The Queensland Government Industrial Gazette 01.02... · The Queensland Government Industrial...

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The Queensland Government

Industrial Gazette PUBLISHED BY AUTHORITY

PP 451207100086 Annual Subscription $358.00 (GST inclusive) ISSN 0155-9362

Vol. 187 FRIDAY, 1 FEBRUARY, 2008 No. 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal

Bradley John Gillam AND Q-COMP (WC/2007/38) DEPUTY PRESIDENT SWAN 25 January 2008

DECISION This is an application lodged by Mr Bradley John Gillam (the appellant) against a decision of the Review Unit, Q-COMP dated 4 April 2007 issued pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Q-COMP's decision is as follows:

"I am satisfied that Mr Gillam qualifies as a 'worker' under section 11 of the Act and that he has sustained an 'injury', pursuant to section 32 of the Act.

I am further satisfied that the injury arose 'in the course of' employment in circumstances wherein employment was a significant contributing factor causing Mr Gillam to sustain Major Depression and a Generalised Anxiety Disorder.

I am however also satisfied that section 32(5) of the Act precludes any possibility for this Application for Compensation being accepted.

Accordingly, my decision is to set aside the original insurer decision, and to substitute a determination that Mr Gillam's Application for Compensation is one that is unable to be accepted, because of section 32(5) of the Act.".

Background to the appellant's claim The appellant has been employed by the Queensland Ambulance Service (QAS) since December 1980. His current substantive position is that of Manager Workplace Co-ordination and Planning Unit South-East Region. This position is located in the South-East Regional Communications Centre at Southport (the Southport Centre). The Southport Centre had been relocated from the Beenleigh Regional Office around May 2005.

50 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 Previously, at the Beenleigh Regional Office, the position held by the appellant for some 8 years was that of Regional Duty Officer - Staffing. In that role, he co-ordinated rostering of operational ambulance staff for the QAS South-East Region (the Region) in conjunction with the Region's Area Director and Station Officers-in-Charge. The Region is staffed by approximately 400 persons who are located across 24 permanent stations and 4 honorary stations. Over the past 4 years, changes had occurred within the Region with regard to rostering for the purpose of integrating that function into the Southport Centre. In August 2004, the appellant lodged an application to WorkCover for compensation for alleged psychological/psychiatric injury. That application was rejected by WorkCover. The appellant had originally lodged an appeal against that decision, but, as he says, because of cost considerations, that claim was subsequently withdrawn. The appellant returned to work in October 2004. In April 2005, he sustained a non-work related knee injury and remained incapacitated (as a consequence of surgical complications) until February 2006 when he returned to work on a limited basis. An occupational therapist was engaged by WorkCover to assist the appellant's return to work. A Suitable Duties Plan (the Plan) was instigated and the appellant worked initially 4 hours per day over a 3 day working week with a gradual increase in hours each week. The Plan was instigated for the purpose of assisting the appellant's return to his substantive position over time at the Southport Centre. The knee injury suffered by the appellant imposed limitations on his capacity to drive a vehicle. Consequently, QAS provided transportation for him from Beenleigh, where he lived, to the Southport Centre to perform duties within the Workplace Co-ordination and Planning Unit. The appellant completed 5 weeks of the Plan increasing his hours in the fifth week. In the sixth week, the appellant attended work on Monday and Wednesday and then ceased work on 22 March 2006 subsequently lodging a claim for compensation. The appellant says that his injury arose "out of or in the course of employment in circumstances where employment was a significant contributing factor". [Appellant's submissions, point 11.] It is not disputed that the appellant suffered an " 'injury', as defined by section 32 of the Act (which in this instance was found to be a case of Major Depression with an accompanying Generalised Anxiety Disorder).". [Exhibit 5.] The appellant asserts that the stressors he confronted in the workplace "combined to have an overall effect on his psychological health". [Appellant's submissions, point 21.] The appellant says that he had, on a prior occasion with the same employer, de-compensated and that this was known to management. It was submitted that, in accordance with the decision of the Industrial Court of Queensland in Delaney v Q-COMP [2005] QIC 11; 178 QGIG 197, "the Appellant is entitled to a global evaluation of the actions in which the management team had engaged to assess whether such action was reasonable and taken in a reasonable way.". [Appellant's submissions, point 26.] The legislation On the balance of probabilities, the appellant must establish each of the following:

"(a) That he is (or at the relevant time was) a 'worker', as defined (see: s.11); (b) That he sustained an 'injury', as defined (see: s.32(1) or s.32(3)), specifically that the injury is one that has arisen

'out of or in the course of employment', in circumstances where employment was at least 'a significant contributing factor' to that injury (on this point, see further, below);

(c) That the personal injury is not otherwise precluded from any entitlement to compensation, by reason of s.32(5).". [Respondent's submissions, point 5.]

Relevantly, ss. 11, 32(1), 32(3) and 32(5) of the Act state:

"11 Who is a worker

(1) A worker is a person who works under a contract of service. (2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances.

1 February, 2008 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 51

(3) However, schedule 2, part 2 set out who is not a worker in particular circumstances. (4) Only an individual can be a worker for this Act.

...

32 Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

... (3) Injury includes the following -

(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the

employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the

employment is a significant contributing factor to the aggravation -

(i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;

(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to the

causing the loss of hearing;

(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;

(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to

the disease;

(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.

... (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of,

or in the course of, any of the following circumstances -

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way -

• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit

in connection with, the worker's employment.". Submissions as to law In its submissions, QSA stated:

"There is a landmark authority that must be properly dealt with by the Commission, in the process of giving its written reasons for judgment on this appeal. The authority is that afforded by Q-COMP v Education Queensland ('McArthur').". [Respondent's submissions, point 30.]

Q-COMP submits that the position as outlined in Q-COMP v Education Queensland [2005] QIC 46; 179 QGIG 491 (McArthur) should prevail to the extent that:

"... it is not now possible to accept an injury as compensable if it is caused by multiple stressors where at least one or some of these are instances of reasonable management action. Once an injury is in any way touched by RMA, then it

52 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008

becomes completely non-compensable. In this sense, there can be no 'mixed aetiology' claims. Put another way, there is no requirement for significance in s.32(5), and any claim that is touched by reasonable management action - and no matter how peripheral RMA may be as a stressor giving rise to the condition - then the claim as a whole is one that must be rejected, because of s.32(5).". [Respondent's submissions, point 31.]

In McArthur (supra) Hall P said:

"In my view s. 34(5) should not be read so as to maximise the remedial impact of s. 34(1) and (2). ...

It is not the concern of s. 34(5) to nominate stressors which may be taken into account in determining whether a particular psychiatric or psychological disorder falls with the rubric of s. 34(1). The concern of s. 34(5) is to remove certain psychiatric and psychological disorder from the statutory definition of 'injury'. Where a situation arises in which s. 34(1) 'ropes-in' a particular psychiatric or psychological disorder and s. 34(5) excludes the same psychiatric or psychological disorder, there is an inconsistency which because of the use of 'notwithstanding' must be resolved by allowing s. 34(5) to prevail.".

While QSA states that the approach adopted in McArthur (supra) and/or Prizeman v Q-COMP [2005] QIC 53; 180 QGIG 481 should prevail in this case, it, nonetheless, proceeded to detail other Industrial Court of Queensland decisions pertaining to s. 32(5) of the Act. The appellant, as previously stated, sought to apply a "global" approach in assessing the management action of which complaint had been made. [See Delaney (supra).] It is contended by the appellant that the stressors experienced by him "did not each act upon him in a discrete way, but combined to have an overall effect on his psychological health.". [Appellant's submissions, point 21.] The claimed stressors were joined in time. [See Delaney (supra).] The appellant says that in Prizeman (supra), not all of the stressors initially relied upon by the appellant were ultimately relied upon to form the basis of the alleged stressors giving rise to the de-compensation at the appeal hearing. In this matter Q-COMP had detailed a list of stressors it believed the appellant would rely upon to prove its case (this list was not compiled by the appellant). As it transpired, the appellant relied upon fewer stressors to support his claim. The appellant's case is not incompatible with the facts of Prizeman (supra) where some alleged stressors were put aside by the Magistrate as being "blemishes" and not significant in the evidence as it unfolded. This approach was not disturbed on appeal to the Industrial Court of Queensland. In effect, the appellant submits that when considering the scope of s. 32(5) of the Act, one must determine whether any of the nominated stressors provide the causal or consequential connection to the employment in a manner which significantly contributed to the injury. Were this so, then one must consider the question of reasonable management action taken in a reasonable way in order to determine whether the injury is precluded from the definition in s. 32(1) of the Act by the operation of s. 32(5) of the Act. [See Prizeman (supra).] In this matter, the appellant has suffered an "injury" which consists of a major depressive disorder, together with a generalised anxiety disorder. QSA presses the Commission that, if finding that the appellant has suffered an injury pursuant to s. 32 of the Act, then the opinion of Dr McIntyre should be preferred over the opinion of Dr Degotardi because Dr McIntyre saw the appellant on more than one occasion. From a consideration of the medical opinion in this matter (which is detailed later in this decision), it is clear that the appellant has suffered an "injury" for the purposes of the Act. Within this context, it is not necessary that employment matters be the significant causal factor for the injury. Rather, that employment is "a" significant causal factor, amongst other matters, is sufficient for the purposes of s. 32 of the Act. This injury must arise "out of, or in the course of, employment" in circumstances where employment was a significant contributing factor (s. 32(1) of the Act). In Lackey v WorkCover Queensland (2000) 165 QGIG 22, Hall P stated:

"... the test posited by the words 'arising out of' is wider than that posited by the words 'caused by'... and the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship that would be necessary if the phrase used were 'caused by' (see also


Commonwealth v Oliver (1962) 107 CLR 353).". [Respondent's submissions, point 11.] [See Avis v WorkCover Queensland (2000) 165 QGIG 788.]

Injury - medical reports The "injury" so alleged in the appellant's case was either a "major depressive disorder" with a "generalised anxiety disorder" [Dr Degotardi, Exhibit 10] or "generalised anxiety disorder" together with "obsessive compulsive disorder" which over time progressed to become a "major depressive disorder", coupled with "obsessive compulsive disorder". [Dr McIntyre, Exhibits 11 and 12.] Dr Degotardi (Consultant Psychiatrist) saw the appellant on 27 April 2006 and then some 6 weeks after he ceased work on 22 March 2006. That report [Exhibit 10] refers to the prior stress-related injury in 2004. Dr Degotardi believed that the appellant had largely, but not completely, recovered from this prior injury at that time. The appellant says that even were the previous injury relevant than this could be viewed as an aggravation of a pre-existing stress related injury from 2004 and such an aggravation could constitute an injury in any event (see s. 32(3)(b) of the Act). The stressors listed in this report where a DSM-IV diagnosis was made, show that the only contributing factors or stressors listed are work related. Dr McIntyre (Consultant Psychiatrist) wrote 2 reports. These arose as a consequence of consultations on 14 November 2006 [Exhibit 11] and 13 February 2007 [Exhibit 12]. Both reports make a DSM-IV diagnosis. The first report did not report any non-work related stressors and the later report identifies at least 2 additional stressors, i.e. the prior WorkCover process and some marital difficulties. Dr McIntyre stated during evidence that in the report of 13 February 2007 [Exhibit 12], the focus of the consultation was not on the stressors which had existed in March 2006 when the appellant had left the workplace. In the overall assessment of these prognoses, it is apparent that work was a significant contributing factor sufficient to satisfy s. 32 of the Act. Both parties concede that point. Particulars of the appellant's claim The appellant states that his condition was caused by a number of incidents at the workplace. These incidents are identified as:

• transport difficulties; • interactions with Ms Berg; • the Q6 group email system; • the chair issue; and • issues identified by the appellant as "blemishes".

The nominated stressors Transport difficulties This specific issue concerned the transport arrangements made by QAS when the appellant returned to the workplace. As the appellant was largely unable to drive a vehicle any distance, the arrangement was that he would be transported from Beenleigh to the Southport Centre by Mr Tester (Ambulance Officer). The appellant was required to wait for Mr Tester in the Coles car park and his evidence was that on many occasions, Mr Tester would be late by up to 2 hours. Often, the appellant was unable to raise Mr Tester on his telephone. The evidence shows that the appellant could have waited inside the Beenleigh Regional Office but for a desire to avoid Assistant Commissioner Eeles. The appellant gave evidence of a difficult history between himself and Assistant Commissioner Eeles relating to QAS's decision to move the Co-ordination and Planning Unit from Beenleigh to Southport. The appellant's evidence was that he believed that he had not been appropriately consulted with by Assistant Commissioner Eeles with regard to the move. On a prior occasion, according to the appellant, he had been placed in another location, away from Assistant Commissioner Eeles, upon the recommendation of a Dr Bonham (the former medical director of QAS). Assistant Commissioner Eeles' evidence is that he had no involvement in the transport arrangements which were made regarding the appellant. [Transcript, p. 110.] Beyond that, the appellant raised his concerns about his difficulty with transportation with Mr Green (Acting Regional Organisation Health Advisor, South-East Region) and Mr Strong (Acting Regional Manager Communications South East

54 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 Region). He claimed that both men disregarded his comments. [Transcript p. 14, lines 43-55.] Later, in evidence, however, Mr Strong stated that in hindsight the whole issue with regard to the transportation arrangements for the appellant could have been "better managed". [Transcript, p. 130.] The appellant suggested other alternatives to both men, but his suggestions were rejected. One was that the appellant could wait for Mr Tester at the Beenleigh Ambulance Station where they had recliner chairs and where he could stretch his legs, but this was refused. The response made to the appellant as to why, for example, he could not be picked up at the Beenleigh Ambulance Station was that Mr Tester could not drive operational units, that he had a tendency to talk too much to other ambulance officers at the Station, and that he was unreliable. The appellant rejected those comments and stated that the use of an operational unit or an unmarked car by Mr Tester would not be affected by collection of him from the Beenleigh Ambulance Station. According to the appellant, it would merely involve collecting an appropriate vehicle from Regional Headquarters and driving a further kilometre to Beenleigh Ambulance Station which coincidentally was on the highway. [Transcript, p. 15, lines 3-5.] The appellant further states that when he enquired as to why he could not wait for Mr Tester at the Beenleigh Ambulance Station, he was told by Mr Green and Mr Strong that "Well, that's not up to you to ask that question. We've just been told by David Eeles that that's where you're going to come.". [Transcript, p. 14, lines 47-49.] As for Mr Tester's alleged ability to engage in time-wasting conversations with other ambulance officers, the appellant dismissed that excuse as being irrelevant. The appellant described the distress he experienced by this transport arrangement as follows. The failure of his driver to collect him at a pre-appointed time on many occasions made him nervous and anxious. The failure to properly co-ordinate the appellant's transport requirements often left him sitting in the heat at a shopping centre car park. When he would telephone Mr Green to ask what was happening with his driver, the response given would be "Are you still sitting there?" and "What do you want me to do?". [Transcript, p. 18-19.] The appellant described the actions of Messrs Strong and Green as "buck-passing". In response to this issue, and others, QAS believed that the Commission should view the appellant's evidence with some caution because of his psychiatric condition. Dr Degotardi had indicated that the appellant had "paranoid and persecutory aspects" to his personality. [Transcript, p. 147, line 10.] In conjunction with this, the Commission should also be mindful of Dr McIntyre's evidence where he stated that the appellant had a strong sense of entitlement, and a propensity to mistrust the motives of others. [Transcript, p. 184, lines 5-10.] QAS highlighted the appellant's apparent concession during cross-examination that QAS had accommodated him in a reasonable manner in providing a driver to take him to the Southport Centre. [Transcript, p. 72.] There is no question that it was QAS which required the appellant to return to work at its Southport Centre. There is also no question that the appellant could not drive to the Southport Centre. The advice from his orthopaedic surgeon, which was known to QAS, was that he could only drive some 5-10 kilometres. It is apparent that a scheme had to be devised whereupon the appellant could attend to his duties. The transport arrangements were unreasonable and enacted in an unreasonable manner. The appellant was on a return to work program. He had suffered a serious injury and QAS was aware that his medical advice was that he could not, unaided, drive to work at the Southport Centre. The appellant's driver was unreliable - sometimes for a valid reason and on other occasions, that was not so. For example, the appellant states that Mr Tester told him he was on "stress leave" and that he been out to nightclubs and was often feeling depressed and consequently often slept in. [Transcript, p. 15.] I have accepted that the appellant had advised his superior officers (Mr Green and Mr Strong) on a number of occasions of his concerns only to be met with unhelpful and insensitive comments - e.g. "What are you still doing here?". [Transcript, p. 16, line 45.] On other occasions, he was simply fobbed off to another officer who was completely unhelpful to him. Whether he had waited in the Beenleigh Regional Office or in the car park, he would still have been left waiting on occasions for an unacceptably long period of time. Given that the working hours while responding to the Plan were relatively short, the periods left waiting for assistance to get to his place of work often left him with a very short working day. This is an example of unreasonable management action. What constitutes "reasonable" for the purposes of s. 32(5) of the Act, means what is "reasonable in all the circumstances of the case" (WorkCover Queensland v Kehl (2002) 170 QGIG 93).


Admissions had been made by QAS witnesses that the management response to the appellant's transport issues was not good. [Transcript, p. 130, lines 19-29.] This unreasonable management action could not be categorised as a "blemish". It was unreasonable management action (see s. 32(5) of the Act). Interactions with Ms Berg The appellant claims that the second nominated stressor occurred ("in examination in chief and in response to non-leading questions") as a consequence of his treatment by Ms Berg. Stressors nominated by the appellant were "mere interactions" which did not fall within the scope of "management action". [Appellant's submissions, point 39.] I have accepted that submission because Ms Berg and the appellant were of the same rank within QAS. Ms Berg was relieving within the appellant's position of Manager Workplace Co-ordination and Planning Unit South-East Region. At all relevant times, the appellant held the substantive position. The interactions with Ms Berg, represented "blemishes" but were representative of a "discordant" workplace. The detail concerning this issue is discussed later in this decision. The Q6 group email system The appellant described this system as follows. Sometime in 2002, the appellant and his wife developed a generic e-mail system into which QAS stations within the Region fed information. This system contained detailed information as to the movement of officers within the Region, amongst many other things. As the appellant said "everything got put in". [Transcript, p. 18.] It was submitted that access to the system "was an integral part of working in the Rosters Unit". [Appellant's submissions, point 41.] After initially having access to the e-mail system whilst at Southport, the appellant's access was withdrawn by Mr Strong. On the occasion he did have access, the appellant reported that:

"It took sort of that long and I got that frustrated took me till somewhere I think early March to get it put on and then that was okay and it was good, I could sit there and see these things coming in, you know. All the OICs that I knew, all the information come in, and I thought, 'It's good. I can start looking. Can see what Tash Berg's done.' So that was nice.". [Transcript, p. 20, lines 32-40.]

The appellant states eventually that access to the system was withdrawn by Mr Strong. He says that the reason given by Mr Strong was firstly that "you didn't ask permission to have it put on so I've cut it off" and secondly, that he should take more responsibility and confer with Ms Berg. [Transcript, p. 22.] The appellant said he had explained to Mr Strong that, being at work only on a part-time basis, it would be difficult for him to know what was going on if he had to sit behind Ms Berg and look at her computer as was suggested by Mr Strong. He also raised the situation where Ms Berg was absent from the office. He would be unable to log into any other computer. The appellant said that when he explained this to Mr Strong, the response forthcoming was "Not my problem". [Transcript, p. 23, line 15.] In re-examination, Mr Strong claimed that his decision to cut off e-mail access to the appellant was based upon his belief that the appellant and Ms Berg should communicate more and that the appellant should take more responsibility. The background to the ceasing of the e-mail system appears to be as follows. The appellant went to see Mr Strong about an unrelated issue. The appellant's evidence is that he had a fairly difficult discussion with Mr Strong about the unrelated matter and then at the end of it, Mr Strong advised him that his e-mail access had been removed. I have been unable to accept Mr Strong's rationale of events. From my assessment of the evidence around this point, the action of Mr Strong in removing the e-mail access was unreasonable, and in fact an intemperate, spur-of-the-moment act. In preparing the appellant to rehabilitate himself back into his position, obstacles, such as this, were put in his way by management. Mr Strong's evidence around this point is questionable. Ms Berg was not present in the office on all occasions, so the opportunity for the appellant to discuss issues with her and to observe what was on her computer was limited.

56 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 The withholding of e-mail access to the appellant was unreasonable management action. The evidence shows that the information contained within the e-mail system was significant in terms of the appellant's position, and to suggest that he sit behind Ms Berg and take in what he could by looking over her shoulder was both demeaning and unreasonable. Further, the manner in which the appellant was advised by Mr Strong that the access would be removed was demoralising and belittling for someone in his position. This is a case of unreasonable management being taken in an unreasonable manner. The chair issue The appellant required a special chair for use during his work to "give support to the back of my knee". [Transcript, p. 14, line 18.] The whole approach to management's regarding the issue of the chair was "unreasonable". Upon the first day of the allocation of the chair, the appellant was told by Mr Strong that this was "his chair". [Transcript, p. 20.] However, on the next day at work, the chair was missing. The appellant notified Mr Strong who responded by saying "They've taken it. Someone's taken it.". [Transcript, p. 20, line 56.] The appellant asked Mr Strong if this was going to reoccur and he advised him that it would not reoccur. Mr Strong's personal assistant put a sign on the chair advising all that it was the appellant's chair. On the next day at work the chair was again missing. Upon yet again advising Mr Strong, the appellant claims that Mr Strong said words to the effect: "Look, there's another guy up there that likes that chair in Comms.". [Transcript, p. 21, lines 15-16.] The appellant asked Mr Strong if the other person needed the chair for medical reasons. It is alleged that Mr Strong stated that there was no medical need for the chair, but that the appellant would now have to share the chair with the other person. When the appellant advised Mr Strong that the rehabilitation officer had advised him that if he could not acquire an appropriate chair at the workplace, then one would be purchased, he states that Mr Strong responded with "No. I'm just not getting into it now, Brad. You're going to share it with him and that's it.". [Transcript, p. 21, lines 22-24.] When the appellant found himself without the chair, he would have to walk for about 10 minutes to another area to drag back his chair. I accept that this was a physically painful and embarrassing exercise for him. I have accepted the appellant's claim that, given the strict requirements from his orthopaedic surgeon and his occupational therapist that he required a specific type of chair, the lack of assistance and general disregard for the appellant's requests by Mr Strong contributed to his de-compensation. The requirement for a particular chair was one made by his occupational therapist. Management's response to this requirement was unreasonable in all facets. This is a case of unreasonable management action. Issues identified by the appellant as "blemishes" This appeal is by way of a hearing de novo. The appellant has identified the issues which he says have "arisen out of, or in the course of, employment" (s. 32(1) of the Act). QAS has identified other matters which the appellant describes as "repetitive blemishes" joined by subject matter, time and personality. [See Prizeman (supra).] As such, these should be viewed in a global sense by the Commission "where such blemishes form management action". [Appellant's submissions, point 50.] These issues are:

"− The work-related stressors relate to having to return to the previous work role in which he had already been injured. − A sense that he was not wanted in the workplace and was being encouraged to resign. − Feeling that work colleagues were not trusting him. − Feeling he was being scrutinised in the workplace. − No re-training or re-orientation to the new work environment, despite almost two years since having last done this

job. − Having to search for his special chair everyday.


− Transport difficulties requiring him to wait sometimes lengthy periods each day for a pre-arranged lift. − Feeling marginalised and isolated. − Having his email access withdrawn when it is an essential component to do the job properly. − Being told that he had to sit with and use a work colleague's email site. − Many perceived deliberate inconveniences encountered on a daily basis.". [Exhibit 10, p. 3.]

The issues identified above (extracting the appellant's nominated stressors) are in my view the type of "blemishes" referred to by Hall P in Delaney (supra) and are joined by "subject matter, time and personality in a discordant workplace housing, to the knowledge of management, a worker who had decompensated once before in the face of workplace stress.". Further to this, I have accepted that the interactions between the appellant and Ms Berg do not represent "management action". Also, the appellant states:

"..... that, under this heading and having regard to the evidence of the Appellant, the incidents either did not involve management action or, if they did, the reasonableness or otherwise of such action falls to be determined on a global basis in accordance with the test posited by President Hall in Delaney.". [Appellant's submissions, point 53.]

In my view, omissions or actions of co-workers were not "management action". [Transcript, p. 61, lines 12-21.] Conclusion I have accepted the appellant's submissions that the facts of and evidence given in this case more properly require a "global assessment". See Delaney (supra) where Hall P states:

"The critical point is that there were repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing, to the knowledge of management, a worker who had decompensated once before in the face of workplace stress. In my view, the Appellant was entitled to a much more 'global' evaluation of the actions in which the management team had engaged.".

In this case, given the Legislation's history, the appellant has not started "at the other end, [to] eliminate all work related causes which might be characterised as reasonable management action reasonably taken and inquire whether any remaining causes might be characterised as significant causes of the injury.". [See Delaney (supra).] Within that vein, commentary upon the "history of the legislation" (i.e. s. 34(5) of the Act) was given by Hall P in McArthur as follows:

"If there were any doubt that s. 34(5) was about balancing of competing public interests, it is removed by the only relevant extrinsic material, viz. the Explanatory Note to the Bill which (first) introduced the subsection:

'The exclusion criteria from the definition of injury ... for psychiatric or psychological conditions have been strengthened in response to an increasing number of claims where remedial action regarding the worker's poor performance (one example of reasonable management action) was the stimulus for the claim.'.".

In this case, it is not contested that the applicant is a "worker" (s. 11 of the Act) who has suffered an "injury" (s. 32 of the Act). It is agreed that the "injury" is a "psychiatric or psychological disorder". The "injury" has arisen "out of, or in the course of, employment" and it is accepted that "employment is a significant contributing factor to the injury". The real question to be determined is whether the action taken by management was "reasonable management action taken in a reasonable way". With regard to the appellant's "injury", I have taken into account the views expressed by the medical specialists who mention the appellant's general propensity to mistrust others' motives. Notwithstanding that, the facts of the events as outlined in the evidence before the Commission (and detailed in this decision) show that the appellant was subject to unreasonable management action taken in an unreasonable way. The "facts" around the transport issue, the e-mail system and the chair issue speak for themselves. It was not a case of the appellant mistrusting others' motives, but a case of factual scenarios of bad management action not of the appellant's makings. Section 32(5) of the Act is an exclusionary provision which states:


"(5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.".

With regard to the transport issue, upon consideration of what QAS described as the appellant's apparent concession during cross-examination that QAS had accommodated him in a reasonable manner, a review of the transcript itself puts the proposition into perspective:

MR McLEAN-WILLIAMS: Let's go back to transport, all right. Wayne Tester was provided to act as your - effectively as your chauffeur to take to and from work each day. All right. The QAS had bent over to accommodate your physical restriction to avoid the need for you to drive a motor vehicle by providing someone else to drive you whilst you were being paid to work?

MR GILLAM: Yes.

MR McLEAN-WILLIAMS: That's quite reasonable, isn't it?

MR GILLAM: Yes. [Transcript, p. 72, lines 2-9.]

All that evidence shows is that QAS had proffered a scenario which, on its face, appeared to be reasonable, but the reality was that the plan was never reasonable and certainly not enacted in a reasonable manner. When the transportation system proposed was clearly not working, QAS, through Messrs Green and Strong, provided little to no support to the appellant. Rather, management sought to "fob-off" the appellant often leaving him awaiting transport to work for extended periods, or to his own resources to get home from work. The transport proposal was never properly thought out by management. It appeared that a somewhat loose arrangement with an "unreliable" facilitator, in the case of Mr Tester, was the best on offer for the appellant. This was unreasonable management action. QAS knew the dilemma faced by the appellant. He was unable to attend his workplace unaided. The situation as it unfolded led to a state of frustration and anxiety being experienced by the appellant. The barring of the appellant from the e-mail system did not represent "reasonable management action taken in a reasonable way". The appellant is a senior employee of QAS. He was being rehabilitated back into his work environment and duties. The reasons given by Mr Strong for prohibiting the appellant from utilising this service do not withstand scrutiny. The actions of Mr Strong in refusing the appellant access to this system were petty to say the least and especially so given the environment in which the refusal occurred. The suggestion that someone of the appellant's status should look over the shoulder of the person temporarily filling his position in order to gain information is belittling. The passing of information between Ms Berg and the appellant could have occurred in any number of ways without resorting to demeaning processes. The "chair issue" is further case of unreasonable management action being taken in an unreasonable way. QAS was aware that the appellant required a chair suitable to his needs. A chair was identified, however, when another worker wanted the chair, QAS simply advised the appellant that he had to share the chair with this person. This "other person" was not debilitated and had no special need for the chair other than he liked sitting on it. The appellant had a particular disability and, as a consequence of QAS's ambivalence towards his needs, he was required to go searching for the chair on many occasions. The "other person" did not work beside the appellant and the appellant often had to walk some distance to locate the chair. The appellant suffered further frustration, anxiety and pain in not having ready access to his chair. The appellant had previously de-compensated from workplace stress and this factor was known to QAS. [See Delaney (supra).] There were "repetitive blemishes joined by subject matter, time and personality". [See Prizeman (supra).] The clearest way to highlight these issues is to view the examples provided by the appellant:

"I was just a bit deflated again. Can I honestly tell you? I just got frustrated. As a senior person with the ambulance I would have expected that - I mean, that I'd - that they'd actually be trying to help me but it felt to me that I was hindered all the time and I had to just continually ask. No-one offered anything. I just basically sat at work and whatever I had to try and do I had to just keep asking people, but I'm down there in a new environment, never worked


with those particular people before, and just I've never - you know, like I wouldn't treat people like that. If I'd brought someone in that worked from somewhere else I'd be saying, 'Here's how you get in' - I mean, event to the point I had to ask for a pod key - they're little electronic things. ... Transcript page 21 - lines 28 - 38

in that period over the six weeks I'd just gave - every night I'd just be having nightmares and I was nervous, I'd just about lose bowel control. It was just crazy, crazy, because I'd run rosters and high management jobs for ten years just about and I'd never seen anything like it, you know. I took it as a bit of a stone wall, that everything I wanted to do someone put a wall up in front of me, or just simple things, you know? Like, everyone gets a locker when you go down to work. I'd have to ask for everything. I never even got round to asking for a locker to put my gear in because----- ... Transcript page 23 - lines 20 to 31

Pretty well, I mean, everything towards the end that day when I went off had just built and built and built. It was the issues about the chair and that and I just grabbed another one to sit on for a while. It was left home again that afternoon. Carey Strong just said to me 'I've cut your email off'. And I couldn't find it really - I didn't find his reasoning acceptable however he just shunned me off. 'Well, that is what you are going to do.', and things over that six weeks had just built up and built up and built up. ... Transcript page 27 lines 12 to 20

I think you said earlier about being off that last day, they were just the things that built up over time. I believed I was being treated like some second rate citizen. Honestly, for someone - I thought I had a pretty good work ethic at the ambulance. I have been there 27 years and to be - I, sort of, looked at it as being pigeon holed really. I mean, I tried to do my job but no-one really cared and no-one was really interested. It was a bit of a blame game [indistinct] to get to work and go home. ... Transcript page 29 lines 36 to 44

That I didn't get encouragement. Like, I go to work. Tash Berg rarely speaks to me. She doesn't help me, no-one helps me, and that's how I felt. I mean, that's just the process. Now, I can only deal with that in my own head how----- ... Transcript page 55 lines 45 to 49

I mean, it was a few things, you know. As a senior person in the organisation I would expect that I'd be treated a little bit better, but, however, one, I've got to ask for everything all the time. I mean, these are hard to describe because----- Mmm?----- there's - the way they've written them up, they're all over the place. I mean, it's a whole host of things.

All right?-- You know, she says - has cheap remarks at me, doesn't talk to me. Cary Strong says one thing, she says the other thing. ... Transcript page 55 line 54 to page 56 line 6.". [Appellant's submissions, point 21.]

I have accepted that the events so described by the appellant "did not each act upon him in a discrete way, but combined to have an overall effect on his psychological health.". [Appellant's submissions, point 21.] Along with Mr Strong's evidence, I have found that the evidence of Ms Berg to be unimpressive. When Ms Berg had found that the appellant had access to the e-mail system, she stated that she had told Mr Strong "... that it had come to my attention that Brad had been placed on it, and I asked him whether he had put him on the roster system.". [Transcript, p. 173, lines 26-28.] Counsel for the appellant asked Ms Berg whether she thought that the appellant should have asked Mr Strong beforehand if he could have been on the system. Ms Berg responded by saying "Well, that's the procedure.". [Transcript, p. 173, line 34.] While Ms Berg's view may have been technically correct, it is an odd attitude to hold when she was merely acting in the appellant's position and specifically when he was being rehabilitated back into that very position. The appellant is a senior QAS employee. Ms Berg believed that the appellant had to "be ready" to be able to see the e-mails that came in. [Transcript, p. 173.] Further, Ms Berg believed that the appellant would have been "confused" if he had been able to get a better look at the roster system. In my view, Ms Berg's actions were patronising to and dismissive of the appellant and she presented as an employee who was more than aggravated at having the appellant back in the workplace. Within that context, Mr Strong made reference to the strained relationship between the appellant and Ms Berg. [Transcript, p. 126.]

60 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 In my view, there is sufficient evidence before the Commission to show that the environment in which the appellant worked was extremely unpleasant for him. The appellant was entitled to be treated fairly and reasonably at all times during his rehabilitation back into the workforce and into his substantive position. Rather than that, he was treated by management dismissively, unfairly and unreasonably on a persistent basis. Within this context, the actions taken by management were unreasonable management actions taken in an unreasonable way. QAS sees the evidence in this case sitting squarely within the ambit of the decisions of the Industrial Court of Queensland in McArthur (supra) and/or Prizeman (supra). Prizeman (supra) has been considered, where appropriate in this case. I have not accepted that proposition however, as it relates to the decision in McArthur (supra). The facts of this case do not put it in the category of case considered by the Industrial Court of Queensland in McArthur (supra). In my view, also the decision in McArthur (supra) must be viewed within the correct context. Q-COMP's approach to McArthur (supra) is too restrictive and does not take into account the variety of factual situations which arise in these types of cases. Given the findings I have made in this matter, there is no need to explore the decision of McArthur (supra) in any more detail. I understand Q-COMP's position with regard to McArthur (supra) is to be ventilated before the Industrial Court of Queensland in the near future. Upon a global assessment of the application, I am satisfied that the injury suffered by the appellant is not removed from the definition of injury in s. 32 of the Act. I uphold the appeal and set aside the Q-COMP decision dated 4 April 2007 and determine that the appellant's claim for compensation is one for acceptance. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2007 3, 4, 5 September

11, 31 October (Written submissions) Released: 25 January 2008

Appearances: Mr B. Wessling-Smith, Counsel, instructed by Mr J. Monro and Mr C.Hall of Hall Payne Lawyers, for the appellant. Mr A. McLean-Williams, Counsel, instructed by Ms L. Booth of Q-COMP, for the respondent.

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Industrial Relations Act 1999 - s. 74 - application for reinstatement

Queensland Independent Education Union of Employees (for Warren Butler) AND The Presbyterian and Methodist Schools Association (TD/2007/6)

COMMISSIONER ASBURY 24 December 2007

DECISION

1. Overview On 10 January 2007 an application under s. 74 of the Industrial Relations Act 1999 (the Act) was filed by the Queensland Independent Education Union of Employees (QIEU) on behalf of Mr Warren Butler. The application states that the respondent is the Brisbane Boys' College, Kensington Terrace, Toowong. The application alleges that Mr Butler had been dismissed from his position as Head of Science Department, a Position of Added Responsibility, and seeks reinstatement of Mr Butler to that position. At the first mention of the matter, the application was amended to reflect the fact that the proper respondent is the Presbyterian and Methodist Schools Association (PMSA). In response to the application the PMSA contended that:

1. it is a constitutional corporation within the meaning of s. 51(xx) of the Constitution and is accordingly an employer for the purposes of the Workplace Relations Act 1996 (Cth);

2. as the respondent is a constitutional corporation the Workplace Relations Act 1996 is intended to apply to the exclusion of a State industrial law such as the Industrial Relations Act 1999 (Qld) in relation to an employer; and


3. there has been no termination of Mr Butler's employment at the initiative of the employer. It was contended by QIEU on behalf of Mr Butler that:

1. when the councillors of the Methodist Schools Association (an unincorporated association) were declared in 1918 to be a body corporate by the name and style of PMSA the unincorporated association continued to exist and is currently in existence;

2. the PMSA upon being constituted as a body corporate was authorised and rendered capable of taking property to and for specific purposes;

3. given the scope of those purposes it is probably the case that the body corporate has no power to employ persons and that the real employer is the unincorporated association.

4. it is not clear from Mr Butler's letter of appointment whether the continuing unincorporated association of the PMSA was the employer of Mr Butler;

5. in the alternative, if the PMSA was Mr Butler's employer then it is not a trading corporation within the meaning of s. 51(xx) of the Constitution; and

6. the demotion of Mr Butler from his position as Head of Science was a fundamental change to his contract of employment so that it was brought to an end, constituting a termination of his employment at the initiative of the employer.

Given that PMSA raised the jurisdictional points, it had carriage of the current proceedings and QIEU responded to PMSA's arguments. 2. Jurisdictional Points raised by PMSA PMSA submits that by Schedule 1 to the application for reinstatement it is pleaded that the date of the termination of Mr Butler's employment was 31 December 2006. The relevant provisions of the Workplace Relations Act 1996 (Cth) were introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) which commenced on 27 March 2006. By operation of s. 16 of the Workplace Relations Act 1996 (Cth), chapter 3 of the Industrial Relations Act 1999 (Qld), forming part of an excluded State industrial law, has no application in respect to any employee employed by a constitutional corporation. PMSA was formed within the limits of the Commonwealth and was established under letters patent issued pursuant to the Religious Educational and Charitable Institutions Act 1861. A corporation will be a trading corporation within the meaning of s. 51(xx) of the Constitution if trading is a substantial or significant part of its corporate activities: R v Federal Court of Australia; Ex parte National Football League (1979) 143 CLR 190 at 208 per Barwick CJ; 233 per Mason J, Jacobs J agreeing at 237 and 239; Quickenden v O'Connor (2001) 109 FCR 243 at 259 per Black CJ and French J. The trading activities may be a substantial part of the overall activities of the corporation notwithstanding that trading is not its primary purpose: Quickenden v O'Connor (supra) per Black CJ and French J at 261 and per Carr J at 272. It was contended that PMSA's core activities - the provision of educational services for fees would themselves be trading activities such as to make the corporation a trading corporation. The activities conducted by PMSA other than the provision of educational services which it performs for fee or reward, are also trading activities which are substantial in the sense of not being trivial, and are sufficient to render the PMSA a trading corporation. Given the percentage of operating revenue derived from trading activities and the sums involved, it is irresistible that PMSA is a trading corporation, consistent with the decision of President Hall in EDUCANG Ltd v Queensland Industrial Relations Commission (2006) 182 QGIG 491; 154 IR 436 at 455 (the EDUCANG Case). The evidence of Mr Michael James Willis, Executive Manager of the PMSA in relation to the status of the PMSA as a constitutional corporation was uncontested. According to Mr Willis, the PMSA was established as a body corporate under Letters Patent issued in 1918, pursuant to the Religious Educational and Charitable Institutions Act 1861. The PMSA is administered under its Constitution and By-Laws. By its constitution the PMSA resolved to form a Council to govern its business and to deliver its objectives. The Constitution of the PMSA (Appendix A2 to Mr Willis's statement - Exhibit 1) at article 2, provides that it is formed to establish and carry on schools where pupils may obtain an education which is in accordance with sound educational principles, and which is consistent with basic Christian doctrines. The By-Laws (Appendix A3 to Mr Willis's statement - Exhibit 1) provide for the Council to exercise effective control of its schools, businesses and other ventures through Standing Committees of its Council including Council for each school in which it has an interest (Refer 5.1). School Council may engage the employees it considers necessary to perform its functions (refer 8.6). The PMSA is the holder of and carries on business under a number of registered business names including:

• Brisbane Boys' College, Toowong;


• Clayfield College, Clayfield; • Clayfield International College, Clayfield; • Somerville House, South Brisbane; • Sunshine Coast Grammar School, Forest Glen; and • New Leaf Early Learning Centre, Forest Glen.

The PMSA also holds numerous business names and associated Australian Business Numbers with respect to various activities of its schools such as tuckshops, clothing shops, building funds, libraries and Parents and Friends Associations. The schools operated by PMSA are sizeable - for example Brisbane Boys' College, Toowong provides education for approximately 1,549 boys from preparatory year to year 12, including 134 boarding students and approximately 33 full fee paying overseas students. The School is accredited by the Non-State Schools Accreditation Board to provide pre-school, primary and secondary education. Brisbane Boys' College employs six full-time marketing staff. The School conducts sporting and cultural events which generate significant revenues. Financial details provided in Mr Willis' evidence demonstrate that in 2005 and 2006 fees paid directly by parents for educational services provided to both domestic and international students comprised approximately 60% of the PMSA's total net income. In the same period, Government recurrent grants comprised some 28% of total net income. Government Capital Grants accounted for 0.4% of total net income in 2005 and 1.9% in 2006. Other income came from boarding fees (approximately 5%); levies and charges (approximately 2.5%); donations (approximately 2%) and sundry income (2.6%) from tuckshops, uniform shops, bookshops and related school activities). PMSA expends significant cash on an annual basis on the purchase of land and construction of new buildings and developments - in 2006 $13,991,000 and in 2005 $11,517,000 - and loans were drawn to cover a proportion of this expenditure. In relation to the alleged termination of Mr Butler's employment PMSA contended that on Mr Butler's own evidence it was apparent that there had not been a termination of employment at the initiative of the employer. Ms Ferguson, the Human Resources Manager at Brisbane Boys' College, said in her evidence that at all times during his employment Mr Butler had been employed by PMSA. Mr Butler was engaged pursuant to the Presbyterian and Methodist Schools Association Certified Agreement 2003 (the Agreement) and the Presbyterian and Methodist Schools Association Positions of Added Responsibility Industrial Agreement which is a Schedule to the Teachers' Award - Non -Governmental Schools 2003. Ms Ferguson said that she was aware that issues related to Mr Butler's work performance had been raised with him at a meeting with Mr McDonald and Mr Dean on 30 November 2006. Ms Ferguson confirmed that a letter dated 1 December 2006 setting out details of that meeting was forwarded to Mr Butler on 1 December. According to Ms Ferguson it had been intended to give the letter to Mr Butler in the workplace and it was forwarded to a residential address when he was not at work on that day. On 3 December Ms Ferguson received a medical certificate indicating that Mr Butler was ill and would be unfit for work from 1 December until 8 December 2006. Ms Ferguson also gave evidence of the correspondence between Mr Butler and Mr McDonald in relation to the meeting of 30 November 2006. On 22 January 2007 the College ceased paying Mr Butler the Head of Department Allowance under the Award after the letter advising him that the Science Department would be co-ordinated by Mr O'Brien and Mr Noy. On 24 January Mr Butler emailed a medical certificate indicating that he would be unfit for work from 23 January 2007 until 3 February 2007. Thereafter Ms Ferguson received a series of workers' compensation medical certificates indicating that Mr Butler was not fit for work up until 1 April 2007. Mr Butler was paid all remaining annual leave and sick leave entitlements in the pay period commencing 2 March 2007 and has not been paid by PMSA since that date. On 14 April 2007 Ms Ferguson and the payroll officer completed a Centrelink Employment Verification Report (Sickness Allowance). Under cross-examination, Ms Ferguson said that the payment of leave entitlements in the pay period commencing 2 March 2007 was made because Mr Butler has exhausted his sick leave and it was College policy that he revert to annual leave. Ms Ferguson rejected the proposition that this payment was made because the College was rid of Mr Butler and was simply "squaring the books". Ms Ferguson said that as Human Resource Manager she is involved in all decisions to terminate staff and drafts relevant correspondence. There had been no discussion between Ms Ferguson and Mr McDonald in relation to the termination of Mr Butler's employment and at the point this matter was heard by the Commission, Mr Butler was on unpaid sick leave. Mr Butler's teaching timetable was being completed by a casual employee who was filling in for Mr Butler until he returned to work. Mr Butler's advice on when he would return to work was being awaited. In response to the contention of QIEU that PMSA was not the employer of Mr Butler, Mr Horneman-Wren made the following submissions. QIEU's argument was essentially that when letters patent were issued, there remained an unincorporated association and there was not enough evidence to satisfy the Commission that it is the corporation and not


the unincorporated association that is the employer. In effect, QIEU's argument is that because there was once an unincorporated association, and there still is such an association, the employer may be the members of the association. While this analysis might be technically correct, there was no evidence as to who the members of the unincorporated association are and it remained an unknown body of members. It was submitted for PMSA that the legal implication of that argument should be looked at. With reference to a chain of legislation including the Business Names Act 1962; the Religious Educational and Charitable Institutions Act 1861 (as amended from time to time) and the Associations Incorporation Act 1981, it was submitted that the Commission would be satisfied that the corporate body, PMSA has always and at all times since 1918 been charged with and conducted the affairs of its various operations. Those affairs include the employment of teachers and entering into a range of industrial instruments with QIEU to govern the terms and conditions of such employment. In relation to Re McAuliffe, Deceased [1944] St R Qd 167, it was submitted that while the decision made it clear that when officers of a committee of management are incorporated, the association does not disappear. However, in that case there was a bequest, and the finding was no more than that Mr McAuliffe did not intend to leave his money to the committee but rather to the association constituted by the members. Similarly in Re Robert Travis, Deceased, George Mant & Anor v The Attorney-General & Ors [1911] St R Qd 216, it was held that when letters patent issued under the Religious Educational and Charitable Institutions Act 1861 what was incorporated was the church synod or governing body, rather than the church itself and its members. With reference to cases about liabilities under contracts involving unincorporated entities, Mr Horneman-Wren referred to a line of authority to the effect that contracts such as those for the employment of persons are made with those in such associations who accept office on an executive council or committee. It was contended that if QIEU's argument was accepted in the present case, every employee of PMSA, at the point their contract of employment was entered into, would have to determine the identity of the councillors of the unincorporated association. This problem would be avoided if the corporation is the employer because there is no distinction between the management committee and the corporation, and anyone who holds these offices from time to time, holds them as a body corporate in perpetual succession until such time as the letters patent are repealed. While QIEU's submission was correct to the point that it says the law recognises that the incorporation of a committee does not remove the underlying association, the submission did not go the next step and say that under the law, that this nebulous body could never have entered into a contract. The only body that could enter into a contract is the committee, which is now forever more a corporation. This was apparent from the relevant letters patent (Exhibit A1 to the statement of Mr Willis - Exhibit 1) which declared that councillors of the PMSA, and their successors forever holding offices shall be a body corporate by the name and style of the PMSA. In other words, persons holding the offices of councillors of PMSA shall be for all time a body corporate. Under the law, regardless of the continued existence of the unincorporated body, there could never have been a contract with anyone other than the committee, and for all time the councillors holding office as members of the committee are a corporation. It is also apparent from the by-laws of the PMSA that the councillors are the only persons with authority to govern the organisation including entering into contracts. This was apparent from documents before the Commission including the enrolment contract for students of the Brisbane Boys' College, which made it clear that such contracts are entered into by the Presbyterian and Methodist Schools Association trading as Brisbane Boys' College. In relation to the argument that PMSA is not a corporation within the meaning of s. 51(xx) of the Constitution, extensive reference was made to the decision of President Hall in the EDUCANG Case. It was submitted that the objects of PMSA appearing in its constitution and by-laws were directly comparable to those considered in the EDUCANG Case. It was also contended that President Hall had noted that it may be possible to make an argument, on the basis of the decision in E v Australian Red Cross Society and Others (1991) 27 FCR 310, that large sums received by EDUCANG Ltd from government sources in return for the provision of educational services which might otherwise have been an impost on the government, are to be disregarded in determining whether or not EDUCANG Ltd is a trading corporation. President Hall went on to note that counsel for EDUCANG had argued that EDUCANG is a trading corporation even if those sums are disregarded. Mr Horneman-Wren argued the submissions of QIEU in the present case, to the effect that the Industrial Court of Queensland had not expressly determined in the EDUCANG Case the question of whether the provision of educational services for reward amounts to trading, was not correct. In the EDUCANG Case, President Hall noted that the percentage of revenue derived from government grants was very much less than the percentage derived from trading activities and went on to state:


"So high is the percentage of operating revenue derived from trading activities, and so large are the sums involved, that this Court could not resist the conclusion that EDUCANG Ltd is a trading corporation without failing to discharge its duty to accept and follow decisions of the High Court of Australia.".

Mr Horneman-Wren submitted that when these two sentences were analysed, the trading activities to which President Hall referred, can only be the provision of education services. This is because the financial information before the Court in the EDUCANG Case made it clear that other than income from recurrent grants the most significant income source was tuition fees. Absent tuition fees, the statement made by President Hall would not have been correct because combined income from sources other than tuition fees which could be said to be trading activities, did not exceed income from recurrent grants. It was contended that contrary to the submission on behalf of QIEU, President Hall did hold in the EDUCANG Case that the provision of educational services for a fee, by a private corporation, was trading activities. In the present case, it was clear from Mr Willis' affidavit that tuition fees constitute 59.1% of total income compared to recurrent government grants constituting 29.4%. While there were other forms of income such as those from investments, on the analysis in the EDUCANG Case, the Commission need look no further to be satisfied of the trading activity. It was also submitted that the Commission as presently constituted is bound, on the basis of that decision, to find that in the present case, PMSA is a trading corporation. In relation to the argument of QIEU that what is traded by PMSA is a place in a school rather than educational services, Mr Horneman-Wren said that it is a difficult distinction to understand, but even if the contention was correct, PMSA would be a trading corporation in respect of that activity. In relation to the contention of PMSA that there had been no dismissal, it was submitted the Position of Added Responsibility, Head of Science, was a role, and in order to hold that role one must be employed as a teacher. This is apparent from Schedule 7 to the Teachers' Award - Non-Governmental Schools 2003, which is the Presbyterian and Methodist Schools Association Positions of Added Responsibility Industrial Agreement. Schedule 7 applies to teachers appointed to promotional positions, and makes it clear that such appointments are at the discretion of the headmaster acting for and on behalf of the PMSA. That Schedule also states at 7.7, that teachers appointed to promotional positions retain such positions except where the position is abolished, the teacher's performance has been found wanting or deficient by a formal appraisal process or where after three years the position has been declared vacant and the teacher fails to be reappointed to the position. It was submitted that each of those matters contemplates that the teacher will not hold the role in perpetuity and that it can be removed. The QIEU's argument in the present case means that if the position held by Mr Butler had merely been declared vacant, then Mr Butler would have ceased to be employed by the PMSA. The only substantive position to which he was appointed and occupied is gone, he does not have an underlying position as a teacher and is out. QIEU's argument would also lead to a situation where there is no obligation on the part of PMSA to find an alternative position for a teacher removed from such a role. PMSA's position is that this is not the case. Mr Butler is still employed as is any teacher no longer in a position of added responsibility. 4. Response of QIEU to PMSA's Jurisdictional Arguments In relation to the argument that the unincorporated association in existence at the time the PMSA was incorporated, Mr Merrell for QIEU contended that it was apparent on the face of the letters patent, that prior to the declaration made by virtue of those letters patent, that there was an unincorporated association which must have had rules under which the councillors were appointed. McAuliffe's Case (supra) involved a situation where at the time a will was made there was an unincorporated association. In between the execution of the will and the testator's death, that association became incorporated pursuant to letters patent issued under the Religious Educational and Charitable Institutions Act 1861. The question which arose in that case was whether the unincorporated association or the body corporate had the benefit of the gift under the will. The Court held that the benefit of the gift was to the unincorporated association. Significantly the court held that the unincorporated association had not ceased to exist when its board of management was incorporated. Mr Merrell submitted that in the present case, on the incorporation of the PMSA, the original unincorporated association remains in existence and the successors of the councillors who became incorporated have continued to operate the schools and employ staff. Mr Merrell said that the inference was open that the original councillors and their successors had continued to constitute the unincorporated association in tandem with the body corporate. According to Mr Merrell's submission, the two associations must have different functions to perform. The function to be performed by the body corporate, derives its colour and breadth from the Religious Educational and Charitable Institutions Act 1861. Section 1 of that Act in its original form states in effect, that such person or persons shall by the


name of the corporation, have perpetual succession in the common seal and be capable of receiving, purchasing, acquiring and possessing, for the uses of the corporation, and of the religious or secular institution or body or association of persons. That section goes on to provide that the corporation can deal with a variety of forms of property provided that such dealing is not contrary to the gift, grant or dedication of the original donor or of the constitution of such body or association and that the moneys so raised are applied to the same uses and purposes. Mr Merrell submitted that the purpose for which individuals could be incorporated pursuant to the Religious Educational and Charitable Institutions Act 1861 is for the facilitation and management of property. This limited purpose was also dealt with in the case of Re Robert Travis (supra) where it was held that a corporation constituted under the Religious Educational and Charitable Institutions Act 1861 is authorised and rendered capable of taking property to and for the purposes of the said corporation and that property might be impressed with a specific trust in favour of one of the uses or purposes as the testator or other benefactor might direct. According to Mr Merrell's submission, the important part of that decision is the statement by Justice Lukin (at 230) that the Religious Educational and Charitable Institutions Act 1861 is designed to facilitate the incorporation of religious and charitable institutions and that it is desirable to facilitate the transmission and management of estates, properties and the like granted or dedicated to religious, educational and charitable objects. Thus the purposes of a body corporate formed under that Act, such as PMSA, is to hold property for the purposes of the corporation and the religious institution, not to be an employer. It was further submitted by Mr Merrell that the terms of amendments to the Religious Educational and Charitable Institutions Act 1861, culminating in the Associations Incorporation Act 1981 referred to holding and dealing with property and made no reference to activities such as employing teachers or running schools. The only reference to employment was in relation to brokers dealing with property (see Act Number 31 of 1967 which amended the Religious Educational and Charitable Institutions Act prior to its repeal by the Associations Incorporation Act 1981. Mr Merrell submitted that if his argument on this point was correct, then QIEU had brought the application in the present proceedings against the wrong respondent. Prior to an amendment to the application being made by QIEU, the jurisdictional arguments were raised by PMSA. Mr Merrell also submitted that there is an evidentiary burden on the employer when moving the Commission to deal with an unfair dismissal application on the basis that the Commission lacks jurisdiction. In this case PMSA should establish the real employer and if it is a body corporate, whether it is a trading corporation. It was further contended that if PMSA is the employer, then it is not a trading corporation. In this regard it was submitted that the Industrial Court in the EDUCANG Case (supra) did not expressly determine the question of whether the provision of educational services for reward amounts to trading. A substantial amount of the PMSA's income comes from Commonwealth and State recurrent grants, and the services it provides are of a public welfare nature, namely the provision of education which would otherwise be provided by the State of Queensland. It is not appropriate to describe the gratuitous provision of a public welfare service, substantially at government expense, as the conduct of trade: the Red Cross Case (supra). Further, the activity of the schools is the provision of education at government expense, and this is not a trading activity. As such, the trading activities of the PMSA are not substantial and do not form a sufficiently significant proportion of its trading activities or are insubstantial. Mr Merrell submitted that there was no doubt from Mr Willis' affidavit that a substantial amount of the PMSA's revenue - some 29% in the 2006 year - came from government grants. It is trite to say that the services provided by PMSA are of a public welfare nature, because the provision of those services would otherwise be left to the State of Queensland. Viewed in light of the comments made by Justice Wilcox in the Red Cross Case (supra) it is not correct to categorise a public welfare activity provided at substantially government expense, as trade. Mr Merrell also submitted that if the Commission accepted the parallels between the present case and the Red Cross Case (supra) then deducting the relevant fees and the government recurrent grants from the revenue earning activities of PMSA results in a finding that trade is not a substantial corporate activity. It was also submitted by Mr Merrell that the provision of education is the performance of a statutory duty and that in Quickenden v O'Connor (2001) 109 FCR 243 Black CJ and French J had stated that it is questionable whether the provision of educational services within the statutory framework of the Higher Education Funding Act 1998 (Cth) amounted to trading where services were provided under a statutory obligation to fix a fee determined by law, which placed a statutory liability on the student with respect to that fee: (2001) 109 FCR 243 at 261). In the present case there is a legislative scheme involved in that PMSA must meet statutory accreditation criteria set out in the Education (Accreditation of Non-State Schools) Regulation 2001 for the purposes of accreditation under the Education (Accreditation of Non-State Schools) Act 2001, and to that extent the services are provided pursuant to a statutory

66 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 obligation. These criteria include access to adequate financial resources for viable operation; a written statement or philosophy adopted by the school's governing body as a basis for its education program; a written educational program which must enable students to at least achieve standards at comparable to Queensland standards of learning; and a requirement for written processes about students with disabilities. Mr Merrell submitted that the accreditation of a non-State school under this Act involves or contemplates in effect, the school observing a statutory duty to provide a level of education and to provide facilities in accordance with standards set in the accreditation criteria. It is through the process of accreditation that this statutory duty arises and to that extent services provided by PMSA are pursuant to a statutory obligation. The performance of a statutory duty where fees are able to be charged may not constitute a trading activity: Mid Density Development Pty Ltd v Rockdale Municipal Council (2001) 109 FCR 243 at 261; Jazabas v Botany Council [2002] NSWSC 58 at [208]. These cases were said by Mr Merrell to stand as authority for the proposition that an organisation is performing a duty pursuant to statute notwithstanding that there is a fee for such a duty. Because the schools operated by PMSA are performing a statutory duty - notwithstanding the fees charged - it cannot be said that they engage in trade or commerce. As such the trading activities of PMSA are not substantial and do not form a sufficiently significant proportion of its trading activities. It was also contended by Mr Merrell that what is traded is not education, but a place in a school. Under the Education (General Provisions) Act 2006 a parent must ensure that a child of compulsory school age is enrolled in a State or a non-State school, and attends school or every school day for the educational program in which the child is enrolled. Parents may choose to enrol their children in either State or non-State schools. It was submitted that there are a variety of reasons why parents choose a particular school other than education services. Reference was made to the case of Plimer v Roberts (1997) 80 FCR 303 at 307 (The Plimer Case), where it was held that the delivery of a lecture or paper at a conference where the speaker is not paid, but understands that a fee will be charged by those who have organised the event, will not ordinarily be in trade or commerce. This, coupled with the nature of compulsory education in Queensland was said to mean that what is being traded by PMSA is a place in one of its schools, and that its trading activities are limited to the sale of a place. All other activities, including teaching, are educational and not trading activities, and as such, the trading activities of PMSA are not significant. Mr Butler gave evidence in relation to the question of whether there had been a termination of his employment at the initiative of the employer. That evidence was uncontested. Mr Butler was appointed to the position Head of Science at Brisbane Boys' College by letter dated 15 November 2001. Mr Butler also put into evidence a position description pertaining to this role. On the evening of 29 November 2006, Mr Butler received a telephone call from the College Events Co-ordinator, Ms Karen Martin, and was requested to attend a meeting with the Headmaster, Mr McDonald, at 9.00 a.m. the next day. Upon attending the meeting Mr Butler was told that Mr Dean would also be in attendance. A number of allegations were raised by Mr McDonald against Mr Butler, to which Mr Butler responded. Mr McDonald told Mr Butler that his superior Mr Dean and his subordinate Mr O'Brien had lost confidence in him as Head of Science. Mr McDonald told Mr Butler that his options were very limited and that he should seek employment elsewhere right now. Mr Butler put several scenarios to Mr McDonald which according to Mr Butler's notes included Mr Butler staying on as a teacher until he could find another job. Mr McDonald responded by saying that he was not in the habit of putting people out on the street, and Mr Butler could stay on as a teacher on a short-term basis until he found alternative work outside the College. Mr Butler then put the option of remaining as Head of Science until he could find another job and Mr McDonald said that he would not allow this to occur. There was a discussion about the support Mr McDonald would be prepared to offer Mr Butler in order to assist him to find another job. Mr Butler's handwritten notes of that meeting, said to have been prepared on 30 December and 1 November 2006, contain the following:

"Me - Graeme may I ask what you believe my options to be? A - Very limited. If I was you I would be looking elsewhere for a fresh start as soon as possible. I'd be applying now. Me - would you be prepared to allow me to step down as HOD Science and retain a teaching role at the College. A - I think so, I'm not in the habit of putting people on the street. Me - It may take a while to find an alternative position (Graeme - of course) so would you be prepared for me to stay as HOD Science until I find another position. A - No I wouldn't - the P[osition] A[dded] R[esponsibility] question needs to be resolved very soon/immediately.".


The next day Mr Butler visited his doctor, who diagnosed Mr Butler as having an extreme stress reaction. Mr Butler then went on sick leave. On 15 December Mr Butler received a letter dated 1 December 2006 which had initially been mailed to an old address at which Mr Butler no longer resided. The letter indicated that in Mr McDonald's view, Mr Butler had stated an intention at the meeting of 30 November 2006 to relinquish his position as Head of Science and remain at the College as a staff member while seeking an alternative position. Mr Butler responded to this letter by sending a letter dated 15 December 2006 stating:

"...Towards the close of the meeting I explored my future options with you, as you saw them, and presented you with several scenarios for comment. I confirm that you indicated that you would consider allowing me to stay on at the College as a teacher in the short term, if I would relinquish my position as Head of Science, but you would not allow me to continue as Head of Science until I found suitable alternative employment. I confirm that I agreed with your opinion about a fresh start elsewhere as I feel the way I have been treated this year by you leaves me no future at BBC. However, to the best of my recollection, the only undertaking I gave you at the meeting was to begin seeking out suitable employment opportunities and I indicated that I would apply as soon as one became available. At this point in time, however, I see no reason to relinquish my position as Head of Science and I recall no such agreement ever being made, or even considered, other than being identified as one of several possible scenarios.".

Mr McDonald responded by further letter dated 20 December 2006 confirming his understanding that Mr Butler had agreed to relinquish his role as Head of Science. The letter concludes with Mr McDonald accepting Mr Butler's agreement to do this and informing him that he would not be required to attend a meeting on 23 January 2007. It was also stated that Mr Butler's request to continue to be in charge of year ten science was still being considered. On 19 January 2007 Mr McDonald wrote to Mr Butler stating that he would continue in the role of science teacher on a teaching load of 25 periods and would be expected to be involved as a tutor and that the Science Department would be co-ordinated by Mr O'Brien and Mr Noy. In relation to this issue, Mr Spriggs submitted on behalf of QIEU that Schedule 7 of the Teachers' Award - Non-Governmental Schools 2003 deals with positions, rather than providing an allowance for higher duties. No weight can be placed on the use of the term "teacher" in that Schedule, as a person has to be a teacher in order to be employed in a school in relation to students. Mr Spriggs also referred to Mr Butler's letter of appointment (Attachment 1 to Mr Butler's statement of evidence - Exhibit 2) and the accompanying position description. It was submitted that this indicated that Mr Butler was appointed to a hierarchical position which existed within the structure of PMSA trading as Brisbane Boys' College. Mr Butler was not appointed to the position of teacher and then given an additional role. To take up the position Mr Butler moved from New South Wales where he was pursuing a career in education administration (refer Exhibit 2). Mr Butler took on the position at Brisbane Boys' College as part of his career progression. It was submitted that there may well be a different position in relation to a teacher already employed, who gains promotion to a position as head of a department. Mr Spriggs also pointed out that none of the circumstances in clause 7.7 of Schedule 7 applied to Mr Butler. In particular, Ms Ferguson's evidence made it clear that there was no formal process in place but simply a discussion about Mr Butler's work performance. As a result of this discussion, Mr Butler was offered a demotion to the position of teacher, which involved a significant penalty in the order of $12,500 as prescribed in the current Certified Agreement. This demotion would also have involved a significant change to the duties performed by Mr Butler, given the position description for Head of Science. In this regard, reference was made to the decision of Deputy President Bloomfield in Vodic v Leo Muller Motors where a sales manager was offered a position as a senior salesperson. While there was no financial disadvantage to the employee the Commission did find that there was some disadvantage in relation to status. It was held that the changes to the employment contract were so fundamental that they went to the very heart of the employment relationship and constituted a breach of the existing employment contract. As such, Mr Vodic was entitled to treat himself as discharged from any further performance of the contract. In the present case, Mr Butler had suffered both financial disadvantage and a reduction in status. It was apparent from Mr Butler's uncontested evidence, that it had been made clear that Mr McDonald would not allow him to remain as Head of Science. It was also apparent that Mr Butler was told by Mr McDonald that he had limited options and should be looking elsewhere for employment. Mr Spriggs submitted:

"Now if that does not constitute a dismissal, then I don't know what does. The employee was clearly told by the ultimate supervisor that he will not be allowed to continue in his current position, his current contract will not be allowed to continue.".

68 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 It was also submitted by Mr Spriggs that given the lack of attention to detail in the drafting of letters purporting to confirm Mr McDonald's version of the meeting of 30 November 2006, and the fact that they were drafted after the event, it could be envisaged that there was an attempt to put into place an employer position which was "wise in hindsight". The letter received by Mr Butler stated that it accepted Mr Butler's alleged decision to relinquish his role as Head of Science, and then went on to seek confirmation of this decision. The real question, according to Mr Spriggs, is why the employer would need the employee to confirm something in writing if it had already been unambiguously communicated. It should also be noted that the employer's version of events was immediately challenged by Mr Butler. When these factors were considered it is clear that there was a termination of Mr Butler's employment at the initiative of the employer. Mr Spriggs submitted that if the Commission was against this argument, then it should find that the employer had put Mr Butler in a position where he had no choice at all but to accept the demotion and that in effect this constituted a constructive dismissal. 5. Submissions of PMSA in Reply In reply to the QIEU submissions, Mr Horneman-Wren said that there was no evidence of a constructive dismissal. In relation to the submission about the construction of the Religious Educational and Charitable Institutions Act 1861 it was submitted that if PMSA engaging in employment contracts was ultra vires its powers as a corporation, then a remedy in respect of that lies in an application for the letters patent to be repealed on the basis that the corporation is no longer a corporation capable of existing for the purposes for which it was established. Such a challenge cannot be made in the present proceedings. In relation to the submission that the powers of the corporation should be read narrowly so that it has no powers other than to hold and deal with property, Mr Horneman-Wren submitted that this would mean that the corporation could hold property but may not be able to engage someone to mow the lawn associated with that property or to paint it. It is also the case that on the construction contended for by QIEU, that a body established for religious or educational purposes under the Act to hold property can own a church or a hall, but cannot engage a teacher to give religious education in the church. If that is done it is done by the holders of the office of the council or the committee of management in some unincorporated capacity. The extraordinary consequences of this submission were said to be that PMSA as a body corporate, with its total assets of some $143 million, cannot apply any of these assets to paying wages of members of QIEU. Further, the protection for those wages does not have the backing of the PMSA, but rather that backing is by way of the net assets of some 15 people who constituted the committee at the point that each employee was employed, if those people could be identified. In relation to the Red Cross Case (supra), Mr Horneman-Wren pointed to the facts that the respondent in that matter did not make any charge for the blood it supplied and did not trade in blood or blood supply activities. Further, the cost to the government for supply in the relevant year was $44.9 million as against $2 million of income generated by the respondent itself. In the Plimer Case (supra), no payment was made to Plimer for the lecture, in contrast with the present case where PMSA paid some $34 million in 2006 for tuition employee benefits. Finally, it was submitted that the contention that fees were paid for a place in a school was remarkable given the Act and Regulations relating to non-State schools and their accreditation. 6. Conclusions I am unable to accept the submission that the PMSA was not the employer of Mr Butler. While I accept that technically the unincorporated association may have continued in existence following the incorporation of PMSA in 1916, there is no basis for finding that it has any role in the operation of schools or the employment of staff in 2007. In particular, there is no evidence of its constitution or the identity of its members at the time Mr Butler was employed. On this issue I entirely accept the argument advanced on behalf of PMSA and I am of the view that to uphold QIEU's argument on this point would result in an extraordinary outcome. I am also of the view that it is not sufficient for an applicant to counter a jurisdictional objection to an unfair dismissal application by simply attempting to raise questions about whether that respondent is the proper respondent. Applicants in my view should be required to take reasonable steps to ascertain the proper respondent. Applicants should also take reasonable steps to ensure that their application is amended to include the proper respondent as soon as they become aware of any issue with the identity of the respondent. In the present case, the original application made by QIEU on behalf of Mr Butler nominated the Brisbane Boys' College as the respondent. That application was amended to include PMSA as the respondent with no objection taken by QIEU to the amendment. A party asserting that a particular entity should be found to be the proper respondent to an application should take reasonable steps to establish that this is the case. QIEU has not done this in the present case. There is no question that QIEU has the capacity and the resources to take such steps.


I am also unable to accept the argument that as a body corporate pursuant to the terms of the Religious Educational and Charitable Institutions Act 1861 and its successors, PMSA is empowered only to hold and deal with property. On this point I also entirely accept the argument on behalf of PMSA. In addition, I also note that all legislation from the Religious Educational and Charitable Institutions Act 1861 onwards, refers to holding and dealing with property for the purposes of the objects of corporations formed pursuant to that legislation. QIEU's argument on this point entirely overlooks the fact that bodies corporate of the kind covered by the Religious Educational and Charitable Institutions Act 1861 and its successors, have objects. The legislation does not purport to regulate these objects or to restrict them. The legislation does not purport to prevent such bodies corporate from holding or dealing with property in the furtherance of their objects. Rather the legislation ensures that property can be held and dealt with by such organisations for the purpose of furthering those objects. This is apparent from the terms of s. 1 of the original Religious Educational and Charitable Institutions Act 1861 which refers to corporations holding and dealing with property for their uses and in accordance with their constitutions. Similarly in Re Robert Travis (supra) reference is made to taking property to and for the purposes of the corporation. This is reinforced by the statement of Justice Lukin to the effect that the Act is designed to facilitate the incorporation of religious and charitable institutions to in turn facilitate the transmission of estates and properties granted or dedicated to the objects of such institutions. In my view the focus is on facilitating the holding of property for use to advance the objects of bodies corporate under the Act and its successors rather than restricting those bodies to simply holding and dealing with property. Clearly running schools and employing teachers to educate students, is incidental to the objects of PMSA which are to establish and carry on schools where pupils may obtain an education which is in accordance with sound educational principles and which is consistent with basic Christian doctrines. I can see no basis for finding that PMSA is restricted by the terms of Religious Educational and Charitable Institutions Act 1861 and its successors to holding and dealing with property but may not use the proceeds flowing from holding and dealing with property to further its objects. It is also apparent that the Religious Educational and Charitable Institutions Act 1861 and its successors is directed at ensuring that property received by bodies corporate through mechanisms such as donations or bequests, is used in accordance with any directions made by the donor or the testator. At the risk of stating the obvious, it is to be presumed that a donor or testator would have some familiarity with the objects of any corporate body to which the donation or bequest is made. There is no basis for finding that such property cannot be used in the furtherance of the objects of religious, educational and charitable institutions. In any event, the question of whether a body corporate is acting ultra vires its powers as a corporation, is not a matter that is within the jurisdiction of the Commission as presently constituted. In relation to the argument that PMSA is a corporation with the meaning of s. 51(xx) of the Constitution, the Commission as presently constituted is bound by the decision of President Hall in the EDUCANG Case (supra). Acceptance of QIEU's argument in relation to this issue requires acceptance of the proposition that the EDUCANG Case did not expressly determine the question of whether the provision of educational services for reward amounts to trading. In my view this proposition is not correct. In the Educang Case, President Hall clearly determined that the provision of educational services for reward does amount to trading in circumstances where the fees received for such services are substantial and exceed government grants for their provision. It is clear that the trading activity said by President Hall to result in a situation where the Court could not resist the conclusion that EDUCANG Ltd is a trading corporation, was the provision of education services and the income received for those services. It may be arguably consistent with the decision in the Red Cross Case (supra) that where government grants exceed the income received from fees to a significant degree that an entity will not be a trading corporation. However, in the present case, consistent with the decision of President Hall in the EDUCANG Case (supra), PMSA is a trading corporation within the meaning of s. 51(xx) of the Constitution. I am unable to accept that what is traded by PMSA is a place in one of its schools. In my view what is traded is educational services and I doubt that parents would pay the substantial fees charged by PMSA for their children to simply walk through the school gate. Even if I am wrong on this point, the income derived from fees charged by PMSA for whatever activity those fees are based on, makes it apparent that PMSA is trading. I do not accept the argument that there has been no termination of Mr Butler's employment at the initiative of the employer. In reaching this conclusion I accept the submissions of Mr Spriggs on behalf of QIEU. Mr Butler was not appointed to the role of Head of Science, but rather was employed in that role. None of the triggering events provided for in Schedule 7 of the Award so that Mr Butler could be removed from the position had occurred. It is also clear from Mr Butler's evidence that his employment was terminated at the initiative of PMSA. Schedule 7 to the Award provides for matters such as how a teacher may be appointed to and removed from a promotional position such as head of a department. However, that Schedule is not a code and does not provide the only mechanism for how these processes are to be conducted. Any failure of PMSA to follow the provisions of Schedule 7 in relation to the

70 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 February, 2008 removal of an employee from a promotional position may constitute grounds for a finding that there has been a breach of the Award. It may also form a basis for an argument that an employee has been unfairly dismissed on the basis that the removal from such a position constitutes a fundamental breach of the employee's contract of employment such as would entitle the employee to consider that the contract had been discharged. An offer of an alternative position does not remove such an argument, even if PMSA is obliged to make such an offer. An employee who accepts the offer of an alternative position may be found to have accepted a variation to the contract or to have accepted the breach and affirmed the contract. In these circumstances the employee may have difficulty in later claiming to have been dismissed although an argument of constructive dismissal may still be available. In the circumstances of Mr Butler's case, the variation or the breach is not accepted, the contract will be brought to an end. I am unable to accept that this is not a termination of employment at the initiative of the employer, and that an employee in these circumstances is precluded from bringing a claim for unfair dismissal. I uphold the other jurisdictional objections to the application in TD/2007/6 raised by PMSA and dismiss that application. I Order accordingly. I.C. ASBURY, Commissioner. Hearing Details: 2007 29 August Released: 24 December 2007

Appearances: Mr J.W. Merrell of Counsel instructed by Mr A. Knott of Macrossans Lawyers with Mr J. Spriggs for the Queensland Independent Education Union of Employees. Mr A. Horneman-Wren of Counsel instructed by Mr C. Pollard of Jones Ross Pty Ltd for the respondent.

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Industrial Relations Act 1999 - s. 125 - application for amendment

The Australian Workers' Union of Employees, Queensland AND Great Australian Ice Creamery (B/2005/525)

FAST FOOD INDUSTRY AWARD - STATE (EXCLUDING SOUTH-EAST QUEENSLAND) 2003

COMMISSIONER FISHER 29 January 2008

AMENDMENT (Correction of Error)

Whereas an error occurred in the amendment to the abovementioned Award as published in the Queensland Government Industrial Gazette of 22 July 2005, Vol. 179, No. 14, page 505, the following correction is made to be effective as from 27 May 2005: By adding the words "and to their employers" at the end of the first paragraph of clause 1.4.1. Dated 29 January 2008. By the Commission, [L.S.] G.D. SAVILL, Industrial Registrar.

Operative Date: 27 May 2005 Amendment - Correction of Error Released: 29 January 2008

CONTENTS

(Gazette No. 3 —pp. 49-71)

INDUSTRIAL COURT NOTICES

Page

AMENDMENT TO AWARD—The Australian Workers’ Union of Employees,

Queensland AND Great Australian IceCreamery:Fast Food Industry Award - State (excluding South-East Queensland)........................ 70

DECISIONS—Bradley John Gillam AND Q-COMP.......................49-60

Queensland Independent Education Union of Employees (for Warren Butler) AND The Presbyterian and Methodist Schools Association...........................................60-70


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