to facilitate his on boarding with the City.
  1. Commencement
  1. 11.
    On 2 January 2018, Mr Soustal commenced employment within the Business Innovation and Technology Services Team (BITS) located at Level 4 Karp Court, Bundall in the role of Coordinator Data Insights and Visualisation.
  1. 12.
    In his role Mr Soustal reported to Ms Hunter.
  1. 13.
    Mr Soustal's classification was contained within the Gold Coast City Council Certified Agreement 2012 (the 2012 Agreement) at Schedule 2.
  1. 14.
    Upon commencement Mr Soustal was appointed to a Level 8 role. For completeness Mr Soustal was appointed to the top pay point of the band, being Step 5, which provided, at that point in time, an annual base rate of pay of $118,480.65 (Gross) plus a Market Equity Payment (the MEP) of $21,519.35 (Gross).
  1. 15.
    The MEP was paid to Mr Soustal on a weekly basis, with the payment being $413.83 (Gross). This payment was paid to Mr Soustal each week for a two-year period.
  1. 16.
    Mr Soustal's current terms and conditions of employment are governed by the City of Gold Coast Certified Agreement 2019 [2019] QIRC 153 (the 2019 Agreement).
  1. 17.
    Mr Soustal's classification is contained in the 2019 Agreement at Schedule 2 – Administrative, clerical, technical, professional, community service, supervisory and managerial services – Stream A, Division 2, Section 1, 10 Day Fortnight.
  1. 18.
    As per clause 1.8 of the 2019 Agreement, the 2019 Agreement is to be read in conjunction with the Relevant Modern Award, which is the Queensland Local Government Industry (Stream A) Award – State 2017 (the Modern Award).
  1. Secondment from BITS
  1. 19.
    On or about 29 April 2019, Mr Soustal was seconded to CAM into the role of Senior Specialist Business Analyst.
  1. Cessation of Market Equity Payment
  1. 20.
    A discussion occurred between Ms Hunter and Mr Soustal on 9 October 2019 regarding the impending cessation of the CAM secondment on 31 October 2019 and Mr Soustal's return to BITS. During the discussion on 9 October 2019 Ms Hunter raised with Mr Soustal that the MEP would not continue past 2 January 2020.
  1. 21.
    Ms Hunter confirmed the details of this discussion in email correspondence to Mr Soustal on  9 October 2020 within the email correspondence Ms Hunter provided Mr Soustal with a link to the Critical Skills Flexible Remuneration Policy (the CSFR Policy).
  1. 22.
    Mr Soustal met with Kathryn Lloyd, Business Partner – Performance & Engagement (Ms Lloyd) to discuss the cessation of the MEP on 9 October 2019.
  1. 23.
    Mr Soustal subsequently sent email correspondence to Ms Lloyd on 14 October 2019.
  1. 24.
    Lisa Grant, Business Partner – Performance & Engagement (Ms Grant) sent email correspondence to Mr Soustal on 14 October 2019.
  1. 25.
    Email correspondence was exchanged between Ms Grant and Mr Soustal on 15 October 2019, regarding the MEP and the CSFR Policy.
  1. 26.
    On 17 October 2019, Ms Hunter emailed Mr Soustal in regard to the email of 9 October 2019.
  1. 27.
    The CAM secondment came to an end on 31 October 2019.
  1. Return to BITS & Lodgement of Grievance
  1. 28.
    Mr Soustal returned to his role as Coordinator Data Insights and Visualisation on 1 November 2019.
  1. 29.
    Mr Soustal submitted a formal grievance on Wednesday, 6 November 2019 (the Grievance), via email to the then Chief Information Officer Peter Morichovitis (Mr Morichovitis) in regard to the cessation of the MEP along with allegations that he had been bullied and harassed by Ms Hunter.
  1. 30.
    On 8 November 2019, Mr Morichovitis sent email correspondence to Mr Soustal confirming receipt of the grievance and that he would forward the matter to People & Culture.
  1. 31.
    On 13 November 2019, Mr Soustal sent correspondence to Shannon Richards – Chief People Officer (Ms Richards) and Jodie Waller – Coordinator of the Integrity & Ethical Standards Unit (Ms Waller) requesting information regarding his grievance.
  1. 32.
    On 14 November 2019, Ms Richards responded to Mr Soustal's email.
  1. 33.
    On 15 November 2019, Mr Morichovitis advised Ms Grant that he would like the matter to be formally investigated.
  1. 34.
    On 19 November 2019, Mr Soustal's grievance was referred through to the Integrity & Ethical Standards Unit (IESU) for their consideration.
  1. 35.
    On 27 November 2019, Mr Soustal sent email correspondence to Ms Richards.
  1. 36.
    On 27 November 2019, Ms Paula Perry - Coordinator Performance Engagement (Ms Perry), communicated via email to Mr Soustal.
  1. 37.
    A further email exchange occurred between Ms Perry and Mr Soustal on 3 December 2019.
  1. 38.
    On 3 December 2019, the applicant emailed the City citing Stage 3 of the Dispute Resolution Procedure.
  1. 39.
    An external investigator, Verifact (the Investigator) was appointed to undertake an investigation into the grievance lodged by Mr Soustal.
  1. 40.
    Mr Soustal was on a period of leave from the workplace, commencing on the afternoon of 11 December 2019 through until Friday 3 January 2020.
  1. 41.
    The last weekly MEP was made to Mr Soustal on 5 January 2020 for the pay period ending 2 January 2020
  1. …
  1. Industrial Matters
  1. 42.
    On 26 February 2020, the Applicant lodged a Form 82 - Application for an order to stop bullying on behalf of Mr Soustal to the Queensland Industrial Relations Commission, matter B2020/16.
  1. 43.
    On 13 March 2020, a conciliation conference was held in the Queensland Industrial Relations Commission before Commissioner Pidgeon for the application lodged on Mr Soustal's behalf by the Applicant.
  1. 44.
    A recommendation was issued by Commissioner Pidgeon on the same day.
  1. 45.
    On 28 July 2020, the Applicant lodged a Form 10 – Notice of industrial dispute to deal with industrial dispute in relation to the discontinuation of Mr Soustal's Market Equity Payment with the Queensland Industrial Relations Commission, matter D2020/82.[6]
  1. Witnesses 
    1. [8]
      The Union called evidence from Mr Soustal.
    2. [9]
      The Council called the following witnesses to provide evidence:
      • Ms Shannon Richards, Chief People and Culture Officer;
      • Ms Kendra Murphy, Business Systems Analyst Team Leader Employee Services;
      • Ms Susan Ruth Hunter, Executive Coordinator – Data Intelligence; and  
      • Ms Catherine Pearl Drinkwater, Acting Chief Information Officer.

    Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020?

    Mr Soustal's Evidence

    1. [10]
      Mr Soustal's evidence in relation to the recruitment process and the negotiation of the terms and conditions of his employment included that:
      • in August 2017, he came across an advertisement for the role of Coordinator, Data Insight and Visualisation at the Gold Coast City Council, whereafter he rang the contact, Ms Sue Hunter, to enquire about the position;[7]
      • during his discussions with Ms Hunter, he observed that the advertised remuneration was too low, noting his wage in his current role at Powerlink was approximately $170,000 per annum;[8]
      • Ms Hunter said words to the effect of 'Put in for it, there are options for us to look at the wages';[9]
      • following a successful interview, Ms Hunter initiated contact with Mr Soustal, whereafter they commenced negotiations in respect of an offer of employment;
      • during his discussions with Ms Hunter, Mr Soustal stated he was not prepared to uproot his family and move to the Gold Coast for less than $140,000 plus superannuation;[10]
      • on 13 November 2017, Mr Soustal was offered the position of Coordinator, Data Insight and Visualisation;[11] and
      • an email with the offer was sent to Mr Soustal from Ms Joanna Forgan, which stated:[12]

    Subject: Offer of Employment – City of Gold Coast Communication – CONFIDENTIAL

    ...

    Dear Brendan, 

    OFFER OF EMPLOYMENT

    Congratulations! Following our recent discussions, I am pleased to confirm our offer of employment with the City of Gold Coast (the City). Details of your appointment are outlined below; 

    Position Title: Coordinator Data Insights and Visualisation 

    Branch: Business Innovation and Technology Services / Organisational Services 

    Location: Bundall Administration Precinct 

    Payroll ID number: 45831 

    Classification: Federal Level 8 Step 5 

    Annual Base Salary: $118,480.65 plus Market Equity Payment of $21,519.35

    Total: $140,000.00 per annum 

    The Market Equity Payment is to be reviewed every two (2) years (emphasis added)

    Hours Per Week: 40.3  Days Per Fortnight: ten (10) Commencement Date: 2 January 2018 

    1. [11]
      Mr Soustal told the Commission he accepted an offer of employment on 16 November 2017. His evidence was that at no time prior to his employment with Gold Coast City Council, either during the interview or the phone discussions, was he informed that the additional payment was referred to as a Critical Skills Incentive Payment or a Temporary Incentive Payment.[13]
    1. [12]
      Similarly, Mr Soustal maintains he was not advised by Ms Hunter that the payment was covered by the Critical Skills Flexible Remuneration Policy during the interview or in his discussions prior to accepting the role.[14]
    2. [13]
      During cross examination Mr Soustal confirmed:[15]

    Okay. And during those discussions did Ms Hunter ever say to you that the city wouldn’t be able to match what Powerlink were offering to you?---Yes. 

    And did Ms Hunter ever ask you if a temporary incentive payment was applied what your expectation of salary was?---She never asked me about a temporary incentive payment. 

    Did she ask you about what your expectation was?---For salary? Yes. 

    And what did you tell her?---I believe I would have said between 140 and 150, with 140 being the minimum.

    1. [14]
      Recollecting the specific detail of the salary negotiations between himself and Ms Hunter, Mr Soustal stated:[16]

    The original offer that came to me from Ms Hunter verbally was for the payment to be an allowance for two years and when I just rejected that straight out and said, "No, I will stay where I am", within days she came back and offered the – the 140 as salary. 

    All right. So, is your evidence that Ms Hunter made representations to you that you would receive a payment for two years? ---It – verbally - - - 

    Right? ---Via the phone, yes, that's what was done. And when I rejected it outright a couple of days later she came back with the – the 140 salary. 

    All right. And what amount was the offer in relation to the two-year period?---140. 

    And, what, you say Ms Hunter then made the same offer to you? ---No, she – the first offer was a two year – and going back to award after two years. And I said, no, I’m not moving down for 140 for two years and then going back to a – I think at that stage it was about 120, 118 – and I straight out rejected it. And she said, let me get back to you, or words to the effect of, "Let me get back to you. I’ll see what I can do," and then about – it was a few days later she said yes, she could do it as the 140 salary. (emphasis added)

    1. [15]
      In respect of his understanding as to how the MEP would operate, Mr Soustal stated:

    …

    MR JACKSON: Now, prior to receiving the formal letter of offer from the city through Ms Forgan, did Ms Hunter send email correspondence to you offering you the position? ---I don’t believe it was a formal offer. There was an email that Ms Hunter sent that she does reference in her affidavit and provided as evidence, which references the MEP and the – the 140, from what I can gather, as being included in that, and at no time was it referenced as an at-risk payment.[17]

    ...

    All right. Just out of interest, in relation to the letter of offer, did you take it that your salary, the base rate of pay, the $118,000, was that to be reviewed every two years?---My understanding was, the base rate of salary was 140 and 140 was the base, being the lowest, and then after a two year period they were going to undertake a market review to see if that should go higher than – than the 140. 

    All right. But there are two separate components in that letter. Yes. Two separate dollar amounts. Yes? Did you expect that the 118 figure, being the rate applicable to a level 8 employee under the

    City Certified Agreement, that that would be reviewed? ---No.[18]

    1. Ms Hunter’s Evidence
    1. [16]
      Ms Hunter's evidence in chief was that prior to Mr Soustal accepting the position of Coordinator Data Insights and Visualisation, the Council experienced ongoing challenges recruiting for the position. According to Ms Hunter, the role was advertised on four earlier occasions, with all candidates determined to be unsuccessful or lacking the requisite skills for the role.[19] Ms Hunter recalled that at least two candidates provided feedback that they required a higher level of remuneration.[20] 
    2. [17]
      Ms Hunter's evidence was that Mr Soustal told her he was earning approximately $180,000 at Power Link.[21] She recalled advising him that Council would not be able to match what Power Link was offering and asked what his expectations were if Council were to provide a temporary incentive payment.[22] According to Ms Hunter, Mr Soustal advised his expected salary was approximately $150,000.[23] 
    3. [18]
      In subsequent discussions about the role, Ms Hunter recalled Mr Soustal stating he would not accept anything less than $140,000 to $150,000, and that he would need to speak to his wife and that they did not want to take a salary cut.[24]
    4. [19]
      Salary market information provided to the Council by Hays Recruitment just prior to Mr Soustal accepting the position and included in Ms Hunter's affidavit, indicated the '3D visualisation component [of the role] isn't typical of a position that would be recruited on the Gold Coast by most employers' and, 'it would be fair to say that a salary of $150k - $160K + Super would be a reasonable offer.'[25] 
    1. [20]
      Ms Hunter's evidence was that she proceeded to draft a memo to the Chief Executive seeking approval for a temporary payment to be paid for the position.[26] 
    2. [21]
      Ms Hunter claimed the purpose of the memo was to seek approval to provide a MEP that would be subject to review every two years and paid on a weekly basis instead of every six months.[27]
    3. [22]
      Within the Council's eRecruit system, Ms Hunter included the following note within the General Comments tab:

    MEP memo for Market Equity (Above award) payment signed by CEO 25/10/17 (original #65052290). Agreed start date of 2nd January 2018, to allow for full resignation period and handover.[28]

    1. [23]
      Ms Hunter emailed Mr Soustal on 26 October 2017 to inform him he was being formally offered the position, confirming:

    Brendan,

    …

    All approvals for you to be offered the position, with an additional market equity payment above the standard salary rate for a L8 10 fortnight have been received and completed.

    …

    I look forward to working with you and I will be in touch…

    Kind regards

    Sue[29]

    1. [24]
      During cross-examination, Ms Hunter confirmed Mr Soustal had told her he was not prepared to accept anything less than $140,000 to $145,000,[30] and that she:
      • was particularly motivated to get the recruitment of Mr Soustal over the line;[31]
      • had no prior experience in offering incentive payments during a recruitment process;[32]
      • did not have a conversation with Mr Soustal about the temporary nature of the MEP;[33]
      • viewed Mr Soustal as a high-quality candidate;[34] and
      • given his skills, wrongly assumed that as a 'high flyer' he would move on and the review would not come to fruition.[35] (added emphasis)

    Ms Richard's Evidence 

    1. [25]
      Ms Shannon Richards evidence about Market Equity Payments and Mr Soustal’s employment included that: 
      • she had no direct knowledge as to the negotiations that might have occurred between the Council and Mr Soustal, prior to his acceptance of the role of Coordinator Data Insights & Visualisation;[36] (added emphasis) and
      • she was unable to recall signing the request for an incentive payment to be applied to Mr Soustal's role, but confirmed her signature appeared on the approval section of  the memo, noting that she would have signed the document between 16 and 23 October 2017.[37]
    2. [26]
      Ms Richards held the view that the executed memo, which was created under the CSFR Policy, was the only mechanism that permitted the Council to make above award or agreement-based payments to employees covered by awards or agreements.[38] Her evidence was that incentive payments, paid in accordance with the CSFR policy, would ordinarily cease at the end of the nominated period unless a further application was made.[39] 
    3. [27]
      Ms Richards provided the Commission with some background in respect of the development of the Council's CSFR Policy, observing:[40] 
      • For the Council to attract and retain suitable candidates with a particular skill set, an incentive payment would, in some circumstances, be offered to candidates, above and beyond the wages an employee would ordinarily receive under the City's Agreement and/or Award.[41] 
      • The additional payments were characterised within the City's Payroll system in several ways, namely:[42]
        1. Market Equity Payment (the 'MEP');
        2. Above Award Payment;
        3. Higher Duties Allowance; and (d) Hot Skills Allowance.
      • The head of power that allowed for the payment of incentive amounts to employees whose classifications are covered by the City's Certified Agreement and the Stream A - C Awards is the Critical Skills Flexible Remuneration Policy (the 'CSFR Policy').[43]
      • The original CSFR Policy was approved by the Chief Executive Officer on or about 9 November 2012 ('First CSFR Policy').[44]
      • The incentive payment within the First CSFR Policy was referred to as a 'Hot Skills Payment' and 'Hot Skills Allowance', with the payment being described as an above Enterprise Bargaining Agreement payment to attract and retain skilled individuals.
      • Version 4 of the CSFR Policy was approved on 2 May 2019 (the 'Version 4 CSFR Policy').[45] Version 4 was the first policy that referred to the term 'Market Equity Payment' and included a link in the policy to the template that a manager was required to complete to secure approval for the additional payment.[46]
      • In the normal course of events where a request was made for the application of a critical skills incentive payment to be applied to a particular role, it would be provided to Ms Richards after it had been completed and signed by the Manager and Director.

    The Arguments By The Parties

    1. [28]
      It is not in contention that Ms Hunter, on behalf of the Council made an offer to Mr Soustal for a salary of $140,000.00 per annum, which included the MEP.[47]
    2. [29]
      The Union argues Mr Soustal's offer of employment with the MEP was not made in accordance with the Critical Skills Flexible Remuneration Policy and therefore, the answer to question one should be 'No'.[48] 
    3. [30]
      Whereas the Council maintains the answer to question one should be 'Yes', because the MEP is above and beyond what an employee would ordinarily be entitled to under the Certified Agreement and was always governed by the CSFR Policy.[49]
    1. [31]
      In support of its position, the Union contends the MEP was a contractual offer made by Ms Hunter, on behalf of the Council, during pre-contractual negotiations, and that it was understood by both Mr Soustal and Ms Hunter that he would not accept an offer of less than $140,000.00.[50]
    2. [32]
      It is submitted that Mr Soustal was not advised the MEP was an 'at risk' payment prior to accepting the offer of employment and that the evidence supports a conclusion that Ms Hunter did not specifically advise Mr Soustal the MEP was at risk of being discontinued after two years.[51]
    3. [33]
      It is further submitted that Ms Hunter conceded in her evidence that she was not experienced in offering positions that contained an incentive payment and consequently failed to follow the policy when communicating the terms of the payment during negotiations.[52]
    4. [34]
      The Union argues if the Council intended the Policy to cover the MEP contained within Mr Soustal's contract, Ms Hunter, as representative of the Council should have: 
    1. (a)
      Stated the Policy's impact to Mr Soustal during pre-contractual negotiations, rather than using the MEP as an inducement to encourage Mr Soustal to accept the offer, given it was the 'total salary' of $140,000.00 which ultimately persuaded Mr Soustal to accept the position with Council;[53]
    1. (b)
      Stated in the Formal Offer of Employment that the MEP was covered by and paid in accordance with the Policy;[54] and 
    1. (c)
      Stated the MEP is a form of payment covered by and paid for in accordance with the Policy.[55]
    1. [35]
      The Council submits that of the three Policies that provide it with the authority to issue additional remuneration to employees, the CSFR Policy is the only policy relevant to  Mr Soustal's circumstances.[56]
    2. [36]
      The Council further submits that at no point in the drafting of the memorandum or the market analysis process was there an intention to increase Mr Soustal's annual salary from his ordinary entitlement.[57] Moreover, that to offer an incentive payment under the Policy, the Council is required to seek the approval of the Chief Executive Officer through a memorandum to justify the need for an incentive payment.[58]
    3. [37]
      The Council maintains the [internal] Memorandum regarding Mr Soustal's MEP refers to the CSFR Policy and outlines the difficult history in securing a successful candidate. It argues that while Mr Soustal may not have been aware of the internal machination behind the scenes in relation to the MEP, he was aware that Ms Hunter was seeking internal approval for an incentive payment.[59]
    4. [38]
      The Union differentiates between the MEP that was paid to Mr Soustal and the payments covered under the CSFR Policy, noting:
    1. (a)
      Although Mr Soustal's classification level and MEP jointly made up his annual base salary, the CSFR policy provides that a critical skills incentive payment is distinct from the base salary. That is, Mr Soustal's base salary, as outlined in his Employment Offer was '$118,480.65 plus Market Equity Payment of $21,519.35, Total $140,000 per annum.'[60]
    1. (b)
      Where an employee receives a critical skills incentive payment in accordance with the CSFR policy, the letter of offer for the position must differentiate between the Certified Agreement classification salary and/or an agreement or contract specific to the critical skills incentive payment.[61] In this respect, Mr Soustal only received one Offer of Employment letter which contained the MEP amount alongside the annual salary.[62]
    1. (c)
      Whereas under the policy, critical skills payments are to be reviewed annually, Mr Soustal's Offer of Employment provides that the payment was to be reviewed 'every 2 years'.[63]
    1. (d)
      Within the policy, critical skills payments do not constitute a salary for the purposes of calculating superannuation entitlements, whereas Mr Soustal's payslips indicate he was paid superannuation on his total salary which accounted for the MEP.[64]
    1. [39]
      The Council disagrees with the Union's interpretation of the policy, instead contending Mr Soustal's payments were not unique and were consistent with incentive payments that had previously been made to other Council employees.[65]
    2. [40]
      In support of its position, the Council submits that over the years there have been various terms and phrases used to describe incentive payments under the relevant Policy.[66] Furthermore, that there were no allowances or payments within the payroll system under the title:
      • Critical skills payment; 
      • Critical skills incentive payment; or 
      • Temporary incentive payment.[67]
    3. [41]
      The Council maintains that simply because a descriptor of an incentive payment does not contain the words 'critical skills incentive payment' does not obviate the operation of the Policy. Further, that it complied with the Policy, namely:
    1. (a)
      through the creation of the Memorandum and undertaking the relevant process required of the Council to pay above the industrial instrument;[68] and 
    1. (b)
      separately differentiating the MEP from Mr Soustal's base salary and consistently treating the payment as an allowance.[69]
    1. [42]
      Council submits the policy does not impose a mandatory requirement for Mr Soustal to have been provided with a separate agreement solely for the MEP.[70]  
    2. [43]
      While it acknowledges that Mr Soustal's MEP was not consistent with clause 4.7 of the Policy in relation to the payment of superannuation, it contends there has been an inconsistent approach taken by the Council over time regarding the application of superannuation, particularly in relation to allowances.[71]
    3. [44]
      The Council argues that any non-compliance with a specific provision within the Policy is simply that, non-compliance, and cannot be considered an essential term that goes to the crux of the relationship between the parties.[72] Nevertheless, had the Policy not been applicable, the Council would have been acting outside of their delegation and obligations under the Certified Agreement and Policy.[73]

    Does Council's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation?

    1. [45]
      In my view, the Council's CSFR Policy does not govern the MEP that was applied to Mr Soustal's position. The reasons for this conclusion are set out below.
    2. [46]
      The principles for construing contracts of employment are the same as those for other commercial contracts and must be construed in an industrial context.[74] That is, they must be construed to give effect to the words used by the parties, whether orally or in writing.[75]
    3. [47]
      If the contract is in writing, its meaning is determined objectively, having regard to what a reasonable person in the position of the parties would have understood the terms to mean.[76]
    4. [48]
      In Electricity Generation Corporation v Woodside Energy ('Woodside Energy'), French CJ, Hayne, Crennan and Kiefel JJ observed that (footnotes omitted):[77]

    The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”.

    1. [49]
      Ordinarily, the process of construction is possible by reference to the contract alone.[78] However, where ambiguity arises, surrounding circumstances known to the parties at the time, including conversations and other documents, can be considered by the Commission to determine what the parties agreed.[79]
    2. [50]
      In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, French CJ, Nettle and Gordon JJ in a joint judgement said:[80]

    Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating.

    1. [51]
      Referring to the principles articulated in Woodside Energy, President Davis in Maurice Alexander Management Pty Ltd v Sato went on to observe (footnotes omitted):[81] 

    Business contracts are made in the context of commercial dealings and will be interpreted in light of what a reasonable business person would have understood the terms to mean. That consideration will include “that the parties … intended to produce a commercial result”. Here, the enterprise bargain is a contractual agreement entered into between an employer and employee representatives.

    1. [52]
      Within the written offer of employment provided to and accepted by Mr Soustal, under the heading, 'Annual Base Salary' was the following:[82]

    Annual Base Salary: $118,480.65 plus Market Equity Payment of $21,519.35

    Total: $140,000.00 per annum

    The Market Equity Payment is to be reviewed every two (2) years

    Hours Per Week: 40.3

    Days Per Fortnight: ten (10)

    1. [53]
      The Council contends that the offer of employment provided that the MEP payment would be reviewed.[83] It is submitted that the term 'review' contained within the offer of employment refers to an obligation upon Council to enquire into the payment, consistent with its obligations under section 4.4 of the CSFR Policy to make an assessment as to whether market conditions justify the application of an incentive payment to a particular position.[84]
    2. [54]
      The difficulty with the Council's position is that the evidence indicates:
      • While the initial discussions and negotiations in respect of the role, may have commenced with Ms Hunter suggesting she could arrange a temporary payment to address the shortfall between Mr Soustal's existing salary and the salary proposed for the Council role, it is not in contention that Mr Soustal stated to Ms Hunter he was not prepared to accept a salary under $140 000
      • Ms Hunter was highly motivated to fill the role given the historic challenges of locating a suitable candidate.
      • Ms Hunter conceded that $140 000 was the salary eventually offered to Mr Soustal;
      • Ms Hunter in internal emails around the time the offer was made, referred to Mr Soustal's 'salary package', and recorded the words, 'Agreed salary of $140 000 plus super… $118, 480.65 plus Market Equity Pay of $21, 519.35=$140000' in the Councils e-Recruit dashboard system'[85] with no reference to the MEP being reviewed after two years.[86]
      • Ms Hunter conceded she did not advise Mr Soustal during their negotiations that the MEP was an 'at risk' payment which could be discontinued.
    1. [55]
      Notably, Ms Hunter also told the Commission that she viewed Mr Soustal as a high calibre candidate and a highflyer.[87] She considered the review [of the MEP] was unlikely to come to fruition because she considered he was a highflyer [who] 'would move on'.[88]
    2. [56]
      The Council maintains that in the absence of a reference within the letter of offer to the MEP payment continuing or being ceased at the end of the two-year period, the CSFR Policy provides sufficient clarity regarding the circumstances in which the incentive payment could come to an end.[89]
    1. [57]
      I am unable to accept this submission given:
      • There is no evidence before the Commission to support a conclusion Ms Hunter discussed the CSFR policy or section 4.4 of the policy with Mr Soustal;
      • There is no reference within the offer of employment to the CSFR policy;[90] and
      • Mr Soustal was not provided with a copy of the CSFR Policy, nor was he  requested to read the policy and acknowledge it in writing, prior to accepting the position with Council.
    2. [58]
      In McKeith v Royal Bank of Scotland Group PLC [2016], the New South Wales Court of Appeal held that a clause stating the employee 'agreed to be bound' by workplace policies 'as may exist from time to time' did not incorporate the employer's redundancy policy into the employment contract.[91] In reaching this conclusion, Tobias AJA observed that in determining whether a policy is incorporated into an employment contract by reference, it is relevant to consider whether the policy was provided to the employee or otherwise brought to their attention.[92]
    1. [59]
      It is also useful to consider the decision of the Federal Court of Australia in Goldman Sachs JBWere Services Pty Ltd Nikolich ('Goldman Sachs').[93] In that case, the issue relevant to the present matter was whether a document entitled 'Working With Us' ('WWU') was incorporated into the employee's contract of employment. The WWU document was provided to the employee at the very time the employer was offering employment on stated terms.[94] 
    1. [60]
      In Romero v Farstad Shipping (Indian Pacific) Pty Ltd ('Romero') the question for the Federal Court of Australia was whether a workplace harassment and discrimination policy formed part of the employee's contract of employment.[95] In that case, the court (Allsop CJ, Rares and McKerracher JJ) applied Goldman Sachs.[96] At [60] the court stated:[97]

    It is relevant that the policy was the subject of an education program at, or contemporaneously with, the offer of employment and was provided to the employee and that the employee was required to sign the policy.

    1. [61]
      By contrast, there is no evidence that Mr Soustal was provided with a copy of the CSFR policy, had to sign it, or was otherwise aware of its existence. This is of particular significance when compared with the circumstances in Goldman Sachs and Romero, where the employees were fully aware of the contents of the respective documents found to be incorporated into the contract of employment. 
    2. [62]
      The Council contends, rather, that Mr Soustal was aware of the additional steps Ms Hunter was required to take under the CSFR policy to offer an additional payment and that Mr Soustal was kept up to date throughout the process.[98]
    3. [63]
      Although it is true Ms Hunter sought internal approval for the MEP, by utilising a template linked to the CSFR, the evidence supports a conclusion the memorandum was crafted and utilised merely as a vehicle to secure the funding for the MEP and not as the basis upon which the MEP would be paid and subsequently reviewed.
    4. [64]
      The evidence does not support a conclusion that Mr Soustal was aware of the internal steps that were taken by Ms Hunter to secure the funding for the additional payment. Nor was Mr Soustal provided with any information about the content within the memorandum and any purported connection between the CSFR policy and the MEP.
    5. [65]
      Instead, at its highest, the evidence indicates Ms Hunter advised Mr Soustal in an email dated 26 October 2017, that an MEP payment had been approved.[99] The email stated:

    Brendan,

    I am providing this email as the City of Gold Coast Council's intent to offer you the position of Coordinator Data Insights and Visualisation, with a commencement date of 2nd January 2018.

    All approvals for you to be offered the position, with an additional market equity payment above the standard salary rate for a L8 10-day fortnight have been received and completed.

    A recruitment representative from People and Culture (Joanna Forgan) will be in contact with you in the coming days to provide details of pre-employment checks that will be required to be undertaken, such as a Criminal History Check, and provide you with a formal letter of offer for your signature.

    The formalities of the People and Culture process may take a few days, hence the reason for this email.

    I look forward to working with you and I will be in touch to organise some "meet and greet" sessions prior to Christmas, as discussed.

    Kind regards

    Sue

    1. [66]
      I am satisfied that Ms Hunter, with the assistance of other Council Officers, utilised the template linked to the CSFR and undertook market analysis to secure internal approval for the MEP and justify the additional funding. However, I do not accept the agreement reached between Council and Mr Soustal extended to an arrangement whereby it was known and understood the MEP would be governed by the terms of the CSFR.
    2. [67]
      Although the internal memorandum proposed the MEP payment would be reviewed 'after two years based on market conditions', I am satisfied Mr Soustal was not, either prior to, or at the time the offer of employment was made, advised by Council or Ms Hunter that the MEP payment was 'at risk' or could be removed at the conclusion of the two-year period.
    3. [68]
      I accept Mr Soustal's evidence that at the time the position was offered to him, he understood the inclusion of the words the 'Market Equity Payment is to be reviewed every two (2) years' to mean the MEP would be reviewed every two years, with a view to determining whether it would be moved upwards commensurate with market conditions.[100] This is in a context where I accept Mr Soustal had consistently advised Ms Hunter during their negotiations he was not prepared to accept a salary below $140,000.00[101] and had previously rejected an offer of employment that included a 'temporary' allowance.[102]

    Was the review of the Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2008 to 2 January 2010, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy? Removal of MEP – Mr Soustal's Evidence

    1. [69]
      Mr Soustal's evidence in relation to the cessation of the MEP included:
  • In late 2018 and early 2019, after directly raising several concerns and challenging Ms Hunter about her behaviour and treatment of staff within his team, she threatened to remove his 'TIP' ('Temporary Incentive Payment').[103]
  • The threats were made to Mr Soustal by Ms Hunter on 8 November, 19
  1. December, 6 February and 20 March, during meetings where Ms Hunter expressed dissatisfaction in respect of various work-related events.[104]
  • On one occasion in a meeting on 20 March 2019, in response to a typo in a form, Ms Hunter aggressively stated that Mr Soustal needed to 'step the fuck up' and if she 'saw anything like that again' she 'would involve P& C and formal performance management and that your TIP would be revoked.'[105]
  • Mr Soustal recalled he did not initially recognise the term 'TIP', but that he later came to understand Ms Hunter was referring to a Temporary Incentive Payment, which he subsequently understood was a reference to his MEP.[106]
  • In a meeting held on 9 October 2019, Ms Hunter informed Mr Soustal his 'Critical Skills Payment' would not be renewed and he would revert to being paid in accordance with Level 8 under the relevant industrial instrument from 1 January 2020.107 
  • Mr Soustal recalled that during the meeting, Ms Hunter said words to the effect that 'it was deemed that the position does not need a critical skills payment as I went to a secondment (that utilised these skills) but the person that backfilled didn't get the MEP so there is no endorsement moving forward.'[107]
  • In the same meeting, Ms Hunter advised 'the decision is final', in response to Mr Soustal's query as to whether he could question the decision.[108]
  • On 6 November 2019, following a meeting between Mr Soustal and the Chief Information Officer, Mr Peter Morichovitis, during which he outlined the instances of threats by Ms Hunter to his remuneration and concerns about victimisation, he lodged a formal grievance regarding the cessation of the MEP and Ms Hunter's conduct.[109]
  • On at least seven occasions between 6 November 2019 and 6 January 2020, Mr Soustal sought updates in relation to the progress of his grievance, repeatedly requesting the MEP be retained as part of his salary while the matter was being resolved.[110]
  • On or around 7 January 2020, the MEP was discontinued and Mr Soustal's remuneration reverted to Level 8 under the relevant industrial instrument, resulting in a decrease of approximately $200 per week (net) in his take home salary.[111]
  • On 7 January 2020, Mr Soustal (having followed up his grievance over several months about the cessation of the MEP) was advised that Council would be:[112]
  1. ... engaging with our managed service provider who will be tasked to undertake a market scan which will be used in conjunction with internal research undertaken in accordance with the Critical Skills and Remuneration Policy.
  • On 20 January 2020, Ms Richards advised Mr Soustal of the outcome of the review of the Council's decision to remove the 'Critical Skills Payment', namely:[113]
  1. Findings
  1. Based on the information I have assessed, I believe the removal of the CSP is appropriate for the following reasons:
  1. 1.
    The City has attracted/developed an internal talent pool of employees with the skills necessary for the execution of the Coordinator Data Insights and Visualisation role; and
  1. 2.
    Coordinator Data Insights and Visualisation role no longer needs to have extensive skills and experience in data insights and analytics knowledge, thereby increasing the talent pool of candidates able to fill the role.
  1. I sincerely hope that my assessment of the circumstances surrounding the decision to remove your CSP provides you sufficient detail to appreciate that the decision was not made arbitrarily, but rather followed a detailed review.[114]
  1. [70]
    When he escalated his concerns and sought an explanation about why the MEP was discontinued, Mr Soustal maintains he was provided with inconsistent information about the MEP and the reasons for its cessation, namely:
    1. Ms Hunter advised Mr Soustal the MEP was discontinued due to changes in the marketplace;[115]
    2. Ms Grant explained in an email date 15 October that:[116]

From my communication with Sue Hunter, I understand that the decision was based on clause 4.4 due to the fact that they had no difficulty in finding a suitable candidate who performed the job satisfactorily during [Mr Soustal's] secondment, without the incentive allowance payment being applied, which indicated there is no current skill shortage and it is no longer a difficult to fill category.

  1. Ms Richards advised:

... it became clear that the heavy reliance on data insights and analysis knowledge was no longer critical to the successful performance of the role, thus further mitigating the need for [Mr Soustal's] particular skill set.[117]

  1. Ms Hunter's Evidence
  1. [71]
    Ms Hunter's evidence in relation to the cessation of the MEP, included that:
    • The only occasions she spoke to Mr Soustal about the incentive payments was during the recruitment process and in a meeting on 9 October 2019, when she advised him the payment would not continue past 2 January 2020;[118]
    • She was unable to recall any comments or suggestions to Mr Soustal that she would withdraw or remove the incentive payment;[119]
    • In late September 2019, Ms Hunter formed the view that the position of Coordinator Data Insights and Visualisation did not require a Market Equity Payment to attract an appropriate candidate, having recruited for other roles, albeit at a lower level, while Mr Soustal had been on secondment.[120]
  1. [72]
    Ms Hunter considered the market conditions had changed to such an extent that there was no longer a skills shortage in the market and the Council would have no difficulty attracting suitably qualified applicants into the Coordinator role.[121]
  2. [73]
    In early October 2019, Ms Hunter's evidence is that she sought advice about how to bring the MEP to an end and on 8 October 2019, Ms Lisa Grant, a business partner within Performance and Engagement referred Ms Hunter to the provisions within the CSFR Policy which dealt with the cessation of an incentive payment.[122]

Ms Richards' Evidence

  1. [74]
    Ms Richards' evidence in relation to her involvement in the review of the decision to cease the MEP, included that:
    • On or about 7 January 2020 she was tasked by the Integrity & Ethical Standards Unit (IESU) to undertake a review, on the papers, of the decision that the Business Innovation and Technology Services (BITS) branch had made not to continue the incentive payment past 2 January 2020 which had been paid to Mr Soustal.[123]
    • She recalled delegating to Kristie Whitworth, Senior Business Partner, Performance & Engagement the task of liaising with Hays Talent solution to undertake a market scan for the Coordinator Data Insights and Visualisation role.[124]
    • Ms Richards sent email correspondence to Mr Soustal on 20 January 2020, in which she detailed the basis of the removal of the critical skills incentive payment, namely:[125]
  1. The market availability of resources with Data Insight and Visualisation and GIS skills has greatly increased in the last 2 years. The City went to market for a L5 and L6 resource in July/August 2019 requesting the technical skills such as those required for the L8 position you are in and received applications for a large number of skilled applicants. 
  2. Out of this talent pool, the City was (sic) able employ to source some extremely competent and skilled people at these levels. 
  3. The L6 resource appointed had skills and experience in data insights and visualisation (and in particular Microsoft Power BI) that were evaluated as equal to or in excess of the skills held by yourself.
  4. Further, there were successful recruitment activities undertaken by other Directorates within the City for data/analytics, GIS and reporting skills that did not attract CSP.
  1. [75]
    Ms Richards was of the view that the Council had attracted and developed an internal talent pool of employees with the skills necessary for the execution of the Coordinator Data Insights and Visualisation role and that the role no longer needed to have extensive skills and experience in data insights and analytics knowledge.[126] 

Was the review of the MEP undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy?

  1. [76]
    The Union's position is that the MEP was unilaterally terminated without being properly reviewed in accordance with Mr Soustal's Offer of Employment.[127] The Council, by contrast, submits that, having regard to the meaning of the word 'review', it was only required to make enquiries into the MEP, which it argues is precisely what Ms Hunter sought to do, prior to recommending the MEP be discontinued.[128]
  2. [77]
    As to whether the review was conducted properly, in accordance with the CSFR, Council further contends that the evidence supports a conclusion the market conditions, which existed at the time Mr Soustal accepted the role, had changed, and there was no longer a requirement for an incentive payment to be applied to the role.[129] 
  1. [78]
    For the reasons set out below, I do not accept the review of the MEP was undertaken properly, either in accordance with Mr Soustal's offer of employment, or in the event I am wrong about my decision that the CSFR does not govern the MEP payment, in accordance with the CSFR. 
  2. [79]
    Firstly, the offer of employment states the market equity payment was 'to be reviewed every two (2) years'. 
  3. [80]
    The ordinary meaning of the word 'review' is defined by the Oxford English Dictionary as to 'subject to examination or revision'.[130] Similarly, the Macquarie Dictionary defines 'review' as 'to view, look at, or look over again'.[131] 
  4. [81]
    However, the High Court has held that the word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[132]
  5. [82]
    In this respect, I am satisfied Mr Soustal was offered and accepted the position with Council on the basis that the MEP was not at risk and would be 'reviewed every two years', in circumstances where he:
    1. previously rejected an earlier offer with a proposed 'at-risk' incentive payment;[133]
    2. repeatedly stated to Ms Hunter he was not prepared to accept a salary below $140,000.00 per annum;
    3. accepted the position with the understanding he would receive a $140,000.00 salary, which included the MEP;
    4. was not advised, verbally or otherwise, that there was a connection between the ongoing payment of the MEP and the provisions set out in the CSFR;
    5. was not advised the MEP was 'at risk' and capable of being discontinued at the end of the two-year period. 
  6. [83]
    Against this backdrop, I accept the submissions of the Union that, implied in the wording of the Offer of Employment, is that the MEP would be ongoing, albeit capable of review.
  7. [84]
    Secondly, while Ms Hunter has provided some evidence about her views in relation to the continuation of the MEP based on her experiences employing a temporary replacement for Mr Soustal, there is no evidence to support a conclusion that either Ms Hunter or any other Council Officers actively took steps to initiate a meaningful review of the MEP. This includes both the period prior to her recommendation to Mr Morichovitis that the MEP be discontinued and the period before the payment actually ceased in early January 2020.
  1. [85]
    Thirdly, I accept that by early 2019 the relationship between Ms Hunter and Mr Soustal had begun to deteriorate. Although Ms Hunter was unable to recall any interactions with Mr Soustal where she threatened to remove the MEP, I found Mr Soustal's recollection of Ms Hunter's threats to remove his 'TIP' (which he understood to be his MEP) to be detailed, credible and persuasive.
  2. [86]
    Although Ms Hunter attributes her decision to discontinue Mr Soustal's MEP to her experiences in the recruitment of his temporary replacement and several other positions in the second half of 2019, I am satisfied that Ms Hunter, for reasons that are not entirely clear, was contemplating the removal of Mr Soustal's MEP well before this period.

Removal of MEP – Critical Skills Flexible Remuneration Policy

  1. [87]
    In the event I am wrong in concluding the MEP was governed by Mr Soustal's employment contract rather than the Critical Skills Flexible Remuneration Policy, I am not persuaded by the Council's submissions that the review of the MEP was properly undertaken for the reasons below. 
  2. [88]
    Clause 4.4 of the CSFR policy provides:

The critical skills incentive payment will be reviewed and adjusted annually as approved/ required. Where market data suggests the position/skill area is no longer in a skill shortage/hard to fill category, the critical skill incentive payment may cease at the end of the twelve (12) month term. 

  1. [89]
    Ms Hunter acknowledged during cross examination that she did not undertake a formal or official review of the MEP prior to 9 October 2019.[134] Although it is true that Council obtained market data from Hays on 8 January 2020,[135] as part of a 'review on the papers', it was undertaken retrospectively and some two months after the decision to terminate the MEP was communicated to Mr Soustal. In my view, Council's attempt to retrospectively characterise the removal of the MEP as the outcome of a formal review process appears to be a post-hoc justification of the cessation of the allowance rather than the result of any genuine or contemporaneous assessment. 
  2. [90]
    Prior to the MEP being terminated, no structured review was undertaken, nor was there any clear procedural basis or consultation undertaken about the MEP's cessation in accordance with either the CSFR, the employment contract or the relevant industrial instrument.

Does Mr Brendan Soustal have an entitlement to the continuation of the Market Equity Payment post the City's termination of said payment on 2 January 2020?

  1. [91]
    The Council took steps to arrange a temporary secondment for Mr Soustal, while his grievance regarding Ms Hunter was being resolved.[136] On 13 January 2020, Ms Catherine Drinkwater, the Acting Chief Information Officer, was requested by Ms Richards to investigate whether there were other roles in which Mr Soustal could be placed.[137]
  2. [92]
    On 27 February 2020 the Union, on behalf of Mr Soustal, filed an Application for an Order to Stop Bullying, in the Queensland Industrial Relations Commission.[138]
  3. [93]
    Those proceedings led to a series of recommendations being issued by the Commission, which included that there be 'no avoidable contact between Mr Soustal and Ms Hunter.'[139]
  1. [94]
    Thereafter, Ms Drinkwater arranged a series of temporary secondments in areas including Procurement[140]and Fleet,[141] where Mr Soustal could still utilise his skills but did not have to work directly for Ms Hunter.
  2. [95]
    According to Ms Drinkwater, Mr Soustal did not supervise employees, nor did he perform the inherent tasks and duties associated with the Co-ordinator – Data Insights &  Visualisation role, while on secondment.[142]
  1. [96]
    Despite undertaking temporary secondments over the course of 2020 and 2021, Mr Soustal continued to be assigned within the payroll system to his substantive role, Coordinator – Data Insights & Visualisation, with the position number OS 3085.[143]
  1. [97]
    While on secondment, Mr Soustal continued to raise concerns about the cessation of the MEP. In late July 2020 he escalated his grievance and lodged a Notice of Industrial Dispute in relation to the discontinuation of his MEP.[144]

Arguments By The Parties

  1. [98]
    The Union submits Mr Soustal is entitled to the MEP after 2 January 2020.[145]
  2. [99]
    In contrast, Council submits Mr Soustal is not entitled to the continuation of the MEP after 2 January 2020, as he did not discharge the inherent requirements of the Coordinator Data Insights and Visualisation position ('CDIV') from late January 2020, and therefore he was not entitled to the continuation of the incentive payment.[146]
  3. [100]
    The Council submits the role of CDIV required Mr Soustal to lead, manage and mentor resources, and as such 'lead' should be given its ordinary meaning:[147]

1. to take or conduct on the way; go before or with to show the way.

…

3. to guide in direction, course, action, opinion, etc.; to influence or induce… 

  1. [101]
    Consequently, the Council argues there is a positive obligation upon Mr Soustal to guide, direct and manage several subordinate employees, and he hadn't done so since late January 2020. 
  2. [102]
    The Council further contends that when performing secondments that followed his procurement role, Mr Soustal ceased discharging the inherent function of the CDIV role and has not been required to supervise any employees since late January 2020.[148] 
  3. [103]
    The Union argues that Council's contentions that Mr Soustal was not in his role after 2 January 2020, and therefore not entitled to the MEP after that date is misconceived, given:
  1. (a)
    The reason Mr Soustal was undertaking secondments was due to his grievance and behavioural concerns regarding Ms Hunter.[149]
  1. (b)
    Although Mr Soustal was performing various secondments from January 2020 until his position was made redundant on 1 July 2021, Mr Soustal was attached to the position of Coordinator Data Insight and Visualisation within the Council's 'system'.[150]
  1. (c)
    While on secondment, Mr Soustal carried across the title 'Coordinator Data Insight and Visualisation' and effectively performed the same duty, however, the direct reports were different from his original role. 
  1. (d)
    Mr Soustal's pay advice referred to the same role title and this was also reflected in his email signature.[151]
  1. [104]
    The Council submits that whilst Mr Soustal may have retained his title in the Council's 'system', it is contended his signatory block did change, for example where Mr Soustal referred to himself as the Project Coordinator (Fleet Improvement).[152]
  2. [105]
    While the Council accepts that the work Mr Soustal was completing while on secondment was valuable, it maintains this does not confer upon an employee an entitlement to an additional incentive payment where they have discharged duties in a seconded role.[153]
  3. [106]
    In reply, the Union maintains the secondments undertaken by Mr Soustal were temporary and there is no evidence before the Commission which suggests that the role originally held by Mr Soustal, Coordinator Data Insights and Visualisation, was no longer on foot.[154]
  4. [107]
    The Union submits there was no mutual intention held by the parties that by Mr Soustal taking on temporary secondments that the original contract would be terminated and replaced by a new one. In support of this position, the Union cites Ashley J in Quinn v Jack Chia (Australia) Ltd:[155]

But the passage highlights what seems to me to be a valid point - that where employer and employee agree to an alteration in the employee's duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract, as varied, contained terms objectively appropriate to the new relationship created. 

  1. [108]
    The Union maintains that given the secondments were temporary and that there is no evidence to the contrary that the original contract remains on foot and the answer to question three must be 'yes'.[156]

Mr Soustal has an entitlement to the continuation of the Market Equity Payment post after 2 January 2020

  1. [109]
    It is well established that a contractual variation cannot be unilaterally imposed.[157] Rather, such a variation requires mutual consent and the formation of a further contract, which must be supported by sufficient consideration.[158]
  1. [110]
    In Stratton v Illawara County Council Reynolds JA (with whom Moffitt P and Samuels JA agreed) stated in direct reference to contracts of employment that:[159]

It is well settled that it is not open to either party to a contract of service to change its terms by unilateral act.

  1. [111]
    In this context, Heffernan J in Goswami v BPL Adelaide Pty Ltd, outlined a two-step process for determining whether a unilateral amendment to a term of an employment contract constitutes a repudiation of the employment contract.[160] The first step is to determine whether the contract permits, either expressly or by implication, unilateral variation by the employer. For reasons already given, I am satisfied that the contract in these proceedings contains no such term. 
  2. [112]
    The second step is to consider whether the amendment is sufficiently serious to amount to a repudiation.[161] In each case this will be a question of fact.[162] Nevertheless, it is well settled that a unilateral reduction in salary, as a general rule, will amount to a repudiation of the employment contract.[163]
  3. [113]
    In Rigby v Ferodo Ltd, Lord Oliver (Lord Bridge, Lord Fraser, Lord Brightman and Lord  Ackner agreeing), albeit in dicta, observed that:[164]

... the unilateral imposition by an employer of a reduction in the agreed remuneration of an employee constitutes a fundamental and repudiatory breach of the contract of employment which, if accepted by the employee, would terminate the contract forthwith. 

  1. [114]
    There are other authorities which bear this statement out. In Benge v Bluescope Steel (AIS) Pty Ltd (No 2), Dowdy J stated:[165]

Where however an employer unilaterally reduces his employees pay, or diminishes the value of his salary package, the entire foundation of the contract of employment is undermined. Therefore, an emphatic denial by the employer of his obligation to pay the agreed salary or wage, or a determined resolution not to comply with his contractual obligations in relation to pay and remuneration, will normally be regarded as repudiatory. 

  1. [115]
    In my view, the Council had no general right to unilaterally remove the MEP.[166]
  2. [116]
    Turning to the question of whether Mr Soustal, by continuing to work at Council, albeit on secondment, agreed to any variation, I am not satisfied that he did so, whether expressly by words or implicitly through conduct.
  3. [117]
    I accept Mr Soustal took deliberate steps to oppose the cessation of the MEP, including the lodging of a formal dispute and a bullying application. His grievance about the removal of the MEP and Ms Hunter's purported conduct, in concert with the recommendation of the Commission,[167] left him with little opportunity to reject the proposed secondments. 
  4. [118]
    These circumstances materially distinguish this matter from Harpham v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ('Harpham').[168] In that case, Tracey J accepted the submission of the employer that, although the employee initially disputed the employer's unilateral reduction in salary, the employee's continued performance of the role over a period of more than three years, without objection to further variations, was consistent with an affirmation of the varied contract.[169]
  1. [119]
    While Tracey J found affirmation in the employee's continued performance in Harpham, the position here is different. 
  2. [120]
    Although Mr Soustal remained employed by the Council, albeit seconded to temporary roles in which he did not perform some of the supervisory responsibilities of his substantive position, he:
    1. remained assigned to the position of Co-ordinator – Data Insights & Visualisation;[170]
    2. the dispute about the removal of the MEP remained on foot; and
    3. his opposition to the variation persisted. 
  1. [121]
    In those circumstances, I do not accept that, in electing to remain in employment, Mr Soustal affirmed the removal of the MEP.
  1. Conclusion
  1. [122]
    I order accordingly.

In answer to the questions for arbitration, namely:

  1. Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020?

The answer is: 

No

  1. Was the review of the Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2008 to 2 January 2010, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy? 

The answer is: 

No

  1. Does Mr Brendan Soustal have an entitlement to the continuation of the Market Equity Payment post the City's termination of said payment on 2 January 2020? 

The answer is:

Yes

SCHEDULE 1

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) [2025] QIRC 172

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) [2025] QIRC 172

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) [2025] QIRC 172

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) [2025] QIRC 172

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2) [2025] QIRC 172

Footnotes

[1] Notice of Industrial Dispute filed on 28 July 2020.

[2] Notice of Industrial Dispute filed 28 July 2020, Schedule 1.

[3] Closing Submissions filed by the Council of the City of Gold Coast ('the Council') on 19 August 2021 [2].

[4] Queensland Services Industrial Union of Employees v Council of the City of Gold Coast [2020] QIRC 181.

[5] Ibid 4-5.

[6] Agreed Statement of Facts filed 6 November 2020.

[7] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [2].

[8] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [2].

[9] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [3].

[10] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [5].

[11] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [7].

[12] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [7], Exhibit A.

[13] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [11].

[14] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [11].

[15] T 1-16, ll 8-18.

[16] T 1-16, ll 7-45.

[17] T 1-19, ll 16-30.

[18] T 1-24, ll 10-20.

[19] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [7]-[16].

[20] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [14].

[21] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [21].

[22] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [23].

[23] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [23].

[24] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [30].

[25] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 4, email dated Monday 16 October 2017 8:59am.

[26] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [26].

[27] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [37].

[28] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 6.

[29] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 7.

[30] T 1-120, ll 13-25.

[31] T 1-113, ll 1-4.

[32] T 1-104, ll 20-23.

[33] T 1-112, ll 6-20.

[34] T 1-120, ll 20-25.

[35] T 1-120, ll 20-30.

[36] Affidavit of Ms Shannon Richards filed 12 January 2021 [42].

[37] Affidavit of Ms Shannon Richards filed 12 January 2021 [38].

[38] Affidavit of Ms Shannon Richards filed 12 January 2021 [36].

[39] Affidavit of Ms Shannon Richards filed 12 January 2021 [36].

[40] Affidavit of Ms Shannon Richards filed 12 January 2021 [20]-[37].

[41] Affidavit of Ms Shannon Richards filed 12 January 2021 [21].

[42] Affidavit of Ms Shannon Richards filed 12 January 2021 [21].

[43] Affidavit of Ms Shannon Richards filed 12 January 2021 [23].

[44] Affidavit of Ms Shannon Richards filed 12 January 2021, Exhibit SR 5.

[45] Affidavit of Ms Shannon Richards filed 12 January 2021, Exhibit SR 2. I rely on this document in the formulation of Schedule 1 to this decision.

[46] Affidavit of Ms Shannon Richards filed 12 January 2021, Exhibit SR 8.

[47] The Union's Closing Submissions filed on 5 August 2021 [1].

[48] The Union's Closing Submissions filed on 5 August 2021 [4](e), [20].

[49] The Council’s Closing Submissions filed on 19 August 2021 [1]-[2].

[50] The Union's Closing Submissions filed on 5 August 2021 [1].

[51] The Union's Closing Submissions filed on 5 August 2021 [2].

[52] The Union's Closing Submissions filed on 5 August 2021 [2].

[53] The Union's Closing Submissions filed on 5 August 2021 [4](a).

[54] The Union's Closing Submissions filed on 5 August 2021 [4](b).

[55] The Union's Closing Submissions filed on 5 August 2021 [4](c).

[56] The Council’s Closing Submissions filed on 19 August 2021 [3].

[57] The Council’s Closing Submissions filed on 19 August 2021 [7].

[58] The Council’s Closing Submissions filed on 19 August 2021 [7].

[59] The Council’s Closing Submissions filed on 19 August 2021 [8].

[60] The Union's Closing Submissions filed on 5 August 2021 [5](a).

[61] The Union's Closing Submissions filed on 5 August 2021 [5](b).

[62] The Union's Closing Submissions filed on 5 August 2021 [5](b).

[63] The Union's Closing Submissions filed on 5 August 2021 [5](c).

[64] The Union's Closing Submissions filed on 5 August 2021 [5](e).

[65] The Council’s Closing Submissions filed on 19 August 2021 [9].

[66] The Council’s Closing Submissions filed on 19 August 2021 [10]; T 2-29 ll 36-38.

[67] The Council’s Closing Submissions filed on 19 August 2021 [10].

[68] The Council’s Closing Submissions filed on 19 August 2021 [12](a).

[69] The Council’s Closing Submissions filed on 19 August 2021 [12](b).

[70] The Council’s Closing Submissions filed on 19 August 2021 [12](c).

[71] The Council’s Closing Submissions filed on 19 August 2021 [13].

[72] The Council’s Closing Submissions filed on 19 August 2021 [14] – [15].

[73] The Council’s Closing Submissions filed on 19 August 2021 [14] – [15].

[74] CBA v Barker (2014) 253 CLR 169, 178; see generally Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495 at [3].

[75] CFMEU v Personnel Contracting (2022) 96 ALJR 89, [60].

[76] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, [35].

[77] Ibid.

[78] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352.

[79] 149 CLR 337, 352 per Mason J; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, [35].

[80] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, [50].

[81] Maurice Alexander Management Pty Ltd v Sato [2023] ICQ 014, [22].

[82] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 8, Email from Jaye Price to Sue Hunter dated 19 March 2018.

[83] The Council's Outline of Submissions filed 24 March 2021 [18].

[84] The Council's Outline of Submissions filed 24 March 2021 [19].

[85] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 6, eRecruit Screen.

[86] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 6, eRecruit Screen.

[87] T1-120, ll 20.

[88] T1-120, ll 20 – 25.

[89] The Council's Outline of Submissions filed 24 March 2021 [18].

[90] Willis v Health Communications Network Ltd (2007) 167 IR 425 at [63]; Reynolds v Southcorp Wines Pty Ltd (2002) 122 FCR 310, [40] and [62].

[91] NSWCA 36.

[92] McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland PLC v James [2016] 92 NSWLR 326, [118].

[93] FCAFC 120.

[94] Ibid [8].

[95] 315 ALR 243.

[96] Ibid [118].

[97] Ibid [60].

[98] The Council’s Closing Submissions filed on 19 August 2021 [8]; Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [28].

[99] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 Exhibit SRH 7, Email from Sue Hunter to Brendan Soustal dated 26 October 2017.

[100] T1-24, ll 10-20.

[101] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [30]

[102] T 1-16 25-28.

[103] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [26], [29], [36]-[37], and [41].

[104] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [26], [36]-[37], and [41].

[105] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [41]

[106] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [27].

[107] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [42].

[108] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [42].

[109] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [43].

[110] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [50].

[111] Affidavit of Brendan Frank Soustal filed on 28 June 2021, Exhibit M, Email chain between Ms Perry, Ms Waller and me on Tuesday 7 January 2020 at 4:28pm.

[112] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [71].

[113] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [70] and Exhibit M, 'Email chain between Ms Perry, Ms Waller and me on Tuesday 7 January 2020 at 4:28pm.'

[114] Affidavit of Brendan Frank Soustal filed on 28 June 2021, Exhibit N, 'Email from Ms Richards' assessment of the termination of the MEP' dated 20 January 2020.

[115] Affidavit of Brendan Frank Soustal filed on 28 June 2021 [74] and Exhibit E, 'Follow up on today's discussion regarding your return to your nominal position .msg' dated 9 October 2019.

[116] Affidavit of Brendan Frank Soustal filed on 28 June 2021, Exhibit F, 'email chain between Ms Grant and me on Tuesday 15 October 2019 at 9:52am'.

[117] Affidavit of Brendan Frank Soustal filed on 28 June 2021, Exhibit N, 'Email from Ms Richards' assessment of the termination of the MEP' dated 20 January 2020.

[118] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [69].

[119] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [70].

[120] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [59]-[66] and [72].

[121] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [74].

[122] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [75] and [76].

[123] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [44].

[124] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [45].

[125] Affidavit of Ms Susan Ruth Hunter filed 12 January 2021 [47].

[126] Affidavit of Ms Shannon Richards filed 12 January 2021 [48].

[127] The Union's Closing Submissions filed on 5 August 2021 [6].

[128] The Council’s Closing Submissions filed on 19 August 2021 [28].

[129] The Council’s Closing Submissions filed on 19 August 2021 [25]

[130] Oxford English Dictionary (online at 26 June 2025) 'review' (def 2).

[131] Macquarie Dictionary (online at 26 June 2025) ‘review’ (def 8).

[132] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[133] T 1-16 ll 25-28.

[134] T 1-117 ll 46-47.

[135] Affidavit of Ms Shannon Richards filed 12 January 2021 [44]-[45] and Exhibit SR 10, 'Correspondence from Hays to Kristi Whitworth.'

[136] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [22]; T13 ll 5-7.

[137] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [7].

[138] Form 82 – Application for an order to stop bullying, filed 27 February 2020, matter B/2020/16 (Brendan Soustal v Gold Cost City Council).

[139] Pidgeon IC, Recommendations (13 March 2020) in Brendan Soustal v Gold Coast City Council [2020] QIRC B/2020/16.

[140] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [13].

[141] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [19], [32], [36] and [56].

[142] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [64].

[143] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [60].

[144] Form 10 – Notice of Industrial Dispute, filed 28 July 2020, matter D/2020/82 (The Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast).

[145] The Union's Closing Submissions filed on 5 August 2021 [18]

[146] The Council’s Closing Submissions filed on 19 August 2021 [29], [38].

[147] The Council’s Closing Submissions filed on 19 August 2021 [31].

[148] The Council’s Closing Submissions filed on 19 August 2021 [32]-[33].

[149] The Union's Closing Submissions filed on 5 August 2021 [19](c).

[150] The Union's Closing Submissions filed on 5 August 2021 [19](a).

[151] The Union's Closing Submissions filed on 5 August 2021 [19](b).

[152] The Council’s Closing Submissions filed on 19 August 2021 [35].

[153] The Council’s Closing Submissions filed on 19 August 2021 [36].

[154] The Union's Closing Submissions in Reply filed on 26 August 2021 [1]-[3].

[155] Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567, 576.

[156] The Union's Closing Submissions in Reply filed on 26 August 2021 [6]-[7].

[157] Actrol Parts Pty Ltd v Coppi (No 2) (2015) 257 IR 179, [41] referencing Mark Irving, The Contract of Employment, (2012) 303 [6.17] which cited various authorities.

[158] Benge v Bluescope Steel (AIS) Pty Ltd (No 2) [2020] FCCA 515, [56] per Dowdy J; see generally Director of Public Prosecutions (DPP) (Vic) v Le (2007) 240 ALR 204 [35]-[43] per Gummow and Hayne JJ, for discussion of 'sufficient consideration'.

[159] (1979) 2 NSWLR 701, 705.

[160] [2021] FCCA 302, [76].

[161] Ibid.

[162] Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693, 698.

[163] Tokyo Network Computing Pty Ltd v Tanaka [2004] NSWCA 263, [6] per Handley JA; Goswami v BPL Adelaide Pty Ltd [2021] FCCA 302, [76].

[164] [1988] ICR 29, 33.

[165] [2020] FCCA 515, [68].

[166] R F Hill Ltd v Mooney [1981] IRLR 258, 260.

[167] Pidgeon IC, Recommendations (13 March 2020) in Brendan Soustal v Gold Coast City Council [2020] QIRC B/2020/16; Affidavit of Ms Catherine Drinkwater filed 12 January 2021, Exhibit CD 5 'Recommendations issued by the QIRC (Matter no. B/2020/16) on 13 March 2020.'

[168] [2016] FCA 1473.

[169] Ibid [83], citing Sargent v ASL Developments Ltd (1974) 131 CLR 634, 656; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, 633; and Galafassi v Kelly (2014) 87 NSWLR 119, [88].

[170] Affidavit of Ms Catherine Drinkwater filed 12 January 2021 [60].

Close

Editorial Notes

  • Published Case Name:

    Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2)

  • Shortened Case Name:

    Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast (No 2)

  • MNC:

    [2025] QIRC 172

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    07 Jul 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
2 citations
Jump To
Cite 1 - (1982) 149 C.L R. 337
Cite 2 - (1982) 149 C.L R. 337
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169
2 citations
Jump To
Cite 1 - (2014) 253 CLR 169
Cite 2 - (2014) 253 CLR 169
Director of Public Prosecutions (Vic) v Le (2007) 240 ALR 204
2 citations
Jump To
Cite 1 - (2007) 240 ALR 204
Cite 2 - (2007) 240 ALR 204
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd and Ors (2014) 251 CLR 640
3 citations
Jump To
Cite 1 - (2014) 251 CLR 640
Cite 2 - (2014) 251 CLR 640
Cite 3 - (2014) 251 CLR 640
Galafassi v Kelly (2014) 87 NSWLR 119
1 citation
Jump To
Cite 1 - (2014) 87 NSWLR 119
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120
1 citation
Jump To
Cite 1 - [2007] FCAFC 120
In the making of the City of Gold Coast Certified Agreement 2019 [2019] QIRC 153
1 citation
Jump To
Cite 1 - [2019] QIRC 153
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
1 citation
Jump To
Cite 1 - (1984) 165 CLR 622
Maurice Alexander Management Pty Ltd v Sato [2023] ICQ 14
2 citations
Jump To
Cite 1 - [2023] ICQ 14
Cite 2 - [2023] ICQ 14
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495
2 citations
Jump To
Cite 1 - (2020) 271 CLR 495
Cite 2 - (2020) 271 CLR 495
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
2 citations
Jump To
Cite 1 - (2015) 256 CLR 104
Cite 2 - (2015) 256 CLR 104
Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2020] QIRC 181
3 citations
Jump To
Cite 1 - [2020] QIRC 181
Cite 2 - [2020] QIRC 181
Cite 3 - [2020] QIRC 181
Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567
2 citations
Jump To
Cite 1 - [1992] 1 VR 567
Cite 2 - [1992] 1 VR 567
Rigby v Ferodo Ltd [1988] ICR 29
1 citation
Jump To
Cite 1 - [1988] ICR 29
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 315 ALR 243
1 citation
Jump To
Cite 1 - (2014) 315 ALR 243
Sargent v ASL Developments Pty Ltd (1974) 131 C.L.R., 634
1 citation
Jump To
Cite 1 - (1974) 131 C.L.R., 634

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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