QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024	
PARTIES:	TOGETHER QUEENSLAND INDUSTRIAL UNION OF EMPLOYEES
(applicant)
v
NEIL SCALES
(first respondent)
STATE OF QUEENSLAND (DEPARTMENT OF TRANSPORT AND MAIN ROADS)
(second respondent)	
FILE NO/S:	B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32, B/2021/33	
PROCEEDING:	Applications	
DELIVERED ON:	Orders made 28 January 2022, reasons published 1 February 2022	
HEARING DATE:	28 January 2022	
MEMBER:	Davis J, President, O’Connor VP, Power IC	
ORDER/S:	1.		Leave be given to the respondents to amend the agreed statement of facts of 16 August 2021 in the terms of exhibit 2. 
2.		Leave be given for the respondents to make amendments to their replies to the applicants’ further particulars of 1 July 2021 consequential upon the amendment to the agreed statement of facts.
3.		That the respondents file in the Industrial Registry and serve on the applicants a document articulating the legal consequences if Jamie Wicks and Brian Murphy are not employees “who do not ordinarily work Monday to Friday of each week” by no later than 4.00pm on Monday 31 January 2022.
4.		That the respondents file in the Industrial Registry and serve on the applicants the leave records for all seven applicants by no later than 4.00pm Wednesday 2 February 2022.
5.		That the application made by each of Jamie Wicks and Brian Murphy to adjourn their principal applications be adjourned to 10 February 2022.
6.	That all parties have liberty to apply.	
CATCHWORDS:

LEGISLATION:	INDUSTRIAL LAW – QUEENSLAND – INTERLOCUTORY APPLICATION – where First and Second Respondent seek to amend the agreed statement of facts – where no specific prejudice is identified but where prejudice may arise - where orders must be fashioned to do justice to the parties
Industrial Relations Act 2016, s 451
Native Title Act 1993 (Cth)
Protection of the Environment Operations Act 1997	
CASES:	EPA v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] HCA 42
Northern Land Council v Quall (2020) 94 ALJR 904
Palmer v Australian Electoral Commission (2019) 93 ALJR 947
Shanahan v Scott (1957) 96 CLR 245	
APPEARANCES:	Mr M Thomas, on behalf of Together Queensland for the Applicant
Mr C Murdoch QC, instructed by Crown Law for the First and Second Respondents	

[1]	
[1]	This is an interlocutory application in principal applications which seek pecuniary penalty orders against the respondents consequent upon alleged breaches of a Modern Award under which the members of the applicant union work.  The principal applications are to be heard by the Full Bench on 10 and 11 February 2022.
[2]	Pursuant to directions given in the principal applications, the parties prepared and filed an agreed statement of facts.
[3]	On 24 December 2021, Crown Law on behalf of the second respondent (the State of Queensland – Department of Transport and Main Roads) filed an application seeking to amend the agreed statement of facts filed on 16 August 2021, specifically paragraph 4(c).  The first respondent supports the application.
[4]	The application to amend is resisted by the applicant.
Background
[5]	Paragraph 4 of the agreed statement of facts currently reads: 
“4.	Jamie Wicks, (named in B/2021/27), Raymond Philbey (named in B/2021/28), James Blackshaw (named in B/2021/29), Darren Loughlan (named in B/2021/30), Christopher Greensbury (named in B/2021/31), Brian Murphy (named in B/2020/32 [Sic]) and Anthony Hiltjes (named in B/2021/33) (the Transport Inspectors) are, and at all material times were:
a.	employees of the Second Respondent employed, under the Public Service Act 2008, in the Department of Transport and Main Roads, as Transport Inspectors;
b.	by clause 4.1(a)(i) of the Award, employees engaged in the public sector of the State of Queensland, in the ‘Administrative stream’, whose salaries or rates of pay are fixed by the Award and to which the Award applies; and
c.	employees who do not ordinarily work Monday to Friday each week.”
[6]	The application seeks:
“1.	Removing paragraph 4(c).
2.	Inserting a new paragraph 4(c) which states:
‘in the case of Raymond Philbey, James Blackshaw, Darren Loughlan, Christopher Greensbury and Anthony Hiltjes, employees who do not ordinarily work Monday to Friday of each week (the Applicable Transport Inspectors).’
4.	[Sic] Adopting the defined term ‘Applicable Transport Inspectors’ in the new paragraph 4(c) by inserting ‘Applicable’ into paragraphs 10 and 11.”
[7]	Paragraph 4 of the agreed statement of facts constitutes an admission by the respondents that all seven Transport Inspectors “do not ordinarily work Monday to Friday each week”.  That fact has significance under the Award.
[8]	The proposed amendment seeks to withdraw that admission in relation to two of the Transport Inspectors, namely Mr Wicks and Mr Murphy.
[9]	The originating applications (seven in total) were filed on 9 April 2021.  Particulars were filed by the applicants on 8 June 2021.  Replies to the particulars were filed by both respondents on 1 July 2021.  On 2 August 2021, his Honour Vice President O’Connor issued a directions order requiring the parties to file an agreed statement of facts, agreed documents and a document setting out each matter in dispute, and whether those matters were disputed facts or disputed points of law.
[10]	The affidavit of Mr Lachlan Grant filed in the present application, relevantly chronicles inter-party correspondence regarding possible amendments to the agreed statement of facts prior to the current application being filed. 
[11]	The essence of this correspondence relates to a factual error in an email sent by Ms Elle Ackland on 22 January 2021.  Ms Ackland is the Director (Employee Relations) Department of Transport and Main Roads.  She was appointed by the first respondent to assist the applicant union in relation to its concerns that the Award had been breached.  The substance of the email from Ms Ackland (among other things) was that Mr Jamie Wicks (now B/2021/27) and Mr Brian Murphy (now B/2021/32) “do not ordinarily work Monday to Friday within the meaning of cl 23.4(a)”.
[12]	Following a directions order issued by Vice President O’Connor on 15 November, Crown Law became aware that Mr Wicks and Mr Murphy “…had not worked a weekend shift since May and September, respectively”.  It followed that paragraph 4 of the agreed statement of facts was inaccurate.  The error is of some significance as Crown Law formed the view that those two applicants will not fall within the definition of 23.4 of the Modern Award.  
[13]	The factual error was brought to the attention of the applicant on 3 December 2021, but consent to amend the agreed statement of facts was not forthcoming.
[14]	Of some significance to the arguments before us is s 451 of the IR Act which confers general powers on the Commission.  It relevantly provides:
“451	General powers
(1)	The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)	Without limiting subsection (1), the commission in proceedings may—
(a)	give directions about the hearing of a matter; or
(b)	make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c)	make an order it considers appropriate.” (emphasis added)
Disposition
[15]	It is not in dispute that the Commission has the power pursuant to s 451(1) and (2) of the IR Act to permit the amendment of the agreed statement of facts as contemplated here.  The amendment, if made, would operate as a withdrawal of the admission by the respondents that Mr Wicks and Mr Murphy “do not ordinarily work Monday to Friday each week”.  The amendment, if made, does not constitute an admission by the applicant union that Messrs Wicks and Murphy do ordinarily work Monday to Friday each week.
[16]	The Commission may, at any stage of the proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case, in such manner as the Commission thinks fit.
[17]	Although a power to do things “necessary or convenient” is one of considerable latitude, such a power will not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred.
[18]	In Northern Land Council v Quall, a question arose as to the power of the Northern Land Council to delegate functions conferred upon it by the Native Title Act 1993 (Cth).  One source of power to delegate was argued to be a general provision “to do all things necessary …”.  Of that provision, the High Court said:
“[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’.”
[19]	Subject to the dictates of justice, the Commission may exercise its jurisdiction to ensure that any amendment made is for the purpose of determining the real questions in issue in the proceedings, correcting any defect or error in the proceedings and is consistent with ensuring the prompt and efficient disposal of the litigation before it. 
[20]	The applicant in the substantive proceedings opposes the application to amend paragraph 4(c) of the agreed statement of facts.  For the applicant, the importance of the issue arises because the principal applications seek pecuniary penalties against both respondents as the legal persons who either contravened the Award or were otherwise involved in the contravention.  If the admission concerning Mr Wicks and Mr Murphy is withdrawn, then the applicant must prove the fact on the way to proving that the Award has been breached.
[21]	Like formal admissions, statements of agreed facts are valuable tools to limit the issues in dispute and dispense with the need for formal proof of uncontentious issues. Courts are generally reluctant to grant leave to depart from a statement of agreed facts. In EPA v Ramsey Food Processing Pty Ltd, Biscoe J observed, albeit in the context of a prosecution under the Protection of the Environment Operations Act 1997, that there must be an incentive for parties to agree upon facts and allowing parties to abandon such agreements does not encourage them to reach agreement.  His Honour observed that there is, in a general sense, prejudice to a party when allowing a departure from what that party reasonably thought was agreed.  However, the court will consider the process which led to the agreed statement of facts and the stage of proceedings when the party seeks to withdraw the agreement.
[22]	An amendment of a statement of agreed facts ought ordinarily be allowed in the absence of any unfairness or prejudice unless the amendment works to change the true nature or character of the proceedings before the Commission.  
[23]	The proposed amendment, by withdrawing an admission of a fact, will cast the obligation of proving that fact on the applicant.  Unless evidence to prove the fact is lost, or destroyed or otherwise unavailable, the withdrawal of the admission will not usually prejudice the applicants, or give rise to any unfairness.  The amendment is, in short, to deal with a factual error which arose consequent upon the directions order issued by the Commission on 15 November 2021.  It was at this point that Crown Law became aware that Mr Wicks and Mr Murphy had not worked a weekend shift since May and September, respectively.  The existence of the factual error was brought to the attention of the applicants within a relatively short period after its discovery, and some two months before the hearing.
[24]	In oral submissions before the Full Bench, no specific prejudice was identified which would flow to the applicant as a result of the amendment.  Mr Thomas for the applicant submitted that leave records for Messrs Wicks and Murphy ought be disclosed by the second respondent.  He argued that one explanation for wage records not disclosing that Messrs Wicks and Murphy did not work other than Monday to Friday may be that they were on leave.  He further submitted that preparation for the hearing may become difficult if further investigations were necessary; eg as a result of the contents of the leave records.
[25]	Mr Thomas also submitted that it was difficult to predict the full impact of the amendment given that the legal significance of the withdrawal of the admission was not explained.
[26]	Mr Thomas accepted that any potential prejudice could be overcome by the Respondents articulating the legal consequences of Mr Wicks and Mr Murphy not being employees "who do not ordinarily work Monday to Friday of each week" and by the Respondents disclosing the leave records for all seven Applicants.
[27]	Mr Thomas submitted that the principal applications brought by Messrs Wicks and Murphy should be adjourned and not heard by the Full Bench on 10 and 11 February 2022.  That, he submits, guards against the possibility of the applicant being faced with an unforeseen issue which it cannot meet in time for the hearing as presently listed.
[28]	The admission was made as a result of an error by the respondents.  The error was brought to the attention of the applicant promptly.  Provided the applicant is not disadvantaged, the amendment should be allowed, as should consequential amendments to the respondents’ replies to the applicant’s particulars.
[29]	In order to ameliorate any prejudice to the applicant, the respondents should clearly articulate the legal consequences of the amendment and should make disclosure of the leave records.
[30]	It is difficult to judge whether an adjournment of the applications concerning Mr Wicks and Mr Murphy will be necessary.  That should be considered after the respondents have disclosed their legal argument and the leave documents.
[31]	The application for the adjournment should be adjourned to 10 February 2022.
[32]	One further matter deserves comment.
[33]	The applicant union, in an email of 13 December 2021, contended that “it is our view that the State of Queensland and officers of Crown Law are attempting to purport a fraud on the tribunal by knowing [Sic] trying to convey information as agreed facts where it is known that the information is false”.  
[34]	That allegation is scandalous.  Allegations of mala fides or fraud ought only be made on strong evidence.  Here, there is none.  Mr Grant has explained the error as an innocent mistake and Mr Grant has not been required for cross-examination.  His evidence is unchallenged.  It is both unhelpful and quite improper for unjustified allegations of dishonesty to be made by any party against another.
[35]	In argument before the full bench, Mr Thomas, who was not the author of the email, did not press that allegation.  He was right to adopt that approach.
[36]	For the reasons advanced above, the Full Bench made the following orders.
Orders
1.	Leave be given to the respondents to amend the agreed statement of facts of 16 August 2021 in the terms of exhibit 2. 
2.	Leave be given for the respondents to make amendments to their replies to the applicants’ further particulars of 1 July 2021 consequential upon the amendment to the agreed statement of facts.
3.	That the respondents file in the Industrial Registry and serve on the applicants a document articulating the legal consequences if Jamie Wicks and Brian Murphy are not employees “who do not ordinarily work Monday to Friday of each week” by no later than 4.00pm on Monday 31 January 2022.
4.	That the respondents file in the Industrial Registry and serve on the applicants the leave records for all seven applicants by no later than 4.00pm Wednesday 2 February 2022.
5.	That the application made by each of Jamie Wicks and Brian Murphy to adjourn their principal applications be adjourned to 10 February 2022.
6.	That all parties have liberty to apply.