Vol. 174, No. 15 - Queensland Industrial Relations Commission

Transcription

1333
The Queensland Government
PUBLISHED BY AUTHORITY
PP 451207100086
Annual Subscription $358.62 (GST inclusive)
ISSN 0155-9362
Vol.174
FRIDAY, 12 DECEMBER, 2003
No. 15
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999
Industrial Relations (Tribunals) Rules 2000
NOTICE
The following Agreements have been certified by the Commission:
No/s
Title
Certified on and
certificate issued
Cancelling
CA539/03
Japonica Formwork Pty Ltd - Certified Agreement
24/10/03
CA540/03
Klaus Ceramic Tiling Pty Ltd - Certified Agreement
24/10/03
CA131/00
CA541/03
DJ & BA Jeffs Pty Ltd t/a Able Building Company - Certified Agreement
24/10/03
CA140/00
CA542/03
Malcolm & Shirley Horsfall t/a Maland Commercial - Certified Agreement
24/10/03
CA135/00
CA543/03
Sunset Joint Sealing (Qld) Pty Ltd - Certified Agreement
24/10/03
CA220/97
CA544/03
Openbrook Pty Ltd T/A Regional Workshop - Certified Agreement
24/10/03
CA363/00
CA545/03
Doug Glen Shopfitting Services Pty Ltd - Certified Agreement
24/10/03
CA546/03
Panther Bricklaying Queensland Pty Ltd - Certified Agreement
24/10/03
CA379/00
CA547/03
Surfside Pool Constructions Pty Ltd - Certified Agreement
24/10/03
CA306/95
CA548/03
Central Tiling Services Group Pty Ltd - Certified Agreement
24/10/03
CA689/00
CA549/03
Gazzini Investments Pty Ltd T/A P & K Contractors - Certified Agreement
24/10/03
CA654/97
CA550/03
Moduline Pty Ltd - Certified Agreement
24/10/03
CA372/01
CA551/03
NWCI Pty Ltd - Certified Agreement
24/10/03
CA211/00
CA552/03
CRIB Interior Linings Pty Ltd - Certified Agreement
24/10/03
CA414/01
CA553/03
Mace Mayne Pty Ltd T/A Fitzgerald Formwork - Certified Agreement
24/10/03
CA305/95
CA554/03
Heinrich Formwork Pty Ltd - Certified Agreement
24/10/03
CA555/03
Lortoc No 25 Pty Ltd t/a Queensland Solid Plaster Services – Certified
Agreement
24/10/03
CA556/03
Pottsville Bricklaying Pty Ltd - Certified Agreement
24/10/03
CA160/01
CA557/03
NQ Waterproofing Pty Ltd - Certified Agreement
24/10/03
CA527/99
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
12 December , 2003
CA558/03
K & U Formwork Pty Ltd - Certified Agreement
24/10/03
CA154/00
CA559/03
Streamline Interiors Pty Ltd - Certified Agreement
24/10/03
CA391/01
CA560/03
Raco Pty Ltd t/a Building Waterproofing Services - Certified Agreement
24/10/03
CA384/01
CA561/03
Thornload Qld Pty Ltd - Certified Agreement
24/10/03
CA562/03
Michael Marjanac t/a Mirodan Tiling Services - Certified Agreement
24/10/03
CA563/03
B & F Waterproofing Systems Pty Ltd - Certified Agreement
24/10/03
CA571/01
CA564/03
South Coast Steel Fixers Pty Ltd - Certified Agreement
24/10/03
CA124/00
CA565/03
Ken Sparks Carpets Pty Ltd - Certified Agreement
24/10/03
CA566/03
Amalgamated Solid Plasterers Pty Ltd - Certified Agreement
24/10/03
CA427/00
CA567/03
The Romberg Family Trust t/a I & H Contract Fixing - Certified Agreement
24/10/03
CA524/01
CA568/03
Shutter Concepts Pty Ltd t/a Rollashield Brisbane - Certified Agreement
24/10/03
CA356/02
CA569/03
Gaplyn Pty Ltd - Certified Agreement
24/10/03
CA278/00
CA570/03
Northside Demolitions Pty Ltd - Certified Agreement
24/10/03
CA167/00
CA571/03
The Trustee for the Superior Walls & Ceilings Unit Trust – Certified
Agreement
24/10/03
CA231/00
CA572/03
Hufcor Pty Ltd - Certified Agreement
24/10/03
CA573/03
The Trustee for the Allstate Trust t/a Allstate Australia Constructions
Pty Ltd - Certified Agreement
24/10/03
CA574/03
Tile-it Pty Ltd - Certified Agreement
24/10/03
CA228/01
CA575/03
CAP Constructions Pty Ltd - Certified Agreement
24/10/03
CA95/00
CA576/03
T & M Building Contractors Pty Ltd - Certified Agreement
24/10/03
CA152/02
CA577/03
Oak Interiors Pty Ltd - Certified Agreement
24/10/03
CA578/03
L & V Project Pools Pty Ltd - Certified Agreement
24/10/03
CA749/03
Steelift Australia Pty Ltd - Certified Agreement
24/11/03
CA673/00
CA750/03
Adam Whitney t/a A & R Blocklaying - Certified Agreement
24/11/03
CA159/02
CA751/03
Mulherin Rigging & Cranes Pty Ltd - Certified Agreement
24/11/03
CA112/00
CA752/03
M&B Rigging Pty Ltd - Certified Agreement
24/11/03
CA281/00
CA753/03
Jigsaw Industrial Pty Ltd - Certified Agreement
24/11/03
CA754/03
Austress Freyssinet Pty Ltd - Certified Agreement
24/11/03
CA119/00
CA755/03
Strongforce Pty Ltd - Certified Agreement
24/11/03
CA462/00
CA756/03
NRNT Pty Ltd T/A AAA Quality Concrete Pumping - Certified Agreement
24/11/03
CA237/00
CA757/03
Linddales Pty Ltd - Certified Agreement
24/11/03
CA302/01
CA758/03
ID & KJ Barker t/a Qld Country Recycled Timbers - Certified Agreement
24/11/03
CA383/00
CA759/03
Know How Agencies Pty Ltd t/a Know How Concrete Technologies Certified Agreement
24/11/03
CA760/03
Speedy Gantry Hire Pty Ltd - Certified Agreement
24/11/03
CA611/01
CA761/03
Tensioned Concrete Pty Ltd - Certified Agreement
24/11/03
CA671/00
CA762/03
Jendeck Investments Pty Ltd t/a Jendeck Concrete Pumping Services –
Certified Agreement
24/11/03
CA128/00
CA763/03
Statewide Construction Services Pty Ltd - Certified Agreement
24/11/03
CA764/03
VSL Prestressing (Aust) Pty Ltd - Certified Agreement
24/11/03
CA60/93
CA765/03
Scapeshapes Landscaping Pty Ltd - Certified Agreement
24/11/03
CA302/00
CA766/03
Trelville Pty Ltd T/A Aspect - Certified Agreement
24/11/03
CA464/00
CA767/03
Brands Construction Pty Ltd - Certified Agreement
24/11/03
12 December , 2003
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CA773/03
The Tile Experts - Certified Agreement
24/11/03
CA724/03
J & MD Milligan Pty Ltd t/a Milfab - Certified Agreement
25/11/03
CA76/02
CA725/03
Sartor Investments Pty Ltd t/a Sartor Brisbane Concrete Services –
Certified Agreement
25/11/03
CA334/00
CA726/03
Rebmik Contractors Pty Ltd - Certified Agreement
25/11/03
CA353/00
CA727/03
Keltic Pty Ltd - Certified Agreement
25/11/03
CA677/00
CA728/03
Tessmann Concreting Pty Ltd - Certified Agreement
25/11/03
CA262/00
CA729/03
Cleaning B Pty Ltd - Certified Agreement
25/11/03
CA352/00
CA730/03
United Brick Constructions Pty Ltd - Certified Agreement
25/11/03
CA361/00
CA731/03
Admiral Concreting (Qld) Pty Ltd - Certified Agreement
25/11/03
CA732/03
DB Farrell Investments Pty Ltd - Certified Agreement
25/11/03
CA120/00
CA733/03
Mobile Concrete Pumping Pty Ltd - Certified Agreement
25/11/03
CA152/01
CA734/03
Coastal Steelfixing Pty Ltd - Certified Agreement
25/11/03
CA735/03
D Robinson t/a Robrand Project Support Services - Certified Agreement
25/11/03
CA336/00
CA736/03
Trident Construction Resources Pty Ltd - Certified Agreement
25/11/03
CA121/00
CA737/03
Gumdale Demolition Pty Ltd - Certified Agreement
25/11/03
CA710/00
CA738/03
Structural Systems (Northern) Pty Ltd - Certified Agreement
25/11/03
CA337/00
CA739/03
Radius Cranes & Rigging Pty Ltd - Certified Agreement
25/11/03
CA740/03
T & T Metal Asbestos Services Qld Pty Ltd - Certified Agreement
25/11/03
CA607/01
CA741/03
Improved Concrete Pumping Pty Ltd - Certified Agreement
25/11/03
CA107/01
CA742/03
Oakridge Sawing & Drilling Pty Ltd t/a Elliott & Fyfe Concrete Cutting
Service - Certified Agreement
25/11/03
CA118/00
CA743/03
Australian Prestressing Service (Qld) Pty Ltd - Certified Agreement
25/11/03
CA594/97
CA777/03
Boral Bricks Pty Ltd - Certified Agreement
26/11/03
CA701/00
The following Agreements have been amended by the Commission:
No/s
Title
Date amended
CA29/03
Bartter Enterprises Pty Ltd Mareeba - Certified Agreement 2003
19/11/03
CA34/02
IGA Distribution Pty Ltd - Morningside, Certified Agreement 2001
25/11/03
G.D. SAVILL
Acting Industrial Registrar
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INDUSTRIAL COURT OF QUEENSLAND
Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate
Clive John Newman AND RGB Winton Pty Ltd (No. C57 of 2003)
Roger Winton and RGB Winton Pty Ltd AND Clive John Newman (No. C58 of 2003)
PRESIDENT HALL
27 November 2003
DECISION
The two appeals presently before the Court arise out of the construction of a new showroom and administration building additional to some existing
premises at the site of a car yard/showroom on Moggill Road at Taringa. The project manager/builder was RGB Winton Pty Ltd, a corporation under the
law. The “executive officer” of the corporation for the purposes of the Workplace Health and Safety Act 1995 was Mr Roger Winton. Indeed, on the
findings of the Industrial Magistrate, it seems to me to be tolerably clear that Mr Winton could properly be characterised as the alter ego of the
corporation. In any event, it fell to Mr Winton to make the decision about whether the new premises would be constructed by the use of besser blocks
filled with concrete or by the erection of concrete “tilt up” panels. (The restriction on choice arose from an existing fire wall.) After consulting with
experts, Mr Winton chose the “tilt up” panel method of construction.
The “tilt up” panels were constructed on site by RGB Winton Pty Ltd. They were then lifted into position by a crane. Before being lifted into position a
“tilt up pipe brace” was connected to the panel by a bolt threaded into a wall brace anchor which attached a wall plate to the panel. Once the panel was
tilted to its final resting position, the footplate of the pipe brace was bolted to a floor brace anchor or “dead man” which had previously been set in
concrete. Subsequently, additional braces or feet were put in place to support the “tilt up pipe brace” where it met the floor. Once all panels were put in
place, they were to be locked in place by the pouring and setting of a concrete ceiling. The pipe bracing might then be removed.
Y:\GAZETTES\INDUSTRIAL\DECEMBER\03-12-12\QGIG_DEC12.DOCQGIG_Dec12.doc
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RGB Winton Pty Ltd was not a crane operator. It engaged Brambles Australia Ltd to supply and operate the crane. Indeed, Mr Winton had consulted
with Brambles Australia Ltd before the corporation won the contract. A Mr Richard Hewitt, then the crane and rigging supervisor for Brambles Australia
Ltd, attended at the proposed construction site and gave Mr Winton some advice about what would be necessary if the “tilt up” panel method of
construction was adopted. Mr Hewitt (correctly) identified a variety of hazards arising out of the tightness of the site, problems of access and the
proximity of power lines on Moggill Road. Amongst other things he advised the use of a 330 tonne Liebherr crane (the largest crane available to him)
and advised the use of two riggers whereas on previous occasions when Brambles Australia Ltd had provided cranes to RGB Winton Pty Ltd for the
purpose of erecting “tilt up” panels, only one rigger had been involved. I should in fairness say that all recommendations and suggestions of Mr Hewitt
were adopted.
Mr Hewitt was to visit the site on two further occasions. On the latter of those two occasions, on Friday 24 November 2000, Mr Hewitt brought with him
a Mr Roberts who was to operate the crane. Mr Roberts was Brambles Australia Ltd’s most senior crane operator. There was a further discussion as to
how the work was to be performed and, as a result of Mr Roberts’ intervention, a variation was made. It had at all times been recognised that the crane
would not be able to lift all panels whilst remaining in the one spot. Initially, Mr Hewitt had prepared a (rough) diagram showing the position in which
the crane would first be placed, and showing the position to which it would move after the erection of all of the panels which could properly be put in
place from the first position. As a result of Mr Roberts’ intervention, the second position was changed.
It is the contention of the corporation that on every visit by Mr Hewitt, Mr Winton was intimately involved in discussions about how the work was to be
performed. I have to record that in my view there is a substantial body of evidence to suggest that though Mr Winton was present, he so far deferred to
the expertise of Mr Hewitt that he was not a participant in identification of hazards, assessment of risks and development of methods of managing the
risks. As the Industrial Magistrate correctly identified, RGB Winton Pty Ltd’s own documentation identified that the installation of the tilt panels carried
with it the hazard of “panel collapse” and assessed the risk as being “high”. The control measure was given as “Brambles’ work procedure for crane and
panel installation compliance, certified operators, engineering details …”. The documentation also describes the control measure for the hazard of
“personal injury” said to arise from the “plant and equipment” as “competent operators”. Additionally, the record of interview with Mr Winton records:
“KING:
Okay. So how would you normally address the risks associated with the cranes and rigging in tilt panel work? You personally?
WINTON:
Well, how we handle it. Firstly, we went to a company that could handle the situation. You know, and I still think that they’re the
best people for the job. You know, they’re a very big company, but they’ve got a very stable staff situation. The people that are
there running the place have been in their jobs for years, and their approach is safety first. They’re very experienced at this sort of
thing.
KING:
So with that ‘sort of thing’, are you saying that they leave it in their hands?
WINTON:
Well, yeah. We…like I said before, we’re not actually qualified to go telling them how to operate a crane.
KING:
Yeah ….that’s fair enough.
WINTON:
It was…we selected them for that reason. We knew them, we used them before.”.
Plainly enough, RGB Winton Pty Ltd could not by its alter ego (Mr Winton) tell Brambles Australia Ltd and its employees how to operate the crane.
Indeed, one would hope that in deference to its own obligations under the Workplace Health and Safety Act 1995, Brambles Australia Ltd and its
employees would have insisted on control over the decision making process about how the crane was to be operated. But RGB Winton Pty Ltd was the
project manager/builder. It had obligations under ss. 28(1) and (2) of which it might not divest itself by engaging and deferring to an expert. If, in truth,
the corporation sat on its hands after the engagement of Brambles Australia Ltd, it breached its obligations under ss. 28(1) and (2). It is not, however,
necessary to go that far.
On any view of the matter, as the Industrial Magistrate found, RGB Winton Pty Ltd and Brambles Australia Ltd jointly failed to identify the critical
hazard. Neither Mr Hewitt nor Mr Roberts nor Mr Winton nor either of the two riggers identified that one aspect of the hazard posed by the “prop”
attached to panel 10 was that if the crane slewed sufficiently, the counterweights would come into contact with the “panel prop”. That is exactly what
happened. The “panel prop” having been dislodged, the panel fell. One of RGB Winton Pty Ltd’s employees lost his life.
RGB Winton Pty Ltd was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995 with a circumstance of aggravation constituted by
the death. The obligations said to have been breached were those imposed by ss. 28(1) and (2). RGB Winton Pty Ltd was found guilty on both charges.
Mr Winton, who had also been charged, was held to be vicariously liable on both counts, see s. 167. There was an inevitability about the Industrial
Magistrate’s conclusion. In a written outline of submissions handed up from the Bar table, senior counsel for the respondent on the second appeal
summarises the information known to (or ascertainable by) RGB Winton Pty Ltd as follows:
“(a)
the dimensions of site, including the narrowness of the site where the crane was operating;
(b)
the slewing radius of the crane and the actual position of the counterweights;
(c)
by reference to plans or physical measurements actually taken, the positions of the dead men [foot anchors], especially in relation to panel 10
were already determined;
(d)
the positions of the braces from panel 10 to the dead men [foot anchors] were ascertainable;
(e)
it was therefore mathematically possible to determine that in moving the crane counter-clockwise after the erection of panel 10, the
counterweight would inevitably come into contact with a panel prop attached to panel 10.”.
In my opinion para (c) rather overstates the matter. At the time the work was being planned, the “dead men” or “foot anchors” had not been set. It was
impossible to identify with precision where the panel prop would be once erected. But because the cement block into which the device was to be sunk
had been laid and the length of the panel prop was known, it would have been possible to develop a plan with a coloured area within which the panel prop
(once erected) would be found. Once that step had been taken, from the other information referred to, it would have been possible to work out whether
the counterweights would strike the panel prop if they entered the coloured area. If the answer was in the affirmative, it would have been possible to
mark out the point beyond which the crane could not be permitted to slew. Not only could all of that have been done, it should have been done. At some
point the crane had to move from its first position to its second position. Because of the constraints of the site, it was inevitable that the crane would have
to slew to get into a position in which it might move forward. I note the submission of counsel for RGB Winton Pty Ltd and Mr Winton that at the time
that the dreadful incident occurred, Mr Roberts was not trying to move the crane from its first to its second position. The submission is plainly factually
correct. Mr Roberts was attempting to move some lifting gear (which might have been moved by a utility). If the area within which the crane might not
be allowed to slew without dislodging the panel prop had been identified, the crane would not have moved into that area whether for the purpose of
moving from one position to another or for the purpose of shifting lifting gear.
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The complainant might have gone about the task of proving breach of the obligations at ss. 28(1) and (2) by relying upon the circumstance of aggravation
as evidence that workplace health and safety had not been ensured. By s. 22 workplace health and safety is not ensured if persons are not free from
workplace death, compare Bow Park Pty Ltd v. David Gordon Williams (2003) 174 QGIG 531 at 532. However, as it was entitled to do, the complainant
chose to prove its case by establishing non-compliance with s. 26(3). The complainant succeeded. For reasons given it had to succeed. The relevant
standards were the Risk Management Advisory Standard 2000 and the Plant Advisory Standard 2000. It seems to me that it is not necessary to dwell on
whether RGB Winton Pty Ltd and Mr Winton (a) failed to identify the hazard posed by the prop, the counterweights and slewing crane, (b) failed to
assess the risk of the counterweights striking the prop or (c) failed to manage the risk of the counterweights striking the prop. It is sufficient to find that
on any analysis it failed to adopt and follow either of the two standards. There is nothing in Schiliro v. Peppercorn Child Care Centres Pty Ltd (No. 2)
[2001] 1 Qd.R. 518 at para [71]. The problem is not the informality of the “other” way of managing the exposure to risk but its inadequacy if, indeed, in
the case of such a high risk activity simply reliance on expertise, experience and judgment is a “way” at all.
Because the complainant did establish its case pursuant to s. 26(3) beyond a reasonable doubt, it necessarily negatived the defence’s at s. 37(1)(b).
On the view of the evidence set forth above, which was plainly the view adopted by the Industrial Magistrate, there is no defence under s. 37(3). A
discussion of the evidence indicates exactly what it was that Mr Winton and RGB Winton Pty Ltd could (and should) have done.
The appeal against conviction by Roger Winton and the appeal against conviction by RGB Winton Pty Ltd are dismissed.
The complainant also appeals. The complainant appeals against the quantum of the fine imposed by the Industrial Magistrate on RGB Winton Pty Ltd,
viz. $22,500. (Additionally, and by agreement, RGB Winton Pty Ltd was ordered to pay professional costs of $13,557.50 and investigation costs
amounting to $6,442.50). To put the fine in its setting, I should note that Mr Winton was released upon entering into a recognisance in the sum of $2,250
(in respect of each offence) on condition that (a), he appear before the Court to be sentenced if called upon during the next two years, and (b) that in the
meantime he keep the peace and be of good behaviour, especially workplace health and safety behaviour. In separate proceedings before a different
Industrial Magistrate, Brambles Australia Ltd was also found guilty of breach of the obligations imposed by ss. 28(1) and (2). A fine of $60,000 was
imposed.
The Industrial Magistrate was correct to take as a starting point the proposition that any fine to be imposed on RGB Winton Pty Ltd should be less than
the fine of $60,000 imposed upon Brambles Australia Ltd. Apart from anything else, Brambles Australia Ltd had a prior conviction. (With respect to the
Industrial Magistrate I add that neither Brambles Australia Ltd nor the complainant appealed against the fine imposed by the Industrial Magistrate in
those proceedings). However, the amount of the fine in itself suggests that there has been a “failure properly to exercise the discretion which the law
reposes in the court of first instance”, though “the nature of the error may not be discoverable”, compare House v. The King (1936) 55 CLR 499 at 505
per Dixon, Evatt and McTiernan JJ. A fine of $22,500 is really appropriate to a case of more than modest blameworthiness, with bodily harm as a
circumstance of aggravation and some significant mitigating factors, e.g. a first offender, timely plea of guilty: see Gavin Scott Wesche v. NQ Blasting
and Coating Pty Ltd (No. C69 of 2003) (19 November 2003) and the cases there cited. The maximum penalty where the aggravating factor is bodily
harm is $187,500. Here the maximum penalty is $300,000. There were plainly significant mitigating factors. Both Mr Winton and the corporation had
hitherto been good industrial citizens. In one form or another the business had been conducted over a period of 25 years without criminal lapse. There
was genuine remorse. The employee who was killed was an employee of very long standing to whom Mr Winton had been a friend as well as an
“employer”. The consequence of the breaches, including the reluctance of Mr Winton and the corporation to take more work, have adversely affected the
corporate balance sheet in a significant way. However, so much may not be made of mitigating factors that the objective gravity of the offence is
diminished and the purpose of the Workplace Health and Safety Act 1995 frustrated, compare Master Ryane (Qld) Pty Ltd v. Thouard (2000) 165 QGIG
44 at 44. Notwithstanding the contents of the profit and loss accounts of the company for the years 1999, 2000 and 2001 which were tendered before the
Industrial Magistrate, it seems to me that RGB Winton Pty Ltd has always been in a stronger financial position than the defendant in Short v. Lockshire
Pty Ltd (2000) 165 QGIG 521. In that case, the penalty of $7,500 imposed by the Industrial Magistrate was increased to $40,000 on the appeal. Nothing
to which I have been taken suggests that a more modest fine is appropriate here. Consistency requires that the fines be comparable. I set aside the
decision of the Industrial Magistrate imposing a fine of $22,500. In lieu thereof I order that RGB Winton Pty Ltd pay a fine of $40,000. I allow 12
months to pay with liberty to apply if that prove necessary.
I reserve all questions of costs of the appeals.
Dated 27 November 2003.
D.R. HALL, President.
Released: 27 November 2003
Appearances:
Mr R. Morton, instructed by Eardley Motteram Solicitors, for RGB Winton
Pty Ltd and Mr R. Winton.
Mr M. Griffin SC, directly instructed by the Division of Workplace Health
and Safety Legal and Prosecution Services, for Mr Newman.
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INDUSTRIAL COURT OF QUEENSLAND
Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission
The Australian Workers’ Union of Employees, Queensland AND Queensland Racing
(No. C68 of 2003)
PRESIDENT HALL
27 November 2003
DECISION
The Australian Workers’ Union of Employees, Queensland (AWU) is an applicant for an award. The application is made under s. 125. If made, the
award would regulate the conditions of labour of racing stewards employed by Queensland Racing. Queensland Racing opposes the making of the
award. A preliminary issue is whether Queensland Racing may be represented by counsel, whether as of right or as a result of a favourable exercise of
discretion under s. 319(2)(b)(iii). By a decision of 12 September 2003, now reported 174 QGIG 132, the Queensland Industrial Relations Commission
held that Queensland Racing might appear by counsel as of right and, in the alternative, exercised the Commission’s discretion to grant Queensland
Racing leave to appear by counsel. This is an appeal against both limbs of that decision.
The critical provision of the Industrial Relations Act 1999 is s. 319(2). Relevantly (emphasis added) s. 319(2) provides:
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12 December , 2003
“(2) The party or person may be represented by a lawyer if, and only if –
(a)
for proceedings in the court–
(i)
(ii)
(iii)
(b)
the proceedings are for the prosecution of an offence; or
…; or
…; or
for proceedings before the commission, other than proceedings under section 278 or 408F–
(i)
(ii)
(iii)
the proceedings relate to a matter under chapter 4, other than section 110; or
…; or
the proceedings relate to a matter under chapter 3, or under section 110, 275, 276 or 279, or under chapter 12, part 2 or part 16
and, on application by a party or person–
(A)
the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it
desirable for the party or person to be legally represented; or
the commission is satisfied the party or person can be adequately represented only by a lawyer.”.
(B)
Notwithstanding all that has been put, I am unable to derive any assistance from the change in language from “the proceedings are for the prosecution of
an offence” at s. 319(2)(a)(i) to “the proceedings relate to a matter” at s. 319(2)(b)(i) and (iii). The presumption that a variation in language indicates a
variation in meaning is easily rebutted, Commissioner of Taxes (Vic) v. Lennon (1921) 29 CLR 579 at 590 per Higgins J and McGraw-Hinds (Aust) Pty
Ltd v. Smith (1978) 24 ALR 175 at 178 per Gibbs ACJ. Here, criminal prosecution is a topic which stands alone. Section 319(2)(b) makes no pretence at
perfection in drafting. The change in language cannot carry any weight.
Of more significance are the noun “matter”, and the assumption made both in s. 319(2)(b)(i) and s. 319(2)(b)(iii) that a matter under s. 110 may be before
the Commission.
There cannot be legal proceedings under s. 110. Section 110 declares:
“(1) A provision (an “encouragement provision”) of an industrial instrument may encourage a person to join or maintain membership of an
industrial association.
(2) The following is not prohibited conduct–
(a) making or acting under an encouragement provision;
(b) encouraging a person to join or maintain membership of an industrial association.
(3) In this section–
“encourage” does not include coerce.”.
An issue may arise in proceedings in the Commission about whether a provision in an industrial instrument is an encouragement provision or about
whether conduct falls within s. 110(2) but proceedings in which such issues arise will not be proceedings under s. 110(2). A proceeding involving an
issue about whether a provision in an industrial instrument is an encouragement provision or about whether conduct falls within s. 110(2) may
legitimately be said to relate to s. 110. Read literally s. 139(2)(b)(i) and (iii) require a nexus between the proceeding and the matter without quantifying
the nexus by adjectives such as “substantial”.
If s. 110 is put to one side, it may be said that each section named in s. 319(2), viz. ss. 278, 408F, 275, 276 and 279 is a section which creates a statutory
remedy. Chapter 12 part 2 is about proceedings to register an industrial organisation. Chapter 12 part 16 is about proceedings to deregister industrial
organisations. Chapters 3 and 4 are replete with provisions establishing statutory remedies. If there was no reference to s. 110, I should have accepted
AWU’s submission that there was a right to representation by counsel in legal proceedings under Chapter 4, and a discretionary power to allow
representation by counsel in legal proceedings under the sections, chapters and parts named in s. 319(2)(b)(iii). Such a construction is consistent with the
evident purpose of s. 319(2). One needs to know with certainty and before commencement of proceedings whether there is a right to representation by
counsel. All parties need to know with certainty and in advance whether there is opportunity for (or risk of) application for the exercise of a power to
permit representation by counsel. Proceedings in the Commission are chameleon like. Predicting in advance and with certainty that proceedings will be
about Chapter 4 or any of the sections, chapters or parts mentioned in s. 319(2)(b)(iii) will often be no easy task. Where (as here) the exercise of the
Commission’s powers to make a new (and novel) award are being exercised, prediction may require bravado as well as skill.
The difficulty is that s. 110 cannot be put to one side. Section 319(2) manifests the clearest intention to bring proceedings which relate to matters under s.
110 within the category of case in which representation by counsel is permitted by leave. There is a legislative assumption that proceedings which relate
to s. 110 would otherwise fall within s. 319(2)(b)(i). “Matter” does not necessarily mean proceeding, compare Philip Morris Inc. v. Adam P. Brown Male
Fashions Pty Ltd (1981) 148 CLR 457 at 491 to 492 per Gibbs J and at 507 to 509 per Mason J. In my view it is sufficient that the proceedings are about
Chapter 4 (representation as of right) or the section, chapters or parts mentioned in s. 319(2)(b)(iii).
By s. 341(1) appeals against decisions of the Queensland Industrial Relations Commission to this Court are permitted only on the ground of error of law
or excess or want of jurisdiction. It is not necessary to explore the boundaries of misapprehension of fact and error of law/jurisdictional error. At the
preliminary stage at which the question whether the proceedings related to Chapter 4 was posed and on the limited materials available, viz. the AWU
statements proposed to be read, the Commissions’ affirmative answer was at worst an error of fact. Further, on the basis of the assertions seriously made
from the bar table, the Commission’s conclusion that the combination of the proposed encouragement clause and the proposed definition clause raised
issues under s. 110 was open even on tests applicable to an appeal by way of rehearing. Assuming there to be power to exercise the discretion at s.
319(2)(b)(iii) in such a way as to limit the right to representation granted, the overlap of the issues about s. 110 and the issues about the AWU’s capacity
to make the application seem to me to insulate the Commission’s decision on leave from molestation on an appeal against the exercise of discretion.
I dismiss the appeal.
I reserve all questions about costs.
D.R. HALL, President.
Appearances:
Mr A.K. Herbert, directly instructed, for the appellant.
Mr J. Murdoch SC, instructed by Deacons Lawyers, for the respondent.
12 December , 2003
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Trading (Allowable Hours) Act 1990 – s. 21 – trading hours order on non-exempt shops
Retailers’ Association of Queensland Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial
Organisation of Employers) and Others (No. B1437 of 2003)
TRADING HOURS ORDER – NON-EXEMPT SHOPS TRADING BY RETAIL – STATE
DEPUTY PRESIDENT BLOOMFIELD
COMMISSIONER FISHER
COMMISSIONER BROWN
2 December 2003
Application to amend Trading Hours Order – Non-Exempt Shops Trading by Retail – State – Continuous trade proposed on 23/24 December at Westfield
Chermside Shopping Complex – Witness evidence – Elements of s. 26 of Trading (Allowable Hours) Act 1990 considered – Whether special, unique or
telling features associated with application – Whether potential for flow-on – Balancing of competing merits and arguments – Trial of extended trading
hours to be allowed in 2003, subject to 6 conditions.
DECISION
This is an application by the Retailers’ Association of Queensland Limited, Union of Employers (RAQ) to amend the Trading Hours Order – NonExempt Shops Trading by Retail – State (Order) pursuant to s. 21 of the Trading (Allowable Hours) Act 1990 (the Trading Hours Act). The application
seeks to allow the Westfield Chermside Shopping Complex (Westfield Chermside) (situated on the corner of Gympie and Hamilton Roads, Chermside,
Brisbane) to trade the following hours each year:
Opening Time
23 December ......................................................................... 0800 hours
24 December ......................................................................... 0000 hours
Closing Time
2400 hours
2100 hours
In effect, the application seeks to extend trading hours beyond the current midnight closing time on 23 December to allow non-exempt shops located at
Westfield Chermside to continue trading until 8.00 a.m. the following morning. Consequently, the extended hours sought are from 12.00 midnight on
23 December until 8.00 a.m. on 24 December thereby allowing Westfield Chermside to trade from a proposed opening time of 9.00 a.m. on 23 December
until normal closing time at 5.30 p.m. on 24 December, being Christmas Eve.
The application is opposed by the Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) (QRTSA), the
National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers (NMAA), the Shop, Distributive and Allied
Employees Association (Queensland Branch) Union of Employees (SDA) and The Australian Workers’ Union of Employees, Queensland (AWU).
In its application RAQ submitted Westfield Chermside is one of Brisbane’s major regional shopping centres which has recently undergone substantial
refurbishment and expansion. RAQ also said it now firmly believed it is appropriate to conduct a 24 hour continuous trading period in one of Brisbane’s
leading regional shopping centres, namely Westfield Chermside, following the outstanding success of continuous trading prior to Christmas at the major
regional shopping complexes of Chadstone in Melbourne and Westfield Parramatta in Sydney.
Evidence
In support of its application RAQ called evidence from Mr Paul Swerdlow, Centre Manager for Westfield Chermside; Ms Judy Argent, Franchise Owner
of the Sportsco franchise located in Westfield’s Chermside shopping centre; Mr Robin Arthur, the Owner of Dymocks Bookstore located in Westfield’s
Parramatta shopping centre; Mr Stephen Part, Queensland State Manager for Myer Grace Bros; Mr Ross Ritoli, Director of a chain of menswear retail
outlets called “Man To Man” – including stores in the Chadstone shopping centre in Melbourne and Westfield’s Parramatta shopping centre; Mr Mark
Scates, Retail Operations Manager for Kmart Queensland; Mr Marc Benson, the Franchise Owner of the Boost Juice Bars franchise located in
Westfield’s Chermside shopping centre; Mr Gerard Winzenberg, District Manager for Target Australia Pty Ltd in Queensland; and Mr Mark Northern,
General Manager Shopping Centres Queensland and New South Wales for Westfield Limited.
Without being exhaustive, their evidence dealt with the following matters:
Mr Swerdlow
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Westfield Chermside comprises in excess of 240 retailers, including major retailers and speciality chains.
In 1999, the centre commenced a major program of redevelopment at a cost of $235 million. The redevelopment increased the gross leasable
area of the centre from approximately 36,000 square metres to approximately 77,000 square metres. The final stage of the redevelopment was
completed in September 2000.
In September 2000, the centre turnover was in excess of $177 million with annual traffic of 7 million. As at August 2003, the turnover was in
excess of $360 million and traffic was in excess of 11.1 million.
Westfield Chermside incorporates the largest entertainment and leisure component of any Brisbane major shopping centre. This includes a 16
screen Birch, Carroll & Coyle cinema complex, a 26 lane bowling alley, “The Street” hospitality area and a 900 seat food court serviced by 17
kiosks.
Westfield Chermside is committed to making the proposed 24 hour trading event a success and has taken a number of measures to ensure that
the necessary infrastructure is place should the RAQ application be successful. These measures include planned liaison with public and private
transport operators, Brisbane City Council, Queensland Police, State Emergency Service, Kedron Wavell Services Club and liaison with taxi
companies and arranging extra security.
Current parking space will be complemented by an additional 700 parking spots at overflow sites in Banfield Street. These areas will be fully lit
and both mobile and static security will be provided for the duration of the event. These areas will primarily be used to accommodate parking
for staff employed by retailers at the centre.
In 2002, in excess of 70% of Westfield Chermside’s tenants participated in the midnight trading event. In addition, 100% of the fresh food
retailers in the Fresh Food Market area of the centre commenced trading at 7.00 a.m. on Christmas Eve.
In Mr Swerdlow’s view the proposed 24 hour event would build on the success of the events immediately above of 23 December 2002 and
24 December 2002.
Westfield Chermside is confident that the 24 hour trading event would be supported by the majority of tenants. Retailers occupying more than
85% of the retail space had committed to participate in the proposed 24 hour event if the application was successful.
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Notwithstanding the anticipated level of support, the participation of tenants in the event was a matter entirely for their discretion. Westfield
accepted that some tenants may elect not to trade for some or all of the proposed extended hours.
Ms Argent
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Ms Argent’s statement was filed in rebuttal of certain parts of the statements of witnesses called by QRTSA.
Ms Argent had no doubt her store would generate sufficient sales during the proposed 12.00 midnight to 8.00 a.m. period to cover the costs of
outgoings and generate a profit.
Ms Argent was aware that Sportsco stores located in the Chadstone and Parramatta centres, respectively, had traded very successfully during
their 24 hour trade periods in 2002 and she believed the experience in Chermside would be similar.
The Sportsco Chermside store had traded very well right up to 12.00 midnight on 23 December 2002 and she believed this was a good indicator
of success of the 24 hour trade concept.
In anticipation of RAQ’s application being successful she had already resolved her rostering arrangements for 23 December and 24 December
this year. Coverage from 12.00 midnight to 8.00 a.m. would be provided by herself and 2 casual employees. Other employees were also happy
to work during this period and the whole staff was excited about the proposed 24 hour event.
Mr Arthur
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Mr Arthur had been involved with 24 hour shopping events in the pre-Christmas week at St Luke’s Shopping Centre in Auckland and more
recently in 2002 at Westfield’s Parramatta shopping centre.
In each instance he found the public response to the 24 hour event was extremely positive. Indeed, the public response to the 2002 Parramatta
event exceeded the expectations of Mr Arthur and other retailers with which he had conversed.
Mr Arthur found no difficulty in staffing the extended hours. He split his staff into 2 teams, one of which worked from 9.00 a.m. to 9.00 p.m. on
23 December and then from 9.00 a.m. to 5.30 p.m. on the following day, while the other shift worked through the night from 9.00 p.m. on 23
December until 9.00 a.m. on the following day.
Trading was very busy throughout the night of 23/24 December up until about 3.00 a.m. At this point activity slowed and trading was quieter
between 4.00 a.m. and 5.00 a.m. At 5.30 a.m. brisk trading resumed and continued throughout the whole of 24 December.
The event was commercially very successful for his store.
In Mr Arthur’s view the public was attracted to the Parramatta event because of a mix of factors. Firstly, the event offered a unique set of
trading hours which appealed to certain customers. Secondly, the public regard 24 hour trading as a festive event and participate in it because
they are attracted by the entertainment, the special promotions, the live broadcasts, and the opportunity to patronise cafes and restaurants in a
night time setting. Thirdly, the public appreciate the freedom that is associated with being able to shop at literally any hour of the day at this
time of the year.
The Parramatta centre also held a midnight trading event on 19 December in addition to the 24 hour event over 23/24 December. The midnight
event continued to be very well supported by the public.
All the traders he had spoken to at Parramatta would be participating in the event when it was held again this year.
Mr Part
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The Chadstone shopping centre in Melbourne has been conducting 24 hour trading on 23/24 December each year for 8 years. In 2002, the
Westfield Parramatta shopping centre conducted 24 hour shopping for the first time. The Myer Grace Bros stores at these locations participated
in these trading hours.
Senior Myer management representatives had advised Mr Part that over 192,000 people attended the Chadstone shopping centre between
9.00 a.m. on 23 December 2002 and 6.00 p.m. on 24 December 2002. In addition, nearly 99,000 entered the Myer Grace Bros Parramatta store
alone during the same period. Customer traffic at the Parramatta store was very strong during the night with the 10.00 p.m. to 3.00 a.m. period
being particularly strong.
Mr Part’s 33 years experience as a retailer, including in senior management positions within Myer Grace Bros nationally, caused him to believe
that public support for the extended trading hours in Sydney and Melbourne would be replicated by the Brisbane public if the application was
approved.
Myer Chermside had sought expressions of interest from staff to fill the additional 560 hours involved, on a voluntary basis, if the application
was successful. After about one week sufficient interest had been expressed to fill 75% of the available hours.
Mr Ritoli
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Mr Ritoli’s company operated a number of stores, including stores in the Chadstone shopping centre in Melbourne and at Westfield’s Parramatta
shopping centre in Sydney.
Mr Ritoli had been involved with 24 hour shopping events in the pre-Christmas week at both Chadstone and Westfield Parramatta.
In each instance he found that the public response to the 24 hour event was extremely positive and the event had always represented a profitable
trading experience for his company’s stores.
The Chadstone store had participated in the 24 hour event since its inception approximately 8 years ago. In each year the store traded
continuously from 9.00 a.m. on 23 December until 5.00 p.m. on 24 December.
Man To Man had never encountered any difficulty in staffing the 24 hour event in either Chadstone or Parramatta. Both stores employed
between 10 and 12 staff and the roster for the event had always been resolved in consultation with employees.
When necessary, arrangements were made to accommodate staff nearby to ensure travel time was minimised and that the business could respond
in a flexible manner to the rest requirements of individual staff members.
Mr Ritoli’s experience with 24 hour trading at the Chadstone and Parramatta stores was that both stores traded “flat out” through the evening up
until 2.00 a.m. or 3.00 a.m. After that time, activity slowed but picked up again later in the morning. In Chadstone, the store started to get busy
from about 7.30 a.m., while in Parramatta trade picked up at around 8.30 a.m.
In Mr Ritoli’s experience the extended hours were popular with factory workers who work at night, shift workers and with hospitality
employees. When asked, some customers indicated that they preferred to shop in the less congested and more relaxed atmosphere that prevailed
during the extended hours.
Mr Ritoli’s company was very supportive of the 24 hour events at both Parramatta and Chadstone and would continue to fully support those
events in future years. The company’s experience was that these events were very popular with its customers and helped the company to
improve its profitability during a most important time of the year for retailers.
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Mr Scates
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Based upon his experience as a senior manager in Sydney, Mr Scates had determined that there were similar trading patterns and demographics
between the Sydney and Brisbane markets.
As a result, he believed the extension of trading hours as proposed at Westfield Chermside would facilitate the creation of an “event” which
would be as equally well received as it was in Melbourne and Sydney.
Kmart Chermside was the group’s number one trading store in metropolitan Queensland and ranked in the top quartile nationally.
The midnight trading event in 2002 had been well received at Chermside. 32% of the week’s sales were transacted on this day alone. Indeed,
over 20% of the day’s trade occurred in the last 3 hours (i.e. between 9.00 p.m. and 12.00 midnight), with the hours between 9.00 p.m. and
10.00 p.m. and 10.00 p.m. and 11.00 p.m. recording the strongest sales per hour of the entire day.
Information provided to Mr Scates by store management at Parramatta Kmart was to the effect that throughout the 2002 event customer traffic
varied from “extremely busy to brisk”. The quietest time of the event was between 3.00 a.m. and 5.00 a.m., but from 5.00 a.m. it became busy
and remained so until the close of business on 24 December.
If the application was successful, Kmart would offer, on a strictly voluntary basis, an additional 240 hours of employment to its staff.
Mr Scates indicated he was also authorised to advise the Commission that both Coles and Bi-Lo at Chermside would trade any additional hours
awarded, with the hours to be worked on a voluntary basis. The availability of transport would be a factor in the determination of rosters.
Each of Kmart, Coles and Bi-Lo intended to provide security escorts for staff to their vehicles and would utilise a designated exit from the
Chermside shopping complex for this purpose.
Mr Benson
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Mr Benson’s statement was filed in rebuttal of certain parts of the statements of witnesses called by QRTSA.
Although he had only owned the Boost Juice Bars franchise at Westfield Chermside for several months, Mr Benson said he would be very
surprised if additional sales and net profit did not significantly exceed the cost of additional labour if he was permitted to trade the extra hours
requested.
Mr Benson said he had come to this conclusion based on his analysis of the market and following discussion with the 2 Boost Juice franchisees
located at Westfield Parramatta.
Mr Benson said he would not have any difficulty providing coverage during the additional hours proposed through the utilisation of his salaried
staff. He had discussed the proposed 24 hour event with all of his staff and they were enthusiastic about it.
Mr Winzenberg
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In his previous capacity as District Manager in Victoria Mr Winzenberg was aware of the very successful annual event which had occurred at
the Chadstone shopping centre for the past 8 years.
During the extended trading hours the Chadstone shopping centre had taken on a very festive, fun-filled atmosphere with entertainment,
giveaways and considerable media attention. All this contributed to a different shopping experience which proved to be very popular with
consumers.
The Chadstone store utilised a total of 260 hours of employment for 33 staff between the hours of 12.00 midnight on 23 December 2002 and
8.00 a.m. on 24 December 2002.
Mr Winzenberg had personally experienced the 24 hour trading period at Christmas 1998. During that time he took it upon himself to speak to
approximately 120 customers about their background and why they were shopping at the time. He noted from those discussions that many shift
workers, taxi drivers, hospitality workers, police and ambulance drivers patronised the store.
The large number of lay-bys collected during the extended hours also suggested to him that customers chose to use the extended hours when
roads and shopping centres are less congested to collect their Christmas lay-bys.
Mr Winzenberg had received reports about the success of the events in Chadstone and Parramatta in 2002 from other managers in Target. He
had been informed that trade at both centres was very strong with a significant number of transactions being effected during the period
12.00 a.m. to 8.00 a.m. In each instance, the quietest trade period was between 5.00 a.m. and 6.00 a.m. with the trading between 3.00 a.m. and
4.00 a.m. exceeding the trade in the period 7.00 a.m. to 8.00 a.m. Further, the trade in the 2.00 a.m. to 3.00 a.m. period at both locations was
approximately double the trade in the 7.00 a.m. to 8.00 a.m. period.
If the application was approved, Kmart Chermside would offer its staff an additional 260 hours of employment, on a voluntary basis.
Mr Northern
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Mr Northern said the outstanding success of the 24 hour trading event conducted at Westfield Parramatta in Sydney in 2002 had motivated
Westfield to make the current application, through RAQ.
Westfield was confident that it could build on the success of midnight trading on 23 December each year, and use the synergy generated by the
late trading leisure and entertainment components proposed, to successfully conduct a 24 hour shopping event in Brisbane.
Although not Westfield’s largest centre in Brisbane, Westfield Chermside had been chosen because it was Australia’s first shopping centre
(opened in May 1957), because of it’s central location, because of its demographics and because it drew its customers from a broad region
covering most of the northern suburbs of Brisbane. In addition, the centre enjoyed a central location, good road access for customers who might
be from outside the centre’s normal catchment and superior retail and entertainment offers relative to other centres in Brisbane.
Confidential figures tabled by Mr Northern disclosed that customer traffic at Westfield Parramatta over 23/24 December 2002 was significantly
higher than the same two day period in 2001 (although still less than the traffic in 1999).
Further, sales in the major stores and specialty stores alike showed significant increases over the equivalent period.
Many store owners who had originally planned to trade only until midnight continued to trade until at least 3.00 a.m. because of the number of
people still in the centre after 12.00 midnight.
Trading beyond 12.00 midnight was voluntary for all retailers and their staff. Whilst many retailers traded right through the night, a number of
them chose to close around 3.00 a.m. when the pedestrian traffic fell away to some degree.
Confidential material tendered as exhibits showed a healthy stream of customers entering the Westfield Parramatta centre after 12.00 midnight
and before 9.00 a.m. the following morning. More customers entered the store between 12.00 midnight and 1.00 a.m. than entered the complex
in each of the first two hours of trade on 23 December and 24 December, respectively.
Westfield viewed the nature of the event as a “one centre event” in each city. Westfield had no intention of making any other application for any
of its other shopping centres in Brisbane to also be allowed to trade the hours sought in the current application.
Westfield was prepared to make available to the Commission any statistical data which it collected in relation to the proposed 2003 event at
Westfield Chermside if the application was successful. This would include traffic numbers, retail turnover (where available) and the hours
which individual shops traded.
As a major shopping centre owner, Westfield was confident that the concept established in Chadstone, and successfully trialled in Parramatta in
2002, would be supported by the Brisbane public. However, in order to demonstrate that the event would be successful Westfield required the
approval of the Commission. Westfield respectively asked that it be afforded the opportunity to show how successful the event could, and
would, be.
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Evidence was also called by QRTSA, in opposition to the application, from Mr Shane Leaney, Managing Director of Videopro; Mr Phillip Chapman,
proprietor of a business known as Advantage Retail Management, which specialised in retail management and leasing issues; and Mr Ralph Edwards,
Director of Bright Eyes Franchising – a sunglass retail chain. Again, without being exhaustive, their evidence dealt with the following matters:
Mr Leaney
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Videopro has a store located in Westfield’s Chermside shopping centre.
The store operated with 5 staff on a 7 day roster. Mr Leaney believed it would be impossible to roster these staff over Christmas if Videopro
traded 24 hours over 23/24 December on top of the already large span of hours for Christmas.
Videopro’s full-time staff have the greatest technical knowledge in terms of product and it would be impossible to recruit casual people who had
the requisite technical knowledge and sales experience required to generate profitable sales.
It would not be impossible to roster staff in such a way that Videopro could remain open beyond 12.00 midnight on 23 December 2003.
If the Westfield Chermside shopping centre was allowed to trade 24 hours over the period in question, Videopro’s major competitors (i.e. Myer
Grace Bros, Kmart and Target) would have an unfair advantage – particularly given their ability to roster larger numbers of staff.
Mr Chapman
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Prior to establishing Advantage Retail Management, Mr Chapman was the State Manager (Leasing) for Byvan, which was responsible for a
portfolio of 32 shopping centres, and previously worked for Coles Myer – Kmart Division as Area Manager and Woolworths – Big W as
Queensland State Co-ordinator (Soft Goods).
Mr Chapman suggested independent specialty retailers outside the Chermside centre would feel the effects of Westfield Chermside being open
24 hours. Any foot traffic in the centre meant a transfer of potential purchasers from other stores which would be closed at the time.
The major retailers in the centre would grasp sales from their own stores in other shopping centres, as well as from competitors, whilst smaller
independent retailers in the centre would be unable to benefit from a shift in foot traffic.
Retailers would be forced to incur further expenses in wages if they traded during the period in question. If the smaller retailers tried to operate
the store themselves they would leave themselves and/or their staff overly exhausted for trade on Christmas Eve, which is one of the peak
trading days of the year.
The additional hours of trade for small retailers, in particular, will be compounded by the already exhausting number of hours on late nights
leading up to 23 December 2003.
At lease renewal time, lessees would be pressured to agree to trade all available hours (including the 24 hour period).
Extended trading hours will compound the inflated reporting of gross centre sales and pedestrian traffic counts. These figures would be utilised
in leasing and/or rental negotiations and reflect a disproportionate market trend.
Mr Edwards
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Bright Eyes had sold the store it previously owned at the Chermside centre to a franchisee several weeks prior to the hearing.
As such, Mr Edwards was not in a position to indicate whether the new franchisee had any opinion about the proposed application.
Nonetheless, Mr Edwards was opposed to the application.
The parties’ cases
RAQ: Mr Black submitted trading hours for the pre-Christmas period had been the subject of a considerable number of applications to the Commission
over the last decade and a half and there were several main factors that could be distilled from the Commission’s deliberation on such applications. The
decisions established that:
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shopping during the period immediately preceding Christmas each year involves “special and unique circumstances. It is a period of
substantially increased shopping demand and a period when many consumers have limited time to shop due to their own restricted work
demands prior to the Christmas holiday period. In (the Commission’s) view, it is in the interest of both the public and consumers that adequate
trading hours be available to permit persons to shop in reasonable comfort.” (138 QGIG 96);
“fixation of trading hours for the Christmas trading period should involve a year by year examination of all the circumstances involved and
what would be a fair and equitable outcome with respect to employers, employees and the community in general” (144 QGIG 671);
“midnight trading on the night before Christmas Eve seems … to have become a social leisure activity of sufficient import to warrant its
retention” (147 QGIG 258); and
“midnight shopping expeditions had become part of the pre-Christmas commercial and social landscape” (153 QGIG 164).
Mr Black said the application seeks to introduce to Brisbane an “event” which has been successfully conducted at Chadstone for some 8 years and at
Westfield Parramatta in 2002.
Mr Black said evidence called by RAQ was intended to present the Commission with a proposition to the effect that if a 24 hour event has been
successfully conducted in other capital cities in Australia there was no reason why it could not be successfully conducted in Brisbane. With that
objective in mind, RAQ sought the Commission’s permission to give Westfield the opportunity to put that proposition to the test.
In that respect, RAQ, through its witnesses, had presented to the Commission as much evidence as was reasonably possible about the success of the 24
hour trading event in both Parramatta and Chadstone. Whilst some of this was not direct evidence, having been passed between senior managers, its
accuracy was not challenged. RAQ had demonstrated that the majority of tenants in both Chadstone and Parramatta supported the event in their centres
and had also established that the majority of tenants at Westfield Chermside supported the conduct of a similar event in Brisbane this year.
Further, Mr Black drew our attention to the evidence given by the retailers who had participated in the Chadstone or Parramatta (or both) events in
previous years. He highlighted how successful the event had been for those retailers and noted the enthusiastic way that staff of those retailers had
approached the whole event. In that respect, he noted that none of the retailers who gave evidence had experienced any difficulty staffing the additional
hours involved.
Mr Black also highlighted the passenger traffic that had come through particular stores at both Chadstone and at Westfield Parramatta as well as the
figures of Mr Northern which showed the number of customers attending the Parramatta shopping centre during the period 12.00 midnight to 8.00 a.m.
He said this traffic data had not been specifically prepared for these proceedings. Nonetheless, the data showed the strong support which the 24 hour
trading event at Parramatta had received from the general public.
Mr Black also noted that the current application had been widely advertised, and drew our attention to the fact that no other shopping centre owner had
come forward to oppose the application. He said the only opposition came from those who were “traditionally” opposed to applications of this type and
even then that group had called little or no evidence in opposition to the application. Mr Black said that, in the circumstances, RAQ was entitled to see
its application succeed or at least be given extremely serious consideration by the Commission.
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Mr Black also noted that changes to the Trading (Allowable Hours) Act 1990 in 2002 now required the Commission to “decide” rather than “regulate”
trading hours. He drew our attention to the dictionary meaning of both words noting “decide” meant “come to a resolution as a result of consideration
… resolve or settle … give judgement concerning a matter” whilst “regulate” meant “control by rule … subject to restrictions …” (both from the Shorter
Oxford Dictionary). In that respect, Mr Black also highlighted the Honourable Minister’s Second Reading Speech at the time of his introduction of the
Trading (Allowable Hours) Amendment Bill where the Minister noted:
“Amendments will be made to clarify that an object of the Act is to decide allowable trading hours of shops rather than to regulate hours. In the
past, an interpretation has been that the Act has an objective of regulating and restricting trading hours of non-exempt shops.”.
He submitted the amendments had “lowered the bar” somewhat for applicants, compared to previously.
Mr Black also stressed that the application would not have the effect of forcing any retailer to trade for any or all of the extended hours. Whether an
individual retailer traded would be a matter for that retailer to decide.
In that regard, Mr Black conceded that the experience from both Chadstone and Westfield Parramatta was to the effect that passenger traffic dropped off
to some degree between the hours of 3.00 a.m. and 5.00 a.m. However, many retailers continued to trade through this period, firstly, because there were
still customers in the respective centres and, secondly, because the logistics of closing and re-opening did not warrant shutting down for this short period.
Nonetheless, a number of smaller retailers chose to close at around 3.00 a.m. and re-open later in the day, mostly at around 8.00 a.m. Under RAQ’s
application traders would be free to decide when they closed after midnight and when they re-opened. However, based on the Chadstone and Westfield
Parramatta experiences, the majority of retailers would trade through all of the hours provided.
Finally, Mr Black said that whilst the applicant was seeking a permanent amendment to the Order it nonetheless recognised that the Commission might
be cautious about granting the application even for 2003. In those circumstances, Mr Black urged the Commission to allow retailers at the Westfield
Chermside to trade the extended hours in 2003 and to review the whole matter during early 2004. At that time the Commission could reconsider what it
might do in respect of 2004 and beyond in light of the experience of retailers, employees and the like. Mr Black indicated RAQ was prepared to assist
the Commission, and the other parties, by gathering information relevant to the success, or otherwise, of the proposed 2003 event if this was required or
requested.
QRTSA: Mr Matley said the applicant had failed to properly address the provisions contained in s. 26 of the Trading (Allowable Hours) Act 1990 and,
instead, had attempted to draw comparisons between the Sydney and Melbourne experiences. The applicant’s position seemed to be “if it works in
Parramatta and Chadstone, it MUST work in Chermside”. Mr Matley said the assumption was too broad, had not been established by the evidence and
remained “anecdotal and wishful thinking”.
It was up to the RAQ to prove its case, not those opposed to it to disprove the merits of the application. The way the applicant had conducted its case
would not allow the Full Bench to reasonably grant the application.
Mr Matley said the expansion to Westfield Chermside in recent years meant that it had grown at a faster rate than population growth in the area in
question, and that the applicant had not produced any evidence of customer demand for the extended hours sought, nor how it related to the various
matters set out at s. 26 – such as the alleviation of traffic congestion. In support of these general propositions Mr Matley prepared an extensive exhibit
(see Exhibit 21) which showed population changes in most of the Brisbane metropolitan area – with special concentration on the areas north of the
Brisbane River. He also produced population figures for the “catchment” areas for Westfield Parramatta in Sydney and the Chadstone Shopping Centre
in Melbourne. He submitted that the Brisbane figures show only marginal population increases in Westfield Chermside’s “catchment” areas and said that
the needs of the extra population had well and truly been met by Westfield Chermside’s recent expansion from 36,000 to 77,000 square metres. Further,
the population in Westfield Chermside’s catchment area was significantly below the equivalent numbers for the other centres in Sydney and Melbourne.
Mr Matley also said the application, in his view, attempted to address only two aspects of s. 26 in any detail, that being locality and the needs of large
business. In respect of “locality”, the applicant had proved no clear distinction between Westfield Chermside and any other shopping centre in Brisbane.
In respect of “large business”, he said the main beneficiaries of the proposed extended hours at Westfield Chermside would be the major stores, which
were all part of the Coles Myer group. They would benefit mainly at the expense of small retailers in that centre and elsewhere.
Further, in QRTSA’s submission, recent changes to the legislation clearly pointed to uniformity in trading hours being a significant feature of the
amendments. As such, granting of the application, would create consumer confusion and lead to a breakdown in uniformity of trading hours. Mr Matley
said if the Full Bench granted the application a precedent would be created where other major shopping centres could make application to similarly trade
a continuous 32 hour period prior to Christmas. The applicant could give no guarantee that no such applications would be forthcoming.
NMAA: Mr Wotherspoon said RAQ seemed to have approached the application on the basis that the Commission should grant the application unless
there were enough people who came forward and yelled “No” loud enough. That was not sufficient reason to grant the application. It had to be justified
on its merits. In that respect, the standard of proof necessary to establish a case depended upon the circumstances of the case. Following the 2002
amendments to the Trading Hours Act, NMAA believed there needed to be a very good case made out in order to disturb the consistency in trading hours
which had been established by virtue of the 2002 amendments to that Act. Mr Wotherspoon said no “good case” had been made out by RAQ.
Mr Wotherspoon said information provided by Westfield’s senior managers was unconvincing. Mr Swerdlow’s assertions that the proposed event was
supported by the majority of retailers lacked credible support and was also open to debate. In addition, the material provided by Mr Northern did not
support his assertions about the success of the Parramatta 2002 event, in respect of both passenger traffic and tenant support. The hour by hour customer
traffic count was unconvincing and showed a rollercoaster ride through the 32 hour trading period.
Mr Wotherspoon said that, in any event, any success at Westfield Parramatta did not automatically entitle Westfield to conduct a similar event at
Chermside. The Commission was required to consider the application within the scope of the legislative framework that applied, viz. s. 21 and s. 26 of
the Trading Hours Act.
In addition, Mr Wotherspoon took issue with the evidence of some of RAQ’s witnesses who recorded a personal opinion and provided information given
to them by other parties. Mr Wotherspoon said the Commission should treat such evidence with caution.
Mr Wotherspoon also highlighted that none of the witnesses gave any indication that successful granting of the application would generate any new fulltime employment opportunities. Rather, any additional hours would be offered to current employees. Even so, the additional earnings involved would be
of insignificant effect in terms of the total economic considerations of employment in Queensland.
Like Mr Black, Mr Wotherspoon also took us to the history of pre-Christmas trading hours applications and the approach the Commission had taken
(Exhibit 22). In this respect, he essentially highlighted the same aspects of the decisions referred to above but attempted to place a different meaning on
the Commission’s observations in each case. In particular, he said the Commission seemed to have been focussed on a year by year examination of all of
the relevant circumstances and that the Commission had cautioned there was a need to guard against having shops open unnecessarily.
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Finally, Mr Wotherspoon focussed on the obligations imposed on the Commission to consider the application in light of the provisions contained in s. 26
of the Trading Hours Act. In doing so, he noted that the Commission had, in earlier decisions, observed that not all elements of s. 26 were always
relevant and, further, that the different relevant elements might be given different weight according to the circumstances in any particular case.
SDA: Ms Town said the granting of the application was not in the public interest and not in the interests of the Union’s members – being those people
who will have to work during the proposed extended hours. Whilst various witnesses had indicated that work for the night in question would be
voluntary, only 6 retailers who had stores in Chermside had given this undertaking, leaving well over 200 stores unaccounted for.
Ms Town also said that whilst RAQ had suggested there would be no adverse effect on employees, and there may in fact be a benefit, every employee
engaged after the operative date of any Order, if the application was successful, could be required to have the “anti-social hours” imposed upon them.
This was because of the provisions of the Voluntary Work – Extended Trading Hours – Non-Exempt Shops – Award – State.
Ms Town also said that whilst penalty rates would be payable for the hours worked between midnight and 6.00 a.m. the pursuit of additional income by
employees should not necessarily outweigh the opportunity for rest, recuperation and family time of employees. In that respect, there could be an adverse
impact upon employees’ health because of insufficient rest breaks between shifts.
The Commission was invited to consider the above factors notwithstanding the general preparedness of employees to work the extended hours. She said
many employees only agreed to work extended hours because they believed they had an obligation to their employer, particularly casual employees who
would be the ones required to work most of the additional hours.
Security also emerged as a serious concern for employees in the interval between 12.00 midnight and 8.00 a.m. on 24 December. Whilst some of the
witnesses had indicated they were making efforts in relation to security issues, their evidence also disclosed some “disorganisation” at this late stage as to
the logistics. Mr Swerdlow, for example, indicated that the Police Beat at Westfield Chermside would only be manned until 12.00 midnight.
Ms Town said that employees in the exempt and independent retail stores had no right to voluntary employment during the proposed hours. In addition,
the enterprise bargaining agreements of the majority of major retailers did not provide any protections for voluntary work similar to that contained within
the Voluntary Work – Extended Trading Hours – Non-Exempt Shops – Award – State.
AWU: Mr Broanda supported the above submissions of QRTSA, NMAA and SDA. In addition, he reinforced AWU’s opposition to the application
stating it did not meet the public interest tests set out in the relevant legislation.
RAQ in reply: In response to Ms Town’s comments about lack of protection for voluntary work, Mr Black said a number of enterprise bargaining
agreements negotiated between SDA and major retailers allowed work to be performed during the disputed hours. Indeed, the agreements provided
particular penalty rates for working those hours. In such circumstances, he said, it was not open to Ms Town (on behalf of SDA) to say that it was not
right nor reasonable that employees might actually be called upon to work such hours in line with the provisions in the agreement.
Mr Black also criticised the failure of the respondents to call evidence in support of the various propositions canvassed. He said RAQ’s members were
prepared “to put their bodies on the line” but when they did they were criticised for what they had to say. If the respondents had a different proposition
to advance they had to do it by calling their own witness evidence rather than by attempting to give evidence from the bar table on behalf of persons who
had not been called.
Mr Black also said the applicant had not ignored the elements of s. 26 of the Trading Hours Act in presenting its case. Where relevant they had been
dealt with in RAQ’s evidence. The Commission would form a view about which parts of s. 26 are most relevant, or less relevant, and it would be a
matter for the Commission’s discretion as to how it weighed each of the factors in s. 26. In any event, none of the elements of s. 26 impacted negatively
on the application. A number of others were neutral, whilst the application would be viewed positively in terms of a number of other elements.
Consideration of the statutory elements
Section 26 of the Trading Hours Act requires the Commission to have regard to a number of elements in relation to whether it will make an Order under
s. 21 of the same Act. In that respect, we note another Full Bench of this Commission stated in Matter No. B1156 of 2002 (172 QGIG 542) that:
“… It should not be inferred in all applications for an extension of trading hours that all (matters identified in s. 26 of the Trading Hours Act) would
be weighted equally, e.g. some applications may substantially rely upon one or two (2) of the matters outlined in s. 26 of the Act, whilst in other
applications substantial reliance will be placed on many more of the s. 26 matters.”.
That statement was recently endorsed by another Full Bench in Matter No. B1354 of 2003 (174 QGIG 912). We similarly endorse the statement.
With those considerations in mind, we turn to the various elements we are required to consider at s. 26, in turn:
(a) the locality, or part thereof, in which the non-exempt shop or class of non-exempt shop is situated
Each of the various respondents indicated they accepted the application was within the Commission’s jurisdiction and that the application should be
heard and determined on its merits. In that respect, Mr Black said the locality of Westfield Chermside was Lot 10 on Survey Plan 128115, County of
Stanley, Parish of Kedron on Title Reference 503582209.
Westfield Chermside was Australia’s first shopping centre. It was opened in May 1957 and had off-street parking for 700 cars. The centre was
refurbished or extended in 1986, 1991, 1998 and 2000, respectively. It now comprises a total area of 78,645 square metres and has parking for 3,770
vehicles (see Attachment 12 to Exhibit 21). Pedestrian traffic is estimated at 11.1 million persons per annum.
The shopping centre has 6 major tenants, which occupy 40,006 square metres, together with 240 specialty shops which occupy 25,967 square metres.
Other tenancies include a 16 screen Birch, Carroll & Coyle cinema complex, a 26 lane bowling alley and “The Street” outdoor dining area.
The “primary trade (population) area” of Westfield Chermside is 71,000 people. The secondary trade (population) area is 238,800. This trade area
compares to approximately 300,000 in Parramatta and something of the order of 357,000 for southern Melbourne in which the Chadstone shopping
centre is located (see Attachment 16 to Exhibit 21).
Based on information contained within the various attachments appended to Mr Matley’s submissions (Exhibit 21) and paragraph 7 of Mr Northern’s
statement (Exhibit 13), Westfield Chermside is by far and above the largest shopping centre north of the Brisbane River. This is in terms of its size,
number of stores and parking facilities. It is also centrally located, being adjacent to the main northern route out of Brisbane and is adjacent to other
major east-west roads.
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1345
(b) the needs of the tourist industry or other industry in such locality or part
There was no direct evidence about how the application would satisfy the needs of the tourist industry.
The respondents led evidence from Mr Chapman to the effect that retail trade would be drawn from other retailers outside Westfield Chermside if the
application was granted. This submission was repeated from the bar table. However, when put to the test, Mr Chapman could not provide any
information to support his assertions. Neither could the respondents through their bar table submissions.
Mr Leaney also asserted that he would lose trade to the major retailers during the proposed extended hours if the application was successful.
However, his objection seemed to be based on the proposition that because he did not want to trade the extended hours proposed, none of his
opposition should be allowed to open during them either.
In all the circumstances, given the lack of hard data in support of any of the assertions about the potential impact on other industries or locations, we
do not take them into account in deciding this application. Rather, we have treated this element of s. 26 as being neutral in terms of the application.
(c) the needs of an expanding tourist industry
There was no direct evidence about this point.
(d) the needs of an expanding population
There was no direct evidence about how granting of the application would directly relate to this point.
The Commission is aware that the population of south-east Queensland is expanding by something in the order of 1,000 persons per week (by
s. 320(2)(b) of the Industrial Relations Act 1999 the Commission may inform itself on a matter in the way it considers appropriate, see 165 QGIG
49). It is reasonable to assume that at least some of this new population is moving into the expanding suburbs to the north of Westfield Chermside.
However, any such increase in population is incremental rather than massive.
Further, the material provided by Mr Matley (see attachments to Exhibit 21) suggest only small changes in Westfield Chermside’s primary and
secondary trade areas, respectively, in recent years.
Given all of the above, we have concluded that granting of the application would only have a limited positive effect on meeting the needs of an
expanding population.
(e) the public interest, consumers’ interest, and business interest (whether small, medium or large)
Like other Full Benches of this Commission in recent times (172 QGIG 142 and 174 QGIG 912), we also observe, as a matter of general comment,
that it is reasonable to state that the interests of consumers are facilitated by extending trading hours.
Each of Mr Arthur, Mr Part, Mr Ritoli, Mr Scates, Mr Winzenberg and Mr Northern gave evidence about how the introduction of a 24 hour trading
period in Chadstone and/or Westfield Parramatta had attracted shoppers to those centres and how successful the trading experience (“the event” as
some of them described it) had been. Whilst the statistical data about traffic levels and sales volumes was criticised by the respondents, we were
impressed by the number of shoppers who visited the respective locations in the period 12.00 midnight to 8.00 a.m. over the night of 23/24
December last year.
Whilst a Suppression Order prevents us from referring in detail to much of the statistical data, we nonetheless observe that the needs of a large
number of shoppers must have been met by their decision to either visit the respective centres during the period 12.00 midnight to 8.00 a.m., or to
remain in the centres if they had entered them prior to 12.00 midnight. If the Westfield Parramatta experience of 2002 is anything to go by, there
were more shoppers who entered the shopping centre between midnight and 1.00 a.m. than between 11.00 a.m. and 12.00 noon on Christmas Eve.
Further, there were almost as many shoppers who entered the shopping centre between 2.00 a.m. and 3.00 a.m. on the morning of 24 December as
entered it between 9.00 a.m. and 10.00 a.m. on the same day.
Whilst the same statistical data is not available in respect of the Chadstone shopping complex in Melbourne, the available evidence leads us to
reasonably conclude that it was not dissimilar to the Westfield Parramatta experience.
We thus conclude that the events in both Chadstone and Westfield Parramatta were extremely well supported by the public and therefore seemed to
have attracted the clear interest of consumers.
Further, we particularly note the evidence of Mr Arthur and Mr Ritoli about how the events in their respective shops in 2002 were successful for
them, as retailers, and how they look forward to further participation in the events in their respective shopping centres this year. We also note that
they had each spoken to other retailers who were similarly enthused and prepared to participate in future events. Their obvious enthusiasm about the
events and their success was apparent, notwithstanding that Mr Ritoli gave his evidence by telephone.
The events held in Chadstone over a number of years and at Westfield Parramatta in 2002 (particularly at the latter centre) have been supported by
the major retailers and speciality stores alike. Appendix 2 to the statement of Mr Northern (Exhibit 13) discloses that approximately 85% of the
retailers at Westfield Parramatta traded until at least 3.00 a.m., with many trading right through. Further, we note from Appendix 3 that only 4
traders out of 78 who returned a survey about the 2002 event indicated that they would not participate in 2003. Given the confidential sales figures
appended to Mr Northern’s statement it is not surprising that the vast bulk of retailers are supportive of Westfield conducting a similar event at
Parramatta in 2003 and have signified their preparedness to participate in it. Keeping their stores open after midnight on 23 December 2002 was
clearly worthwhile for the vast bulk of traders concerned.
We have noted, on several occasions, that a number of the witnesses referred to the 24 hour shopping experiences in Chadstone and Parramatta,
respectively, as “events”. Those witnesses reported that the centres took on a positive fun-filled atmosphere which was enjoyed by shoppers,
retailers and the retailers’ staff members, alike. Their evidence seems, to us, to support observations of previous Full Benches of this Commission
(see the extracts from earlier decisions referred to in Mr Black’s submissions (above)) about the festive places that shopping centres seem to become
on the evening before Christmas Eve as well as the social and leisure elements attached to that night.
The evidence confirms earlier Full Bench observations about the volume of pedestrian traffic and congestion generally, with traffic volumes, and
consequently sales, generally peaking on 23 and 24 December each year. On the evidence, the least congested time for shopping seemed to be
between the hours of 2.00 a.m. or 3.00 a.m. and 8.00 a.m. or 9.00 a.m. on 24 December. Between those hours shoppers who were so inclined could
find parking and shop in relative comfort compared to other periods leading up to Christmas. Such hours certainly allow those who have limited
time to shop in the pre-Christmas period an extra opportunity to complete their purchases.
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None of the parties specifically addressed us on the question of “the public interest”. Any public interest considerations were generally captured in
their respective submissions on other elements of s. 26. However, we think we would be remiss if we did not pass comment on the position adopted
by certain of the respondents to the whole of these proceedings.
We think it somewhat disingenuous that certain of the respondents expressed clear opposition to the application, including the calling of witnesses,
yet attempted to present that their role in the proceedings was to “assist the Commission” in its determination of the application based upon a “facts
and factors” approach. In our view, it is not open to any respondent who expresses clear opposition to an application to attempt to adopt such an
approach. Whilst it is certainly true that it is incumbent upon an applicant to prove its case it is equally incumbent upon a respondent seeking to
oppose a particular application to present clear evidence, and argument, in opposition. In the absence of any contradictory evidence the Commission
is entitled to rely upon evidence given where it is not seriously challenged or discredited. For that reason we have, on this occasion, relied heavily on
the evidence given by the various RAQ witnesses about the success of the events held in Chadstone over the last 8 years and in Parramatta in 2002 in
the determination of this application.
(f) the alleviation of traffic congestion
The evidence in relation to how any extension in trading hours at Westfield Chermside would help to alleviate traffic congestion arose in a general
way rather than because it was specifically directed to this point.
Mr Northern spoke about the considerable traffic congestion during the evening of 23 December 2002 at, and around, the Westfield Parramatta site
with customers waiting for up to 2 hours to find a parking space. However, the volume of traffic had reduced to a manageable level by
approximately 1.30 a.m.
Mr Winzenberg said the extended hours were utilised by many customers at the Target store in Chadstone to come to the centre to, in particular,
collect lay-bys. On his recollection, over 400 lay-bys were collected during the period 12.00 midnight to 8.00 a.m. in 1998.
We think it reasonable – based upon our individual experiences as consumers in the pre-Christmas period – to conclude that granting of the
application would help to alleviate traffic congestion on the evening of 23 December and in the morning of 24 December, with some potential
customers either delaying their visit to Westfield Chermside until after midnight on 23 December or choosing to come before the usual time of
opening on Christmas Eve.
In our view, grant of the application would have a small positive impact on the alleviation of traffic congestion, albeit difficult to calculate with any
precision.
(g) the likely impact of the Order on employment
Each of Ms Argent, Mr Part, Mr Scates, Mr Benson and Mr Winzenberg gave evidence that there would be additional working hours made available
for existing staff if the application was granted. However, because the event only involves an additional 8 hours of work, none of the witnesses
intended to engage additional labour especially for the proposed event. Rather, the extra hours would be accommodated by inserting additional
hours into the roster and rearranging the working hours of existing staff.
As such, granting of the application would have a neutral effect on employment.
(h) the view of any local Government in whose area the Order is likely to have an impact
The Brisbane City Council was served with a copy of the application and entered an appearance at the first mention of the matter. The Council
subsequently wrote to the applicant, on 30 October 2003, indicating that it did not oppose the application but did not intend to take part in the
proceedings.
Consequently, the Commission simply notes Brisbane City Council’s view on the application.
(i) such other matters as the Industrial Commission considers relevant
There are a number of matters we propose to consider under this heading and, for the sake of convenience, we have separated them by topic, as
follows:
(i)
Consumer confusion and/or desire for consistency
The various respondents urged the Commission to refuse the application for a number of reasons, including the particular reason that granting
of the application would cause consumer confusion and lead to a possible breakdown in the consistency of trading hours brought about as a
result of the actions of the Government to enact the Trading (Allowable Hours) Amendment Act 2002.
We do not think that the issue of consumer confusion and/or the desire for consistency of trading hours has as much relevance in this case as it
did in the recent case involving an RAQ application for extended trading hours on Boxing Day in the Area of City Heart of Inner City of
Brisbane (Matter No. B1354 of 2003 reported at 174 QGIG 912). It is clear to us that the amendments to the Trading Hours Act were
primarily to ensure consistency of hours in the south-east corner of the State on Sundays and public holidays. In that regard, the 2002
amendments have little relevance to the current application.
The provisions of the Trading Hours Act make it quite clear that any applicant is entitled to bring an application, at any time, in respect of
trading hours and to have it heard and determined in accordance with the requirements of the Trading Hours Act. Save and except for the
matters dealt with at s. 21 and s. 26 there is no additional matter required to be taken into account by this Commission in deciding such
applications. As such, there is no special onus attached to applications such as the one presently before us.
Whilst consistency of trading hours across a locality, and between localities, is certainly desirable, there have been instances where the
Commission has, on a case by case consideration, determined to grant particular trading hours for a locality (in the generally understood sense
of that word) or in respect of a discrete locality (see the Oasis Shopping Centre case reported at 131 QGIG 758 and the Coles Express case
reported at 159 QGIG 220). In each case, the Commission has made it clear that its decision has been based upon the merits of the particular
case having regard to its consideration of the statutory elements, now recorded at s. 26. Although there are no additional impediments we
nonetheless believe “standard” trading hours, as recently established by the Trading (Allowable Hours) Amendment Act 2002, should not be
varied unless there is some telling, important or “unique” feature about a particular application (see the pronouncement of another recent Full
Bench of this Commission 174 QGIG 912 at 918).
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1347
In that respect, we think there are some special or unique features about this application. Firstly, the available evidence suggest that this type
of event is a “one centre per city” event. Secondly, apart from those who traditionally oppose extended trading hours applications there is no
opposition to this application. Importantly, there is no opposition from any other major shopping centre owner. For these reasons we think the
potential for flow-on is extremely limited.
Thirdly, although clearly less important, the proposed event at Chermside is special in its own right with extra marketing, promotions and
giveaways designed to add to what is already a busy, fun-filled and exciting shopping period for many consumers. Other special or telling
features are recorded in our ultimate conclusion (below).
(ii)
Lack of consumer pressure
The respondents pointed to a lack of any evidence that the proposed extended trading hours had been the result of any public or consumer
pressure and questioned whether any extended hours were necessary given the gradual expansion of trading hours leading up to Christmas
over recent years.
It is true, as the respondents assert, that there is no particular evidence of any public or consumer pressure for the extended hours proposed.
However, it is also clear that the application is made on behalf of a very experienced centre owner which conducted a highly successful 32
hour continuous trading event at Westfield Parramatta in Sydney on 23/24 December 2002. That experience has led that centre owner to
conclude – based upon its particular knowledge and experience of the Brisbane market – that a similar event would also be successful if it
were allowed to conduct it at Westfield Chermside.
Whilst Westfield makes it plain that the proposed event would be in its commercial interests, it also makes it clear that it would be in the
commercial interests of its tenants and in the general interest of the current customers of Westfield Chermside, as well as those who might be
attracted to the centre by the proposed extended hours.
In any event, we do not think it important that we were not provided with any survey material showing how consumers might, or might not,
have reacted if they were asked did they approve the proposed application. Past experience leads us to conclude that such surveys are
indecisive and not necessarily reflective of the actual intention of participants. The only true survey, as many politicians are fond of saying, is
the one taken on the day in question. We think that hard data, based upon actual experience rather than on survey participants’ proposed
intentions, is a more relevant tool to assess the success or otherwise of an event such as the one proposed.
(iii)
Security
During her cross-examination of various witnesses, as well as during her submissions, Ms Town particularly emphasised the SDA’s concerns
for the security of staff should the proposed application be granted.
In this respect we note the evidence of Mr Swerdlow about the extra security precautions which Westfield will implement over the proposed
additional trading period and are generally satisfied as to the adequacy of the proposed arrangements. However, we note, with some concern,
his advice that the Queensland Police Service does not currently plan to staff the Police Beat at the shopping complex beyond 12.00 midnight.
We address this point in our ultimate decision (below).
We also note the evidence of Mr Part, Mr Scates and Mr Winzenberg to the effect that Myer, Kmart, Coles, Target and Bi-Lo at Westfield
Chermside propose to have a special exit point for their staff to leave the centre and that such staff will be escorted to their vehicles with the
escorts ensuring that the vehicles start before ceasing their escort. We are generally satisfied that these arrangements are satisfactory but,
again, say something more about this in our ultimate decision (below).
(iv)
Voluntarism – retailers
We note the assurances of Mr Black, on behalf of the applicant, together with the assurances of Mr Swerdlow and Mr Northern respectively,
on behalf of Westfield, that no retailer will be “pressured”, either directly or indirectly, into trading for all or any part of the proposed
extended trading hours. We also note Mr Northern’s comments to the effect that any such decision would not be held against the retailer
concerned in any future lease negotiation.
We have taken these assurances into account in making our ultimate decision (below).
(v)
Voluntarism – employees
Each of the retailers who gave evidence affirmed that any additional hours which might be worked, should the application be granted, would
be worked on a voluntary basis with no employee being pressured, or directed, to work such hours if they chose not to.
However, we are concerned about the existing protections that employees of other employers located at Westfield Chermside might have
given the limited scope of coverage of the Voluntary Work – Extended Trading Hours – Non-Exempt Shops – Award – State and its nonapplication to independent and exempt retailers. We address this point in our ultimate decision (below).
Conclusions
As noted above, any applicant bringing a matter before the Commission pursuant to the provision of the Trading Hours Act is entitled to have their
application heard and determined on its merits in accordance with the provisions of that Act. In that respect the principal object of the Act (at 3(a))
imposes an obligation on the Commission to decide the allowable trading hours of shops. Such requirement is replicated in the specific provisions of
s. 21.
Previous Full Benches of this Commission have also made it clear that all applications coming before the Commission will be heard and determined on
their specific merits, having regard to the facts and circumstances of each particular case. However, there will need to be some special, “unique” or
particularly telling feature about an application before it will be granted (174 QGIG 912 at 918).
With those considerations in mind, we have decided, after balancing the competing arguments and considerations, to allow retailers at Westfield
Chermside (Lot 10 on Survey Plan 128115, County of Stanley, Parish of Kedron on Title Reference 503582209) to trade during the period from 12.00
midnight on 23 December 2003 until 8.00 a.m. on 24 December 2003 on a trial basis only, subject to certain conditions (below).
The applicant has established that there are special and unique features associated with this application – at least so far as that they should be allowed to
conduct a trial of the proposed extended hours. Some of these special features – such as the fact that only one shopping centre in each of Melbourne and
Sydney have thus far conducted such an event – spelt out above. Others are referred to below.
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Whilst it is acknowledged that neither Victoria nor New South Wales has regulated trading hours, it seems to us that the success of the Chadstone and
Westfield Parramatta events cannot be ignored. The evidence in these proceedings is to the effect that Chadstone has conducted continuous trading over
the 23/24 December period for approximately 8 years and Westfield Parramatta conducted a similar successful trading event in 2002. Such continuous
trading events were clearly supported by a large number of consumers and the vast bulk of retailers in each of those centres.
Despite this apparent success, no other centre owner (with the possible exception of the High Point shopping centre in Melbourne this year) has followed
suit and conducted similar events. We believe this history – in a deregulated environment – lends weight to Westfield’s assertion that the proposed
extended hours are essentially a “one centre per city” event.
In addition, we do not believe that we can ignore the view of Westfield Ltd, a highly experienced centre owner, that has assessed that the time is now
appropriate for one centre in the greater Brisbane area to be allowed to trade for 24 hours over the 23/24 December period. We think that that assessment
deserves to be given appropriate weight and recognition in our consideration of the matter.
Finally, we record that our consideration of the requisite elements of s. 26 of the Trading Hours Act results in the application receiving either a positive or
neutral assessment. Importantly, none of the elements delivers a negative assessment.
In all of the circumstances, especially the point that neither the applicant nor the respondents will really know whether the event will succeed or fail
unless it is allowed to happen, we have determined to allow for a trial, subject to the following conditions.
Firstly, we reinforce that participation in any, or all, of the extended hours will be voluntary for all retailers in the centre.
Secondly, we indicate that it would be our expectation that all retailers, whether they be exempt, independent or non-exempt shops, would only staff any
extended trading hours through voluntary participation by their employees. We would take a dim view of any evidence that any employee may have
been pressured – either directly or indirectly – into agreeing to participate in the extended hours. The parties should consider the possible reaction of a
future Full Bench should evidence of such pressure be presented to a hearing into a similar application for 2004.
Thirdly, we are concerned that, on present advice, Queensland Police Service does not propose to staff the Police Beat at Westfield Chermside beyond
12.00 midnight on 23 December 2003. We would require Mr Swerdlow, on behalf of Westfield Ltd, to approach the Queensland Police Service with a
view to having the Queensland Police Service agree to staff the Police Beat for the duration of the proposed extended hours, if necessary with officers on
“special service” at Westfield Ltd’s expense. However, we recognise that whether the Police Beat is staffed, either at the expense of Queensland Police
Service or of Westfield Chermside, is a matter for the Commissioner for Police.
Fourthly, SDA has expressed some concerns about the security arrangements proposed for staff of the Coles Myer group of companies (viz. Myer, Kmart,
Coles, Target and Bi-Lo) claiming that such arrangements are “disorganised”. We encourage the parties involved to meet to discuss the proposed
security arrangements and methods whereby all affected employees are made alert to the agreed arrangements.
Fifthly, we would expect RAQ, most probably through Westfield, to collect data about:
•
•
•
•
•
•
Pedestrian traffic levels in Westfield Chermside over the 14 day period up to and including 24 December 2002. If available, this data should be
provided on an hour by hour basis. However, if it is not available in such format, we would require the figures on a day by day basis.
Pedestrian traffic levels in Westfield Chermside on an hour by hour basis over the 14 day period up to and including Christmas Eve 2003.
The level of traffic congestion in the parking areas (as best as Westfield is able to report) during the whole of the trading period from opening on
23 December 2003 until closing time on 24 December 2003.
The names of retailers which traded through the whole of the event and the names and times at which other traders which did not trade for the
whole of the event may have closed their doors and reopened them on the morning of 24 December 2003.
Changes in the turnover of individual stores within the Westfield Chermside complex, in percentage terms, in the period covering 23/24
December 2003 versus the same two dates in 2002.
Any security incidents attended by security personnel engaged by Westfield Chermside during the period 23 December 2003 to 24 December
2003, inclusive.
Sixthly, we would expect Westfield Chermside to cooperate with any of the current respondent organisations who may wish to visit the centre at any time
during the approved period of continuous trade on 23/24 December 2003 and where such organisation may wish to take photographs or video, conduct
surveys and/or conduct traffic counts. Obviously, any such activity should not interfere with the normal workings of the shopping complex. If it did,
Westfield would be entitled to act within its rights as the owner of the centre. We require each of the respondents to alert RAQ and Westfield, as well as
the Commission, of any intention they may have to visit the centre and/or conduct surveys and the like by close of business on 10 December 2003. If
there is any such intent signified, and the parties are unable to reach agreement about how the intent might be accommodated, leave is reserved to the
parties to approach a member of this Bench to have that matter conciliated or determined.
Finally, the Commission indicates that it will reconvene these proceedings at 10.00 a.m. on Friday, 19 March 2004 for the purpose of receiving the
material requested under the fifth point (above) and programming proceedings in relation to 23/24 December 2004, and perhaps beyond. If necessary,
appropriate orders under s. 679 of the Industrial Relations Act 1999 can be issued at that time to protect the commercial sensitivity of the data which we
require.
The applicant is directed to provide a draft Amendment to the Trading Hours Order giving effect to this decision by 12.00 noon on Friday, 5 December
2003.
The Commission determines and orders accordingly.
A.L. BLOOMFIELD, Deputy President.
G.K. FISHER, Commissioner.
D.K. BROWN, Commissioner.
Hearing Details:
2003 22 September
2003 24, 25 November
Released: 2 December 2003
Appearances:
Mr G. Black, for the Retailers’ Association of Queensland Limited, Union
of Employers.
Mr D. Matley and Mr J. Price, for the Queensland Retail Traders and
Shopkeepers Association (Industrial Organisation of Employers).
Mr. R. Wotherspoon, for the National Meat Association of Australia
(Queensland Division) Industrial Organisation of Employers.
Ms P. Town, for the Shop, Distributive and Allied Employees Association
(Queensland Branch) Union of Employees.
Mr D. Broanda, for The Australian Workers’ Union of Employees,
Queensland.
12 December , 2003
1349
Industrial Relations Act 1999 – s. 639(4) application for deregistration order
Industrial Registrar AND The Australian Stevedoring Supervisors Association (Queensland) Union of Employees (No. U29 of 2003)
PRESIDENT HALL
COMMISSIONER BECHLY
COMMISSIONER BROWN
2 December 2003
REPORT ON DECISION (as edited)
In giving their decision from the Bench on 24 November 2003, the Full Bench stated:
“After reading the application of Eric Carl Ewald sworn on 6 October 2003 and after hearing the Industrial Registrar as Applicant, there being no
appearance on behalf of The Australian Stevedoring Supervisors Association (Queensland) Union of Employees this Full Bench of the Queensland
Industrial Relations Commission orders that the registration of the said Union as an industrial organisation of employees be wholly cancelled.
The Commission is adjourned”.
Dated 2 December 2003.
By the Commission,
[L.S.] G.D. SAVILL,
Acting Industrial Registrar.
Appearances:
Mr E.C. Ewald, Industrial Registrar, Queensland Industrial Relations Commission.
###########################################################################################################################
Industrial Relations Act 1999 – s. 74 – application for reinstatement
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland
(for Larry Schloss) AND Mount Isa Mines Limited (No. B886 of 2003)
DEPUTY PRESIDENT BLOOMFIELD
27 November 2003
Application for reinstatement – Collision between vehicles – Investigation – Prior safety incidents – Whether respondent entitled to take these into
account – Whether a denial of natural justice – Applicant found to have been driving in a negligent fashion – Termination not harsh, unjust or
unreasonable – Application dismissed.
DECISION
Introduction
Mr Larry Schloss seeks reinstatement to his position as Operator/Driver in the Mobile Fleet Workshop at Mount Isa Mines Limited (MIM). Mr Schloss
had been employed in this role from October 1994 until the termination of his employment on 8 May 2003, following an incident in a Kress Hauler in the
Copper Smelter area early in the morning on 27 April 2003.
The incident in the Kress Hauler
A Kress Hauler is a modified scrapper which has been adapted to carry a slag pot. Its function is to cart slag pots – containing approximately 47 tonnes
of molten slag - from the copper smelters at MIM to cooling dams. The slag is usually between 1100 and 1200 degrees celsius. The Kress Hauler has a
rotatable seat which enables the operator to operate the unit from either the forward or the reverse seat position. All the levers relating to picking up,
securing and tipping slag pots are on the rear dash of the Kress Hauler. Because of this operators must be in the “reverse” position to carry out these
tasks.
Mr Schloss started his shift at 5.30 p.m. on 26 April 2003. His task for the shift was to remove slag pots from the Rotary Holding Furnace (RHF) and
Copper Smelter Aisle (CSA) with the Kress Hauler and to dump the slag in a cooling dam, located about one kilometre away. He was also expected to
use his initiative to use a dozer to rip the slag dams during the shift. Mr Schloss performed this task when he was not required to collect and carry slag
pots.
Somewhere around 2.30 a.m. Mr Schloss returned to the Copper Smelter area after dumping slag. He parked the Kress Hauler and alighted the vehicle to
relieve himself against a nearby concrete wall in the pot lay-down area. The pot lay-down area is used to store empty slag pots, as well as full slag pots
while the Kress Hauler operator takes an empty slag pot into the RHF or CSA. When a new “empty” slag pot is placed into the RHF or CSA the operator
returns in an empty Kress Hauler, collects the full slag pot and carries it to the cooling dams for dumping. After this, the process is repeated with the
operator returning the now empty slag pot to the pot lay-down area before readying himself to collect the next full slag pot.
After returning to the cabin of the Kress Hauler, Mr Schloss noted that the signal light above the RHF and Converter entrance was green. This signalled
to him that another slag pot was full and ready for collection. Sitting in the reverse position Mr Schloss manoeuvred the Kress Hauler away from the pot
lay-down area towards the RHF slag bay. This meant he was facing the way he was travelling. Once he had travelled approximately 20 metres towards
the RHF and Converter entrance he manoeuvred the Kress Hauler slightly to the left to line it up with 2 concrete walls (a further 20 metres away) that had
to be travelled down to get to the full slag pot. The Kress Hauler itself is approximately 6 metres wide and there is approximately 0.3 metres clearance
between each side of the Kress Hauler and the concrete walls. Once in position Mr Schloss secured the slag pot.
Mr Schloss claimed that before he began to “reverse” out of the slag pot bay with the full slag pot he looked to the right-hand side of the cabin to a
special reversing mirror fitted to the side of the Kress Hauler. As he did so he looked towards the No. 4 Converter to check if there was any personnel in
the vicinity before moving out of the slag pot bay. Sitting in the reverse position (i.e. which involved him “backing” the Kress Hauler out of the slag pot
bay) he claimed he looked into the reversing mirror to check his initial exit path to ensure it was clear. Once he established the route was clear he started
to manoeuvre the Kress Hauler away from the RHF slag pot bay.
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12 December , 2003
Mr Schloss claimed once he started to move off he looked towards the rear of the Kress Hauler (his front) to make sure he did not get caught on the walls.
While driving out, but still sitting in the “reverse” position, he alleged he kept an eye on both rear walls, rear tyres and behind the No. 4 Converter (to
ensure there was no-one walking around). Mr Schloss says he continually checked these areas by moving his head back and forth. He also claimed he
watched the reversing mirror on his right-hand side, to keep an eye on the concrete wall on the opposite side of the RHF slag pot bay (some 25 to 30
metres behind him) to ensure his path was clear. Mr Schloss said he always used this wall as a guide to change direction (i.e. a slight left-hand turn as he
was reversing out [although the Kress Hauler was actually moving forward]) to head back out to the pot lay-down area.
Mr Schloss said as he was moving the Kress Hauler forward, whilst still sitting in the reverse position with his back to the direction of travel, towards the
wall and just before he was to make the slight left-hand turn, he collided with a water truck. Mr Schloss claimed that at the time of impact with the water
truck he was checking the path towards the concrete wall which he used to judge the point at which he should make his slight left-hand turn.
The Kress Hauler collided into the rear right-hand side of the water truck. This was to Mr Schloss’ left rear side whilst he was still in the “reverse”
position. The Kress Hauler was extensively damaged on its front left-hand side as one faces the vehicle (photos of the damage were tendered into
evidence) and cost some $46,000 to repair.
Mr Schloss claimed that at all times while he was heading out of the slag pot bay he was continually checking the rear walls, rear tyres, behind No. 4
Converter and the concrete wall to ensure that he did not hit the wall, spill the pot, or damage the Kress Hauler, and to ensure that his path was clear. He
said he was satisfied that he was checking all areas for possible obstacles or problems while moving the Kress Hauler off and was satisfied that his path
was clear. The collision came as a complete surprise.
After he collided with the water truck, Mr Schloss reached for the two-way radio to call his shift boss to let him know about the accident. However, the
two-way radio did not work because of the damage to the front of the Kress Hauler. Accordingly, Mr Schloss used his mobile phone to let the shift boss
know what had happened. At about this time Mr Schloss realised the Kress Hauler was still rolling forward and applied the brake.
Mr Schloss said the water truck should not have been in the Copper Smelter area when the accident happened. The procedure of changing slag pots was
carried out in a restricted area where permission must be granted by the Kress Hauler operator before other vehicles can enter. If this permission is not
given, other vehicles may not enter the area. In addition, there are signs near the entrance to the area stating that only authorised vehicles may enter and
that the Kress Hauler operator must be contacted for permission before entering the area.
Mr Schloss said he was not contacted by the water truck operator for permission to enter the area and nor was he aware that the water truck was in the
area before the accident happened.
The investigation
Mr Mick Hogarth, Superintendent in the Transport Department of the Services Area, said he was contacted at home early on the morning of 27 April
2003 and advised that the Kress Hauler had collided with the water truck. Mr Hogarth elected to go into work to see what had happened.
Upon his arrival, he found that the water truck was damaged on it’s rear right-hand side. The left-hand front of the Kress Hauler was significantly
damaged. Mr Hogarth arranged for an acting supervisor to take photographs of the damage to the respective machines and where the Kress Hauler and
water truck ended up. Mr Hogarth said that whilst inspecting the area he noticed there were water spray patterns on the ground. It appeared to him, from
the spray patterns, that the water truck had backed into the pot bay and watered the area. This was the usual practice. Mr Hogarth said he also noticed
the conditions that night and saw all lights were working and the area was well lit.
Mr Hogarth said he started to question Mr Schloss and Mr Harrison, the driver of the water truck, about the accident after they returned from their drug
tests. Both men were quite shaken so he arranged for the shift supervisor to take them both down to the Transport office to see if he could get some
further information from them and to start filling out an incident investigation report.
On the following day Mr Hogarth met with Mr Harrison (an employee of Skilled Engineering), as well as 2 managers from Skilled Engineering. Mr
Harrison was asked to describe the previous evening’s events.
Mr Harrison told Mr Hogarth that about 2.20 a.m. he set off to water the Kress Hauler road (between the Copper Smelter area and the slag dams). He
called Mr Schloss on the radio before leaving but received no answer. He then proceeded to water the Kress Hauler road. Once he had entered the pot
lay-down area, he stopped on the western side of the Kress Hauler. The Kress Hauler was parked at the pot stand. He called on the radio again but
received no response. The Kress Hauler travelled to the pot bay to pick up a pot. Mr Harrison said he followed the Kress Hauler which drove into the
pot bay. He watered on the way in and then turned around behind the Kress Hauler. He then reversed the water truck into the pot bay beside the Kress
Hauler on its eastern side, turned the sprays on and started to drive out, watering the area as he moved forward. While he was driving out he was hit in
the rear by the Kress Hauler. Mr Harrison estimated he had travelled some 4 metres when he was hit. He said the force of the impact pushed the water
truck forward with some force. Mr Harrison told Mr Hogarth he looked in his mirror as he was hit and noticed hot slag spill over the top of the slag pot.
Mr Hogarth said Mr Harrison acknowledged he had done the wrong thing because he had entered a restricted area without permission. Mr Hogarth said
he agreed that what Mr Harrison had done was a serious safety breach and told him he was stood down whilst the investigation continued.
Mr Hogarth said he then met with Mr Schloss who was asked to tell his version of events.
Mr Schloss essentially recounted the version of events set out above but, in addition, indicated he had not spoken to the RHF operator before moving in
to collect the full pot but had merely acted on the green light. Mr Schloss also said he did not hear the water truck reverse into the area when he was
picking up the full pot and, specifically, he did not hear the reversing siren nor did he see the lights on the water truck.
Mr Hogarth said Mr Schloss told him the Kress Hauler had not travelled far before it hit the water truck. After that, the Kress Hauler rolled forward until
he (Mr Schloss) applied the park brake to stop the machine moving. Mr Schloss claimed that the water sprays were not on and also said that no slag had
splashed out over the pot.
On the following day Mr Hogarth continued with his investigation into the incident. He and several safety advisers went to the incident site. They
parked the Kress Hauler and the water truck in the positions they were in when Mr Hogarth arrived on the night of the incident. Mr Hogarth said they
then moved the Kress Hauler back and parked it at the position where Mr Schloss said the Kress Hauler was situated when he collided with the water
truck. The investigators then backed the water truck to within a metre or two of the point of impact.
Mr Hogarth said he then got into the Kress Hauler and looked in the rear vision mirror. He could clearly see the water truck in the rear vision mirror and
said it virtually filled the whole of the mirror. There was nothing obstructing the view.
Mr Hogarth said that for the remainder of that day and the following day he thought about the investigation findings, particularly the outcomes of the reenactment. Mr Hogarth said he came to the conclusion that Mr Schloss did not follow the correct procedure by failing to turn the seat around to the
forward position as he drove out of the RHF slag pot bay and, further, that he simply did not look in the rear vision mirror before moving the Kress
Hauler out of the bay.
12 December , 2003
1351
Mr Hogarth said in his view there was no way that Mr Schloss could have missed seeing the water truck had he looked. Although he agreed that the
water truck should not have been in the area he also thought that did not take anything away from the seriousness of Mr Schloss’ conduct. Mr Hogarth
said that just because an area is restricted, it does not mean that operators can assume things. Everyone is expected to watch where they are going when
driving heavy machinery. A failure to do so creates significant risk.
Mr Hogarth said he ultimately came to the conclusion that Mr Schloss’ failure to watch where he was going was serious. Given Mr Schloss’ history of
safety incidents (see below) he reached the conclusion that he could no longer trust Mr Schloss to operate heavy equipment. As a result, he came to the
view that Mr Schloss should show cause why his employment should not be terminated.
On 1 May 2003, Mr Hogarth spoke to Mr Ross Willis, General Manager Services Area, about the accident and the results of his investigation. Mr
Hogarth said he told Mr Willis that it was his view that both Mr Schloss and Mr Harrison were to blame. Neither of them had followed the correct
procedure. Furthermore, it was Mr Hogarth’s view that Mr Schloss was not looking where he was going and was therefore operating the Kress Hauler
negligently. It was just not a case of him looking but unfortunately failing to see the water truck. Mr Hogarth said he told Mr Willis that Mr Schloss had
a history of safety incidents whilst operating machinery and, following this latest incident, he considered him to be a safety risk. He recommended that
MIM should ask Mr Schloss to show cause why his employment should not be terminated.
Mr Hogarth also spoke to the manager of Skilled Engineering and informed him that Mr Harrison was considered to be a safety risk because he had failed
to follow fundamental safety procedures and his services were no longer required.
On 2 May 2003, Mr Hogarth spoke to Mr Schloss in company with 2 other management representatives. He told Mr Schloss that he considered that Mr
Schloss was at fault because he did not follow the correct procedure (by operating the Kress Hauler in the reverse position rather than the forward
position) and because he was not looking where he was going. Mr Hogarth told Mr Schloss that he had a history of procedure related incidents spanning
the last few years and that he had trouble with the idea of Mr Schloss continuing to drive machinery because he was at risk of injuring himself and others.
Mr Hogarth said he told Mr Schloss that he would be required to show cause at 11.00 a.m. on 6 May 2003 why he should hold his job. On that day, Mr
Hogarth chaired the show cause meeting for Mr Schloss. At the conclusion of the meeting he told Mr Schloss he would consider what had been said and
would get back to him.
One of the issues raised by Mr Schloss during the show cause was that he needed to reverse out of the pot bay so that he could keep an eye on the wheels
to prevent pivot caps from being ripped off. Mr Hogarth did not believe this issue to be relevant because steel plates had been welded onto the vehicle to
prevent that from happening. Another issue raised was the fact that the water truck was in the area without permission. Mr Hogarth said he agreed with
that comment but did not think it changed anything. He said the main issue for him was Mr Schloss’ claim that he had looked in the mirror. Mr Hogarth
said he simply did not believe Mr Schloss’ claim. He said his investigation (on 29 April 2003) led him to conclude that had Mr Schloss looked in the
mirror he would have seen the water truck.
Mr Hogarth said that given the seriousness of the incident, Mr Schloss’ history of safety incidents and the fact he had lost faith in Mr Schloss’ ability to
safely carry out his role, he was left with little option but to terminate Mr Schloss’ employment. Mr Hogarth said he did not consider that Mr Schloss
could be given any other job because all operator jobs on the lease involved the use of equipment or machinery of one form or another. In the
circumstances, he decided to terminate Mr Schloss’ employment.
Prior incidents
On 1 May 2000, Mr Schloss was involved in an incident in which he failed to engage the slag pot locks to secure the pot to the back of the Kress Hauler.
This incident happened on a day when there was approximately 10 maintenance vehicles in the area together with 20 to 25 maintenance staff. Mr Schloss
said at the time he was engaging the slag pot locks a slurry truck driver contacted him on the two-way radio to gain permission to enter the restricted area.
This contact, together with the high volume of people and vehicles in the area, distracted him as he was attempting to engage the slag pot locks. Mr
Schloss said he was not counselled or issued with a warning after this incident.
In accordance with MIM’s policies and procedures any warnings on an employee’s file are “de-activated” after 2 years and not taken into account in any
later disciplinary process. In any event, the above incident has not been directly relied upon by MIM to justify the decision to terminate. Rather, it was
pointed to as just one other example of incidents, involving safety, during Mr Schloss’ recent period of employment.
Mr Schloss was also involved in another incident while driving the Kress Hauler on 10 July 2001. An investigation into this incident concluded that Mr
Schloss had lost concentration and hit a guard rail while transporting molten slag from the smelter to the slag dams. The collision with the guard rail
caused slag to spill which in turn caused a grass fire. Mr Schloss put out the fire with the extinguisher in the Kress Hauler but failed to report either the
incident or the use of the fire extinguisher. The incident was discovered the next day when the Kress Hauler driver on the following shift noticed the
damage and reported it to Mr Hogarth. Mr Schloss said he was not formally counselled or disciplined over his incident which he claimed was linked to
driver fatigue because he had not taken any breaks for the previous 10 to 11 hours.
Mr Hogarth said Mr Schloss’ failure to report the incident was a significant breach of procedure and would normally have warranted disciplinary action
in the order of a final warning or perhaps dismissal. However, at the time, Mr Schloss was going through some tough personal issues arising from the
breakdown of his marriage. Mr Hogarth said that he took this factor into account when he decided not to take any form of formal disciplinary action
against Mr Schloss. Mr Hogarth said he felt that if he had taken disciplinary action at the time it probably would have broken Mr Schloss. Instead, Mr
Hogarth spoke to Mr Schloss about the seriousness of the incident and warned him that he must “pick up his game”. Mr Hogarth said Mr Schloss
promised him that he would, in the future, comply with all safety and other procedures.
Mr Schloss was involved in yet another incident involving the safe operation of equipment on 29 July 2002. On that day, Mr Schloss was operating a
front-end loader “tramming” dry zinc from a stockpile at the south end of the zinc pad to the stockpile at the north end of the pad. Tramming is carting
product from one area to another. Mr Schloss said that some 8 to 9 hours into a 12 hour shift he sneezed and involuntarily hit the joystick of the loader
with his hand. This caused the loader to veer right and the corner of the machine’s bucket hit a wooden fence near to where he was travelling. Mr
Schloss said there was no damage to the machine but there was a hole punched in the fence, approximately 10 feet round, from the loader’s bucket.
An investigation established that Mr Schloss was carrying the bucket too high which restricted his visibility. Mr Schloss was issued with a written
warning in relation to this incident.
The “appeal” through the Fair Treatment Process
Some time after his termination Mr Schloss lodged a fair treatment form challenging his dismissal. The matter came before Mr Ross Willis, the General
Manager of Business Unit Services. Mr Willis conducted the fair treatment hearing on 26 June 2003.
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12 December , 2003
At the meeting, Mr Willis noted that Mr Schloss’ major concern was the way that the incident had been investigated. Mr Schloss was also concerned that
MIM had not taken sufficient account of the fact that the water truck had proceeded into a restricted area without permission. In addition, Mr Schloss
challenged MIM’s apparent reliance on the fact that he was operating the Kress Hauler, at the time of the incident, in the reverse position rather than in
the forward position. Mr Schloss said he had been trained to operate the vehicle in this position and, as far as he knew, all other operators operated the
vehicle in the same way.
In this respect it was established during the investigation processes that MIM’s written procedures required the Kress Hauler operators to operate the
vehicle in the forward position when exiting the slag pot bay. However, despite this written procedure, it was established that the operators, in fact,
operated the vehicle in a different manner.
Mr Willis said he questioned Mr Schloss about a number of other matters including his use of the reversing mirror and what he was actually doing on the
night in question. Following the hearing, Mr Willis considered all the information presented. As a result of his consideration of the points raised by Mr
Schloss, he determined that he needed to sit in the Kress Hauler and see for himself whether it was possible that Mr Schloss looked but simply did not see
the water truck behind him.
Consequently, on an evening during the week commencing 30 June 2003 he arranged for the Kress Hauler and the water truck to be set up as they would
have been situated at the point of impact. Once this was done he sat in the Kress Hauler and looked in the rear vision mirror. Mr Willis said he noticed
that the water truck filled the mirror and that the water truck was clearly visible. He also noticed that to see the tyres of the Kress Hauler you could not
help but pass your eyes across the mirror. Mr Willis said he came to the view that there was no way that Mr Schloss could have looked but not seen the
water truck. He therefore concluded that Mr Schloss was not looking where he was going on the night in question.
Mr Willis said he also spoke to Mr Hogarth about the investigation that Mr Hogarth had conducted. As a result of this discussion he concluded that Mr
Hogarth’s investigation process was thorough and fair.
Over the next few days Mr Willis thought further about the whole matter. Whilst he remained of the view that Mr Schloss did not look where he was
going he nonetheless asked Mr Hogarth to do a further test to determine the length of time that the water truck would have been visible in the Kress
Hauler’s mirror. He asked Mr Hogarth to simulate the movement of the water truck as it occurred in the early hours of 27 April 2003 and to record the
length of time that the water truck was visible in the mirror. Mr Willis said that Mr Hogarth carried out the test and later told him that the water truck
was visible in the mirror for between 10 and 20 seconds.
Mr Willis said that information confirmed, in his mind, that the decision to terminate was correct. He had sat in the cabin of the Kress Hauler and seen
that the water truck was clearly visible in the mirror. The fact that the water truck remained visible in the Kress Hauler’s reversing mirror for between 10
and 20 seconds confirmed, to him, that Mr Schloss was simply not looking where he was going when the accident occurred.
Mr Willis said the liability on an employer in the mining industry to establish a safe system of work is absolute and the penalties for failure to do so are
extremely severe.
He also said MIM requires strict compliance with safety and health management obligations, policies and procedures in an attempt to convey a message
that safety comes before everything else. MIM is attempting to create a culture of “think in the interests of safety before you act”. Imposing strict
discipline in the event of a failure of an employee to be personally responsible and accountable for health and safety demonstrates the importance of same
conduct and reflects the absolute need to satisfy the standards imposed under the Mining and Quarrying Safety and Health Act 1999 and associated
Regulations.
Mr Willis said that when driving heavy machinery it is imperative that operators look where they are going. This is the case regardless of whether the
operator is in a restricted area or not. The fact that an area is restricted is not meant to be a “fail safe”. The true “fail safe” is always to look where you
are going before you move in a particular direction and while you are moving in that direction.
Mr Willis said that after considering the matter, especially the responsibility that he had under the Mining and Quarrying Safety and Health Act 1999, he
decided that the seriousness of Mr Schloss’ conduct was such that there was no disciplinary action, other than dismissal, which would have met the
gravity of his serious misconduct. Mr Willis said the fact that the water truck should have not been there, or the fact that Mr Schloss was taught to
operate the Kress Hauler differently to the written procedures, did not alter the view that he formed about Mr Schloss’ conduct. He said Mr Schloss’
failure to look where he was going was, in his mind, sufficient to justify his dismissal. The fact that he had a history of safety incidents further confirmed
that the decision to dismiss was the correct decision.
Mr Willis also said he could not entertain the idea of moving Mr Schloss to another position because his conduct on this occasion demonstrated a flagrant
disregard for a fundamental safety policy and procedure. Mr Willis said given Mr Schloss’ history he could not justify giving Mr Schloss another chance.
Findings
I have considered all of the evidence (including all of the material contained within the various witness statements, as well as the extensive submissions
of both Ms Allen, who appeared for Mr Schloss, and Mr McLachlan, who appeared for MIM) in deciding this matter.
I also record that I had the benefit of inspections of the area where the incident occurred (albeit in daylight hours) as well as having been shown the
nature of the duties performed by Mr Schloss on the night in question. In particular, I had the benefit of being seated in the Kress Hauler in the reverse
position and participating in a re-enactment of the events of the night in question. I have utilised information and knowledge obtained from that
inspection to assess the evidence of the various witnesses and to help me determine its credibility.
I have concluded that Mr Schloss was operating the Kress Hauler in a negligent manner at the time of the incident on 27 April 2003.
In so deciding, I have rejected Mr Schloss’ evidence that he was looking towards his rear, either by turning his head or using the reversing mirror, whilst
exiting the slag pot bay.
I have reached the conclusion that Mr Schloss was simply not looking where he was going and was reversing his vehicle by looking at points of reference
in front of him (i.e. to the rear of the direction of travel) in order to estimate the time at which he should make his (usual) left-hand turn before heading to
the slag pot lay-down area.
In my considered view there is no way that Mr Schloss could have missed seeing, or hearing, the water truck had he been properly focussed on his tasks
and been alert to his surroundings.
I have reached the conclusion that Mr Schloss had driven into and reversed out of the slag pot area so many times that he had become accustomed to
doing it almost by rote. On the morning of 27 April 2003 he was not expecting any other vehicle to be in the area – because no-one is meant to be there
without permission – and he “reversed” into the water truck without noticing it was there or looking to see if any other vehicle or person was there.
12 December , 2003
1353
Whilst it is certainly true that Mr Harrison, the water truck operator, should not have been where he was – because he had not sought permission – that
does not in any way excuse Mr Schloss’ failure to look where he was going.
The molten slag that Mr Schloss was carrying in the Kress Hauler weighed some 47 tonnes and was, on the evidence, heated to some 1100 to 1200
degrees celsius. Molten slag is a very dangerous product and it is essential that any operator of the Kress Hauler take special care and attention whilst
carrying such product. Mr Schloss was simply not exercising such due care and attention on the night in question.
In my view, each of Mr Hogarth and Mr Willis reached the correct conclusion that Mr Schloss had simply not looked where he was going and, thereby,
was driving in a negligent fashion.
MIM’s reliance on previous incidents
Each of Ms Allen and Mr Schloss attempted to down play the prior incidents (see above) arguing that the 1 May 2000 incident was outside the two year
period for cautions and/or counsellings which MIM could rely upon under the terms of its certified agreement with the union. They also said Mr Schloss
had not been warned or counselled about the other Kress Hauler incident on 12 July 2001 and that the 29 July 2002 incident was relatively minor. As
such, they said that none of that material should have been relied upon and taken into account by MIM when it reached its decision to terminate Mr
Schloss following the incident of 27 April 2003.
The evidence suggests that MIM did not directly rely upon the 1 May 2000 incident to justify the decision to terminate. Rather, MIM only highlighted
the incident as being yet another safety incident which the Commission was entitled to take into account should the issue of reinstatement be
contemplated by the Commission if it found, in all of the circumstances, that the termination was harsh, unjust or unreasonable. Mr Hogarth, who made
the recommendation to terminate Mr Schloss, seemed to only rely on the incidents in 2001, 2002 and the final incident on 27 April 2003. In any event, I
have excluded the 1 May 2000 incident from any analysis of whether MIM acted fairly towards the applicant.
In my view, MIM was not only entitled to consider the incident of 10 July 2001 and 29 July 2002, respectively, in deciding the question of Mr Schloss’
future employment but was obliged to. As recorded above, in my analysis of Mr Willis’ evidence, the provisions of the Mining and Quarrying Safety and
Health Act 1999 are particularly onerous. They impose significant obligations on employees, not just in respect of their own health and safety, but also in
respect of those with whom they work. In addition, there are significant obligations imposed upon managers, and mine operators, to ensure a safe system
of work and appropriate standards are enforced.
Consequently, both legislatively and at common law – as well as under the terms of its certified agreement – MIM was entitled to take into account the
10 July 2001 and 29 July 2002 incidents, respectively, notwithstanding that there was no formal counselling or warning given to Mr Schloss in respect of
the 10 July 2001 incident.
In that regard, I record that I believe Mr Schloss was very lucky to have kept his employment following the 10 July 2001 incident. Mr Hogarth made it
plain in his evidence that he did not take the step of terminating Mr Schloss’ employment at that time, or at least issuing him with a final warning,
because of Mr Schloss’ personal circumstances. Having been the beneficiary of some particularly favourable treatment at the time it is inappropriate, in
my view, for Mr Schloss to now argue that the events at that time cannot be taken into account later. In my view, MIM was entitled to take into account
the “whole” of Mr Schloss’ history over the previous 2 years in deciding how to deal with him after the incident of 27 April 2003 – irrespective of
whether he had been formally warned or counselled in respect of any or all of the incidents.
Was the termination harsh, unjust or unreasonable?
Section 77 of the Industrial Relations Act 1999 requires the Commission to consider a number of matters in deciding whether a particular termination
was harsh, unjust or unreasonable.
Notwithstanding some criticism from Ms Allen about the processes adopted by MIM, it is clear to me that Mr Schloss understood the nature of the
allegations being made against him. In that respect, whilst some criticism was made of the fact that the initial decision to terminate Mr Schloss’
employment was partially grounded on the fact that he was operating the vehicle in the reverse position, rather than the forward position as required in
the operating procedures, I do not think that this point had any particular significance in the overall decision to terminate. The evidence of Mr Hogarth,
who effected the termination, and Mr Willis, who conducted the fair treatment appeal, make this clear. They each said that the decision to terminate was
because they concluded that Mr Schloss was simply not looking where he was going, and, taken with his previous history, they concluded he was a
significant safety risk both to himself and other employees on the lease.
I have also concluded, despite Mr Schloss’ arguments to the contrary, that he was given an appropriate opportunity to respond to the allegations being
made against him. In that regard, both Ms Allen, in her submissions, and Mr Schloss, in his evidence, complained that Mr Schloss had not been involved
in the various re-enactments conducted by MIM (see above). They argue that such failure to involve Mr Schloss meant he was denied an appropriate
opportunity to present his defence and constituted a denial of natural justice and/or a tainting of the Respondent’s investigations.
Having listened to each of Mr Hogarth and Mr Willis give their evidence, I am satisfied that each of the reconstructions was conducted fairly and for the
purposes not of confirming Mr Schloss’ blame in the incident but, rather, so that they could genuinely understand what had happened and how it might
have been that Mr Schloss did not see the water truck before he drove into it. To my mind, they were each seeking some explanation for what might have
happened. As it turned out, the only explanation available is the one that each of Mr Hogarth, Mr Willis and I have separately reached, i.e. Mr Schloss
was not looking where he was going.
Mr Schloss was not denied natural justice by not being involved in the reconstructions. Each of Mr Hogarth and Mr Willis were simply trying to put
themselves in the same position as Mr Schloss so that they could better understand his explanations of what he claimed had happened. Mr Schloss had
been given an earlier opportunity to present his explanation of events and had fully availed himself of that opportunity.
Section 77(d) of the Industrial Relations Act 1999 also requires the Commission to consider any other matter it considers relevant.
It is clear, from the evidence of Mr Hogarth and Mr Willis, that the decision to terminate was founded for the reason that each of them had decided that
Mr Schloss had become a significant safety risk. In that respect, I particularly note the evidence of Mr Willis about MIM’s workplace health and safety
obligations and how he took his obligations into account in deciding the whole matter. I endorse the approach he adopted and the conclusions he
reached.
I also note what Blades C had to say in The Australian Workers’ Union of Employees, Queensland (for Charles Bellchambers) v Mount Isa Mines
Limited (2002) 171 QGIG 1 about the matter of safety on mining leases and how safety procedures may need to be enforced:
“… employees cannot be personally supervised at all times and are required to be responsible for their own tasks, behaviour and accountability.
The employer owes a duty of care not only to the applicant but also to other employees to protect them from irresponsible conduct and to enforce
safety procedures. It alone has the power to prevent future transgressions.”.
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12 December , 2003
The incident on 27 April 2003 was extremely serious. Mr Schloss was operating a very large vehicle carrying approximately 47 tonnes of molten slag, at
a temperature of somewhere around 1100 to 1200 degrees celsius. Despite the size of the vehicle and despite the very dangerous nature of the product he
was carrying, Mr Schloss was not looking where he was going. He was thus guilty of gross negligence.
Given the events of that night, and the separate events of 10 July 2001 and 29 July 2002 (see above), MIM was entitled, in my considered view, to
conclude that Mr Schloss had become a serious safety risk both to himself and to other employees. MIM was entitled to take all three incidents into
account in deciding to terminate his employment. Indeed, it would have been leaving itself considerably exposed had it not done so and Mr Schloss had
been involved in some further accident or incident.
In all of the circumstances there was nothing harsh, unjust or unreasonable about the termination.
For the foregoing reasons, I dismiss the application.
The Commission determines and orders accordingly.
A.L. BLOOMFIELD, Deputy President.
Hearing Details:
2003
2003
9 September (Inspection)
10, 11 September
Appearances:
Ms K. Allen, of the Automotive, Metals, Engineering, Printing and
Kindred Industries Industrial Union of Employees, Queensland, for the
Applicant.
Mr D. McLachlan, of Mount Isa Mines Limited, the Respondent.
###########################################################################################################################
Industrial Relations Act 1999 – s. 276 – application to amend or void contracts
James Mould AND FCL Interstate Transport Services Pty Ltd (No. B1137 of 2001)
COMMISSIONER BECHLY
26 November 2003
DECISION
This matter has had a lengthy history. The application was first filed on 28 June 2001 and conferences held on 1 and 17 August 2001. Private
conferences were later held between the parties. Those conferences failed to resolve the matter. Representation for the respondent changed on several
occasions. At the request of the applicant the matter was listed for hearing on 21 March 2003 and the final date of hearing was 26 June 2003.
Part of the initial pleadings by the applicant related to the earnings of the applicant to what was described as the Owner/Drivers Costings Manual, a
publication produced by transport industry representatives including the Transport Workers’ Union of Australia, Union of Employees (Queensland
Branch) and The Queensland Road Transport Association Industrial Organisation of Employees. A further part of the pleadings related the applicant’s
earnings to the Transport, Distribution and Courier Industry Award – Southern Division.
At the commencement of the hearing proper on 21 March 2003, the applicant withdrew from that aspect of the pleadings relating to a comparison of
earnings measured against the Owner/Drivers Costings Manual. Until final submissions, the State Award was the only industrial instrument referred to
by the applicant or the respondent against which a comparison was drawn to attempt to demonstrate unfairness/fairness in the contract.
In its final submissions the respondent raised the matter of award coverage and nominated the Transport Workers Award (Federal Award) as the
industrial instrument covering its operations.
This late pleading raises the unacceptable practice of ambush. Parties are entitled to be fully aware of the case which has to be answered before the
hearing starts, not after its completion. The respondent points out however that the applicant was an employee under the terms of that Federal Award for
some years and it should have been well known to him that the relevant industrial instrument was the Federal Award.
The respondent also points out that the claim of the applicant as to the comparison with the Owner/Drivers Costings Manual was not withdrawn from
until the commencement of the proceedings and much of its preparation, including expert evidence, was based on that Manual. That appears to be the
case.
The applicant’s pleadings also changed during the course of proceedings after the completion of the evidence of the applicant himself but prior to other
supporting evidence. These amendments to pleadings were not opposed by the respondent. It was said by the applicant when seeking the amendments
that the respondent ought to have been aware of the changes from exchanges between them.
The difficulty with all of this of course is that the Commission, being unaware of any of these exchanges between the parties, is placed at a disadvantage
when assessing evidence against pleadings during the hearing.
As a consequence of the late introduction of pleadings as to the coverage of the Federal Award the applicant sought the opportunity to address the
commission as to the basis upon which a monetary comparison should be made.
Consideration has been given to the large volume of written material produced during the proceedings to enable an outcome to be determined but
consideration now needs to be given to what the relevant industrial instrument may be against which comparisons might be drawn to enable this matter to
be finalised.
I intend to now provide an opportunity to the applicant to respond to the matter of award coverage raised by the respondent.
The parties will be contacted to enable this matter to be listed on a suitable date.
R.E. BECHLY, Commissioner.
Hearing Details:
2001 17, 24 August
2002 12 November
13 December
2003 21 March
4, 7 April
1, 28 May
20 June
Appearances:
Mr S. Ross of Carne Reidy Herd on behalf of the applicant.
Mr D. Pratt of The Queensland Road Transport Association Industrial Organisation of
Employers on behalf of the respondent.
12 December , 2003
1355
Industrial Relations Act 1999 – s. 278 – unpaid wages
The Electrical Trades Union of Employees of Australia, Queensland Branch AND Sherrin Hire Pty Ltd
(No. W110 of 2002)
COMMISSIONER ASBURY
28 November 2003
DECISION
Industrial Relations Act 1999 – s. 278 Underpayment of wages – Property Law Act 1974 – s. 55 Contracts for the benefit of third parties – Claim that
employee entitled to the benefit of a contract between employer and principal – Case law – Evidence of terms of contract between employer and principal
– Admissibility of extrinsic material in construction of contract – Admissibility of conduct subsequent to the formation of contract – Subsequent conduct
not admissible on interpretation of contract – Subsequent conduct admissible in relation to credit of witnesses – Terms of contract were as contended for
applicant – Property Law Act 1974 can apply to persons also subject to employment contracts – Contract between employer and principal was for the
benefit of employee(s) as third party – Employee claiming benefit not an incidental beneficiary to contract – Employee and Union as his agent accepted
terms of contract between employer and principal by conduct – Employer accepted additional payments under the contract on basis that employees wages
claim would be paid – Contrary to equity, good conscience and substantial merits of case for employer to wholly retain monies paid by principal on this
basis.
1. BACKGROUND
By an application made on 26 July 2002, The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU) sought an Order under s.
278 of the Industrial Relations Act 1999 (the IRA) that Sherrin Hire Pty Ltd (Sherrin Hire) pay the sum of $13,765.95 to Mr Neil Weir in respect of
unpaid wages. It was pleaded in the application that:
•
•
•
•
•
Sherrin Hire employed Mr Weir from 4 March to 10 November 1998 at the Gold Coast;
Mr Weir was employed on a casual basis as a tree lopper/trimmer and operated plant and equipment to clear vegetation from around power lines;
Mr Weir was employed pursuant to the terms of a contractual arrangement between Sherrin Hire and Energex which required that Sherrin Hire
pay employees for work performed pursuant to Energex contracts rates of pay and allowances in aggregate no less than those payable to
employees under the Electricity Supply Industry Employees Award – State;
Mr Weir was at all material times aware of the contractual arrangement between Sherrin Hire and Energex; accepted those conditions and
performed work according to them; and
Mr Weir claims the benefit of that contract as a third party, pursuant to s. 55 of the Property Law Act 1974 (Qld) (the PLA).
In an ex tempore decision reported at (2003) 172 QGIG 1869, I dismissed an application under s. 331(b) of the IRA to strike out W110 of 2002 on the
basis of my views that:
•
•
the PLA is not restricted in its operation to contracts having a connection to real property; and
arguments that the contract between Energex and Sherrin Hire was not a contract for the benefit of a third party and therefore not a contract to
which s. 55 of the PLA could apply would best be determined after a full hearing of W110 of 2002.
In the hearing of the substantive application, the respondent contended that:
•
•
•
the PLA did not apply to the contract between Energex and Sherrin Hire, whatever the terms of the contract were found by the Commission to
be;
that contract did not require Sherrin Hire to pay for work performed on Energex contracts under the terms and conditions of Schedule J to the
Energex Enterprise Bargaining Agreement 1998; and
if the Commission found that the contract was in the terms asserted by Sherrin Hire, then no “third party” arrangement was applicable and the
application as currently pleaded could not succeed.
2. RELEVANT LEGISLATION
2.1 Industrial Relations Act 1999
The application in W110 of 2002 was made under s. 278 of the IRA, which relevantly provides at subsection (1)(a) that an application may be made to
the Commission for an order for payment of an employee’s unpaid wages. The term “wages” is defined in Schedule 5 to the IRA to mean:
“(a) an amount payable to an employee for –
(i)
work performed, or to be performed, by the employee; or
(ii) a public holiday; or
(iii) leave the employee is entitled to; or
(iv) termination of employment; or
(b) a salary; or
(c) an amount payable from wages for the employee, with the employee’s written consent; or
(d) a shortfall under section 220.”.
In Tweddell v Ehle Pty Ltd (1993) 142 QGIG 397 it was held by then President, His Honour Justice Moynihan, considering a similar definition, that for
wages to be due and payable, they must have been earned by work done in accordance with a contract of employment.
2.2 Property Law Act 1974 (Qld)
2.2.1 Section 55
The PLA at s. 55 provides as follows:
“55 Contracts for the benefit of third parties
(1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit
of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.
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12 December , 2003
(2) Prior to acceptance the promisor and promisee may, without the consent of the beneficiary, vary or discharge the terms of the promise and any
duty arising from it.
(3) Upon acceptance–
(a) the beneficiary shall be entitled in the beneficiary’s own name to such remedies and relief as may be just and convenient for the
enforcement of the duty of the promisor, and relief by way of specific performance, injunction or otherwise shall not be refused solely on the
ground that, as against the promisor, the beneficiary may be a volunteer; and
(b) the beneficiary shall be bound by the promise and subject to a duty enforceable against the beneficiary in the beneficiary’s own name to do
or refrain from doing such act or acts (if any) as may by the terms of the promise be required of the beneficiary; and
(c) the promisor shall be entitled to such remedies and relief as may be just and convenient for the enforcement of the duty of the beneficiary;
and
(d) the terms of the promise and the duty of the promisor or the beneficiary may be varied or discharged with the consent of the promisor and
the beneficiary.
(4) Subject to subsection (1), any matter which would in proceedings not brought in reliance on this section render a promise void, voidable or
unenforceable, whether wholly or in part, or which in proceedings (not brought in reliance on this section) to enforce a promissory duty
arising from a promise is available by way of defence shall, in like manner and to the like extent, render void, voidable or unenforceable or be
available by
way of defence in proceedings for the enforcement of a duty to which this section gives effect.
(5) In so far as a duty to which this section gives effect may be capable of creating and creates an interest in land, such interest shall, subject to
section 12, be capable of being created and of subsisting in land under any Act but subject to that Act.
(6) In this section–
‘acceptance’ means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person
authorised on the promisor’s behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a
reasonable time of the promise coming to the notice of the beneficiary.
‘beneficiary’ means a person other than the promisor or promisee, and includes a person who, at the time of acceptance is identified and in
existence, although that person may not have been identified or in existence at the time when the promise was given.
‘promise’ means a promise—
(a) which is or appears to be intended to be legally binding; and
(b) which creates or appears to be intended to create a duty enforceable by a beneficiary; and includes a promise whether made by deed,
or in writing, or, subject to this Act, orally, or partly in writing and partly orally.
‘promisee’ means a person to whom a promise is made or given.
‘promisor’ means a person by whom a promise is made or given.
(7) Nothing in this section affects any right or remedy which exists or is available apart from this section.
(8) This section applies only to promises made after the commencement of this Act.”.
The section, if applicable, effectively abolishes the privity rule under contract law, which prevented a person who was not a party to a promise, from
enforcing the benefit of the promise.
2.2.2 “Promisor” and “Promisee”
The “promisor” is defined by sub-section (6) to mean a person by whom a promise is given. The “promisor” under this provision is the party who
actually makes the promise for the beneficiary: Re Davis [1989] 1 Qd R 48. “Promisee” is defined by sub-section (6) to mean a person to whom a
promise is made or given.
2.2.3 “Promise”
“Promise” is defined by sub-section (6) to include a promise whether made by deed, in writing or orally, and further as meaning a promise which is or
appears to be legally binding. Duncan and Wallace have stated that this requirement, when combined with the requirement in sub-section (1) that the
promise be given for a valuable consideration moving from the promisee, makes clear that the basic tests for a binding contractual obligation between
promisor and promisee must be satisfied before any rights can be conferred on a third party beneficiary – that is there must be offer, acceptance, valuable
consideration and an intention to enter legal relations: Duncan & Vann, Property Law and Practice in Queensland (LawBook Co. p. 1218).
The definition of promise also requires that the promise create or appear to create a duty enforceable by a beneficiary. In this regard, Duncan and
Wallace note that this requirement is designed to meet the case where the parties to the promise could not have intended to confer rights on third parties,
but the effect of the promise is to incidentally benefit third parties (op.cit. p. 1218). They also state that the preferred interpretation of this provision
would be that a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate
the intention of the parties, and either:
•
•
the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
the circumstances indicate that the promisor intends to give the beneficiary the benefit of the promise as to performance (op. cit. p. 1219)
2.2.4 Beneficiary
There is some uncertainty in the case law on the issue of whether a person not named in a promise, but incidentally benefited, can enforce the promise
under s. 55. In Re: Burns Phillip Trustees (unreported, 17 December 1986) McCrossan J held that a bank not specifically named in a deed between a
secured creditor and several unsecured creditors could not claim the benefit of the promise by the secured creditor to relinquish its prior entitlement to
payment. The deed was held to be an agreement to adjust entitlements only as between the parties to it, and not a promise to do or refrain from doing
anything for the benefit of the bank, when the bank was not mentioned in the deed. The bank was therefore unable to rely on s. 55 of the PLA.
The question of the status of an incidental beneficiary was considered by some Judges of the High Court in Northern Sandblasting Pty Ltd v Harris
(1997) 188 CLR 313. That case involved the duty of care owed by a landlord to tenants in the context of an injury to a child caused by a defective
electrical appliance, which the landlord had undertaken to have repaired before the tenants entered into possession of the property. A licensed electrician
had performed the repairs negligently. One of the arguments for the plaintiff (the injured child) was that s. 55 of the PLA provided a basis for
compensation.
12 December , 2003
1357
That argument was directly considered by Brennan CJ and Kirby J. Chief Justice Brennan, a member of the majority, rejected the argument than an
incidental beneficiary could rely on s. 55, stating (188 CLR 313 at 328-329) that:
“…s. 55 has no application to the terms implied in a lease or tenancy agreement by force of [statute] Although those provisions impose on the
landlord obligations ascertained as though they were imposed by contract, s. 55 operates only upon duties created by de facto promises. There must
be a promise ‘to do… an act… for the benefit of a beneficiary’. The phrase ‘for the benefit of a beneficiary’ is descriptive of the promised act. From
the context of s. 55 it appears that the identity of the beneficiary must be ascertainable from the terms of the promise made. The beneficiary is not
any person who, in the event, would have been benefited had the promise been fulfilled. If that had been the intention of the legislature, the duty
which s. 55 imposes would have been owed to the world at large, or at least to any person who may foreseeably have been benefited by the discharge
of the duty. That that was not the intention of the legislature can be seen from the requirement that a duty to perform the promise becomes
enforceable by a beneficiary ‘upon acceptance by the beneficiary’. In other words, the acceptance must be made by a person who, from the terms of
the promise, can be identified as a beneficiary capable of accepting the promise.”.
Chief Justice Brennan also stated that s. 55 of the PLA could have no application where it would be impossible to predicate on any logical basis the
categories of beneficiaries who might be entitled under the section. Justice Gummow concluded inter alia that statutory obligations to maintain leased
premises in a condition reasonably fit for human habitation, could not be construed as a promise by the appellant landlord to do an act or acts for the
benefit of the respondent child, which was accepted by the child going into occupation of the premises with her parents (188 CLR 313 at 382). Justice
Toohey agreed with the reasons of Gummow J for holding that the PLA did not provide a cause of action for the plaintiff (188 CLR 313 at 348).
Justice Kirby dissenting, held that as the tenancy agreement between the landlord and the child’s parents as tenants, was obviously for her benefit and that
the purpose of s. 55 of the PLA extended to securing to her the entitlement to enforce the duties owed by the landlord to her parents as tenants. All that
was required was the child’s “acceptance” of her status as a beneficiary. By the PLA she could do this by “conduct” communicated to the landlord. The
landlord knew that the child had entered into possession of the leased premises with her parents, and by s. 55 the difficulties of her enforcement of the
obligations owed by the landlord to her parents were overcome (188 CLR 313 at 413). On this point, Gaudron J agreed with the reasons of Kirby J,
notwithstanding that she was in the majority with respect to the outcome (188 CLR 313 at 363).
It should also be noted there is no requirement that a beneficiary for the purposes of s. 55 be identified at the time when the promise was given: s. 55(6).
Further, it has been held that an act does not cease to be for the benefit of the beneficiary because it provides some benefit to the promisee as well as the
beneficiary: Re Davies (unreported QSC Ryan J. No 766 of 1986).
2.2.5 Acceptance by Beneficiary
Acceptance as defined by sub-section (6) of s. 55 is not required to be in writing or oral, but may be communicated by conduct. While acceptance is
required to be communicated to the promisor, it need not be communicated by the beneficiary. Acceptance may be communicated by someone on behalf
of the beneficiary and to some person authorised on the promisor’s behalf. The reasonable time frame for acceptance referred to in the definition in subsection (6) does not commence until the promise comes to the notice of the beneficiary. However, it may still be sufficient if the promise comes to the
notice of the beneficiary’s agent: Re Davies [1989] 1 Qd R 48.
Assent by the beneficiary must, on its face, purport to accept the promise, and it may be insufficient for there to be words or conduct that are merely
consistent with acceptance: Re Davies (unreported QSC, Ryan J. No 766 of 1986); Robt Jones (363 Adelaide Street) Pty Ltd v First Abbot Corporation
Pty Ltd (unreported, QSC, White J, 28 October 1987).
3. EVIDENCE
3.1 Overview
The evidence in this case was convoluted and there were significant conflicts in both oral and documentary evidence. The resolution of the conflict was
not assisted by the inability of either Energex or Sherrin Hire to produce clear evidence of the terms of the arrangements between them, which formed the
basis of Mr Weir’s claim. There was conflict in relation to whether certain correspondence was sent or received and neither Energex or Sherrin Hire
could produce facsimile transmission records. Matters were further complicated by the inability of Energex staff to produce copies of actual
correspondence said to have been forwarded to Sherrin Hire and in one case, producing two versions of the same piece of correspondence which differed
significantly, without being able to confirm which version was actually said to have been sent to Sherrin Hire. It was also apparent that there were a
number of mechanisms utilised by Energex to communicate contractual obligations to its contractors. Staff of Energex and officials of the ETU referred
to those mechanisms interchangeably adding to the confusion.
Evidence for the applicant was given by:
•
•
•
•
•
Mr Neil Weir;
Mr Timothy Ellerton, Contracts Co-ordinator, Energex Ltd;
Mr Ronald Barbagello, Group Manager, Network Operations, Energex Ltd;
Mr Peter Simpson, State Organiser, ETU and
Mr Stephen Leadbetter, Program Contracts Manager, Energex.
Evidence for the Sherrin Hire was given by:
•
•
Mr Iain Sherrin, National Manager, Sherrin Hire;
Mr Michael Sherrin, Managing Director, Sherrin Hire.
The evidence encompassed the following matters:
•
•
•
•
•
standard contractual processes operated by Energex;
the contract of employment between Mr Weir and Sherrin Hire;
the terms of the “contract” entered into between Sherrin Hire and Energex on 5 December 1997;
other contracts entered into between Sherrin Hire and Energex both before and after 5 December 1997; and
discussions concerning the claim made on behalf of Mr Weir subject of these proceedings.
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3.2 Standard Contractual Process Operated by Energex
Evidence was led for the applicant of standard contractual processes operated by Energex. In order to understand the contentions of the parties with
respect to the contract in issue in this matter, it is necessary to consider that evidence in some detail. On 1 September 1992 an Industrial Agreement was
approved by Bougoure C pursuant to the terms of the then Industrial Relations Act 1990-91. That Industrial Agreement (Number A51 of 1992) was
entitled Electricity Supply Industry Employees’ Award – State Electricity Supply Industry – Use of Contractors Industrial Agreement. The parties to the
Industrial Agreement (Appendix C to the witness statement of Mr Simpson – Exhibit A8) were various Unions including the ETU and the then
Queensland Electricity Commission. The Industrial Agreement covered the use of contractors and essentially dealt with the circumstances in which
contractors would be utilised by the Queensland Electricity Commission to perform work which would otherwise be performed by its own employees.
The Industrial Agreement at clause 2.3 provided as follows:
“It shall be a requirement of contract documents that:…
(c) When employees of Contractors perform the work as defined in clause 3.1 of this Agreement, they shall be entitled to the rates of pay and
allowances which in aggregate shall be no less favourable than those that apply to the same or similar classifications of employees engaged
under the Electricity Supply Industry Employees’ Award – State …”.
Clause 3.1 of the Industrial Agreement at subclause (2) defined “Transmission Core Work” inter alia as the trimming and removal of trees in close
proximity to energised conductors.
The so called standard form contract documentation provided by Energex to its prospective contractors, typically included a covering document entitled
“Commercial Conditions for Service Works (Quotations)” which was also appended to the witness statement of Mr Simpson – Exhibit A8. That
covering document was referred to by Energex as Form 1510NW. Clause 9.1 of Form 1510NW sets out in part the terms of the Electricity Supply
Industry Employees’ Award – State Electricity Supply Industry – Use of Contractors Industrial Agreement and referred prospective tenderers to that
Agreement. Attached to that covering document were a number of Schedules which tenderers were requested to complete, sign and forward to Energex.
One of those Schedules, known as Schedule J, was entitled “Contractors Wages and Conditions”. Schedule J stated that contractors were advised of the
Industrial Agreement and that the information set out in that Schedule was relevant for contractors to assist them to comply with the terms of the
Agreement. The Schedule then set out matters including hours of work, classifications and wage rates for employees of contractors.
3.3 The Contract of Employment Between Mr Weir and Sherrin Hire
Mr Weir said that he commenced employment with Sherrin Hire as a tree trimmer on 5 March 1998. Mr Weir had applied for a position as a result of an
advertisement placed in the Gold Coast Bulletin in February 1998. That advertisement (Appendix 1 to Mr Weir’s witness statement – Exhibit A1) stated
that due to expansion Sherrin Hire required several labourers with extensive tree lopping/trimming experience and that preference would be given to
persons holding a current power line ticket. Mr Weir said that upon replying to the advertisement he was told to bring his “linesman’s ticket” to the
interview as preference would be given to applicants with such a ticket. Mr Weir said that he was interviewed by Mr Butcher the Gold Coast Depot
Manager for Sherrin Hire and offered casual employment at an hourly rate of $15.00. Mr Weir said that he had been told by Mr Butcher that he would
discuss the pay rate further when Mr Butcher returned from a trip to Sydney.
Mr Weir said that he knew at the time that $15.00 per hour was not the correct rate, but accepted the position on the strength of Mr Butcher’s comment
that the correct rate would be sorted out upon Mr Butcher’s return from Sydney. Mr Weir said that he tried on a number of occasions subsequently to
discuss his pay rate with Mr Butcher to no avail, and then started to look elsewhere to ascertain the correct rate. An employee of Energex told Mr Weir
of Schedule J and that it entitled Mr Weir to be paid Energex rates. Mr Weir said that he again tried to take the matter up with Mr Butcher but did not
succeed in having his concerns addressed. For the remainder of the time he worked for Sherrin Hire Mr Weir said that he worked on the understanding
that he was entitled to Energex rates and conditions and tried to sort the matter out so that he would be paid correctly. The rate which Mr Weir claimed
to be entitled to was $20.80 per hour at the relevant time and that the maximum ordinary hours he could work in a week was 36.25. Mr Weir said that for
the entire period of his employment with Sherrin Hire he was paid at the flat rate of $15.00 per hour and that he often worked in excess of 60 hours per
week as evidenced by his payslips which were appended to his witness statement (Exhibit A1). Mr Weir’s employment with Sherrin Hire ceased on 26
November 1998.
3.4 The “Contract” of 5 December 1997
It is also necessary in this case to examine the specific evidence about the terms of the contract between Energex and Sherrin Hire, which Mr Weir claims
the benefit of. It is apparent from the evidence that there was some arrangement entered into between Energex and Sherrin Hire on 5 December 1997
whereby Sherrin Hire would undertake tree lopping in the Gold Coast Area and would be paid certain rates for that work by Energex. From that point the
evidence diverges.
Mr Simpson who had been the ETU official responsible for Mr Weir’s wages claim, said that there was an exchange of documentation and
correspondence which together show that a contractual relationship had been formed between Energex and Sherrin Hire on 5 December 1997. That
documentation comprised an invitation to tender supplied by Energex to Sherrin Hire on 5 December 1997 and a completed tender signed by Mr Iain
Sherrin also dated 5 December 1997. Both documents were appended to Mr Simpson’s witness statement (Exhibit A8). The document described as an
invitation to tender was also appended to Mr Ellerton’s witness statement (Exhibit A2 Attachment B) and the completed tender was exhibit A3 as well as
Attachment A to the witness statement of Mr Iain Sherrin (Exhibit R1).
Mr Michael Sherrin in his evidence, questioned whether there was a contract between Energex and Sherrin Hire with respect to the work in issue in these
proceedings. Mr Michael Sherrin said that the work had been performed on hourly rates under an order number. This could be contrasted with other
work performed by Sherrin Hire for Energex under contracts where Sherrin Hire had signed contract documentation requiring inter alia that Sherrin Hire
pay its employees on aggregate, no less than wages payable by Energex to its employees. Mr Iain Sherrin said that the contract entered into on 5
December 1997 was in fact a series of contractual arrangements between Sherrin Hire and Energex (witness statement Exhibit R1), the basis of which
was:
•
•
•
the telephone conversation with Mr Ellerton of 5 December 1997;
the tender document (Exhibit A3); and
purchase orders in respect of the work to be performed under each of the contractual arrangements.
Mr Ellerton giving evidence on behalf of the applicant said that between late November and early December 1997, he had contacted a number of
contractors, including Sherrin Hire, and asking for the submission of quotations for various work. On 28 November 1997, Mr Ellerton said that he had
forwarded a complete set of tender documents to Sherrin Hire. Appended to Mr Ellerton’s witness statement (Exhibit A2) was a letter addressed to the
Manager of Sherrin Hire, 12 Curtin Avenue, Eagle Farm, under Mr Ellerton’s signature. Attached to that letter was a specification document which in
turn referred to Form 1510NW (see 3.2 above). Mr Ellerton said that also attached to the specification document was a complete set of tender documents
including a copy of Form 1510NW (see 3.2 above). Sherrin Hire had not submitted a tender in response to the correspondence of 28 November 1997.
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On 5 December 1997 Mr Ellerton said that he had made contact with three companies, one being Sherrin Hire, seeking vegetation control tenders to
attend to urgent problems in the Beenleigh, Gilberton and Jacobs Well areas. Mr Ellerton had spoken to Mr Iain Sherrin by telephone, outlined what
Energex was seeking and asked if Sherrin Hire was interested in submitting a tender. Mr Sherrin said that the company was interested. In response, Mr
Ellerton said that he had sent an invitation to tender in the form of a letter by facsimile to Mr Iain Sherrin and to two other companies – Tree Mulchers
Australia and Smokey Flats P/L. The letter of invitation to tender which was Appendix A to Mr Ellerton’s witness statement (Exhibit A2) stated inter
alia that:
“…Further to our telephone discussion regarding short notice tree clearing in the Beenleigh/Gilberton/Jacobs Well areas, please provide quotation
prices for such work – refer attached Schedule A.
All work shall be to ENERGEX requirements in accordance with:
•
Form 1510 Commercial conditions for service works…”.
Accompanying the letter of invitation to tender had been a blank copy of a document entitled “Energex Quotation for Incidental Tree Clearing Work
Southern Distribution Area, Schedule A2 – Hourly Rates”. That document (Exhibit A3) contained details of the equipment and labour requirements of
Energex for the work in Energex wished to have performed by Sherrin Hire. Schedule A2 contained a blank column in which a company accepting the
invitation to tender was required to insert prices for the various pieces of equipment and employees necessary to operate it. Schedule A2 also stated that
the prices were to include supply of all labour, transport, plant, tools, fuel and equipment deemed necessary for the proper conduct of work “under the
requirements of the specification”.
Mr Ellerton said that he had told Mr Iain Sherrin during the telephone conversation on 5 December 1997 that he would be sending a letter and a schedule
to Mr Sherrin, and that the work for all intents and purposes was the same as the full contract documentation recently received by Sherrin Hire. Mr
Ellerton said that given the urgency of the request and having already sent full contract documentation to Sherrin Hire on 28 November 1997, he elected
to send the “short form” document on 5 December 1997 – i.e. the invitation to tender and Schedule A2. Mr Ellerton said that Mr Iain Sherrin had
completed Schedule A2 to the letter of 5 December 1997, by including rates which Sherrin Hire would charge for provision of operators and equipment
as set out in that Schedule and had sent it by facsimile to Energex on the same date. Sherrin Hire had been awarded the contract. Mr Ellerton had been
unable to locate facsimile transmission records to confirm the number of pages transmitted by facsimile to Mr Iain Sherrin on 5 December 1997 or the
original documents which had been transmitted.
The evidence of Mr Iain Sherrin was that on 5 December 1997 he reached an agreement with Mr Ellerton whereby Sherrin Hire was to provide plant,
equipment and labour to remove vegetation around power lines in the Beenleigh, Gilberton and Jacob’s Well areas. There was some urgency associated
with the performance of this work due to storms which had recently affected the relevant areas. The agreement was reached following a telephone
discussion between Mr Iain Sherrin and Mr Ellerton on 5 December 1997. Mr Iain Sherrin said that under that agreement, Sherrin Hire had been
periodically contracted by Energex for the provision of labour for the lopping of trees near power lines in the Gold Coast region. Mr Iain Sherrin also
said that the only documentation evidencing each engagement was a “purchase order” that was received from Energex at or around the time of each
engagement. Purchase orders relating to work performed by Mr Weir were appendix B to the witness statement of Mr Iain Sherrin – Exhibit R1.
Mr Iain Sherrin said that he had received only the document entitled Schedule A2 (Exhibit A3) by facsimile from Mr Ellerton on 5 December 1997, and
not the letter inviting the tender. Mr Iain Sherrin said in his evidence in chief that the first time that he had seen the letter from Energex inviting the
tender dated 5 December 1997, was on or about Tuesday 3 December 1998, when it had been forwarded to him by Mr Barbagello, in connection with
claims for “back pay” made by Mr Weir and other Sherrin Hire staff. Under cross-examination, Mr Iain Sherrin said that he could not say definitely that
he had not received the letter inviting the tender dated 5 December on that date, but that he could not remember seeing it until it had been provided to him
by Mr Barbagello on 3 December 1998 (Transcript p. 121 line 56). All that Mr Iain Sherrin could recall was that he had received the blank document
headed Schedule A2 (Exhibit A3) on 5 December 1997, and had filled it in and sent it back to Energex by facsimile on 5 December under cover of a
handwritten cover sheet (Attachment A to Exhibit R1). Mr Iain Sherrin agreed that Schedule A2 and his covering hand written document had been
transmitted by facsimile to Mr Ellerton at 14.29 hours on 5 December 1997 (Appendix A to Mr Iain Sherrin’s witness statement – Exhibit R1). Mr Iain
Sherrin also denied that Mr Ellerton had made any reference to the letter of 5 December 1997 or its contents, during the telephone conversation they had
engaged in on that date.
Mr Iain Sherrin said that he had not been able to locate the original of his facsimile transmission to Energex on 5 December 1997, or the original of the
facsimile from Energex that he had received earlier on the same day. Further, Mr Iain Sherrin said that he could not remember how he had obtained the
copy of his facsimile to Energex or the copy of Schedule A2 appended to his witness statement (Attachment A Exhibit R1). In response to questions from
the Commission, Mr Sherrin agreed that it was apparent from the copy of Schedule A2 appended to his witness statement that the document had been
received by him at 11.27 a.m. on Friday 5 December, but that the information printed onto the facsimile as it came through facsimile machine at Sherrin
Hire had been obscured on the copy appended to his witness statement and thus it could not be determined how many pages had been transmitted by
Energex.
Mr Iain Sherrin also said that he could not recall receiving the correspondence from Energex dated 28 November 1997 attaching a full set of tender
documentation, although there was a possibility that he had received it (Transcript p. 121 line 51). Both Mr Michael Sherrin and Mr Iain Sherrin disputed
that the arrangement entered into on 5 December 1997 had obligated Sherrin Hire to pay its employees rates and allowances in aggregate no less than
those applying to the same or similar classifications under the Electricity Supply Industry Award – State. Although the document headed Schedule A2
Hourly Rates which Mr Iain Sherrin said that did receive contained a reference to “the requirements of the specification” Mr Sherrin said that he took this
to be a reference to the various pieces of plant and equipment set out in Schedule A2, and not to any other contractual requirements. Mr Ellerton said that
this reference was to the full tender documentation listed in the covering letter of 5 December 1997, and provided to Sherrin Hire by way of the earlier
letter dated 28 November 1997.
3.5 Other contracts entered into between Sherrin Hire and Energex before and after 5 December 1997
Evidence was also led in relation to Mr Iain Sherrin’s experience of contracting with energy suppliers, and other contracts which Sherrin Hire had entered
into with Energex both before and after 5 December 1997. In his evidence-in-chief Mr Iain Sherrin said that he had come to Brisbane in February 1997,
and by 5 December 1997, had occupied a position encompassing branch management, fleet control and sales. Prior to coming to Brisbane, Mr Iain
Sherrin had been a sales representative for Sherrin Hire. Mr Iain Sherrin said that the “contract” with Energex entered into on 5 December 1997 had been
the first occasion upon which he had dealt with energy suppliers in general and Energex in particular. Mr Iain Sherrin also said in his evidence in chief
that he had no training in relation to contractual negotiations and contractual dealings with energy suppliers.
Mr Iain Sherrin was cross-examined in relation to other contracts which Sherrin Hire had entered into both before and after 5 December 1997. Under
cross-examination, Mr Iain Sherrin said that he had been aware that Sherrin Hire had contracts with Energex prior to that date but had seen no
documentation or been provided with any training in relation to those contracts. Mr Iain Sherrin agreed that a contract had been entered into between
Energex and Sherrin Hire in November 1996 – C88/96 (Exhibit A5) – for cutting and trimming trees and brushing undergrowth in Energex’s Redcliffe
Branch Area. Contract C88/96 had included a Schedule F whereby Sherrin Hire had been required to demonstrate experience in the work under the
contract or similar work. That form had been completed by Mr Street, the then Manager of Sherrin Hire, who had stated the following:
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12 December , 2003
“Current Works
•
•
SEQEB Caboolture – Tree trimming from power lines commenced 1992
SEQEB Redcliffe – Tree trimming from power lines commenced 1994
Previous Works
•
•
•
SEQEB Southport – tree trimming from power lines June to September 1993
SEQEB Oxley – Tree trimming stump grinding March 1993 to May 1993
SEQEB Mt Tambourine – Tree trimming and removal from lines”.
Schedule J (see 3.2 above) had also signed by Mr Street indicating acceptance of its terms. Mr Iain Sherrin also agreed that on 30 January 1998 he had
signed a tender document for contract C5/98 (Exhibit A6) in almost identical terms to that signed in November 1996 by Mr Street. Mr Iain Sherrin had
signed Schedule F detailing experience in work under the quotation or similar work and had stated that current works were:
“Line clearing for:
•
•
•
•
•
•
Energex Northern Division Qld
Energex Southern Division Qld
Integral Energy NSW
ATSA SA
North Power NSW
Hydro Electric Commission Tas.”.
Mr Iain Sherrin had also signed Schedule J as part of that contract. Further, Mr Iain Sherrin had signed Schedule I setting out wage rates on which
Sherrin Hire’s tender was based based. Those rates were in excess of the weekly rates set out in Schedule J for each of the classifications.
Mr Iain Sherrin was cross-examined in relation to the tender documents submitted by Sherrin Hire for Contract C88/96 (Exhibit A5) and the document
entitled Schedule A2 completed by him on 5 December 1997 (Exhibit A3). Both tender documents included Schedules setting out the price Sherrin Hire
would charge Energex for certain pieces of plant and equipment to be utilised for work which Sherrin Hire had contracted with Energex to perform.
Those prices included the cost of labour to operate the plant and equipment. Mr Iain Sherrin agreed that the plant and equipment detailed in items 1 and
2 in Exhibit A5 were the same as the pieces of plant and equipment detailed in items 1 and 9 in Exhibit A3. In the 1996 tender (Exhibit A5) signed by
the then manager of Sherrin Hire on 4 September 1996, the Company had contracted to provide an item of plant with two skilled operators at the rate of
$60.00 per hour. In the tender submitted by Mr Iain Sherrin on 5 December 1997, the same item of plant with skilled operator(s) was to be provided for
the rate of $65.00 per hour. Similarly, in the 1996 tender (Exhibit A5) Sherrin Hire had contracted to provide an item of plant with one operator for
$45.00 per hour and in the 1997 tender (Exhibit A3) the price for that same item of plant and one operator had been $55.00 per hour.
Mr Iain Sherrin said that he had based the 5 December 1997 tender prices on the wage rates in the Forest Resources Industry Award – State. In this
regard Mr Iain Sherrin, while under cross-examination, produced an extract from that Award (Exhibit A9) showing wage rates at November 1991 and
stated that he had used this as the basis of calculating the tender prices provided to Energex on 5 December 1997.
Mr Iain Sherrin also said that prior to the latter part of 1998, he had no knowledge that there were “standard conditions” of employment applicable to
employees of Energex sub-contractors (witness statement Exhibit R1 paragraph 6). Mr Iain Sherrin was asked during cross-examination about an
internal memorandum in Exhibit A5 to the Chief Executive of Energex, under the signatures of the Engineering Administrator Northern and the Area
Manager Northern, which stated that:
“The lowest comparable tender was submitted by Sherrin Hire Pty Ltd. The Company is presently carrying out similar work in this Branch and
Caboolture Branch areas satisfactorily. Sherrin Hire Pty Ltd has been assessed for quality and performance, been given an “AO” Rating, has agreed
to comply with the terms and conditions of the Industrial Agreement – Use of Contractors and has made formal arrangements with the
Communications, Electrical Plumbing Union – Electrical Division to ensure compliance with this agreement…”
Mr Iain Sherrin agreed that the memorandum demonstrated that Sherrin Hire had previous dealings with Energex and that the Company had an AO rating
(Transcript p. 123 lines 37-43). Mr Iain Sherrin also agreed that on the basis of Mr Barbagello’s evidence that AO rated companies received update
documents to advise of changes in rates applicable to contractors, it would be reasonable to assume that Sherrin Hire knew of the requirements associated
with entering into contracts with Energex. However Mr Iain Sherrin said that he had no knowledge of this himself until late 1998. When questioned
about this evidence in light of the fact that he had signed a contract including Schedule J on 30 January 1998, Mr Iain Sherrin said that he may have
signed the contract without reading it.
3.6 Discussions concerning the claim made on behalf of Mr Weir
Evidence was also given by witnesses for both the applicant and the respondent of a series of meetings and communications about Mr Weir’s wages
claim. Mr Simpson giving evidence on behalf of the applicant said that he had taken up the wages claim of Mr Weir, and other employees of Sherrin
Hire in 1998. At that time the ETU had issued an Attachment notice on Energex under the provisions of the then Workplace Relations Act 1997. Mr
Simpson said that upon receiving a complaint from Mr Weir (and a number of other members) he had participated in discussions with Energex and
Sherrin Hire with a view to resolution. Mr Simpson said that he was aware that Sherrin Hire had paid outstanding wages claims to three other members
of the ETU and that those claims were identical to that of Mr Weir, with the exception of quantum. The hours of work in the Electricity Supply Industry
Employees Award – State, which Mr Simpson contended that Sherrin Hire was contractually obligated to observe were 36.25 per week and the ordinary
rate for a casual tree trimmer under that Award was $20.8063 per hour at the time covered by the claim on behalf of Mr Weir. Mr Simpson had
calculated that Mr Weir had been underpaid by Sherrin Hire in the amount of $13,765.95.
Mr Barbagello giving evidence for the applicant, said that in 1998 he had become aware that some employees of Sherrin Hire were not being paid in
accordance with agreed arrangements for the payment of contract staff. On 26 November 1998 Mr Barbagello had met with Sherrin Hire to discuss staff
payment issues, amongst other things. Minutes of this meeting which were Appendix C to Mr Barbagello’s witness statement (Exhibit A4) relevantly
state that:
•
•
at the North Coast Sherrin Hire had paid employees working under Contract C5/98 (Exhibit A6) at a flat rate of $15.00 per hour, and agreed that
they would back pay staff under this contract to meet the requirements of Schedule J;
Sherrin Hire employees performing work at the North Coast under Contract C53 of 1998 (Exhibit A7) were being paid a flat rate of $15.00 per
hour. Sherrin Hire had agreed that these employees would be back paid so that the requirements of Schedule J would be met.
12 December , 2003
•
•
•
•
1361
all work on the South Coast had been carried out under “manual orders”. Sherrin Hire had advised that their quotation for the work done on the
South Coast was not based on meeting the requirements of Schedule J, and was approximately $40.00 per hour less for a three man EPV Chipper
than what was being charged at the North Coast.
Energex had agreed to pay a higher rate for work on the South Coast commencing on 23 November 1998 to allow Sherrin Hire to pay in
accordance with Schedule J;
Sherrin Hire had expressed concern about back pay to employees who carried out work under manual orders at the South Coast since December
1997.
Mr Barbagello would consider the matter and advise Sherrin Hire of the outcome.
Appendix F to the witness statement of Mr Iain Sherrin (Exhibit R1) was the minutes of a meeting held on 29 April 1999. Those minutes state that the
purpose of the meeting was to review the actions agreed upon at the meeting of 26 November 1998. Item 5 of those minutes records details of a
discussion in relation to back pay for staff employed on the South Coast, including Mr Weir. Reference is made to the facsimile forwarded to Mr Iain
Sherrin on 3 December 1998 including the letter of invitation to tender dated 5 December 1997 which Energex contended formed the basis of the contract
with Sherrin Hire to perform tree trimming at the South Coast. Mr Iain Sherrin is recorded in the minutes as stating that he did not tender to pay
Schedule J rates. The minutes then record that:
“Ron Barbagello made the comment that Energex’s letter dated 5 December 1997 requested Sherrin Pty Ltd to tender in accordance with Form
1510NW. Ron Barbagello advised that Clause 9 of Form 1510NW required the Contractor to pay in accordance with the Use of Contractors
Agreement.
Iain Sherrin and Glen Smith advised that they wished to wait until Graham Pfingst of DTIR produces a Report on the matter.”.
Mr Iain Sherrin confirmed in his witness statement (Exhibit A1 paragraph 12) that he had again stated at that meeting that he did not tender to pay
Schedule J rates, and that the issue was concluded at that time by his request to await an outcome of an investigation on the matter that was being
conducted by the Department of Employment and Industrial Relations (DETIR) as it then was.
On 17 August 1999, Mr Barbagello said that he had visited the premises of Sherrin Hire in the company of Mr John Banks of Energex and Mr Peter
McCrystal, an industrial relations consultant, and met with Mr Iain Sherrin and Mr Mike Sherrin. A file note prepared by Mr McCrystal which Mr
Barbagello said outlined discussions on that date was Appendix D to Mr Barbagello’s witness statement (Exhibit A4). The file note relevantly states that
it was agreed on 17 August 1999 that Sherrin Hire would be given some time to consider the claim of Mr Weir. The file note also indicates that on the
afternoon of 17 August the documents which Energex contended constituted the “contract” entered into on 5 December 1997 (i.e. the letter of invitation
to tender dated 5 December 1997 and Schedule A2), were again faxed to Sherrin Hire. This is confirmed by Mr Barbagello in his evidence-in-chief
(Exhibit A4 paragraph 12).
At a further meeting on 18 August 1999, Mr Barbagello said that the parties agreed that the documents sent to Sherrin Hire on 17 August 1999
constituted the contract and that the parties would honour their respective commitments under it. In this regard, Energex conceded that Sherrin Hire was
entitled to payment of an additional amount to reflect the fact that some of the work performed by Sherrin Hire under the contract was overtime and
Sherrin Hire was entitled to be paid for that work at Rate 2 in Schedule A2. That Schedule contains rates for specified plant including operators which
Sherrin Hire was to be paid for work performed under the “contract”. Each piece of plant and equipment has a specified rate for ordinary hours (Rate 1)
which is applicable to work issued between 6.00 a.m. and 8.30 p.m. Monday to Friday excluding public holidays. A further rate (Rate 2) is specified for
each piece of plant and equipment for work performed at times other than between 6.00 a.m. and 8.30 p.m. Monday to Friday and on weekends and
public holidays. In most cases Rate 2 is $18.00 per hour higher than Rate 1 (Exhibit A3).
Essentially Mr Barbagello said in his evidence that Energex had agreed to pay Sherrin Hire the overtime and in return Sherrin Hire had agreed that it
would pay Mr Weir’s wage claim. A letter detailing this agreement under the signature of John Banks Industrial Relations Manager Energex was
forwarded to Sherrin Hire on 26 August 1999 (Appendix E to the witness statement of Mr Barbagello – Exhibit A4). That letter addressed to Mr Michael
Sherrin stated:
“Dear Mr Sherrin
1. Wages Claims by Messrs Lord, Weir and Wolse
2. Gold Coast Contract 1998
We refer to our discussions with you on 17 and 18 August at your Eagle Farm office.
On 17 August in response to our request, you agreed to meet the wages claims covering your former employees Messrs Phillip Lord and Eric Wolse.
The outstanding wages covering each of these employees will be forwarded by you to the employees.
It was also agreed that with respect to a wages claim for Mr Neil Weir, the parties should first establish the terms and conditions of the Gold Coast
contract because, among other things, you believed the company had not made a claim to ENERGEX for the overtime component thereof. That
afternoon, we found relevant contract documents, faxed them to you and agreed to meet with you again, on 18 August, at your Eagle Farm office.
On that date, we met again and agreed that the documents we faxed to you the previous afternoon constituted the Gold Coast contract and in accord
with the terms and conditions of the contract, we would meet any valid overtime claim, in full if was not paid previously. We have now established
that you did not make a claim for overtime under that contract. Your company has now also agreed to pay Mr Weir’s outstanding wages claim for
$13 865.95 (gross) in full.
In accord with the above arrangements, Enegex will fulfill its contractual obligations and will pay to you the outstanding sum covering a valid
overtime claim under the contract.
We believe this now satisfactorily resolves our concerns under the contract covering the above-named employees and look forward to your early
response confirming our understandings.”.
On 7 September 1999 a letter was forwarded to Energex from Sherrin Hire, under the signature of Ms Simone Sherrin, advising that payments would be
made to a number of employees and that further investigation was in process in regards to Mr Weir’s wage claims. The letter concluded by stating that
Sherrin Hire would advise Energex of the outcome.
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A further meeting was held on 23 November 1999 between Mr Iain Sherrin and Mr Rod Vincent of Sherrin Hire and a number of representatives of
Energex. The minutes of that meeting (appended to the witness statement of Mr Simpson – Exhibit A8) record that a notice of attachment remained
outstanding for Mr Weir involving a contract on the South Coast. Those minutes further record that Energex had previously agreed to meet claims for
overtime for work completed on the South Coast contract and that Mr Sherrin agreed to pay outstanding amounts to Mr Weir and a number of other
employees. An invoice provided by Sherrin Hire for the overtime claim, in the amount of $77,000.00 was discussed. It was also noted that Sherrin Hire
claimed to have been instructed to perform work on Saturdays and while stating Energex had no record of such an instruction, it was agreed by Energex
to accept the claim and to pay the amount of $77,000.00 to Sherrin Hire, subject to that company providing details of when the Saturday work had
ceased.
A facsimile from Mr Iain Sherrin to Mr Leadbetter dated 24 November 1999 was also attached to the witness statement of Mr Simpson (Exhibit A8)
which requests overtime payments already approved to be made as soon as possible and attaches a spreadsheet showing weekend work performed by
employees of Sherrin Hire on the Gold Coast.
A letter addressed to Mr Iain Sherrin dated 31 January 2000 was attached to Mr Simpson’s affidavit (Exhibit A8) as Appendix H. The version attached
to Mr Simpson’s affidavit stated that in relation to the claim by Sherrin Hire for $77,557.14, Energex had paid $17,118 in November 1999, $35,833.50 in
December 1999 and would make a final payment of $15,034.50. Energex had therefore approved a total payment of $67,986.00 on the original invoice
from Sherrin Hire for the amount of $77,557.14. That version of the letter also stated that Energex was currently arranging for the payment to be made
subject to the finalisation of outstanding issues with DETIR. This was said to include the claim by Mr Weir for backpay. Reference was also made in the
letter to a table summarising the payment.
The author of the letter was identified as Mr Leadbetter, who gave evidence on 2 July 2003. Mr Leadbetter said that the overtime payments were
calculated by Energex on the basis of the Rates provided by Mr Iain Sherrin in the tender document forwarded by him to Energex on 5 December 1997
(Exhibit A3). The prices set out in that document contained a differential of $18.00 per hour between Rate 1 and Rate 2. Rate 2 was payable for work
performed during hours outside of 6.00 a.m. and 6.00 p.m. Monday to Friday, work performed on public holidays and work performed on weekends.
Mr Leadbetter said that the higher rate had been paid for work performed in excess of 36.25 hours per week and for hours worked on weekends, and that
the number of hours attracting the higher Rate 2 had been agreed following negotiations between Sherrin Hire and Energex. Mr Leadbetter also produced
a copy of the letter dated 31 January 2000 which he had printed from his computer for the purpose of giving evidence on 2 July 2003 (Exhibit A10). That
version did not contain the statement that the final payment was being made to Sherrin Hire subject to the finalisation of outstanding issues with DETIR.
Mr Leadbetter was also unable to state with any certainty what version of the letter of 31 January 2000 was sent to Mr Iain Sherrin.
Further, Mr Leadbetter said that he was the author of the minutes of the meeting between representatives of Sherrin Hire and Energex on 23 November
1999. Under cross-examination Mr Leadbetter maintained that the minutes were accurate and that Sherrin Hire representatives present had agreed to
make outstanding payments to Mr Weir and other employees in return for receiving the additional payments under the contract for overtime hours. Mr
Leadbetter also agreed under cross-examination that in fact, Energex had made the final payment stipulated in both versions of the letter of 31 January
2000 prior to the finalisation of outstanding issues with DETIR.
Mr Iain Sherrin, giving further evidence in relation to the matters raised in the evidence of Mr Leadbetter said that the minutes of 23 November 1999
were not accurate and that he had never agreed to make any payment to Mr Weir. In relation to the additional payment for overtime work, Mr Sherrin
said (at Transcript p. 184 line 24 – 33) that:
“that was for work we’d done under schedule A2 which was the original agreement between Sherrin Hire and Energex. We’d done a certain amount
of work that hadn’t been paid for and that was under that schedule and we – that’s what that was all about, that 77,000 was about that work that
hadn’t been paid. That was owed to Sherrin Hire for the work that had been performed but hadn’t been paid for … tree trimming work.”.
Mr Sherrin said that he had not seen the letter from Energex dated 31 January 2000 (Appendix H to Exhibit A8) or the version that was Exhibit A10 prior
to giving his evidence on 2 July 2003. Further, Mr Sherrin said that he had not seen the table attached to that letter (Exhibit A11) prior to 2 July 2003.
Under cross-examination, Mr Iain Sherrin agreed that Sherrin Hire had initially been paid for all of the hours subject of the overtime claim, at Rate 1
under the contract of 5 December 1997. The additional payment represented payment for those hours at the difference between Rate 1 and the overtime
rate represented by Rate 2. Mr Iain Sherrin stated under cross-examination that Sherrin Hire was not under any obligation to pass on any of the
additional payments to Mr Weir as the money was owed to Sherrin Hire under the terms of its contractual arrangements with Energex.
In response to questions from the Commission, Mr Iain Sherrin agreed that the actual cost to Sherrin Hire of operating plant and equipment was constant
during both ordinary and overtime hours as defined in Schedule A2. Mr Iain Sherrin also agreed that the cost of fuel did not increase when overtime was
being worked, but maintained the difference between Rate 1 and Rate 2 did not relate to the labour component of the contract price (Transcript p. 187
lines 27-60).
On 9 March 2000 a letter was forwarded to Mr Iain Sherrin from Mr Banks of Energex (Appendix G to the witness statement of Mr Iain Sherrin – Exhibit
R1) referring to verbal agreement on 17 August 1999 that each party to the Gold Coast contract would honour the terms of that contract. The letter went
on to state that Energex had discharged its commitment to make overtime payments under that contract with the final payment having been made on 14
February 2000, and contended that Sherrin Hire had not honoured its part of the agreement by refusing to resolve wages claims of employees. Sherrin
Hire was requested to pay Mr Weir’s claim in full. Sherrin Hire responded to that letter on 17 March 2000 (Appendix H to the witness statement of Mr
Iain Sherrin – Exhibit R1) stating that it was yet to determine whether it would accept liability for Mr Weir’s claim. That letter went on to state that
Sherrin Hire had carried out services on the Gold Coast under manual orders via fax, with no contractual obligations expressed prior to proceeding. The
letter concluded by stating that Sherrin Hire would negotiate directly with the Department of Employment, Training and Industrial Relations with respect
to wages claims.
4. SUBMISSIONS
4.1 Submissions for the Applicant
The submissions for the applicant can be summarised as follows. The provisions of s. 278 of the IRA do not limit recovery of wages applications to
circumstances where wages sought to be recovered are payable under an industrial instrument and wages payable under a contract of employment may
also be recovered pursuant to that section. In the application before the Commission in this case it was contended that the wages sought to be recovered
are payable pursuant to the operation of s. 55 of the PLA. In the present case, the promisor was Sherrin Hire and the promisee was Energex. The
promise made by Sherrin Hire was to perform the work required by Energex at the rates indicated in Schedule A2, and to pay workers performing the
work at agreed rates as set out in Schedule J of the standard Energex contract terms. Sherrin Hire was not a new contractor to Energex and as a company
had performed a number of contracts for Energex prior to and after 5 December 1997, and had also been provided with a full set of tender documents on
28 November 1997. Given the provision to Sherrin Hire of standard contract terms by Energex on 28 November 1997, and the reference to those terms in
the invitation to tender on 5 December 1997, it was reasonable for Energex to have relied on the specification as forming part of the contract.
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The subjective knowledge of Mr Iain Sherrin was irrelevant as in constructing the contract between Energex and Sherrin Hire. The question is what a
reasonable person in the place of the contracting parties would have understood the contract to be. Given the previous course of dealing between
Energex and Sherrin Hire, a reasonable person in Energex’s position would have considered that Sherrin Hire had notice of, and was operating in
accordance with the specification and that it was incorporated into the contract by course of dealing. In this regard, it was the knowledge that Sherrin
Hire could reasonably have been said to have had which is relevant, not the knowledge of the particular person representing Sherrin Hire at the time.
The evidence of Mr Iain Sherrin that he did not receive the covering letter to Schedule A2 on 5 December 1997 should not be accepted. Even if Sherrin
Hire argued that the entire documentary evidence of the contract was Schedule A2, that Schedule referred to “the specification” and relevant managers of
Sherrin Hire ought to have informed themselves of what “the specification” constituted prior to entering into the contract. To ascertain what the parties
to the contract intended by use of the term “the specification” an objective test should be applied and what each party reasonably concluded from the use
of that term should be determined: Henry Kendall and Sons v William Lillico and Sons Ltd (1993) 2 AC 31. The term “specification” is ordinarily used
in commercial situations where tenders are sought and given its provision of the specification to Sherrin Hire on 28 November 1997, Energex was
entitled to reasonably assume that the reference in Schedule A2 was to its standard contract specification. The requirements of Schedule J were part of
the contract on the basis that they were incorporated by course of dealing. Schedule J was also imported into the contract by reference in the
correspondence dated 5 December 1997 and by use of the term “the specification” in Schedule A.
The fact that Sherrin Hire had promised to do the required work at the quoted rates was for the benefit of Energex but given that the offer was on the
basis of standard Energex rates, it was also for the benefit of Mr Weir. It was sufficient that one of the purposes of the promise was to benefit Mr Weir:
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Robt Jones (363 Adelaide Street) Pty Ltd & Anor v First Abbott Corporation Pty Ltd &
Ors [1997] QSC 210 (28 October 1997). The promise on the part of Sherrin Hire was intended to be legally binding as evidenced by the terms of Form
1510NW which was part of the specification referred to in Schedule A2, and Form 1510NW and Schedule J were obviously directed to the workforce of
Sherrin Hire including Mr Weir.
Mr Weir meets the requirements of the definition of “beneficiary” under s. 55(6) of the PLA and as an employee of Sherrin Hire was not an incidental
beneficiary. By his conduct in contesting the rates that he was paid by Sherrin Hire, Mr Weir had accepted the benefit of the promise between Sherrin
Hire and Energex within a reasonable time of it coming to his notice. Nothing in s. 55 of the PLA operates to exclude circumstances where a separate
contract exists between the beneficiary and one of the parties to the contract which the beneficiary claims the benefit of.
Sherrin Hire had received additional amounts under the contract for overtime worked and Mr Iain Sherrin had made no effort to correct or indicate
disagreement with the assumption made by Energex about the basis of that payment in correspondence and minutes of meetings, prior to receiving such
additional amounts. Those amounts were clearly paid on the basis that Sherrin Hire would make payment to Mr Weir with respect to his wages claim and
Mr Iain Sherrin’s evidence that this was not the case should be rejected.
4.2 Submissions for Sherrin Hire
The submissions for Sherrin Hire can be summarised as follows. The contract between Sherrin Hire and Energex, incidental to which Mr Weir was
employed, was never substantially evidenced in writing. The entire contract was based on a tender made by Mr Iain Sherrin in response to an urgent
telephone call received from Energex in late 1997. That tender was submitted by Mr Iain Sherrin in accordance with his anticipated payment to
employees such as Mr Weir under the terms of the Forest Resources Industry Award – State. At the time of the negotiations between Energex and
Sherrin Hire on 5 December 1997, Mr Iain Sherrin had only been with the Company in Brisbane for a few months and had no prior dealings with
Energex.
The argument that the requirements of Schedule J should be implied into the contract by previous course of conduct between Sherrin Hire and Energex
should be rejected given that Mr Iain Sherrin had never previously dealt with Energex and could not have been expected to have notice of extensive terms
and conditions that Energex contend were imported into the contract. The evidence of Mr Ellerton in relation to the dealings with Mr Iain Sherrin on 5
December 1997 should not be accepted. Mr Ellerton was unable to produce facsimile transmission records and none of the other alleged recipients of the
letter of 5 December 1997 were called to confirm that they had received it. While both Energex and Sherrin Hire might be criticised for failure to retain
this documentation, Energex is a Quality Assured Public Utility and failure on the part of Energex to retain the relevant documents must be of greater
significance. In subsequent discussions between the parties, the evidence establishes that neither Iain or Michael Sherrin agreed to pay any amount to Mr
Weir.
It was also submitted for Sherrin Hire that even if the version of the contract contended by the applicant is accepted the applicant has no standing to bring
these proceedings under s. 55 of the PLA, for the following reasons:
•
•
•
•
•
•
•
•
•
•
•
•
in bringing the proceedings the ETU on behalf of Mr Weir are actually purporting to enforce terms of a contract to which neither was a party;
the contact between Energex and Sherrin Hire was not a contract as described by s. 55(1) of the PLA;
that section requires valuable consideration to pass between Sherrin Hire and Energex in return for a promise by Sherrin to do or not do
something for the benefit of Mr Weir, and does not contemplate a scenario where consideration passes between Sherrin Hire and Mr Weir;
Mr Weir is not a third party to the contract at all, but rather a party in his own right to a wholly separate albeit related contract of employment;
Mr Weir is an incidental beneficiary to the contract between Sherrin Hire and Energex;
that contract was for the removal of vegetation affecting the supply of power to the public and the only beneficiaries to the contract were
members of the community living in the relevant area;
the payment of wages to Mr Weir was entirely incidental to the promise made by Sherrin Hire to Energex and accordingly Mr Weir was
sufficiently incidental to that promise to exclude him from exercising a right under s. 55 of the PLA;
Mr Weir did not provide acceptance as defined in s. 55(6) of the PLA;
on Mr Weir’s own evidence, when told by his supervisor that Schedule J did not apply to him, Mr Weir continued to work for Sherrin Hire and
did not raise any further issue with his pay until after the termination of his employment;
the assertion by Mr Weir that Schedule J applied to him did not constitute acceptance;
there can be no acceptance of a condition of a contract where the offeror explicitly denies the condition and on Mr Weir’s own evidence his
supervisor specifically denied that Schedule J applied to him; and
there could be no acceptance of a contract term where Sherrin Hire was not aware of that term at the time of the purported acceptance and it
defies all principles of contract law to suggest that a party may “accept” a term that another party has expressly rejected.
5. CONCLUSIONS
5.1 The terms of the Contract between Energex and Sherrin Hire
After considering all of the evidence in this matter I am satisfied that there was a contract entered into between Energex and Sherrin Hire on 5 December
1997. All of the necessary requirements for the formation of a contract were present – offer, acceptance, valuable consideration and the intention to
create legal relations. This is the case even if the terms of the contract were as asserted by Sherrin Hire. Notwithstanding the evidence of Mr Michael
Sherrin that the arrangement was not really a contract, neither party in these proceedings asserted that the arrangement was anything other than a contract.
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The point of disagreement was the terms of the contract, rather than its existence. To determine the matters in issue between the parties in this case, it is
necessary to establish the terms of the contract of 5 December 1997 between Energex and Sherrin Hire.
It is clear from the evidence that whatever the terms of that contract were, they were not wholly expressed in writing. For this reason the parol evidence
rule does not apply: Gordon v McGregor (1909) 8 CLR 316 at 323-324; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
at 60-61. Accordingly a party to the contract was entitled to lead oral evidence to demonstrate that the parties intended oral or other terms to be part of
the contract. I also note that there was no objection in proceedings in W110 of 2002 to evidence of oral or other terms of the contract or to evidence
about other contracts or conduct subsequent to the formation of the contract of 5 December 1997.
The admissibility of evidence of subsequent conduct as an aid in the interpretation of an ambiguous instrument has been the subject of some controversy.
In White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266, the High Court held that it was entitled to take account of the “surrounding
circumstances” to the contract in issue in that case. Among those circumstances were a number which related to events subsequent to the formation of
the contract. In this regard, Latham CJ commented (at 291) that the appellants established their case if they showed that their contract was one whereby
they were employed in certain capacities. His Honour went on to state that there was properly admissible evidence of events subsequent to the formation
of the contract, that they were so engaged.
This can be contrasted with the English approach whereby courts have declined to admit evidence of subsequent conduct as an aid to interpretation of an
ambiguous instrument. That approach was followed by President Hall In QPSU v Department of Corrective Services (2002) 170 QGIG 423 at 425 where
it was held after reviewing the English case law that evidence of how parties to an award had treated certain provisions after the award was made, was
inadmissible. Given the decision of the President in this regard I am not prepared to consider evidence of conduct subsequent to the formation of the
contract of 5 December 1997 as a guide to the interpretation of that contract. It should also be noted that the contract I am required to construe in this
case is principally a commercial contract rather than an employment contract. In this regard the “generous approach” to the admission of extrinsic
material in the construction of industrial instruments approved by the President in Queensland Police Union of Employees v Commissioner of Police
(2000) 164 QGIG 16 and AWU v James Hardie Australia Pty Ltd (2001) 167 QGIG 280 does not apply.
However, I am of the view that the evidence of subsequent conduct also goes to the credit of some of the witnesses in these proceedings, and for that
reason I have given consideration to it in forming my views about whose evidence should be preferred.
After considering all of the admissible evidence on the formation of the contract, on balance, I am satisfied that the terms of the contract were as asserted
by the ETU for Mr Weir. I have reached the view that it is more probable than not that Sherrin Hire/Mr Iain Sherrin did receive the letter of 28
November 1997 attaching full contract specifications for tenders to Energex and that Mr Iain Sherrin did receive the covering letter dated 5 December
1997 together with Schedule A2. I have reached these conclusions for the following reasons. Mr Iain Sherrin’s evidence in this regard was equivocal. In
relation to the letter of 28 November 1997, Mr Iain Sherrin said that he did not recall receiving the letter but there was a possibility that he did receive it.
In relation to the letter of 5 December 1997, Mr Iain Sherrin said that he could not say definitely that he did not receive it, but could not remember seeing
it until it had been provided to him by Energex on 3 December 1998.
I am also of the view that it was not reasonable for Mr Iain Sherrin to have accepted that Schedule A2 alone could have constituted the terms of the
contract between Energex and Sherrin Hire. The very fact that the document is headed “Schedule A2” begs the obvious question that it must be a
Schedule to some other document. Further, the specifications of the contract could not on any reasonable view, only have included reference to certain
plant and equipment and the price to be charged by Sherrin Hire for the provision of that plant and equipment.
I am unable to accept that the subjective knowledge of Mr Iain Sherrin was determinative of the terms of the contract. Upon receipt of the letter of 5
December 1997, and Schedule A2, Mr Iain Sherrin reasonably had at his disposal the means of ascertaining the requirements for the tender. There is
uncontested evidence that Sherrin Hire had previously tendered in accordance with the standard contractual requirements of Energex and that
management representatives had signed documentation accepting those requirements. That same documentation was referred to in the letter to Mr Iain
Sherrin dated 5 December 1997. If he was not aware of those requirements Mr Iain Sherrin had reasonable means to ascertain them and Energex was
reasonably entitled to assume that those terms were accepted by Mr Iain Sherrin when he completed and returned Schedule A2 on 5 December 1997.
There is also the fact that the prices in the tender prepared by Mr Iain Sherrin on 5 December 1997 (Exhibit A3) are markedly similar to the prices in the
tender submitted by the Company in September 1996 (Exhibit A5). It will be remembered that the prices for two pieces of plant submitted by Mr Iain
Sherrin on 5 December 1997 were $65.00 and $55.00 per hour respectively, notwithstanding his evidence that these prices were developed with reference
to November 1991 rates under the Forest Resources Industry Award – State. The tender submitted by Mr Street on behalf of Sherrin Hire on 9
September 1996 quoted a price of $60.00 and $45.00 per hour for the same pieces of plant with the same number of operators, and was submitted on the
basis that Mr Street also signed Schedule J to indicate that the rates quoted were consistent with obligations under that Schedule. In my view it is
improbable that a tender submitted more than twelve months later by Mr Iain Sherrin, on the basis of much lower 1991 rates of pay in the Forest
Resources Industry Award – State should contain prices greater than those submitted by Mr Street in September 1996, if Mr Sherrin did not have some
knowledge of the standard contractual requirements of Energex with respect to rates payable to the employees of contractors, and the prices which had
earlier been submitted by Mr Street.
For the reasons outlined above, I have also considered the subsequent conduct of parties to the contract in relation to the issue of their credit as witnesses.
It is clear from the evidence of that conduct that Mr Sherrin did not specifically claim that he had never seen the letter of invitation to tender dated 5
December 1997, before 3 December 1998, until his evidence in these proceedings. Nowhere in the minutes of meetings during which Mr Weir’s wages
claim was discussed, or in correspondence to Energex does Mr Sherrin claim that he did not receive the letter of 5 December 1997 until late in 1998.
This is notwithstanding the fact that there is uncontested evidence that a copy of the letter was subsequently provided to him on two occasions – by
facsimile from Mr Barbagello on 3 December 1998 and again on 17 August 1999 – and that Energex was contending at all times during the negotiations
about Mr Weir’s wages claim, that the letter of invitation to tender dated 5 December 1997, together with Schedule A2 constituted the contract between it
and Sherrin Hire.
The evidence shows that there were numerous meetings and exchanges of correspondence between Energex and Sherrin Hire after the provision of the
copy of the letter of invitation to tender of 5 December 1997 to Mr Iain Sherrin. The contention that the letter of 5 December 1997 was not received on
the date that Energex claimed to have forwarded it to Sherrin Hire, was a critical point in the evidence of Mr Iain Sherrin in these proceedings. Such a
contention should reasonably have been a critical point in earlier discussions and exchanges of correspondence with Energex. The failure of Mr Iain
Sherrin, or any person representing Sherrin Hire to make what would have been a relatively simple contention in relation to the alleged non-receipt of the
letter of invitation to tender of 5 December 1997 prior to preparing witness statements for these proceedings and giving evidence in them, in
circumstances where that letter was critical to the contentions of Energex, was significant and now weighs against the acceptance of that evidence.
I was also not impressed with the insistence by Mr Iain Sherrin that he was not aware until November 1998 that there were terms in contracts with
Energex requiring payment of certain rates to employees. The evidence clearly establishes that Mr Iain Sherrin signed a contract on 30 January 1998
which specifically included Schedule J (Exhibit A6), and by signing that Schedule accepted that employees of Sherrin Hire would be paid rates and
allowances in aggregate no less than those payable to employees under the Electricity Supply Industry Employees’ Award – State. I do not accept Mr
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Sherrin’s evidence that he was not aware of what he signed at the time. In my view that evidence is highly improbable given that Mr Iain Sherrin was a
senior manager with ostensible authority to enter into contracts on behalf of Sherrin Hire. The fact that the evidence also demonstrated that Sherrin Hire
did not pay employees in accordance with the contractual obligations it had undertaken even where there was no dispute as to the terms of the contracts in
question, is another issue going to Mr Iain Sherrin’s credit. His evidence was that notwithstanding that he had signed a contract (Exhibit A6) specifically
requiring certain rates to be paid to employees he had paid those employees a flat rate of $15.00 per hour under the Forest Resources Industry Award –
State and had only made back payments to those employees when the matter had been taken up with Sherrin Hire by Energex and the ETU.
Mr Michael Sherrin agreed that Sherrin Hire had a quality rating with Energex and had contracted with Energex from as early as 1992 (Transcript p. 141
and p. 143). It was also apparent from the evidence that Sherrin Hire is not a small business with lack of expertise in contractual matters. Sherrin Hire
operates in at least two States, New South Wales and Queensland, and has a management structure which comprises several tiers. It is clear that Sherrin
Hire in a corporate sense had knowledge of the contractual requirements of performing work for Energex and that Managers including Mr Iain Sherrin
had reasonable access to that knowledge and the means of establishing the nature and extent of those contractual requirements.
Finally, I am of the view that there are too many documents which Mr Iain Sherrin claims not to recall receiving from Energex – the letter of 28
November 1997 attaching contract specifications; the letter of 5 December 1997 accompanying Schedule A2 and the letter of 31 January 2000 (Exhibit
A10) – and that on balance his evidence in this regard should not be accepted.
Accordingly I am reasonably satisfied that the terms of the contract between Energex and Sherrin Hire, entered into on 5 December 1997 included by
reference to form 1510NW in the letter of invitation to tender of that date, and the reference to “the specification” in Schedule A, the requirement that
Sherrin Hire pay employees performing work pursuant to that contract, rates of pay and allowances that were in aggregate no less favourable than those
applying to the same or similar classifications of employees engaged under the Electricity Supply Industry Employees’ Award – State.
5.2 Industrial Relations Act 1999 – s. 278
After considering the terms of s. 278 of the IRA I am of the view that the term “wages” in that section, and as defined in Schedule 5 of the IRA, is
sufficiently broad to include an amount payable to an employee under a contract of employment to which the employee is entitled by virtue of a
commercial contract entered into by his or her employer. All that is required by s. 278 of the IRA is that the wages claimed must have been earned by
work done in accordance with a contract of employment. In my view an employee may be entitled to certain wages under a contract of employment by
virtue of being a beneficiary to a commercial contract between the employee’s employer and another party. I can see no basis under s. 278 for denying
such an employee a right to pursue such an entitlement under s. 278 of the IRA by also relying on the terms of s. 55 of the PLA to establish an
entitlement to the benefit of a commercial contract between his or her employer and another party. Further I can see no basis for holding that an
employee is unable to rely on the provisions of s. 55 of the Property Law Act 1974 to establish that he or she is entitled to a benefit, in the form of certain
wages, arising from a commercial contract entered into by his or her employer which included a promise to pay the employee those wages.
Considerations of equity, good conscience and the substantial merits of a case, which are the basis of decisions of this Commission, in my view require
the Commission to give consideration to other applicable statutes raised by parties in proceedings under the IRA. The Commission does not operate in a
vacuum and cannot ignore the application of other statutes, particularly when there is nothing in those statutes which indicates that they have a restricted
operation.
5.3 Property Law Act 1974 – s. 55
For the reasons outlined in my earlier decision in this matter ((2003) 172 QGIG 1869) I can see no basis upon which it could be held that s. 55 of the PLA
does not apply in the circumstances of this case. In my view, the contract between Sherrin Hire and Energex was a contract capable of being considered
pursuant to s. 55 of the PLA. Sherrin Hire the promisor gave a promise to perform certain work involving the trimming of trees in the Gold Coast area.
That promise was that Sherrin Hire would provide certain pieces of plant and equipment and employ persons to operate that plant and equipment in order
to carry out tree trimming in the Gold Coast area. Sherrin Hire also promised inter alia that employees performing the work would be paid rates of pay
and allowances that were in aggregate no less favourable than those applying to the same or similar classifications of employees engaged under the
Electricity Supply Industry Employees’ Award – State. The promisee was Energex.
There was valuable consideration passing from Energex to Sherrin Hire, by virtue of the fact that Energex awarded a contract to Sherrin Hire in return for
its promise. It is not to the point that there was also consideration passing between Sherrin Hire and Mr Weir under the contract of employment between
Sherrin Hire and Mr Weir. That contract of employment was distinct from the commercial contract between Energex and Sherrin Hire. Further, the
existence of a contract of employment between Mr Weir and Sherrin hire did not preclude Mr Weir from also being a beneficiary to the commercial
contract between Energex and Sherrin Hire.
It is also irrelevant that Energex (or its customers) as the promisee benefited from the promise by Sherrin Hire to perform the contracted work and to pay
its employees at the agreed rates. The act of paying the rates payable to employees under the Electricity Supply Industry Employees Award – State did
not cease to be for the benefit to Mr Weir because it may also have been for the benefit of Energex (or by extension its customers): Re Davies
(Unreported Qld SC Ryan J No. 766 of 1986).
Mr Weir was at all relevant times an employee of Sherrin Hire. While not named in the commercial contract between Energex and Sherrin Hire he was
part of an identifiable and limited group of persons benefited by that contract. Given that the specific terms of the contract included a requirement for
Sherrin Hire to pay certain rates and allowances to its employees, it is difficult to see how those employees were not beneficiaries of the promise. Mr
Weir was not an incidental beneficiary of the type discussed by Brennan CJ in Northern Sandblasting Pty Ltd v Harris. It is not impossible to predicate
on any logical basis the identity of the beneficiaries of the promise given by Sherrin Hire to Energex. The identities of the beneficiaries, the employees of
Sherrin Hire engaged to perform work pursuant to the commercial contract, were ascertainable from the terms of the promise made. The promise did not
impose on Sherrin Hire a duty to the world at large, but rather to a limited and identifiable group – its employees, including Mr Weir.
I am also of the view that there was acceptance on the part of Mr Weir of the promise for his benefit. Mr Weir’s uncontested evidence is that he
communicated his acceptance of the benefit of the promise to a representative of Sherrin Hire, his supervisor Mr Butcher. It is irrelevant in my view that
the Mr Butcher expressly rejected the obligation and that Sherrin Hire subsequently claimed to be under no obligation to pay Mr Weir in aggregate rates
and allowances not less than those payable to employees under the Electricity Supply Industry Employees Award – State. I do not accept the argument on
behalf of Sherrin Hire that there could be no acceptance where Mr Butcher (or any other individual representative of Sherrin Hire) was not aware of the
term at the time of the purported acceptance.
On an objective view of the events of 5 December 1997, Mr Iain Sherrin, the authorised representative of Sherrin Hire, entered into a contract with
Energex which obligated the Company to pay certain rates of pay to Mr Weir for work performed pursuant to that contract. The subsequent denial of the
terms of the contract by Mr Butcher or even Mr Iain Sherrin, could not have prevented Mr Weir accepting the terms of the contract upon becoming aware
of them. To hold otherwise would mean that the purported beneficiary of a contract could be deprived of any remedy under s. 55 of the PLA by virtue of
the promisor simply denying, however wrongly, the existence of the contract or one of its terms. This would be contrary to the approach which has
always been taken whereby Courts have determined the existence of a contract and its terms on an objective rather than a subjective basis.
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The contract remained on foot until its discharge by the final payment by Energex in January 2000. During the period the contract remained on foot, Mr
Weir, through his agent the ETU, continued to communicate his acceptance of the benefit of the promise between Energex and Sherrin Hire through his
ongoing claim to be paid in accordance with the terms of that promise. There was no unreasonable time delay between the promise coming to the notice
of Mr Weir and the acceptance of it by both Mr Weir and his agent the ETU.
I am also of the view that the promise in this case did recognise a right to performance on the part of Mr Weir, and that recognition of that right to
performance was necessary to effectuate the intention of the parties. Mr Weir’s right to performance was the right to be paid in aggregate rates and
allowances not less than those payable to employees under the Electricity Supply Industry Employees Award – State. That payment to Mr Weir by
Sherrin Hire was necessary to effectuate the intention of both Energex and Sherrin Hire as evidenced by the terms of the commercial contract they had
entered into. Clearly, the performance of the promise in this case would satisfy an obligation to pay money to Mr Weir as a beneficiary to that promise.
5.4 Equity, Good Conscience and the Substantial Merits of the Case
The basis for decisions of the Commission under the IRA is equity, good conscience and the substantive merits of the case having regard to the interests
of the persons immediately concerned and the community as a whole: s. 320(3). The evidence in this case raises the question of whether it is inequitable,
unconscionable and contrary to the merits of the case for Sherrin Hire to retain all of the additional money it was paid under the contract with Energex.
The evidence in my view establishes that Sherrin Hire was paid an amount of money under the contract with Energex in return for undertaking to address
Mr Weir’s wages claim. Sherrin Hire did not honour this undertaking.
That Energex paid money to Sherrin Hire on this basis is apparent from its letter to Mr Michael Sherrin dated 26 August 1999, and subsequent
discussions in relation to this matter. In relation to those discussions I accept the evidence of Mr Barbegello and Mr Leadbetter in preference to that of
Mr Iain Sherrin for the following reasons:
•
•
no attempt was made by Sherrin Hire to correct minutes taken by Energex representatives stating that the Company had agreed to pay Mr Weir’s
wage claim; and
Sherrin Hire did not definitively state that it had not agreed to meet Mr Weir’s wages claim until after the final payment had been made by
Energex (refer Appendix H to the witness statement of Mr Iain Sherrin – Exhibit R1).
In summary, Sherrin Hire accepted an amount of money based on overtime calculated by reference to an ordinary working week of 36.25 hours. Such
hours are standard for employees covered by the Electricity Supply Industry Employees Award – State and are not a feature of other awards of this
Commission, in particular the Forest Industry Resources Award – State. The result is that Sherrin Hire accepted money predicated on a contractual term
– i.e. the application of the Electricity Supply Industry Employees Award – State – while denying that term in respect of Mr Weir’s wages claim.
Mr Iain Sherrin’s evidence in chief was that this payment had been for hours worked by Sherrin Hire which had not been paid for by Energex.
Subsequently under cross-examination Mr Iain Sherrin conceded that all of the overtime hours had been paid for by Energex at the ordinary rate specified
in Exhibit A3 as Rate 1. Mr Iain Sherrin was unable to explain what additional expense was incurred by Sherrin Hire for working overtime hours other
than labour rates. Sherrin Hire accepted additional payment for overtime worked by its employees and did not pass on any of that additional payment to
those employees, money to employees including Mr Weir.
Those employees were paid at a flat hourly rate which was in all probability less than that prescribed by the award upon which it was based, given that
the employees were casual employees and the rates that Sherrin Hire used to calculate the flat hourly rate were current in 1991 and not 1997 when the
work in question was performed. Further, the payslips appended to the witness statement of Mr Weir show hours as both “normal” and “overtime”
notwithstanding that no overtime payments were made to Mr Weir. In all of the circumstances I am of the view that it would be contrary to equity, good
conscience and the substantial merits of the case for Sherrin Hire to retain that money without addressing what I have found to be a valid wages claim
made on behalf of Mr Weir.
In these proceedings I also raised with the parties the issue of whether if Mr Weir’s claim to the benefit of the contract between Sherrin Hire and Energex
failed, the Commission could make an alternative finding that he had been underpaid in any event. In my view this is at least arguable given that Mr
Weir responded to an advertisement stating that applicants holding an Electrical Linespersons qualification would be preferred and that the Forest
Resources Industry Award – State may not have been the appropriate Award to cover an employee required to hold this qualification. It is also arguable
that even if the Forest Resources Industry Award – State was the correct Award, that Mr Weir was underpaid given that he was paid a flat hourly rate
based in 1997 based on the rates in that Award as at November 1991. After considering the submissions of the parties on this point, I do not propose to
determine these issues, as the application was not pleaded on an alternative basis. Further it is unnecessary at this point to determine these issues given
the findings that I have made in relation to the claim as formulated in W110 of 2002.
5.5 Order
In light of the findings set out above, I Order that Sherrin Hire pay to Mr Weir the amount of $13,765.95 within 14 days of the date of release of this
decision.
I.C. ASBURY, Commissioner.
Hearing Details:
2002
2003
8 August
26 September
17 April
10, 11, 26 June
2 July
26 June
16, 23 July (written submissions)
Appearances:
Mr K. Inglis and Mr J. Slowgrove of The Electrical Trades Union of Employees of
Australia, Queensland Branch for the applicant.
Mr J.C. O’Dwyer and Mr P. Knight of Queensland Chamber of Commerce and
Industry Limited, Industrial Organisation of Employers on behalf of the respondent
Sherrin Hire Pty Ltd.
###########################################################################################################################
Helen McCallum AND Lend Lease Development Pty Limited (No. B500 of 2003)
COMMISSIONER THOMPSON
28 November 2003
Application for reinstatement – Witness evidence – Dismissal not harsh, unjust or unreasonable – Application dismissed – Payment in lieu of notice to be
made.
12 December , 2003
1367
DECISION
Background
An application was filed by Ms Helen McCallum (applicant) on 21 March 2003 in which she alleged that her employment has been terminated in a harsh,
unjust and unreasonable manner by Lend Lease Development Pty Ltd (respondent).
Applicant
Evidence supportive of the application was given by Ms McCallum and Mr Simon Ewing.
McCallum
Ms McCallum provided to the Commission two (2) affidavits (Exhibits 1 and 2) which formed the basis of her evidence-in-chief.
She commenced employment with the respondent about 3 November 1998 as Administration Manager, firstly employed as a casual, and subsequently
was offered, and accepted, full-time employment from 15 March 1999.
A letter of appointment to the full-time position was provided to the applicant which set out, in detail, matters pertaining to remuneration, benefits,
conditions of employment, in addition to being provided with a document containing a list of tasks for her position.
Evidence given to the Commission by the applicant detailed her work situation in relation to the location of her work station and the regular use of her
computer by other staff members.
There appeared to be a situation, according to the applicant, where any number of employees had knowledge as to the various passwords used by each
other to access computers on site.
A number of temporary staff employed by the respondent had access also from time to time and used her computer, including a Ms Dianne Buckly who
filled in for her whilst she was overseas for three (3) months in 2002.
In 2001, there was a change to the database utilised by the business to a system known as “ACT”.
Requirements of the new system were set out in paragraph 25 of her first affidavit:
“The ACT system required the following:–
(a) One computer password was required when you logged in;
(b) Screensaver and log in are the same.
(c) Emails have a password.
(d) Database did not have a password until recently.”.
For persons working on the database, once they logged in, all work done (by whoever) would be identified against the name of the person who had first
logged in.
In January 2003, Management decided to change the password to “Twin Waters” on each machine.
For clients wishing to purchase a block of land (that had not yet been released), they were required to complete a “pink” form with the information from
that form being transferred to the database.
The person or persons wishing to purchase such land would have their names entered into a black book identifying the lot number in which they were
interested.
When blocks of land became available, persons at the head of the queue were contacted and they would have a period of time (usually 24 hours) to pay a
deposit and enter into a contract.
Failing to show an interest would have the person next on the list being given the option.
This procedure, in effect, put in place a queue system which applied to all clients, however staff interested in purchasing the same block could jump the
queue and, on numerous occasions, did exactly that.
Former staff who had expressed an interest in land could not jump the queue once they ceased employment with the respondent but continued to maintain
their place on the list.
Mr Ewing, who had been employed as a sales consultant, had, at the time of ceasing employment with the respondent, expressed interest in purchasing a
block of land, but it was later found that the relevant details had been deleted from the database.
He had enquired, sometime late in November 2002, to the applicant about the situation and she had, according to evidence, raised the matter with Ms
Cathy Price who had instructed her to re-enter the information on the database.
The applicant met with Mr Chris Eaton, the Project Director of the respondent company, on 7 February 2003, where there were issues raised in respect of
the entries pertaining to Mr Ewing on the database.
Over the weekend, the applicant spoke to Mr Ewing (despite being told on 7 February 2003 by Mr Eaton not to do so) who, according to her evidence,
“refreshed my memory as to what happened”.
Further discussions involving Mr Eaton and the applicant took place on 10 February 2003 and, at the conclusion of the meeting, the applicant was given
correspondence advising of her suspension from duties.
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12 December , 2003
The text of that correspondence was:
“I refer to our discussions of Friday 7 February and earlier today, Monday 10 February 2003. Please be advised that as of close of business today,
your employment will be suspended with pay until further notice. During this time, you will be required to be contactable but you will not be
required to attend work in the office. I remind you that as an employee of Lend Lease, you are bound by the confidentiality obligations in your terms
of contract.
Lend Lease will be conducting an investigation into the matter. You will be required to attend a formal interview at the conclusion of the
investigation. We will contact you shortly as to the date and time of this interview. Please be advised that you are welcome to have someone attend
the interview with you. You should be aware that if the allegations against you be proven, it will constitute a finding of gross misconduct and in
accordance wit the terms of your contract, you may be summarily dismissed from your employment with Lend Lease.
Should you have any questions, please do not hesitate to contact me.”.
At annexure 6 of Ms McCallum’s first affidavit, she included meeting notes of a meeting held on 19 February 2003, attended by Mr Eaton, Mr Guy
Gibson, and Ms McCallum, who was accompanied by her father.
Mr Gibson, according to the notes, stated that the purpose of the meeting was to gain further information concerning alterations to the database.
Discussions occurred around a “glitch” in the system that had previously deleted information from the database and of re-entering such information on
the database.
Mr Gibson made a number of other enquiries of the applicant that included:
•
whether the database had been copied or released to other parties
•
whether information had been disclosed to unauthorised persons by the applicant
•
details surrounding discussions between the applicant and Mr Ewing.
Mr Gibson advised that the matter was being investigated thoroughly due to the human element and to provide fairness and impartiality as to the results.
A letter was forwarded to Ms McCallum (dated 4 March 2003) advising that the investigation of her alleged misconduct had been completed.
The letter recorded the following details relating to the investigation:
“Based on the information provided to the Company by yourself and other employees of the Company, and on an analysis of the Sales and
Marketing database and supporting documentation, the Company has concluded that you made five un-authorised amendments to the Sales and
Marketing database.
Your actions constitute gross misconduct and are a serious breach of the terms and conditions of your employment.
Accordingly, the Company has decided to terminate your employment effective immediately, that is 4 March 2003. In accordance with the terms of
your employment contract, dated 26 February 1999, termination on the grounds of gross misconduct does not require notice. As such you are not
entitled to notice or payment in lieu of notice upon termination.”.
The applicant, in evidence, stated that she had been supplied with some computer records by the respondent, however they were not sufficient to enable
her to respond precisely to the allegations that she had interfered with the respondent’s computer system without authority.
In the applicant’s affidavit in reply (Exhibit 2), she took issue with a number of matters raised in the affidavits of Mr Eaton, Ms Jana Ewing, Ms Carla
Fidler, Ms Price and Mr Jason Kollanyi.
Cross-examination
Ms Glynn put a number of questions to the applicant on a range of matters, including:
•
applicant’s job description and duties
•
Lend Lease Code of Conduct
•
disclosure of company database
•
Privacy Act
•
“Black Book”
•
ACT Database
•
entry of Mr Ewing’s information on the database (page 23, line 30 of transcript):
“Glynn:
And at that meeting you denied having adjusted any records or back-dated any records of Simon Ewing on the ACT database, didn’t
you?
McCallum: When they first asked me about it, yes.
Glynn:
So at that meeting you actually denied adjusting any records?
McCallum: As my memory – yes.
12 December , 2003
Glynn:
1369
And they your story changed somewhat after that, didn’t it, Ms McCallum?
McCallum: Because Simon contacted me.”.
Page 24, line 15 of transcript:
“Glynn:
And what did you tell Chris Eaton during your conversation on the Monday morning?
McCallum: That Simon had contacted me and had been informed that I was in trouble over his entry into the database and that he refreshed my
memory as to what happened.
Glynn:
And what did you say happened as a result of him refreshing your memory?
McCallum: He came into the office, spoke with Cathy Price and Cathy told him that he wasn’t on the database and that Cathy basically spoke to me
and told me to put him back on to the database.”.
•
alleged direction from Ms Price to reinstate Mr Ewing on the database.
Ewing
Mr Ewing, a former sales consultant had been employed in that capacity for around three and a-half years, ceasing in July 2002.
At the time of his employment, Lend Lease had a policy in relation to purchasing land developed by the company.
At paragraph 7 of his affidavit, he set out the steps to be taken in the purchasing process:
“(a)
The first step was if the person was interested in a block of land from a site that was still to be developed then they were placed in a
database that recorded their details as being interested in a block or blocks of land in that particular development.
(b)
The second step was that once the land was developed to a further stage where sales plans and disclosure plans were available those persons
registered on the database as being interested in a block or blocks in that area were then contacted and requested to nominate their preferred
blocks in order of preference. In other words if you only wanted one block you might still nominate more so as to ensure that you would get
at least one block from the sub-division.
(c)
The third step in the process was that if you nominated a block and if you were successful with your nomination for one or more blocks then
you were required to pay a deposit or expression of interest deposit of $1,000.00 for each block. This made sure that you were able to put a
hold on that bock [block] that you had been able to obtain.
(d)
The fourth step was that once the land was available for contract stage contracts were then drawn and the person was required to sign the
contract for the purchase of the land.”.
According to Mr Ewing, employees had first choice of the land, even if they were not “first in line”.
He had his name entered on the database for a particular block in a development named “The Sound”, but originally called “Eastern Land”.
His evidence was that he was certain of the inclusion on the database at the time of ceasing employment in July 2002.
On leaving, his understanding was that you would retain your position for a block of land held at the time of leaving and it was only an existing employee
who had the ability to get the choice ahead of him.
In the week the land was released, he received correspondence to that effect from Lend Lease which resulted in him making a phone enquiry to Mr
Kollanyi to ascertain the price of the block.
During that conversation, he was informed that there were other people ahead of him on the list.
He made phone contact with Ms Price to find out why people were in front of him on the list.
Mr Ewing recalled a conversation with the applicant during which he found out that his name had been removed from the database.
He stated, at paragraph 21 of his affidavit:
“She looked up the database for me and said that my name was not on the database. When Helen told me that I wasn’t on the database I told her to
put me back on it.”.
His evidence, in relation to the practices of the common usage of the applicant’s computer, was similar to that given by the applicant.
Matters covered in cross-examination included:
•
current employment status
•
ACT database
•
date when first expression of interest for block at “The Sound”
•
conversation with Mr Eaton re purchase of the block
•
request to Ms Price to place his information on the database (page 51, line 25 of transcript):
1370
12 December , 2003
“Glynn:
Well Cathy Price, as I said, will give evidence in these proceedings, says she never had any conversations with you about putting your
entry on the database, is that correct?
Ewing:
No. No, it’s not correct at all.
Glynn:
And can you think of any reason why Cathy would have misunderstood about this issue?
Ewing:
I think she gets a little bit confused from time to time with fact and reality.”.
Respondent
The respondent relied upon evidence given in the proceedings by Mr Chris Eaton, Ms Carla Fidler, Mr Jason Kollanyi, Ms Cathy Price and Ms Jana
Ewing.
Eaton
Mr Eaton, the Project Director for the Twin Waters Residential Community Project, was responsible for the day to day management of the project,
primarily based at Twin Waters.
His initial evidence went to the circumstances relating to the employment of the applicant and the procedures adopted by the company in terms of
adherence to various company policies.
On the process of selling land at Twin Waters, at paragraph 11 of his affidavit, he stated:
“The integrity of the ‘first in, best dressed’ system for sales to the public is vitally important. Some potential purchasers at Twin Waters can wait
between 12 months to two years to be offered a block of land for purchase. The Respondent represents to its clients that allotments of land will be
allocated on the basis of the person with the earliest date of interest. There is also a practice that, if a staff member of the Respondent expresses an
interest in purchasing a block of land, they will be offered the first option to purchase before the public, irrespective of whether the day they
expressed their interest is the earliest in time. Any abuse of that system may undermine the Respondent’s marketing efforts, may be publicly
embarrassing, and may cause damage to the business of the Respondent.”.
In December 2002, he recalled being advised by Mr Kollanyi that he had seen the applicant disclosing particular pages of the “black book” to Mr Ewing.
Mr Eaton was concerned at this revelation as the information contained in the book was “highly confidential” and not to be disclosed to members of the
public.
According to Mr Eaton, the applicant had an obligation to abide by the respondent’s Code of Conduct.
In response to the disclosure by Mr Kollanyi, a meeting of all staff was convened where it was emphasised that disclosure of any information from either
the black book or the database to the public (including ex-staff members) was completely unacceptable.
All employees, including the applicant, were asked if any disclosures had been made, to which all replied in the negative.
At the beginning of February 2003, land at the Sound was released for sale, and he was advised by Ms Price and Mr Kollanyi that several calls had been
made by Mr Ewing to check whether he would be offered a block for sale.
It was his understanding that Mr Ewing was advised that there were persons ahead of him on the list.
Mr Ewing contacted him on 6 February 2003 and advised that he had a copy of the database and knew he was the first expression of interest for a block at
The Sound.
He challenged Mr Ewing’s possession of the “confidential information of Lend Lease” (the database) which prompted a change in position to one that he
did not have the database but had seen it.
Mr Eaton then saw fit to make a number of enquiries which were supplemented by advice from Ms Price that she had noticed an entry in the black book
for Mr Ewing that had an unusually early date.
The date of interest was 26 November 2001 and a check of the database indicated that Mr Ewing’s record for this block had been created on 7 October
2002 and edited on 17 December 2002. Both entries were made under the applicant’s log-in identification.
The entry had referred to an interest in The Banks and The Lakes, which was interesting in that at the time of the entry into the black book in November
2001, the name “The Lakes” had not been mentioned.
The investigation process was commenced by firstly looking into Mr Ewing’s database records which indicated that his record was totally recreated on 7
October 2002 under Ms McCallum’s log-in.
On 7 February, Mr Eaton met with the applicant and, for the first time, raised concerns about the backdating of Mr Ewing’s database record.
Ms McCallum denied having adjusted, or backdated, the registration date of any database records, and further denied distributing a copy of the database
to Mr Ewing or giving her log-in identification to anyone else in the office.
On the morning of 10 February 2003, the applicant had a conversation with Mr Eaton and advised of being contacted by Mr Ewing which reminded her
of certain matters that occurred in October 2002.
Ms McCallum stated that “she had simply forgotten to tell me this story on the previous Friday”.
Mr Eaton requested Ms Fidler to commence downloading and printing records relating to Mr Ewing from the backup disks on the ACT database.
It was also decided to check the records of a range of other persons with whom the applicant may have had an association.
12 December , 2003
1371
During the course of the day, Ms Fiddler advised of having trouble discreetly downloading the information as the applicant was watching her.
To speed the investigation process, Mr Eaton decided to suspend the applicant, on full pay, which was effected at 4.50 p.m. that afternoon.
The applicant was told on 11 February 2003 that she was not being accused of anything, and that the company was conducting an investigation into a
number of concerns.
A number of entries on the database were identified as having been altered at times although they did not show up on the backup disk.
The applicant was required to attend a further meeting on 19 February 2003 for the purpose of gaining further information.
The applicant, at that meeting, raised that a “glitch in the system” had occurred on at least forty (40) occasions which resulted in some people being
removed from the database.
The investigation provided further information which included a statement from Ms Price that she had never provided the registration date for Mr Ewing
to the applicant.
A number of staff were interviewed in the course of the investigation, and provided considerable information that was considered in reaching an outcome
from the investigation.
On 26 February 2003, the applicant, in a telephone conversation with Mr Eaton, expressed concerns with the delay associated with the investigation.
A meeting was arranged for the next day which was attended by the applicant.
At paragraph 41 of his affidavit, in recalling that meeting, he stated:
“Guy Gibson highlighted that as part of the investigation a number of records appeared in indicated that amendments had been made to the
registration dates of builders who were known to the Applicant, namely Scott Harrison, Glen Garrick and Peter Fleming. The specific amendments
to the ACT database for those persons were put to the Applicant. The Applicant was given an opportunity to explain any information she had
regarding these entries in the database and denied any knowledge of the amendments. I recall that the Applicant had the evidence fully explained to
her. Guy Gibson reminded the Applicant of the importance of the integrity of the database and the serious consequences of a breach of that integrity
for the Respondent. He confirmed the Respondent’s commitment to concluding the investigations as quickly as possible and that it was
inappropriate to discuss or make any judgement until the investigation was completed.”.
On consideration of all of the evidence and of the explanations provided by the applicant, it was concluded that Ms McCallum had altered the ACT
database which constituted a breach of the Code of Conduct.
The applicant was found to have been guilty of serious misconduct.
In reaching such a finding, the following matters had assumed some importance:
•
“that the Applicant had admitted backdating the record of Simon Ewing (while giving a reason which was not supported by either Cathie Price
or Jana Ewing);
•
the Applicant’s connection with Peter Fleming, Scott Harrison and Glen Garrick; and
•
that it was the Applicant’s log-in identification which had been used on every occasion.”.
Mr Eaton’s evidence was most specific in the database entries for:
•
Scott Harrison/Glen Garrick (Grandview Homes)
•
Peter Fleming
•
Simon Ewing.
Cross-examination
Cross-examination of Mr Eaton included matters such as:
•
Eaton’s investigation experience
•
structure of Sunshine Coast operation
•
insider trading (in purchasing land by Eaton and his wife)
•
procedures for staff and builders to purchase land
•
amendments to the database for the persons subject to the investigation
•
“backup” information
•
failure to show Ms McCallum database records during the investigation process
•
interviews with Ms McCallum
•
termination of Ms McCallum (page 103, line 40 of transcript):
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12 December , 2003
“Boyce:
So in terms of the dismissal process what did you take into account?
Eaton:
We took into account Helen’s statement on the – each of the occasions; we took into account the statement made by Cathy Price; we
took into account the statement made by Jana Ewing; we took into account the statement made by Carla Fidler; and also the statement
made by Jason Kollanyi; and also by Simon Brook.
Boyce:
Okay. Anything else?
Eaton:
We took all those into account plus the records and went through a process to determine the most likely events.”.
•
applicant’s previous conduct – no warnings
•
computer – log-ins
•
use of the black book by staff
•
glitches in the database
•
failure to issue show cause letter to Ms McCallum
•
edit date of database entries
A number of issues were transversed in re-examination by Ms Glynn.
Fidler
Ms Fidler, the Marketing Manger for the respondent, gave evidence firstly in respect of discrepancies in documents forwarded to Ms Glynn in the
preparation of the respondent’s case.
She had fully investigated the discrepancies as raised by Ms Glynn and gave evidence to that effect.
Her evidence went into detail in relation to the ACT database backup records for Glen Garrick, Scott Harrison, Simon Ewing and Peter Fleming made on
8 February 2002.
Also, evidence was provided for ACT database backup records for Glen Garrick, Scott Harrison, Simon Ewing and Peter Fleming made on 16 April
2002.
Ms Fidler had overseen the implementation of the ACT database in and around August 2001 and used the database on a daily basis being most familiar
with its operation.
Her evidence dealt with the persons who had access to the database, log-in identification information and password access.
The backup disks for the database were supposed to be made monthly and that was the responsibility of the applicant when she was employed.
In preparing for this case, she became aware that such backup was only done every couple of months.
Ms Fidler gave evidence of the investigation conducted by Mr Eaton and her role in the process.
In response to the evidence of the applicant that she regularly used her computer, she denied such allegations.
She also denied having ever amended the ACT database to backdate information or having ever used the applicant’s login identification.
The applicant had never indicated to her that she was having difficulties with the backup system.
Cross-examination
Cross-examination included:
•
role as Privacy Officer
•
role and responsibilities of the applicant
•
knowledge of applicant’s passwords
•
working on the applicant’s computer (page 178, line 30 of transcript):
•
“Boyce:
And if you were on Helen’s machine and you wouldn’t to access ACT you’d key into the icon and do the same thing as we’ve just
discussed?
Fidler:
Well, any time that I used ACT on Helen’s machine I’d either ask her to do it if I was having problems with that and if she wasn’t there
and Act was already up and if I needed to look up someone’s surname or something like that ACT was already open.
Boyce:
So you yourself are saying that you’ve had times when you’ve come along, worked on Helen’s machine because it’s been in ACT?
Fidler:
Rarely, but yes.
Boyce:
And there are times that you’ve had to work in ACT and you’ve asked Helen or contacted Helen for some reason?
Fidler:
Yes.
Boyce:
What was the reason?
Fidler:
If I couldn’t access ACT from my computer.”.
instructions from Mr Eaton and witness’ role in the investigation of the database entries.
12 December , 2003
1373
Kollanyi
Mr Kollanyi, the sales manager, at the project was the applicant’s direct supervisor during the course of her employment.
In February 2002, in conjunction with Mr Eaton, he attempted to formalise the applicant’s position description as a result of some difficulties he had in
managing the applicant’s unusually long periods of absence from the office.
This process was finalised in October 2002.
His evidence in relation to the selling of land at Twin Waters was that rather than instituting a ballot system, they worked on the date a prospective
purchaser registered their interest in a particular allotment or precinct of land.
The prospective purchaser usually completes a “pink slip” and the information provided is then entered on the ACT database.
At a later date, they are contacted and advised of upcoming releases of stages of land and asked to express further interest. Should they express ongoing
interest, their name is entered into the “black book” that is often kept at the office reception desk.
According to Mr Kollanyi, “the significant date in determining when a prospect sits in the waiting list for a block of land is the date that they express
interest in that particular block or stage”.
His evidence went further to say that if a current staff member of the respondent expresses an interest in a block, they will be offered the block first ahead
of members of the public, irrespective of whether they have the first date of interest or not.
According to Mr Kollanyi, it is vitally important that the dates of interest are entered correctly into the ACT database.
At paragraph 14 of his affidavit, he stated that “the integrity of the system is therefore important to the reputation of the respondent”.
On the investigation that was conducted by Mr Eaton, his evidence was that he was aware of the process and the reasons for the investigation.
On the previous conduct of the applicant in respect of Mr Ewing, the witness, at paragraph 20 of his affidavit, stated:
“A couple of months before the Applicant was dismissed from employment, I observed Simon Ewing come into the Sales Office. I saw the
Applicant show to Mr Ewing several pages of the black book kept at the reception desk. The Applicant was disclosing to Mr Ewing the details of
persons who had expressed interest in particular allotments in the development know as Stage 3 of The Sound, including where Mr Ewing was
placed in the order of persons who would be offered blocks for purchase.”.
He reported to Mr Eaton on what he had observed with a meeting of staff being convened and the issue raised at large.
At that meeting, the applicant denied having disclosed any confidential information.
Cross-examination included a range of issues such as:
•
interest/purchase of blocks by the witnesses own company
•
witnesses computer skills
•
usage of applicant’s work computer
•
logging in on other computers (specifically Cathy Price’s)
•
visits to the office by Mr Ewing after he had left the company
•
ACT database – inability to locate records for six (6) prospects
•
processes involved for builders wishing to access land.
Price
Ms Price is a sales consultant having been employed by the respondent since 1997 and known the applicant since 1998.
She gave evidence of the usual process involved for a potential purchaser or prospect registering their interest in land at Twin Waters.
Specific attention is paid to registering the date in which the interest is first shown.
Whilst the applicant was in the employ of the respondent, it was her role to enter the relevant information on the ACT database although from time to
time the sales consultants would make entries also.
She provided evidence in relation to the role of the black book.
The integrity of the system was most important and, at paragraph 5 of her affidavit, she stated:
“Prospects are told that the order to be offered a block of land for purchase depends on their date of interest for a stage or a particular block. To alter
a prospect’s date of interest to give one purchaser preference over another is inappropriate and, if the public became aware, may lead to adverse
publicity or even legal claims against the Respondent.”.
Evidence was given as to the reliability of the ACT database, with Ms Price being aware of nine or ten persons whose names and registrations had been
unable to be found.
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12 December , 2003
In those cases, the data of interest could be found by utilising the Visitor Enquiry Form or backup disks.
According to Ms Price, it would be inappropriate for a staff member to make an entry into the black book without proper investigation.
In early February 2003, in reviewing the black book, she noticed that Mr Ewing had expressed an interest in a block of land (dated 26 November 2001).
The date appeared unusual as all other registration dates for that land had been in 2002/03.
Such were her concerns that she raised the matter with Mr Eaton which led to the subsequent investigation that resulted in the applicant being terminated.
Ms Price denied any suggestion that she had ever been requested by the applicant to provide a date for Mr Ewing’s interest in the block of land in
question.
In cross-examination, Mr Boyce put a number of questions to the witness, including:
•
usage of the applicant’s computer
•
ACT database
•
system for purchasing land – complaints from prospective buyers
•
nine or 10 deletions from the ACT database
•
Mr Ewing speaking to the witness about his interest in a block of land
•
authorisation of dates to be inserted on the database (page 230, line 4 of transcript):
“Boyce:
So, you – you could authorise – you would agree with this, you could authorise in the appropriate circumstances for a date to be inserted
and for a person to be put on the database?
Price:
I’d make sure I was entirely, to the best of my knowledge, sure that the information was correct.
Boyce:
Now, I’m also suggesting to you that you told Helen McCallum that Simon was to be put on the data base and you suggested the date to
her?
Price:
No, I didn’t.”.
•
working relationship with Mr Ewing
•
Mr Eaton’s wife ownership of a block in The Sound.
Ms Ewing
The last of the respondent’s witnesses, Ms Ewing (no relation to Simon Ewing), has been employed by the respondent since April 2002 working as a
Sales Secretary and Sales Assistant.
She denied having ever (in the company of Ms Price) either seen, or been contacted by, Mr Ewing in respect of his registration on the ACT database.
In respect of the investigation undertaken by Mr Eaton in February 2003, she recalled being questioned on a number of issues including the procedure she
would follow if she could not find a customer’s registration.
She was also asked if she knew the applicant’s password (which she did) and whether she had used her log-in identification (she had).
Further evidence included her understanding of how the ACT database operated in addition to the importance of the integrity of the system.
In respect of the evidence given by the applicant, Ms Ewing, at paragraph 10 of her affidavit, stated:
“Should the allegation be made by the Applicant, I completely deny any suggestion that I have backdated on the ACT database the dates that
purchases have expressed interest in land at Twin Waters, or that I have do so using the Applicant’s log-in identification.”.
In cross-examination, the use of the applicant’s computer password was covered at page 237 of transcript:
“Boyce:
All right. Now, in respect of Helen’s computer, you worked on it regularly, I take it?
Ewing:
Yes, I did.
Boyce:
Mmm-hmm. And you used Helen’s passwords?
Ewing:
Yes, I did.
Boyce:
And you inputted data into the ACT?
Ewing:
That’s correct.
Boyce:
And that was under Helen’s name?
Ewing:
Sometimes, yes.
Boyce:
Well, most times?
12 December , 2003
Ewing:
Sometimes, yes.
Boyce:
All right. You mean sometimes you put your own name or - - ?
Ewing:
Correct.
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Boyce: - - most times you just used Helen?
Ewing:
Correct.
Boyce:
Both are correct, are they?
Ewing:
Most times I used Helen.
Boyce:
Yes. All right. And I’m not being critical of you for that?
Ewing:
Nope.
Boyce:
That’s just what happened?
Ewing:
That’s correct.”.
Final Submissions
Applicant
The Commission was provided with extensive written submissions (totalling some 33 pages) which covered a range of matters including:
•
applicant’s employment – terms and conditions
•
the investigation
•
chronology of the process
•
basis for dismissal
•
respondent’s evidence to further slur the applicant
•
absence of any warnings relating to performance
•
deletion of Mr Ewing’s information from the database
•
the investigation was defective and did not afford the applicant a fair go all round for reasons including:
“(a)
Downloading of information was selective by Mr Eaton. He did not review the whole of the database. He specifically asked for specify
builders and Simon Ewing’s records and no others.
(b)
He did not, at any stage, seek a response from the Applicant in respect of the five alleged breaches for which she was dismissed.
(c)
He did not produce any document or computer record or allow the Applicant to be shown on the computer system the changes that were
alleged to have been made and which he has identified the Applicant as being the person responsible for the changes.
(d)
Mr Eaton alleged that he had carried out a full investigation and he had interviewed all other suspects. The fact is that he did not
interview any suspects and that he only ever had one suspect, namely the Applicant.
(e)
Mr Eaton would have had the Tribunal believe that he had carried out this full and detailed investigation to exclude staff members and
that left him with only one conclusion, however Mr Eaton cannot and could not rule out the following:(i)
(ii)
(iii)
(iv)
that Simon Ewing’s name may have been on the list and dropped off;
that he was not entitled to be placed on the ACT database;
that other persons had dropped off the database and he had been reinstated;
that other personnel could have worked on Helen McCallum’s machine, which would have still recorded Helen McCallum as the
author and that other personnel could have worked on their own machines with the name Helen McCallum as the author and that it
would then record Helen McCallum as the person who inputted the data;
(v)
that the passwords of staff members within the office were known, certainly by Helen McCallum and by others within the office;
(vi) that there were casual employees who worked on the weekends at Helen McCallum’s desk and under the name of Helen
McCallum;
(vii) that whilst Helen McCallum was away on vacation, there were at least two entries relied upon by Mr Eaton which seem to have a
record created on 2 August 2002 (while the Applicant is overseas), that he has relied upon. See paragraph 32(b), page 8 of
Affidavit of Eaton.”.
•
•
failure to put a number of documents to the applicant
evidence given to the Commission by:
•
Mr Eaton
•
Ms Fidler
•
Mr Kollanyi
•
Ms Price
•
Ms Ewing.
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•
Industrial Relations Act 1999
•
Authorities relied upon:
•
•
R v Department of Education 1994 147 QGIG 503, Bougoure C.
•
Sheldon J in re: Loty 1971 AR 95
•
Stewart v University of Melbourne U No. 30073 of 1999 Print S2535
•
Lang v Queensland Ambulance Service (2002) 170 QGIG 320
Conclusion:
•
•
12 December , 2003
the Commission should find:
“(a)
There was no substantive reason for the dismissal of the Applicant
(b)
That the dismissal was unfair.
(c)
That it was harsh, unjust and unreasonable and the Application ought to be allowed and the Applicant reinstated.”.
Orders sought:
•
reinstatement
•
costs.
Respondent
As was the case with the applicant, written submissions were provided on behalf of the respondent.
The document (some 22 pages in length) covering a wide range of issues including:
•
general
•
background
•
requirements for proving dismissal unfair
•
whether the employee was notified of the reason for dismissal (s. 77(a) of the Act)
•
whether the dismissal related to the employees conduct, capacity or performance (s. 77(b)(ii) of the Act)
•
overview
•
applicant committed the act(s) of misconduct
•
lack of motive by employees other than the applicant
•
significant reasons behind the decision of Mr Eaton included:
•
“The Applicant had already admitted backdating the record of Simon Ewing (while giving an explanation of why she did this and how she
arrived at the date of interest for Mr Ewing which was denied by both Cathie Price and Jana Ewing): see para 2(xv) of the applicant’s affidavit
in reply for the Applicant’s excuse; para 4 of the witness statement of Ms Ewing and transcript page 236 lines 30-40 for Ms Ewing’s denial;
and paragraphs 14-15 of the witness statement of Ms Price and transcript page 221 line 20 to page 222 line 20 for Ms Price’s denial.
•
The Applicant changed her story in relation to her explanation for backdating Simon Ewing’s ACT database records three times (see Mr Eaton’s
evidence in this regard at transcript page 101 line 20-30; and page 102 line10).
•
The Applicant had a motive to amend the records of Peter Fleming, Scott Harrison and Glen Garrick, as Grandview Homes were construction
her house at the time (see para 17 of the witness statement of Mr Kollanyi; the evidence of Mr Eaton at transcript page 159 line 50; and the
evidence of Mr Kollanyi at transcript page 218 lines 1-10).
•
The Applicant was proficient at using the ACT database, using it extensively and everyday (see the evidence of the Applicant at transcript page
12 line 20; page 19 line 60, page 20 line 1). Contrastingly, the evidence of Mr Eaton and others was that the skill level of Jason Kollanyi, Simon
Ewing, Cathie Price and Carla Fidler was not such that it would have enabled them to make the necessary amendments to the ACT database
which were done for Simon Ewing, Scott Harrison/Glen Garrick and Peter Fleming.
•
It was the Applicant’s log-in identification which was used on every occasion to backdate the relevant ACT database records. To suggest that
someone else used the Applicant’s log-in identification to backdate the records implies that someone was setting the Applicant up (see the
evidence of Mr Eaton and transcript page 159 line 10). The Applicant’s argument was that someone else in the Twin Waters Sales Office
backdated the relevant ACT database records using her log-in identification, although she did not know who (see transcript page 29 line 30).
There was no evidence led by the Applicant to suggest why someone would do this and no credible argument put forward as to who else may
have backdated the relevant database records.
•
During the investigation process, the Applicant did not deny changing the records of Scott Harrison/Glen Garrick and Peter Fleming, but simply
said that she did not recall doing so (see transcript page 102 line 10).”.
12 December , 2003
•
applicant’s conduct warranted summary dismissal
•
gravity and effect of the applicant’s misconduct
•
credibility of the respondent’s witnesses
•
credibility of the applicant
•
reliability of the ACT database
•
credibility of Simon Ewing
•
suggestions of defects in the investigation process
•
whether the employee had been warned about the conduct, capacity or performance
•
whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance
•
remedy:
•
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reinstatement or re-employment impracticable
•
compensation (if considered appropriate by the Commission)
•
authorities relied upon:
•
Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 – approved in Harvey v Qantas Airways Limited (Full Bench of the AIRD, Print
934070, 9 July 2003)
•
MacKenzie v Wangetti Education Centre (2000) 166 QGIG 202 – Asbury C
•
Kennedy v Aged Care Standards and Accreditation Agency Ltd (B455 of 2001) – Thompson C
•
Powell v Polite Enterprises Pty Ltd (AIRC, Print PR918783)
•
McCarthy v FJ Trousers Pty Ltd (AIRC Print T1853)
•
Gill v Ericsson Australia Pty Ltd (AIRC Print S8677
•
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50
•
Gunsberger v Mount Isa Mines Pty Ltd (B2038 of 2001) – Fisher C
•
Stewart v Creekgold Pty Ltd (2003) 174 QGIG 104
•
Chenery v Klemzig Nursing Home (1988) 55 SAIR 544 – cited in Lopenz & Others v Ashton’s Circum Pty Ltd (2003) 174 QGIG 205
•
McCombe v Carter and Scott Civil Engineering Contractors (B157 of 1997) – Bloomfield C (as he was then) – including Norton Tool Co Ltd v
Tewson (1973) 1 All E R 183, Bechara v Healy and Co (1996) AILR 3 – as cited in Gaetan d’Hotman de Villiers v Texport International Pty Ltd
(2003) 174 QGIG 654.
Applicant’s Submissions in Response
The Commission received, from the applicant, a response document to the submissions of the respondent which took issue with a range of points under
twenty-one (21) headings.
The issues raised included matters pertaining to the:
•
“black book”
•
access to the ACT database under the applicant’s log-in
•
investigation process – inadequacy, findings
•
alterations to records between 30 April 2002 and 2 August 2002 – demonstrates flows with the respondent’s conclusions
•
exclusion by the respondent of a number of employees from being likely suspects
•
credibility of Mr Eaton and other respondent witnesses
•
procedural fairness not afforded to the applicant
•
no previous warnings or counselling
•
remedy.
1378
12 December , 2003
Conclusion
It is worth, in the first instance, making some comment in respect to the business environment in which the applicant worked during the course of her
employment.
The business of the respondent was to develop parcels of land (for the purpose of housing) and to then market and sell such land to members of the
public.
The land in question was in the vicinity of the Twin Waters Resort on the Sunshine Coast, with the demand for land being way in excess of blocks up for
sale.
As a business strategy, the company places much importance upon the integrity of their process in offering such blocks in order of the date in which the
first expression of interest was shown by a prospective purchaser.
They recorded details of interest in a number of ways, including a “black book” and pink slips, with all information being then added to a computerised
database.
From the evidence before the Commission, it was apparent that the company relied, in the strongest of fashion, upon the integrity of the system and their
ability to advise potential customers along those lines, highlighting the factor of the fairness in the process itself.
There were, however, two variations to the process that appear not to be necessarily advised to the potential purchasers.
Those being the ability of staff and builders to be given the opportunity to purchase blocks, even though their interest in the land may have been
expressed well after that of the person whose details were previously entered into the database.
In the case of staff, the evidence was that a number (including the applicant) had purchased land in that manner. In fact, in the case of Mr Eaton, his wife
(who appears not to be an employee of the respondent) purchased land in partnership with a company operated by Mr Kollanyi, after approval had been
given, according to Mr Eaton, by head office to allow his wife’s involvement.
One could certainly draw the conclusion that members of the public (without knowing) had been denied opportunities to purchase blocks on a number of
occasions that they may well have had if the first date of interest was the factor that determined by whom the first offer was made.
It was in this environment that the applicant performed her work related duties.
In or around early February 2003, it was brought to the attention of Mr Eaton that there were some abnormalities in respect of entries onto the database
which caused him, on 7 February 2003, to facilitate a meeting with the applicant where it was put to her – did she have any knowledge of such entries.
The applicant denied any knowledge of such entries and, at the conclusion of the meeting, was requested by Mr Eaton not to discuss the matter with any
other person.
On 10 February 2003 (Monday), the applicant advised Mr Eaton that she had been contacted by Mr Ewing over the weekend and he reminded her of
certain matters which “refreshed her memory as to what happened”.
The certain matters included being directed by Ms Price to backdate an entry on the database on behalf of Mr Ewing whose previous entry had
supposedly been, for some unknown reason, deleted.
Ms Price strongly opposed the concept of having any knowledge or directing the actions, of the applicant in making the entry in question to the database.
Investigation
In the view of the Commission, Mr Eaton took appropriate steps in instigating an investigation and, having initially identified the possible involvement of
the applicant, sought to interview her as a priority.
The denial by the applicant, at the meeting on 7 February 2003, of any knowledge of the database allegations and the subsequent change of position to
having an entirely different recall, just three days later, is a telling factor in determining an outcome in this matter.
The applicant, in giving evidence, presented as an intelligent witness, with little difficulty in recalling matters and, in the view of the Commission, would
most likely have known on 7 February 2003 of her alteration to the database on behalf of Mr Ewing and, to be frank, deliberately, at the time, refused to
provide a truthful answer to what was a reasonable question put by Mr Eaton.
The investigation was undertaken and concluded with reasonable haste and, in the view of the Commission, the applicant had a sufficient number of
opportunities to respond to the questions raised by the respondent.
The standing down of the applicant on 10 February 2003 was, in the circumstances, not an unreasonable decision, in that it was done with the applicant
remaining on full pay and, therefore, she was not financially disadvantaged.
The argument as to whether Mr Eaton had sufficient qualifications to conduct the investigation, if accepted by the Commission, would rule out almost
any employer investigation into “goings on” in the work place. This argument is not accepted.
Mr Eaton, in the conduct of the investigation, in the view of the Commission, appropriately sought assistance from other persons with expertise in areas
where he had some limitations.
At the conclusion of the investigation, all of the appropriate matters were considered before deciding the outcome and, in the view of the Commission,
the applicant had ample opportunity to present her position.
The argument advanced by the applicant that not all of the material, in particular some computer printouts, were provided to the applicant during the
course of the investigation has some merit, although the matters seemed to have been considerable “air” in the meetings attended by the applicant.
Motive
The respondent submitted that during the course of their investigation, all staff, with the exception of the applicant, were devoid of any such motive that
would explain the unauthorised changes to the database.
12 December , 2003
1379
From the Commission’s perspective, to accept this line of argument by the respondent, it would need to be convinced that a motive existed for the
applicant to benefit from her alleged actions and this was not evident from the evidence in the proceedings.
Credibility of Witnesses
The applicant, in evidence, having conceded that on 7 February 2003 that she denied any knowledge of inputting details relating to Mr Ewing on the
database and then three days later, after expressly disregarding the directions of Mr Eaton not to discuss the matter with anyone, miraculously
remembered not only making the changes, but doing so under the direction of Ms Price.
It was then implied by the applicant in evidence that other staff had access to her password and that some other person had entered the data, thus leaving
the impression that the applicant was the person responsible.
In her evidence, Ms Price was steadfast in her denial of ever having given such instruction to the applicant and it appeared to the Commission that “there
was little love lost” between Ms Price and Mr Ewing, therefore it is difficult to accept that a situation would exist where Ms Price would put at risk her
reputation or possibly her job to authorise such an entry.
Overall, the principal witnesses on behalf of the respondent, those being Mr Eaton, Ms Fidler, and Ms Price, presented in a better light than the applicant
and Mr Ewing.
Finding
Having considered the evidence, material and submissions before the proceedings, the Commission has formed the view that, on the balance of
probabilities, it is able to reasonably conclude that the allegations levelled against the applicant, in respect of unauthorised entries on to the database,
were substantiated.
It was not established that the actions of the applicant were, in any way, for her personal benefit, and more likely were as a favour to a former work mate
(Mr Ewing) but, nevertheless, a clear breach of company policy.
Had her actions not come to light, then Mr Ewing stood to substantially benefit from those actions.
The Commission accepts the evidence of Ms Price that she did not authorise the applicant to enter the unauthorised data.
The investigation conducted by the respondent was, in the view of the Commission, carried out fairly and provided the applicant with natural justice and
procedural fairness, and also identified (accepted by the Commission) other entries to the database by the applicant that were unauthorised.
The decision to terminate the applicant’s employment was not, in the circumstances, harsh, unjust or unreasonable.
In reaching this finding, the Commission did give consideration to the employment record of the applicant, in that no prior warnings existed in respect of
her performance or conduct, however, in the Commission’s view, the gravity of her actions were sufficient to warrant the termination of her employment.
The only difficulty the Commission found with the termination was that the respondent summarily dismissed the applicant without payment in lieu of
notice on the basis of gross misconduct.
It is the finding of the Commission that the respondent had reasonable grounds for dismissing the applicant, however when taking into account the
environment in which the applicant worked, that being, in the view of the Commission, the tainted process of purchasing land, by staff in particular, that
the actions of the applicant were less than that of gross misconduct, and more in line with misconduct, albeit of a serious, but not gross, nature.
Accordingly, Lend Lease Development Pty Limited is ordered to pay Helen McCallum the relevant period in lieu of notice as contained within the
provisions of s. 84(1)(iii) of the Act, that being three (3) weeks’ wages (being $1,557.69) within 21 days of the release of this decision.
Such payment is to be subject to the appropriate taxation deductions.
The application is dismissed.
I order accordingly.
J.M. THOMPSON, Commissioner.
Appearances:
Mr P. Boyce of Butler McDermott & Egan Solicitors, for the Applicant.
Ms J. Glynn of Freehills, for the Respondent.
Hearing Details:
2003
8 and 9 October
27 October (written submissions)
14 and 26 November (written submissions)
###########################################################################################################################
Pamela Carswell-Price AND Cleveland News and Casket (No. B974 of 2003)
COMMISSIONER FISHER
2 December 2003
Application for reinstatement – Applicant alleges constructive dismissal – Respondent contends applicant voluntarily resigned employment – “Topped”
magazines free to staff – Publications placed into “topped” bag – Incorrect bag handed to applicant – Publications not topped – Applicant purchases one
publication – Applicant claims to have found two publications in rubbish – Staff meeting – Police consulted – Applicant denies theft – Applicant given
option of a police investigation or resignation – Applicant resigns – Constructive dismissal found – Case law – Applicant found to have lied about
original site of publications – Standard of proof – Insufficient and inadequate investigation by respondent – Dismissal found harsh, unreasonable and
unjust – Employment relationship irretrievably broken down – Compensation – Notice period awarded – Three weeks’ pay – Costs reserved – Costs
submissions to be lodged within 14 days of date of decision.
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12 December , 2003
DECISION
Pamela Carswell-Price has filed an application seeking reinstatement to her former position of Shop Assistant with the Cleveland News and Casket
Agency. Ms Carswell-Price was employed from 11 March 2001 until her alleged constructive dismissal on 26 May 2003. The respondent refutes the
allegation of constructive dismissal and contends that the applicant voluntarily resigned her employment.
Before going to the facts of the matter, it is useful to explain certain aspects of the work in a newsagency and this newsagency in particular. One of the
tasks that is performed is to return unsold magazines to the distributors to allow the newsagency to receive a credit. In some cases the whole magazine is
returned in other cases only the front cover or part of the front cover of the magazine is returned. The process of removing the front cover in whole or in
part is known as “topping”. At the Cleveland News and Casket Agency the proprietors permit their employees to take for their own use and without cost
those magazines that have been topped.
Some magazines may also come with a bonus or complementary issue which is adhered to the magazine to be sold. From time to time these magazines
become separated. The proprietors of the Cleveland News and Casket Agency also permit their employees to take without cost bonus or complementary
issues for their personal use.
Each staff member has a plastic bag kept under one of the counters into which the topped or discarded magazines are placed. All staff seem to be aware
of each other’s preference in magazines. The staff member performing the topping is then able to put the topped magazines into the others’ bags.
On Wednesday 21 May 2003 Ms Carswell-Price was tidying the shelves in the newsagency. While engaged in this task she encountered two Australiana
publications and a “Cooking with Tommo” cookbook. Ms Carswell-Price removed these from the shelves and placed them in her topped magazine bag.
In her evidence Ms Carswell-Price said she did this because she believed the two Australiana publications were discards, i.e. had become separated from
the main issue. Unlike other publications they did not have price tags or bar codes on their front covers. In relation to the cookbook Ms Carswell-Price
said she intended to peruse it over her lunch hour to decide whether to purchase it. However, Ms Carswell-Price said that because the newsagency had
been busy she forgot that it was in her bag.
The end of Ms Carswell-Price’s shift coincided with the end of the shift of another employee, Natasha Davis. Ms Carswell-Price and Ms Davis were
handed topped magazine bags by a third employee. Later that night, when Mr Carswell-Price looked in the bag and remarked on its contents, Ms
Carswell-Price discovered that she had been handed Ms Davis’ topped magazine bag.
The next morning Ms Carswell-Price met Ms Davis in the car park and returned her topped magazines. At that time Ms Davis was unaware that the
wrong topped magazine bag had been given to her. She gave no thought to the matter at that stage. Later that day Ms Carswell-Price paid for the cook
book. She said she asked Ms Davis to bring in the cookbook as she had purchased a copy. Ms Davis denied this conversation occurred.
On Friday night Ms Davis’ mother telephoned her to advise that Ms Davis’ sister, who had stayed the night with Ms Davis on Wednesday 21 May 2003,
had inadvertently picked up the topped magazine bag. More importantly she told Ms Davis that there were three magazines in the bag that had not been
topped. On Saturday night, by which time Ms Davis had retrieved the bag, she examined the contents and confirmed that her mother’s advice was
correct.
Ms Davis attempted to contact one of the proprietors of the newsagency, Lorraine Riseley, on Sunday morning but to no avail. Late that afternoon Ms
Davis spoke to Ms Riseley who advised her to show the books to her husband on Monday morning and then to put them back on the shelves.
Ms Davis followed these instructions, arriving at the newsagency early, and before Ms Carswell-Price, to do so. Later that morning Ms Davis told Ms
Carswell-Price that the books had been returned to the shelf. During their brief conversation Ms Carswell-Price said that she had found the two
Australiana publications in the rubbish.
On reflection on the matter Ms Riseley decided that she could not let the matter rest. She telephoned the newsagency and asked Ms Davis to remove the
books from the shelves and to place them on her desk.
On Tuesday 27 May 2003 Ms Riseley told Ms Carswell-Price that a staff meeting was to be held after the end of her shift on Wednesday 28 May 2003
and asked her to attend. At that time Ms Riseley had intended to hold a meeting of all staff but overnight, changed her mind. Ms Riseley informed all
other staff except Ms Carswell-Price that the staff meeting had been cancelled.
On Wednesday 28 May 2003 Ms Riseley telephoned the Cleveland Police Station and spoke with Detective Senior Constable Tuckerman. This police
officer had recently had dealings with Ms Riseley in relation to an investigation of another employee, Anita, who had stolen approximately $30,000 from
Cleveland Newsagency. Ms Riseley sought advice from Detective Senior Constable Tuckerman in relation to the situation with Ms Carswell-Price.
Based on Ms Riseley’s information that Ms Carswell-Price had put the publications in her topped magazine bag and had intended to take them home with
her, Detective Senior Constable Tuckerman is said to have given advice that those actions constituted an intention to steal and that was considered to be
the same as stealing.
At 5.30 p.m. Mr and Ms Riseley met with Ms Carswell-Price. The evidence of Ms Riseley and Ms Carswell-Price of their discussion is substantially the
same but differs on a couple of key points. It is important to note that none of those involved took contemporaneous notes and Mr Riseley did not give
evidence in the matter. The meeting commenced by Ms Riseley holding up the three publications in question and asking Ms Carswell-Price what she
knew about them. Ms Carswell-Price said that she had intended to look at the cookbook. On Ms Riseley’s evidence Ms Carswell-Price responded that
she had intended to take the cookbook home to look at it. Both agreed that at that point Ms Riseley reminded her that nothing was to leave the shop
without being paid for “especially after Anita” and that Ms Carswell-Price acknowledged this. Ms Riseley then asked about the two Australiana
publications. Ms Carswell-Price said she had found them in the bin. When Ms Riseley responded that this was unlikely given they had price tags on
them, Ms Carswell-Price said that she had not seen them. Ms Riseley told her that she did not believe her explanations.
Ms Riseley asked Ms Carswell-Price “where do we go from here?”. Ms Carswell-Price replied that “she didn’t know but that she didn’t steal the books.”.
Ms Riseley then said that Detective Senior Constable Tuckerman could be called or that Ms Carswell-Price could resign. On the evidence of Ms
Carswell-Price she said that Ms Riseley told her that they would get the same police officer who had charged Anita and further, that if Ms Carswell-Price
was charged she would have difficulty getting a job. Ms Carswell-Price said that she did not have a choice. Ms Riseley said that there was a choice but
Ms Carswell-Price did not see it that way and said she would leave. Ms Riseley told her that if anyone asked she would tell them that she had left of her
own accord. As she left the store Ms Carswell-Price told other staff that she had been sacked. Immediately after the interview Ms Riseley appointed a
junior casual employee to Ms Carswell-Price’s full-time position.
That night Ms Carswell-Price telephoned Ms Riseley. She had intended to try to seek to retain her job but, having received short shrift from Ms Riseley,
Ms Carswell-Price did not raise the matter.
12 December , 2003
1381
On 11 June 2003 Ms Carswell-Price filed her reinstatement application. After the respondent had received notice of the conciliation conference, Ms
Riseley again contacted Detective Senior Constable Tuckerman about Ms Carswell-Price to activate a police investigation into the matter. The police
contacted Ms Carswell-Price and she attended a police interview with her Solicitor on 2 July 2003.
At the time of the reinstatement hearing no further action had been taken by the police in respect of Ms Carswell-Price. In her evidence Ms Riseley said
that if the applicant was successful in receiving reinstatement or compensation she would contact the police to ensure the investigation into the actions of
Ms Carswell-Price would continue. In her view the investigation remained on foot but this seemed not to be the view of the applicant’s representative.
Resignation or Constructive Dismissal
Before dealing with whether the termination of employment was by way of constructive dismissal or resignation I should quickly deal with a suggestion
raised in the respondent’s submissions that Ms Carswell-Price abandoned her employment as she left the store at the end of the meeting and did not
return. The meeting was held in Ms Carswell-Price’s own time as she had completed her rostered hours and she was not paid for the time of the meeting.
Given the turn of events at the meeting it is unsurprising that Ms Carswell-Price left her place of employment never to return. This, however, does not
constitute abandonment of employment.
The respondent contended that the Commission had no jurisdiction to entertain the reinstatement application of Ms Carswell-Price as she had voluntarily
resigned her employment. She had been given a choice as to whether the police would be called (on Ms Riseley’s evidence) to investigate the matter, or
to resign. It was submitted that Ms Carswell-Price had freely elected to resign her employment.
Ms Carswell-Price contended that she was not presented with a free choice but that she had been given a “resign or be sacked” ultimatum. In her
evidence Ms Carswell-Price said that at the meeting on 28 May 2003 Ms Riseley did not say that the police would be called to investigate the matter,
only that the police would be called. Further, the police officer to be involved was the same who had been involved in an investigation that had led to
another staff member being charged and convicted of a criminal offence. By the time the “offer” of police involvement had been made Ms Riseley had
already indicated that she did not believe the explanation given by Ms Carswell-Price. In that context Ms Carswell-Price believed that she had no choice
but to resign.
In my view the cessation of employment must be characterised as a constructive dismissal. I have reached that view for the following reasons. It has
long been accepted in this jurisdiction that a dismissal may be conveniently described as a termination of employment at the initiative of the employer
and without the genuine consent of the employee (Dowdell v Sunlite Glass Bricks (1997) 155 QGIG 785).
In Allison v Bega Valley Council IRC 1166 of 1995 a Full Bench of the Industrial Relations Commission of New South Wales said:
“Although the term ‘constructive dismissal’ is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an
analysis of what occurred. Did the employer behave in such a way as to render the employer’s conduct the real and effective initiator of the
termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?”.
Both in the above matter and in Iskander v Brisbane Display and Shopfitting Pty Ltd (1997) 154 QGIG 806, the requirement is to go past matters of form
and look at the whole of the facts involved.
In the present matter Ms Riseley cancelled the staff meeting without informing Ms Carswell-Price and had not explained the purpose of the meeting. Ms
Riseley did not make an offer to Ms Carswell-Price to have a witness present, which given the seriousness of the matter to Ms Riseley, would have been
both sensible and reasonable. It must also be borne in mind that both Mr and Ms Riseley were present at the meeting, although it seems only Ms Riseley
spoke.
Further, prior to setting out the options, Ms Riseley had told Ms Carswell-Price that she did not believe her explanations. It is the case that Ms Riseley
invited Ms Carswell-Price to volunteer a response to the situation, however, it was Ms Riseley who ultimately placed the alternatives before Ms
Carswell-Price. Ms Riseley did not offer the opportunity to Ms Carswell-Price to consider her options carefully, for example, overnight or to otherwise
take advice from her family or solicitor.
In evidence I asked Ms Riseley what she would have done had Ms Carswell-Price opted for the police to be called. Ms Risley’s response was that she
would have stood Ms Carswell-Price down on full pay pending the investigation. Although I am unaware whether this course of action was in the mind
of Ms Riseley at the time of the interview with Ms Carswell-Price, it is clear that Ms Carswell-Price was not informed of it. Accordingly, one can only
speculate about whether Ms Carswell-Price would have then opted to resign if she had been aware of the proposed process.
It is also abundantly clear from both her evidence and her actions that the “Anita” situation coloured Ms Riseley’s view of the matter. While the effects
on a small business of a theft of $30,000 by a trusted staff member can readily be appreciated, it is quite another thing to conclude that the situation
involving Ms Carswell-Price was a recurrence of the Anita situation. In my view Ms Carswell-Price has been unfairly imbued by the unrelated actions of
another staff member.
In my view it matters little whether Ms Riseley said that she would call the police to investigate the matter or simply call the police. Ms Riseley believed
that Ms Carswell-Price to have been involved in criminal activity. She was firmly of the view that Ms Carswell-Price intended to take the publications
home without paying for them, had conveyed this to Detective Senior Constable Tuckerman and had consequently been informed by him that “intent to
steal was the same as stealing”. I am satisfied that when Ms Riseley told Ms Carswell-Price that one option was to call the police her purpose was to
convey her belief that Ms Carswell-Price had acted dishonestly. I am further satisfied that it was Ms Riseley’s intention not to have Ms Carswell-Price
remain in her employ after the meeting.
Finally, when Ms Carswell-Price left the meeting she told other staff she had been sacked. This confirms the view that Ms Carswell-Price did not
believe she was given a choice of resignation, free of threat from the employer.
In all of the circumstances I am satisfied that Ms Carswell-Price was constructively dismissed.
Was the Dismissal Harsh, Unjust or Unreasonable?
The applicant contended that she did not steal nor did she intend to steal the items in question. That the goods left the newsagency was not of her doing.
Moreover, on realising that the goods had left the store, she had paid for the cook book. Her actions in not paying for the two Australiana publications
were consistent with her belief that they were discards. The applicant also advised of other occasions where she had paid for goods to support her
position that she knew to purchase items other than topped magazines and discards.
1382
12 December , 2003
The respondent argued that the actions of Ms Carswell-Price could only be described as dishonest. She had placed the items in her topped magazine bag
and not where staff members proposed purchases would be usually placed. It is alleged that although security cameras are strategically placed around the
interior of the shop that the shelves from which Ms Carswell-Price removed the publications were not covered by the cameras and this was known to her.
In addition, Ms Carswell-Price told Ms Davis and later Ms Riseley that she had found the two Australiana publications in the rubbish when, in fact, she
had removed them from the shelves. Such responses could only be construed as attempts to conceal her actions. Further, the two Australiana
publications were clearly not discards. This could be told by the bar codes and price tags on the reverse of the publications together with the name of the
distributor. They had also been on the shelves for about twelve months and would have been well known to Ms Carswell-Price.
Before going further it is useful to describe the Australiana publications. They are two in a series put out by the publisher concerned. They have soft
cardboard covers the colours of the Australian landscape, are of approximately 32 pages and contain glossy pictures and some text. Ms Riseley said they
were usually purchased by people travelling overseas for gifts because they were light weight and attractive. The wholesale value of each of the books is
$3.00.
I do not accept that Ms Carswell-Price acted covertly in removing the publications from the shelves. She was engaged in her normal duties. Moreover,
when the issue of her removing these publications away from the range of the security cameras was put in cross-examination to Ms Carswell-Price she
was clearly surprised that the area in question was not covered by them.
In her evidence before the Commission Ms Carswell-Price said that she removed the Australiana publications from the shelves and had not, as she had
told Ms Riseley and Ms Davis, found them in the rubbish. The only explanation that Ms Carswell-Price could provide as to why she had been untruthful
to Ms Riseley was that she usually found discarded magazines in the rubbish.
It was not the usual practice for staff who wished to purchase items to put them in the topped magazine bags. The evidence from other staff was that
although there was no written policy at the time, items to be purchased were either placed on the counter near the register or in pigeon holes under the
counter. Ms Carswell-Price denied that the system was this formalised but said that she had not put them in either of these places as there was a pile of
books on the counter and she believed if she put the publications there they may be topped. She also said she thought they may get lost if she put them at
the back of the counter as there were many to be sorted into the pigeon holes.
The difficulty with her explanation of not leaving them on the counter is that the publications in question were not the type to be topped. Her reasons for
not putting them in the pigeon holes were also discredited by other witnesses.
I accept then that Ms Carswell-Price’s actions in placing them in her topped magazine bag were unusual and not consistent with the custom and practice
in the store.
It is a leap to conclude that Ms Carswell-Price intended to steal the publications. This is the accusation clearly levelled by Ms Riseley during the hearing.
It was also her belief at the time she spoke to Ms Carswell-Price on 28 May 2003 although the allegation was not specifically put at that time.
The standard of proof in reinstatement applications is the balance of probabilities. However, where the offence is of such gravity or may constitute a
criminal offence then the matter must be determined on strict or cogent proof. Thus, the strength of the evidence necessary to establish a fact or facts on
the balance of probabilities may vary according to the nature of what is sought to prove. (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67
ALJR 170).
In my view the fact that Ms Carswell-Price immediately paid for the cookbook on learning that it had been removed from the store is consistent with her
not intending to steal the publications. When paying for the cookbook she also had the opportunity to pay for the two Australiana publications. That she
did not do so is also consistent with her belief, however mistaken, that they were discards and not to be sold.
What must also be considered is whether Ms Riseley had an honest belief based on reasonable grounds that Ms Carswell-Price was intending to steal the
publications in question. It is clear that at the interview Ms Riseley was unaware that Ms Carswell-Price had paid for a copy of the cookbook. It is also
clear that Ms Riseley went into the meeting believing that Ms Carswell-Price had intended to steal the publications and that the newsagency had been
fortunate that the wrong topped magazines bag had been given to Ms Carswell-Price. Further, it is clear that Ms Riseley believed that another Anita
situation had occurred. All of these coloured Ms Riseley’s perceptions of the situation.
However, Ms Carswell-Price did not help her situation by lying about the two Australiana publications. The fact that she lied could only have
exacerbated Ms Riseley’s belief, which until that point was not based on reasonable grounds, that Ms Carswell-Price intended to steal the publications.
The other matter which is of concern is that the employer cannot be considered to have “conducted a full and extensive investigation into all of the
relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.”. (See Bi Lo Pty Ltd v Hooper (1992) 531 IR 224). The
Commission appreciates that the Cleveland News and Casket Agency is a small business and cannot be expected to conduct an investigation of the type
that a business the size of Coles might do. However, there does not appear to have been any investigation of any substance in this matter. There were
two telephone conversations with Ms Davis where she reported the incident and was later told to remove the books from the shelves. It is apparent that
Ms Riseley intended to cede her responsibilities to the police. She intended for them to conduct all of the investigation for her without having done much
herself.
An employer certainly has the right to call for a police investigation where it believes that stealing or an intention to steal has occurred. However, it
would be reasonable to expect that the employer had conducted some level of inquiry itself in order to conclude it had grounds for calling in the police.
In the circumstances of this matter I am not satisfied that Ms Carswell-Price has been fairly treated by her employer. There was an inadequate and
insufficient investigation by the employer into the matter and critical allegations were not squarely put to Ms Carswell-Price. For these reasons I find that
the dismissal was harsh, unjust or unreasonable.
However, the fact that Ms Carswell-Price was untruthful to her employer about where she found the two Australiana publications and did not place them
in either of the usual areas for purchase militates against an award of reinstatement or a significant award of compensation. The trust and confidence
which is an inherent part of any employer-employee relationship has been irretrievably broken by Ms Carswell-Price’s actions in this regard.
Having considered all of the matters raised I am of the view that the most Ms Carswell-Price can receive is compensation equivalent to the amount she
would have received had notice been paid. This is an amount of three weeks’ wages.
Accordingly, I order that the Cleveland News and Casket Agency pay three weeks’ wages to Pamela Carswell-Price within 22 days of the date of release
of this decision.
12 December , 2003
1383
The applicant reserved her position in relation to costs. The respondent has already made submissions opposing costs. The applicant should consider her
position in the light of this decision and the requirements of s. 335(1)(b) of the Industrial Relations Act 1999. Any submissions on the matter of costs are
to be received within 14 days of the date of release of this decision.
Order accordingly.
G.K. FISHER, Commissioner.
Hearing Details:
2003
Appearances:
Mr R. Byrom (McKay Consulting) and with him Ms S. Harper for the
applicant.
Mr D. Katton (MDRN) Lawyers on behalf of the respondent.
17 November
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISISON
David John Heathcote AND Forest Glen Real Estate Pty Ltd t/a Elders Real Estate Forest Glen
(No. B1358 of 2003)
COMMISSIONER BROWN
3 December 2003
DECISION
On 25 August 2003 David John Heathcote (the applicant) lodged an application for reinstatement to his former position of Salesperson with Forest Glen
Real Estate Pty Ltd t/a Elders Real Estate Forest Glen (the respondent).
The matter was heard at the Maroochydore Court House on 20 November 2003.
Evidence supporting the applicant was given by the applicant and Ms Francesca Ridge a former client of the applicant.
Russell Moore was served with an attendance notice by the applicant to present and give evidence.
Michelle Maree Webb, Property Manager/Sales Secretary of the respondent, Terrence John Hines, Director of the respondent and Jeffrey Charles
Riseley, Office Manager of the respondent gave evidence.
The applicant submitted that his termination was harsh, unjust and unreasonable in that he was dismissed for allegedly failing to stay in the office during
days he was rostered to be in the office in accordance with the respondent’s policy. A policy the applicant claimed to have complied with.
The respondent claimed that repeated attempts to have the applicant comply with company policy regarding rostered office duty failed and that this
together with a refusal by the applicant to mend his ways caused the respondent to decide to terminate the service of the applicant.
In the applicant’s evidence it was established that he was properly licensed and had been employed from 28 April 2003 until his termination on 11
August 2003.
The applicant further claimed to be aware of the company policy regarding rostered office time insofar as the person so rostered was prohibited from
leaving the office save for the pressing need to attend to a client whose time pressures were such that no other time suited them.
The applicant claimed to have left the office on 7 and 8 August 2003 and further claimed that on both occasions the circumstances were in accordance
with the respondent’s policy.
The applicant stated that as a result of his termination he had lost income, opportunity to earn, reputation in the industry in the region, suffered pain and
anguish and been forced to accept alternative employment at a reduced rate of remuneration.
The applicant denied the evidence of Webb that he was difficult to work with and claimed to have always informed a colleague either Riseley or Moore
when he had to leave the office. This, he claimed, was in line with stated procedure.
The applicant further stated that he had difficulties with what he perceived as Webb’s poor secretarial performance. He had reported these difficulties to
management and now believed that Webb’s evidence was “to get back at him”.
The applicant rejected the evidence at paragraph 5 of Hines’ statement where he claimed that Riseley had complained to him that the applicant was
regularly unavailable for “stand-by”.
The applicant stated that the “stand-by” policy was not implemented until after the commencement of an employee, Ron Robertson, and did not exist at
the time of the meeting between the applicant, Hines and Riseley on 11 July 2003.
The applicant claimed to have received no warnings regarding his alleged breaches.
The applicant was aware of the legal action by the respondent against Ridge for unpaid commission.
The applicant stated that he only left the office with the permission of Riseley or after swapping with Moore and that that was only on 2 occasions being
7 and 8 August 2003 and never prior to 11 July 2003.
Ridge, in evidence, stated that she had listed her property with the applicant for $550,000. The applicant had, she said, conducted himself in a
professional manner and displayed considerable knowledge about the type of property (acreage) for sale. The applicant had shown prospective
purchasers the property who offered $530,000 to purchase the property, an offer that was subsequently withdrawn.
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12 December , 2003
She stated that Riseley had later shown the property to clients who offered $450,000 for the property.
She claimed that the offer was conveyed to her by Riseley to whom she replied that it was not enough also indicating that the applicant had estimated that
the property would fetch $550,000.
She stated that Riseley had responded by calling the applicant a f…wit, stating that he was going to get rid of him (the applicant) and offering Ridge the
applicant’s job. This, she stated, occurred in about June and believed that Riseley had made it very clear that he was going to terminate the applicant.
Webb stated that the applicant regularly left the office during his rostered time and on most of these occasions was gone for almost all of the rostered
time whilst other employees rarely left during their rostered time in the office.
Webb stated that the applicant was spoken to by Riseley about the issue and that the applicant’s response was to speak over the top of Riseley and act in a
rude manner.
Webb claimed to be aware of the mid July meeting between the applicant, Riseley and Hines and that the applicant’s performance improved for a time
subsequent to the meeting and then reverted to the previous levels.
In cross-examination Webb was unable to recall any specific instances where the applicant was absent during his rostered time including before 11 July
2003.
Hines claimed in evidence to have been involved in a meeting with the applicant and Riesley on 11 July 2003.
He stated that Riseley had earlier advised him of the difficulties experienced with the applicant whilst seeking to have the applicant comply with the
roster policy and this had led to the meeting.
At that meeting Hines claimed to have emphasised the importance of the applicant fulfilling his roster duties. Hines claimed that the applicant responded
by rolling his eyes, folding his arms and appearing disinterested and when questioned on this, the applicant said that he always responded in this fashion
when he was hearing nonsense. Hines said the applicant ultimately agreed to make a greater effort.
Hines was advised by Riseley of subsequent improvement by the applicant. Hines stated that he also caused an appendix (appendix A) to be added to the
Policy and Procedures to clarify the employee’s obligations.
Hines advised that the respondent was in the process of pursuing legal action against Ridge to recover commission allegedly owed.
Riseley gave evidence that he employed the applicant on or about 28 April 2003 pursuant to an employment agreement and not pursuant to the Property
Sales Award Queensland – State.
Riseley stated that he gave the applicant a copy of the respondent’s Policy and Procedures soon after his commencement and raised certain important
points including rostered office times.
Riseley stated that the applicant continually made appointments during his roster times and that this was disruptive. Early attempts to talk to the
applicant about this failed to bring about change, he said.
Riseley stated that he spoke to the applicant weekly or more often about the problem. Riseley said that due to the non resolution of the problem he
sought the July meeting with the applicant and Hines.
Riseley recalled Hines reminding the applicant that he was on probation and asking him to make an effort to fulfil his roster requirements following
which Riseley perceived an improvement in the situation.
However, according to Riseley, the applicant returned to his old ways following the expiry of his probationary period.
Riseley stated that on the morning of Monday, 11 August 2003, the applicant approached him and stated that he had to leave the office to attend to clients
whilst rostered to office duties.
Riseley stated that he advised the applicant that this was unacceptable and that he would need to change.
Riseley then stated that he asked the applicant if he was prepared to change to which, he alleged, the applicant replied that he would not change and that
he was there to list and sell property, not to sit in the office, whereupon Riseley decided to terminate the services of the applicant.
Riseley denied calling the applicant a f…wit in conversation with Ridge but did recall saying that the applicant was inexperienced.
Riseley believed that the legal action between the respondent and Ridge may have influenced her recollection of events.
Decision
The relevant provisions of the respondent’s roster policy as appended to exhibit 8 are:
“Policy and Procedures
1.
Rosters
(a)
(b)
the sales roster is operated on a 2 week cycle. Please note your rostered time and ensure you are available and on time for your
allocated shifts. If for any reason you need to alter a rostered shift, make sure you arrange a swap with a colleague.
leaving the office whilst on duty should be kept to an absolute minimum, the only exception should be to take a prospective
customer on an inspection where you cannot make another time suitable to both parties (ie. client and prospective customer)
remember most clients respect the professionalism of an allocated appointment.
When you are out of the office during your allocated shift, and another salesperson is covering for you they are missing out on their
time out in the field which, is affecting their prospecting time.
Also remember if there are no salespersons available to cover you, it means Michelle is left alone and she is NOT a salesperson she
should NOT be expected to cover a salespersons shift.”.
12 December , 2003
1385
Appendix A was added to the above policy of the purpose of clarification as follows:
“SB (stand/by)
Just to clarify the meaning of SB (stand/by) on the new 4 person roster. This is not a day off, sales people are expected to do out of office activities
(listings prospecting picking up signs, checking signs are in good condition, ETC) or even catching up of office work in office. This stand by was
designed to insure that salespeople have uninterrupted office time while rostered on. Unless it is absolutely unavoidable appointments are not to be
made for your rostered times.”.
The evidence with respect to roster adherence subsequent to 11 July is fairly consistent insofar as both parties agree that the applicant complied with all
requirements from 11 July until the incidents commencing on 7 August 2003.
The respondent argued that this represented an improvement on the part of the applicant who it was alleged was regularly in breach of the roster policy
prior to 11 July.
The applicant’s evidence was that he had not breached the policy prior to 11 July 2003 nor had he been absent from the office during rostered times for
any significant period.
Regardless of whose views are accepted, the employment relationship was intact on 11 July when the applicant, Hines and Riseley met.
It is common ground that an agreement existed at the conclusion of the meeting that the policy regarding office rosters was to be followed and records
kept by both Riseley and the applicant of instances which could lead to a dispute including when the applicant did not work his rostered times in the
office.
The question for the Commission is whether or not, having regard to the nature of the 11 July meeting, the applicant’s actions were such that summary
dismissal without notice was warranted.
The evidence of Riseley was that the reason for dismissal was two fold, a perceived lack of effort on the part of the applicant to arrange appointments in a
fashion that did not impinge on roster duties and an alleged refusal by the applicant to mend his ways.
Dealing with the applicant’s efforts to comply with the policy, Riseley claimed that the applicant had on both 7 and 8 August 2003 failed to fulfil his
roster duties and should have made a greater attempt to arrange his affairs in order to comply with policy.
The applicant claimed that in both instances he was within the policy which allowed the rostered employee to leave the office to attend clients where it
was not possible to deal with them in non rostered time.
On the information available it is difficult to determine what efforts the applicant may have made to meet with clients outside rostered times. However, I
accept that the applicant took steps to comply with the policy with respect to notification to others and arranging for a standby employee to fill in.
Riseley’s allegations surrounding Monday, 11 August 2003 are rejected by the applicant.
Riseley claimed that the applicant had again signalled an intention to leave the office to fulfil an appointment obligation at 9 a.m. (a period during which
the applicant was to be rostered in the office).
This, Riseley claimed, led to him raising the matter with the applicant whereupon a heated exchange followed.
It was during this exchange that Riseley alleged that he asked the applicant whether he was prepared to change his ways and comply with policy. Riseley
further alleged that the applicant replied that he would not change and that he was there to list and sell property and not to sit in the office.
The applicant denied that he had arranged a 9 a.m. appointment and denied that he refused a request to co-operate in future.
In attempting to determine which version is to be accepted by the Commission, the evidence of Webb was not helpful. She seemed extremely nervous as
a witness and unable to recall events with any clarity. She did not witness the Monday exchange.
The evidence of Moore, whilst relevant to earlier events, was also unhelpful in that he did not witness the exchange on the morning of 11 August. Indeed
no one did.
Both the applicant and Riseley appeared to the Commission to relate events as they recalled them.
The Commission is prepared to accept that the recollections of both may have been a little hazy given the passage of time and the accepted heated nature
of the discussions on Monday, 11 August 2003.
I accept that the applicant knew or should have known the importance placed by the respondent on roster compliance and that he had an obligation to
comply with the policy especially subsequent to 11 July 2003.
I accept that between 11 July and 7 August 2003 the applicant complied fully with the policy.
I accept that the applicant complied with the policy on 7 and 8 August 2003 with respect to notification and replacement.
I am unsure of the efforts made by the applicant to comply with that part of the policy that required him to attempt to secure alternative appointment
times and therefore not prepared to record a finding that this aspect of the policy was either complied with or breached on either 7 or 8 August 2003.
Regarding the events on the date of dismissal if it is accepted that Riseley did on Monday, 11 August 2003 ask the applicant whether he was prepared to
change and presuming further that the applicant signalled that he was not, I do not believe that summary dismissal without notice was warranted in that
this would have been the first exchange over any issue of note since 11 July 2003 and should have, in the view of the Commission, been managed by way
of a formal counselling session following which the applicant should have been well aware that future problems in this area could result in dismissal.
In the circumstances I find that the respondent’s decision to summarily dismiss the applicant and further to dismiss him without notice or payment in lieu
of notice to be excessive and all of harsh, unjust and unreasonable.
1386
12 December , 2003
Remedy
The applicant submitted that reinstatement was impracticable, a submission not opposed by the respondent. Having observed the parties and considered
the evidence and material I agree. Therefore in line with s. 79 of the Industrial Relations Act 1999, I have decided to award compensation.
The relationship between the applicant and the respondent’s manager Riseley was tense at least. I accept the evidence of the negative attitude displayed
by the applicant when issues were raised with him. The verbal clashes in the office and the need for the intervention of Hines to develop a system of
recording events likely to lead to conflict have also assisted me to conclude that the employment relationship was under such strain that it would not have
endured much past the termination date.
Whilst I have found in favour of the applicant with respect to the harshness of the dismissal, I believe that, considering the conduct and level of cooperation of the applicant with the respondent, I am not persuaded that the employment relationship would have lasted for any significant length of time.
The applicant completed 15 weeks’ employment with the respondent and earned commissions totalling $16,405.63 before tax.
The evidence is that the applicant’s new position is in real estate and on a commission only basis at the same rate of commission that he received with the
respondent albeit his average weekly earnings were less. The uncertain nature of the industry is such that the average can vary significantly depending on
success.
Considering the evidence, submissions and material presented, I have decided to award a global sum of $3,281.10 taxed according to law to be paid to the
applicant by Forest Glen Real Estate Pty Ltd t/a Elders Real Estate Forest Glen within 22 days of the date of release of this decision.
D. K. BROWN, Commissioner.
Hearing Details:
2003
20 November
Appearances:
Mr D. Heathcote appeared on his own behalf.
Mr S. M. Young of North Coast Law for Forest Glen Real Estate t/a Elders Real
Estate Forest Glen.
###########################################################################################################################
QUEENSLAND INDUSTRIAL REGISTRAR
Industrial Relations Act 1999 – s. 482 – arrangement for conduct of elections
The Registered and Licensed Clubs Association of Queensland, Union of Employers (No. Q34 of 2003)
ACTING REGISTRAR SAVILL
27 November 2003
Conduct of Election – Prescribed Information – Method of Election – Electoral Commission to Conduct Election.
DECISION
On 25 November 2003 The Registered and Licensed Clubs Association of Queensland, Union of Employers lodged in the Registry under the Industrial
Relations Act 1999 the information as prescribed in section 36(1) of the Industrial Relations Regulation 2000 in relation to its request for the conduct of
an election by the Electoral Commission of Queensland for the following Offices:
Office
President
Number of Positions
1
Zone Representative
Sunshine Coast Zone
Capricornia Zone
Northern Zone
Brisbane West Zone
Brisbane North Zone
Whitsunday Zone
1
1
1
1
1
1
Reason for Elections
The Industrial Organisation advises that the term of office for each of the above positions will expire at the Annual General Meeting which has been set
for 17/18 April 2004.
Method of Elections
I am satisfied the method of election for Zone Representatives is by a direct vote by secret postal ballot of the members of the particular zones. The
method of election for the position of President is by a direct vote by secret postal ballot of the members of each Zone.
Conduct of Elections
I have considered the request, the Act and Rules, and I am satisfied that an election is required to be held under the rules for the positions of office set out
above.
Therefore, under section 482 of the Industrial Relations Act 1999, I am making arrangements for the conduct of the election for the above Zone
Representatives and the President of The Registered and Licensed Clubs Association of Queensland, Union of Employers by the Electoral Commission
of Queensland.
G. SAVILL,
12 December , 2003
1387
Industrial Relations Act 1999 – s. 130 – award review
SHEARING INDUSTRY AWARD – STATE 2003
(Gazette 21 November 2003)
(No. AR218 of 2002)
DEPUTY PRESIDENT SWAN
COMMISSIONERS EDWARDS AND BECHLY
26 November 2003
AWARD REVIEW
(Correction of Error)
WHEREAS errors occurred in the Award as published in the Queensland Government Industrial Gazette of 21 November 2003, Vol. 174, No. 12, pages
1089-1117, the following corrections are made to be effective as from 6 October 2003:
1.
By deleting from clause 5.5.1(a) the amount of “$119.62” and inserting the amount of “$122.97” in lieu thereof; and
2.
By deleting from clause 5.5.1(b) the amount of “$121.81” and inserting the amount of “$125.23” in lieu thereof.
G. D. SAVILL,
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BOARDING SCHOOLS, RESIDENTIAL COLLEGES AND OTHER NON-COMMERCIAL
ESTABLISHMENTS ACCOMMODATION AWARD – SOUTH-EASTERN DIVISION
(No. AR132 of 2002)
26 August 2003
AWARD REVIEW
After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the
following Award be made, as from 27 October 2003.
BOARDING SCHOOLS, RESIDENTIAL COLLEGES AND OTHER NON-COMMERCIAL
ESTABLISHMENTS ACCOMMODATION AWARD – SOUTH-EASTERN DIVISION 2003
PART 1 – APPLICATION AND OPERATION
1.1
Title
This Award is known as the Boarding Schools, Residential Colleges and Other Non-Commercial Establishments Accommodation Award – South-Eastern
Division 2003.
1.2
Arrangement
Subject Matter
Clause No.
Title.............................................................................................................................................................................................................................1.1
Arrangement ...............................................................................................................................................................................................................1.2
Date of operation ........................................................................................................................................................................................................1.3
Coverage.....................................................................................................................................................................................................................1.4
Definitions ..................................................................................................................................................................................................................1.5
Parties bound ..............................................................................................................................................................................................................1.6
PART 2 – FLEXIBILITY
Enterprise flexibility...................................................................................................................................................................................................2.1
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
Grievance and dispute settling procedures ................................................................................................................................................................3.1
1388
12 December , 2003
Subject Matter
Clause No.
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
Employment categories ..............................................................................................................................................................................................4.1
Part-time and term-time employment ........................................................................................................................................................................4.2
Casual employment ....................................................................................................................................................................................................4.3
Mixed functions..........................................................................................................................................................................................................4.4
Averaging employees.................................................................................................................................................................................................4.5
Incidental and peripheral tasks...................................................................................................................................................................................4.6
Anti-discrimination ....................................................................................................................................................................................................4.7
Termination of employment.......................................................................................................................................................................................4.8
Introduction of changes..............................................................................................................................................................................................4.9
Redundancy ................................................................................................................................................................................................................4.10
Continuity of service – transfer of calling .................................................................................................................................................................4.11
PART 5 – WAGES AND WAGE RELATED MATTERS
Definition of classifications .......................................................................................................................................................................................5.1
Wage rates ..................................................................................................................................................................................................................5.2
Allowances .................................................................................................................................................................................................................5.3
Payment of wages.......................................................................................................................................................................................................5.4
Superannuation...........................................................................................................................................................................................................5.5
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK
Hours of work.............................................................................................................................................................................................................6.1
Meal breaks ................................................................................................................................................................................................................6.2
Rest pauses .................................................................................................................................................................................................................6.3
Overtime .....................................................................................................................................................................................................................6.4
Late night and weekend work ....................................................................................................................................................................................6.5
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
Annual leave...............................................................................................................................................................................................................7.1
Sick leave ...................................................................................................................................................................................................................7.2
Bereavement leave .....................................................................................................................................................................................................7.3
Long service leave......................................................................................................................................................................................................7.4
Family leave ...............................................................................................................................................................................................................7.5
Public holidays ...........................................................................................................................................................................................................7.6
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
No provisions inserted in this Award relevant to this Part.
PART 9 – TRAINING AND RELATED MATTERS
Commitment to training and careers..........................................................................................................................................................................9.1
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Right of entry..............................................................................................................................................................................................................11.1
Time and wages record ..............................................................................................................................................................................................11.2
Union encouragement ................................................................................................................................................................................................11.3
Posting of Award........................................................................................................................................................................................................11.4
1.3
Date of operation
This Award takes effect from 27 October 2003.
1.4
Coverage
1.4.1
Area of operation
This Award has application in that portion of the Southern Division of the State of Queensland along or east of a line commencing at the junction of the
southern border of the State with 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of south latitude; then by that
parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due north to 24 degrees 30 minutes of south latitude; then
by that parallel of latitude due east to the sea coast.
1.4.2
Application of Award
(a) This Award will have application to employees, for whom classifications and rates of pay are contained herein, employed by, in or in
connection with:
(i)
Residential Colleges;
(ii)
Boarding Schools; and
(iii)
Other non-profit organisations whose primary function is the provision of accommodation.
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1389
(b) This Award will not have application to employees covered by the:
(i)
Agricultural Colleges (Domestic and General Staff) Award – State 2003;
(ii)
Award for Accommodation and Care Services Employees for Aged Persons – South-Eastern Division;
(iii)
Hotels, Resorts and Accommodation Industry Award – South-Eastern Division 2002;
(iv)
Accommodation Industry (Other Than Hotels) Award – South-Eastern Division 2003;
(v)
School Officers’ Award – Non-Governmental Schools 2003; and
(vi)
Teachers’ Award – Non-Governmental Schools 2003.
(c) This Award will also not have application to:
(i)
School Cleaners not employed in Boarding Schools and covered by the Miscellaneous Workers’ Award – State 2003;
(ii)
Employees employed by the Youth Hostels’ Association of Queensland;
(iii)
Persons engaged in the supervision of students or residents in or associated with residential accommodation, e.g. dormitory
supervision or similar and associated duties;
(iv)
Members of religious orders; and
(v)
Employees covered by the Catholic Boarding Schools and Colleges employees South-Eastern Division Industrial Agreement.
1.5
Definitions
1.5.1
The “Act” means the Industrial Relations Act 1999 as amended or replaced from time to time.
1.5.2
An “Averaging Employee” is an employee who is engaged to work less than 52 weeks per annum in terms of clause 4.5.
1.5.3
“Boarding School” means and includes any educational institution providing primary level, secondary level or vocational education that makes
provision, as part of the provision of education or as an adjunct to the provision of education, for students to be accommodated.
1.5.4
“Commission” means the Queensland Industrial Relations Commission.
1.5.5
“Residential College” means and includes a college attached to a tertiary educational institution that provides accommodation to students at a
particular educational institution.
1.5.6
“Union” means the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees.
1.6
Parties bound
This Award will be binding upon the employers and employees as prescribed by clause 1.4.2(a), and upon the Union and its members.
2.1
Enterprise flexibility
2.1.1
As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible
working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage
consultative mechanisms across the workplace.
2.1.2
The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of
matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions.
2.1.3
Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being
submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given.
PART 3 – COMMUNICATION, CONSULTATION & DISPUTE RESOLUTION
3.1
Grievance and dispute settling procedure
The matters to be dealt with in this procedure shall include all grievances or disputes between an employee and an employer in respect to any industrial
matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to a single employee or to any number of
employees.
3.1.1
In the event of an employee having a grievance or dispute the employee shall in the first instance attempt to resolve the matter with the
immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns
alleged actions of the immediate supervisor the employee/s may bypass this level in the procedure.
3.1.2
If the grievance or dispute is not resolved under clause 3.1.1, the employee or the employee’s representative may refer the matter to the next
higher level of management for discussion. Such discussion should, if possible, take place within 24 hours after the request by the employee or
the employee’s representative.
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12 December , 2003
3.1.3
If the grievance involves allegations of unlawful discrimination by a supervisor the employee may commence the grievance resolution process
by reporting the allegations to the next level of management beyond that of the supervisor concerned. If there is no level of management beyond
that involved in the allegation the employee may proceed directly to the process outlined at clause 3.1.5.
3.1.4
If the grievance or dispute is still unresolved after discussions mentioned in clause 3.1.2, the matter shall, in the case of a member of the Union,
be reported to the relevant officer of the Union and the senior management of the employer or the employer’s nominated industrial
representative. An employee who is not a member of the Union may report the grievance or dispute to senior management or the nominated
industrial representative. This should occur as soon as it is evident that discussions under clause 3.1.2 will not result in resolution of the dispute.
3.1.5
If, after discussion between the parties, or their nominees mentioned in clause 3.1.4, the dispute remains unresolved after the parties have
genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Commission in
accordance with the provisions of the Act.
3.1.6
Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.
3.1.7
The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.
3.1.8
All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by the Commission with a
view to the prompt settlement of the dispute.
3.1.9
Any Order or Decision of the Commission (subject to the parties’ right of appeal under the Act) will be final and binding on all parties to the
dispute.
3.1.10
Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of
such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are
unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.
4.1
Employment categories
4.1.1
Employees (other than casuals) covered by this Award shall be advised in writing of their employment category upon appointment.
Employment categories are:
(a) full-time;
(b) part-time (as prescribed in clause 4.2); or
(c) casual (as prescribed in clause 4.3).
4.1.2
Employees other than casuals may be employed on the basis of a probationary period for the first 3 months of such employees’ employment.
4.2
Part-time and term-time employment
4.2.1
“Part-time employee” means an employee engaged to perform an average of less than 38 ordinary hours per week.
4.2.2
“Term-time employee” is a continuing employee engaged to work an average of:
(a) 38 ordinary hours per week but less than 52 weeks per annum;
(b) less than 38 ordinary hours per week and less than 52 weeks per annum.
4.2.3
Part-time and term-time employees may be engaged on the following terms:
(a) All conditions provided for full-time employees will apply to part-time and term-time employees.
(b) A part-time or term-time employee will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 5.2
for the class of work performed.
(c) A part-time or term-time employee who works in excess of the ordinary daily or weekly hours prescribed in the contract of employment will
be paid overtime in accordance with clause 6.4 (Overtime).
(d) Part-time and term-time employees will be entitled to receive pro rata entitlements to annual leave, sick leave, bereavement leave and long
service leave, in accordance with the provisions contained in this Award.
(e) Where a public holiday falls on a day upon which a part-time or term-time employee is normally employed, that employee will be paid the
appropriate rate for the number of hours normally worked on that day.
(f) A part-time or term-time employee will be entitled to the full provisions prescribed for permanent employees under the Termination of
Employment, Introduction of Changes, Redundancy provisions (clauses 4.8, 4.9 and 4.10).
4.2.4
Employees may be engaged as term-time or part-time employees in accordance with the provisions of clause 4.2 as appropriate or as an
Averaging Employee outlined in clause 4.5
4.3
Casual employment
4.3.1
A casual employee is an employee engaged by the hour whose ordinary hours do not exceed 38 in any one week.
4.3.2
Casual employees will receive an hourly rate of 1/38th of the appropriate weekly rate plus the following loadings for all ordinary hours worked:
23% .................................. Monday to Friday
25% .................................. Saturday
50% .................................. Sunday
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4.4
1391
Mixed functions
An employee who is required to perform work on any day for which a higher rate of pay is prescribed in clause 5.2 shall be paid as follows:
(a) if more than 4 hours on any day the higher rate for the whole of such day;
(b) if 4 hours or less, then payment of the higher rate for 4 hours.
4.5
Averaging employees
4.5.1
Facility exists for agreement to be reached between and employer and the employee/s affected, for employees who work less than a full year to
have their pay averaged out over the full year.
Where such agreement exists, it will be recorded in writing between the employer and employees affected and a copy must be kept as part of the
time and wages record.
4.5.2
Employees employed as “Averaging Employees” will be entitled to receive pro rata entitlements as provided by this Award.
4.6
Incidental and peripheral tasks
4.6.1
Employees are to be available to perform a wider range of duties, including work which is incidental or peripheral to their main task or
functions.
4.6.2
The assignment of incidental or peripheral tasks to an employee or a class of employees should:
(a) be consistent with the efficient performance of the employee’s main tasks or functions;
(b) be subject to the employee having the skills or competence to perform the incidental tasks;
4.7
Anti-discrimination
4.7.1
It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the
Industrial Relations Act 1999 as amended from time to time, which includes:
(a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political
belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of any of the
above attributes;
(b) sexual harassment; and
(c) racial and religious vilification.
4.7.2
Accordingly, in fulfilling their obligations under the grievance and dispute settling procedure in clause 3.1, the parties to this Award must take
reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.
4.7.3
Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been
involved in a complaint of unlawful discrimination or harassment.
4.7.4
Nothing in clause 4.7 is to be taken to affect:
(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991;
(b) an employee, employer or registered organization, pursuing matters of discrimination, including by application to the Human Rights and
Equal Opportunity Commission/Anti-Discrimination Commission Queensland.
4.8
Termination of employment
4.8.1
Statement of employment
The employer shall, in the event of termination of employment, provide upon request to an employee who has been terminated a written statement
specifying the period of employment and the classification or type of work performed by the employee.
4.8.2
Termination by employer
(a) In order to terminate the employment of an employee the employer shall give the following notice:
Period of Continuous Service
Period of Notice
not more than 1 year ..............................................................................................1 week
more than 1 year, but not more than 3 years ......................................................... 2 weeks
more than 3 years, but not more than 5 years........................................................ 3 weeks
more than 5 years................................................................................................... 4 weeks
(b) In addition to the notice in clause 4.8.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years’
continuous service, shall be entitled to an additional week’s notice.
(c) Payment in lieu of notice shall be made if the appropriate notice is not given:
Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
(d) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used.
(e) The period of notice in clause 4.8.2 shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal, or
in the case of casual employees, or employees engaged for a specific period of time or for a specific task or tasks.
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4.8.3
12 December , 2003
Notice of termination by employee
To terminate the contract of employment a full-time or part-time employee must give at least one week’s notice or forfeit a maximum of one week’s pay
in lieu thereof.
4.9
Introduction of changes
4.9.1
Employer’s duty to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology
that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed
changes and their Union.
(b) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employer’s workforce
or in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of employees to other work or locations and the restructuring of jobs:
Provided that where this Award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to
have significant effect.
4.9.2
Employer’s duty to discuss change
(a) The employer shall discuss with the employees affected and their Union, inter alia, the introduction of the changes referred to, the effects
the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.
(b) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes
referred to in clause 4.9.1.
(c) For the purpose of such discussion, the employer shall provide in writing to the employees concerned and their Union, all relevant
information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other
matters likely to affect employees:
Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the
employer’s interests.
4.10
Redundancy
4.10.1
Discussions before terminations
(a) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by
anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the
employer shall hold discussions with the employees directly affected and, where relevant, their Union.
(b) The discussions shall take place as soon as it is practicable after the employer has made a definite decision which will invoke clause 4.10.1,
and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to avert
or mitigate the adverse effects of any terminations of the employees concerned.
(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their Union,
all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of
employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be
carried out:
4.10.2
Transfer to lower paid duties
Where an employee is transferred to other duties for reasons set out in clause 4.10.1, the employee shall be entitled to the same period of notice of
transfer as the employee would have been entitled to, pursuant to clause 4.8.2, if their employment had been terminated, and the employer may, at the
employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower
ordinary time rate of pay for the number of weeks of notice still owing.
4.10.3
Transmission of business
(a) Where a business is, whether before or after the date of this Award, transmitted from an employer (the “transmittor”) to another employer
(the “transmittee”), and an employee who at the time of such transmission was an employee of the transmittor of the business becomes an
employee of the transmittee:
(i) The continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
(ii) The period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of
the employee with the transmittee.
(b) “Business” includes trade, process, business or occupation and includes part of any such business and “transmission” includes transfer,
conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding meaning.
4.10.4
Time off during notice period
(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.10.1, the employee shall be allowed up
to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment,
the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not
receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
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4.10.5
1393
Notice to Centrelink
Where a decision has been made to terminate employees in the circumstances outlined in clause 4.10.1 the employer shall notify Centrelink thereof as
soon as possible giving relevant information including a written statement of the reasons for the terminations, the number and categories of the
employees likely to be affected and the period over which the terminations are intended to be carried out.
4.10.6
Severance pay
In addition to the period of notice prescribed for ordinary termination in clause 4.8.2, and subject to further order of the Commission, an employee whose
employment is terminated for reasons set out in clause 4.10.1 shall be entitled to the following amounts of severance pay:
Severance Pay
1 year or less ......................................................................................................... nil
1 year and up to the completion of 2 years..................................................... 4 weeks’ pay
2 years and up to the completion of 3 years ................................................... 6 weeks’ pay
4 years and over .............................................................................................. 8 weeks’ pay
“Weeks’ pay” means the ordinary time rate of pay for the employee concerned.
4.10.7
Superannuation benefits
Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, such employee shall
only receive under clause 4.10.6 the difference between the severance pay specified in that clause and the amount of the superannuation benefit such
employee receives which is attributable to employer contributions only. If this superannuation benefit is greater than the amount due under clause 4.10.6
then the employee shall receive no payment under that clause.
4.10.8
Employee leaving during notice
An employee whose employment is terminated for reasons set out in clause 4.10.1 may terminate such employment during the period of notice specified
in clause 4.8.2, and, if so, shall be entitled to the same benefits and payments under clause 4.10 had such employee remained with the employer until the
expiry of such notice:
Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.
4.10.9
Alternative employment
An employer, in a particular case, may make application to the Commission to have the general severance pay prescription amended if the employer
obtains acceptable alternative employment for an employee.
4.10.10 Employees with less than one year’s service
Clause 4.10 shall not apply to employees with less than one year’s continuous service and the general obligation on employers should be no more than to
give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to
facilitate the obtaining by the employees of suitable alternative employment.
4.10.11 Employees exempted
Clause 4.10 shall not apply:
(a) where employment is terminated as a consequence of misconduct on the part of the employee;
(b) to employees engaged for a specific period of time or for a specific task or tasks; or
(c) to casual employees.
4.10.12 Employers exempted
Subject to an order of the Commission, in a particular redundancy case, clause 4.10 shall not apply to employers who employ less than 15 people.
4.10.13 Incapacity to pay
An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription amended on the
basis of the employer’s incapacity to pay.
4.11
Continuity of service – transfer of calling
In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act, as amended from
time to time.
5.1
Definition of classifications
5.1.1
Boarding school employee level 1
(78.0%)
(a) Will mean an employee who is:
(i)
undertaking up to 3 months on the job training so as to enable the employee to be employed at a higher level; or
(ii)
providing general assistance to employees of a higher grade, not including cooking or direct service to students or residents and where
such work requires minimal initiative, discretion or interaction with guests or clients.
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12 December , 2003
(b) Indicative duties of an employee at this level include:
5.1.2
(i)
Cleaning, tidying and setting up of kitchen, food preparation and service areas, including the cleaning of equipment, crockery and
general utensils;
(ii)
Assembly and preparation of ingredients for cooking;
(iii)
Handling pantry items and linen;
(iv)
Setting and/or wiping down tables, removing food plates, emptying ashtrays and picking up glasses;
(v)
General cleaning, gardening and labouring tasks.
(82.0%)
(a) Will mean an employee possessing skills and performing duties beyond that of a Level 1 employee. An employee at this level works under
routine supervision and is responsible for the quality of their own work.
Indicative duties of an employee at this level include:
(i)
Heating pre-prepared meals and/or preparing simple food items, such as sandwiches, salads and toasted foodstuffs;
(ii)
Undertaking general waiting duties of both food and/or beverages, including cleaning of catering equipment, preparing tables and
sideboards, clearing tables, taking orders at a table;
(iii)
Serving food and/or beverages to tables;
(iv)
Service from a meal counter;
(v)
Receipt of moneys, giving change, operation of cash registers;
(vi)
Greeting and seating of residents and guests under general supervision;
(vii) Receiving, storing and distributing goods not involving the extensive use of documents and records;
(viii) Laundry and specialised cleaning duties involving the use of specialised cleaning equipment and/or chemicals;
(ix)
5.1.3
Allocated building, maintenance and/or gardening duties.
(88.0%)
(a) Will mean an employee possessing skills and performing duties beyond that of a Level 2 employee. An employee at this level works under
routine supervision and is responsible for the quality of their own work.
(i)
Preparing and cooking a limited range of basic food items such as breakfasts, grills and snacks;
(ii) Supervising of the clearing of tables after and during meals, receipt of moneys and greeting of residents and guests;
5.1.4
(iii)
Receiving, storing and distributing goods not involving the control of the store;
(iv)
Security work, requiring the holding of an appropriate licence;
(v)
Supervision and instruction of employees of a lower level.
(92.4%)
(a) Will mean an employee without relevant trade qualifications possessing skills and performing duties beyond that of a Level 3 employee.
An employee at this level works under general supervision and is responsible for assuring the quality of their own work.
5.1.5
(i)
Undertaking general cooking duties, including a la carte cookery, baking, pastry cooking or butchery of a non-trade nature;
(ii)
Full control of stock and ordering;
(iii)
Providing supervision and instruction to employees of a lower grade in addition to performing duties from Level 3.
(100.0%)
(a) Will mean an employee possessing either a relevant trade qualification and/or the equivalent skill and/or experience.
(i)
Trade cooking duties including baking, pastrycooking or butchering duties;
(ii)
Other trade work appropriate to an employee’s trade;
(iii)
Providing supervision and instruction to employees of a lower grade in addition to performing duties from Level 4.
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1395
Note: The employer may require the employee to provide proof of any previous service or a trade certificate at the time of commencing
employment. Where it is established that the employee failed to disclose that information when required to do so such service or qualification
will not be taken into account when assessing any later claim on the employer.
5.1.6
(110.0%)
(a) Will mean an employee possessing either relevant post-trade qualifications and/or the equivalent skill and/or experience.
5.2
(i)
Co-ordination, training and supervision of employees at lower levels;
(ii)
Responsibility for the maintenance of service and operational standards;
(iii)
Preparation of operational reports;
(iv)
Development of stock control and security procedures;
(v)
Menu planning;
(vi)
Staff recruitment and induction (not including the right to engage or terminate the services of employees).
Wage rates
(a) The minimum weekly rate of pay for employees covered by this Award will be as follows:
Weekly Rate
$
LEVEL 1...................................................................................................431.40
LEVEL 2...................................................................................................448.10
LEVEL 3...................................................................................................473.10
LEVEL 4...................................................................................................491.50
LEVEL 5...................................................................................................525.20
LEVEL 6...................................................................................................566.90
NOTE: The rates of pay in this award are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration
of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the President.]
This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions
of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable
pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to
give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise
agreements, are not to be used to offset arbitrated wage adjustments.
(b) Junior employees
Percentage
of Minimum
Adult Rate
%
Under 17 Years of Age............................................................................... 60.0
17 and under 18 Years of Age.................................................................... 70.0
And thereafter at the appropriate rate prescribed for adults for the class of work being performed.
5.3
Allowances
5.3.1
Broken shift allowance
Where a full-time employee works a broken shift, such employee will be paid 5% in addition to the ordinary rate for every shift so worked.
5.3.2
Locomotion
Where an employee is required by the employer to use a motor vehicle on the employer’s business, it will be provided and will be maintained by the
employer, or, if supplied by the employee, the employee will be reimbursed each week:
(a) In a case where the employer requires the vehicle to be used to carry heavy or bulky equipment the property of the employer: $0.57c per
kilometre.
For the purpose of clause 5.3.2, “heavy or bulky equipment” could include commercial polishing, scrubbing or like machines, but will not
include small or light items.
(b) In a case where the vehicle is not used to carry equipment the property of the employer: $0.28c per kilometre.
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12 December , 2003
5.4
Payment of wages
5.4.1
All employees will be paid on the same day either weekly or fortnightly, or otherwise by agreement, and the employer will hold not more than 2
days’ pay in hand.
5.4.2
The payment of wages may be by any one of the following methods as determined by the employer:
(a) payment by electronic funds transfer into an account nominated by the employee without cost to the employee;
(b) cash; or
(c) cheque.
5.4.3
In case of dismissal or of an employee leaving the services of an employer after having given the prescribed notice, the employee will be paid all
wages due within 15 minutes of ceasing work:
Where an employee is paid by electronic funds transfer the employer will ensure that such wages are transferred to the employee’s account
within the 24 hour period following the dismissal or on the next bank trading day.
5.4.4
Subject to consultation with the employees concerned, where the normal payday falls on a public holiday or an employee’s rostered day off,
facility hereby exists for the employer to move the payday to either the working day prior to or the working day after such public holiday.
5.4
Superannuation
The Superannuation provisions of this Award shall be determined in accordance with the relevant Commonwealth legislation for occupational
superannuation funds and complying with the operating standards as prescribed by Regulations made under the relevant legislation.
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, WEEKEND WORK
6.1
Hours of work
6.1.1
The ordinary hours of duty for employees covered by this Award will not exceed an average of 38 hours per week over any work cycle.
6.1.2
Ordinary hours will be worked on not more than 5 days out of 7 and except by agreement, employees will have 2 consecutive days off.
6.1.3
Ordinary working hours will not exceed 10 hours on any day, except by agreement between the employer and employee/s concerned.
6.2
Meal breaks
6.2.1
Meal breaks and meal allowance
(a) Where an employee is employed for at least 6 hours per day, such employee will be entitled to a continuous unpaid meal break of 30
minutes’ duration.
(b) Provided that no such employee will work for more than 5 hours without a break for a meal except where the employer and the employee
mutually agree to work through the meal break as paid crib.
(c) Where an employee is required to work through a meal break as prescribed in clause 6.2.1(a) such employee will be paid at the rate of
double time for the duration of the meal break worked, excepting employees who agree to a paid crib break as in clause 6.2.1(b).
(d) Any employee who is required to continue working for more than 2 hours beyond their ordinary ceasing time will be provided with an
adequate meal by the employer or paid an amount of $7.50 in lieu.
(e) Where employees who have provided themselves with a meal because of receipt of notice to work overtime and such overtime is not
worked, such employee will be paid $7.50 for any meal so provided.
6.3
Rest pauses
6.3.1
All employees working at least a 7.6 hour day will be entitled to a rest pause of 10 minutes’ duration in the employers time in the first and
second half of their working day. Where an employee works less than 7.6 hours but more than 4 hours on any day the employee will be entitled
to one 10 minute rest pause on that day. Such rest pauses will be taken at times so as not to interfere with the continuity of work where
continuity is necessary:
6.3.2
Where an employee is rostered to work less than a 10 hour day and there is agreement between employer and the majority of employees
concerned the rest pauses may be combined into one 20 minute rest pause.
6.4
Overtime
6.4.1
All time worked outside, or in excess of, the ordinary hours of work prescribed by this Award or outside of an employee’s usual ceasing times,
will be deemed to be overtime and will be paid at the rate of time and a-half for the first 3 hours and double time thereafter.
All overtime is to be authorised.
6.4.2
For the purposes of computing such overtime payments, each day will be exclusive of the preceding and succeeding days except where an
employee continues working overtime past midnight whereupon all such time worked subsequent to midnight will be deemed to be work
performed on the previous day.
6.4.3
All overtime worked on a Sunday will be paid for at the rate of double time with a minimum payment as for 3 hours worked.
12 December , 2003
6.4.4
1397
Rest period after overtime
(a) When overtime is necessary it will be so arranged that the employees have at least 10 consecutive hours off duty between the work of
successive days.
(b) An employee who works so much overtime between the termination of such employee’s ordinary work on one day and the commencement
of ordinary work on the next, that such employee has not had at least 10 consecutive hours off duty between those times will, subject to
clause 6.4.4, be released after completion of such overtime until such employee has had 10 consecutive hours off duty without loss of pay
for ordinary working time occurring during such absence.
(c) Where an employee is required to resume or continue work without having had such 10 consecutive hours off duty, such employee will be
paid at the appropriate ordinary hourly rate plus 100% until that employee is released from duty for such period and will then be entitled to
be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such
absence.
(d) Where an employee is recalled to work overtime after leaving the employer’s premises such time worked will not be regarded as overtime
for the purpose of clause 6.4.4(b) when the actual time worked is less than 3 hours on such recall or on each of such recalls.
(e) The provisions of clause 6.4.4 will apply in the case of shift workers who rotate from one shift to another as if 8 hours were substituted for
10 hours when overtime is worked:
6.5
(i)
for the purpose of changing shift rosters; or
(ii)
where a shift worker does not report for duty; or
(iii)
where a shift is worked by agreement between the employees themselves with the approval of the employer.
Late night and weekend work
In addition to the employees’ ordinary rate of pay, all ordinary hours worked by employees, other than casuals during the following periods will attract
the following penalties:
6.5.1
Late night
All ordinary hours worked between 10.00 p.m. and 6.00 a.m. Monday to Friday will attract a penalty of 15% in addition to the ordinary rate:
Provided that, where the employer and a majority of the employees concerned at a workplace agree, an employee may commence ordinary hours on or
after 5.00 a.m. without penalty.
6.5.2
Saturday
All ordinary hours worked between midnight Friday and midnight Saturday will attract a penalty of 25% in addition to the ordinary rate.
6.5.3
Sunday
All ordinary hours worked between midnight Saturday and midnight Sunday will attract a penalty of 50% in addition to the ordinary rate.
7.1
Annual leave
7.1.1
Except as provided in clause 7.1.5, every employee (other than a casual employee) covered by this Award will at the end of each year of
employment be entitled to 4 weeks’ annual leave on full pay.
(a) The accrual rate for annual leave as from the making of this Award, will be 152 hours per year (4 weeks annual leave on the basis of a 38
hour week).
(b) Leave debits on or after the making of this Award, will be equivalent to the ordinary hours the employee would have worked had they had
not been on paid leave. Such leave will therefore be paid and debited on the basis of hours actually taken.
(c) Rostered days off arising from the implementation of the 38 hour week may be taken in conjunction with a period of annual leave.
7.1.2
Annual leave will be exclusive of any public holiday which may occur during the period of annual leave and (subject to clause 7.1.7) will be
paid for by the employer in advance:
(a) in the case of any and every employee in receipt immediately prior to that leave of ordinary wages at a rate in excess of the ordinary wages
payable under clause 5.2, at that excess rate; and
(b) in every other case, at the ordinary time rate of pay payable under clause 5.2 to the employee concerned immediately prior to that leave.
7.1.3
If the employment of an employee is terminated at the expiration of a full year of employment, the employer will be deemed to have given
annual leave to the employee from the date of termination of employment and will immediately pay to the employee, in addition to all other
amounts due, 4 weeks’ pay for annual leave calculated in accordance with clause 7.1.7 and in addition payment for any public holidays
occurring during such 4 week period.
7.1.4
If the employment of an employee is terminated before the expiration of a full year of employment, such employee will be paid, in addition to all
other amounts due, an amount equal to 1/12th of the employee’s pay for the period of employment calculated in accordance with clause 7.1.7.
7.1.5
Term-time employees will at the end of each year of employment be entitled to annual leave as follows:
Number of Weeks Worked During the Year
52
x
4 Weeks
x
Average Hours Per Week
Calculated on Weeks Worked
1398
12 December , 2003
7.1.6
Annual leave taken by employees working in Boarding Schools, will be taken during school vacation periods unless otherwise agreed between
the employer and employee.
7.1.7
Calculation of annual leave pay
Annual leave pay (including any proportionate payments) will be calculated as follows:
(a) All employees – Subject to clause 7.1.7 (b), in no case will the payment by an employer to an employee be less than the sum of the
following amounts:
(i)
The employee’s ordinary wage rate as prescribed in clause 5.2 for the period of the annual leave (excluding weekend penalty rates);
(Note: For Averaging Employees this means their averaged weekly rate of pay.)
(ii)
A further amount calculated at the rate of 17.5% of the amount referred to in clause 7.1.7 (a)(i).
(b) The provisions of clause 7.1.7 (a) will not apply to the following:
(i)
Any period or periods of annual leave exceeding 4 weeks;
(ii)
Employers (and their employees) who are already paying (or receiving) an annual leave bonus, loading or other annual leave payment
which is not less favourable to employees.
7.2
Sick leave
7.2.1
Entitlement
(a) Every employee, except casuals and school-based apprentices and trainees, is entitled to 60.8 hours’ sick leave for each completed year of
their employment with their employer:
Provided that part-time employees accrue sick leave on a proportional basis.
(b) This entitlement will accrue at the rate of 7.6 hours’ sick leave for each 6 weeks of employment.
(c) Payment for sick leave will be made based on the number of hours which would have been worked if the employee were not absent on sick
leave.
(d) Sick leave may be taken for part of a day.
(e) Sick leave shall be cumulative, but unless the employer and employee otherwise agree, no employee shall be entitled to receive, and no
employer shall be bound to make, payment for more than 13 weeks’ absence from work through illness in any one year.
7.2.2
Employee must give notice
The payment of sick leave is subject to the employee promptly advising the employer of the employee’s absence and its expected duration.
7.2.3
Evidence supporting a claim
When the employee’s absence is for more than 2 days the employee is required to give the employer a doctor’s certificate, or other reasonably acceptable
evidence to the employer’s satisfaction, about the nature and approximate duration of the illness.
7.2.4
Accumulated sick leave
An employee’s accumulated sick leave entitlements are preserved when:
(a) The employee is absent from work on unpaid leave granted by the employer;
(b) The employer or employee terminates the employee’s employment and the employee is re-employed within 3 months;
(c) The employee’s is terminated because of illness or injury and the employee is re-employed by the same employer without having been
employed in the interim.
The employee accumulates sick leave entitlements whilst absent from work on paid leave granted by the employer.
7.2.5
Sick leave is unlike annual or long service leave in that it is conditional upon an employee being ill or injured to the point of being unfit for duty.
It is an insurance to protect the employee against hardship should the person concerned be unable to continue to work, and should be only so
utilised.
(a) This procedure is designed to curtail sick leave abuse by employees who are absent from work and who are not genuinely unfit for duty and
is to operate notwithstanding the provisions of clause 7.2.
(b) At the end of each 3 monthly period or such other period as presently applies, the employer may review the sick leave records with a view
to establishing a list of employees whose record of attendance gives cause for reasonable concern.
(c) Any employee with an unsatisfactory record may be interviewed by the employer in the presence of the Union representative if the
employee requests. If the discussion in respect to the absences does not provide satisfactory reasons for the absences, then a letter of
warning is to be sent to the employee.
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1399
(d) If no improvement is observed in the next period, the employee may again to be interviewed (as in clause 7.2.5(c)), and if the interview
results in unsatisfactory reasons being given, a second letter of warning may be sent to the employee, also indicating that proof of illness or
a certificate may be required for any absence.
(e) If the above action still results in unsatisfactory attendance at work then a final warning may be given and if this is disregarded, good
grounds will have been established for termination of employment.
(f) The above procedure does not operate to withdraw the employer’s right to take termination action or other disciplinary action against any
employee if that employee has been found guilty of filling out false sick leave application forms and claiming sick leave pay when that
person was not genuinely on sick leave. That is a matter relating to fraudulent misrepresentation which may justify instant dismissal.
7.2.6
Workers’ compensation
Where an employee is in receipt of workers’ compensation, the employee is not entitled to payment of sick leave.
7.3
Bereavement leave
7.3.1
Full-time and part-time employees
Full-time and part-time employees shall on the death of a member of their immediate family or household in Australia be entitled to paid
bereavement leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not
exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to
the satisfaction of the employer.
7.3.2
Long-term casual employees
(a) A long-term casual employee is entitled to at least 2 days unpaid bereavement leave on the death of a member of the person’s immediate
family or household in Australia.
(b) The term “long-term casual employee” means a casual employee engaged by a particular employer, on a regular and systematic basis, for
several periods of employment during a period of at least one year immediately before the employee seeks to access an entitlement under
clause 7.3.2
7.3.3
“Immediate family” includes:
(a) a spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and
(b) child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent, grandparent,
grandchild or sibling of the employee or spouse of the employee.
7.3.4
An employee with the consent of the employer, may apply for unpaid leave when a member of the employee’s immediate family or household in
Australia dies and the period of bereavement leave entitlement provided above is insufficient.
7.4
Long service leave
All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2,
Part 3, sections 42-58 of the Act as amended from time to time.
7.5
Family leave
The provisions of the Family Leave Award apply to and are deemed to form part of this Award.
7.5.1
It is to be noted that:
(a) part-time work can be performed by agreement in the circumstances specified in the Family Leave Award;
(b) a copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act.
7.5.2
The Family Leave Award also provides for the terms and conditions of leave associated with:
(a) Maternity leave
(b) Parental leave
(c) Adoption leave
(d) Special responsibility leave for the care and support of the employee’s immediate family or household.
7.6
Public holidays
7.6.1
All work done by any employee on:
–
–
–
–
–
–
the 1st January;
the 26th January;
Good Friday;
Easter Saturday (the day after Good Friday);
Easter Monday;
the 25th April (Anzac Day);
1400
–
–
–
–
12 December , 2003
The Birthday of the Sovereign;
Christmas Day;
Boxing Day; or
any day appointed under the Holidays Act 1983, to be kept in place of any such holiday
will be paid for at the rate of double time and a-half with a minimum of 4 hours.
7.6.2
Labour Day
All employees covered by this Award are entitled to be paid a full day’s wage for Labour Day (the first Monday in May or other day appointed under the
Holidays Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any employee
concerned actually works on Labour Day, such employee will be paid a full day’s wage for that day and in addition a payment for the time actually
worked by the employee at one and a-half times the ordinary time rate of pay prescribed for such work with a minimum of 4 hours.
7.6.3
Annual show
All work done by employees in a district specified from time to time by the Minister by notification published in the Industrial Gazette on the day
appointed under the Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal
city or town, as specified in such notification of such district will be paid for at the rate of double time and a-half with a minimum of 4 hours.
In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an
ordinary working day that is to be treated as a show holiday for all purposes.
7.6.4
Double time and a-half
For the purposes of clause 7.6 “double time and a-half” means one and a-half day’s wages in addition to the employee’s ordinary time rate of pay or pro
rata if there is more or less than a day.
7.6.5
Employer and employee may agree on alternative method of payment for work on holiday
Notwithstanding any other provision of clause 7.6 and subject to any statutory limitations, when an employee works on a public holiday such employee
will be paid at the rate prescribed by clause 7.6 for the particular holiday or by agreement between the employee and the employer may be paid at the
ordinary rate and be given a day off in lieu thereof:
Provided that if an employee subsequently works on the day in lieu of the deferred public holiday, such employee will be paid in accordance with clause
7.6.1.
7.6.6
Employees, other than casuals, who do not work Monday to Friday of each week
Employees who do not work Monday to Friday of each week are entitled to public holidays as follows:
(a) A full-time employee is entitled to either payment for each public holiday or a substituted day’s leave.
(b) A part-time employee or term-time employee is entitled to either payment for each public holiday or a substituted day’s leave:
Provided that the part-time employee or term-time employee would have been ordinarily rostered to work on that day had it not been a
public holiday.
(c) Where a public holiday would have fallen on a Saturday or a Sunday but is substituted for another day all employees who would ordinarily
have worked on such Saturday or Sunday but who are not rostered to work on such day are entitled to payment for the public holiday or a
substituted day’s leave.
(d) Where Christmas Day falls on a Saturday and the public holidays is observed on another day, an employee required to work on Christmas
Day (i.e. 25th December) is to be paid at the rate of time and three-quarters in the case of work performed on a Saturday and double time in
the case of work performed on a Sunday.
(e) Nothing in clause 7.6.6 confers a right to any employee to payment for a public holiday as well as a substituted day in lieu.
NOTE: No provisions inserted in this Award relevant to this Part.
9.1
Commitment to training and careers
9.1.1
The parties acknowledge that various degrees of training are provided to employees in the industry, both by internal on the job training and
through external training providers.
9.1.2
The parties commit themselves to continuing such training as is regarded by them as appropriate and improving training in such cases where this
is required.
9.1.3
It is agreed that the parties will co-operate in ensuring that appropriate training is available for all employees in this industry and the parties
agree to co-operate in encouraging both employers and employees to avail themselves of the benefits from such training.
9.1.4
The parties agree to continue discussions on issues raised in relation to training.
9.1.5
The parties are committed to encouraging young people to view this industry as one which has the capacity to provide them with an interesting
career.
12 December , 2003
PART 10
1401
OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
Preamble
Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are
advised to refer to sections 366, 372 and 373 of the Act as amended from time to time.
11.1
Right of entry
11.1.1
Authorised industrial officer
(a) An “Authorised industrial officer” is any Union official holding a current authority issued by the Industrial Registrar.
(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union.
11.1.2
Entry procedure
(a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as:
(i)
the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and
(ii)
shows their authorisation upon request.
(b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent.
(c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry.
(d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a
trespasser.
11.1.3
Inspection of records
(a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act.
(b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee:
(i)
is ineligible to become a member of the Union; or
(ii)
is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or
(iii)
has made a written request to the employer that the employee does not want that employee’s record inspected.
(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer.
(d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by
an authorised industrial officer.
11.1.4
Discussions with employees
An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the Union:
(a) matters under the Act during working or non-working time; and
(b) any other matter with a member or employee eligible to become a member of the Union, during non-working time.
11.1.5
Conduct
An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry.
11.2
Time and wages record
11.2.1
An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period
for each employee, including apprentices and trainees:
(a) the employee’s award classification;
(b) the employer’s full name;
(c) the name of the award under which the employee is working;
(d) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and
details of work breaks including meal breaks;
(e) a weekly, daily or hourly wage rate – details of the wage rate for each week, day, or hour at which the employee is paid;
(f) the gross and net wages paid to the employee;
(g) details of any deductions made from the wages; and
(h) contributions made by the employer to a superannuation fund.
1402
11.2.2
12 December , 2003
The time and wages record must also contain:
(a) the employee’s full name and address;
(b) the employee’s date of birth;
(c) details of sick leave credited or approved, and sick leave payments to the employee;
(d) the date when the employee became an employee of the employer;
(e) if appropriate, the date when the employee ceased employment with the employer; and
(f) if a casual employee’s entitlement to long service leave is worked out under section 47 of the Act – the total hours, other than overtime,
worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.
11.2.3
The employer must keep the record for 6 years.
11.2.4
Such records shall be open to inspection during the employer’s business hours by an inspector of the Department of Industrial Relations, in
accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act.
11.3
Union encouragement
Clause 11.3 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of
Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of an organisation of
employees that has the right to represent the industrial interests of the employees concerned.
11.3.1
Documentation to be provided by employer
At the point of engagement, an employer to whom this Award applies shall provide employees with a document indicating that a Statement of Policy on
Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by
each employee.
The document provided by the employer shall also identify the existence of a Union encouragement clause in this Award.
11.3.2
Union delegates
Union delegates and job representatives have a role to play within a workplace. The existence of accredited Union delegates and/or job representatives is
encouraged.
The employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their
duties.
11.3.3
Deduction of union fees
Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of Union fees for employees
who signify in writing to their employer, their desire to have such membership fees deducted from their wages.
11.4
Posting of Award
A true copy of this Award must be exhibited in a conspicuous and convenient place on the premises so as to be easily read by employees.
Dated 26 August 2003.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Operative Date: 27 October 2003
###########################################################################################################################
MILK TREATMENT, MILK PRODUCTS MANUFACTURE AND MILK ETC.,
DISTRIBUTION AWARD – SOUTH-EASTERN DISTRICT
(No. AR190 of 2002)
9 September 2003
AWARD REVIEW
following Award be made, as from 3 November 2003.
MILK TREATMENT, MILK PRODUCTS MANUFACTURE AND MILK ETC.,
DISTRIBUTION AWARD – SOUTH-EASTERN DISTRICT 2003
1.1
Title
This Award is known as the Milk Treatment, Milk Products Manufacture and Milk Etc., Distribution Award – South- Eastern District 2003.
12 December , 2003
1.2
1403
Arrangement
Subject Matter
Clause No.
Title.............................................................................................................................................................................................................................1.1
Arrangement ...............................................................................................................................................................................................................1.2
Award coverage..........................................................................................................................................................................................................1.4
Definitions ..................................................................................................................................................................................................................1.5
Parties bound ..............................................................................................................................................................................................................1.6
Grievance and dispute settling procedure ..................................................................................................................................................................3.1
Part-time employment ................................................................................................................................................................................................4.2
Casual employment ....................................................................................................................................................................................................4.3
Two or more classes of work .....................................................................................................................................................................................4.4
Incidental and peripheral tasks...................................................................................................................................................................................4.5
Redundancy ................................................................................................................................................................................................................4.9
Wage rates ..................................................................................................................................................................................................................5.1
Allowances .................................................................................................................................................................................................................5.2
Payment of wages.......................................................................................................................................................................................................5.3
Superannuation...........................................................................................................................................................................................................5.4
Hours of work – other than employees of Pauls Ltd and Montague Moulders Pty Ltd............................................................................................6.1
Hours of work – Pauls Ltd and Montague Moulders Pty Ltd. ..................................................................................................................................6.2
Working of a 38 hour week – all employees .............................................................................................................................................................6.3
Overtime .....................................................................................................................................................................................................................6.4
Recall to work ............................................................................................................................................................................................................6.5
Afternoon and night shift allowances ........................................................................................................................................................................6.6
Weekend penalty rates ...............................................................................................................................................................................................6.7
Annual leave...............................................................................................................................................................................................................7.1
Sick leave ...................................................................................................................................................................................................................7.2
Family leave ...............................................................................................................................................................................................................7.5
Public holidays ...........................................................................................................................................................................................................7.6
Commitment to training .............................................................................................................................................................................................9.1
Employees becoming ill .............................................................................................................................................................................................10.1
General conditions......................................................................................................................................................................................................10.2
Right of entry..............................................................................................................................................................................................................11.1
Time and wage records ..............................................................................................................................................................................................11.2
List of employers with 2nd tier orders which to varying degrees
modify the provisions of this Award....................................................................................................................................................................... Schedule 1
Structural efficiency – Pauls Ltd – second payment – trade union training leave ................................................................................................. Schedule 2
1404
1.3
12 December , 2003
Date of operation
This Award takes effect from 3 November 2003.
1.4
Award coverage
1.4.1
This Award applies to employees engaged in or in connection with the treatment of milk, the manufacture of milk products, and the distribution
of milk and/or milk products at factories or depots, in that portion of the State of Queensland within the following boundaries:
Commencing at the junction of the sea-coast with the southern border of the State, then by the southern border of the State westerly to 150
degrees of east longitude; from that meridian of longitude due north to 25 degrees of south latitude; from that parallel of latitude due west to 147
degrees of east longitude; then by that meridian of longitude due north to 22 degrees of south latitude; from that parallel of latitude due east to
the sea-coast; and then by the sea-coast southerly to the point of commencement:
1.4.2
Exemptions from coverage
This Award shall not apply to employees engaged in or in connection with the manufacture of butter or cheese.
As to the employers named in Schedule 1 to this Award the provisions of the Award are modified in accordance with the requirements of the individual
Orders listed in such Schedule.
1.5
Definitions
1.5.1
1.5.2
“Cold Room Hand” means an employee who is employed for more than 3 hours on any one day in a cold room.
1.5.3
1.5.4
“Dairy Produce Laboratory Technician” means an employee who holds a current Dairy Produce Laboratory Technicians’ Certificate of
Competency, as issued by the Director of Dairying under the Dairy Industry Act 1993, and who is principally engaged within a registered Dairy
Produce Laboratory carrying out tests, functions and duties within the parameters determined from time to time under the Dairy Industry Act
1993 and Regulations to that Act.
1.5.5
“Milk Issuer” means an employee employed in the distribution of milk to vendors, and whose duties may include the keeping of records and
issuing receipts in connection therewith.
1.5.6
“Union” means The Australian Workers’ Union of Employees, Queensland.
1.5.7
“Yoghurt Maker” means the person responsible for the supervision of the manufacture of yoghurt.
1.6
Parties bound
This Award is legally binding upon the employees as prescribed by clause 1.4 and their employers, and the Union and its members.
2.1
2.1.1
2.1.2
2.1.3
Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being
3.1
employees.
3.1.1
alleged actions of the immediate supervisor the employee(s) may bypass this level in the procedure.
3.1.2
3.1.3
12 December , 2003
1405
3.1.4
If the grievance or dispute is still unresolved after discussions mentioned in clause 3.1.2, the matter shall, in the case of a member of the Union,
be reported to the relevant officer of the Union and the senior management of the employer or the employer’s nominated industrial
representative. An employee who is not a member of the Union may report the grievance or dispute to senior management or the nominated
industrial representative. This should occur as soon as it is evident that discussions under clause 3.1.2 will not result in resolution of the dispute.
3.1.5
3.1.6
3.1.7
3.1.8
3.1.9
dispute.
3.1.10
4.1
4.1.1
Employees, other than casuals, covered by this Award shall be advised in writing of their employment category upon appointment.
(a) full-time;
(b) part-time (as prescribed in clause 4.2); or
(c) casual (as prescribed in clause 4.3).
4.2
Part-time employment
4.2.1
Employees may be engaged on a part-time basis to work a number of ordinary hours less than the ordinary number of hours prescribed for fulltime employees.
4.2.2
Part-time employees shall be entitled to the pro rata benefit of all of the provisions of the Award which apply to full-time employees, provided
that the public holiday entitlements of part-time employees shall apply to those hours on the public holiday which otherwise would have formed
a part of the employee’s regular hours of work.
4.2.3
The ordinary hours of part-time employees (exclusive of meal times) shall be not less than 10 hours per week but less than 38 hours per week.
4.2.4
A part-time employee shall be advised of their commencing and ceasing time. Any work performed before or after such commencing and
ceasing times will be considered overtime and paid as such.
4.2.5
Introduction of part-time work will, as far as practicable, be by consultation between the employer and employees in the work section or sections
concerned. Notwithstanding these consultative procedures the employer shall have the right to make the final determination as to which
employees are offered part-time employment.
4.3
Casual employment
4.3.1
A casual employee shall be engaged as such and shall work an average of not more than 32 hours per week.
4.3.2
A casual employee will be engaged for a minimum of 4 hours per engagement.
4.3.3
Casual employees shall be paid 23% per hour in addition to the rate prescribed in clause 5.1.
4.3.4
Casual employees shall be notified at the end of the day if their services are not required next day. Failing such notice a full day’s wages shall
be paid. They shall be paid as soon as practicable after ceasing work. All waiting time exceeding 30 minutes shall be paid for at overtime rates.
4.4
Two or more classes of work
An employee who is required to perform work on any day for which a higher rate of pay is prescribed in clause 5.1 shall be paid as follows:
(a) If for more than 4 hours on any day the higher rate for the whole of such day.
(b) If 4 hours or less then payment of the higher rate for 4 hours.
4.5
Incidental and peripheral tasks
4.5.1
An employer may direct an employee to carry out such duties as are reasonably within the limits of the employee’s skill, competence and
training.
1406
12 December , 2003
4.5.2
An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee
has been properly trained in the use of such tools and equipment (where relevant).
4.5.3
Any direction issued by an employer pursuant to clauses 4.5.1 and 4.5.2 shall be consistent with the employer’s responsibilities to provide a safe
and healthy working environment.
4.6
Anti-discrimination
4.6.1
It is the intention of the parties to this Award to prevent and eliminate discrimination as defined by the Anti-Discrimination Act 1991 and the
belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of the above
attributes;
4.6.2
Accordingly in fulfilling their obligations under the grievance and disputes settling procedure in clause 3.1, the parties to this Award must take
4.6.3
4.6.4
Nothing in clause 4.6 is to be taken to affect:
(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; or
(b) an employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and
4.7
4.7.1
The employer shall, in the event of termination of employment, provide upon request to an employee who has been terminated a written statement
4.7.2
Period of Notice
more than 5 years................................................................................................... 4 weeks
(e) The period of notice in clause 4.7.2(a) shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal,
or in the case of casual, or seasonal employees, or to employees on daily hire, or employees engaged for a specific period of time or for a
specific task or tasks.
4.7.3
The notice of termination required to be given by an employee shall be one week. If an employee fails to give notice the employer shall have the right to
withhold monies due to the employee with a maximum amount equal to the ordinary time rate for the period of notice.
4.8
4.8.1
changes and their Union.
(b) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employers workforce or
in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining
or transfer of employees to other work or locations and the restructuring of jobs:
Provided that where this Award makes provision for alteration of any of the matters referred to clause 4.8.1 an alteration shall be deemed
not to have significant effect.
12 December , 2003
4.8.2
1407
(a) The employer shall discuss with the employees affected and their Union, inter alia, the introduction of the changes referred to, the effects
the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.
(c) For the purpose of such discussion, the employer shall provide in writing to the employees concerned and their Union, all relevant
information about the changes including the nature of the changes proposed, the expected effects of the changes on employees, and any
other matters likely to affect employees:
4.9
Redundancy
4.9.1
employer shall hold discussions with the employees directly affected and where relevant, their Union.
and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to avert
or mitigate the adverse effects of any terminations of the employees concerned.
(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their Union,
all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of
employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be
carried out:
4.9.2
Where an employee is transferred to other duties for reasons set out in clause 4.9.1, the employee shall be entitled to the same period of notice of transfer
the employee would have been entitled to, pursuant to clause 4.7.2, if the employee’s employment had been terminated, and the employer may, at the
4.9.3
Transmission of business
(a) Where a business is, whether before or after the date of this Award, transmitted from an employer (the “transmittor”) to another employer
(the “transmittee”), and an employee who at the time of such transmission was an employee of the transmittor of the business, becomes an
employee of the transmittee:
(i)
the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
(ii)
the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of
the employee with the transmittee.
(b) “Business” includes trade, process, business or occupation and includes part of any such business and “transmission” includes transfer,
conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding meaning.
4.9.4
(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.9.1, the employee shall be allowed up to
one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
4.9.5
4.9.6
Severance pay
Severance Pay
1 year or less
nil
1408
4.9.7
12 December , 2003
4.9.8
An employee whose employment is terminated for reasons set out in clause 4.9.1 may terminate such employment during the period of notice specified in
clause 4.7.2, and, if so, shall be entitled to the same benefits and payments under clause 4.9 had such employee remained with the employer until the
expiry of such notice:
4.9.9
An employer, in a particular case, may make application to the Commission to have the general severance pay prescription amended if the employer
4.9.10
Employees with less than one year’s service
Clause 4.9 shall not apply to employees with less than one year’s continuous service and the general obligation on employers should be no more than to
give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to
4.9.11
Employees exempted
(b) to employees engaged for a specific period of time or for a specific task or tasks; or
4.9.12
Employers exempted
Subject to an order of the Commission, in a particular redundancy case, clause 4.9 shall not apply to employers who employ less than 15 people.
4.9.13
Incapacity to pay
An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription amended on the
4.10
In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act as amended from time
to time.
5.1
Wage rates
The minimum rate of wages payable to the following classes of employees shall be:
The classification structure expresses the Award rate payable, being the combination of the minimum classification rate and a supplementary payment
which includes the first, second and third $8 per week safety net adjustments. The Award rate includes all increases and adjustments arising as a result of
the Second Tier, 1st and 2nd structural efficiency payment and structural efficiency adjustment.
5.1.1
Other than Pauls Ltd
The minimum rates of wages payable to the following classes of employees (other than employees of Pauls Ltd) shall be:
Classification
Award Rate
Per Week
$
Seniors –
Yoghurt Maker .........................................................................................................................................................................496.00
Dairy Produce, Laboratory Technician ....................................................................................................................................494.00
Milk Dryer Operator, spray system..........................................................................................................................................486.90
Milk Grader, Milk Pasteuriser, Milk Tester.............................................................................................................................486.20
Milk Issuer ................................................................................................................................................................................481.20
Milk Dryer Operator, Roller System........................................................................................................................................480.10
Cold Room Hand, Operator in charge of Bottling,
Cartoning and/or Packaging Machine ......................................................................................................................................477.10
General Labourers and all others not elsewhere classified......................................................................................................468.10
Carton Machine Operator (Grade 1) Shikoko..........................................................................................................................496.00
Carton Machine Operator (Grade 2) Shikoko..........................................................................................................................488.70
Blowmoulding Operator...........................................................................................................................................................505.10
12 December , 2003
5.1.2
1409
Employees of Pauls Ltd (Brisbane, Nambour, Monto and Rockhampton Operations) and Montague Moulders Pty Ltd
(a) The minimum rates of wages payable to employees of Pauls Ltd (Brisbane, Nambour, Monto and Rockhampton Operations) and Montague
Moulders Pty Ltd shall be:
Per Week
$
Seniors –
Grade 7 .................................................................................................................................................................................... 559.90
Grade 6 .................................................................................................................................................................................... 537.10
Grade 5 .................................................................................................................................................................................... 516.20
Grade 4 .................................................................................................................................................................................... 499.50
Grade 3 .................................................................................................................................................................................... 482.80
Grade 2 .................................................................................................................................................................................... 466.10
Grade 1(a) ............................................................................................................................................................................... 453.60
Grade 1(b) ............................................................................................................................................................................... 448.40
(b) Employees shall be graded as follows upon satisfactory completion of the requirements prescribed herein for the grade:
Grade
7
6
5
4
3
2
1(a)
1(b)
*
Minimum
Total
Points
101
82
64
49
34
20
8
0
Skill
Points
Minimum
65
50
39
32
25
14
6
0
Qualification
Maximum *
71
59
49
35
0
0
0
0
Points
Minimum
30
23
15
14
9
Maximum *
36
32
25
17
indicates maximum number of points which can be used to obtain minimum total points for a grade.
(c) Implementation of the points based grading system shall be in accordance with the “Implementation Arrangements” tendered as Exhibit 2
before the Commission at the hearing of Case R13-3E of 1990.
(d) The provisions of clauses 5.1.4(a), 5.2.1, 5.2.2, 5.2.3 and 5.2.4 shall not apply.
NOTE: The rates of pay in this Award are intended to include the arbitrated wage adjustment payable under the 1 September 2003 Declaration of
General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the Vice President.] This
arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of
employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to
certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, Award amendments to give effect to
enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are
not to be used to offset arbitrated wage adjustments.
5.1.3
Juniors
The minimum rates of wages payable to junior employees shall be calculated as follows:
Percentage of
minimum adult
rate
%
Under 16 years of age ................................................................................................................................................................45
16 years and under 17 years of age............................................................................................................................................55
And thereafter the adult rate of wages for the class of work performed.
Junior rates shall be calculated in multiples of 10 cents with any result of 5 cents or more being taken to the next highest 10 cent multiple.
No junior shall be employed unless there be one senior employed. Thereafter 2 juniors may be employed to each senior employed respectively.
5.1.4
Leading hand allowance
(a) Any person in charge of other employees shall be paid the following in addition to the above rates:
Per week
$
When in charge of 3 and no more than 5 employees ..............................................................................................................9.60
When in charge of over 5 but less than 10 employees ..........................................................................................................14.40
When in charge of 10 or more employees.............................................................................................................................19.10
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12 December , 2003
(b) Leading hand allowance for employees of Pauls Ltd
Any employee appointed by the employer as a leading hand in charge of other employees shall be paid the following in addition to the above
rates:
Per Week
$
When in charge of 3 and no more than 5 employees..........................................................................................................11.10
When in charge of over 5 but less than 10 employees .......................................................................................................16.70
When in charge of 10 or more employees ..........................................................................................................................22.20
5.2
Allowances
5.2.1
Fork lifts
Any employee required to drive a fork lift shall be paid 28.15c per hour in addition to their ordinary rate of wages.
5.2.2
Lavatory cleaning allowance
Employees called upon to clean lavatories and urinals shall be paid $1.42 extra on any day on which they are so employed.
5.2.3
General hands holding either Dairy Produce Laboratory Technician’s, milk or cream grading, milk or cream testing or pasteurising certificates
shall be entitled to:
Per week
$
Dairy Produce Laboratory Technician’s Certificate...........................................................................................................12.90
Milk or Cream Grading Certificate.....................................................................................................................................10.00
Milk or Cream Testing or Pasteurising Certificate...............................................................................................................8.70
over the minimum wage.
5.2.4
Where juniors hold certificates of competency in milk or cream grading, milk or cream testing or pasteurising, or for Dairy Produce Laboratory
Technician, and are employed in any of these classifications, they shall be paid the senior rate of wages for the class of work performed.
5.3
Payment of wages
Wages shall be paid weekly in cash, and, except as to employees who are paid on their ordinary day off, shall be paid in the employer’s time.
5.4
Superannuation
5.4.1
Application – In addition to the rates of pay prescribed by this Award, eligible employees, as defined in clause 5.4.3(a), shall be entitled to
occupational superannuation benefits, subject to the provisions of clause 5.4.
5.4.2
Contributions
(a) Amount – Every employer shall contribute on behalf of each eligible employee an amount calculated at 3% of the employee’s ordinary time
earnings, into an approved occupational superannuation scheme or fund, as defined in clause 5.4.4.
(b) The employer shall not be required to pay superannuation contributions on behalf of any eligible employee in respect of any week during
which such employee receives less than 10 hours pay in ordinary time earnings.
(c) Absences from work – the employer shall not be required to pay superannuation contributions on behalf of any eligible employee during
any unpaid absences except in the case of absence on workers’ compensation. In the case of workers’ compensation the employer shall
contribute whenever the employee is receiving by way of workers’ compensation an amount of money no less than the Award rate of pay.
5.4.3
Definitions
(a) “Eligible employee” shall mean any employee who has been employed by the employer during 6 consecutive weeks and who has worked a
minimum of 60 hours during that period. On completion of the above qualifying period, superannuation contributions shall be made in
accordance with clause 5.4.2 retrospectively to the commencement of that period:
Provided that any employee covered by this Award who has a break in employment in excess of 3 months, shall upon re-employment be
required to complete the prescribed eligibility period before contributions are again made in accordance with the principles contained
herein.
(b) “Ordinary time earnings” shall mean the actual ordinary rate of pay the employee receives for ordinary hours of work including shift
loading and leading hand allowance where applicable. Ordinary time earnings shall not include overtime, disability allowances, penalty
rates, fares and travelling time allowances, annual leave loadings, lump sum termination payments or any other extraneous payments of a
like nature.
5.4.4
For the purposes of this Award, an approved fund means
(a) Sunsuper;
(b) Austsafe;
(c) Such other scheme or fund as agreed to between the relevant employer/Union parties to this Award and recorded in an approved Industrial
Agreement; or
12 December , 2003
1411
(d) In relation to any particular employer, any other scheme or fund to which that employer was already making superannuation contributions
on behalf of their employees as at 25 July 1989 and which is approved under the relevant Commonwealth legislation for occupational
superannuation:
Provided that in the event of any dispute over whether any Scheme or Fund complies with the requirements of clause 5.4.4(d), the onus of
proof shall be with the employer.
5.4.5
Freedom of choice
(a) No employer shall be required to make contributions into more than one fund at any time.
(b) Employees in schemes or funds covered by clause 5.4.4 shall have the right to choose to have contributions specified in clause 5.4.2, paid
into a scheme or fund as defined in clause 5.4.4, as decided by a majority of employees.
5.4.6
Enrolment
(a) Each employer shall notify each employee of the employee’s eligibility to occupational superannuation entitlements and shall take all
reasonable steps to ensure that each employee, upon becoming eligible, signs the necessary application forms provided by the employer, to
join the scheme or fund.
(b) Each employee shall be required to properly complete the necessary application forms to become a member of the appropriate scheme or
fund and return them to the employer in order to be entitled to the contributions prescribed in clause 5.4.2.
(c) Subject to the employer having complied with the requirements of clause 5.4.6(a) where any employee fails to sign and return to the
employer the required superannuation scheme/fund application forms within a month of becoming eligible, such employee shall become
entitled only to the contributions prescribed by clause 5.4.2 from the date on which such signed forms are returned to the employer.
5.4.7
Operative date
No employer shall be required to make occupational superannuation contributions for any period prior to 1 August 1989 as a result of clause 5.4.
5.4.8
Cessation of contributions
An employer shall not be required to make any further contributions on behalf of an eligible employee after the end of the day upon which the contract of
employment ceases to exist.
5.4.9
Exemptions
An employer may apply to the Commission for exemption from the provisions of clause 5.4 on the basis of incapacity to pay the costs associated with its
implementation, or for any other special or compelling circumstances peculiar to the business.
6.1
Hours of work – other than employees of Pauls Ltd and Montague Moulders Pty Ltd
6.1.1
(a) Subject to clause 6.3 (Working of a 38 hour week – all employees), and subject to the exceptions provided in clause 6.1 the ordinary hours
of work shall be an average of 38 per week, to be worked on one of the following bases:
(i)
38 hours within a work cycle not exceeding 7 consecutive days; or
(ii)
(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or
(iv) 152 hours within a work cycle not exceeding 28 consecutive days.
(b) The ordinary hours of work on any day or shift shall be worked continuously except for meal breaks, shall not exceed 10 per day or shift
and may be worked on any 5 consecutive days in the week, Monday to Sunday inclusive, subject to the following:
(i)
Ordinary hours worked on a Saturday or Sunday shall be paid at the appropriate week-end penalty rate specified in clause 6.7 (Weekend penalty rates).
(ii)
Any arrangement of hours which includes a Saturday or Sunday as ordinary hours shall be subject to agreement between the employer
and the majority of employees concerned.
(iii) The branch secretary of the Union shall be notified in writing by the employer within 14 days of the commencement of work under
any arrangement of hours which exceeds 8 ordinary hours on any day or shift or which includes a Saturday or Sunday as ordinary
hours
(c) The ordinary daily starting and ceasing times shall be as mutually agreed between the employer and the majority of affected employees in
the section or sections concerned.
(d) The ordinary starting and ceasing times of various groups of employees or of individual employees may be altered or staggered provided
there is agreement between the employer and the majority of employees in the section or sections concerned:
Provided that the ordinary starting and ceasing times applicable to employees as at the date of the introduction of the 38 hour week shall
remain in force until otherwise altered in accordance with clause 6.1.
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12 December , 2003
The branch secretary of the Union shall be notified by the employer in writing within 14 days of commencement of work under any of the
above agreed arrangements.
(e) A daily meal time of not less than one-half hour nor more than an hour shall be allowed in the employee’s time, and shall be taken as
mutually agreed upon between the employer and the employees:
Provided that any such meal time shall commence not earlier than 3 and one-half hours and not later than 6 hours after the ordinary daily
commencing time.
(f) Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks to maximise
available working time. Preparation for work and cleaning up of the employee’s person shall be in the employee’s time.
(g) Where practicable every employee covered by this Award shall be entitled to a rest pause of 10 minutes duration in the employer’s time in
the first and second half of the working day. Such rest pauses shall be taken at such times as will not interfere with the continuity of work
where continuity is necessary:
Provided that where, through appropriate consultation, there is agreement between the employer and the majority of employees concerned
the rest pauses may be combined into one 20 minute rest pause to be taken in the first part of the ordinary working day, with such 20 minute
rest pause and the meal break arranged in such a way that the ordinary working day is broken up into 3 approximately equal working
periods.
(h) Notwithstanding the consultative procedures outlined in clause 6.1.1(g), and notwithstanding any lack of agreement by employees, the
employer shall have the right to make the final determination as to the combination of rest pauses into one 20 minute rest pause.
6.1.2
Shift work
Shift work may be worked in accordance with a roster and conditions as agreed between the employer and the majority of employees affected in
the section or sections concerned.
The branch secretary of the Union shall be notified in writing of the details of such agreement by the employer within 14 days of commencement
of work under such agreed conditions.
6.2
Hours of work – Pauls Ltd and Montague Moulders Pty Ltd
6.2.1
(a) Subject to clause 6.3, (Working of a 38 hour week – all employees, and subject to the exceptions provided in clause 6.2, the ordinary hours
of work shall not (except as may be otherwise mutually agreed upon between the employer and the branch secretary of the Union) exceed an
average of 38 per week, to be worked on one of the following bases:
(i)
(ii)
(iii)
(iv)
152 hours within a work cycle not exceeding 28 consecutive days.
(b) The ordinary hours of work prescribed may be worked on any 5 consecutive days in the week, Monday to Sunday inclusive, subject to the
following:
(i)
Ordinary hours worked on a Saturday or Sunday shall be paid at the appropriate week-end penalty rate specified in clause 6.7 (Weekend penalty rates).
(ii)
Any arrangement of hours which includes a Saturday or Sunday as ordinary hours shall be subject to agreement between the employer
and the majority of employees concerned.
(c) Except as provided in clause 6.2.1(d), a daily meal time of not less than one-half hour nor more than an hour shall be allowed in the
employee’s time, and shall be taken as mutually agreed upon between the employer and the employees:
Provided that any such meal time shall commence not earlier than 3 and one-half hours and not later than 6 hours after the ordinary daily
commencing time.
(d) Whilst the current hours are being worked in Brisbane milk depots, depot masters and depot assistants employed by Pauls Ltd in
consideration of their being unable to take an uninterrupted daily meal break of 30 minutes on Monday to Friday (both inclusive) shall be
paid 30 minutes at ordinary time with meal breaks to be taken as mutually arranged between the employer and the employees concerned.
(e) The ordinary daily starting and ceasing times shall be as mutually agreed upon between the employer and the majority of affected
employees.
(f) The ordinary hours of work prescribed herein shall not exceed 10 hours on any day:
Provided that where the ordinary working hours are to exceed 8 on any day, the arrangement of hours shall be subject to the agreement of
the employer and the majority of employees concerned:
Provided further, that where any arrangement of ordinary hours exceeds 8 on any day, the Union shall be notified in writing within 14 days
of commencement of work under such arrangements.
(g) Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks to maximise
available working time. Preparation for work and cleaning up of the employee’s person shall be in the employee’s time.
12 December , 2003
1413
(h) Where practicable every employee covered by this Award shall be entitled to a rest pause of 10 minutes duration in the employer’s time in
the first and second half of the working day. Such rest pauses shall be taken at such times as will not interfere with the continuity of work
where continuity is necessary:
Provided that where there is agreement between the employer and the majority of employees concerned the rest pauses may be combined
into one 20 minute rest pause to be taken in the first part of the ordinary working day, with such 20 minute rest pause and the meal break
arranged in such a way that the ordinary working day is broken up into 3 approximately equal working periods.
Consent to combine the rest pauses shall not be unreasonably withheld by either party.
6.2.2
Shift work
(a) The ordinary working hours of employees working shift work shall be worked in accordance with a roster agreed in writing and not exceed
8 per shift unless agreed in writing between the employer and the majority of employees concerned.
(b) The Union shall be provided with a copy of all such written agreements within 14 days of commencement of work under such
arrangements.
(c) Different methods of working shifts may apply to various work groups or sections of employees.
(d) By agreement between an employer, the Union and the majority of employees in the plant or work section or sections concerned, ordinary
hours not exceeding 12 on any day may be worked subject to:
(i)
the employer and the employee concerned being guided by the occupational health and safety provisions of the ACTU Code of
Conduct on 12 Hour Shifts;
(ii)
proper health monitoring procedures being introduced;
(iii)
suitable roster arrangements being made; and
(iv)
proper supervision being provided.
(e) Shift workers engaged in an operation where 3 consecutive shifts (without overlap of ordinary time between such shifts) are worked on at
least 5 days of the week shall be allowed 30 minutes in each shift for meal time which shall be taken at such time as not to cause a stoppage
of work and no deduction shall be made therefore from the employee’s wages.
6.3
Working of a 38 hour week – all employees
6.3.1
(a) The 38 hour week shall be worked on one of the following bases, most suitable to the particular business, after consultation with and giving
reasonable consideration to the wishes of the employees concerned:
(i)
by employees working less than 8 ordinary hours each day; or
(ii)
by employees working less than 8 ordinary hours on one or more days each work cycle; or
(iii) by fixing one or more work days on which all employees will be off during a particular work cycle; or
(iv) by rostering employees off on various days of the week during a particular work cycle, so that each employee has one work day off
during that cycle.
The employer and the majority of employees concerned may agree to accrue up to a maximum of 12 rostered days off.
Consent to accrue rostered days off shall not be unreasonably withheld by either party. Where such agreement has been reached, the
accrued rostered days shall be taken within 12 calendar months of the date on which the first rostered day off was accrued. In all cases
rostered days off shall be taken at times to suit the employer’s work requirements.
(b) Subject to clause 6.1.1(b), employees may agree that the ordinary hours of work are to exceed 8 on any day or shift, thus enabling more than
one work day to be taken off during a particular work cycle.
(c) Different methods of implementation of the 38 hour week may apply to individual employees, groups or sections of employees in the
business concerned.
(d) The employer and all employees concerned in each establishment shall consult over the most appropriate means of implementing and
working a 38 hour week.
(e) The objective of such consultation shall be to reach agreement on the method of implementing and working the 38 hour week.
(f) The outcome of such consultation shall be recorded in writing.
(g) In cases where agreement cannot be reached as a result of consultation between the parties, either party may request the assistance or advice
of their relevant employee or employer organisation.
(h) Notwithstanding the consultative procedures outlined above, and notwithstanding any lack of agreement by employees, the employer shall
have the right to make the final determination as to the method by which the 38 hour week is worked from time to time.
(i) After working the 38 hour week, upon giving 7 days’ notice or such shorter period as may be mutually agreed upon, the method of working
the 38 hour week may be altered, from time to time, following negotiations between the employer and employees concerned, utilising the
provisions of clause 6.1.
1414
12 December , 2003
6.4
Overtime
6.4.1
All time worked before the ordinary commencing time or after the ordinary ceasing time shall be deemed overtime.
6.4.2
All overtime, except as otherwise provided in clause 6.4, shall be paid for at one and a-half times the ordinary rate for the first 3 hours on any
one day, after which double time shall be paid until the ordinary starting time next morning.
6.4.3
Overtime worked by shift workers shall be paid for at the rate of double time.
6.4.4
All work done by employees on their days off shall be paid for at the rate of double time.
6.4.5
All work done during the recognised meal period shall be paid for at the rate of double time, such payment to continue until a meal period has
commenced. Such meal period shall be of the prescribed duration.
6.4.6
Where an employee is called upon to work overtime for 4 hours or more before the ordinary commencing time, the employee shall at the
expiration of 4 hours, be allowed one-half hour for a meal in the employer’s time, and a further one-half hour in the employer’s time at the
completion of every additional 4 hours’ overtime worked.
6.4.7
Where an employee is called upon to work overtime for 4 hours or more before the ordinary commencing time, the employee shall be supplied
with a meal by the employer at each of the meal times allowed in accordance with clause 6.4.6, or shall be paid in lieu thereof an allowance of
$7.50 for each such meal.
6.4.8
Where an employee is called upon to work for more than one hour before the ordinary commencing time without receiving notice on their
previous shift that the employee would be required to work such overtime, the employee shall be supplied with a meal by the employer or shall
be paid an allowance of $7.50 in lieu thereof.
6.4.9
Where an employee is called upon to work overtime for more than 2 hours overtime, or more than one hour if overtime continues beyond 6 p.m.,
they shall be allowed one-half hour for a meal in the employer’s time and a further one-half hour in the employer’s time at the completion of
every 4 additional hours’ overtime worked.
6.4.10
An employee who is required to continue work after the usual ceasing time shall be supplied with a reasonable meal at the employer’s expense,
or be paid a meal allowance of $7.50 in lieu thereof, after more than 2 hours overtime, or after more than one hour if overtime continues beyond
6 p.m.
6.4.11
Where an employee has provided meals because of receipt of notice to work overtime, the employee shall, in the event of the work not being
done or ceasing before the respective meal times, be paid an allowance of $7.50 for each meal so provided.
6.4.12
Any employee who works so much overtime between the termination of that employee’s ordinary work on one day and the commencement of
the employee’s ordinary work on the next day that the employee has not at least 10 consecutive hours off duty between those times shall, subject
to clause 6.4.12 be released after the completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay
for ordinary working time occurring during such absence. If on the instructions of the employer such an employee resumes or continues work
without having had such 10 consecutive hours off duty, the employee shall be paid double rates until the employee is released from duty for such
period and shall then be entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working
time occurring during such absence:
Provided that, where an employee is recalled to work after the ordinary ceasing time, overtime worked in such circumstances shall not be
regarded as overtime for the purposes of clause 6.4 where the actual time worked is less than 2 hours on such recall or on each of such recalls.
The provisions of clause 6.4.12 shall apply in the case of shift workers who rotate from one shift to another as if 8 hours were substituted for 10
hours when overtime is worked:
(a) For the purpose of changing shift rosters; or
(b) Where a shift worker does not report for duty; or
(c) Where a shift is worked by arrangement between the employees themselves.
6.5
Recall to work
6.5.1
Employees recalled to work following ordinary ceasing time or called into work prior to ordinary commencing time shall be provided with a
minimum of 2 hours’ work or payment therefor at the appropriate overtime rate.
6.5.2
Employees required to come in to work on rostered days off or holidays shall be provided with a minimum of 4 hours’ work or payment therefor
at the appropriate overtime rate.
6.6
Afternoon and night shift allowances
6.6.1
(a) In addition to the rates of pay prescribed by clause 5.1 employees whilst engaged on afternoon shift and night shift, as established pursuant
to clauses 6.1 and 6.2, shall be paid an additional penalty rate for each shift as follows:
Afternoon Shift ........................................ 12.5% (or $9.70 whichever is the greater)
Night Shift ............................................... 15% (or $9.70 whichever is the greater)
(b) For the purposes of clause 6.5:
(i)
“Afternoon shift” shall mean any shift finishing after 6.00 p.m. and at or before midnight;
(ii)
“Night shift” shall mean any shift finishing after midnight and at or before 8.00 a.m. or any shift commencing at or after midnight and
before 5.30 a.m.;
(iii) The percentage which is quoted shall be the amount which is payable for each shift in addition to the employee’s ordinary time wage
rate.
(c) No employee shall as a result of clause 6.6 suffer any reduction to their current entitlement to shift allowance.
12 December , 2003
1415
6.7
Weekend penalty rates
6.7.1
All ordinary time worked between midnight on Friday and midnight on Sunday shall be paid for at one and a-half times the ordinary rate.
6.7.2
Any time worked in excess of the ordinary daily hours provided for in this Award on any day or shift during the above period shall be paid for at
double ordinary rates.
7.1
Annual leave
7.1.1
Every employee (other than a casual employee) covered by this Award shall at the end of each year of their employment be entitled to annual
leave on full pay as follows:
(a) Not less than 5 weeks, if employed on shift work where 3 shifts per day are worked over a period of 7 days per week, or if employed by
Pauls Ltd as a Depot Master or Depot Assistant on permanent night work usually performed on a 6 day week basis.
(b) Not less than 4 weeks in any other case.
7.1.2
Such annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave and (subject to clause 7.1.5)
shall be paid for by the employer in advance:
(a) In the case of any and every employee in receipt immediately prior to that leave of ordinary wages at a rate in excess of the ordinary wages
payable under clause 5.1, at that excess rate; and
(b) In every other case, at the ordinary time rate of pay payable to the employee concerned immediately prior to that leave.
7.1.3
If the employment of any employee is terminated at the expiration of a full year of employment, the employer shall be deemed to have given the
leave to the employee from the date of the termination of the employment and shall forthwith pay to the employee in addition to all other
amounts due to the employee, their pay, calculated in accordance with clause 7.1.5, for 4 or 5 weeks as the case may be and also their ordinary
time rate of pay for any public holiday occurring during such period of 4 or 5 weeks.
7.1.4
If the employment of any employee is terminated before the expiration of a full year of employment, such employee shall be paid, in addition to
all other amounts due, an amount equal to 1/9th of their pay for the period of their employment in the case of an employee to whom clause
7.1.1(a) applies, and 1/12th of their pay for the period of their employment in the case of an employee to whom clause 7.1.1(b) applies,
calculated in accordance with clause 7.1.5.
7.1.5
In respect to annual leave entitlements to which clause 7.1 applies, annual leave pay (including any proportionate payments) shall be calculated as
follows:
(a) Shift workers – Subject to clause 7.1.5(c) the rate of wage to be paid to a shift worker shall be the rate payable for work in ordinary time
according to the employee’s roster or projected roster, including Saturday, Sunday or public holiday shifts.
(b) Leading hands, etc – Subject to clause 7.1.5(c), leading hand allowances and amounts of a like nature otherwise payable for ordinary time
worked shall be included in the wages to be paid to employees during annual leave.
(c) All employees – Subject to the provisions of clause 7.1.5(d), in no case shall the payment by an employer to an employee be less than the
sum of the following amounts:
(i)
the employee’s ordinary wage rate as prescribed by the Award for the period of the annual leave (excluding shift premiums and
week-end penalty rates);
(ii)
leading hand allowance or amounts of a like nature;
(iii)
a further amount calculated at the rate of 17 1/2% of the amounts referred to in clauses 7.1.5(c)(i) and 7.1.5(c)(ii).
(d) Clause 7.1.5(c) does not apply to the following:
(i)
(ii)
any period or periods of annual leave exceeding:
(A)
5 weeks in the case of employees employed in a calling where 3 shifts per day are worked over a period of 7 days per week, or
those employees employed by Pauls Ltd as Depot Masters or Depot Assistants on permanent night work usually performed on
a 6 day week basis.
(B)
4 weeks in any other case.
Employers (and their employees) who are already paying (or receiving) an annual leave bonus, loading or other annual leave
payment which is not less favourable to employees.
7.1.6
Notice of termination of service shall not be counted when computing annual leave.
7.1.7
Reasonable notice shall be given to each employee of such annual leave becoming due.
7.1.8
Except as provided in clause 7.1 it shall not be lawful for the employer to give or for any employee to receive payment in lieu of annual leave.
1416
7.2
Sick leave
7.2.1
Entitlement
12 December , 2003
(a) Every employee, except casuals, pieceworkers, and school-based apprentices and trainees, is entitled to 60.8 hours’ sick leave for each
completed year of their employment with their employer.
(b) This entitlement will accrue at the rate of 7.6 hours’ sick leave after each 6 weeks of employment.
(c) Payment for sick leave will be made based on the number of hours which would have been worked if the employee were not absent on sick
leave.
(f) Part-time employees accrue sick leave on a proportional basis.
7.2.2
7.2.3
evidence, about the nature and approximate duration of the illness.
7.2.4
(b) The employer or employee terminates the employee’s employment and the employee is re-employed within 3 months; or
(c) The employee’s employment is terminated because of illness or injury and the employee is re-employed by the same employer without
having been employed in the interim.
7.2.5
7.3
Bereavement leave
7.3.1
Full-time and part-time employees shall, on the death of a member of their immediate family or household in Australia be entitled to paid
bereavement leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not
exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to
the satisfaction of the employer.
7.3.2
(b) A “long-term casual employee” is a casual employee engaged by a particular employer, on a regular and systematic basis, for several
periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under clause 7.3.2
7.3.3
(a) a spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and
(b) child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent, grandparent,
grandchild or sibling of the employee or spouse of the employee.
7.3.4
Australia dies and the period of bereavement leave entitlement provided above is insufficient.
7.4
Long service leave
7.4.1
All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of
Chapter 2, Part 3, sections 42-58 of the Act as amended from time to time.
Clause 7.4 shall not apply to:
Queensland Farmers Co-operative Association Limited in respect of their employees who are now, or subsequently become, members of the
Queensland Farmers Co-operative Association Ltd Staff Retirement Plan.
12 December , 2003
7.5
1417
Family leave
7.5.1
7.5.2
(a) Maternity leave
(b) Parental leave
(c) Adoption leave
7.6
Public holidays
7.6.1
Subject to clause 7.6.7 all work done by any employee on:
–
–
–
–
–
–
–
–
–
–
the 1st January;
the 26th January;
Good Friday;
Easter Monday;
Christmas Day;
Boxing Day; or
will be paid for at the rate of double time and a-half with a minimum of 4 hours.
7.6.2
Labour Day
All employees covered by this Award shall be entitled to be paid a full day’s wage for Labour Day (the first Monday in May or other day appointed under
the Holidays Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any employee
concerned actually work on Labour Day, such employee shall be paid a full day’s wage for that day and in addition a payment for the time actually
worked by the employee at one and a-half times the ordinary rate prescribed for such work with a minimum of 4 hours.
7.6.3
Annual show
All work done by employees in a district specified from time to time by the Minister by notification published in the Industrial Gazette on the day
appointed under the Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal
city or town, as specified in such notification of such district shall be paid for at the rate of double time and a-half with a minimum of 4 hours.
7.6.4
Double time and a-half
For the purposes of clause 7.6, where the rate of wages is a weekly rate, “double time and a-half” shall mean one and one-half day’s wages in addition to
the prescribed weekly rate, or pro rata if there is more or less than a day.
All time worked on any of the holidays mentioned in clauses 7.6.1, 7.6.2 and 7.6.3 outside the ordinary starting and ceasing times prescribed by this
Award for the day of the week on which such holiday falls shall be paid for at double the rate prescribed by the Award for such time when worked
outside the ordinary starting and ceasing times on an ordinary working day.
7.6.5
Stand down
Any employee, with 2 weeks or more of continuous service, whose employment has been terminated by the employer or who has been stood down by the
employer during the month of December, and who is re-employed in January of the following year, shall be entitled to payment at the ordinary rate
payable to that employee when they were dismissed or stood down, for any one or more of the following holidays, namely, Christmas Day, Boxing Day
and the 1st January (New Year’s Day).
7.6.6
If a public holiday falls on a day on which a shift worker or other full-time rostered worker is rostered off, the employee shall have a day added
to their annual leave or shall be paid a day’s wages in lieu thereof:
7.6.7
Where there is agreement between the majority of employees concerned and the employer, and subject to statutory limitations, other ordinary
working days may be substituted for the public holidays specified in clause 7.6:
Provided further that, where an employee is subsequently required to work on such substituted day, the employee shall be paid the rate
applicable for the holiday that has been substituted.
1418
12 December , 2003
9.1
Training
9.1.1
The parties to this Award recognise that in order to increase the efficiency and productivity of the enterprise and also the national and
international competitiveness of the industries covered by this Award, a greater commitment to training and skill development is required.
Accordingly, the parties commit themselves to:
(a) developing a more highly skilled and flexible workforce;
(b) providing employees with career opportunities through appropriate training to acquire additional skills; and
(c) removing barriers to the use of skills acquired.
10.1
Employees becoming ill
Where employees are injured seriously or fall seriously ill at their work, the employer shall provide means of getting them to the nearest hospital, or pay
expenses of transmission to hospital.
10.2
General conditions
10.2.1
Lockers, etc.
The employer shall provide lockers, hot and cold showers, dressing and dining rooms and, with the co-operation of the employees, keep them in a
sanitary condition.
10.2.2
Hot water
The employer shall provide hot water or facilities for boiling water at meal times.
10.2.3
Rubber boots
Where they are necessary to prevent the feet of the employees from becoming wet, suitable waterproof boots shall be supplied to employees by the
employer free of charge. When not in use, boots shall be stored by the employees as required by the employer.
10.2.4
First aid kits
First aid kits in suitable and secure cases shall be provided at central positions in the works, so as to be at all times readily available for the use of
employees.
10.2.5
Garments to be supplied and laundered
When an employee is required by their employer to wear a washable outer garment, such garment (not exceeding 2 each year) shall be provided and
laundered free of charge by the employer.
10.2.6
Waterproof aprons
Where they are necessary, suitable waterproof aprons shall be supplied to employees free of charge.
Preamble
11.1
Right of entry
11.1.1
(a) An “Authorised industrial officer” is any Union official holding a current authority issued by the Industrial Registrar.
(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union.
11.1.2
Entry procedure
(i)
the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and
(ii)
shows their authorisation upon request.
trespasser.
12 December , 2003
11.1.3
1419
(i) is ineligible to become a member of the Union; or
(ii) is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or
(iii) has made a written request to the employer that the employee does not want that employee’s record inspected.
11.1.4
An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the Union:
(b) any other matter with a member or employee eligible to become a member of the Union, during non-working time.
11.1.5
Conduct
11.2
11.2.1
11.2.2
11.2.3
11.2.4
Schedule 1
List of employers with 2nd Tier Orders which to varying
degrees modify the Provisions of this Award
Name
Case No
The Queensland Dairy Product Manufacturers
Association Inc.
}
}
South Coast Co-operative Dairy Association Ltd
Port Curtis Co-operative Dairy Association
Limited
}
}
.
Date of Order
B4/89
19. 1.89
B201/89
29. 5.89
B244/89
5. 7.89
1420
12 December , 2003
Schedule 2
Structural Efficiency
Pauls Ltd – Second Payment
Trade Union Training Authority Leave
Upon written application by an employee to the employer such application being endorsed by the Union and given to the employer at least one
month in advance, such employee shall be granted up to 5 working days’ leave (non cumulative) on ordinary pay each calendar year to attend
courses and seminars conducted by the Australian Trade Union Training Authority (TUTA).
For the purposes of these provisions “ordinary pay” shall mean at the ordinary weekly rate paid to the employee exclusive of any allowance for
travelling time and fares or shift work.
The granting of such leave shall be subject to the following conditions:
(a)
An employee must have at least 12 months’ uninterrupted service with an employer prior to such leave being granted.
(b)
A maximum of 2 employees per site per year may attend a TUTA course or seminar.
(c)
The provisions shall not apply to a site with less than 10 full-time employees.
(d)
The granting of such leave shall be subject to the convenience of the employer and so that the operations of the employer will not
be unduly affected.
(e)
The scope, content and level of the course shall be such as to contribute to a better understanding of Industrial Relations within
the employer’s operations.
(f)
In granting such paid leave, the employer is not responsible for any additional costs except the payment of extra remuneration
where relieving arrangements are instituted to cover the absence of the employee.
(g)
Leave granted to attend TUTA courses will not incur any additional payment or alternative time off if such course coincides with
the employee’s day off in the 19 day month working arrangements or with any other concessional leave.
(h)
Such paid leave will not affect other leave granted to employees under this Award.
(i)
The employee, after attendance at such training, shall consult with employer representatives as to the relevance and quality of the
course attended.
Dated 9 September 2003.
By the Commission,
[L.S.] E. EWALD,
Operative Date: 3 November 2003
###########################################################################################################################
CEREBRAL PALSY LEAGUE OF QUEENSLAND AWARD
(No. AR224 of 2002)
9 September 2003
AWARD REVIEW
following Award be made, as from 3 November 2003.
CEREBRAL PALSY LEAGUE OF QUEENSLAND AWARD 2003
1.1
Title
This Award is known as the Cerebral Palsy League of Queensland Award 2003.
1.2
Arrangement
Subject Matter
Clause No.
Title.............................................................................................................................................................................................................................1.1
Arrangement ...............................................................................................................................................................................................................1.2
Award Coverage.........................................................................................................................................................................................................1.4
Definitions ..................................................................................................................................................................................................................1.5
Parties Bound .............................................................................................................................................................................................................1.6
12 December , 2003
Subject Matter
1421
Clause No.
Grievance and dispute settling procedures ................................................................................................................................................................3.1
PART 4 – EMPLOYER AND EMPLOYEE’S DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
Redundancy ................................................................................................................................................................................................................4.5
Trainees ......................................................................................................................................................................................................................4.6
Definition of classifications .......................................................................................................................................................................................5.1
Wages .........................................................................................................................................................................................................................5.2
Occupational superannuation .....................................................................................................................................................................................5.3
Salary benefits ............................................................................................................................................................................................................5.4
Payment of wages.......................................................................................................................................................................................................5.5
Allowances .................................................................................................................................................................................................................5.6
Higher duties ..............................................................................................................................................................................................................5.7
Progression between levels ........................................................................................................................................................................................5.8
Hours of work.............................................................................................................................................................................................................6.1
Operation of 38 hour week.........................................................................................................................................................................................6.2
Implementation of 38 hour week ...............................................................................................................................................................................6.3
Procedure for discussions – 38 hour week.................................................................................................................................................................6.4
Meal breaks ................................................................................................................................................................................................................6.5
Rest pauses .................................................................................................................................................................................................................6.6
Overtime .....................................................................................................................................................................................................................6.7
Weekend work............................................................................................................................................................................................................6.8
Recall to work ............................................................................................................................................................................................................6.9
Out of work contact....................................................................................................................................................................................................6.10
Annual leave...............................................................................................................................................................................................................7.1
Sick leave ...................................................................................................................................................................................................................7.2
Family leave ...............................................................................................................................................................................................................7.5
Public holidays ...........................................................................................................................................................................................................7.6
Travel and motor vehicle allowances.........................................................................................................................................................................8.1
Commitment to training and careers..........................................................................................................................................................................9.1
Occupational health and safety ..................................................................................................................................................................................10.1
Right of entry..............................................................................................................................................................................................................11.1
Time and wages record ..............................................................................................................................................................................................11.2
Union encouragement ................................................................................................................................................................................................11.3
Posting of Award........................................................................................................................................................................................................11.4
1.3
Date of operation
This Award takes effect from 3 November 2003.
1.4
Award coverage
1.4.1
Without limiting the generality of clause 1.4, this Award shall apply to the Cerebral Palsy League of Queensland as employer, The Australian
Workers’ Union of Employees, Queensland, the Queensland Services, Industrial Union of Employees, the Australian Municipal, Administrative,
Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees and the employers’
employees for whom classifications and rates of pay are prescribed by this Award, employed in or in connection with or incidental to the
provision of services or assistance associated with support for persons with a disability to maintain an independent lifestyle that is socially
valued in the community in the least restrictive manner and no other award shall apply:
1422
12 December , 2003
1.4.2
This Award shall not apply to fund raisers employed by the League.
1.4.3
This Award shall not apply to employees covered by the Hospital Nurses’ Award – State 2003.
1.5
Definitions
1.5.1
1.5.2
1.5.3
“Shift Work – (other than continuous shift work)” means work regularly rotated in accordance with a roster which prescribes 2 or more shifts
(day, afternoon or night) per day, but does not cover a 24 hour per day operation over a 7 day week.
The above definition shall refer to a Category B employee only.
1.5.4
1.6
“Union” means The Australian Workers’ Union of Employees, Queensland, the Queensland Services, Industrial Union of Employees or the
Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch,
Union of Employees.
Parties bound
This Award is legally binding upon the employees as prescribed by 1.4 and their employers, and The Australian Workers’ Union of Employees,
Queensland, the Queensland Services, Industrial Union of Employees and the Australian Municipal, Administrative, Clerical and Services Union, Central
and Southern Queensland Clerical and Administrative Branch, Union of Employees and their members.
2.1
2.1.1
2.1.2
2.1.3
Any proposed genuine agreement reached between the employer and employee/s in the enterprise is contingent upon the agreement being
3.1
employees.
3.1.1
alleged actions of the immediate supervisor the employee/s may bypass this level in the procedure.
3.1.2
3.1.3
3.1.4
If the grievance or dispute is still unresolved after discussions mentioned in clause 3.1.2, the matter shall, in the case of a member of a Union, be
reported to the relevant officer of that Union and the senior management of the employer or the employer’s nominated industrial representative.
An employee who is not a member of a Union may report the grievance or dispute to senior management or the nominated industrial
representative. This should occur as soon as it is evident that discussions under clause 3.1.2 will not result in resolution of the dispute.
3.1.5
3.1.6
3.1.7
3.1.8
3.1.9
dispute.
3.1.10
12 December , 2003
1423
4.1
4.1.1
Employees covered by this Award shall be advised in writing of their employment category upon appointment.
(a) full-time;
(b) part-time (as defined); or
(c) casual (as defined).
(d) fixed term.
4.1.2
An employee, other than a casual, upon commencement may be engaged for a probationary period of up to 3 months.
A probationary review shall be completed by the employer mid-way through the probationary period, where feedback on the work performance
of the probationary employee will be given. Where areas of unsatisfactory work performance are identified, the probationary employee will be
made aware of these, the standard that is required of the probationary employee, and the dates by which satisfactory performance is required to
be achieved by the probationary employee.
4.1.3
An employee not specifically engaged on a part-time or casual basis shall be a full-time employee entitled to weekly benefits.
4.1.4
Full-time employees
An employee not specifically engaged on a part-time or casual basis shall be a full-time employee entitled to weekly benefits. Wherever permanent
employee is referred to in this Award it means full-time employee/employment where appropriate.
4.1.5
Part-time employee
(a) A part-time employee is a person engaged to work on a regular basis.
(b) Unless there is an expressed agreement to the contrary between the employer and the employee, the hours of a part-time employee shall be
no less than 15 hours per week with a minimum of daily engagement of 2 hours, provided that the hours worked are less than an average of
38 hours per week. The employer shall advise the relevant Union in writing where the hours of work for a part-time employee are less than
15 hours per week.
(c) A part-time employee shall be paid for each hour worked during ordinary working hours at 1/38th of the weekly rate prescribed by this
Award.
(d) A part-time employee shall be entitled to other provisions of this Award, which will apply on a pro rata basis.
(e) The normal working hours of a part-time employee may be changed by mutual agreement between the employee and the employer. Clause
4.1.5(e) applies to meet short-term requirements of either party.
4.1.6
Casual employees
(a) A casual employee should be engaged on an irregular basis and paid by the hour.
(b) A casual employee for working ordinary time shall be paid 1/38th of the weekly rate prescribed by this Award plus a loading of 23% in lieu
of annual leave, sick leave and public holidays.
(c) Payment for casual employees working overtime or on public holidays are as specified in this Award.
(d) Casual employees shall be paid for a minimum of one hour for each period of employment.
4.1.7
Fixed term employee
(a) An employee may be engaged on a fixed-term contract, or on a fixed-project contract.
(i)
A fixed-term agreement operates for a specific period of time, as agreed between the parties prior to engagement. At the end of the
specified period, the agreement and the employment of the individual is terminated.
(ii)
A fixed-project agreement operates for the duration of a specified work task, or range of tasks, as agreed between the parties prior to
engagement. Once the task(s) is completed, the agreement and the employment of the individual is terminated.
(iii)
A Fixed term employee may be engaged to work on either a weekly or part-time basis.
(iv)
When offering employment on a fixed term basis, the employer shall advise the employee in writing of the temporary nature of the
employment, the actual or expected duration of employment, and that employment beyond the period is not expected.
(v)
If a fixed term employee is subsequently appointed to a permanent position with the employer, any period of the fixed term contract
completed immediately prior to the commencement of the permanent position shall be recognised as service with the employer for
calculating leave entitlements, provided that the employee has not taken to receive payment in lieu of those leave entitlements.
(vi)
A fixed term employee shall not be employed to fill a position previously held by a permanent employee except under circumstances
specified in clause 4.1.7(a)(i).
1424
12 December , 2003
4.2
Anti-discrimination
4.2.1
It is the intention of the parties to this Award to prevent and eliminate discrimination as defined by the Anti-Discrimination Act 1991 and the
belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of the above
attributes;
4.2.2
Accordingly in fulfilling their obligations under the grievance and disputes settling procedure in clause 3.1, the parties to this Award must take
4.2.3
4.2.4
Nothing in 4.2 is to be taken to affect:
(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; or
(b) an employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and
4.3
4.3.1
The employer shall, in the event of termination of employment, provide upon request to the employee who has been terminated a written statement
4.3.2
Period of Notice
more than 5 years .................................................................................................. 4 weeks
(e) The period of notice in clause 4.3.2(a) shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal,
or in the case of casual, or seasonal employees, or to employees on daily hire, or employees engaged for a specific period of time or for a
specific task or tasks.
4.3.3
(a) The notice of termination required to be given by an employee shall be the same as that required of an employer, save and except that there
shall be no additional notice based on the age of the employee concerned.
(b) If any employee fails to give notice, the employer shall have the right to withhold moneys due to the employee with a maximum amount
equal to the ordinary time rate of pay for the period of notice.
4.4
4.4.1
changes and the relevant Union/s.
(b) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employers workforce or
in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining
or transfer of employees to other work or locations and the restructuring of jobs:
Provided that where this Award makes provision for alteration of any of the matters referred to in clause 4.4.1 an alteration shall be deemed
not to have significant effect.
12 December , 2003
4.4.2
1425
(a) The employer shall discuss with the employees affected and the relevant Union/s, inter alia, the introduction of the changes referred to, the
effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.
(c) For the purpose of such discussion, the employer shall provide in writing to the employees concerned and the relevant Union/s, all relevant
information about the changes including the nature of the changes proposed, the expected effects of the changes on employees, and any
other matters likely to affect employees:
4.5
Redundancy
4.5.1
employer shall hold discussions with the employees directly affected and where relevant, their relevant Union/s.
and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to
mitigate the adverse effects of any terminations of the employees concerned.
(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their
relevant Union/s, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number
and categories of employees likely to be affected, the number of workers normally employed and the period over which the terminations are
likely to be carried out
4.5.2
Where an employee is transferred to other duties for reasons set out in clause 4.5.1, the employee shall be entitled to the same period of notice of transfer
the employee would have been entitled to pursuant to clause 4.3.2 if the employee’s employment had been terminated, and the employer may, at the
4.5.3
(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.5.1, the employee shall be allowed up to
one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
4.5.4
4.5.5
Severance pay
Severance Pay
1 year or less
nil
4.5.6
1426
4.5.7
12 December , 2003
An employee whose employment is terminated for reasons set out in clause 4.5.1 may terminate such employment during the period of notice, and, if so,
shall be entitled to the same benefits and payments under clause 4.5 had such employee remained with the employer until the expiry of such notice:
4.5.8
The employer, in a particular case, may make application to the Commission to have the general severance pay prescription amended if the employer
4.5.9
Employees with less than one year’s service
Clause 4.5 shall not apply to employees with less than one years’ continuous service and the general obligation on the employer should be no more than
to give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to
4.5.10
Employees exempted
(b) to employees engaged for a specific period of time or for a specified task or tasks; or
4.5.11
Employer’s exempted
Subject to an order of the Commission, in a particular redundancy case, clause 4.5 shall not apply where the employer employs less than 15 people.
4.5.12
Incapacity to pay
The employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription amended on the
4.6
Trainees
Trainees are engaged under this Award, except as amended from time to time by the Order for Apprentices’ and Trainees’ Wages and Conditions
(Excluding Certain Queensland Government Entities).
4.7
In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act as amended from time
to time.
5.1
Definition of classifications
5.1.1
League level 1 – work level descriptor and characteristics
(a) Works under regular supervision with monitoring, initially closely supervised.
(b) Routine tasks, operating within established procedures/standards and guidelines.
(c) Application of knowledge and skills to a well defined range of routine tasks/activities.
(d) Exercise limited discretion, solve minor problems occurring in course of duty within guidelines.
(e) Instruction/assistance readily available.
(f) Follows plans – participates in input to plans.
(g) No supervision of staff/volunteers.
(h) Knowledge and skills are applied requiring time management, basic numeracy/communication/accuracy attention to detail, for example:
(i)
(ii)
(iii)
(iv)
personal care support in clients own home or with families,
undertake courier & mobility activities,
perform straightforward processing activities such as data entry,
maintain filing and records systems.
(i) Tasks require knowledge of personal care /technology/automotive movement/ basic office/clerical skills, for example:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
range of housekeeping duties, meal preparation and personal hygiene,
assist with clients’ daily activities in centre based/residential or community settings or in-house transport settings,
collate, photocopy and despatch documentation,
arrange appointments, travel and meetings,
handle straightforward courier and telephone enquiries,
provide reception and switchboard support.
(j) On the job training and development of skills.
12 December , 2003
5.1.2
1427
Skills and abilities
(a) Communicate effectively with immediate work team/work area/individual, convey straightforward information to a range of people and act
on feedback constructively.
(b) Work with and adapt to a diverse range of people with different life styles and work styles.
(c) Show a supportive and cooperative approach to interaction with others in line with League values.
(d) Focus on the needs of clients and provide quality service.
(e) Apply feedback to improve performance.
(f) Exercise judgment within clearly established tasks and routines.
(g) Set priorities for task completion on a daily basis within well defined procedures.
(h) Make choices between a range of options within established procedures/standards and guidelines.
(i) Perform tasks that are self-contained within established routines.
5.1.3
(a) Positions at this level require performance over a range of tasks/assignments with an element of complexity under regular supervision.
(b) Provide assistance/guidance as part of team to other employees (Level 1) and volunteers on routine tasks.
(c) Involves the application of knowledge and skills to a range of routine tasks and activities.
(d) Knowledge and skills are applied requiring judgment, initiative, problem-solving within defined guidelines also may include
accuracy/precision/quality control, for example:
(i)
(ii)
(iii)
(iv)
(v)
Contribute to resolving matters outside defined guidelines,
responsibility for outcomes within individual program plans,
may be responsible for a specific function,
prepare routine correspondence,
undertake routine clerical processes.
(e) Tasks require broader and more in depth knowledge of work functions, programs and procedures for work area/office/clerical
skills/technology, for example:
(i)
(ii)
(iii)
(iv)
5.1.4
support to clients accessing centre based and community activities(for example, TAFE, social events) including personal care,
problem solving around regular activities and participation in specific projects
handle general telephone/counter enquiries
estimate, requisition and manage office supplies for a work area
clerical support to specific projects
Skills and Abilities
(a) Communicate and liaise with specific client groups and team/work area/individual members.
(b) Work with and adapt to a diverse range of people and act sensitively in interactions with others.
(c) Provide quality service by focusing on the needs of clients, including the interpretation of needs and appropriate responses.
(d) Provide input in the development of procedures when no procedures or guidelines exist.
(e) Set priorities for task completion, on a daily/weekly basis and manage competing priorities with supervision..
(f) Assist to identify and act on self development needs.
(g) Provide advice/information to client groups other staff and volunteers on established procedures and guidelines with an emphasis on
accuracy and quality service.
(h) Draw on a range of information to influence decision making, interpretations and advice to work group and clients.
(i) Show a supportive and cooperative approach.
5.1.5
League Level 3 – work level descriptor and characteristics
(a) Involves the application of knowledge and skills sufficient to work under general direction individually or as members of a team.
(b) Provide direction, support, including training (on the job) to employees of lower classification and volunteers as required.
(c) Knowledge and skills requiring accuracy, quality control, some specialist knowledge or technical competence, for example in training/office
technology.
(d) Develop and implement individualised, community-based service for a specific client/s under general direction.
(e) Under direction provide development related support to people involved in employment activities; support to clients in centre based and
community employment settings.
1428
12 December , 2003
(f) May provide or assist with either on the job or structured training for clients.
(g) Knowledge of administrative skills, area priorities, related work area functions, for example:
(i) Plan work flow, coordinate and provide allocated administrative support,
(ii) undertake a range of more complex software application work, spreadsheets, desktop publishing to required standard.
(h) May undertake a range of routine and some complex financial and administrative tasks requiring knowledge of League policies and
procedures.
5.1.6
(a) Effectively communicate and liaise with specific client groups and team/work area/individual members.
(b) Work with and adapt to a diverse range of people.
(c) Focus on the needs of clients and provide quality service.
(d) Effectively handle sensitive interactions with others and to participate in team/work area/individual building activities in the immediate
work area.
(e) Handle flexibly priorities within a team/work area/individual environment.
(f) Provide constructive feedback to improve team/work area/individual or work area performance.
(g) Effectively receive feedback to improve performance.
(h) Identify and set priorities for own work and others.
(i) Identify and act on self-development needs.
(j) Suggest different ways of approaching tasks/assignments and improving work performance.
(k) May coordinate activities or tasks of others; work independently to complete specific assignments and projects and set priorities.
(l) Make decisions on a regular basis within broad precedents and guidelines
(m) Resolve more difficult problems within established precedents.
(n) Display a supportive and cooperative approach.
(o) Application of knowledge of adult learning and vocational training skills.
5.1.7
League level 4– work level descriptor and characteristics
(a) Positions at this level require performance of a range of tasks/assignments with an element of complexity and are carried out with limited
supervision.
(b) Knowledge and skills are applied requiring quality control, accuracy, precision, for example:
(i)
(ii)
(iii)
develop and oversee the activities of a household including the oversight of the team of staff,
provide advice to staff and managers on reasonably complex administrative matters,
support adults, children and their families to have opportunities for valued and inclusive lifestyles through the provision of individual
and family counselling, group work, community development, networking and advocacy.
(c) Tasks require broad, in depth knowledge of League policies and procedures relevant to the program, work area, for example:
(i)
(ii)
(iii)
undertake a range of complex processing actions using the Division’s/Regions systems,
prepare financial, administration, library or human resource reports for senior staff,
assessment, evaluation, intervention and strategies developed with adults, children and their families that will assist them to reach
their goals and potential.
(d) Provision of vocational assessment and support to clients in related goal setting, job seeking and matching and establishment of programs
in the workplace.
(e) Co-ordination of work area functions including staff rosters, and oversight of training; with support from senior staff, interpretation and
implementation of policy and procedures; support in development and implementation of individual client plans.
(f) Provide a social work service as part of an interdisciplinary team to adults and/or children.
(g) Preparation of correspondence and documentation and assist in policy development.
(h) May be required to undertake a range of routine on the job or structured training.
(i) Undertake team/work area/individual leadership or supervisory roles.
(j) Positions at this level will require general guidance from senior staff/management.
(k) Maintenance of case notes and report writing in line with documentation guidelines.
(l) Adhere to relevant professional standards and guidelines as per shared and discipline specific standards.
12 December , 2003
5.1.8
1429
(a) Effectively communicate with team/work area/individual members and client groups and families.
(b) Work with a diverse range of people and handle differing approaches to work and expressed opinions.
(c) Interpret needs and responses and to act sensitively in interactions with others.
(d) Represent and promote the corporate values and directions of the League.
(e) Draw on a range of information (particularly League policy and procedures) to influence decision making, interpretations and advice to
work groups and clients and families.
(f) Perform tasks that require interpretation of guidelines and procedures.
(g) Promote ideas and solutions clearly.
(h) Distinguish sensitive information and handle such information with discretion and confidentiality.
(i) Provide written and oral information.
(j) Take initiative to learn more about current developments in professional area and/ or relevant work area.
(k) Exercise awareness when making and implementing decisions that affect others.
(l) Apply feedback in relation to individual performance and/ give constructive feedback to others to improve performance.
(m) Set priorities in a team/work area/individual environment and distribute tasks in an equitable manner.
(n) Participate in team/work area/individual discussions to achieve solutions/options/outcomes.
(o) Take responsibility for, and act on, own professional self-development.
(p) Application of knowledge of adult learning and vocational training skills.
5.1.9
(a) Co-ordinate team/range of activities and resources to achieve service outcomes in line with broad directions and supervision from regional
and senior staff/management.
(b) Involves the broad application of skills and knowledge with depth in some areas.
(c) Involves performance over a range of tasks with an element of complexity.
(d) Member of a management team with a coordination role.
(e) Preparation of correspondence, review agreements and documentation and assist with policy development.
(f) Develop strategies when implementing policy and procedures.
(g) Contribute to development of policies and procedures.
(h) Coordinate, develop, implement and evaluate specific service delivery components.
(i) Undertake research and analysis to develop action plans and assist in preparation of reports e.g the development and implementation of new
and revised practices within the work area.
(j) Editing and drafting publications e.g. prepare and design layout of publications.
(k) Responsibility for interaction with the service users to ensure program is delivered consistent with the League’s mission and values.
(l) Prepare and administer unit budget.
(m) Provide on-the-job training or structured training.
(n) Positions at this level involve the self-directed application of knowledge with substantial depth in some areas, and a range of technical and
other skills to tasks, roles and function in both varied and highly specific context.
(o) Maintenance of case notes and report writing in line with documentation guidelines.
(p) Adhere to relevant professional standards and guidelines as per shared and discipline specific standards.
5.1.10
(a) Represent and promote the corporate values and directions of the League.
(b) Effectively communicate with team/work area/individual members and client groups and family on complex or sensitive matters.
(c) Work with a diverse range of people and handle differing approaches to work.
1430
12 December , 2003
(d) Interpret and act on the needs and responses and interact sensitively with others.
(e) Gain commitment and motivate others in the immediate work team to achieve outcomes.
(f) Perform tasks that require interpretation of policy guidelines or procedures.
(g) Set procedures for work team/individual environment and distribute tasks in a fair and consistent manner.
(h) Take responsibility for, and act on own professional self development
(i) Demonstrate flexibility in handling competing priorities and display initiative to complete tasks.
(j) Provide advice/information which may influence the actions of others or outcomes of work areas.
(k) Identify the need for change and assist in implementation.
(l) Distinguish sensitive information and handle such information with discretion and confidentiality.
(m) Exercise sensitivity and awareness when making decisions that affect others.
(n) Application of knowledge of adult learning and vocational training skills.
(o) Achieve desired outcomes through sound liaison, facilitation and negotiation skills.
5.1.11
(a) Limited direction from regional and senior staff/management (in line with a broad operational/regional/League strategy).
(b) Requirement to apply significant specialist knowledge and ethical expertise in a range of areas such as; liaison and negotiation, develop,
review, interpret and implement policies and legislation.
(c) Provide leadership and management including establishing priorities and work plans for a significant and complex work area or team (
delivering core functions).
(d) Responsible for advanced level of service activity.
(e) Exercise initiative, judgement to defined operational policies/procedures.
(f) Responsible for project and functions required to establish service outcomes consistent with organisational goals.
(g) Specialists required to work to provide multidisciplinary advice, leadership and consultation on matters of competency in work area.
(h) Understanding of the delegations applicable to the level and exercising those appropriately.
(i) Deliver on-the-job or structured training for team/work area/ professional group/ individual members.
(j) Represent organisation on committees/working parties.
(k) Policy development and review.
5.1.12
(a) Effectively communicate with team/ work area/ individual members and client groups on complex or sensitive matters.
(b) Achieve desired outcomes through sound liaison, facilitation and negotiation skills.
(c) Gain the commitment and motivate others in the immediate work area to achieve outcomes.
(d) Represent and promote the League’s mission and values.
(e) Provide quality written and oral information of a more complex or sensitive nature.
(f) Identify need for change and implement change.
(g) Exercise sensitivity and awareness when making decisions that affect others.
(h) Flexibly manage competing priorities and workloads and display initiative in completion of work plans.
(i) Identify, promote and meet complex team/ work area/ individual goals within the context of the organisational operation.
(j) Exercise judgement, with limited guidance, when no precedents or guidelines exist.
(k) Set priorities in a team/work area/individual environment.
(l) Actively update knowledge to maintain currency of knowledge, values and skills.
12 December , 2003
1431
(m) Provide mentoring and coaching support to less experienced staff.
(n) Share accountability for the decisions taken without necessarily being responsible for final authorisation.
(o) Present reasoned and researched conclusions on complex issues.
(p) Set high internal work standards.
5.1.13
(a) Operate under broad guidance from regional and senior staff/management thus requiring high levels of initiative and the ability to work
autonomously to achieve results.
(b) Positions at this level are accountable for achieving outcomes in line with corporate goals of diverse, significant and complex operations.
(c) Formulation, establishment and review of programs and service delivery models (e.g. formulate and coordinate management related policy).
(d) Provide leadership, management and direction for a range of diverse, significant and complex functions to achieve League outcomes e.g
participate in planning and setting work area objectives; monitor, analyse and provide reports on area resources (human and financial).
(e) May manage specialist complex projects or have responsibility for an area of a complex nature.
(f) Self directed application of knowledge and skills with substantial depth in a range of activities within varied or specific contexts.
(g) Requires a high level of understanding of operational, legislative, professional and technical matters.
(h) Required to apply significant and specialist knowledge, technical and managerial expertise (e.g. complex liaison and negotiation, significant
level of resources).
(i) May be required to lead teams, allocate and manage significant level of resources and deliver timely and quality outcomes.
(j) Supervision of and responsibility for a professional discipline within the organisation and in line with professional standards.
(k) Organising and overseeing professional direction and development of specific discipline within the organisation.
(l) Undertake and direct research relevant to discipline or work area.
5.1.14
(a) Undertake external liaison, professional contact, research and networking activities.
(b) Achieve desired outcomes by advanced liaison, facilitation and negotiation skills.
(c) Define and communicate expectation of work area to senior management and staff.
(d) Actively update knowledge on current developments and trends within the organisation professionally and externally.
(e) Solve new or unique problems and develop new systems and products.
(f) Identify need for change and implement change.
(g) Actively promote and apply league values.
(h) Demonstrate flexibility and adaptability in different situations.
(i) Set high internal work standards.
(j) Promote and apply ideas, innovations and proposed improvements in the work area or for wider League application.
(k) Provide and receive constructive feedback displaying openness, respect and honesty.
(l) Represent the League in a professional manner when required.
(m) Represent relevant profession/work area within broader disability community networks/working parties.
(n) Provide mentoring and coaching support to team/work area/individuals and motivate staff.
(o) Work Level Descriptor and Characteristics through the use and allocation of resources within the constraints laid down by senior
management (may include Regional Manager).
(p) Be accountable for decisions taken but may not be responsible for final authorisation.
5.1.15
Social workers
All employees who are employed as a Social Worker shall commence on Level 4.3 and continue through by annual increments to Level 5.3.
1432
5.2
Wages
5.2.1
Wages
Levels
12 December , 2003
Rates of Pay per annum
Category A
$
Category B
$
Level 1
Paypoint 1 ................................................................................................27,095.00
Paypoint 2 ................................................................................................27,676.00
Paypoint 3 ................................................................................................28,252.00
29,394.00
30,033.00
30,448.00
Level 2
Paypoint 1 ................................................................................................28,811.00
Paypoint 2 ................................................................................................29,789.00
Paypoint 3 ................................................................................................30,520.00
31,063.00
32,138.00
32,942.00
Level 3
Paypoint 1 ................................................................................................30,520.00
Paypoint 2 ................................................................................................30,961.00
Paypoint 3 ................................................................................................31,518.00
32,942.00
33,542.00
34,155.00
Level 4
Paypoint 1 ................................................................................................32,621.00
Paypoint 2 ................................................................................................33,724.00
Paypoint 3 ................................................................................................34,827.00
Level 5
Paypoint 1 ................................................................................................36,648.00
Paypoint 2 ................................................................................................38,473.00
Paypoint 3 ................................................................................................41,107.00
Level 6
Paypoint 1 ................................................................................................42,045.00
Paypoint 2 ................................................................................................43,352.00
Paypoint 3 ................................................................................................46,117.00
Level 7
Paypoint 1 ................................................................................................48,280.00
Paypoint 2 ................................................................................................49,580.00
Paypoint 3 ................................................................................................50,880.00
Category A wage rates have included a weekend penalty but excludes clause 6.1.2(c).
Category B wage rates have included a weekend penalty rate excluding the allowance prescribed in clause 6.1.2(c), and a shift work allowance.
5.2.2
Safety net adjustment
NOTE: The rates of pay in this Award are intended to include the arbitrated wage adjustment payable under the 1 September 2003 Declaration
of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the Vice President.]
This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions
of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable
pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to
give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise
agreements, are not to be used to offset arbitrated wage adjustments.”.
5.3
Occupational superannuation
5.3.1
The superannuation provisions for all employees covered by this Award shall be in accordance with the Declaration of General Ruling handed
down by the Full Bench of the Commission and contained in 124 QGIG 501:
Provided that for each employee the employer shall contribute a sum in accordance with the provision of the Superannuation Guarantee Charge.
This sum is to be paid to an approved superannuation scheme, retrospective to that date of the employee’s appointment:
Provided further that the contributions shall be made into a nominated fund agreed between the employer and the Unions.
5.4
Salary benefits
5.4.1
Notwithstanding the annual salary rates in clause 5.2, where agreed between the employer and an employee, the employer may introduce
remuneration packaging in respect of salary (including any negotiated salary allowable) and the terms and conditions of such a package shall not,
when viewed objectively, be less favourable than the entitlements otherwise available under this Award and shall be subject to the following
provisions:
(a) the employer shall ensure that the structure of any agreed package complies with taxation or other relevant laws;
(b) the employer shall advise the employee, in writing, that all Award conditions, other than the salary (including any negotiated salary
allowable) shall continue to apply;
12 December , 2003
1433
(c) the agreement, the terms and conditions of which shall be in writing and signed by both the employer and employee, shall detail the
components of the total remuneration package for the purpose of this agreement;
(d) a copy of this Award shall be given to the employee, and the employee shall be given adequate opportunity to consult with the relevant
Unions;
(e) the configuration of the remuneration package shall remain in force for the period agreed between the employee and the employer;
(f) where at the end of the agreed period the full amount allocated to a specific benefit has not been utilised, by agreement between the
employer and the employee, any unused amount may be carried forwarded to the next period or paid as salary which will be subject to usual
taxation requirements; and
(g) notwithstanding any of the above arrangements, the employee may cancel any salary arrangements by giving one month’s notice of
cancellation or the employer may give the employee 3 months’ notice of termination.
5.5
Payment of wages
5.5.1
Unless there is an express contract to the contrary, wages shall be paid fortnightly. The payment of wages shall be by electronic funds transfer
or in exceptional circumstances, by cheque.
5.5.2
Wages shall be paid during working hours on a week day not being more than 4 working days following the end of the pay period, except where
exceptional circumstances exists. The pay day selected, once agreed, must not be changed without the agreement of a majority of the
employees.
5.5.3
Upon termination of employment, wages due to an employee shall be paid to the employee on the day of such termination or forwarded to the
employee by post on the next working day, or as mutually agreed by the employer and employee.
5.5.4
Casual employees shall be paid on the same day as all other employees.
5.5.5
Rostered day off – payment of wages
In the event that an employee by virtue of the arrangement of the employee’s ordinary working hours is rostered off duty on a day which
coincides with pay day such employee shall be paid not later than the working day immediately following such pay day.
5.6
Allowances
5.6.1
Sleepover
An employee undertaking a sleepover shall be paid an allowance of $49.06 per sleepover. Sleepovers shall, wherever possible, be undertaken
either before or after a shift or shifts. A sleepover shall not exceed 8 hours.
5.6.2
In the event an employee on a sleepover is required to provide unplanned active time for a consumer, the employee shall report this occurrence
to their supervisor and provide details of same on their timesheet. The duration for any active time shall be subject to negotiations between the
employer and employee.
5.6.3
In the event extra active time is anticipated by management for a consumer, planning the duration of active time during a sleepover will be
negotiated between the employer and the employee concerned in advance.
5.6.4
Payment for active time shall be based on the employees ordinary hourly rate.
5.7
Higher duties
5.7.1
An employee who is called upon by the employer to perform the duties of another employee in a higher classification under this Award for 5
consecutive working days or more shall be paid for the period for which duties are assumed at a rate of not less than the minimum rate
prescribed for the higher classification:
Provided that in cases where the minimum rate of the higher classification is the same as the relieving employee’s current salary, the relieving
employee shall be paid at the higher classification at the first salary level above their classification salary.
5.8
Progression between levels
5.8.1
Except as provided for in clause 5.1.15, progression from one level to the next level shall be dependent upon the employee satisfying the
requirements outlined in each level.
5.8.2
An employee shall not move from paypoint to the next paypoint within the classification level until:
(a) In the case of a full-time employee such employee has received such salary/wage for a period of 12 months;
(b) Notwithstanding anything contained in clauses 5.8.1 and 5.8.2, no employee shall be entitled to receive salary payment/wage level
movements by virtue of this Award if after undergoing a formal counselling process in accordance with this Award, it was deemed that their
performance was not satisfactory.
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEK-END WORK
6.1
Hours of work
6.1.1
Subject to clause 6.3 (Implementation of a 38 hour week) the ordinary hours of work shall be an average of 38 hours per week, Monday to
Sunday, worked between 6.00 a.m. and 8.00 p.m.
1434
6.1.2
12 December , 2003
The spread of hours prescribed in clause 6.1 may be altered as to all or a group of employees if there is agreement between the employer and the
majority of employees directly affected:
Provided that for work (other than shift work) performed outside the hours 6.00 a.m. to 8.00 p.m. employees shall be paid:
(a) a loading of 15% on their ordinary rate of pay for work performed beyond their spread of hours and 12.00 midnight Monday to Friday
inclusive.
(b) a loading of 20% on their ordinary rate of pay for work performed between the hours of 12.00 midnight and the commencement of their
spread of hours between midnight Sunday and their designated start time on Friday.
(c) a loading of 35% of their ordinary time rate of pay for work performed outside of the spread of 6.00 a.m. and 8.00 p.m. on Saturday and
Sunday:
Provided that the loadings in clauses 6.1.2(a) and 6.1.2(b) shall not have application to a Category B employee.
6.1.3
The ordinary starting and finishing times of an employee or employees may be staggered, provided that there is agreement between the employer
and the majority of employees directly affected.
6.1.4
The ordinary hours of work provided in clause 6.1 shall not exceed 10 hours on any day.
6.1.5
Employees may be rostered to work 10 out of each 14 day cycle. Within each 14 day cycle an employee will be rostered off for 4 days of which
no less than 2 whole days shall be consecutive:
Provided that other forms of days off may be arranged where there is mutual agreement between the employer and the individual(s) concerned.
6.1.6
No employee other than in the circumstances provided for in clause 6.1.1 will be rostered for duty beyond a maximum of 6 consecutive days
without a rostered day off.
6.1.7
All work done by the employee on a rostered day off is to be deemed overtime and to be paid for at the rate of double time in addition to the
prescribed weekly rate.
6.2
Operation of 38 hour week
The ordinary hours of work for employees (other than casual and part-time employees) shall be an average of 38 hours per week to be worked on one of
the following bases:
(a) 38 hours within a work cycle not exceeding 7 consecutive days.
(b) 76 hours within a work cycle not exceeding 14 consecutive days.
(c) 114 hours within a work cycle not exceeding 21 consecutive days.
(d) 152 hours within a work cycle not exceeding 28 consecutive days.
6.3
Implementation of a 38 hour week
6.3.1
The 38 hour week shall be implemented on one of the following bases, most suitable to each location, after consultation with, and given
reasonable consideration to the wishes of, the employees concerned:
(a) by employees working less than 8 ordinary hours each day; or
(b) by employees working less than 8 ordinary hours on one or more days each work cycle; or
(c) by fixing one or more work days on which all employees will be off during a particular work cycle; or
(d) by rostering employees off on various days of the week during a particular work cycle, so that each employee has one work day off during
that cycle.
6.3.2
Subject to the provisions of clause 6.3, the ordinary hours of work may exceed 8 on any day, thus enabling more than one work day to be taken
off during a particular work cycle.
6.3.3
Notwithstanding any other provision in clause 6.3, where the arrangement of ordinary hours of work provides for an accrued day off, those
accrued days off shall be banked. The accrued days off so banked shall be taken in minimum blocks of 5 consecutive days or alternatively taken
in conjunction with annual leave.
Accrued days off held in credit at the date of any termination of the employee shall be paid in full as wages.
6.3.4
Where practicable, an accrued day off shall either be banked or otherwise arranged so as not to fall on days on which an employee is required to
attend consumer training.
6.3.5
Where such accrued days off falls on a public holiday, the following day may be taken where practicable in lieu thereof or the employee and the
employer may agree to an alternative day off duty as substitution.
6.3.6
Each day of paid leave taken (not including annual leave, long service leave) and any public holiday occurring during that cycle of 4 weeks shall
be regarded as a day worked for accrual purposes.
6.3.7
Different methods of implementation of the 38 hour week may apply to individual employees, groups or sections of employees in each location
concerned.
12 December , 2003
1435
6.4
Procedure for discussions – 38 hour week
6.4.1
The employer and all employees concerned in each establishment shall consult over the most appropriate means of implementing and working a
38 hour week.
6.4.2
The object of such consultation shall be to reach agreement on the method of implementing and working the 38 hour week in accordance with
clause 6.3.
6.4.3
The outcome of such consultation shall be recorded in writing.
6.4.4
Notwithstanding the consultative procedures outlined above, and notwithstanding any lack of agreement by employees, the employer shall have
the right to make the final determination as to the method by which the 38 hour week is implemented from time to time.
6.4.5
After implementation of the 38 hour week, upon giving 7 days’ notice, or such shorter period as may be mutually agreed upon, the method of
working the 38 hour week may be altered, from time to time, following negotiations between the employer and employees concerned, utilising
the foregoing provisions of clause 6.4, including clause 6.4.4.
6.5
Meal breaks
6.5.1
Not less than 30 minutes shall be allowed for each meal and meal times shall fall between the 4th and 6th hours of duty.
6.5.2
Such meal breaks shall be taken at such times as will not interfere with the continuity of work where continuity is necessary.
6.5.3
Notwithstanding the provisions of clause 6.5.1, where an employee is required by the employer to have a meal with a client or clients as part of
the normal work routine or client program the employee shall be paid for the duration of the meal period at the ordinary rate of pay.
However, an employee may elect to take an unpaid meal break as prescribed in 6.5.1 before or after the meal period. If the employee so elects
not to have a meal break, all ordinary hours after the meal period shall be paid at the ordinary rate of pay.
6.5.4
By agreement, a part-time employee, may forego these unpaid meal breaks provided that the employee must take an unpaid meal break on any
day in which the employee work more than 6 hours continuously.
6.6
Rest pauses
6.6.1
All employees covered by this Award who work a minimum of 4 consecutive ordinary hours shall be entitled to a rest pause of 15 minutes’
duration in the employer’s time.
6.6.2
Employees covered by this Award who work a minimum of 8 consecutive ordinary hours on any one day shall be entitled to a rest pause of 15
minutes’ duration in the first and second half of the day.
6.6.3
Such rest pauses shall be taken at such times as will not interfere with the continuity of work where continuity is necessary.
6.7
Overtime
6.7.1
Entitlement to payment for overtime
(a) A full-time employee shall be entitled to overtime where the employee works more than 152 hours in any 28 day period or where the
employee works more than 10 hours in any one day or where the employee works outside of the spread of ordinary hours on weekends in
accordance with clause 6.1.
(b) A part-time employee shall be entitled to overtime where the employee works in excess of their prescribed hours of duty provided that
overtime shall not be paid where the employer and employee have agreed to a temporary amendment of working hours under the
arrangements specified in clause 4.1.5 in which case overtime shall apply for work in excess of the mutually agreed amended working
hours. A part-time employee shall be entitled to overtime if the employee work in excess of 38 hours in any one week or more than 10
hours in any one day.
(c) A casual employee shall be entitled to overtime where the employee works outside of the ordinary spread of hours specified in clause 6.1
and/or where the employee works more than 38 hours in any week or more than 10 hours in any day.
6.7.2
All time worked in excess of the ordinary working hours or outside of the spread of hours shall be deemed to be overtime and shall be paid for at
the rate of time and a-half for the first 3 hours on any one day and double time thereafter.
6.7.3
Overtime shall only be worked with the prior approval of the employer provided that an approval procedure may allow for employees to work
overtime without specific prior approval in defined emergency situations. Subject to mutual agreement in writing between the employer and the
employee, an employee may be compensated for working overtime in lieu of payment by being allowed time off, taken at the rate of time
worked for time taken:
Provided that an employee shall be required to clear accumulated time off in lieu within 3 months of the overtime being performed. If the
employer is unable to release the employee accordingly, or at the time of termination for any reason by either party, then the employee shall be
paid for the overtime worked at the appropriate overtime rate.
6.7.4
Subject to prior approval by the employer, an employee may be granted time off notwithstanding that such time has not been worked as overtime
in accordance with clause 6.7.1(a). The employer shall pay the employee’s salary as if the employee worked ordinary hours during such time
off:
Provided that the period of time off shall be made up in accordance with clause 6.7 through authorised overtime worked, within 4 weeks of the
time off being taken, or the employees pay shall be reduced by the amount of such time off taken.
6.7.5
An employee who works so much overtime between the termination of ordinary work on one day and the commencement of work on the next
day, that the employee has not had at least 10 consecutive hours off duty between those times shall, subject to clause 6.7.5, be released after
completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring
during such absence. If on the instructions of the employer such employee resumes or continues work without having had such 10 consecutive
hours off duty, the employee shall be paid double rates until released from duty for such period and the employee shall be entitled to be absent
until receiving 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
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6.8
12 December , 2003
Weekend work
Any arrangements of hours which includes Saturday or Sunday as ordinary hours shall be subject to an agreement between the employer and the
employee directly affected.
6.9
Recall to work
6.9.1
An employee who is recalled to work overtime after leaving the place of employment, shall be paid as for a minimum of 2 hours’ work at the
appropriate rate for such time, recalled, or be granted equivalent time in lieu in accordance with clause 6.7.4.
6.9.2
An employee recalled shall not be required to work the full 2 hours if the work to be performed is completed in a shorter period.
6.9.3
Clause 6.9 shall not apply when overtime is continuous with completion or commencement of ordinary working time.
6.9.4
Except as provided for in clause 6.9.5, where an employee is recalled for duty on their rostered day off, the employee shall be paid in
accordance with the provisions of clause 6.9 and shall be entitled to substitute another day for the rostered day off.
6.9.5
Where a full-time employee has been given reasonable notice that the employee will be required to work on their rostered day off due to an
emergency, the employee shall be paid at ordinary time for that day and a substitute day off shall be granted.
6.10
Out of work contact
6.10.1
For the purpose of clause 6.10 the following definitions shall apply:
(a) Standby shall mean a written instruction to an employee to remain at the employee’s place of employment during any period outside the
employee’s normal hours of duty, and to perform certain designated tasks periodically or on an ad hoc basis.
(b) On Call shall mean a written instruction to an employee to remain at the employee’s residence or to otherwise be immediately contactable
by telephone or paging system outside the employee’s normal hours of duty in case of a call out requiring an immediate return to duty.
(c) Where an employee on standby is required to sleep on the employer’s premises, clause 5.6 shall apply.
(d) The standby provisions of clause 6.10 shall not replace the overtime or shift provisions of this Award.
(e) Other than in extraordinary circumstances, an employee shall not be required to perform more than 2 periods of standby in any 2 weekly
cycle.
(f) When an employee is required to be on call and the means of contact is to be by telephone, the employer shall:
(i)
where the employee does not already have a telephone, pay the cost of such installation;
(ii)
where the employee pays or contributes towards the payment of the rental of such telephone, pay the employee one-half of the rental
costs.
(g) An employee shall be reimbursed the cost of all telephone calls made on behalf of the employer as a result of out of hours contact.
(h) An employee rostered to be on-call shall receive an additional amount as follows:
(i) $14.71 for each 24 hour period or part thereof when the on-call period is between rostered shifts of ordinary hours Monday to Friday
inclusive;
(ii)
$22.06 for each 24 hour period or part thereof when the on-call period is on a Saturday;
(iii)
$25.75 for each 24 hour period or part thereof when the on-call period is on a Sunday, public holiday or a day when the employee is
rostered off duty.
(i) Payment shall be calculated by reference to that additional amount specified in clause 6.10.1(h) applicable to the calendar day on which the
major portion of the on-call period falls.
7.1
Annual leave
7.1.1
Every employee (other than a casual employee) covered by this Award shall at the end of each year of employment be entitled to 4 weeks annual
leave on full pay.
7.1.2
Such annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave and (subject to clause 7.1.5)
shall be paid for by the employer in advance:
(a) In the case of any and every employee in receipt immediately prior to that leave of ordinary wages at a rate in excess of the ordinary wages
payable under clause 5.2 at that excess rate; and
(b) In every other case, at the ordinary time rate of pay payable to the employee concerned immediately prior to that leave.
7.1.3
If the employment of any employee is terminated at the expiration of a full year of employment, the employer shall be deemed to have given the
leave to the employee from the date of the termination of the employment and shall forthwith pay to the employee in addition to all other
amounts due, pay, calculated in accordance with clause 7.1.5, for 4 weeks and also their ordinary time rate of pay for any public holiday
occurring during such period of 4 weeks.
12 December , 2003
1437
7.1.4
If the employment of any employee is terminated before the expiration of a full year of employment, such employee shall be paid, in addition to
all other amounts due, an amount equal to 1/12th of the employee’s pay for the period of employment calculated in accordance with clause
7.1.5.
7.1.5
In respect to annual leave entitlements to which clause 7.1 applies, annual leave pay (including any proportionate payments) shall be calculated
as follows:
(a) Shift workers
Subject to clause 7.1.5(b) the rate of wages to be paid to a shift worker shall be the rate payable for work in ordinary time according to the
employee’s roster or projected roster including Saturday, Sunday or holiday shifts.
(b) All employees
Subject to the provisions of clause 7.1.5(c), in no case shall the payment by an employer to an employee be less than the sum of the following
amounts:
(i)
The employees ordinary wage rate as prescribed by the Award for the period of the annual leave (excluding shift premiums and
weekend penalty rates).
(ii)
A further amount calculated at the rate of 17 ½% of the amounts referred to in clause 7.1.5(b)(i).
(c) The provisions of clause 7.1.5(b) shall not apply to the following:
(i)
Any period or periods of annual leave exceeding 4 weeks.
(ii)
Employers (and their employees) who are already paying (or receiving) an annual leave bonus, loading or other annual leave payment
which is not less favourable to employees.
7.2
Sick leave
7.2.1
Entitlement
(a) Every employee, except casuals and school-based apprentices and trainees, is entitled to 60.8 hours’ sick leave for each completed year of
their employment with their employer:
Provided that part-time employees accrue sick leave on a proportional basis.
(b) This entitlement will accrue at the rate of 7.6 hours’ sick leave for each 6 weeks of employment.
(c) Payment for sick leave will be made based on the number of hours which would have been worked by the employee if the employee were
not absent on sick leave.
7.2.2
7.2.3
evidence, about the nature and approximate duration of the illness.
7.2.4
(c) The employer or employee terminates the employee’s employment and the employee is re-employed within 3 months;
(c) The employee’s employment is terminated because of illness or injury and the employee is re-employed by the same employer without
having been employed in the interim.
7.2.5
7.3
Bereavement leave
7.3.1
Full-time and part-time employees shall, on the death of a member of their immediate family or household in Australia, be entitled to paid bereavement
leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of
hours worked by the employee in 3 ordinary days of work. Proof of such death is to be furnished by the employee to the satisfaction of the employer.
1438
7.3.2
12 December , 2003
(b) A “long-term casual employee” is a casual employee engaged by a particular employer, on a regular and systematic basis, for several
periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under clause 7.3.2.
7.3.3
(a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and
(b) A child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent,
grandparent, grandchild or sibling of the employee or spouse of the employee.
7.3.4
Unpaid leave
Australia dies and the period of bereavement leave entitlement provided is insufficient.
7.3.5
As employee shall be entitled to a maximum of 3 days’ leave without loss of pay on each occasion and on the production of satisfactory
evidence of the death outside Australia of an employee’s spouse, father or mother, and where such employee travels outside of Australia to
attend the funeral.
7.4
Long service leave
All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2,
Part 3, sections 42-58 of the Act as amended from time to time.
7.5
Family leave
7.5.1
7.5.2
(a) Maternity leave
(b) Parental leave
(c) Adoption leave
7.6
Public holidays
7.6.1
All work done by any employee on:
−
−
−
−
−
−
–
−
−
−
−
the 1st January;
the 26th January;
Good Friday;
Easter Monday;
Labour Day;
Christmas Day;
Boxing Day; or
will be paid for at the rate of double time and a-half.
7.6.2
Annual show
Moreover, all work done by an employee in a district specified from time to time by the Minister, by notification published in the Gazette or the
Queensland Government Industrial Gazette on the day appointed under the Holidays Act 1983 to be kept as a holiday in relation to the annual
agricultural, horticultural or industrial show held at the principle city or town, as specified in such notification, of such district, shall be paid for
at the rate of double time and a-half.
7.6.3
All time worked on any of the holidays mentioned in clauses 7.6.1 and 7.6.2 outside the ordinary starting and ceasing times prescribed by this
Award for the day of the week on which such holiday falls shall be paid for at double the rate prescribed by the Award for such time when
worked outside the ordinary starting and ceasing times on a ordinary working day.
7.6.4
Employees required to work on any of the holidays mentioned in clauses 7.6.1 and 7.6.2 shall be paid for a minimum of 4 hours’ work at double
time and a-half.
12 December , 2003
7.6.5
1439
Stand down
Any and every employee who, having been dismissed or stood down by the employer during the month of December in any year, shall be re-employed
by that employer at any time before the end of the month of January in the next succeeding year shall, if that employee shall been employed by that
employer for a continuous period of 2 weeks or longer immediately prior to being so dismissed or stood down, be entitled to be paid and shall be paid by
the employer (at the rate payable to that employee when so dismissed or stood down) for any one or more of the following holidays, namely Christmas
Day, Boxing Day, and the 1st day of January occurring during the period on and from the date of dismissal or standing down to and including the date of
re-employment as aforesaid.
7.6.6
Holidays in lieu
Should any of the holidays mentioned in clauses 7.6.1 and 7.6.2 fall on an employee’s rostered day off, such employee shall receive another one or 2 days
off as the case may be in lieu thereof, or one or 2 days shall be added to the employee’s annual leave, or alternatively, one or 2 days’ wages at ordinary
rates shall be paid in addition to the weekly wage.
7.6.7
Part-time employees
A part-time employee who usually works on a day of the week on which a public holiday falls and is not required to work on that day, shall be paid for
the hours which would normally have been worked on that day.
7.6.8
Casual employees
Casual employees required to work on a public holiday shall be paid at the rate of double time and a-half for all time worked on any such public holiday.
7.6.9
Alternative arrangement to public holidays
Subject to an agreement between the employer and employee(s), an employee may elect to be paid at the rate of time and a-half for the public holidays
mentioned in clauses 7.6.1 and 7.6.2 except for Labour Day, Easter Saturday and annual show day which shall be paid at the rate of double time and ahalf.
Should Labour Day, annual show day or Easter Saturday occur during the period of an employee’s annual leave there shall be added to the employee’s
annual leave an extra day for each such day so occurring.
8.1
Travel and motor vehicle allowances
8.1.1
Employees required to travel on the employer’s business may be supplied with a vehicle by the employer. However, where the employer’s
vehicle is not available and the employee uses their own vehicle, the employer shall pay to the employee a vehicle allowance of:
(a) Less than 2L – 46.8c per km
(b) More than 2L – 50.3c per km
8.1.2
An employee required to travel by other means in connection with their work shall be reimbursed all reasonable travelling expenses so incurred,
provided that where an employee is required to travel by air transport the employer shall provide a return economy class air fare to the employee
prior to departure.
8.1.3
Where an employee is called out on duty at night or at any time in an emergency other than their normal hours of duty or on any non-working
day, the employee shall be reimbursed their fares, or if using their own vehicle to travel between their home and place of work, receive a travel
allowance as set out in clause 8.1.1.
8.1.4
An employee required to travel intra or interstate on the employer’s business shall be reimbursed the cost of reasonable board, lodgings, meals
and fares. Reasonable proof of costs so incurred is to be provided by the employee to the employer.
9.1
Commitment to training and careers
9.1.1
The parties to this Award recognise that in order to increase the efficiency and productivity of the enterprise and also the national and
international competitiveness of the industries covered by this award, a greater commitment to training and skill development is required.
Accordingly, the parties commit themselves to:
(a) developing a more highly skilled and flexible workforce;
(b) providing employees with career opportunities through appropriate training to acquire additional skills; and
(c) removing barriers to the use of skills acquired.
10.1
Occupational health and safety
10.1.1
The employer and employees shall comply with the requirements of the Workplace Health and Safety Act 1995 and any amendment thereof, and
with Regulations made under the said Act.
10.1.2
The employer shall provide a safe and healthy working environment.
10.1.3
Employees shall ensure all work is performed in a safe and responsible manner.
10.1.4
An employee who is supplied with protective equipment or material is required to wear or use it as instructed.
1440
12 December , 2003
Preamble
11.1
Right of entry
11.1.1
(a) An “Authorised industrial officer” is any relevant Union official holding a current authority issued by the Industrial Registrar.
(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the relevant Union.
11.1.2
Entry procedure
(i) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and
(ii) shows their authorisation upon request.
trespasser.
11.1.3
(i)
is ineligible to become a member of the relevant Union; or
(ii)
is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or
(iii)
has made a written request to the employer that the employee does not want that employee’s record inspected.
11.1.4
An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the relevant Union:
(b) any other matter with a member or employee eligible to become a member of the relevant Union, during non-working time.
11.1.5
Conduct
11.2
11.2.1
12 December , 2003
11.2.2
1441
11.2.3
11.2.4
11.3
Union encouragement
Preamble
Clause 11.3 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of
Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union.
11.3.1
Documentation to be provided by employer
At the point of engagement, the employer shall provide employees with a document indicating that a Statement of Policy on Union Encouragement has
been issued by the Commission, a copy of which is to be kept on the Premises of the employer in a place readily accessible by each employee.
The document provided by the employer shall also identify the existence of a union encouragement clause in this Award.
11.3.2
Union delegates
(a) Union delegates and job representatives have a role to play within a workplace. The existence of accredited Union delegates and/or job
representatives is encouraged.
(b) The employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible
performance of their duties.
11.3.3
Deduction of Union fees
Where arrangements can be entered into, the employer is encouraged to provide facilities for the deduction and remittance of Union fees for employees
who signify in writing to the employer their desire to have such membership fees deducted from their wages.
11.4
Posting of Award
A true copy of this Award shall be exhibited in a conspicuous and convenient place on the premises of the employer so as to be easily read and accessed
by employees.
Dated 9 September 2003.
By the Commission,
[L.S.] E. EWALD,
Operative Date: 3 November 2003

Vol. 174, No. 15 - Queensland Industrial Relations Commission

Transcription

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