QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Ferris v Woodlands H.R. Pty Ltd (No. 1) [2024] QIRC 65

PARTIES:	
	Ferris, Timothy
(Applicant)

v

Woodlands H.R. Pty Ltd
(Respondent)
	
CASE NO:
	B/2022/83
	
PROCEEDING:
	Application in existing proceedings
	
DELIVERED ON:
	20 March 2024	
HEARING DATES: 
	28 November 2023
12 January 2024
	
MEMBER:
	Pidgeon IC
	
HEARD AT:	Brisbane
	
ORDERS:
	1.	The application in existing proceedings to include the document marked as TF-10 is dismissed. 

2.	The application in existing proceedings to include the document marked as TF-11 is granted. 
	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND AWARDS – application for unpaid wages – recovery of unpaid pro rata long service leave – where the Appellant applied to reopen the matter so as to tender two further documents – consideration of relevant principles to grant leave to a party to reopen its case – applications opposed by the Respondent – application in existing proceedings dismissed – application in existing proceedings granted
	
LEGISLATION AND OTHER INSTRUMENTS:
	Industrial Relations Act 2016 (Qld) ss 132, 134(6)
	
CASES:
	Fowler v Workers’ Compensation Regulator [2019] QIRC 149

Wang v Workers’ Compensation Regulator (No. 2) [2023] QIRC 163
	
APPEARANCES:	Mr D. Marr and Mr A. Santelises, The Australian Workers’ Union of Employees, Queensland (AWU) for the Applicant.

Mr C. Camilleri, Woodlands H.R. Pty Ltd for the Respondent.	

Reasons for Decision

Introduction

[1]	The Australian Workers’ Union of Employees (‘the AWU’) lodged an application for recovery of pro rata long service leave on behalf of Mr Timothy Ferris on 31 October 2022.  The parties were unable to settle the matter at conciliation and in May 2023, the matter was allocated to me for hearing. The parties filed written submissions and affidavit material. The matter was heard in Brisbane over two days; 28 November 2023 and 12 January 2024. Following the hearing, the parties were directed to file closing written submissions. 

[2]	On Friday 2 February 2024, Mr Santelises of the AWU wrote to the Registry seeking leave to include further documents.  That correspondence noted that the Respondent objected to the inclusion of further documents.  During a mention of the matter on Tuesday 6 February 2024, I informed the parties that a request to lead further evidence must be made formally as an application in existing proceedings.

[3]	On 16 February 2024, the AWU filed a Form 4 Application in existing proceedings on behalf of Mr Ferris.  That application sought leave to include the following further evidence for the Commission’s consideration:

a.	Correspondence from Mr Camilleri and Mr Santelises dated 29 January 2024 (attached as TF-10); and

b.	Payslips of Mr Timothy Ferris from Forum A Pty Ltd dated 17/10/2017, payment made on (attached TF-11)

The relevant principles regarding the discretion to grant leave to a party to reopen their case

[4]	In Wang v Workers’ Compensation Regulator (No. 2) [2023] QIRC 163 (‘Wang v Workers’ Compensation Regulator’), Merrell DP considered applications made in existing proceedings where the Appellant applied to reopen his case so as to tender further documents. In that decision, Merrell DP referred to his earlier decision in Fowler v Workers’ Compensation Regulator [2019] QIRC 149 where he had considered the relevant principles:

[13] 	In Fowler v Workers’ Compensation Regulator I set out the principles to be applied in respect of the exercise of discretion by a court or tribunal to allow a party to repone their case. 

[14] 	In that regard, I stated:

[40] 	The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No. 2).

[41] 	In that case, his Honour stated:

(a)	first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application. 

(b)	secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered and that as to the former situation, the court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;

(c)	thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgment has not been delivered, were said to be:
	
(i)	the further evidence is so material that the interests of justice require its admission;

(ii)	the further evidence, if accepted, would most probably affect the result of the case; 

(iii)	the further evidence could not by reasonable diligence have been discovered earlier; and

(iv)	no prejudice would ensure to the other party by reason of the late admission of the further evidence;

(d)	fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice the other party, and the guiding principle of the interests of justice, required account to be taken of the strain that litigation imposes on personal litigants; and the prejudice caused by the delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs; and

(e)	finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.

	Submissions of the parties

Submissions of the AWU on behalf of Mr Ferris

[5]	The AWU says that the first document subject of this application, being the correspondence between Mr Camilleri and Mr Santelises dated 29 January 2024, is relevant as it outlines that the Respondent has no data in relation to the particulars of the ‘rolled up rates’.  The AWU says that the second document, being the pay advice dated 17 October 2017, outlines what was paid to Mr Ferris and notes that there is no tracking of long service leave.

[6]	The AWU says that the new documents it seeks to include for consideration satisfy the requirements set out by Merrell DP at [4] above. 

Interests of Justice

[7]	The Applicant submits that the inclusion of the documents is in the interests of justice as they provide ‘key insight into the ‘rolled up rates’ that were discussed during the hearing on 28 November 2023, in which there was a discussion regarding the same.’  For completeness, the relevant part of the transcript states: 

MR SANTELISES: Yes, Commissioner. I am minded – so I think in terms of administration for this matter…I am minded that there may be a need to request evidence about this rolled-up rate from the respondent, if it’s available. If they’re not minded to provide it, then, obviously, we’ve got the notice to produce but I think considering the timings that we have, that it is prudent to request that in this matter, and I don’t see any issues with it, considering we do have further time.

[8]	The Applicant says it made the request for information from the Respondent on 29 January 2024 on the basis that both Mr Benjamin Haycroft and Mr Graeme Haycroft could not provide any particulars about the matters. In response, the Respondent provided no further particulars of the rolled-up rate.

[9]	The Applicant says that the pay advice it seeks to have included in evidence provides further insight as to the fact that the rolled up rate is not broken down and shows that there has been no accrual of long service leave under the Industrial Relations Act 2016 (Qld) (‘the IR Act’) or the Industrial Relations Act 1999 (Qld), respectively.  The Applicant says that this issue goes to the heart of the dispute regarding the ‘rolled up rate’ and that it should be included. The Applicant says that here has been an ‘inadvertent disclosure that the long service leave under the respective legislation has not occurred’. 

Embarrassment or prejudice to the other side 

[10]	The Applicant submits that the inclusion of the material would not embarrass or prejudice the other side as the material ‘simply states that there is no breakdown of the ‘rolled up rate’ and it is noted that the Respondent has admitted in the correspondence dated 29 January 2024 that they do not find it relevant’. 

The matters set out at [41](c) of Fowler cited by Merrell DP in Wang (set out at [4] above)

[11]	The Applicant says that the material is needed ‘in the interests of justice as it satisfies the Commission that there is no further material relating to the ‘rolled up’ rates that were paid by Forum-A Pty Ltd and that there was no accrual or pay out of long service leave’. 

[12]	The Applicant refers me to the case of Deputy Commissioner of Taxation v Zu Neng Shi, where it was said, ‘what the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises’. The Applicant submits that this case is in relation to the payment of outstanding Long Service Leave, and the question of the ‘rolled up rates’ that were paid by Forum-A Pty Ltd. The Applicant submits that the documents it seeks to include provide that there is no material evidence of the rolled up rates or payment of long service leave. 

[13]	The Applicant submits that this further information could not have been foreseen and the material could not have been discovered earlier on the basis that it was raised post 
cross-examination.

[14]	Pointing to the Respondent’s correspondence to the Applicant on 29 January 2024, the Applicant submits that the material should not prejudice the Respondent, ‘noting that they show no interest in the said material, as per their correspondence dated 29 January 2024’. 

The strain on personal litigants and the importance of finality in proceedings

[15]	The Applicant submits that the inclusion of the two documents should not impose any strain considering that they are not substantive or require cross-examination and the Respondent is free to provide any ‘counter-submissions’. 

Respondent’s submissions 

[16]	The Respondent submits the following, in summary, in support of its objection to the application in existing proceedings to bring further evidence before the Commission following the hearing of the matter: 

•	The evidence sought to be adduced is irrelevant to the proceedings. At the time relevant to the material sought to be adduced, the Applicant was employed by Forum-A and during this time he was employed pursuant to a lawful and valid CWA.  The proceedings deal with whether Mr Ferris, during his second period of employment with the Respondent was entitled to receive long service leave on a pro rata basis or otherwise upon cessation of his employment.

•	All long service leave entitlements owed to the Applicant were already paid by Forum-A. The additional evidence, if accepted would be unlikely to affect the result of these proceedings as it relates to whether Mr Ferris is eligible to long service leave during his second period of service with the Respondent, not whether he was paid correctly during the period of employment with Forum-A.

•	Mr Ferris’s representatives are qualified lawyers. The proceedings were commenced on 28 October 2022 and were subject of a long period of preparation and directions before this Commission.  The Respondent points out that the oral hearings took place on 28 November 2023 and 15 January 2024 and that the pay slip sought to be adduced was already in the possession of the Applicant and his representative prior to the hearing and could have been, by exercise of due diligence, adduced in proceedings and was not. 

•	Adducing additional evidence will prejudice the Respondent as it imposes stress and delay in the delivery of an expected judgment.  Mr Camilleri says that he is an unrepresented litigant in person appearing on behalf of the Respondent and that he has been put through extended disruption and stress in dealing with the proceedings. 

•	Mr Camilleri said that he expected the proceedings to come to finality only for the legally represented Applicant to continue to agitate issues that could and should have been properly put to the Commission earlier, and that this has unjustifiably and unnecessarily delayed the delivery of an expected judgment. 
Applicant’s submissions in reply

[17]	The Applicant says that the claim for long service leave relates to the entire duration of time Mr Ferris worked for the Respondent and for Forum-A. In particular, the Applicant refers to its submission that the Respondent has taken steps with the intent of avoiding its obligations regarding long service leave as defined by section 134(6) of the IR Act and, in the alternative, says that a transfer of calling has occurred as outlined in section 132 of the IR Act. 

[18]	The Applicant reiterates that the material could not have been ‘foreseen’ as it was raised after cross-examination. 

[19]	The Applicant notes the stress of the Respondent but says that it is not relevant to the question and should not be given any weight. 

Consideration

[20]	I have reviewed the material the Applicant seeks to have included. I will deal with each item in turn. 

The email of 29 January 2024

[21]	I note that the email exchange in question occurred on 29 January 2024.  This is some two months after the Applicant’s representative informed the Commission of an intention to seek further information from the Respondent. It is also after the second day of hearing. The relevant content of the email from the Respondent is as follows: 

As per the testimony of Mr Benjamin Haycroft and Mr John Elks on 28th November 2023, Forum A Pty Ltd ATF Forum A Trust set the hourly rate for their staff and Woodlands HR Pty Ltd were not involved or provided with any breakdown on the entitlements included in the hourly rate paid to their staff.

Please direct any further requests for this information to Mr Benjamin Haycroft.

[22]	Nothing in that email offers anything new or significant to the evidence or submissions already before the Commission. The information contained in the email is consistent with the evidence given by Ms Tregenza when she was asked ‘do you have any idea how the all-up rate was worked out’ or what the breakdown was and she answered that she did not know what the breakdown was and that Forum-A worked out the rate. Mr Elks’ evidence with regard to the ‘all-up rate’ was ‘…how it’s derived I can’t answer that…’. 

[23]	I have considered the matters set out by Merrell DP in Wang v Workers’ Compensation Regulator and listed above at [4].  Regarding the decision in Fowler quoted therein, I find the relevant guiding principles to be applied are specifically those set out at [41](c), (d) and (e).

[24]	Having had regard to the first document, which the Applicant seeks to introduce as new evidence, I do not find that the further evidence is so material that the interests of justice require its admission. As I have discussed above at [22], the email adds nothing that is not already demonstrated by the evidence before the Commission and the Applicant will be able to make submissions about that matter. If accepted, the evidence would not be likely to affect the result of the case.  

[25]	Regarding the point about whether the evidence could not, by reasonable diligence, have been discovered earlier, I note that on 28 November 2023, Mr Santelises indicated a course of action which may involve seeking the type of information contained in the email.  There was an opportunity to do this immediately following the hearing and in fact all the way up until the second day of the hearing in January 2024.  I am satisfied that it was well within the Applicant’s capacity to ask for the information it seeks to admit prior to the end of the hearing of the matter.

[26]	While I do not find there would be a great prejudice to the Respondent if I were to allow the email into evidence, the Applicant has not persuaded me that the email should be admitted. For completeness, I note that Mr Camilleri has made submissions about the stress the case has caused him, however I am not persuaded that to allow the email into evidence would cause further significant stress, nor would it cause a delay in the expected judgment as the application has in any case caused me to vacate directions for closing submissions to be filed.

[27]	In consideration of the factors set out above in [22] – [26], the application to reopen the case to allow the first document, being the email of 29 January 2024 is dismissed. 

The second document – payslip

[28]	I do not know why Mr Ferris’ payslip was not included as an exhibit to his affidavit or why his representatives did not choose to put the payslip before the Commission during the hearing. This is an example of further evidence which could have been discovered earlier with reasonable diligence. 

[29]	While the pay advice the Applicant seeks to introduce represents a pay period when Mr Ferris was employed by Forum-A, its contents do not necessarily, as the Applicant suggests, satisfy the Commission ‘…that there is no further material relating to the ‘rolled up’ rates that were paid by Forum-A Pty Ltd and that there was no accrual or pay out of long service leave’. The absence of information on the payslip about what the all-up rate includes does not, in itself, demonstrate that there are no particulars available about the rolled up rate.

[30]	I understand the Applicant argues that the legislation in Queensland requires that long service leave is an entitlement available to workers in this State and that Mr Ferris should have had access to long service leave entitlements for the duration of the time he worked at Woodlands. I do not think the pay advice the Applicant seeks to introduce is necessary to make this argument. The evidence before the Commission appears to be that the Forum-A contract excluded certain conditions. The relevant legislative provisions are readily available and can be referred to in submissions. 

[31]	However, despite the matters I have discussed above, I do not think the inclusion into evidence of a historical pay advice in a matter specifically relating to an alleged             non-payment of an entitlement is controversial. Further, I do not think that the inclusion of the pay advice prejudices the Respondent in circumstances where the parties are yet to file their closing submissions. The application in existing proceedings has delayed the filing of further submissions and therefore the delivery of a judgment in the matter. However, I am satisfied that the inclusion of the payslip as evidence to be considered in determining the matter will not cause prolonged litigation or a delay in the delivery of the decision giving rise to unwarranted strain or stress on the Respondent.

[32]	The application in existing proceedings to include the pay advice for the pay period from 4 October 2017 to 17 October 2017 is granted. The Applicant may address the document in its closing submissions and the Respondent will have an opportunity to address the pay advice in its submissions in reply. A directions order providing for filing of written closing submissions will be issued in due course. 

Orders

1.	The application in existing proceedings to include the document marked as TF-10 is dismissed. 

2.	The application in existing proceedings to include the document marked as TF-11 is granted.