Allison Greenaway as the Executor of the Estate of the Late Brian Greenaway v Workers' Compensation Regulator [2025] QIRC 142

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6

Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31

Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103

Mr D. Hooke SC with Mr A. Schonell of Counsel, instructed by Slater and Gordon.

Mr S McLeod KC of counsel, directly instructed by the Respondent.

• [1] The substantive appeal is brought by Ms Allison Greenway as the Executor of the Estate of the Late Brian Greenaway.

• [2] Mr Greenaway was employed by Queensland Rail from 1996 to 2004, and was a Train Examiner between 1971 to 2003.

• [3] Mr Greenaway first developed symptoms of shortness of breath in early 2022.[1] He was diagnosed with pleural mesothelioma on 22 July 2022 and passed away on 3 March 2023.[2]

• [4] Mr Greenaway's deemed date of entitlement to compensation under the Workers' Compensation & Rehabilitation Act 2003 ('WCRA') is 22 July 2022.[3]

• [5] Mr Greenaway did not lodge an application for compensation pursuant to the WCRA in respect of his latent onset injury of mesothelioma prior to his death.[4]

• [6] On 1 June 2023, the Appellant as the personal representative of the Estate of Mr Greenaway lodged an application for compensation with the self-insurer Aurizon Operations Limited.[5] That application for compensation sought both[6]:

(a) death benefits on behalf of the Appellant pursuant to Part 11, Chapter 3 of the WCRA; and

(b) Terminal condition benefits on behalf of the Estate under Division 4, Part 3, Chapter 3 of the WCRA.

• [7] On 11 September 2023, the self-insurer accepted the application for death benefits but rejected the application for terminal condition benefits. The self-insurer's reasons indicated that s 36A(1)(a) of the WCRA was satisfied but because Mr Greenaway did not lodge an application for compensation for the latent onset injury prior to his death, s 36A(1)(b) was not satisfied, and as a consequence, the provisions of s 36A of the WCRA did not apply to the application.[7]

• [8] On 17 October 2023 the Appellant lodged an application for review with the Respondent of the self-insurer's decision to reject the claim for terminal condition benefits.[8]

• [9] The Respondent's review unit provided reasons for decision dated 19 December 2023 which confirmed the self-insurer's decision to reject the claim for terminal condition benefits.[9]

• [10] The Respondent's review officer's reasoning for rejecting the claim for terminal condition benefits was premised on the following ground:

" ... a valid claim for terminal benefits under sections 36A, 39A and 128B of the Act must be made by the worker, not on behalf of an already deceased worker's estate."[10]

• [11] In the substantive appeal the Appellant seeks to challenge the review decision 19 December 2023. The significant issue for determination in the substantive appeal is whether a claimant seeking terminal condition benefits pursuant to the combined provisions of s 36A, s 39A and s 128B of the WCRA has to lodge an application for compensation whilst they are still alive for the application for compensation to be valid.

• [12] The question for determination in this preliminary matter is whether I consider this to be an appropriate matter to be referred to the full bench, pursuant to s 486 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

• [13] For the reasons that follow, I consider that it is appropriate for this appeal to be referred to the full bench, pursuant to s 486 of the IR Act

• [14] Section 486 of the Act provides a broad discretionary power that the Commission can exercise on its own volition (emphasis added):

(1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.

(2) A commissioner may refer the matter only with the president's approval.

(4) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.

(6) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.

• [15] The matter can only be referred to the full bench with the President's approval in accordance with s 486(2) of the Act.

• [16] In Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland[11], President Martin J specifically noted that s 486 of the current IR Act differs from the repealed section of the previous Act, in that there is no longer a specific requirement for the President to be satisfied that a matter is of substantial industrial significance before it can be referred to a Full Bench; notwithstanding the power to refer is not unfettered.[12]

• [17] This issue of whether a matter need be of 'substantial industrial significance' to be referred to the full bench was given further consideration in Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015.[13] President Davis J provided the following commentary regarding s 486 of the current IR Act:

Section 486(2) bestows a discretion which is not subject to any express limitations. There is, though, no statutory discretion in Australia which is unlimited. All statutory discretions are limited to the achievement of the purpose for which the power was granted.

Section 486's predecessor was s 281 of the Industrial Relations Act 1999 (the 1999 IR Act) which was in these terms:

(1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.

(2) A commissioner, other than the president, may refer the matter only with the vice president's approval.

(3) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the vice president for the matter to be referred to the full bench.

(4) The vice president may approve the referral of a matter to the full bench under subsection (2) only if the vice president is satisfied the matter is of substantial industrial significance.

(5) On application under subsection (3), the vice president may refer the matter to the full bench only if the vice president is satisfied the matter is of substantial industrial significance.

(6) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate."

Section 281(4) of the 1999 IR Act achieved at least two purposes. Firstly, it limited the discretion created by s 281(2). Only when the President was satisfied that the matter was of "substantial industrial significance" could the approval be given pursuant to s 281(2). Secondly, s 281(4) otherwise informed the limits of the s 281(2) discretion. The clear purpose of s 281(2) was to manage the business of the QIRC so that matters, other than those of particular significance should be dealt with by a single commissioner.

Section 486 of the 2016 IR Act does not contain a limitation equivalent to s 281(4) so a discretion exists to approve the referral, notwithstanding that the matter might not be one "of substantial industrial significance". In construing s 486, it is necessary to consider the text of the section in the context of the legislation as a whole, including its legislative history, and its purpose.

Here, the legislative history is of some significance. On 1 September 2016, the Industrial Relations Bill 2016 was introduced into the Queensland Parliament. It proposed the repeal of the 1999 IR Act and the amendment of various other pieces of legislation, including the Anti-Discrimination Act 1991. Upon the introduction of the Bill, the Minister for Employment and Industrial Relations, Minister for Racing and Minister for Multicultural Affairs, the Honourable Grace Grace, told the Parliament:

"In regard to strengthening Queensland's industrial tribunals, the bill provides the QIRC with exclusive jurisdiction to deal with all workplace related anti-discrimination matters, including those taken under the Anti-Discrimination Act 1991. These matters will still go to the Anti-Discrimination Commission Queensland in the first instance but, if they cannot be resolved through conciliation and they are work-related, the matter will be referred to the Queensland Industrial Relations Commission."

The Minister was there referring to what ultimately became ss 164A and 174B of the Anti-Discrimination Act 1991. The effect of those sections (and others) is that if a discrimination complaint concerns "a work related matter" and the complaint is not resolved by conciliation, then the complaint could be referred to the QIRC to be ultimately heard and determined.

Section 486, as it originally appeared in the Industrial Relations Bill 2016, was in the same form as s 281 of the 1999 IR Act, so that the power to approve a referral to the Full Bench could only be exercised where the matter was of "substantial industrial significance".

The Bill was referred to the Finance and Administration Committee and ultimately amendments were proposed. Amendment to clause 486 was proposed to remove the necessity for the President to be satisfied that the matter was of "substantial industrial significance" before an approval could be given. In the Explanatory Memorandum to the amendments, this appeared:

"Amendment 14 amends clause 486 (Referring matter to full bench) by removing subclauses (3) which provides that the president may approve the referral of a matter from the commission to the full bench under subsection (2) only if satisfied the matter is of 'substantial industrial significance'. This amendment is necessary to reflect the expanded jurisdiction of the commission under the Bill.

Amendment 15 amends clause 486 (Referring matter to full bench) by removing subclause (5) which provides that on application under subsection (3), the president may refer a matter to the full bench only if satisfied the matter is of 'substantial industrial significance'. This amendment is necessary to reflect the expanded jurisdiction of the commission under the Bill."

The reference to "the expanded jurisdiction of the commission under the Bill" is obviously a reference to the jurisdiction of the QIRC bestowed in relation to anti-discrimination matters. The removal of the restriction to approve only a referral to the Full Bench of matters "of substantial industrial significance" recognises that important matters might arise under the Anti-Discrimination Act which ought to be decided by a Full Bench but may not be ones "of substantial industrial significance".

The purpose of the power bestowed by s 286(2) is, though, in my view, the same as that bestowed by s 281(2), namely to manage the business of the QIRC. The structure of the QIRC, as provided in the 1999 IR Act, is basically equivalent to its structure provided in the 2016 IR Act and it must be that the starting point is an assumption that routine cases remain to be decided by a single commissioner. There must be something extra in a case before it is referred to the Full Bench. However, notwithstanding the repeal of s 281(4), if a matter is one of substantial industrial significance, that is a relevant consideration in favour of exercising the discretion under s 486(2) to approve the referral of the matter to the Full Bench. It is clearly desirable that such a matter is decided by a Full Bench with the authority that such a decision brings.[14] (citations omitted)

• [18] In Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015[15], his Honour President Davis J provided the following guidance regarding the process for making a referral to the full bench:

[19] Section 486 is awkward. Section 486(1) gives the Commission a power of referral but s 486(2), if taken literally, means that the referral can only be made if it is approved, thus suggesting that the approval precedes the order referring the case to the Full Bench. However, before an order of referral is made, there is nothing to approve.

[20] The better construction of s 486 is that the Industrial Commissioner makes a referral under s 486(1), but that referral is not effective unless later approved pursuant to s 486(2).

[21] There can be no doubt, in my view, that in most circumstances an industrial commissioner exercising the power under s 486(1) should:

(a) hear the parties on whether or not the matter should be referred. In some cases a full oral hearing may not be necessary. There will be cases where the parties can just be invited to make written submissions. What is required will depend upon the circumstances of the particular case;

(b) decide whether or not to refer the matter to the Full Bench;

(c) publish reasons for that decision; and

(d) Refer the matter to the President and await a decision under s 486(2).

• [19] The appeal was listed for a preliminary hearing on a jurisdictional issue before me on 21 May 2025.

• [20] In light of the guidance provided by President Davis J in Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015[16], late in the afternoon of 20 May 2025 my chambers emailed the parties indicating the Commission's view that this was an appropriate matter to be referred to the full bench. That email further invited the parties to provide the Commission with submissions regarding this proposal.

• [21] When the appeal was called on 21 May 2025, Mr Hooke SC confirmed that the parties had consulted in light of the email from the Commission, and both parties consented to the appeal being referred to the full bench of the Commission for determination.

• [22] In the course of the short hearing, I provided some preliminary reasons for my view that this was an appropriate matter to be referred to the full bench. I now provide more fulsome reasons supporting the referral of this matter to the full bench.

• [23] The Industrial Relations Commission has jurisdiction to hear workers' compensation appeals under the WCRA.

• [24] Prior to August 2005 the jurisdiction to hear workers' compensation appeals was vested solely in the Industrial Magistrates Court.

• [25] With the commencement of section 68 of the Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2004, which introduced a new s 548A into the WCRA , the jurisdiction to hear workers' compensation appeals was shared between the Industrial Magistrates Court and the Industrial Relations Commission. This would appear to be the first significant broadening of the jurisdiction of the Industrial Relations Commission into other work-related areas.

• [26] From 1 November 2010 the Industrial Relations Commission was given sole jurisdiction over workers' compensation appeals (other than premium and policy appeals which remained with the Industrial Magistrates Court) with the amendment of section 548A of the WCRA by s 146 of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.

• [27] From August 2005 until the repeal of the Industrial Relations Act 1999 (Qld) on 1 March 2017, the requirement in s 281(4) of the IR Act 1999 that the President may refer a matter to the full bench only if the President was satisfied the matter was of substantial industrial significance in my view effectively prevented the referral of a workers' compensation appeal to the full bench.

• [28] That impediment was removed by the passage of the 2016 IR Act with the inclusion of s 486 in its current form. There appears to be no logical reason why the observations of President Davis J in Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015[17] regarding s 486 of the IR Act 2016 enabling the referral of matters arising under the Anti-Discrimination Act 1991 should not equally apply to appeals under the WCRA.

• [29] In my view there is nothing in Chapter 13, Part 3, Division 1 of the WCRA that limits the hearing of a workers' compensation appeal to a hearing by the Industrial Relations Commission constituted solely by a single member. Section 548A(1) of the WCR Act relevantly provides:

(1) An appeal body for this division is the industrial commission.

• [30] There is no indication in s 548A of the WCRA that the industrial commission hearing a workers' compensation appeal cannot be constituted as a full bench of the commission.

• [31] I note that the phrase "industrial commission" or "commission" is not defined in the WCRA either within Chapter 13, Part 3, Division 1 of the WCRA or in the dictionary in Schedule 6 of the WCRA "Appeal body" in Schedule 6 of the WCRA refers back to s548A of the WCRA.

• [32] I further note that the word "Commission" is defined in Schedule 2 of the Industrial Relations (Tribunals) Rules 2011 as including the full bench. Section 432 of the IR Act 2016 confirms that the Commission can be constituted by a single member or a full bench.

• [33] An appeal from a decision of the Commission is provided to the Industrial Court by Chapter 13, Part 3, Division 1A of the WCRA.

• [34] The inclusion of a right of appeal to the Industrial Court pursuant to s 561 of the WCRA, and the inclusion of the privative clause in s 561(4) of the WCRA that the decision of the Industrial Court is final, does not in my view lead to a conclusion that the ability to refer a matter to the full bench is excluded by the WCRA. This merely confirms that the full bench cannot include the President as a member (in order to retain the right of appeal to the Industrial Court).

• [35] In Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland[18], Brisbane City Council ('BCC') put forward a number of justifications for the referral to the full bench. One of the matters relied upon by BCC was the novelty of the application by the various unions for scoping orders (the relevant provisions had only been recently included in the IR Act). His Honour found that this was sufficient to ground a referral to the full bench for the following reasons:

• [15] It also deals with the issue of "novelty". While novelty is not, of itself, a prerequisite for referral to a Full Bench, it can often be a compelling reason for such a referral. The capacity to make a scope order is new. The Queensland Industrial Relations Commission has never had this power. It must be acknowledged that the power is one which exists under the Fair Work Act 2009 and the Fair Work Commission has the ability to make such an order. It is not uncommon in both this jurisdiction and the federal jurisdiction for a Full Bench to be constituted in order to deal with a matter which has not previously been within the jurisdiction of the particular tribunal and which has potential to be of significance to other, similar matters within that tribunal. (emphasis added)

[17] While some of the matters advanced by the BCC do lend weight to its application, the major matter which has satisfied me that a referral should be made, is that these provisions are entirely new to this jurisdiction and the decision of the Full Bench in this matter will be of considerable assistance to other parties who may wish to bring similar applications for scope orders.,

• [36] I am satisfied that it is appropriate for the current appeal to be referred to the full bench for the reasons that follow.

• [37] Firstly, the provisions in the WCRA which allow for the payment of a significant amount of lump sum compensation for a terminal condition whilst the claimant is still living are still relatively novel. The issue for determination in the substantive appeal, that being whether such a claimant has to lodge an application for compensation whilst still living for the application to be valid, is a novel issue which has not been previously considered by a Court or Tribunal in Queensland (or according to my research, anywhere else in Australia).

• [38] Secondly, the issue primarily involves a question of statutory construction which lends itself to be determined by a full bench.

• [39] Thirdly, the parties have filed a Statement of Agreed Facts, therefore it is unlikely that there will be disputed facts that fall for determination during the hearing.

• [40] Fourthly, the outcome of this appeal is likely to have a wider impact than simply upon the parties to the appeal.

• [41] The Appellant filed an affidavit in the Industrial Registry on 21 May 2025 from Sean Patrick Sweeney, a solicitor employed by Slater & Gordon Lawyers, who has the conduct of the appeal on behalf of the Appellant. In that affidavit Mr Sweeney deposes as follows:

• He has assisted approximately 200 people with statutory claims for terminal condition benefits under the WCRA. In many of those cases, the worker received the diagnosis, or learned of its occupational nature, only days, weeks, or months prior to death.[19]

• In addition to the current appeal, Mr Sweeney currently acts for the estates of two deceased workers who have filed appeals to the Commission where the issue in dispute is the capacity of their (respective) estate to apply for and recover terminal condition benefits after death. Those proceedings are currently in abeyance pending the outcome of the current appeal.[20]

• To date, he has assisted five other claimants with claims for statutory benefits in their capacities as non-dependent spouses of workers who have died of mesothelioma. He notes that in most of those cases, he was contacted by the claimant only a few short weeks after the death of their loved one. He further notes that those people have not sought to agitate the issue common to this appeal and the other two appeals.[21]

• From speaking with other legal practitioners, Mr Sweeney is aware that claims for death benefits under section 201A of the WCRA following the death of a worker from mesothelioma or other occupational disease are relatively common.[22]

• Mr Sweeney considers that the appeal will be of significance because it will be determinative of at least two other appeals that are presently before the Commission. He deposes that the decision will also be determinative of future claims. Mr Sweeney also notes that the outcome of the appeal will be a significant matter for insurers because of the quantum of the statutory lump sum compensation.[23]

• [42] The affidavit of Mr Sweeney provides evidence which supports the conclusion that the outcome of this appeal is likely to have a wider impact beyond simply determining the issue between the parties to the current appeal.

• [43] Fifthly, given that each successful claim for terminal condition benefits is a sum of approximately $750,000.00, if the Appellant succeeds in the appeal, and the scope of potential applicants for terminal condition benefits is broadened, it is likely that there will be a significant impact on the workers' compensation scheme as a whole.

• [44] Mr Sweeney deposes to the potential need for insurers to make provision for liabilities, both present and contingent, that have not been accounted for to date.[24]

• [45] For the reasons outlined above, I am persuaded that these matters have particular significance warranting the referral of this matter to the Full Bench.

[46] The parties by an email dated 30 May 2025 have provided the following questions to be determined by the Full Bench:

1. Can the Estate of a deceased worker who died from a latent onset injury apply for, and receive, terminal condition benefits under sections 36A, 39A and 128B of the Workers' Compensation and Rehabilitation Act 2003 ('WCRA') after the worker's death?

2. If yes to question one above, is the affidavit of Ms Laura Ritchings affirmed on 19 February 2025 admissible in the appeal?

3. If yes to question one above, was there an express or implied waiver of the time for applying pursuant to s 131 of the WCRA?

4. If yes to question one above, what are the appropriate orders/relief?

[47] It is acknowledged that the questions to be determined are ultimately a matter to be confirmed by the Full Bench in the event that the matter is approved for referral.

[48] Pursuant to s 486(1) of the Act_,_ I find that it is appropriate for matter WC/2024/10 to be referred to the Full Bench to determine.

[49] Under s 486(2) of the Act, a matter may only be referred to the Full Bench for Hearing with the President's approval. This Decision is now referred to the President for his determination.

Pursuant to s 486(1) of the Industrial Relations Act 2016 (Qld), I find that it is appropriate for this matter to be referred to the Full Bench for Hearing.

[1] Agreed Statement of Fact, filed on 5 November 2024, [12].

[3] Section 36A(3) of the Workers' Compensation & Rehabilitation Act 2003.

[4] Agreed Statement of Facts filed on 5 November 2024, [27].

[5] Ibid, [28]. It is noted that the Agreed Statement of Fact refers to an application for compensation being made with Queensland Rail.

[10] Appellant's outline of argument filed 23 January 2025, [9].

[11] [2017] QIRC 31.

[12] Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31, [5].

[13] [2021] QIRC 103.

[14] [2021] QIRC 103, [7]-[16].

[15] [2021] QIRC 103, [19] to [21].

[16] [2021] QIRC 103, [19] to [21].

[17] [2021] QIRC 103, see in particular at [14]-[15].

[18] [2017] QIRC 31.

[19] Affidavit of Sean Patrick Sweeney filed 21 May 2025, [2].

[21] Affidavit of Sean Patrick Sweeney filed 21 May 2025, [5].

[23] Affidavit of Sean Patrick Sweeney filed 21 May 2025, [7].