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Plumb v Rockhampton Regional Council[2025] QIRC 176

Plumb v Rockhampton Regional Council[2025] QIRC 176

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Plumb v Rockhampton Regional Council [2025] QIRC 176

PARTIES:

Plumb, Jason

(Applicant)

v

Rockhampton Regional Council

(Respondent)

CASE NO.:

GP/2024/38

PROCEEDING:

Application in existing proceedings

HEARING DATE:

30 May 2025

DELIVERED ON:

10 July 2025

MEMBER:

Merrell DP

HEARD AT:

Brisbane and by video link to Rockhampton

ORDER:

Pursuant to s 451(1) of the Industrial Relations Act 2016, the Applicant's General Application in Matter No. GP/2024/38, filed on 28 October 2024, is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND OTHER MATTERS – GENERAL PROTECTIONS APPLICATION – Applicant was employed by the Respondent and was dismissed effective 5 October 2021 – the parties subsequently entered into a Deed of Settlement by which, for the Applicant's resignation, he provided certain releases to the Respondent – on 28 October 2024, the Applicant applied to the Queensland Industrial Relations Commission for various orders under ch 8, pt 1 of the Industrial Relations Act 2016 alleging contraventions of s 285, s 287, s 288, s 289 and s 301 of the Industrial Relations Act 2016 – application the subject of conciliation by the Queensland Industrial Relations Commission – conciliation failed – application in existing proceedings made by the Respondent for the summary dismissal of the Applicant's application – whether allegations contained in the Applicant's application, alleging contraventions of ch 8, pt 1 of the Industrial Relations Act 2016, are ones '…relating to dismissal' within the meaning of s 310(1) of the Industrial Relations Act 2016 or are otherwise incompetent – certain allegations grounds of Applicant's application abandoned during the hearing – Applicant's application, alleging contraventions of ch 8, pt 1 of the Industrial Relations Act 2016, not competent for various reasons or otherwise abandoned - Applicant's application dismissed pursuant to s 451(1) of the Industrial Relations Act 2016

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where application made by the Applicant alleging various contraventions of  ch 8, pt 1 of the Industrial Relations Act 2016 – where application in existing  proceedings made by the Respondent seeking the summary dismissal of the Applicant's application on the grounds that it is incompetent – powers of the Queensland Industrial Relations Commission, pursuant to the Industrial Relations Act 2016, to summarily dismiss an application made to it – principles to be considered in respect of the summary dismissal of an application pursuant to s 451(1) of the  Industrial Relations Act 2016

CASES:

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 278 CLR 300

Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2010] FCA 551; (2010) 269 ALR 98

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

Elisha v Vision Australia Limited [2022] VSC 754

Elisha v Vision Australia Limited [2024] HCA 50; (2024) 99 ALJR 171

Fair Work Ombudsman v Blue Sky Kids Lt (in liq) (No 3) [2024] FCA 785

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

J. Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd [1998] QIRC 316; (1998) 158 QGIG 469

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75

Orchid Avenue Realty Pty Ltd t/as Ray White Surfers Paradise v Julianne Lois Percival [2003] ICQ 47; (2003) 174 QGIG 643

Pennington v Jamieson [2022] ICQ 22; (2022) 317 IR 410

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064

Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 47

Tooheys Limited v Commissioner of Stamp Duties (N.S.W.) [1961] HCA 35; (1961) 105 CLR 602

Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152

United Firefighters' Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510

Yousif v Workers’ Compensation Regulator [2017] ICQ 004

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Industrial Relations Act 2016, s 278, s 280, s 281, s 282, s 284, s 285, s 287, s 288, s 289, s 291, s 295, s 296, s 297, s 301, s 309, s 310, s 314, s 316, s 379, s 429, s 447, s 448, s 451, s 475, s 476, s 541, s 547C and s 547D

Fair Work Act 2009, s 341

Local Government Regulation 2012, s 283

APPEARANCES:

The Applicant in person

Mr B. Dwyer of McCullough Roberston for the Respondent with Mr Damon Morrison of the Respondent

Reasons for Decision

Introduction

  1. [1]
    Dr Jason Plumb was employed by the Rockhampton Regional Council in the position of Manager Fitzroy River Water ('the position'). Dr Plumb commenced employment in the position on 25 November 2008. By 2021, Dr Plumb's employment with the Council was subject to a written contract of employment which was entered into on                           30 April 2021 ('the contract').
  1. [2]
    On 5 October 2021, the Council terminated Dr Plumb's employment.[1] Dr Plumb subsequently approached the Council and sought to resign from his employment.[2] On 7 October 2021, Dr Plumb and the Council executed a Deed of Settlement ('the Deed').[3] Clause 6.1(b) of the Deed provided that the Council would accept the resignation of Dr Plumb. Clause 6.2 of the Deed provided that Dr Plumb would provide a written resignation, effective 5 October 2021, and supply the resignation at the time of returning the executed Deed. By letter dated 5 October 2021, Dr Plumb provided his written resignation effective that day.[4]
  1. [3]
    By application filed on 28 October 2024, Dr Plumb applied to the Commission for certain relief under ch 8, pt 1 of the Industrial Relations Act 2016 ('the IR Act'). By that application Dr Plumb alleges that:
  • the Deed contains objectionable terms contrary to s 301(1) of the IR Act;[5]
  • the Council intended, by entering into the Deed, to deprive him of a workplace right within the meaning of s 284(1) of the IR Act and, as such, the Council contravened s 285(1) of the IR Act;[6]
  • the Council coerced him into entering into the Deed and, in doing so, contravened s 287 of the IR Act and, contrary to s 288 of the IR Act, the Council also engaged in undue influence or pressure;[7] and
  • by terminating his employment, the Council did not comply with s 283 of the Local Government Regulation 2012 ('the Regulation') and, thereby contravened s 289 of the IR Act in that the Council made misrepresentations to him about his workplace rights, namely, his eligibility to apply '…under the provisions of the IR Act for unfair dismissal' which significantly influenced his actions prior to signing the Deed[8] ('Dr Plumb's application').
  1. [4]
    On 7 February 2025, Dr Plumb filed a statement of facts and contentions in respect of his application ('Dr Plumb's contentions'). In summary, Dr Plumb seeks orders that:
  • the Deed be set aside;
  • as a consequence of the Council's alleged contraventions of s 285, s 287, s 288, s 289 and s 301 of the IR Act, pursuant to s 314(1)(b) of the IR Act, the Council pays him the sum of $100,000 as compensation '…for what can reasonably be considered to have been an Unfair Dismissal when the Respondent terminated the Applicant's employment on 5 October 2021'; and
  • pursuant to s 314(1)(c) of the IR Act, the Council pays him $117,000 for unpaid on-call allowance (the 'unpaid wages claim').
  1. [5]
    On 28 February 2025, the Council:
  • filed its response to Dr Plumb's contentions denying that Dr Plumb was entitled to the relief he sought; and
  • filed an Application in existing proceedings by which it applied for an order, pursuant to s 451 of the IR Act:
  1. –for the summary dismissal of Dr Plumb's application on the basis that his application was one '…relating to dismissal' within the meaning of s 310(1) of the IR Act;[9] or, in the alternative,
  1. – for the summary dismissal of the claims made in Dr Plumb's application about contraventions of s 285, s 287, s 288 and s 301 of the IR Act[10] ('the Council's application').
  1. [6]
    In respect of its application, the Council, by way of summary, submits that Dr Plumb's application is incompetent because:
  • Dr Plumb's application is one '…relating to dismissal' within the meaning of s 310(1) of the IR Act, and as such was not filed within 21 days after the dismissal took effect as required by s 310(1)(a) of the IR Act and the Commission has not allowed a further period of time for Dr Plumb to make his application;[11] or, in the alternative
  • Dr Plumb's allegations of unlawful adverse action, objectionable terms, coercion, and undue influence or pressure are incompetent and should be struck out because Dr Plumb does not allege the elements of those causes of action.[12]
  1. [7]
    During the hearing, I also raised the issue of the competency of Dr Plumb's unpaid wages claim. I gave Dr Plumb and the Council the opportunity to be heard about that issue.
  1. [8]
    For the reasons that immediately follow, the issues for my determination are:
  • whether Dr Plumb's application is one relating to dismissal within the meaning of s 310(1) of the IR Act and, if it is, whether it should be summarily dismissed; or, in the alternative
  • whether Dr Plumb's allegations of contraventions of s 285, s 287, s 288 and s 301 of the IR Act are misconceived and, if they are, whether they should be summarily dismissed; and
  • whether Dr Plumb's unpaid wages claim is competent.

The Council's application

  1. [9]
    As stated above, the Council claims that Dr Plumb's application should be summarily dismissed for two separate reasons.
  1. [10]
    First, the Council contends that Dr Plumb's application is one '…relating to dismissal' within the meaning of s 310(1) of the IR Act and, as such, it should have been made within 21 days of his dismissal. The Council further contends that because Dr Plumb's application was not made within that time, and because the Commission has not allowed Dr Plumb a further period of time to make his application, the Commission has no jurisdiction to hear and determine his application, and it should be dismissed.[13]
  1. [11]
    Secondly, the Council contends that Dr Plumb's claims of contraventions of s 285, s 287, s 288 and s 301 of the IR Act are incompetent because the elements of the various causes of action are not alleged.
  1. [12]
    The Council submits that both of its contentions involve matters of the construction of the IR Act such that they can be dealt with by the Commission in a summary manner.[14]
  1. [13]
    Dr Plumb was put on notice of the particulars of this claim by the Council as a consequence of the Council's written submissions filed on 28 March 2025.  Dr Plumb responded to those submissions with his own submissions filed on 2 May 2025 and made further oral submissions at the hearing.
  1. [14]
    Dr Plumb now submits that:
  • his application does not have anything to do with his dismissal;[15]
  • his application is about exercising his lawful workplace right to resolve a dispute relating to the Council intending to deprive him of exercising his workplace right to proceed with a claim he has commenced for unpaid wages;[16] and
  • the Deed contains objectionable terms, because the Council wishes to rely upon the Deed to prevent him from pursuing his claim for unpaid wages and, as such, prevents him from exercising his statutory workplace right to make a claim for unpaid wages.[17]
  1. [15]
    At the hearing, Dr Plumb confirmed that he does not pursue the relief contained in paragraph 67 of his contentions.[18] Dr Plumb now only presses for the following relief being:
  • that contained in paragraph 66 of his contentions, namely:
  1. 66.Based on the facts and contentions above, Clause 9 and related content of the Deed should be set aside and a decision made that the Respondent cannot rely on the Deed to prevent me from exercising my workplace rights under the IR Act, including but not limited to the current Unpaid Amount Claim (UAC/2024/11) with the QIRC; and
  • that contained in paragraph 68 of his contentions, namely:
  1. 68.Based on the facts and contentions above, and with regard to information already provided as part of the UAC/2024/11 application, I request that an order be made pursuant to s 314(1)(c) that the Respondent pay the Applicant the amount of $117,000 (or adjusted number based on updated information) for the unpaid on-call allowance for which no provision was ever made by the Respondent, despite claims but no evidence to the contrary that the remuneration provided to the Applicant since the Respondent ceased paying on-call allowance in circa 2010/11 made provision for the unpaid on-call allowance for which work was undertaken during the period referred to in the Unpaid Amount Claim.
  1. [16]
    After the Council completed its oral submissions, Dr Plumb did make the following submission:

All right. And – look – thanks, your Honour. Just some quick commentary in respect of Mr Dwyer's remarks, now. Look, your Honour, and I had thought we had already discussed and dealt with the issues associated with the alleged contraventions of sections 285, 287, 289, and so on. I have already explained that I've referred to them in previous documents to provide background, but I've also confirmed, again, today, as I had in my submission in response to the respondent's application to the striking out, that they're not – they're not fundamentally part of what I'm seeking to do with this general protections matter.

And even in their own submission for strike out, the respondent's lawyers have even suggested that some – or all of those individual items should be struck out, I thought we'd sort of concurred earlier in today's hearing that, again, that is no longer part of what’s being considered.[19]

  1. [17]
    The Council submits that Dr Plumb's submission, that his application has nothing to do with his dismissal, is self-serving[20] and the fact that Dr Plumb is not now pursuing the relief sought in paragraph 67 of his contentions does not deprive his application of having the character of '…relating to dismissal'. This is said to be the case because that particular relief sought by Dr Plumb gives important context to demonstrate that Dr Plumb believes his case is about his dismissal.[21]
  1. [18]
    Dr Plumb still presses his contentions that the Deed contains objectionable terms contrary to s 301 of the IR Act[22] as well as his claim for unpaid wages.  The Council submitted that Dr Plumb's whole application (leaving aside Dr Plumb's unpaid wages claim but including his claims of a contravention of s 301 of the IR Act) is one '…relating to dismissal.'[23]
  1. [19]
    In fact, the Council, in spite of Dr Plumb's concessions that he was not pressing his claims about alleged contraventions of s 285, s 287, s 288 and s 289 of the IR Act, argued all of its claims as to why Dr Plumb's application should be dismissed. Although not strictly necessary given Dr Plumb's concessions, because the Council argued all of its grounds for the summary dismissal of Dr Plumb's application, I will consider each of the grounds advanced by the Council.

The Commission's power to summarily dismiss an application

  1. [20]
    The Council applies for the Commission to exercise its discretion, pursuant to s 451(1) of the IR Act, to grant the relief it seeks in its application, namely, the dismissal of Dr Plumb's application in its entirety or, in the alternative, the dismissal of Dr Plumb's specific claims made under ch 8, pt 1 of the IR Act.
  1. [21]
    Section 451(1) of the IR Act provides that this Commission has power to do all things necessary or convenient to be done for the performance of its functions. In                                   Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016,[24] the following was said of s 451(1) of the IR Act (citations omitted):[25]
  1. [44]
    However, by virtue of s 451(1) of the Act, the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. This is a common way to describe such a power as conferred on a statutory body. A description similar to s 451(1) of the Act has been considered by the High Court. In Northern Land Council v Quall, Kiefel CJ and Gageler and Keane JJ relevantly stated:
  1. [33]
    The power conferred on a representative body by s 203BK(1) in the familiar terms of a power "to do all things necessary or convenient to be done for or in connection with the performance of its functions", though "broad", is "strictly ancillary", authorising "the provision of subsidiary means of carrying into effect what is enacted in the statute itself" and encompassing "what is incidental to the execution of its specific provisions". The power does "not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred".
  1. [45]
    Later, their Honours stated:

A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental.

  1. [22]
    A non-exhaustive list of the Commission's functions are set out in s 447(1) of the IR Act. Section 447(1)(n)(i) refers to the Commission's function of dealing with '…applications brought under this Act.'  Dr Plumb's application is one brought under the IR Act.  In my view, an obvious power that is incidental to the power of the Commission, to deal with an application brought under the IR Act, is to summarily dismiss such an application if it is misconceived or is otherwise incompetent.
  1. [23]
    Further, in Pennington v Jamieson,[26] the Industrial Court of Queensland ('the Court') held that s 451 of the IR Act is a source of power for the Commission to summarily dismiss a claim if the Commission does not have jurisdiction to hear it.[27]
  1. [24]
    In oral submissions,[28] the Council also referred to the decision of the Court in Orchid Avenue Realty Pty Ltd t/as Ray White Surfers Paradise v Julianne Lois Percival[29] where President Hall (albeit in the context of the equivalent provision in the Industrial Relations Act 1999 to s 541(b)(ii) of the IR Act) stated:

In Nugent v. Aromas Pty Ltd (1996) 153 QGIG 630 I accepted that in exercising the power at s. 331(b) (then the power at s. 90(1)(b) of the Industrial Relations Act 1990) respect should be given to the general principle enunciated by O'Connor J in Burton v. The President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92 that:

"Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

I continue to adhere to that view. I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. However, where a matter of construction is capable of finally resolving the matter, it seems to me that the exercise of construction should be undertaken notwithstanding that extensive argument may be necessary to demonstrate that the case of the applicant is so clearly untenable that it cannot possibly succeed, compare Queensland University of Technology v. Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 265 per Holmes J (with whom Davies JA and Mullins J agreed) and General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. That is particularly so when the matter goes to jurisdiction, Stevenson v. Barham (1976-1977) 136 CLR 190 at 202 to 203 per Mason and Jacobs JJ.

Should Dr Plumb's application be summarily dismissed?

  1. [25]
    By his application, Dr Plumb claims a number of distinct contraventions of ch 8, pt 1 of the IR Act. It is appropriate, therefore, in considering whether Dr Plumb's application is one '…relating to dismissal', to separately consider each particular claim Dr Plumb makes of a contravention of ch 8, pt 1 of the IR Act. In doing so, I will also consider the Council's related claims that Dr Plumb's allegations of contraventions of s 285, s 287, s 288 and s 301 of the IR Act are otherwise incompetent.
  1. [26]
    The Council submits that Dr Plumb's application is one relating to his dismissal in that:
  • the ordinary meaning of the phrase '…relating to' is 'connected with something', matters which are 'related' are 'associated or connected' and on a plain and ordinary reading, the phrase 'relating to' is a term of broad import;[30] and
  • on examination of Dr Plumb's application, both in terms of context and in terms of the precise allegations made by Dr Plumb, his application, viewed objectively, is one '… relating to' his dismissal.[31]
  1. [27]
    In terms of context, the Council referred to the Deed and submitted that the Deed is directly related to Dr Plumb's dismissal.[32] The Council points to the recitals to the Deed which refer to Dr Plumb's employment, the termination of his employment and the parties' agreement to settle all disputes arising out of, or in connection with, Dr Plumb's employment and the termination of his employment on the terms of the Deed. The Council also referred to the releases provided by Dr Plumb and the Council from other claims regarding the termination of Dr Plumb's employment with the Council.[33]
  1. [28]
    The Council then referred to Dr Plumb's contentions, namely:
  • paragraph 15, by which Dr Plumb contends that had the Council not taken adverse action by dismissing him and preventing him from accessing '…my workplace right afforded by condition 4.3 of the Certified Agreement,' the Deed of Settlement would not exist.'[34]
  • paragraphs 66, 67 and 68, in that the remedies sought by Dr Plumb are about his unfair dismissal and the related Deed;[35] and
  • paragraphs 1-14, 15, 16, 19-23, 24, 41, 48, 53, 58-59 and 60-63, in that the claims made by Dr Plumb are about the various contraventions of ch 8, pt 1 of the IR Act and they are all claims about his dismissal.[36]
  1. [29]
    The determination of the first basis upon which the Council applies for the summary dismissal of Dr Plumb's application requires a consideration of whether his application is one '… relating to dismissal' within the meaning of s 310(1) of the IR Act. The answer to that issue requires the construction of that provision and then a consideration of the claims made by Dr Plumb in his application.

The construction of s 310(1) of the IR Act

The principles of construction

  1. [30]
    In SZTAL v Minister for Immigration and Border Protection,[37] Kiefel CJ, Nettle and Gordon JJ summarised the approach to statutory construction:
  1. 14
    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[38]
  1. [31]
    The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[39] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[40] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[41]
  2. [32]
    Pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act (which includes its policy objective) is to be preferred to any other interpretation.
  1. [33]
    Section 310(1) of the IR Act is contained in ch 8, pt 1, div 8 of the IR Act. That division is headed 'Compliance'. Self-evidently, that division contains provisions (s 309 to s 311) setting out certain procedures that a person, who is in dispute with another person about the protections afforded by ch 8, pt 1 of the IR Act, must follow to claim relief before the Commission.
  1. [34]
    The remaining provisions of ch 8, pt 1, div 8 of the IR Act (s 312 to s 314) confer conciliation and arbitration powers on the Commission to resolve such disputes.
  1. [35]
    Section 309 of the IR Act provides:

309  Application for commission to deal with a dispute

  1. This section applies if–
  1. a person has been dismissed or has been affected by another contravention of this part; and
  1. the person or an organisation that has a right to represent the industrial interests of the person claims that the person has been dismissed or has been affected by another contravention of this part.
  1. The person or organisation may apply to the commission for the commission to deal with the dispute.
  1. [36]
    Section 310 of the IR Act relevantly provides:

310  Time for application

  1. An application relating to dismissal must be made within–
  1. 21 days after the dismissal took effect; or
  1. if the commission allows a further period under subsection (2)–the further period.

…

  1. An application relating to a contravention of this part (other than dismissal) must be made within 6 years after the contravention occurs.
  1. [37]
    The relevant enquiry is the meaning of the phrase '…relating to dismissal' in s 310(1)(a) of the IR Act.
  1. [38]
    As to the meaning of the phrase '…relating to', in Tooheys Limited v Commissioner of Stamp Duties (N.S.W.),[42] Taylor J relevantly stated:

There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used.[43] 

  1. [39]
    The phrase is capable of bearing a broader or narrower meaning as the context requires.[44]
  1. [40]
    Thus, the context in which the expression '…relating to dismissal' in s 310(1) of the IR Act is used can be obtained from a consideration of the relevant substantive provisions.

What is the context?

  1. [41]
    Chapter 8, pt 1 of the IR Act deals with 'General protections'. Section 278 of the IR Act provides:

278  Purposes of part

  1. The purposes of this part are as follows–
  1. to protect workplace rights;
  1. to protect freedom of association by ensuring that persons are–
  1. free to become, or not become, members of industrial organisations; and
  1. free to be represented, or not represented, by industrial organisations; and
  1. free to participate, or not participate, in lawful industrial activities;
  1. to provide protection from workplace discrimination;
  1. to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.
  1. The protections contained in subsection (1) are provided to a person (whether an employee, an employer or otherwise).
  1. [42]
    Section 280(a) of the IR Act relevantly provides that subject to s 281, ch 8, pt 1 applies to '… action taken by an employer.'
  1. [43]
    Section 281 of the IR Act provides:

281  Action to which this part does not apply

This part does not apply to–

  1. action mentioned in section 280 if the Commonwealth Fair Work Act, chapter 3, part 3–1 applies to the action;

or

  1. an action for unfair dismissal.

Note—

See part 2 for actions for unfair dismissal.

  1. [44]
    Chapter 8, pt 1, div 3 contains ss 282 to 289 inclusive and sets out the workplace rights that are protected. Section 282 defines '…adverse action' and sub-sections (1) and (5) provide:

282  Meaning of adverse action

  1. Adverse action is taken by an employer against an employee if the employer–
  1. dismisses the employee; or
  1. injures the employee in the employee’s employment; or
  1. alters the position of the employee to the employee’s prejudice; or
  1. discriminates between the employee and other employees of the employer.

…

  1. Adverse action includes–
  1. threatening to take action covered by subsections (1) to (4); and
  1. organising to take action covered by subsections (1) to (4).
  1. [45]
    The words '…dismiss', '…dismisses', '…dismissed' and '…dismissal', as contained in ch 8, pt 1 of the IR Act, are not defined. However, ch 8, pt 2 of the IR Act is headed 'Dismissals' and div 2 of that part is headed 'Unfair dismissals.' Section 316 of the IR Act provides that a '…dismissal is unfair if it is harsh, unjust or unreasonable.' In ch 8, pt 2 of the IR Act, a dismissal occurs where an employee's employment is terminated at the initiative of the employer without the genuine consent of the employee.[45] 
  1. [46]
    In my view, the reference to '…dismissal' in s 310(1) of the IR Act will carry the same meaning as dismissal in ch 8, pt 2. It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise.[46]  There is no good reason, from a consideration of the text and context of ch 8, pt 1 of the IR Act, to do otherwise in respect of the word '…dismissal' in s 310(1) of the IR Act.

The context requires a narrow meaning

  1. [47]
    Contrary to the Council's submissions, having regard to the provisions of the IR Act to which I have referred to above, my view is that the context in which the phrase '…relating to dismissal' appears in s 310(1) of the IR Act, requires a narrow meaning to be given to that phrase. 
  1. [48]
    Section 309 of the IR Act relevantly draws the distinction between two types of applications being made by a person to the Commission to deal with a dispute. The first is where the person claims that the person has been dismissed. The second is where the person claims the person  '…has been affected by another contravention' of ch 8, pt 1 of the IR Act.[47] On the plain reading of the statutory text of s 309 of the IR Act, it is obvious that, in the case of dismissal, the application to the Commission to deal with  a dispute is where the person claims they have been dismissed in contravention of                     ch 8, pt 1 of the IR Act.[48] Therefore, s 310(1) of the IR Act will apply. In the ordinary case, the application must be made within 21 days after the dismissal took effect.
  1. [49]
    Conversely, s 310(1) of the IR Act does not apply where the application to the Commission to deal with a dispute is where the person claims they have been affected by another contravention of ch 8, pt 1 of the IR Act, namely, one that does not involve the person's dismissal. As is made clear by the statutory text of s 310(3) of the IR Act, such an application must be made within six years after the contravention occurs.
  1. [50]
    For these reasons, I cannot accept the Council's submission that if the application is 'associated' or 'connected' with a dismissal then the application is one '…relating to dismissal'. The context does not reveal such a broad construction. An application  '…relating to dismissal' is one where the person claims they have been dismissed in contravention of  ch 8, pt 1 of the IR Act.
  1. [51]
    The Council's submissions proceed on the basis that what Dr Plumb claims by his application is that he was dismissed in contravention of ch 8, pt 1 of the IR Act.
  1. [52]
    The grounds of Dr Plumb's application outline the claims he makes. Dr Plumb's contentions particularise those claims. A statement of facts and contentions, as may be ordered by the Commission to be filed by a party to a proceeding before it, alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute.[49]
  1. [53]
    Dr Plumb's contentions allege a number of separate contraventions of ch 8, pt 1 of the IR Act. Although not argued by the Council, my view is that the only sensible way to apply s 310(1) of the IR Act to an application of the nature of that made by Dr Plumb, is to assess each alleged contravention of ch 8, pt 1 of the IR Act and determine if each alleged contravention is one '…relating to dismissal'. If an application, to the extent of a particular alleged contravention of ch 8, pt 1 of the IR Act, meets the description of being one ‘...relating to dismissal', then s 310(1) of the IR Act applies to the application to that extent.

The alleged contravention of s 285(1) of the IR Act

  1. [54]
    Section 284 defines the phrase '…workplace right':

284  Meaning of workplace right

  1. A person has a workplace right if the person–
  1. has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
  1. is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  1. is able to make a complaint or inquiry–
  1. to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  1. if the person is an employee–in relation to the person’s employment.
  1. In this section–

industrial body means–

  1. the commission; or
  1. the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.
  1. [55]
    Section 285 (Protection) relevantly provides:

285  Protection

  1. A person must not take adverse action against another person–
  1. because the other person–
  1. has a workplace right; or
  1. has, or has not, exercised a workplace right; or
  1. proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. to prevent the exercise of a workplace right by the other person.
  1. [56]
    In his application, Dr Plumb alleged:
  1. IR Act s 284(1) defines the meaning of Workplace Right and the Deed was clearly intended by the Respondent to deprive me of my rights as they are defined in this section (see Deed Clause 9. Release by Employee).
  1. As such, the Respondent and the Deed have contravened s 285 as they have taken adverse action as defined under s 285 Protection subpart (1).
  1. [57]
    In paragraphs 1 to 15 of his contentions, Dr Plumb contends that the Council contravened s 285(1) of the IR Act.
  1. [58]
    Dr Plumb begins by contending that he was covered by cl 4.3 of the Rockhampton Regional Council Certified Agreement 2018 – Internal Employees ('the certified agreement').[50] Clause 4.3 of the certified agreement provides:

4.3  Investigations and Disciplinary Processes

  1. 4.3.1.1
    The Parties acknowledge that all disciplinary processes and investigations must be open and transparent, ensuring that the Parties involved in the matter are provided with natural justice and procedural fairness. Accordingly, the processes shall follow a set procedure and decision making methodology to ensure consistency and fairness for the Parties involved.
  1. 4.3.1.2
    Where an investigation is required it will occur before there is any consideration regarding potential disciplinary outcomes. The purpose of the investigation shall be to objectively consider, based on all relevant evidence, what caused the issue and identify recommended outcomes to prevent the issue in the future.
  1. 4.3.1.3
    If an Employee is required to attend a meeting as a respondent in relation to an investigation or disciplinary process, they shall be provided with at least two (2) business days' notice in writing of the requirement to attend the meeting, unless emergent circumstances prevail. The Employee will be advised that they have a right to have a Union representative or a support person present.
  1. [59]
    Dr Plumb then contends:
  • when the Council '…took adverse action to dismiss me', it was in direct contravention of s 285(1)(b) of the IR Act as the Council prevented him '…from exercising my workplace right by preventing me from deriving benefit from the provisions within' cl 4.3 of the certified agreement;[51]
  • the benefits provided by cl 4.3 of the certified agreement would have enabled him to have access '…to all my work files and documents to enable me to respond satisfactorily to any allegations raised against me';[52] and
  • the Council's Chief Executive Officer and its Coordinator Manager, People and Capability, who signed the certified agreement on behalf of the Council, would have been fully aware of his '…entitlement to the benefits provided by' cl 4.3 of the certified agreement, and the mandatory requirements of s 283 of the Regulation '…which were not complied with when they deliberately took the adverse action by dismissing me in a manner that prevented me from exercising my workplace right.'[53]
  1. [60]
    Dr Plumb concludes by contending:
  1. For clarity, had the Respondent not taken adverse action by dismissing me and preventing me from accessing my workplace right afforded by condition 4.3 in the Certified Agreement, the Deed of Settlement would not exist.
  1. [61]
    I will refer to this claim as 'Dr Plumb's s 285 claim'.

Is Dr Plumb's s 285 claim one '…relating to dismissal'?

  1. [62]
    To the extent of what is claimed in paragraphs 4 and 5 of Dr Plumb's application and in paragraphs 1 to 15 of his contentions, I accept the Council's submissions that Dr Plumb's s 285 claim is one '…relating to dismissal' within the meaning of s 310(1) of the IR Act.
  1. [63]
    Section 285(1)(b) of the IR Act provides that a person must not take adverse action against another person to prevent the exercise of a workplace right by the other person.
  1. [64]
    On an ordinary reading of Dr Plumb's contentions as summarised above, he is contending that the Council, in contravention of s 285(1)(b) of the IR Act, dismissed him to prevent him from exercising a workplace right he had. The workplace right alleged is the benefit of procedural fairness that Dr Plumb contends was afforded to him pursuant to cl 4.3 of the certified agreement.
  1. [65]
    The connection between this aspect of Dr Plumb's application and his dismissal is direct.
  1. [66]
    As a consequence, Dr Plumb's s 285 claim is one relating to dismissal.

Is Dr Plumb's s 285 claim misconceived?

  1. [67]
    The Council contends that Dr Plumb's s 285 claim is, in any event, misconceived. This is because:
  • as far as Dr Plumb's allegations relate to the creation of the Deed, no adverse action could have been taken by the Council against Dr Plumb because, at that point, he was not an employee of the Council;[54] and
  • it did not take action against Dr Plumb regarding the Deed in that the Council offered Dr Plumb the Deed, which facilitated his resignation, and Dr Plumb decided to execute that Deed.[55]
  1. [68]
    The Council also submitted (footnotes omitted):
  1. Dr Plumb has since included several new allegations in his SOFC. Dr Plumb alleges that he had a workplace right to procedural fairness, Council undertook an investigation, Council did not provide him procedural fairness, and Council's actions therefore breached 's 283(1)(a) of the IR Act'. There is no such provision, and section 283(a) has no relevance. In any event, Dr Plumb's allegation misapprehends the general protections provisions. His allegation might be relevant to the fairness of his dismissal, but is not an alleged breach of the general protections provisions.
  1. Dr Plumb also alleges that, by dismissing him from employment, Council contravened       's 285(1)(b) as they prevented me from exercising my workplace right (regarding procedural fairness)'. The time limitation issue with this allegation is dealt with earlier in these submissions. In any event, Dr Plumb's allegation misapprehends the general protections provisions. Section 285(1)(b) of the IR Act provides that a person must not take adverse action against another person to prevent the exercise of a workplace right by the other person.' Dr Plumb alleges that Council's decision to dismiss him was adverse action, and had the effect of preventing him from participating in an investigation. That is distinct from an allegation that he was dismissed to prevent him from participating in an investigation. Dr Plumb has not alleged a relevant cause of action, and the allegation should be dismissed.
  1. [69]
    Leaving aside the fact that Dr Plumb's s 285 claim is one '…relating to dismissal', his claim is otherwise misconceived. Close attention must be paid to Dr Plumb's contentions because he conflates the provisions of s 284(1) and s 285(1) of the IR Act.
  1. [70]
    In paragraphs 7 and 9-10 of his contentions, Dr Plumb claims:
  1. The Rockhampton Regional Council Certified Agreement 2018 – Internal Employees (Certified Agreement) afforded me the benefit of being entitled to the Respondent complying with condition 4.3 Investigations and Disciplinary Processes, which included mandatory provisions relating to natural justice and procedural fairness in relation to investigations and disciplinary processes.

…

  1. Pursuant to s 283(1)(a)[56] the Respondent took adverse action by undertaking an investigation based on no formal complaints against me (see Right to Information Excerpt already provided to the QIRC Registry) in a manner that did not comply with any of the provisions in condition 4.3 of the Certified Agreement and was therefore in contravention of s 285(1)(a) by not allowing me access to the benefit of my workplace right as outlined in numbered point 7.
  1. Further, when the Respondent took adverse action to dismiss me, they were in direct contravention of s 285(1)(b) as they prevented me from exercising my workplace right by preventing me from deriving benefit from the provisions within condition 4.3 of the Certified Agreement.
  1. [71]
    Section 284(1)(a) of the IR Act defines a circumstance where a person has a workplace right, namely and relevantly, where the person '…has a right to a benefit of…an industrial law, industrial instrument or order made by an industrial body.'
  1. [72]
    Relevantly, s 285(1)(a) of the IR Act prohibits a person from taking one or more of the kinds of adverse action contained in s 282(1) of the IR Act against another person because the other person:
  • has a workplace right;
  • has, or has not, exercised a workplace right; or
  • proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right.
  1. [73]
    Also, relevantly, s 285(1)(b) of the IR Act prohibits a person from taking one or more of the kinds of adverse action contained in s 282(1) of the IR Act, so as to prevent the exercise of a workplace right by the other person.
  1. [74]
    Dr Plumb's first allegation in paragraph 9 does not allege a contravention of s 285(1)(a) of the IR Act. Objectively analysed, what Dr Plumb actually alleges is that the Council contravened cl 4.3 of the certified agreement. This is because he alleges the Council undertook an investigation of him '…in a manner that did not comply with any of the provisions in condition 4.3 of the Certified Agreement.' Assuming that Dr Plumb is contending that such an alleged contravention of cl 4.3 of the certified agreement was adverse action, Dr Plumb does not go on to then claim that such alleged adverse action was taken because he had a workplace right.
  1. [75]
    Dr Plumb's second allegation in paragraph 9 is also misconceived. The adverse action Dr Plumb contends was taken against him was that the Council undertook an investigation of him and did not comply with cl 4.3 of the certified agreement. However, he then contends that adverse action was taken by the Council (of not complying with cl 4.3 of the certified agreement) to prevent him from having the benefit of the Council's compliance with cl 4.3 of the certified agreement. Dr Plumb's contention is circular. Dr Plumb is contending that the alleged adverse action and the alleged workplace right are one and the same. Again, objectively analysed, Dr Plumb's actual complaint is that the Council did not comply with cl 4.3 of the certified agreement. Dr Plumb, inconsistently with the elements of s 285(1)(a) of the IR Act, tries to manipulate his actual complaint, that the Council allegedly contravened cl 4.3 of the certified agreement, into a contravention of s 285(1)(a) of the IR Act.
  1. [76]
    Dr Plumb's allegation in paragraph 10 is similarly misconceived. This is for three reasons.
  1. [77]
    First, I accept the Council's submission that, properly analysed, this claim by Dr Plumb is that the Council's decision to dismiss him had the effect of preventing him from participating in an investigation by the Council by which the Council complied with cl 4.3 of the certified agreement. However, as the Council submits, that does not disclose a cause of action under s 285(1)(a) of the IR Act. That is, Dr Plumb does not contend the Council dismissed him because he had the benefit of cl 4.3 of the certified agreement.
  1. [78]
    Secondly, the workplace right Dr Plumb alleges the Council prevented him from exercising is that allegedly contained in cl 4.3 of the certified agreement. Assuming that cl 4.3 of the certified agreement meets the definition of a 'workplace right' within the meaning of s 284(1)(a) of the IR Act, namely, by that clause Dr Plumb had a '…right to a benefit of … an industrial instrument' the question arises as to whether or not it was a workplace right of a nature that Dr Plumb could, as a matter of fact, exercise.
  1. [79]
    In a claim such as the one being made by Dr Plumb, close consideration must be given to the workplace right an employee claims the employer prevented them exercising. In Toyota Motor Corporation Australia Ltd v Marmara ('Toyota'),[57] the employer party to an enterprise agreement, made under the Fair Work Act 2009 ('the FWA'), contended that the no further claims clause in the agreement was an objectionable term within the meaning of the FWA because it would prevent an employee exercising a workplace right contrary to s 341(1)(b) of that Act.[58] The Full Court of the Federal Court described the claim made by the employer, and the answer to its claim, in the following manner:
  1. 125
    The scenario which Toyota's case envisages is that it would, by the operation of the no further claims term, be prohibited from initiating a process to vary the Agreement, that the Agreement would remain in its existing form, that every employee would, to some extent at least, come closer to being retrenched because of Toyota's inability to achieve the cost savings which its proposed variations would have delivered, and that every such employee would thereby be injured in his or her employment or have his or her position altered to his or her prejudice.
  1. 126
    This very strained contention as to how the definition of "objectionable term" in s 12, and the provisions of Pt 3-1, of the FW Act would, or even might, operate in the circumstances facing Toyota if it were unable to initiate a process for the variation of the Agreement cannot be supported. First, counsel for Toyota accepted that para (b) of s 340(1) required a subjective inquiry, no less than para (a). That is to say, the expression "to prevent the exercise" must be read in the sense "in order to prevent the exercise" or "with a view to preventing the exercise". It was not sufficient if action taken by the person referred to in the subsection had the incidental effect of preventing the exercise. That was, in our view, an appropriate concession. For Toyota to withhold from making any proposal for the variation of the Agreement because of the prohibition in cl 4 would not be to act, or to refrain from acting, in order to prevent the exercise by its employees of their rights to participate in the process that would have been initiated by any such proposal. Rather, it would be to act, or to refrain from acting, out of a desire to comply with the law.
  1. 127
    Secondly, it was made clear by counsel for Toyota that the workplace right on which their client relied was the ability of an employee to participate in a process for the variation of the Agreement. However, unless and until Toyota made a request under s 208, there would be no such ability. On the construction of cl 4 by reference to which this department of Toyota's appeal proceeded, the effect of compliance with the no further claims term would be that no such request could be made. By the very operation of the provision which is assailed, therefore, the threshold erected by s 341(1)(b) would never be crossed: the employee would not have the workplace right in question.
  1. 128
    Thirdly, even assuming the existence of a workplace right, the no further claims term in clause 4 does not "permit" the putative action which Toyota contends would amount to a contravention of s 340(1)(b). It is, in our view, not sufficient if a term of an enterprise agreement has an omnibus operation which, while being silent with respect to acts which would constitute adverse action, could theoretically comprehend conduct which, in particular circumstances, might be so characterised. If a term of such an agreement provided no more than that an employee could be dismissed on four weeks' notice, it could not be said that this "permitted" him or her to be dismissed, for example, for having participated in a conference conducted by the Commission (s 341(2)(a)). Likewise, on the facts of the present case, where the relevant term in clause 4 of the Agreement provides no more than that further claims not be made, it could not be said that this "permitted" Toyota to place the job security of every  employee in greater peril by withholding from making such claims. The connection between the operation of the no further claims term and the proscription in Pt 3-1 relied on by Toyota is just too tenuous to fall within the definition of "objectionable term" in s 12 of the FW Act.[59]
  1. [80]
    The reasons given by the Full Court, while not involving exactly the same circumstances as the present case, are apposite. Clause 4.3 of the certified agreement is set out in paragraph [58] of these reasons. Dr Plumb contends that benefit provided by cl 4.3 of the certified agreement '…would have enabled me to have access to all my work files and documents to enable me to respond satisfactorily to any allegations raised against me.'[60] However, cl 4.3 of the certified agreement, by its terms, does not confer any such exercisable right.
  1. [81]
    Sub-clause 4.3.1.1 provides that the parties to the certified agreement acknowledge that all disciplinary processes and investigations must be open and transparent so as to ensure that those involved are provided with natural justice and procedural fairness; and that the processes will follow a set procedure and decision making methodology to ensure consistency and fairness. Sub-clause 4.3.1.2 provides that where an investigation is required, it will occur before there is any consideration of potential disciplinary outcomes. That sub-clause then states the purpose of an investigation.                  Sub-clause 4.3.1.3 deals with the notice and advice the employer must give to an employee in relation to an investigation or disciplinary process. By these provisions, there is no workplace right conferred on an employee, to whom the certified agreement applies, that can be exercised by the employee.
  1. [82]
    This conclusion can be tested against other clauses in the certified agreement. Clause 4.3 of the certified agreement can be contrasted with a workplace right that Dr Plumb, pursuant to the certified agreement, could exercise in the future; for example, the workplace right to initiate a dispute or grievance as provided by cl 4.2.1.7 of the certified agreement.
  1. [83]
    As a consequence, Dr Plumb's dismissal could not prevent any exercise of his identified workplace right under cl 4.3 of the certified agreement. This is because there was no workplace right that Dr Plumb could exercise. In the type of case Dr Plumb tries to mount, for him to have competently claimed a contravention of s 285(1)(b) of the IR Act, the workplace right would probably have to be one of the kind contained in s 284(1)(b) or (c) of the IR Act, namely, a workplace right he could exercise in the future.[61] Dr Plumb does not make such a claim.
  1. [84]
    Thirdly, in respect of his contention in paragraph 10, Dr Plumb's claim could not succeed. Dr Plumb does not contend that the Council dismissed him to prevent him from exercising a workplace right, which is the mischief to which s 285(1)(b) of the                IR Act is directed. On the precise allegation made by Dr Plumb, by his use of the phrase '… when the Respondent took adverse action to dismiss me' he actually is contending that his dismissal had the effect of preventing the exercise of the workplace right as alleged by him. As stated in Toyota,[62] it is '…not sufficient if action taken by the person referred to in the subsection had the incidental effect of preventing the exercise.' Thus, even assuming that Dr Plumb, by cl 4.3 of the certified agreement, had a workplace right he could exercise, his claim is still misconceived.
  1. [85]
    For these reasons, in addition to Dr Plumb's s 285 claim being one '…relating to dismissal', it is also misconceived and is incompetent.

The alleged contraventions of s 287 of the IR Act

  1. [86]
    Section 287 provides:

287  Coercion

  1. A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person–
  1. to exercise or not exercise, or to propose to exercise or not exercise, a workplace right; or
  1. to exercise, or to propose to exercise, a workplace right in a particular way.

Note—

This subsection is a civil penalty provision.

  1. Subsection (1) does not apply to protected industrial action.
  1. [87]
    In his application, Dr Plumb alleged:
  1. I allege also that the Respondent and the Deed have contravened s 287 Coercion, in that I was coerced into signing the Deed with all my lawful pay entitlements included as a condition in the Deed so that I only received them after signing the Deed. This action by the Respondent I consider to be a contravention of s 288 Undue influence of [sic] pressure
  1. [88]
    In paragraphs 16 to 40 of his contentions, Dr Plumb particularises his claim that the Council contravened s 287 of the IR Act.
  1. [89]
    Dr Plumb contends the Respondent contravened s 287 of the IR Act on two occasions.

The first contended contravention of s 287 of the IR Act - paragraphs 16 to 23 of Dr Plumb's contentions

  1. [90]
    Dr Plumb begins by contending:
  1. 16.For clarity, the manner in which I was dismissed is, and has not been, in dispute between parties as has been confirmed in the Respondent's Employer Response to my original TD/2021/97 application provided to the QIRC Registry in late 2021.
  1. [91]
    Dr Plumb then relevantly contends that:
  • on 5 October 2021, the Council's Chief Executive, and two other senior employees of the Council, entered his office '…and in a manner that was unannounced, and highly intimidating when they closed the door behind them without asking, with the intent of handing me a letter that terminated my contract of employment.';[63] and
  • in taking the action claimed immediately above:
  1. –the three employees of the Council intended '…to exert pressure in a practical and physical sense that negated any choice I might have had to obtain benefit or any advantage in relation to my entitlement to natural justice or procedural fairness' as provided for in cl 4.3 of the certified agreement or as provided for in s 283 of the Regulation;[64] and
  1. –left him with no option but to be handed a letter of termination '…with absolutely no advanced warning, or prior notice or reason provided in line with the workplace rights I was entitled to under' cl 4.3 of the Certified Agreement;[65] and
  1. –the Chief Executive of the Council took action against him that breached the Council's Code of Conduct, the certified agreement and the Regulation and was therefore unlawful.[66]
  1. [92]
    I will refer to this as Dr Plumb's first s 287 claim.

Is Dr Plumb's first s 287 claim one '…relating to dismissal?

  1. [93]
    The Council contends this claim made by Dr Plumb is one relating to his dismissal because, in his contentions:
  • in paragraph 19, Dr Plumb makes reference to the meeting he had with various Council employees where he was told that his employment was ending;
  • in paragraph 20, Dr Plumb makes the claims about how he felt that process was a pressure on him;
  • at paragraph 21, Dr Plumb describes how he felt, as a consequence of the dismissal, namely, that he had no option but to be handed a letter of termination with no warning; and
  • at paragraph 22, Dr Plumb contends he was unlawfully, unconscionably and intentionally provided with no opportunity to be prepared to receive the decision that his contract had been terminated, which is '…literally the dismissal process.'[67]
  1. [94]
    I accept the Councils submissions. While (for the reasons I give below) this contention by Dr Plumb about a contravention of s 287 of the IR Act is misconceived in terms of the relevant elements of a contravention of s 287 of the IR Act, he is, nevertheless, clearly contending that he was dismissed in contravention of s 287(1). To this extent, this particular contention by Dr Plumb means his application is one '…relating to dismissal.'
  1. [95]
    Even if I am wrong about this, on Dr Plumb's contentions about this particular contended contravention of s 287 of the IR Act, his claim is misconceived.

Is Dr Plumb's first s 287 claim misconceived?

  1. [96]
    The Council submitted that:
  • as correctly alleged by Dr Plumb, the Council's actions left him with no option but to be handed the termination notice in that the Council's decision to dismiss him was unilateral and the Council met with him on 5 October 2021 to notify him of that decision;
  • Dr Plumb's allegation is not an allegation of coercion because s 287 pertains to a person coercing another person to make particular choices regarding their workplace rights;  
  • Dr Plumb had no choice about whether to engage in a procedurally fair process; and
  • therefore, Dr Plumb could not have been coerced about a choice he did not have.[68]
  1. [97]
    I accept the Council's submissions.
  1. [98]
    The prohibition in s 287(1) of the IR Act is against any action with the intention to negate a person's choice to exercise, or to propose to exercise or not exercise, a workplace right. The prohibition is also against any action with the intention to negate a person's choice to exercise, or to propose to exercise, a workplace right in a particular way.
  1. [99]
    As Snaden J recently stated in United Firefighters' Union of Australia v Honourable Jaclyn Symes (No 2) ('UFU')[69] of the cognate provision in the Fair Work Act 2009                    (s 343(1)):

A person engages in conduct with intent to coerce another person to do or not do something if that conduct:

  1. is engaged in with the intention of negating the other person’s choice as to whether that thing should or should not be done; and
  1. is unlawful, unconscionable or illegitimate.[70]
  1. [100]
    Dr Plumb's claim cannot competently allege coercion. On the material facts alleged by him, unilateral action was taken by the Council to end his employment. As a consequence, Dr Plumb had no choice to make about a workplace right to exercise.
  1. [101]
    Dr Plumb's nominated workplace right, in respect of which he claims his choice was negated, was the '…benefit or any advantage in relation to my entitlement to natural justice or procedural fairness as defined' in cl 4.3 of the certified agreement. The first basic proposition about the applicable common law principles of natural justice, where a person's interests are likely to be affected by an exercise of power, is that such a person must be given an opportunity to deal with relevant matters adverse to their interests, which the repository of the power proposes to take into account in deciding upon its exercise.[71] This basic provision of procedural fairness, where required to be provided by an employer to an employee, is not something over which the employee has a choice in being able to benefit from or take advantage. The obligation is on the employer. Clause 4.3 of the certified agreement does not contain anything to the contrary. This claim of unlawful coercion by Dr Plumb is misconceived.
  1. [102]
    Properly understood, by the material facts Dr Plumb alleges in paragraphs 16 to 23 of his contentions, he is claiming that the Council denied him procedural fairness in his dismissal. This is made clear by paragraphs 21 and 22 of his contentions where Dr Plumb states:
  1. In taking the action as described in numbered points 19 and 20, the Respondent left me with no option but to be handed a letter of termination with absolutely no advanced warning, or prior notice or reason provided in line with the workplace rights I was entitled to under condition 4.3 of the Certified Agreement.
  1. As such I was unlawfully, unconscionably and intentionally provided with no opportunity to be prepared to receive this decision that my contract had been terminated, no ability to hear the reasons for the decision, provide a response in relation to a decision for which no justifiable reason was provided or have a support person present to assist me in exercising my workplace rights under condition 4.3 of the Certified Agreement.
  1. [103]
    The claim or allegation is that the Council did not provide Dr Plumb with procedural fairness. Such an allegation cannot be the basis for a competent claim of a contravention of s 287 of the IR Act.
  1. [104]
    For the reasons I have given above, Dr Plumb's application, to the extent of paragraphs 16-23 of his contentions:
  • is one relating to dismissal; and further, or in the alternative
  • is misconceived.

The second contended contravention of s 287 of the IR Act - paragraphs 24 to 40 of Dr Plumb's contentions

  1. [105]
    Dr Plumb begins by contending:
  1. In the second contravention of s 287 the Respondent drafted a Deed of Settlement (Deed) and coerced me into signing the Deed that listed my lawful pay entitlements including the severance payment, as being payable to me only after I signed the Deed, in other words making my lawful pay entitlements conditional on me signing the Deed (see copy already provided to the QIRC Registry).
  1. [106]
    Dr Plumb then relevantly contends:
  1. Prior to signing the Deed and without any means of checking the accuracy of the calculated amount of my lawful pay entitlements. I asked Travis Pegrem about the line item on the calculation summary that was labelled Ex Gratia (Deed of Settlement) and whether I could negotiate for additional payment to be included.
  1. In response, Travis Pegrem replied that this option was not applicable to me and that there would not be any negotiation of additional payment being included in the Deed.
  1. Senior management within the Respondent, specifically Tracy Sweeney and Peter Kofod were aware that I had been through a marital separation earlier in 2021 and for the first time in a number of years had needed to take out a bank loan to buy a house to live in.
  2. Each of Tracy Sweeney and Peter Kofod were also aware that part of my reason for seeking a renewal of my employment contract in early 2021 was to aid in my application for a bank loan to buy a house to live in.
  1. To this extent, the Respondent was aware of my general financial situation and was aware of the implications of my employment being terminated on my financial situation.
  1. Based on the facts and circumstances described above, I was once again coerced by the Respondent, by being given no choice but to sign a Deed to enable me to receive my lawful pay entitlements which I needed to continue to service a bank loan, amongst other expenses, and with no regular income after having my employment terminated unlawfully.
  1. At the point of signing the Deed I was not aware, nor was I made aware by the Respondent that I would relinquish my ability [sic] exercise my workplace rights as defined in the s 284 of the IR Act.

…

  1. It is quite clear now, but was completely unclear at the time of signing that the Deed deliberately sought to deny me access to my lawful workplace rights, yet the Deed itself gave no specific indication of this whatsoever as would be required by the Respondent if they complied with Queensland legislation and their own Code of Conduct.
  1. In this respect the Deed is unlawful and goes against public policy and the Respondent deliberately relied on coercion in order to get me to sign it on the basis that they believed it prevents me from exercising my workplace rights as outlined in s 284 of the IR Act, and in doing so contravened s 287 of the IR Act.
  1. [107]
    I will refer to this as Dr Plumb's second s 287 claim.

Is Dr Plumb's second s 287 claim one '…relating to dismissal?

  1. [108]
    The Council submitted that:
  • this second contravention is said to be about the Deed; and
  • at paragraph 24 of his contentions, Dr Plumb contends that the Council drafted a Deed of Settlement and coerced him into signing the Deed that listed his lawful pay entitlements as being payable to him after he signed the Deed, which is all in the context of him being dismissed.[72]
  1. [109]
    I am unable to accept this submission. In my view, Dr Plumb's application, to the extent of the contentions contained in paragraphs 24 to 40 of his contentions, is not one relating to dismissal. On the face of the contentions made, Dr Plumb is not claiming that his dismissal was in contravention of ch 8, pt 1 of the IR Act. Dr Plumb in fact, is alleging that he was coerced into entering into the Deed so that he would be paid his lawful entitlements upon the termination of his employment.

Is Dr Plumb's second s 287 claim misconceived?

  1. [110]
    The Council makes two discrete submissions.
  1. [111]
    First, the Council submits that:
  • Dr Plumb was dismissed from employment with the Council on 5 October 2021 and he executed the Deed on 7 October 2021;
  • as set out in the termination notice he received on 5 October 2021, it would have paid Dr Plumb his termination payments later on 7 October 2021; and
  • for these reasons, Dr Plumb's allegation that he was coerced into signing the Deed because his termination payment was contingent on executing the Deed cannot be sustained in that his allegation does not rise to the level that the Council's actions negated choice or left Dr Plumb with no realistic choice as to whether to comply.[73]
  1. [112]
    Secondly, the Council submits (footnotes omitted):
  1. 28Dr Plumb also alleges that he was coerced in executing the Deed because:
  1. Council gave him a copy of his termination entitlement calculations, but he felt he did not have an opportunity to '(check) the calculation. He does not allege he ever asked for additional time or documents to do so;
  2. Council did not offer him any ex gratia payment, though it was not obliged to do so;
  3. Council knew that Dr Plumb had personal financial pressures. Given that Council had already told Dr Plumb he would be paid his termination entitlements, and that the Deed did not offer Dr Plumb any additional payment, there is no reason why Dr Plumb having financial pressures would have made any difference to him signing the Deed. Of course, every dismissed employee unfortunately faces some financial pressures in any event; and
  4. Dr Plumb misapprehended the effect of the Deed. He says he thought that his 'workplace rights would remain', despite the release in the Deed.  Dr Plumb was entitled to seek his own legal advice before executing the Deed. There was no obligation for Council to provide him with that advice. Indeed, in signing the Deed, Dr Plumb expressly acknowledged that he 'freely entered into (the) Deed after having the opportunity to carefully consider its contents and to obtain advice on the matters in the Deed'.
  1. 29Section 287 does not prohibit the ordinary exchange of pressure in a negotiation between an employer and former employee. It does not prohibit an intent to influence or persuade or induce. Rather, it prohibits an intention to negate choice by a high degree of compulsion. Dr Plumb's allegations about why he executed the Deed, considered jointly or severally, do not rise to the level of Dr Plumb having no choice but to sign the Deed. Dr Plumb had a 'realistic choice as to whether or not' he would execute the Deed. He elected to do so. His allegations do not amount to an allegation of coercion, and should therefore be struck out.
  1. [113]
    In UFU,[74] Snaden J (again, about s 343(1) of the Fair Work Act 2009) recently and relevantly stated:
  1. 126
    In order that a person might be understood, by reason of particular conduct (or threatened conduct), to have intended to coerce another, it is "…unnecessary that the person organising, taking or threatening the action know[s] that the action is, or intend[s] that the action be, unlawful, illegitimate or unconscionable".  It suffices that there be an intention to negate another person’s choices:  Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551, 560‑561 [2] (Kiefel CJ, Keane, Nettle and Edelman JJ). In combination, then, the concept is engaged if action that is or would be objectively unlawful, illegitimate or unconscionable is organised, taken or threatened against a person with a subjective intention of negating that person’s choice as to some prescribed matter.
  1. [114]
    There are two reasons why this claim of a contravention of s 287(1) of the IR Act by Dr Plumb is incompetent.
  1. [115]
    First, by his contentions, Dr Plumb does not claim the Council took action to coerce him to exercise or not exercise, or to propose to exercise or not exercise, a workplace right. Further, Dr Plumb does not claim the Council took action to coerce him to exercise, or to propose to exercise, a workplace right in a particular way.
  1. [116]
    Having regard to the statutory text of s 287(1) of the IR Act, and to the concept of coercion as explained by Snaden J in UFU,[75] to competently claim an employer has contravened s 287(1) of the IR Act in respect of an employee, the elements that need to be alleged are:
  • the employer organised or took, or threatened to organise or take, certain action against an employee; and
  • the certain action is or would be objectively unlawful, illegitimate or unconscionable; and
  • the certain action was organised or taken, or threatened to be organised or taken, with the subjective intention of negating the employee's choice:
  1. –to exercise or not exercise, or to propose to exercise or not exercise, a workplace right within the meaning of ch 8, pt 1 of the IR Act; or
  1. –to exercise, or to propose to exercise, a workplace right, within the meaning of ch 8, pt 1 of the IR Act, in a particular way.
  1. [117]
    Objectively analysed, Dr Plumb's claim is that:
  • the 'action' that was taken by the Council was the representation by the Council to him that he must sign the Deed to receive his lawful termination of employment entitlements (paragraphs 24 and 33 of Dr Plumb's contentions);
  • the Deed itself (as opposed to the action taken by the Council) was unlawful because it prevented him from exercising '…my workplace rights as outlined in s  284 of the IR Act' (paragraphs 39 and 40 of Dr Plumb's contentions); and
  • the action taken by the Council negated his choice to sign or to not sign the Deed and he was coerced into signing the Deed (paragraphs 24 and 33 of Dr Plumb's contentions).
  1. [118]
    As such, this claim made by Dr Plumb is misconceived. The elements that must be alleged for a competent allegation of a contravention of s 287(1) of the IR Act to be made cannot be identified by Dr Plumb. This is because:
  • Dr Plumb contends that the negation of his choice was to enter or not enter into the Deed, as opposed to contending that the negation of his choice was about the exercise of a workplace right within the meaning of ch 8, pt 1 of the IR Act; and
  • the entry into a deed of settlement is not a workplace right within the meaning of ch 8, pt 1 of the IR Act.
  1. [119]
    Even assuming, that the 'action' Dr Plumb says was taken by the Council to coerce him to enter into the Deed was unlawful – namely the representation made by the Council to him that he must sign the Deed to receive his lawful termination of employment entitlements – for the reasons given above, Dr Plumb had not alleged the necessary elements to competently claim a contravention of s 287(1) of the IR Act, in respect of the circumstances pointed to by him.

The alleged contravention of s 288 of the IR Act

  1. [120]
    Section 288 of the IR Act provides:

288  Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee–

  1. to make or not make an agreement or arrangement under the Queensland Employment Standards; or
  1. to make or not make an agreement or arrangement under a term of an industrial instrument; or
  1. to agree or not agree to a deduction from amounts payable to the employee in relation to the performance of work.

Note 1–

This section is a civil penalty provision.

Note 2–

This section can apply to decisions whether to agree to performing work on keeping in touch days– see section 80.

  1. [121]
    In his application, Dr Plumb alleged that the same facts by which he alleged the Council contravened s 287 of the IR Act also amounted to a contravention of s 288 of the IR Act.[76]
  1. [122]
    In paragraphs 41 to 52 of his contentions, Dr Plumb particularises his claim that the Council contravened s 288 of the IR Act. Dr Plumb relevantly contends:
  1. At no time did the Respondent indicate to me that the Deed was anything other than an agreement (as stated on page 2) that related to my employment relationship as defined under the Local Government Act 2009 or the Industrial Relations Act 2016, which is the head of power for the Award and Certified Agreement that comprised the industrial instruments under which I was employed.

…

  1. As I have described above in relation to [sic] contravention of s 287 of the IR Act, the Respondent exerted undue influence and pressure on me to sign the Deed, without providing any clear information as to the way in which it might limit my workplace rights provided under the IR Act, a direct contravention of s 288(b).
  1. I make this contention on the basis that at the time of signing I knew nothing about Deeds of Settlement being anything other than an agreement I have described in numbered point 46 above.
  1. I also contend that because the Respondent deliberately withheld information from me about their intention that the Deed would limit my workplace rights under the IR Act, and needed to be signed to enable me to obtain my lawful pay entitlements, that they exerted undue influence and pressure in relation to my decision to sign the Deed, which I reasonably understood at the time to be an agreement consistent with legislation that governed my 'employment relationship'.
  1. The Respondent had a Duty under the RRC Code of Conduct, and relevant legislation, including but not limited to the Local Government Act 2009 and the Public Sector Ethics Act 1994 to act both impartially and to uphold the system of government and the laws of Queensland to make me aware that the Deed was something other than what is described above in numbered point 46 and even worse, had the potential to deny me access to my workplace rights under the IR Act.
  1. The abrogation of this Duty by the Respondent by relying on me to obtain my own legal advice in order to become aware of information they deliberately withheld, especially as it relates to my workplace rights under the IR Act is both unlawful and unacceptable for an employer operating under modern employment standards.
  1. [123]
    I will refer to this as Dr Plumb's s 288 claim.

Is Dr Plumb's s 288 claim one '…relating to dismissal?

  1. [124]
    The Council submits that at paragraph 48 of his contentions, Dr Plumb links the allegation of undue influence or pressure to his allegation of coercion and that is that the Council coerced him into signing the Deed because of the Council's actions in relation to his dismissal, such that: 'All of that is related to his dismissal.'[77]
  1. [125]
    For the same reasons I have given in relation to Dr Plumb's second s 287 claim, to the extent of paragraphs 24-40 of his contentions, Dr Plumb's s 288 claim is not one relating to dismissal.
  1. [126]
    Dr Plumb is not claiming that his dismissal was in contravention of ch 8, pt 1 of the IR Act.  Properly analysed, Dr Plumb is alleging that he was pressured into entering into the Deed so that he would be paid his lawful entitlements upon the termination of his employment.

Is Dr Plumb's s 288 claim misconceived?

  1. [127]
    The Council submits:
  • Dr Plumb alleges that the Deed was a product of undue influence and pressure, which he alleges was a direct contravention of s 288(b) of the IR Act;
  • however, the Deed was not '…an agreement or arrangement made under a term of an industrial instrument', to which section 288(b) of the IR Act relates;
  • the Deed is not an agreement/arrangement under the Queensland Employment Standards, and nor does it pertain to deductions; and
  • Dr Plumb's allegation is about undue influence or pressure in a colloquial sense such that his allegation does not engage with the elements of s 288 of the IR Act, and must be dismissed.[78]
  1. [128]
    I accept the Council's submissions. Self-evidently, the Deed was not an '…agreement or arrangement under the terms of an industrial instrument.'  The Deed was also not '…an agreement or arrangement made under the Queensland Employment Standards.'
  1. [129]
    For these reasons, Dr Plumb's s 288 claim is misconceived.

The alleged contravention of s 289 of the IR Act

  1. [130]
    Section 289 of the IR Act provides:

289  Misrepresentations

  1. A person must not knowingly or recklessly make a false or misleading representation to another person about–
  1. the workplace rights of the other person or a third person; or
  1. the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.

Note—

This subsection is a civil penalty provision.

  1. Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
  1. [131]
    In his application, Dr Plumb alleged:
  1. Upon terminating my employment unlawfully by not complying with the mandatory provision of s 283 of the Local Government Regulation 2012, the Respondent then contravened s 289 of the IR Act by providing misrepresentations twice about my Workplace Rights when they claimed that I was not eligible to apply under provisions of the IR Act relating to Unfair Dismissal, something that significantly influenced my actions prior to signing the Deed. As the misrepresentation was made by the two most senior officers within the Respondent's Workforce and Governance team that handles all industrial relations and workforce matters, I had no reason not to accept that their advice was correct and thefore [sic] relied on it implicitly.
  1. [132]
    Dr Plumb contends:

Contravention of s 289 of the IR Act

  1. On the morning of 5 October 2021, each of Tracy Sweeney and Travis Pegrem in separate one-on-one conversations that took place in Travis Pegrem's then workplace office, provided false or misleading information to me when they each advised me that I was not eligible to initiate a proceeding with the QIRC and apply for unfair dismissal because my salary was too high.
  1. My contention is that this was a contravention of s 289 of the IR Act as it had the effect of informing me that I had no workplace right to start a proceeding in relation to Unfair Dismissal.
  1. At that time and based on a good working relationship I had with each of Tracy Sweeney and Travis Pegrem for almost 13 years and the fact that they were the two most senior officers responsible for industrial relations matter [sic], it was reasonable that I relied on this information.
  1. At that time, I had no knowledge that each of Tracy Sweeney and Travis Pegrem were a party to the investigation and disciplinary process that had been undertaken when I was on two weeks annual leave, in a manner that denied me of the workplace right available to me under Condition 4.3 of the Certified Agreement.
  1. Further, my reliance on the false or misleading information I received from Tracy Sweeney and Travis Pegrem, led me to believe that there was no workplace right available to me at that time in relation to the adverse action taken by the Respondent to dismiss me.
  1. Travis Pegrem subsequently provided the same false and misleading information about my ineligibility to apply for Unfair Dismissal to the QIRC as part of the Respondent's Employer Response to my application in relation to matter TD/2021/97 (see copy already provided to the QIRC Registry), so it is reasonable to believe that he genuinely misunderstood s 315(1)(e) at the time he advised me falsely.
  1. I only became aware of my eligibility to apply for Unfair Dismissal in November when I was advised by an external person that I was eligible, and I subsequently checked the IR Act to confirm that I was indeed eligible to apply for Unfair Dismissal as I was employed under an industrial instrument (pursuant to s 315(1)(e)(i) of the IR Act) and my level of salary was therefore irrelevant.
  1. [133]
    I will refer to this as Dr Plumb's s 289 claim.
  1. [134]
    The Council submits Dr Plumb's '…allegation about misrepresentation pertains to his dismissal and the subsequent Deed. They are 'related to' his dismissal, and subject to the time limitation issues discussed above.'[79]
  1. [135]
    In oral submissions, the Council submitted:
  • the Deed does not relate to matters that may have gone on during the course of Dr Plumb's employment;
  • the Deed deals with and is made in the context of Dr Plumb's employment ending, in that it facilitates his employment ending as well, in a particular way that he had asked;
  • the allegations about misrepresentation in his discussions with Mr Pegrem and Ms Sweeney are inherently tied to his dismissal;
  • any lingering query about whether the misrepresentation allegation pertains to Dr Plumb's dismissal is dispelled by paragraphs 58 and 59 of Dr Plumb’s contentions where he claims Mr Pegrem provided the '…same false and misleading information about my ineligibility to apply for Unfair Dismissal to the QIRC as part of the Respondent’s Employer Response.'[80]
  1. [136]
    While in a very general sense, Dr Plumb's s 289 claim concerns a matter connected with his dismissal, I am unable to form the view that it is one '…relating to dismissal' within the meaning of s 310(1) of the IR Act.
  1. [137]
    Having regard to paragraphs 53 to 59 of his contentions, Dr Plumb is not contending that his dismissal was in contravention of s 289 of the IR Act. What Dr Plumb is alleging is that after his dismissal by the Council, he was informed by two Council officers that, because of his level of salary, he was ineligible to apply to the Commission for reinstatement on the basis that his dismissal was unfair within the meaning of s 316 of the IR Act.
  1. [138]
    For these reasons, I cannot form the view that Dr Plumb's s 289 claim is one relating to dismissal.
  1. [139]
    The Council did not contend that Dr Plumb's s 289 claim was otherwise misconceived.
  1. [140]
    However, as referred to in paragraph [16] of these reasons, Dr Plumb does not now press the discrete claim that the Council contravened s 289 of the IR Act.

The alleged contraventions of s 301 of the IR Act

  1. [141]
    Section 301 of the IR Act provides:

301  Objectionable terms

  1. A term of an industrial instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.
  1. In this section–

objectionable term means a term that permits or has the effect of permitting, or purports to permit or have the effect of permitting, either of the following–

  1. a contravention of this part;
  1. the payment of a bargaining services fee as defined under section 298.

permit includes require.

  1. [142]
    In his application, Dr Plumb alleged:
  1. The undated Deed of Settlement (Deed) was executed between the parties on or about 7 October 2021 when the Applicant was coerced into signing the Deed when the Applicant requested that he be able to resign about being unlawfully dismissed on 5 October 2021.
  1. The Deed contains content including a Recitals section that specifically defines that the Deed is about my employment which is therefore covered by s 301 (1) of the IR Act as it was an agreement or arrangement, written in this instance.

…

  1. As can be seen from the above information, the Deed contains Objectionable Terms as defined in s 301 of the IR Act and a decision should be made by the Commission that the Deed and in particular Clause 9 and other relevant terms, has no effect.
  1. Such a decision by the Commission with be consistent with the IR Act and enable me to pursue my Workplace Rights accordingly, including proceeding with UAC/2024/11 without any further delay due to unlawful action by the Respondent
  1. [143]
    In his contentions, Dr Plumb makes two claims of objectionable terms.
  1. [144]
    The first is that cl 15.2(f) of the contract is an objectionable term contrary to s 301 of the IR Act.[81] That clause provided:
  1. 15.2
    This Contract may be terminated in one or more of the following ways:

…

  1. By the Employer, for any reason other than for the reasons specified in this clause, by giving six months' notice to the Employee or, in the absence of notice, payment in lieu of such notice. In cases where the Contract is due to expire within six months, the notice period shall be reduced to the balance period of the Contract, provided that the notice period given will not be less than the period required for a termination pursuant to clause 15.2(c).[82]
  1. [145]
    The second is that cl 9 of the Deed is an objectionable term contrary to s 301 of the IR Act.[83]
  1. [146]
    Clause 9 of the Deed provides:
  1. 9.
    Release by Employee
  1. 9.1.
    Upon execution of this Deed, subject to clause 10.2, the Employee forever releases, discharges and indemnifies the Employer, its officers, employees and agents from all Claims which the Employee may have against any of them arising from, or in any way connected with, the Employee's employment with the Employer, the termination of that employment or for other Entitlements. However, this does not apply to statutory superannuation claims and/or workers' compensation claims that cannot be released at law.
  1. 9.2.
    The Employee agrees that this release and discharge may be pleaded as a bar to any proceedings commenced by the Employee or on the Employee's behalf against the Employer, its officers, employees or agents.
  1. [147]
    I will refer to these as 'Dr Plumb's s 301 claims.'

Are Dr Plumb's s 301 claims ones '…relating to dismissal?

  1. [148]
    The Council submits:
  • the first alleged contravention of s 301 of the IR Act, that clause 15.2(f) of the contract is an objectionable term, is squarely about his dismissal because that clause relates to nothing but his dismissal;[84] and
  • the second alleged contravention of s 301 of the IR Act concerns the Deed which is squarely about his dismissal in that in paragraph 63 of his contentions, Dr Plumb claims that the Council '…deliberately included and/or is relying on clause 9 of the deed to prevent me from exercising my workplace rights.'[85]
  1. [149]
    I cannot accept these submissions by the Council given the narrow meaning of the phrase '…relating to dismissal' that the context of s 310(1) of the IR Act requires.
  1. [150]
    By the first alleged contravention of s 301 of the IR Act, Dr Plumb, in paragraphs 60 to 62 of his contentions, is not alleging that his dismissal by the Council was in contravention of that provision. On the text used, Dr Plumb is squarely contending that cl 15.2(f) of the contract is an objectionable term in contravention of s 301(1) of the              IR Act.
  1. [151]
    Exactly the same can be said about the second alleged contravention of s 301 of the           IR Act. In paragraphs 63 to 65 of his contentions, Dr Plumb is not alleging that his dismissal by the Council was in contravention of the provision. Dr Plumb alleges that cl 9 of the Deed is an objectionable term contrary to s 301 of the IR Act.
  1. [152]
    Next, the Council further claims both alleged contraventions of s 301 of the IR Act are misconceived.

Is cl 15.2(f) of the contract an objectionable term contrary to s 301 of the IR Act?

  1. [153]
    This is a new allegation in Dr Plumb's contentions that was not contained in his application. Despite this, the Council has joined issue with this new allegation in its submissions. As a consequence, I will determine whether the claim is one competently made. 
  1. [154]
    Dr Plumb relevantly contends:

Contravention of s 301 of the IR Act

  1. In the first contravention, the Respondent deliberately included Clause 15.2(f) in my employment contract with the intention that (in their view) it denied me the benefit of exercising my workplace right as described in condition 4.3 of the Certified Agreement.
  1. My employment contract (see copy already provided to QIRC Registry) was a written agreement and Clause 15.2(f) was included and was being relied upon by the Respondent to enable them to dismiss me and require me to forego my workplace right, otherwise they presumably would have permitted me to access this important workplace right that I was entitled to under condition 4.3 of the Certified Agreement.
  1. Pursuant to s 301 of the IR Act, Clause 15.2(f) is an objectionable term and is being relied on by the Respondent as such and therefore should be considered under s 301 (l) to have no effect to the extent that it is an objectionable term as it permits or requires a contravention of s 285 of the IR Act.
  1. [155]
    The Council submits that, in respect of these particular contentions:
  • s 301 of the IR Act prohibits terms which permit a contravention of the general protections provisions in the IR Act;
  • its contractual right to dismiss Dr Plumb by payment of six months' notice could not permit the Council to contravene those general protections provisions, nor does that contract clause purport to allow the Council to do so; and
  • cl 15.2(f) protected the Council from contractual claims and did not permit, purport to permit, or have the effect of permitting, a breach of the general protections with the consequence that Dr Plumb's allegation must be dismissed.[86]
  1. [156]
    Dr Plumb did not make any submissions directly addressing this contention by the Council.
  1. [157]
    Dr Plumb makes two claims that cl 15.2(f) of the contract is an objectionable term, both of which are misconceived.

Dr Plumb's first claim about cl 15.2(f) of the contract

  1. [158]
    By paragraph 60 of his contentions, Dr Plumb's first claim is that cl 15.2(f) of the contract, by the force of its own terms, permits, or has the effect of permitting, the denial to him of the benefit of exercising his workplace right as described in cl 4.3 of the certified agreement. There are two obstacles to this being a competent claim of a contravention of s 301(1) of the IR Act.
  1. [159]
    One, by its terms, cl 15.2(f) of the contract confers, on the Council, the right to terminate its contract of employment with Dr Plumb by giving him six months' notice, or a relevant lesser period (not less than one month), or by the payment to him of the relevant sum in lieu of such notice. Clause 15.2(f) of the contract does not permit, or have the effect of permitting, the denial to Dr Plumb of the benefit of exercising any workplace right let alone the benefit of exercising any such workplace right allegedly contained in cl 4.3 of the certified agreement. For the same reasons given by the Full Court of the Federal Court in paragraph [128] in Toyota,[87] (referred to in paragraph [79] of these reasons) the connection between the operation of cl 15.2(f) of the contract and the proscription in ch 8, pt 1 of the IR Act, relied on by Dr Plumb, is just too tenuous for cl 15.2(f) of the contract to fall within the definition of an objectionable term. To adapt the words of the Full Court to the present case, it is not sufficient, if a term of the contract which has an omnibus operation which, while being silent with respect to acts which would constitute adverse action, could theoretically comprehend conduct which, in particular circumstances, might be so characterised.
  1. [160]
    Two, the purpose of s 301(1) of the IR Act is, relevantly, to deem a term of an agreement to be of no effect if the term permits, or has the effect of permitting, or purports to permit or have the effect of permitting, a contravention of ch 8, pt 1 of the IR Act. If, as seems to be the case, Dr Plumb is alleging that cl 15.2(f) of the contract had the effect of preventing him from exercising a workplace right contained in cl 4.3 of the certified agreement then, for the reasons given earlier in paragraphs [78] to [83], cl 4.3 of the certified agreement does not contain any workplace right that Dr Plumb could exercise.

Dr Plumb's second claim about cl 15.2(f) of the contract

  1. [161]
    By paragraph 61 of his contentions, Dr Plumb's second claim is that cl 15.2(f) of the contract was being relied upon by the Council to enable it to dismiss him and require him to forego '…my workplace right, otherwise they presumably would have permitted me to access this important workplace right that I was entitled to under condition 4.3 of the Certified Agreement.'
  1. [162]
    This claim does not competently allege a contravention of s 301(1) of the IR Act. As referred to earlier, the purpose of s 301(1) of the IR Act is, relevantly, to deem a term of an agreement to be of no effect if the term permits or has the effect of permitting, or purports to permit or to have the effect of permitting, a contravention of ch 8, pt 1 of the IR Act. Section 301(1) of the IR Act does not contemplate any action being taken by any person in observance of an alleged objectionable term. To the extent Dr Plumb contends there was a contravention of s 301(1) of the IR Act, because cl 15.2(f) of the contract was enlivened by the Council to dismiss him which, in turn, required him to forego the benefit of allegedly exercising his workplace right in cl 4.3 of the certified agreement, the alleged contravention of s 301(1) of the IR Act is misconceived.
  1. [163]
    For all these reasons, Dr Plumb's contention that cl 15.2(f) of the contract is an objectionable term within the meaning of s 301(1) of the IR Act is misconceived.

Is cl 9 of the Deed an objectionable term contrary to s 301 of the IR Act?

  1. [164]
    As referred to earlier, one of the orders Dr Plumb seeks is that '…Clause 9 and related content of the Deed should be set aside and a decision made that the Respondent cannot rely on the Deed to prevent me from exercising my workplace rights under the IR Act, including but not limited to the current Unpaid Amount Claim (UAC/2024/11) with the QIRC.'[88]
  1. [165]
    Although not referred to in his submissions, in his application, Dr Plumb states that the relief he seeks is a decision that the Deed '…has no effect.'[89]
  1. [166]
    As confirmed during the hearing,[90] Matter No. UAC/2024/11 is a proceeding Dr Plumb commenced in the Industrial Magistrates Court pursuant to s 379 of the IR Act alleging unpaid on call allowance by the Council (the 'Industrial Magistrates Court claim'). It is obviously the case that the Registrar of the Industrial Magistrates Court, pursuant to s 547C of the IR Act, referred Dr Plumb's Industrial Magistrates Court claim to the Commission for conciliation. Pursuant to s 547D of the IR Act, each Industrial Commissioner is a conciliator for that purpose. Dr Plumb's Industrial Magistrates Court claim is presently before Industrial Commissioner O'Neill for conciliation.[91] 
  1. [167]
    The matter number 'UAC/2024/11' is one given to Dr Plumb's Industrial Magistrates Court claim by the Registry of the Commission upon its referral to the Commission, for conciliation, from the Industrial Magistrates Court.
  1. [168]
    In the course of oral argument, Dr Plumb confirmed that if the conciliation of his Industrial Magistrates Court claim cannot be resolved by the assistance provided by an Industrial Commissioner in conciliation, then he intends to pursue that claim by way of a final hearing before the Industrial Magistrates Court.[92]
  1. [169]
    In his written submissions, Dr Plumb submitted that his present application under consideration by me, namely Matter No. GP/2024/38, '…exists because the Respondent is attempting to rely on the execution of a Deed of Settlement to prevent me from being able to proceed successfully with matter number UAC/2024/11.'[93]
  1. [170]
    In terms of his claim that cl 9 of the Deed is an objectionable term, Dr Plumb relevantly contends:
  1. In the second contravention, the Respondent deliberately included and/or is relying on Clause 9 of the Deed to prevent me from exercising my workplace rights pursuant to s 284 of the IR Act. This is despite there being no specific reference in the Deed to the effect of this clause limiting any of my workplace rights under the IR Act.
  1. The Deed is a written agreement that relates to my employment relationship with the Respondent as defined on page 2 of the Deed and as such an objectionable term in this Deed as described in numbered point 63 should have no effect as it contravenes s 285 of the IR Act by preventing me from exercising my workplace rights pursuant to s 284 of the IR Act.
  1. [171]
    The Council submits that:
  • nothing about the Deed permitted, purported to permit, or had the effect of permitting, a contravention of the general protections provisions in the IR Act;
  • Dr Plumb never even alleged a breach of the general protections provisions by the Council prior to him filing his present application; and
  • Dr Plumb agreeing to release the Council from claims related to his employment and dismissal is not 'permitting' a contravention of the general protections provisions in the IR Act.[94]
  1. [172]
    Dr Plumb relevantly submits:
  1. I have made the application for UAC/2024/11 and the application for GP/2024/38 within the 6 year timeframe required in the IR Act and am entitled to do so pursuant to s 8(2)(d) and s 278(2) of the IR Act.
  1. Any term in the Deed of Settlement (clearly an agreement or arrangement) that the Respondent thinks that permits a contravention of the relevant Part of the IR Act that would have the effect of preventing me from exercising my statutory Workplace Rights would, pursuant to s 301 of the IR Act be an objectionable term and therefore have no such effect.
  1. In addition, it is not at all clear what the lawful point or purpose of the Deed of Settlement actually is as follows:
  1. a.
    It contains no description of any dispute
  1. b.
    It doesn't mention anything to do with a 'dismissal'
  1. c.
    Yet it promises to pay me all my lawful entitlements
  1. d.
    Yet it claims to be governed by Queensland law, that doesn't appear to exist, let alone provide any evidence that such a mechanism can be used by a local government for employment matters.
  1. The recent High Court decision of Elisha v Vision Australia Limited [2024] HCA 50 raises further questions about the validity and lawfulness of a Deed of Settlement especially where it relates to Workplace Rights.
  1. As the Respondent quite correctly states in their numbered point 9, the Queensland Industrial Relations Commission (Commission) has 'the power to do all things necessary or convenient to be done for the performance of its functions ', including making a decision or order 'it considers appropriate' and I trust that this will be done in a manner that meets the objectives of the Industrial Relations Act 2016 and other relevant Queensland legislation to reach just decisions on my proceedings.
  1. [173]
    In oral submissions, Dr Plumb submitted:
  • s 301 of the IR Act applies to both of the parties to an industrial instrument or a term of an industrial instrument or a term of an agreement or an arrangement;[95]
  • irrespective of what he or the Chief Executive Officer of the Council may have wanted to or not wanted to agree to in the Deed, s 301 of the IR Act provides that:

[W]e can’t agree to put something in and rely on it having an effect if it serves to require the contravention of this part and, obviously, that contravention relates to preventing the exercising of a workplace right that might enable one of or both of the parties to derive benefit from the exercising of that workplace right;[96]

  • cl 9.1 of the Deed is an objectionable term,[97] within the meaning of s 301 of the IR Act because it is preventing him '…from benefiting from the relief I am seeking through the exercising of my workplace right'[98], namely his claim for unpaid on-call allowance commenced in the Industrial Magistrates Court; and
  • s 301 of the IR Act meant that: 'We just simply weren’t lawfully able to include and agree to objectionable terms.'[99]  
  1. [174]
    Dr Plumb also submitted, in support of his contention that cl 9.1 of the Deed was an objectionable term and a contravention of s 301(1) of the IR Act:
  • that s 284(1)(a) of the IR Act provides that he has the benefit of seeking relief through exercising workplace rights;[100] and
  • the Council's actions, in denying liability in respect of his claim for unpaid on-call allowance commenced in the Industrial Magistrates Court has prevented that matter continuing '…and I have no doubt that they’ll continue to rely on that in future to prevent me from benefiting from that proceeding which is unpaid amount claim 2024/11.'[101]
  1. [175]
    Dr Plumb's claim about cl 9.1 of the Deed being an objectionable term within the meaning of s 301(1) of the IR Act is misconceived.
  1. [176]
    Clause 9.1 of the Deed is a release given by Dr Plumb. The clause provides that Dr Plumb forever releases, discharges and indemnifies the Council, its officers, employees and agents from all 'Claims' (as defined in the Deed) which Dr Plumb may have against any of them arising from, or in any way connected with his employment, the termination of his employment or for other 'Entitlements' (as defined in the Deed).
  1. [177]
    By its terms, cl 9.1 of the Deed does not permit, and does not have the effect of permitting, a contravention of ch 8, pt 1 of the IR Act. Similarly, by its terms, cl 9.1 of the Deed does not purport to permit, or to have the effect of permitting, a contravention of ch 8, pt 1 of the IR Act.
  1. [178]
    Properly analysed, this claim Dr Plumb is making is similar to the claim he made in respect of cl 15.2(f) of the contract being an objectionable term. Dr Plumb claims that cl 9.1 of the Deed permits the Council, contrary to s 285(1)(b) of the IR Act, to prevent him from exercising a workplace right.  However, the workplace right which Dr Plumb contends cl 9.1 of the Deed prevents him from exercising is his right to start proceedings under an industrial law within the meaning of s 284(1)(b) of the IR Act. Clause 9.1 of the Deed, by its terms, does not operate in this way as contended by Dr Plumb. Further,  for the reasons given in Toyota,[102] the connection between the operation of cl 9.1 of the Deed and the proscription in ch 8, pt 1 of the IR Act, relied on by Dr Plumb, is just too tenuous for cl 9.1 of the Deed to be an objectionable term.
  1. [179]
    For these reasons, Dr Plumb's contention, that cl 9.1 of the Deed is an objectionable term within the meaning of s 301(2) of the IR Act, is misconceived.
  1. [180]
    In any event, cl 9.1 of the Deed has not operated in the way contended by Dr Plumb. Despite cl 9.1 of the Deed, Dr Plumb has in fact commenced proceedings against the Council, pursuant to s 379 of the IR Act, being his Industrial Magistrates Court claim. By that claim, Dr Plumb alleges that he was entitled to on-call allowance which is payable and unpaid by the Council. 
  1. [181]
    In my view, Dr Plumb's real complaint about cl 9.1 of the Deed is that it is being relied upon by the Council in its denial of liability in respect of Dr Plumb's Industrial Magistrates Court claim. As I understand Dr Plumb's submissions,[103] the Council, in response to Dr Plumb's Industrial Magistrates Court claim, is invoking cl 9.2 of the Deed namely, the agreement by Dr Plumb that the release and discharge he gave to the Council, its officers, employees and agents, may be pleaded as a bar to relevant proceedings commenced by Dr Plumb against the Council. This is the reason he seeks an order from this Commission that the Deed be set aside.
  1. [182]
    In his written and oral submissions, Dr Plumb, at a high level of generality, referred to the decision of the Supreme Court of Victoria in Elisha v Vision Australia Limited[104]and to the ultimate High Court appeal of that decision in Elisha v Vision Australia Limited.[105] Dr Plumb's contention, as I understood it, was that these decisions are authority for the proposition that deeds that contain releases expressed in general terms are of no effect when pleaded as bars in claims in proceedings later instituted by the releasor.[106] Irrespective of whether those cases are authority for the proposition as contended by Dr Plumb, I raised with Dr Plumb the issue about the power of the Commission to decide that the Deed was of no effect on such a basis and that the Deed should be set aside as he seeks.[107] Dr Plumb's response was to contend that the Commission had '…power and the authority to make decisions on…all matters arising out of industrial relations matters.'[108] Although Dr Plumb did not particularise the source of power to which he referred, this seems to be a reference to s 448(1)(b) of the IR Act.[109]
  1. [183]
    I cannot accept Dr Plumb's submission.
  1. [184]
    The Commission is a statutory court established by s 429 of the IR Act as a court of record in Queensland. The Commission's jurisdiction is the authority it has to determine the range of matters that can be litigated before it.  In the exercise of that jurisdiction, the Commission has the powers, expressly or impliedly conferred on it, by the legislation that governs it, which is a matter of statutory construction.[110]
  1. [185]
    The Commission, pursuant to s 448 of the IR Act, has certain jurisdiction conferred on it. However, s 448 of the IR Act must be read in context and as part of the IR Act as a whole.  In particular, s 448 of the IR Act must be read with s 447 of the IR Act which sets out, in a non-exhaustive manner, the Commission's functions. Section 448 must also be read with ch 11, pt 2, div 3, sub-div 3 which sets out the Commission's general powers. It must also be read with ch 11, pt 2, div 4 which sets out the Commission's particular powers. In my view, the Commission has no function or jurisdiction, and has no specific power, under the IR Act to determine, as a stand-alone claim, if a deed entered into between a former employer and a former employee is, at general law, void or voidable or whether a releasor should be relieved of a releasee's reliance on a release contained in a deed. 

Dr Plumb's claim for unpaid wages

  1. [186]
    The other issue for my determination is whether the relief claimed by Dr Plumb in paragraph 68 of his contentions, namely, an order that the Council pay him the amount of $117,000 for unpaid on-call allowance, is competent.
  1. [187]
    Dr Plumb's position in relation to this relief, as sought, is confused.
  1. [188]
    Dr Plumb does not particularise any provision of the IR Act that is alleged to have any relevance to the particular relief he seeks. By paragraph 68 of his contentions, Dr Plumb seeks an order pursuant to s 314(1)(c) of the IR Act that the Council pays him the amount of $117,000 for unpaid on-call allowance. Section 314(1)(c) of the IR Act provides:

314  Orders on deciding application

  1. Without limiting the commission’s jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313–

…

  1. an order for payment of an amount to the person for remuneration lost;
  1. [189]
    The reference to '…an application mentioned in section 313' is a reference to an application made under ch 8, pt 1, div 8, namely, an application to deal with a dispute alleging a contravention of ch 8, pt 1 of the IR Act, where conciliation has been unsuccessful and where the Commission hears and decides the application by making an order under s 314 of the IR Act.
  1. [190]
    Further, Dr Plumb's written submissions suggest that the underpayment of on-call allowance arose because the Council classified him as a Senior Officer within the meaning of the applicable award.[111] Yet, no such allegation is particularised in his contentions.
  1. [191]
    Further still, in the course of argument Dr Plumb:
  • confirmed that the relief he seeks in paragraph 68 of his contentions, namely, an order that the Council pays him the amount of $117,000 for unpaid on-call allowance, is the same claim as his Industrial Magistrates Court claim;[112] and
  • submitted that the source of his entitlement, to the claimed payable but unpaid on-call allowance, was contractual.[113]
  1. [192]
    There are four reasons why Dr Plumb's claim, to the extent he seeks the relief claimed in paragraph 68 of his contentions, is incompetent.
  1. [193]
    First, Dr Plumb made no such claim in his application.
  1. [194]
    Secondly, despite the fact that Dr Plumb claimed that s 314(1)(c) of the IR Act conferred power on the Commission to grant the relief sought in paragraph 68 of his contentions,  Dr Plumb did not particularise, in his contentions, any alleged contravention of                            ch 8, pt 1 of the IR Act said to have a causal connection with the claimed loss of remuneration, in the amount of $117,000, as unpaid on-call allowance. The claim for relief is simply made at large.
  1. [195]
    Thirdly, Dr Plumb did not, in his contentions, make any allegations in respect of which he claimed the Council breached any contractual entitlement he had to on-call allowance.
  1. [196]
    Fourthly, in the absence of Dr Plumb competently claiming an alleged contravention of ch 8, pt 1 of the IR Act as the basis for the relief he seeks in paragraph 68 of his contentions, the only provision of the IR Act, in respect of which Dr Plumb could have sought an order for unpaid wages from this Commission, is s 475(1)(a) of the IR Act. Even if Dr Plumb made such a claim for unpaid wages pursuant to that provision, the claim would be incompetent. This is because pursuant to s 476(1)(a) of the IR Act, an application for an order mentioned in s 475(1)(a) of the IR Act may only be made if the total amount claimed is $100,000 or less. Dr Plumb's claim for unpaid wages is $117,000.
  1. [197]
    For these reasons, Dr Plumb's claim for the relief contained in paragraph 68 of his contentions is incompetent.
  1. [198]
    There is one other matter.  As confirmed by Dr Plumb in his oral submissions, his claim that the Council pay him the amount of $117,000 in respect of his alleged contractual entitlement to on-call allowance, is the same as his Industrial Magistrates Court claim that is on foot. As stated earlier, Dr Plumb's Industrial Magistrates Court claim for unpaid wages is presently with the Commission for conciliation and, as confirmed by Dr Plumb in his submissions, if conciliation by the Commission for his Industrial Magistrates Court claim fails, then his intention is to proceed for the hearing and determination of that claim before the Industrial Magistrates Court.
  1. [199]
    Even if the claim for relief made by Dr Plumb in paragraph 68 of his contentions was validly made which, for the reasons I have given above, it is not, I would have accepted the submission made by the Council that, as a matter of discretion, the Commission not proceed to finally determine that claim because the same claim is presently before another court.[114] In those circumstances, it would be open to conclude that as the relief Dr Plumb seeks by paragraph 68 of his contentions is the same as that claimed in his Industrial Magistrates Court claim, and where his Industrial Magistrates Court claim remains on foot, then the final relief he seeks in this Commission, by his present application, would amount to an abuse of process.[115]

Should Dr Plumb's application be dismissed?

Dr Plumb's s 285 claim

  1. [200]
    Dr Plumb did not press this claim. For this reason, pursuant to s 451(1) of the IR Act, Dr Plumb's application, to the extent he makes his s 285 claim, namely, in                         section 5, paragraphs 4 and 5 of his application, is dismissed.
  1. [201]
    In any event, Dr Plumb's s 285 claim was one '…relating to dismissal' within the meaning of s 310(1) of the IR Act. The application for such a claim had to be made within 21 days after his dismissal took effect, namely, within 21 days after 5 October 2021. Dr Plumb's application was not made until 28 October 2024. The Commission had not allowed Dr  Plumb a further period to make his claim that his dismissal was in contravention ch 8, pt 1 of the IR Act. Indeed, no such application for a further period of time, in which to make such an application, was made by Dr Plumb at any point. For that reason, the Commission would not have had jurisdiction to hear and determine Dr Plumb's s 285 claim if he did press that claim. Dr Plumb's s 285 claim was also, for the reasons I have given, misconceived.

Dr Plumb's first s 287 claim

  1. [202]
    Dr Plumb did not press this claim. For this reason, pursuant to s 451(1) of the IR Act, Dr Plumb's application, to the extent he makes his first s 287 claim, namely, in section  5, paragraph 6 of his application, is dismissed.
  1. [203]
    Further, Dr Plumb's first s 287 claim was one relating to dismissal. For the same reasons I have given in respect of Dr Plumb's s 285 claim, the Commission would not have had jurisdiction to hear and determine Dr Plumb's first s 287 claim if it had been pressed. Dr Plumb's first s 287 claim was also, for the reasons I have given, misconceived.

Dr Plumb's second s 287 claim

  1. [204]
    Dr Plumb did not press this claim. For this reason, pursuant to s 451(1) of the IR Act, Dr Plumb's application, to the extent he makes his second s 287 claim, namely, in section 5, paragraph 6 of his application, is dismissed.
  1. [205]
    While Dr Plumb's second s 287 claim was not one relating to dismissal, if it had been pressed, it was, for the reasons I have given, misconceived.

Dr Plumb's s 288 claim

  1. [206]
    Dr Plumb did not press this claim. For this reason, pursuant to s 451(1) of the IR Act, Dr Plumb's application, to the extent he makes his s 288 claim, namely, in section 5, paragraph 6 of his application, is dismissed.
  1. [207]
    While Dr Plumb's s 288 claim was not one relating to dismissal, if it had been pressed, it was, for the reasons I have given, misconceived.

Dr Plumb's s 289 claim

  1. [208]
    Dr Plumb did not press this claim. For this reason, pursuant to s 451(1) of the IR Act, Dr Plumb's application, to the extent he makes his s 289 claim, namely, in section 5, paragraphs 7 and 8 of his application, is dismissed.
  1. [209]
    For the reasons I have given, Dr Plumb's s 289 claim was not one relating to dismissal.

Dr Plumb's first and second s 301 claims

  1. [210]
    Dr Plumb did press these claims.
  1. [211]
    Dr Plumb's first and second s 301 claims are not ones relating to dismissal. However, for the reasons I have given, Dr Plumb's first and second s 301 claims are misconceived. Dr Plumb's first and second s 301 claims are so obviously untenable, they cannot possibly succeed.
  1. [212]
    As a consequence, pursuant to s 451(1) of the IR Act, Dr Plumb's application, to the extent he makes his second s 301 claim, namely, in section 5, paragraphs 2, 9 and 10 of his application, is dismissed.
  1. [213]
    Also, pursuant to s 451(1) of the IR Act, Dr Plumb's first s 301 claim, namely, the claim that cl 15.2(f) of the contract was an objectionable term within the meaning of s 301(1) of the IR Act, which was only contained in his contentions, is likewise dismissed.

Dr Plumb's claim for unpaid wages

  1. [214]
    Dr Plumb did press this claim.
  1. [215]
    For the reasons I have given, Dr Plumb's unpaid wages claim is, to the extent it is particularised in his contentions by the relief sought in paragraph 68 of his contentions, incompetent and is so obviously untenable it cannot possibly succeed.
  1. [216]
    For this reason, Dr Plumb's claim for unpaid wages is, pursuant to s 451(1) of the IR Act, dismissed.
  1. [217]
    As a consequence of my conclusions above, the proper course is to dismiss Dr Plumb's application in its entirety.

Conclusion

  1. [218]
    For the reasons I have given, Dr Plumb's application will be dismissed.

Order

  1. [219]
    I make the following order:

Pursuant to s 451(1) of the Industrial Relations Act 2016, the Applicant's General Application in Matter No. GP/2024/38, filed on 28 October 2024, is dismissed.

Footnotes

[1] Exhibit 1, attachment A2.

[2] Dr Plumb's General Application filed on 28 October 2024 ('Dr Plumb's application'), section 5, para. 1.

[3] Dr Plumb's application, section 5, para. 1.

[4] Exhibit 1, attachment A4.

[5] Dr Plumb's application, section 5, para. 3.

[6] Dr Plumb's application, section 5, paras. 4 and 5.

[7] Dr Plumb's application, section 5, para. 6.

[8] Dr Plumb's application, section 5, para, 7.

[9] The Application in existing proceedings filed on 28 February 2025 by the Rockhampton Regional Council ('the Council's application'), paras. 1-6.

[10] The Council's application, para. 7.

[11] The written submissions of the Rockhampton Regional Council filed on 28 March 2025 ('the Council's submissions'), paras. 1-6.

[12] The Council's submissions, para. 7. The Council, in its application and also in its written submissions, did not contend that Dr Plumb's claim – that the Council contravened s 289 of the Industrial Relations Act 2016 – was incompetent because it did not allege the relevant elements of the cause of action. The Council's contention in respect of that claim by Dr Plumb was that it was one '… relating to dismissal' within the meaning of s 310(1) of the Industrial Relations Act 2016. For the reasons I give, while that claim was not one relating to dismissal, Dr Plumb, in any event, abandoned his claim alleging a contravention of s 289 of the                                                    Industrial Relations Act 2016.

[13] T 1-24, ll 35-42.

[14] T 1-11, l 43 to T 1-12, l 40 and T 1-32, ll 26-36.

[15] The written submissions of Dr Jason Plumb filed on 2 May 2025, ('Dr Plumb's submissions'), para. 4.

[16] Dr Plumb's submissions, para. 6.

[17] Dr Plumb's submissions, para. 37

[18] T 1-4, ll 7-19. In paragraph 67 of his contentions, Dr Plumb sought the following relief:

  1. Based on the facts and contentions above, including but not limited to the extent which the Respondent has contravened s 285, s 287, s 288, s 289 and s 301, I request that an order be made pursuant to s 314(1)(b) that the Respondent pay the Applicant an amount of $100,000 for compensation for what can reasonably be considered to have been an Unfair Dismissal when the Respondent terminated the Applicant's employment on 5 October 2021.

[19] T 1-38, ll 29-41.

[20] T 1-23, ll 24-25.

[21] T 1-17, ll 30-43.

[22] As also discussed later, Dr Plumb, in his contentions additionally alleges that his contract of employment with the Council, dated 30 April 2021, contains an objectionable term contrary to s 301 of the Industrial Relations Act 2016.

[23] T 1-23, ll 5-29.

[24] [2024] QIRC 064 (Deputy President Merrell).

[25] Citations omitted.

[26] [2022] ICQ 22; (2022) 317 IR 410.

[27] Ibid [18] (Davies J, President).

[28] T 1-11, l 45 to T 1-12, l 40.

[29] [2003] ICQ 47; (2003) 174 QGIG 643, 644 (President Hall).

[30] The Council's submissions, para. 12.

[31] The Council's submissions, para. 13.

[32] The Council's submissions, para. 15.

[33] The Council's submissions, para. 16.

[34] The Council's submissions, para. 15.

[35] The Council's submissions, para. 17.

[36] T 1-19, l 42 to 1-24, l 18.

[37] [2017] HCA 34; (2017) 262 CLR 362.

[38] Citations omitted.

[39] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[40] Ibid [70].

[41] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[42] [1961] HCA 35; (1961) 105 CLR 602 ('Tooheys').

[43] Ibid, 620.

[44] Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2010] FCA 551; (2010) 269 ALR 98, [115] (Jacobson J).

 

[45] J. Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd [1998] QIRC 316; (1998) 158 QGIG 469 at 470 (Commissioner Fisher). 

[46] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618 (Mason J with Barwick CJ at 616 and Jacobs J at 621 agreeing) and Fair Work Ombudsman v Blue Sky Kids Lt (in liq) (No 3) [2024] FCA 785, [654] (Katzmann J).

[47] Emphasis added.

[48] Emphasis added.

[49] Yousif v Workers’ Compensation Regulator [2017] ICQ 004, [5] (Martin J, President).

[50] The statement of facts and contentions of Dr Jason Joel Plumb filed on 7 February 2025 ('Dr Plumb's contentions'), para. 8.

[51] Dr Plumb's contentions, para. 10.

[52] Dr Plumb's contentions, para. 11.

[53] Dr Plumb's contentions, para. 12.

[54] The statement of facts and contentions of the Rockhampton Regional Council following 28 February 2025 ('the Council's contentions'), para. 19(b).

[55] The Council's contentions, para. 19(c).

[56] I assume this is a typographical error and that Dr Plumb is referring to s 285(1)(a) of the Industrial Relations Act 2016.

[57] [2014] FCAFC 84; (2014) 222 FCR 152 ('Toyota').

[58] Section 341(1)(b) of the Fair Work Act 2009 is the equivalent provision to s 285(1)(b) of the Industrial Relations Act 2016.

[59] Emphasis added.

[60] Dr Plumb's contentions, para. 11.

[61] See e.g Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 47, [111] (Jessup J).

[62] Toyota (n 57), [126].

[63] Dr Plumb's contentions, para. 19.

[64] Dr Plumb's contentions, para. 20. Section 283 of the Local Government Regulation 2012 provides:

  1. 283
    Employee to be given notice of grounds for disciplinary action
  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee–
  1. (a)
    notice of the following–
  1. (i)
    the disciplinary action to be taken;
  1. (ii)
    the grounds on which the disciplinary action is taken;
  1. (iii)
    the particulars of conduct claimed to support the grounds; and
  1. (b)
    a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.

[65] Dr Plumb's contentions, para. 21.

[66] Dr Plumb's contentions, para. 23.

[67] T 1-20, l 38 to T 1-21, l 4.

[68] The Council's submissions para. 25.

[69] [2024] FCA 510 ('UFU').

[70] Ibid [125].

[71] AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 278 CLR 300, [25] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).  

[72] T 1-21, ll 6-10.

[73] The Council's submissions, para. 27.

[74] UFU (n 69).

[75] Ibid, [126].

[76] Dr Plumb's application, section 5, para. 6.

[77] T 1-22, ll 10-15.

[78] The Council's submissions, paras. 40-41.

[79] The Council's submissions, para. 42.

[80] T 1-22, l 32 to 1-23, l 4.

[81] Dr Plumb's contentions, paras. 60-62.

[82] Exhibit 1, Attachment A1.

[83] Dr Plumb's contentions, paras. 63-65. In paragraph 65 of his contentions, Dr Plumb alleges that cl 9 of the Deed '…and other relevant content should be considered under s 301(1) to have no effect as to the extent that it is an objectionable term as it is being relied on by the Respondent to permits [sic] or require a contravention of s 285 of the IR Act.' Dr Plumb does not particularise the '…other relevant content'.

[84] T 1-23, ll 8-12.

[85] T 1-23, ll 12-18.

[86] The Council's submissions, para. 33.

[87] Toyota (n 57).

[88] Dr Plumb's contentions, para. 66.

[89] Dr Plumb's application, section 4.

[90] T 1-4, ll 21-38.

[91] T 1-35, ll 9-10.

[92] T 1-5, ll 33-38.

[93] Dr Plumb's submissions, para. 5.

[94] The Council's submissions, para. 32.

[95] T 1-52, ll 14-16.

[96] T 1-52, ll 16-22.

[97] T 1-54, ll 4-7.

[98] T 1-53, ll 27-28.

[99] T 1-54, ll 21-22.

[100] T 1-54, ll 43-44.

[101] T 1-56, ll 38-40.

[102] Toyota (n 57) [128].

[103] T 1-54, ll 4-44.

[104] [2022] VSC 754.

[105] [2024] HCA 50; (2024) 99 ALJR 171.

[106] T 1-46, ll 9-36 and T 1-49, ll 16-37.

[107] T 1-49, ll 39-45.

[108] T 1-50, ll 1-3.

[109] Section 448 of the Industrial Relations Act 2016 relevantly provides:

  1. 448
    Commission’s jurisdiction
  1. (1)
    The commission may hear and decide the following matters–
  1. (a)
    a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;
  1. (b)
    all questions–
  1. (i)
    arising out of an industrial matter; or
  1. (ii)
    involving deciding the rights and duties of a person in relation to an industrial matter; or
  1. (iii)
    it considers expedient to hear and decide about an industrial matter;

[110] Harris v Caladine [1991] HCA  9; (1991) 172 CLR 84, 136 (Toohey J) and DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226,  [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[111] Dr Plumb's submissions, paras. 26 to 34.

[112] T 1-4, ll 21-38.

[113] T 1-48, ll 18-28.

[114] T 1-37, ll 30-44.

[115] See generally, Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75,  [28] (French CJ, Gummow, Hayne and Crennan JJ).

Close

Editorial Notes

  • Published Case Name:

    Plumb v Rockhampton Regional Council

  • Shortened Case Name:

    Plumb v Rockhampton Regional Council

  • MNC:

    [2025] QIRC 176

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    10 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

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AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300
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Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd (2010) 269 ALR 98
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Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
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Cite 1 - [2017] ICQ 4
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Burton v Shire of Bairnsdale (1908) 7 CLR 76
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Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
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Cite 1 - [2012] HCA 56
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Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
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Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
DJL v The Central Authority (2000) 201 CLR 226
2 citations
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Cite 1 - (2000) 201 CLR 226
Cite 2 - (2000) 201 CLR 226
DJL v The Central Authority [2000] HCA 17
2 citations
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Cite 2 - [2000] HCA 17
Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551
1 citation
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Cite 1 - (2017) 263 CLR 551
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
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Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Harris v Caladine (1991) 172 C.L.R 84
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Harris v Caladine [1991] HCA 9
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Cite 1 - [1991] HCA 9
Cite 2 - [1991] HCA 9
J. Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd (1998) 158 QGIG 469
2 citations
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Cite 2 - (1998) 158 QGIG 469
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75
2 citations
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Cite 1 - (2009) 239 CLR 75
Cite 2 - (2009) 239 CLR 75
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43
2 citations
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Cite 1 - [2009] HCA 43
Cite 2 - [2009] HCA 43
Nugent v Aromas Pty Ltd (1996) 153 QGIG 630
1 citation
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Cite 1 - (1996) 153 QGIG 630
Orchid Avenue Realty Pty Ltd t/a Ray White Surfers Paradise v Percival (2003) 174 QGIG 643
2 citations
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Cite 2 - (2003) 174 QGIG 643
Orchid Avenue Realty Pty Ltd t/as Ray White Surfers Paradise v Percival [2003] ICQ 47
2 citations
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Cite 2 - [2003] ICQ 47
Pennington v Jamieson [2022] ICQ 22
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Cite 2 - [2022] ICQ 22
Pennington v Jamieson (2022) 317 IR 410
2 citations
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Cite 2 - (2022) 317 IR 410
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
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Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
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Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (In Liq)[2003] 1 Qd R 259; [2002] QCA 224
1 citation
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Cite 1 - [2003] 1 Qd R 259
Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 64
2 citations
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Cite 1 - [2024] QIRC 64
Cite 2 - [2024] QIRC 64
Registrar of Titles (W.A.) v Franzon (1975) 132 CLR 611
2 citations
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Cite 1 - (1975) 132 CLR 611
Cite 2 - (1975) 132 CLR 611
Registrar of Titles (WA) v Franzon [1975] HCA 41
2 citations
Jump To
Cite 1 - [1975] HCA 41
Cite 2 - [1975] HCA 41
Stevenson v Barham (1977) 136 CLR 190
1 citation
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Cite 1 - (1977) 136 CLR 190
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
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Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
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Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Tattsbet Limited v Morrow [2015] FCAFC 62
2 citations
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Cite 1 - [2015] FCAFC 62
Cite 2 - [2015] FCAFC 62
Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35
2 citations
Jump To
Cite 1 - [1961] HCA 35
Cite 2 - [1961] HCA 35
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
2 citations
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Cite 1 - (1961) 105 CLR 602
Cite 2 - (1961) 105 CLR 602
Toyota Motor Corp Australia Limited v Marmara [2014] FCAFC 84
2 citations
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Cite 1 - [2014] FCAFC 84
Cite 2 - [2014] FCAFC 84
Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152
2 citations
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Cite 1 - (2014) 222 FCR 152
Cite 2 - (2014) 222 FCR 152
United Firefighters' Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510
2 citations
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Waller v Arundel Hills Country Club (Gold Coast) Pty Ltd [1998] QIRC 316
2 citations
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Cite 1 - [1998] QIRC 316
Cite 2 - [1998] QIRC 316

Cases Citing

Case NameFull CitationFrequency
Plumb v Rockhampton Regional Council (No. 3) [2025] QIRC 1892 citations
1

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