Industrial Gazette - Queensland Industrial Relations Commission [PDF]

349

The Queensland Government

Industrial Gazette PUBLISHED BY AUTHORITY PP 451207100086

Annual Subscription $297 + GST

Vol. 166

FRIDAY, 6 APRIL, 2001

ISSN 0155-9362

No. 14

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

Date certified

Cancelling

CA97/01

QBuild State Government Security - Certified Agreement (2000)

26/3/01

CA124/99

CA101/01

Origin Energy Ltd Townsville Branch Employees Enterprise Agreement 2000 - Certified Agreement

26/3/01

CA96/01

Miller Hire Service NQ Pty Ltd - Certified Agreement 2001/2004

27/3/01

CA98/01

United Construction Pty Ltd South West Queensland Surface Facilities Construction - Certified Agreement 2000

27/3/01

CA107/01

Improved Concrete Pumping Pty Ltd - Certified Agreement

27/3/01

CA108/01

Bernco Formwork Pty Ltd - Certified Agreement

27/3/01

CA109/01

Gary Gorman t/a Top Reinforcement - Certified Agreement

27/3/01

CA110/01

Chippencrest Pty Ltd - Certified Agreement

27/3/01

CA113/01

Mitchell Glass Pty Ltd - Certified Agreement

27/3/01

CA114/01

Ingram Consulting Pty Ltd t/a Ingrams Fine Joinery & Cabinet Making - Certified Agreement

27/3/01

CA115/01

DA Cabinets Pty Ltd - Certified Agreement

27/3/01

CA117/01

TCFUAQ - GTG Industries Pty Ltd Enterprise Agreement 2001 Certified Agreement

27/3/01

CA121/01

Iplex Pipelines Australia Pty Limited (Strathpine Qld) – Certified Agreement 2001

27/3/01

CA123/01

Gavin MacLeod Concrete Pumping Pty Ltd - Certified Agreement

27/3/01

CA124/01

Glasgow Family Trust t/a K & J Rigging - Certified Agreement

27/3/01

E. EWALD Industrial Registrar

CA160/99

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INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Julia Ross Personnel AND Rebecca Wain (No. C62 of 2000) PRESIDENT HALL

27 March 2001 DECISION

The respondent to the appeal, viz Rebecca Wain, is an applicant in proceedings in the Queensland Industrial Relations Commission wherein she seeks reinstatement pursuant to part 2 of chapter 3 of the Industrial Relations Act 1999. When the matter was called, the appellant, the respondent to the proceedings in the Commission, raised as a preliminary matter that the respondent was excluded from the benefit of part 2 of chapter 3 because she was a “short term casual employee”, see s. 72(1)(c). After hearing evidence and taking submissions the Commission held that the respondent was not “a short term casual employee”. From that decision the appellant, the alleged employer, now appeals. That a “short term casual employee” is not entitled to the benefit of part 2 of chapter 3 is clear, see s. 72(1)(c). The issue is whether the respondent was a “short term casual employee” within the meaning of s. 72(1)(c). By s. 72(8) for the purposes of s. 72(1)(c) a “short term casual employee” means a casual employee, other than a casual employee who– “(a) is engaged – (i) by a particular employer on a regular and systematic basis; and (ii) for several periods of employment during a period of at least one year; and (b) apart from the employers decision not to offer the person further employment has a reasonable expectation of further employment by the employer. (s. 72(8))”. It is common ground that the respondent was not employed by the appellant over a period of at least one year. It follows that if the respondent was a “casual employee” within s. 72(8) she is denied the benefit of part 2 of chapter 3. When the Commonwealth legislature relies upon an international convention to found an exercise of the external affairs power, it is inevitable that reference will be made to the convention. The validity of the legislation depends upon whether the law in question is reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs, Victoria v The Commonwealth 187 CLR 416 at 487 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. And because s. 15A of the Acts Interpretation Act 1901 (see Cwth) requires that an Act be read so as to be within the constitution, the issue may well arise in an administrative tribunal, e.g. the Australian Industrial Relations Commission. It was therefore perfectly understandable that in construing ss. 170CA, 170CB, 170CC of the Industrial Relations Act 1988 (Cwth) and Industrial Relations Regulation (Cwth), Reg 30B in Reed v Blueline Cruises Limited (1996) 73 IR 420, Moore J construed the reference to “casual employee” by reference to the Termination of Employment Convention 1982. It is equally understandable, given that the convention refers not to a “casual employee” but to a person “engaged on a casual basis for a short period”, that Moore J read Reg 30B as excluding employees from a protection of the statutory scheme only “where the employment is known to the parties at the time of the engagement to be informal, irregular and uncertain and not likely to continue for any length of time.”, ibid 425. However, part 2 of chapter 3 is not based upon the external affairs power. Neither is it contained within a statute the object of which is to give effect to the Termination of Employment Convention 1982; compare Industrial Relations Act 1990 and the Workplace Relations Act 1997. In the premises, there is no justification for reading s. 72(8) in light of the Termination of Employment Convention 1982 nor for allowing the convention to control or limit the meaning which would otherwise be given to “casual employee” under Australian law, compare Bluesuits Pty Ltd v Graham (1999) 101 IR 28 at 32. In Doyle v Sydney Steel Co. Limited (1936) 56 CLR 545 at 551 Starke J observed “the description ‘casual worker’ is not one of precision; it is a colloquial expression . . .”. At 555 Dixon J observed “. . . what is casual employment is ill defined”. At 565 McTiernan J adopted the observations of Hamilton LJ in Knight v Bucknill (1913) 6 BWCC 164 at 165 “I think that ‘casual’ is here used not as a term of precision, but as a colloquial term.”. Subsequent decisions have not given to the expression “casual employment” the precision then found to be lacking. However, the law now recognises that there exists (at least) two classes of employee colloquially described as “casual”. One class has the characteristics described by Moore J in Reed v Blueline Cruises (1996) 73 IR 420 at 425, viz informality, uncertainty and irregularity in the engagement. The other class of casual is distinguished by a relationship in which the casual employee works a regular pattern of hours within an ongoing employment relationship, see generally Ryde – Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385, AMASCU v Auscript (1998) 83 IR 38 and Bluesuits Pty Ltd v Graham (1999) 101 IR 28. That is of some importance here. The circumstance that the respondent worked for the appellant for a period of ten months on a six week roster is not in itself justification for concluding that she was not a “casual employee”. There is however not the least suggestion that the Commissioner thought that that element of regularity and continuity of the relationship was decisive. Indeed, the Commissioner expressly referred to the most recent of the authorities noted above, viz Bluesuits Pty Ltd v Graham (1999) 101 IR 28 whereat the earlier cases noted above were discussed by a Full Bench of the Australian Industrial Relations Commission. There was material before the Commission on the basis of which the Commission might conclude that the appellant was not a “casual employee”. The advertisement placed by the appellant and to which Ms Wain responded described the position as “ongoing”. On the evidence both of Ms Wain and of the agent of the appellant who conducted the interview (Ms Dixon) the word casual was not used at the interview. The written agreement executed upon Ms Wain’s acceptance of the position does not use the expression “casual”. It was certainly a “temporary employment agreement” but on Ms Wain’s evidence, which the Commission accepted, she sought an explanation of what was meant by the adjective “temporary” and was told that the employment was “ongoing” or, alternatively, “ongoing until such time as the appellant’s contract with Telstra expired”. (The parole evidence rule will not operate to exclude statements made contemporaneously with the execution of written contract which are not inconsistent with it and which were intended, with the written materials, to constitute the whole of the contract.). The employee did work on a regular roster and although not entitled to payment for recreation leave was required to make formal application to take unpaid leave. It is contended for the appellant that the respondent’s engagement was governed by the Clerical Employees’ Award – State and that the respondent was defined by that Award to be a casual employee. There may be some doubt that the respondent’s engagement was governed by the Clerical Employees’

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Award – State. It must be noted in the definition section was amended some four months after the respondent’s dismissal to expressly include persons such as the respondent, performing work in connection with telephones in call centres. There can be no such doubt that if the Award did apply to the respondent she fell within the Award definition of the casual employee. However, it does not follow that because an employee is a casual employee for the purpose of an award that the employee is also a casual employee for the purposes of s. 72(1)(c). The circumstance that the relevant Award defines an employee to be a casual employee is certainly a matter of fact to be adverted to in determining whether the employee is a casual employee for the purposes of s. 72(1)(c). But that is of no consequence here. The Commissioner, who seemed content to adopt the assumption acted upon by the then representatives of the parties that the Clerical Employees’ Award – State did apply to the respondent’s engagement, did advert to that matter and take it into account in determining whether the respondent was a casual employee for the purposes of s. 72(1)(c). It must be conceded that it weighs in favour of the conclusion that the respondent was a “casual employee” that by the agreement she was paid a rate said by the Agreement to be “inclusive of long service leave, annual leave loading, maternity leave, paternity leave and adoption leave, sick leave and public holidays”. If indeed the Clerical Employees’ Award – State did apply to the respondent’s engagement it was important to take into account that mathematically the rate which the respondent was being paid was the Award rate for an employee on an indefinite hiring plus 19%. The significance of that is that 19% has been the standard percentage loading for casual employment for many years. The criticism made of the Commissioner is that, in consequence of the Commissioner taking judicial notice of the practice of folding allowances into loaded rates which has burgeoned in the past decade, the Commissioner – unhelped as he was by evidence of the history of the loaded rate in the Clerical Employees’ Award – State – declined to draw the inference that the loading was a casual loading. Other reasonable persons properly instructed as to the law might well have taken another view. That is often the case with questions of fact. By s. 341(1) the appellant has the right to appeal against the decision of the Commission on the grounds of error of law, or excess or want of jurisdiction. The appellant is not restricted to the originating process and the Order of the Commission to demonstrate an error of law, or excess or want of jurisdiction, but by s. 348(1) may trawl over the entire record of proceedings in the Commission and, in an appropriate case, by s. 348(2) seek the admission of additional evidence. What the appellant may not do is conduct an appeal on a Warren v Coombes (1979) 142 CLR 531 basis. In Doyle v Sydney Steel Co. Limited (1936) 56 CLR 545 at 551 Stark J observed “. . . where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the Commission.”. Similarly, at 565 McTiernan J observed “the question being one of fact, the Commission’s findings should not be set aside if there was evidence to support it.”. Sixty years on Commissioners are expected to give rather fuller reasons than in the 1930’s. If it had emerged from the Commissioner’s reasons that weight had been given to irrelevant factors or relevant factors had been ignored, the proper course of the Court would be to interfere even if there was some material upon which the findings made by the Commissioner might properly have been made. But this is not such a case. This is an attack about the way in which a Commissioner weighed relevant facts. Section 341(1) does not allow for such an appeal. An attempt was made to attack the decision on the basis of s. 72(7)(8) of the Industrial Relations Act 1999 in the form which it originally took. The argument had not been pressed below. It raises questions about the construction of the Workplace Relations Act 1996 (Cwth) and the effect of ss. 19, 20 and 21 of Schedule 1 of the Training and Employment Act 2000. There is a question of fact about whether an Australian Workplace Agreement has been approved. I do not propose to deal with the matter. I dismiss the appeal. In my view the appeal was a misconceived attempt to pretend that that which was at worst an error of fact was an error of law. To launch and press the appeal was plainly to engage in unreasonable acts for the purposes of s. 335(1)(b). The respondent is to have her costs of and incidental to the appeal assessed as those costs would have been assessed if this had been a matter in the Supreme Court of Queensland. Dated this twenty-seventh day of March, 2001. D.R. HALL, President.

Appearances:– Mr A. Horneman-Wren instructed by Quinn and Scattini for the respondent. Mr J. Shepley for the appellant.

Released: 27 March 2001 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate WorkCover Queensland AND Trevor Ernest Markwell (No. C64 of 2000) PRESIDENT HALL

28 March 2001 DECISION

By an application for compensation dated 14 July 1998 Trevor Ernest Markwell sought compensation under the WorkCover Queensland Act 1996 for what was therein described as “major depression”. By a letter dated 29 March 1999 the Claims Liability Officer refused the application, Mr Markwell sought a statutory review. He was unsuccessful on the statutory review. By a letter dated 11 June 1999 the review officer advised Mr Markwell that:– “The condition is not compensable, due to the applicability of the provisions of section 34 subsection 4(a), WorkCover Queensland Act 1996, by which I find the action of the management of the Queensland Police Service, which caused your stress, constitutes reasonable management action, taken in a reasonable manner, taken in connection with your employment.”. The reference to s. 34 is of course a reference to s. 34 in the form which it took between the commencement of the WorkCover Queensland Act 1996 on 1 February 1997 and the amendment of s. 34 which, commenced on 1 July 1999. During that period of time ss 4 and 5 of s. 34 provided:– “(4) ‘Injury’ does not include a personal injury, disease, or aggravation of a disease sustained by a worker if the injury is a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances – (a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; (b) the worker’s expectation or perception of reasonable management action being taken against the worker; (c) action by WorkCover or a self-insurer in connection with the worker’s application for compensation; no.14 06.04.01

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(d) circumstances in which a reasonable person, in the same employment as the worker, would not have been expected to sustain the injury. For subsection (4), in deciding in a particular case whether management action was reasonable or whether management action was taken in a reasonable way – (a) regard must be had to what action or way of taking action would have been reasonable for a worker of ordinary susceptibility to psychiatric or psychological disorder; and (b) regard must not be had to a particular worker’s susceptibility to a psychiatric or psychological disorder.”. From that decision Mr Markwell successfully appealed to the Industrial Magistrate of Brisbane. The Industrial Magistrate found – (a) that the management action taken by the Queensland Police Service which caused Mr Markwell’s stress disorder did not constitute reasonable management action; (b) the action taken by the Queensland Police Service which caused Mr Markwell’s stress disorder was not taken in a reasonable manner; and (c) a reasonable person, in the same employment as the worker, would have been expected to sustain the injury. I should perhaps interpolate that the review officer had accepted that Mr Markwell suffered from a form of depressive illness and that within the meaning of s. 34(1) Mr Markwell’s employment was the major significant factor causing the depressive illness. I mention that because although the matter does not seem to have been an issue before the Industrial Magistrate and, indeed, His Worship recorded that no evidence was led upon the basis of which the review officer’s finding might have been disputed, the question whether Mr Markwell’s employment was the major significant factor causing the depressive illness was canvassed on the appeal. I should be content to deal with the matter on the basis that the appellant is bound by the way in which it conducted it’s case before the Industrial Magistrate. In any event, Dr Larder, a specialist psychiatrist who gave evidence, informed the Industrial Magistrate that:– “Yes. Doctor, if I could take you, please, to about line 35, you’re referring to this man’s illness ‘which arose insidiously over a number of months in ’94 and ’95.’. You go further and say ‘this condition has developed as a stress response syndrome to a multiplicity of stressors and on a background without significant predisposition to mental disorder.’. Are you saying this man, quite simply by that sentence, didn’t have any predisposition to psychiatric decompensation? - - That’s correct.”. There is nothing on the record which would justify a conclusion that Mr Markwell’s employment with Queensland Police Service was merely the backdrop against which events occurred which would have occurred in any event. And the record is critical. There being no fresh evidence, this appeal from the Industrial Magistrate’s decision is to be determined by way of a rehearing on the evidence of proceedings before the Magistrate, s. 509(3). Before going further it is necessary to say something about Mr Markwell’s employment. For a very considerable period of time Mr Markwell had been the officer in charge of the Police Unit at Crimestoppers. (For 18 months as a Sergeant first class and thereafter, Mr Markwell having jumped a promotion grade, as a Senior Sergeant.) It was his responsibility to collect information, disseminate information, collate results and otherwise to assist the Board in promoting the work of Crimestoppers. At some stage he became a member of the Board and attended Board meetings. He reported to the Assistant Commissioner in charge of crime operations through the Chief Superintendent of crime operations. Because it becomes of some significance, I add that the members of the Board, other than the officer in charge of the Police Unit, were civilian volunteers. The case has been fought on the basis that it was the communication of a decision to transfer Mr Markwell from his position in charge of the Police Unit attached to Crimestoppers, coupled with the actual transfer, which triggered the depressive illness. The Industrial Magistrate found that those actions were taken because members of the Board had concern about Mr Markwell’s performance; were concerned he had lost motivation and had concern about morale within the Police Unit. The Industrial Magistrate also found that the concerns expressed about Mr Markwell by members of the Board were not crystallised and put to him in order that he might reply to the concerns, give an explanation of events or remedy the concerns. His Worship also found that the omission occurred against a backdrop of potential legitimate explanations. His Worship found that there were insufficient staff in the Unit – the evidence was that the staff were doubled shortly after Mr Markwell left and that it was only by way of working split shifts and long hours (often including unpaid overtime) that Mr Markwell was able to perform his own duties and discharge the demands made upon staff who were not there. His Worship found also, and there was ample evidence to support the finding, that the complaints of staff were significantly about rostering and leave decisions arguably forced upon Mr Markwell by the shortage of staff, and about an autocratic style arguably imposed upon Mr Markwell by the inadequate staffing. It is not in the least surprising that the Industrial Magistrate went on to hold that the failure to detail the complaints and to grant an opportunity to reply made the decision to transfer Mr Markwell an unreasonable management action. It is forcefully put for the appellant that the exigencies of managing the Queensland Police Service must be taken into account. So indeed they must. They were. The Industrial Magistrate said:– “I think that in this matter one must start from the proposition that the Police Service is different to a normal business, and that the Commissioner and certain delegated persons must have the power of transfer to ensure the efficient running of the Service for the good of the people of Queensland.”. Additionally, the transcript reveals that Mr Aldridge, the Deputy Commissioner of Police between December 1992 and August 1999, gave evidence that he had requested that the members of the Crimestoppers Board be required to put their concerns on paper. (In fact, that did not happen. In Mr Aldridge’s understanding of the matter was that it did not happen because the Board members were not prepared to do so.) The fact that he made the request is some evidence that identification of the concerns was a reasonable step to take. Moreover, by a Review Report dated 17 December 1997 Mr Bleakley, Commissioner for Police Service Reviews, recommended:– “. . . the decision to transfer Senior Sergeant D.G. Tucker to the position of Senior Sergeant, Crimestoppers, Crime Operations Command, be set aside and the decision be remitted for the consideration of the same selection panel and that panel be required to provide Senior Sergeant T. Markwell with an opportunity to respond to the comments of Chief Superintendent Freeman, referred to in the panel conveners report, prior to making the shortlisting decision.”. That recommendation, which was not acted upon, is further evidence that the provision of particulars of complaint and the opportunity to respond is not incompatible with proper management of the Queensland Police Service. In addition to the finding that the action taken by Queensland Police Service was not “reasonable management action” the Industrial Magistrate found that the action had not been “taken in a reasonable way”. Whatever submissions may have been made at first instance, it is apparent from the submissions on the appeal that to determine whether the management action was “taken in a reasonable way” one has to determine questions of

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credibility of great importance to the witnesses involved which the Industrial Magistrate, who had the advantage of seeing and hearing the witnesses, did not explicitly make. The finding that the action taken was not “reasonable management action” makes it unnecessary to express a concluded view about whether the action was “taken in a reasonable way”. In those circumstances it is both unnecessary and inappropriate to attempt to resolve the questions of credibility on the basis of a transcript. The issue whether a reasonable person, in the same employment as the respondent, would have been expected to sustain the injury may not be so lightly disposed of. The Industrial Magistrate found that a reasonable person, in the same employment as Mr Markwell, would have been expected to sustain the injury which Mr Markwell sustained. In coming to that conclusion, His Worship properly took into account (and itemised) the achievements of Mr Markwell who had received many plaudits in his position as officer in charge of the Unit attached to Crimestoppers, and took into account also the significant portion of Mr Markwell’s life which he had invested in the Unit. His Worship properly took those matters into account because one must consider a reasonable man in all the circumstances of the claimant worker. His Worship also took into account the somewhat eventful history of Mr Markwell’s interaction with members of the Board in the period leading up to his transfer. It appears that Mr Markwell had cause to remonstrate with members of the Board about attempts to spend large sums of money prior to obtaining formal approval of the Board, proposals to buy a racehorse, proposals to sponsor a race meeting and a proposal to launch a reward scheme through the Insurance Council of Australia. The reasonable man at s. 34(5) is the reasonable man with all the claimant’s work history. It is intrinsically likely that given the history of accomplishment the transfer would have caused a reasonable man to feel great loss. It is inherently likely that a reasonable man would have suspected that the transfer arose out of resistance properly raised to proposals emanating from the Board. Importantly, there was evidence for witnesses other than Mr Markwell that the actual transfer to a “surplus” posting would undermine Mr Markwell’s standing in the Queensland Police Service and would be “demeaning”. The difficulty is with the evidence of Dr Larder, a consultant psychiatrist who gave evidence. The difficulty is that for whatever reason Dr Larder shied away from giving evidence about “the reasonable man” and insisted on giving evidence about the “particular person”. Reading the evidence as best one can it seems to me to emerge that – (a) Mr Markwell had no underlying susceptibility to psychiatric or psychological disorder; (b) there was a connection between the stressors previously identified in Mr Markwell’s work and the depressive disorder which followed; (c) there was some suggestion that Mr Markwell was narcissistic and, if further investigation showed that to be a fact, that would have aggravated the extent of the depressive disorder; and (d) litigation and industrial action in which Mr Markwell engaged in attempting to reverse the decisions taken about his role in the Unit attached to Crimestoppers aggravated but did not trigger his depressive condition. There is nothing in that which is inconsistent with the conclusion (which is not a medical one) that a reasonable person in the same employment as the respondent would have been expected to sustain the injury. In any event, there was direct evidence by another consultant psychiatrist Dr Cox that:– “There is no real doubt that Mr Markwell is suffering from a depressive illness which has been closely related to his work situation. The major question is whether the actions of the Police Service in redeploying Mr Markwell were reasonable. I have only his version of the events. If his statements that he was transferred from a position of reasonably high status and importance to one of much less status is correct, it is quite understandable that he experienced stress. He has no past history of inability to cope with stress and there is nothing to suggest that at the time of this transfer he was under any disciplinary action or showing incompetence in his position. If this is so I would consider that the actions taken were probably unreasonable, and to that extent Mr Markwell was suffering from a compensable injury.”. To the extent that the passage comments on whether the management action was “reasonable”, it is subject to attack on the basis that Dr Cox was ill informed about what had occurred. But the only fair inference from the comment that the respondent’s reaction to events described in general terms was “understandable”, is that the respondent reacted in a way in which a reasonable man might have been expected to react. In all the circumstances I dismiss the appeal. I reserve the question of costs. Dated this twenty-eighth day of March, 2001. D.R. HALL, President. Released: 28 March 2001

Appearances:– Mr G. Rhead for the appellant. Mr S.P. Sapsford instructed by John Monteath and Associates for the respondent.

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – recovery of wages Dru Elliot Powell AND Tyrone Auburn Reimers Misso t/a The Professionals, Woody Point (No. W76 of 2000) COMMISSIONER BECHLY

27 March 2001

Application for recovery of wages – Clerical Employees Award – State – Administrative duties in real estate sales office – Mix of administrative, clerical or sales duties – Nature of work essentially administrative or clerical – Application successful. DECISION An application has been made by the Department of Industrial Relations for an order requiring payment of unpaid wages to Ms Beverley Anne Nicholls by Tyrone Auburn Misso trading as The Professionals – Woody Point.

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The claim is based upon the Clerical Employees Award – State. The respondent denies coverage of that Award and adopts the position that Ms Nicholls was engaged as a salesperson. The claim before me relates to the period 3 June 1994 to 31 August 1995. The applicant worked prior to and after those dates. The claim for the earlier periods is statute barred and later periods have been rectified by the payment by the respondent of the amounts claimed, as I understand it, to the applicant in these proceedings. The claim made is for payment at a Level 1 under the Award. No evidence has been called by the respondent in this matter. I accept the evidence of the applicant as to the duties performed and the hours during which those duties were carried out. The respondent acknowledges the clerical nature of Ms Nicholls’ duties, except on two days each week, which he states are sales duties. However, on the evidence, the duties on those days were clerical administrative duties associated with sales activities and thus fall within the ambit of the Clerical Employees Award – State. It is acknowledged that during the period in question the applicant sold three properties. She states that activities relating to the sale of these properties occurred outside the hours subject to the claim before me. The applicant was a registered salesperson and able to make such sales. The fact that she held a sales licence during the relevant time does not indicate that the whole or the vast bulk of the work was that of a salesperson. On the contrary, the clear evidence is that the vast bulk, if not all of the work the subject of the claim, was administrative clerical work. The respondent does admit that three of the days were properly characterised as clerical administrative type duties but challenges two days, as indicated above, but it is clear on the evidence that on these days the applicant performed administrative or clerical duties. I find that the application is proven and order that the sum of $7,192.03 be paid by Tyrone Auburn Reimers Misso to Beverley Anne Nicolls through the Department of Industrial Relations within 22 days of the release of this decision. I do comment that the claim relates to Level 1 of the Clerical Employees Award – State. It is possible, based on the evidence I have heard, that some of the duties performed fall within a higher classification. However, I understand from what has been said during the proceedings, the reasons for the claim being limited to Level 1. R.E. BECHLY, Commissioner. Released: 28 March 2001

Appearances:– Mr D. Powell, of the Department of Industrial Relations, in person. Mr T.A. Misso, in person.

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 – application to amend a contract Kevin Gleeson AND Gold Coast Bakeries (Queensland) Pty Ltd (No. B1669 of 2000) COMMISSIONER BLADES

22 March 2001

Unfair contracts – s. 276 Industrial Relations Act 1999 – Sales Supervisor for Bakery – Contract with respondent not able to be assigned – Contract for twelve months renewable at option of respondent – Applicant paid sum of money for contract to previous contractor – Sum included a component for goodwill – Contract terminated after 6 years – Respondent refused to allow applicant opportunity to sell the goodwill – Previous contractor prohibited from selling contract and charging goodwill – Applicant unaware of prohibition – While applicant aware contract could not be assigned, applicant expected that contract would be renewed each year – Applicant thought he was buying a business – Respondent unaware that applicant had been charged goodwill – Respondent had prohibited the sale of contracts twelve months before applicant entered his contract – Respondent took applicant through contract term by term – Respondent failed to mention goodwill not saleable – Failed to inquire whether a goodwill payment had been made in circumstances where such a payment was reasonably foreseeable – Whole circumstances of the transactions, including the circumstances as between the applicant and previous contractor to be considered in determining unfairness – Unfairness to be determined by a common sense approach – Power to be exercised with restraint and not because party happens to be disgruntled with a bargain – Contract declared unfair – Voided ab initio except for its provisions as to the payment of money – Applicant secured alternative employment one week after contract expired – No allowance made for loss of earnings – Prime cause of the goodwill payment was the misrepresentation of the previous contractor – Applicant awarded half the value of the goodwill paid. DECISION Mr Gleeson signed a contract with Gold Coast Bakeries (Queensland) Pty Ltd, the respondent, on 28 February, 1994. This was a contract for services to provide area representative services to the respondent. He was termed a Sales Supervisor. He purchased this contract from a Stephen Bellingham for the sum of $18,000, which included $2,000 for a vehicle and $16,000 goodwill. No money was paid to the respondent for the contract except that a refundable bond of $2,000 had to be lodged to abide the removal of signwriting on a vehicle should the contract be terminated. The initial contract expired on 30 June, 1994 but was then renewed by the respondent for a period of 12 months to 30 June, 1995. Because of administrative arrangements it was not renewed until 30 September 1995 ending 30 September 1996. It was then renewed to 30 September 1997 and then to 30 September 1998. In September 1998, the contract was continued on a monthly basis until 28 September 1999 when it was renewed to 30 September 2000. By way of a letter dated 2 August, 2000, the respondent gave the applicant notice that the contract would not be renewed on 30 September 2000. The applicant sought time in which to sell his contract but it was pointed out to him by Mr Laing the General Manager that he had no right to sell, that his contract was personal and provided for no assignment. The contract provided in clause 12:– “The benefit of this Agreement is personal to the Supervisor and shall not be assigned by him under any circumstances.”. This application then seeks an order that the contract be amended or declared void with the effect that the applicant be provided with 12 months notice of termination or payment of his earnings for that period in lieu. The application is brought under the provisions of s. 276 of the Industrial Relations Act 1999 (the Act). Applicant’s case commences in 1986/1987 when a Mr Norbert Lutje was engaged by the respondent as a Sales Supervisor. He was engaged on a 12 month contract, which was renewed from year to year. In March 1993 he married and decided to move on. He alleges that he sold his contract to Mr Lyndsay Dench in March 1993 for $8,000 or $9,000 which included $2,000 for a vehicle and the balance for goodwill. He alleges he did so with the knowledge of the respondent.

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David Middleton told the Commission that he sold his contract to Steve Bellingham in 1993 and that it was common practice amongst sales supervisors to purchase contracts which included a component for the price of the motor vehicle and a component for goodwill. He also said that it was common knowledge amongst all staff and openly discussed at the workplace. A Mr Stephen Bellingham said that in 1993, he purchased the contract from David Middleton for $16,000 of which $12,000 was for goodwill. He alleges this was done with company knowledge. In April 1994, he sold the contract to the applicant for $18,000 comprising $16,000 for goodwill and $2,000 for a motor vehicle. He alleges all area representatives purchased their contract and he also alleges there was another sale in 1995 between Bill Thomson and Roger Boff. The respondent denies that it had any knowledge until the termination of Mr Gleeson’s contract, that goodwill was being traded. It was and is common for bread vendors who have 5 year contracts to be able to trade them and that is permitted by the Company, but the position is different for sales supervisors. The witnesses testifying as to what occurred in 1993 have to be forgiven for inaccuracy and imperfect and incomplete recollection. It can only be expected that the passage of time has meant the dulling and loss of an accurate memory. On 12 March 1993 Mr Laing wrote to all Sales Contractors (Supervisors) in terms which included the following:– “I would just point out as a reminder, a few important points about your Contracts, in the event that you are under a misapprehension re your part.

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The Contract is for a fixed term that at the end of its term may be reoffered to you.

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At that time you then decide whether or not you wish to take up the new Contract.

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Effort, attitude and P.R. results will determine whether or not we make the offer to renew. (These considerations will take place approx a month before date of Contract expiry.)

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The run cannot be assigned by you at any time during the Contract term, i.e. the Contract is personal to you for the term nominated and we expect that Contract to run its full term.

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We will, however, if necessary terminate a Contract for breach.

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No goodwill can be applied to a Contract, as it is a fixed term - then renewed or not renewed.

... In simple terms, those presently contracted will be advised approximately one (1) month prior to the expiry of their term if the Company wishes to renew with them for another term. The Contractors will then decide if they wish to renew or not, and advise accordingly.”. Mr Middleton was not aware of the issue of that letter and there is no suggestion that he signed or acknowledged receipt of a copy. Mr Bellingham signed such a document in 1993 indicating that he knew a contract could not be traded for goodwill. He admitted he knew it could not be assigned. He admitted that he did not tell Mr Gleeson that it was the Company’s attitude that no goodwill could be applied to these contracts. He explained none of the terms of the contract to Mr Gleeson. His credibility was brought into question when he initially denied knowing the respondent disapproved of an outgoing area supervisor receiving goodwill and then recanting when presented with the letter of 12 March 1993 containing his signature. When it was suggested that was the reason he did not tell the respondent that Gleeson was paying goodwill, he claimed to have forgotten about the document signed 12 months earlier and that he could not remember whether he told the respondent that Gleeson was paying goodwill. The document of 12 March 1993 was significant. It informed contractors that contracts could not be traded for goodwill and Mr Bellingham had just paid substantial goodwill. I reject his evidence of loss of memory. He chose to ignore the direction. He knew the contract could not be traded hence the reason for a failure to inform the respondent. He said that he believed he was not really selling his contract to Gleeson because Gleeson had to be accepted by the respondent which, after interview, would be the one to offer the contract. I reject that evidence as improbable. Mr Bellingham’s conduct in selling a non-existent subject might merit attention from the criminal law and provides for a strong motivation for self preservation. Roger Boff gave evidence that he purchased a vehicle in July 1994 from Bill Thomson for $13,000 when he obtained a contract. No money was paid for goodwill. Lyndsay Dench strongly denied paying any money for goodwill. He paid $8,000 to Lutje for the motor vehicle which he later found to be in need of repair and with the benefit of hindsight, considered he paid too much. But he was adamant that goodwill was never mentioned. As between Dench and Lutje there is significant conflict in regard to the payment of goodwill. As previously disclosed, Lutje alleges he sold his contract to Dench for about $8,000 or $9,000 which included a motor vehicle worth about $2,000. On the other hand, Dench strongly disputed that allegation. He thought that the $8,000 he paid for the motor vehicle was a fair price but because the vehicle needed a new motor some 2 months later, he then believed he may have paid too much. He denied goodwill was ever mentioned and he denied that the price was inflated as some sort of introduction to work. Matters for comment as between these two witnesses are firstly that Lutje appears independent, having left the respondent’s employment in 1993 whereas Mr Dench is still employed and depends upon the renewal of his annual contract which expires on 30 September, 2001. Secondly, there has been no suggestion that Mr Dench at any time challenged Mr Lutje about the merchantable quality of the vehicle he purchased if the motor blew up 2 months after sale. Thirdly, under cross-examination, Mr Dench did say that he had “bought the contract” which I think was a little more than a slip of the tongue. Graham Lambourne has been employed at the Company for 14 years. At no time has he been aware that any of the sales supervisors have paid goodwill to any person. He is still employed. David Newcomb was secretary for 22 years and worked for the Company for 31 years. He was never aware that any sales supervisors had paid any money for goodwill for a contract. He had “never heard a whisper”. He no longer works for the respondent. Mr Gleeson conceded that on 2 August 2000, after he had received the letter terminating the contract, Mr Laing had said to him that no one to his knowledge had ever purchased goodwill. Mr Gleeson was most evasive when questioned along these lines in cross-examination but made the admission readily, perhaps unexpectedly, under re-examination. Mr Laing’s statement might be some evidence he was not aware of the trade in goodwill. no.14 06.04.01

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While the witnesses Boff, Dench and Lambourne are still employed and it could be suggested their evidence might well favour the employer, Mr Newcomb retired on 5 January 2001 and the pressures that may be placed upon the others were certainly not present for him. There had however, to be some reason for the publication of the letter of 12 March 1993. It mainly dealt with the subject of the sale of contracts and the payment of goodwill. Mr Laing was unable to give a reason for its issue. In my view Mr Lutje provided that reason. He claimed that Mr Laing permitted him to advertise his contract because he was “our longest serving supervisor – but this has to stop somewhere”. I am satisfied the letter of 12 March 1993 was an attempt to do just that. There were other contracts being traded of which it has been alleged that Mr Laing was aware. The letter indicates he was aware. I reject Mr Laing’s evidence that he was totally unaware of any sales supervisor’s contract that ever changed hands for goodwill. The evidence was simply untrue. However, the effect of that letter was to put an end to a practice which existed. Bellingham was well aware it had ended. His purported sale to Gleeson of something which was not his to sell was clearly a misrepresentation if not more. There is evidence to suggest that Mr Gleeson himself knew or should have known he could not purchase a contract. His initial contract was dated 28 February 1994. He knew that the first contract was only until 30 June, 1994 and he knew there was no obligation on the respondent to offer a further contract once it expired. He admitted that he was taken through the contract term by term and he was aware that it was a personal contract. He says it was never explained to him that it could not be assigned. He was referred in cross-examination to clause 12 of the contract and responded “Well, what’s ‘assign’ mean?”. He said that the word “goodwill” was never mentioned by Bellingham and that it was the job that he paid for. The payment to Bellingham did not occur until 7 April, 1994 although the arrangement was made before then. Mr Gleeson appeared an intelligent witness. Perhaps he was just naive. I am however satisfied that he expected that the contract would be renewed and the payment of a premium supports that expectation. His understanding of the right to assign was probably also coloured by that payment. I am satisfied that he thought he was buying a business. He was never told of the contents of the letter dated 12 March 1993. There were others in the employment of the respondent with 12 month contracts who harboured an expectation that their contracts would be renewed. Many witnesses have been called by the respondent to the effect that contracts were not traded or runs were not sold. While some of these witnesses operated out of Brisbane, I would have expected there to have been rumour and talk if the practice was widespread as has been alleged. I am so satisfied even taking into consideration that most of the respondent’s witnesses are still employed by the respondent on 12 month contracts expiring later this year. It is consistent with their evidence that it was not general practice throughout the whole of Gold Coast Bakeries which operated in both Brisbane and the Gold Coast but occurred in only a few cases and perhaps only on the southern end of the Gold Coast. All contracts which had been traded, with the exception of Gleeson’s, were traded before about March 1993 and it seems before the 12 March letter. The evidence reveals that the sale from Lutje to Dench was about March 1993 (and probably led to the letter); there was a sale by a Mr Stark to Mr Middleton in 1991 or 1992; there was a sale from Middleton to Bellingham in early 1993 (and Bellingham signed the 12 March letter about that time); a sale involving a Mr Bland was made in 1990 or 1991. There was an allegation by Bellingham that a Mr Thomson sold his contract to Mr Boff in 1995 but the other party to that alleged sale, Mr Boff, denied that it ever occurred and Mr Thomson was not called to give evidence. Boff’s evidence was that he paid market value of $13,000 for the vehicle and subsequently insured the vehicle for $14,500 and that there was no goodwill attached to the sale. I accept his evidence. I am satisfied on the whole of the evidence, on the balance of probabilities that in about 1993, the respondent was aware that contracts were being traded but that it attempted to stamp out the practice. The respondent was not informed in 1994 when Mr Gleeson signed his contract that he had paid a premium to Mr Bellingham. Bellingham, without informing Gleeson, had sold to Gleeson that which was not his to sell. I am satisfied that, apart from Gleeson’s contract, no other contract was assigned for goodwill after the 1993 letter. I am satisfied that it was not a case of the company being aware of a continuing practice after March 1993 and tolerating it. There is an allegation made by Mr Gleeson that in 1996, he informed the respondent through Mr Laing that he had paid an amount for goodwill, an allegation which is denied. This came about because of a document listing some expenses he presented to Mr Laing in October, 1996 in an endeavour to have the contract terms varied. He had listed “payment on $20,000 loan - $293.00” and in the last paragraph stated - “...I would have to walk away from the job, therefore losing the $20,000.00 investment.”. Mr Laing said that he erased the figure of $293.00 as irrelevant but did not connect that the $20,000 referred to had been paid for the contract. He responded to the representation in writing on 22 October, 1996 and the letter says nothing about the sale of contracts and goodwill. Mr Laing had no reason to connect the payment to goodwill. Had he realised that was what Mr Gleeson was referring to, I am satisfied on the probabilities he would have responded and the failure to do so is support for his evidence. Mr Gleeson gave evidence that Mr Laing had told him at the time that they could not tell Mr Marrable (the owner) about it but I thought that evidence was a little late in coming. Section 276(1) of the Act provides that the Commission may amend or declare void a contract if it considers the contract is an unfair contract. Under s. 276(7), an unfair contract is, inter alia, a contract that is harsh, unconscionable or unfair. In his pleadings, the applicant alleged that:–

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The contract is designed to and does avoid the unfair dismissal provisions of the Act.

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The contract has become unfair as it does not:–

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allow the Applicant to recover his investment;

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take into account the 6 years of service provided by the Applicant;

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provide the applicant with reasonable notice in order for him to obtain alternate employment;

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provide any objective criteria the Respondent should take into consideration when deciding whether to renew the contract;

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provide a fair process when exercising the option to renew (or not renew) the contract.

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The contract is harsh and unfair because it allows the respondent to cease its relationship with the applicant in a manner that deprives the applicant of the opportunity to recover the goodwill.

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The contract is unconscionable because the respondent was aware that the applicant paid $16,000 for the goodwill yet entered into a number of contracts with the effect that the applicant could not recover the amount paid for goodwill.

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The applicant had little or no bargaining power in relation to the terms of the contract.

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Without setting out in full the amendments to the contract sought by the applicant, the application seeks the inclusion of clauses having the effect that:–

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Notice of Termination means the amount of time it takes the applicant to assign the contract or one year’s notice, whichever is the shorter.

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If there is a failure to provide the notice, equivalent earnings for a period of one year must be paid to the applicant.

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The Supervisor (applicant) may, with consent, assign its interest, which consent cannot be unreasonably withheld.

There is an alternative claim that the contract be declared void and that the provisions of the Termination, Change and Redundancy Policy of the Commission be incorporated into the agreement. The respondent submitted that the contract was not unfair and that to determine unfairness, the overall circumstances, not just the contract terms were to be considered. The overall circumstances, it was said, included the relationship between the respondent and Mr Gleeson, not the relationship between the respondent and other people. It was submitted that it was irrelevant to the respondent that Mr Gleeson had paid goodwill to Bellingham. The respondent also pointed to how inappropriate were the remedies in that the effect of the amendments sought were that the contract would be altered from a set period of one year to one of indeterminate length, the contract would become able to be assigned from one incapable of assignment and would provide for an unreasonably long period of notice effectively removing the respondent’s right to terminate. The respondent also pointed to the windfall to the applicant should he receive a payment of one year’s income in the order of $50,000. He obtained employment with another Bakery before he left the respondent and he commenced one week after ceasing with the respondent. The applicant has the onus of proving that the contract was unfair or became unfair. What is unfairness? Under s. 276(4), the Commission may consider a contract to be an unfair contract if it considers the contract – (a) was an unfair contract when it was entered into; or (b) became an unfair contract after it was entered into because of the conduct of the parties, or a variation to the contract or for any other reason it considers sufficient. An unfair contract includes a contract that is harsh, unconscionable or unfair – s. 276(7). In McNaught v. Micador Australia Pty Limited (1996) 83 IR 111 Hungerford J, in dealing with similar provisions in s. 275 of the Industrial Relations Act 1991 (NSW) said:– “In considering ‘fairness’, the determination is according to the common sense approach of a juryman by applying standards which appear to provide a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement; in doing so, the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement will always have to be borne in mind: . . .”. In Palmer v. TNT Australia Pty Limited (Unreported CT 1023/92) Hungerford J was again dealing with s. 275 of the Industrial Relations Act 1991 (NSW) when he cited Baker v. National Distribution Services Limited (1993) 50 IR 254 as follows:– “The test of unfairness within the meaning of s. 88F of the Industrial Arbitration Act, and hence s. 275 of the present Act, has received much attention by the Court and by the previous Industrial Commission over very many years, but, in our review of the cases, the approach stated by Sheldon J in Davies v. General Transport Development Pty Limited (1967) A.R.(N.S.W.) 371 over 26 years ago has endured; his Honour commented (at 374) that unfairness of a contract or arrangement was to be determined according to ‘the common sense approach characteristic of the ordinary juryman ... It is a plain matter of morals not law.’ His Honour cautioned, however (at 374,375), that the section’s ‘massive power makes it imperative that it should be exercised with proper restraint ... it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms ... the discretion should be exercised to protect victims of wrong dealing not to prescribe anodynes.’ ”. The following passage from A & M Thompson Pty Limited v. Total Australia Limited (1980) 2 N.S.W.L.R. 1 was also cited:– “It has been said that fairness is determined by the commonsense approach of a juryman and that it is a moral and not a legal issue (Davies’ case). Whether this be so or not, it does seem that in distinguishing between what is fair and what is not fair the Judge must apply standards which appear to him to provide a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement. In doing so, he would always have to bear in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement.”. The applicant submitted that the very nature of the contract made it harsh and unjust. The basis for this submission was that considerable sums were outlaid for a motor vehicle, the contract was exclusive and would not allow supervisors to undertake any other business activities. The contract included a restraint of trade clause. It could be determined by simply not offering the contractor a new contract at the expiration of the term. If the respondent decided not to offer a new contract to the respondent the supervisor had no remedy. I do not consider those circumstances made the contract unfair. The motor vehicle for example remained a saleable asset whether it was used in the business or not. However, upon termination for some obscure or unjustifiable reason, or for some other happening, the circumstances may render it unfair as, under the provisions of s. 276(4), contracts not unfair when they were entered into may well become unfair because of the conduct of the parties. Thus in McNaught, Hungerford J said that unfairness under the section may arise either from the terms of the contract itself, the surrounding circumstances and/or from the manner of performance or operation of the contract. His Honour also said that regard may be had to the manner in which the contract or arrangement has ultimately worked out and operates as between the parties to it. In Reich v. Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551 the Industrial Relations Commission of New South Wales in Court Session was dealing with an application under s. 106 of the Industrial Relations Act 1996 (a section which is closely followed by s. 276 of the Queensland Act). It was held that “we think it should be stated as plainly as it may be, and as we think the authorities and s. 106(2) do, that a contract may be found to be unfair because of any conduct of the parties”. (s. 106(2) is in similar terms to the Queensland s. 276(4)). There is evidence from Mr Laing that over the last 12 to 14 years, approximately 5 sales supervisors have not been offered a renewal and approximately 3 sales supervisors have chosen not to renew. I am satisfied that the respondent was aware in early 1993 that there was a practice of trading in these contracts. The respondent saw fit to issue a letter to the sales supervisors reminding them of the terms of the contracts. It went to the trouble to secure a signature of at least one sales supervisor in acknowledging receipt. The respondent was endeavouring to stamp out the practice. It is my view that the respondent should have been upon its guard to ensure that the practice did not continue. After all, Gleeson’s contract was probably the first after the issue of that letter in March, 1993. Gleeson’s evidence was that when he was taken through his contract term by term, goodwill was not mentioned. The contract said nothing about goodwill. I am satisfied that a simple question from the respondent about the payment of goodwill or some other premium to anyone else for the work or the vehicle at the time, if it was going to go to the trouble of going through the contract term by term and had an honest desire to stamp out an unacceptable practice, might have guarded against what occurred. Gleeson did not hand over any money until 7 April 1994 some 6 no.14 06.04.01

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weeks after the contract was signed although he had made the arrangement with Bellingham before the contract was signed. The payment could have been prevented by some simple questions. As previously observed, Gleeson’s attitude to the clause forbidding an assignment was probably coloured by the arrangement he had already made and by the fact that it must have appeared to him that Bellingham had purported to assign his contract in breach of a similar provision. The gullibility and foolishness of persons like the applicant who fail to make due and adequate inquiry in no way excuses the employer – see e.g. Watt v. Boles Transport Co Pty Ltd & Ors (1974) A.R. 242; Spicer v. Clifford (1969) A.R. 273; Terzian v. Gattelari (1972) A.R. 591. I am satisfied that the contract was harsh, unconscionable and unfair and that it was an unfair contract within the meaning of s. 276 at the time it was entered into and/or became an unfair contract after it was entered into, because of the failure of the respondent to properly ensure that there had been no payment of goodwill. Circumstances existed whereby it was reasonably foreseeable that such a payment might be made. By this I do not suggest that the contract was an unfair contract vis-a-vis the applicant and the respondent because of the actions of Bellingham in committing what was probably in reality a fraud. The respondent received nothing from the payment of goodwill and was not aware of what Bellingham did. If those circumstances alone existed, the contract as between the applicant and respondent could not be found to be unfair, I would suggest. However, it was the respondent’s failure to exercise reasonable care for conduct which was reasonably foreseeable which rendered the contract unfair and in those circumstances it is appropriate to take into account the arrangement between Bellingham and Gleeson. That latter arrangement was part of the overall circumstances referred to by Hungerford J in Palmer. The facts of that case were briefly that Palmer purchased a truck from one Brown which included a sum for goodwill. He was told that he would have a position in the yard of the company TNT Australia for a minimum of 5 years. Palmer was not allowed to sell the goodwill by the company nor was Brown allowed to convey it to Palmer. No one informed Palmer that goodwill could not be sold or that to buy it was to buy an illusion. There was evidence that the respondent had known of the practice and was endeavouring to stamp it out. There was also evidence that the respondent knew that trucks were sold for above market value. Hungerford J said:– “However, it should be emphasised that the overall circumstances necessarily include, although itself not sought to be avoided or varied, the contract between the applicant and Mr and Mrs Brown ..... whereby the applicant bought the Hino truck for $19,000.00 and paid an amount of $41,000.00 for so-called ‘goodwill’ or, more correctly, for the right to be an LOD at the Enfield yard and obtain work from the respondent. The two contracts so identified, it seems to me, fall for consideration under the section as part of the circumstances of the total arrangement under which work was performed as involving the various actors, even though only the ‘work’ contract between the applicant and the respondent was the subject of challenge ....... The aspect of goodwill formed a major part of this case and, notwithstanding it was part of the contract between the applicant and ...... Brown, was in my view, a relevant aspect insofar as the proceedings concerned the respondent.”. Again, in Myer Stores Limited, trading as Grace Bros v. Stowar & Ors (1994) 55 IR 21 the Full Court of the Industrial Court of NSW adopted the following reasoning as to the meaning of the term “arrangement” which is a term included in the definition of “contract” in s. 276(7) of the Queensland Act:– “ ... ‘arrangement’ embraces transactions which do not give rise to contracts or obligations, that is to say, obligations enforceable at law, but we are also of the opinion that in another meaning it embraces a situation where there exist two or more separate contracts which, notwithstanding their separateness, are, given the facts, so sufficiently associated with each other in a practical sense as together to constitute an arrangement of which each contract is a part. ... two or more separate contracts may be so sufficiently associated with each other as together to constitute an arrangement ...”. Whether the contract was unfair when it was entered into or became unfair because of what occurred is probably of little moment. This is because “unfairness may arise either from the terms of the contract itself, the surrounding circumstances, and/or from the manner of performance or operation of the contract. It may arise simply in the special circumstances of and surrounding the particular contract” – per Hill J in Barry v. Incitec Ltd (1991) 45 IR 143. The circumstances of the termination were of little relevance to the unfairness of the contract in this case. After giving notice of termination, the respondent refused to allow time for the applicant to sell his contract. But it could not allow time for him to sell at all because he had purchased a commodity which was unsaleable. It had no value because it could not be traded. The circumstances of the termination were thus irrelevant. No matter whether the contract was terminated or whether the contract had simply expired, the unmarketability of the contract remained. I am satisfied that the contract was unfair. I do not consider it should be amended as sought, primarily because I do not consider it appropriate to replace it with what would be an entirely different type of contract. The respondent pointed out how inappropriate that remedy might be. I am not limited to that remedy. The application seeks in the alternative that the contract be declared void. I consider that to be the appropriate remedy. The accompanying application for the inclusion of the terms of the Termination, Change and Redundancy Policy of the Commission into the agreement was not subsequently developed or argued and would be an amendment in any event. I consider that the contract should be declared void ab initio except for its provisions as to the payment of money. The applicant sought a payment of one year’s income in lieu of notice. That is inappropriate, providing for the windfall gain referred to by the respondent. The Act in s. 276(5) provides that the commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void. In Palmer, Hungerford J referred to the NSW provision in s. 275(3) which read, in part – “ ... make such order as to the payment of money in connection with any contract ... declared wholly or partly void .. as the Industrial Court considers just in the circumstances of the case.”. His Honour said :– “The nature of the orders which may be so made cover a wide field, being limited only to a ‘connection with’ the avoided contract, and include a broad concept of restitution as well as remedial provision in respect of monies which have been paid or which were payable under the contract itself.”. While s. 276(5) of the Act does not say so in so many words, it seems that approach is reasonable. It is difficult to get away from the concept that an award should have some connection with the relevant contract and it is after all a basic principle of a damages award that the injured party, so far as money can do it, is to be placed in the same situation as if the contract had been performed – Wenham v. Ella (1972) 127 CLR 454 at 471. Comparisons with awards made in other jurisdictions or in other cases may be helpful but certainly not binding as each case depends on its own facts and circumstances. Gleeson was aware of the risk he took that his contract may not be renewed when he signed the contract although perhaps not fully appreciating that risk because of the payment he had made. As previously mentioned, however misguided it was, he thought he was buying a business. He was or should have later become aware that his contract may not be the subject of further renewal because of performance problems and a previous contract had continued on a monthly basis due to employer dissatisfaction. In fact, I am satisfied that employer dissatisfaction was very real. Applicant should not have expected too much and he must have been aware that he had a slender hold on his position. The respondent had complained on a number

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of occasions and correspondence, particularly that of 13 June, 2000 reflected the employer’s frustration. Applicant responded to that correspondence with a note on 31 July, 2000 which was hardly conciliatory. That note resulted in the letter of 2 August 2000 giving notice that the contract would not be renewed. Applicant then secured employment even before termination and commenced work with a rival company one week after the contract expired. I do not consider that the order should encompass any ingredient for loss of earnings. While the goodwill payment was contributed to by the respondent’s inaction, it was primarily made because of the misrepresentation by Bellingham, a misrepresentation of which the respondent was unaware. The applicant had the benefit of his contract for 6 years during which time he earned a reasonable income. Some remarks of Macken J in Bradrib Pty Ltd v. Jilly Bean Pty Ltd & Anor (No 1) (1987) 21 IR 90 bear some relevance:– “All this having been said I do not consider that the applicant has made out a case for a return of the sum of $45,000. Before entering into the contract Mr Johnston was advised by the yard manager that a fair price for goodwill was $30,000 rather than the $45,000 he paid. Furthermore, he enjoyed the benefit of the above-award wages for some eighteen months before he lost the benefit of the contract. Both these factors, together with the fact that he took a calculated risk for which he must bear some responsibility, add up to reduce the liability of the company for his losses.”. His Honour awarded half the loss. One-half of the goodwill was also ordered in Palmer. In all of the circumstances in this case, I consider that a money payment of one half of the goodwill is appropriate. I order that the respondent pay to the applicant the sum of $8,000. The applicant in his application sought costs. That application was not developed at the hearing. If there is to be an application (which is not encouraged), it should be lodged within 14 days. I order accordingly. B.J. BLADES, Commissioner.

Released: 22 March 2001

Appearances:– Ms S. McCartney, with her Mr M. Palma, of Primrose Couper Cronin Rudkin, for the applicant. Mr I. Perkins, Counsel, instructed by Mr P. Waller of McLaughlins Solicitors, for the respondent.

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Jeanine MacKenzie AND RMF Group Pty Ltd (No. B1397 of 2000) COMMISSIONER THOMPSON

22 March 2001

Application for reinstatement – Preliminary matter – Extension of time – Extension granted – Employment status – Casual employee – Clothing Trades Award – Southern & Central Divisions – Termination not harsh, unjust or unreasonable – Application dismissed. DECISION Ms Jeanine MacKenzie, lodged an application for reinstatement as a senior dressmaker with the RMF Group Pty Ltd (RMF) after her employment ceased on 10 August 2000. The applicant’s employment had commenced on or around September 1999, with the Respondent, through a transmission of business, brought about by the purchase of the business from the previous employer by RMF. At the time of the applicant’s ceasing of employment, she was paid a casual rate of pay being $14.50 per hour. Preliminary Matter As a preliminary matter, the Commission was required to determine whether an extension of time, in accordance with s. 74(2)(b) of the Industrial Relations Act 1999 be granted so as to allow the application to proceed to hearing. A decision in respect of this matter was given from the bench as follows (as edited):– “Directions orders in respect of this matter were issued on 22 December 2000, which at paragraph 9 required that a preliminary hearing be held to determine whether the applicant should be given an extension of time. The Commission determined it appropriate that on 8 March 2001, that the issue of the extension be heard, to which neither the applicant, nor the respondent, raised objection. In respect of the hearing, both parties provided submissions from the Bar table, and neither the applicant, nor the respondent, chose to call witnesses to provide evidence in respect of their respective arguments. Under the circumstances, the approach of the parties had the full acceptance of the Commission and equal weightage was given by the Commission to the submissions of each of the parties. Mr Royce, for the applicant, in the first instance, argued that an extension of time was not necessary as no termination of the applicant had occurred. He indicated that a constructive dismissal had taken place. However, as the extension of time was the subject of the hearing, it was his view that the following matters were relevant for consideration to granting the applicant the extension sought. no.14 06.04.01

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The applicant had been given no formal written advice of termination, which the respondent stated had been effective from 10 August 2000. The applicant had not received either a statement of service or a separation certificate. In the case of a separation certificate, this should have been provided by the respondent as a statutory requirement. Mr Royce cited an unsigned letter under the name of the respondent, Rosa Arfuso, dated 1 September 2000, which provided information of the applicant’s employment with the company. In particular, he quoted the second paragraph of that letter and I quote:– ‘Unfortunately, we have experienced a downturn in work flow and as a result of, Jeanine’s hours have been drastically reduced to the extent that we have not required her services for the past few weeks.’. Mr Royce stated that the applicant had not received, nor seen this letter prior to the exchange of affidavits in accordance with the directions orders and argued that it should be considered by the Commission as a clear identification by the respondent that a termination had not occurred. Mr Royce’s submissions were that standard procedures (that is, statement of service, separation certificates) had not been complied with at or after 10 August 2000, and other persons had been offered employment by the respondent. Relied upon further by Mr Royce, was a decision from Commissioner Blades of the Queensland Industrial Relations Commission in the Geoffrey Robert Ryan v Rightpak Investments (B1958 of 1998) to support his claim. Finally, Mr Royce submitted that if the Commission had to accept that 10 August 2000 was the date of termination, then the failure of the respondent to comply with the statutory requirements (separation certificate) were sufficient to leave the applicant in doubt as to whether she had been terminated or, as he argued, her offer of work had been dramatically or drastically reduced. On the other hand, if the Commission were to accept the letter of 1 September 2000 as formal advice of the termination, then no extension under those circumstances would be required. Mr Humphries for the respondent, stated that the applicant was a casual employee and 10 August 2000 was a clear date of termination. The oral termination by the respondent was of sufficient statutes to leave the applicant in no doubt that her services were no longer required. He acknowledged that the respondent had failed to meet her statutory obligations, particularly in respect of the separation certificate. The letter of the respondent, which was unsigned, of 1 September 2000 had not been given to the applicant, according to Mr Humphries, until the exchange was by way of the directions order. There was no reason to put before the Commission to warrant an extension of time for the 18 days which were over and above the 21 days provided for in the Industrial Relations Act 1999. Supportive of Mr Humphries’ arguments, were authorities of Commissioner Bloomfield of the Queensland Industrial Relations Commission in the matter Gerard Michael Duggan v Australian Resorts (B1140 of 1994). In particular, he made reference in the exhibit that was tendered and highlighted the second last paragraph of that decision which reads:– ‘The power to grant an extension of time is clearly discretionary. The use of the discretion, one way or another, must not be abused. To benefit from the exercise of discretion, an applicant, in my view, must or have been genuine in their intention to seek redress and there must be some reasonable explanation for the delay on my findings in this matter. Mr Duggan failed on both counts.’. Further relied upon by Mr Humphries, was the matter before Vice President Linnane of the Queensland Industrial Relations Commission in the matter of Tracey Colfax v Jupiters Limited (B1547 of 2000) in which that matter was determined using the decision of the then Chief Industrial Commissioner, now President Hall, in the Breust v Qantas Airways Limited (1995), 149 QGIG 777, which identified the factors to be considered in granting an extension of time. Those being:– (i) (ii) (iii) (iv) (v)

length of delay; explanation for delay; prejudice to the applicant if the extension is not granted; prejudice to the respondent if the leave is granted; and any relevant conduct of the respondent.

Further, that three caveats were added to the approach in Breust v Qantas Airways Limited, which were:– (i)

s. 74(2)(b) of the Act vests an unlimited statutory discretion in the Commission, which must always be exercised;

(ii)

that the time limit of 21 days provided for in s. 74(2)(b) must be respected; and

(iii)

that the applicant’s prospect of success at the substantive hearing is always relevant matter i.e. where it appears that the applicant has no or very limited prospects of success, the Commission should not grant an extension of time.

Mr Humphries stated an extension of time should not be granted. Conclusion The conclusion reached by the Commission is as follows. The Commission, under s. 74(2)(b) of the Act, can determine a further period after the 21 days time limit that has elapsed and that is quite discretionary to the powers of the Commission. In respect of this matter, Mr Royce has submitted that the applicant was not provided with written advice in respect of the termination, nor was the separation certificate, which is a statutory requirement provided to the applicant by the respondent, either at termination or at any other time. And that was sufficient cause for the applicant to be unsure of her termination date and therefore act as a sufficient reason to explain the lateness of the application.

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Mr Humphries, on the other hand, undoubtedly was of the view that the oral termination as at 10 August 2000, was sufficient to alert the applicant to the fact that her employment had finished. He acknowledged the failure of the respondent to provide relevant formal information. In this area, I’m inclined to accept the view expressed by Mr Royce. In terms of the factors in the Breust v Qantas Airways Limited decision as applied in this matter, it would be as follows:– (a) The length of the delay – 18 days. (b) The explanation for the delay – I accept the reasons put forward by the applicant that the failure of the respondent to facilitate the termination in an acceptable fashion would have been an adequate reason for the delay to have occurred. (c) Prejudice to the applicant if the extension of time is not granted – The Act provides at Part 2 ‘Unfair Dismissal’ a way in which an applicant can seek redress when an unfair dismissal is alleged and though in this case the failure of the respondent, to provide a process that was effective, the termination would, in my view, be one that the applicant had reason to have some doubts about and therefore a decision not to provide an extension of time would prejudice the applicant in this matter. (d) Prejudice to employer – In terms of any prejudice to the respondent if the extension of time is granted, the employer’s actions or more appropriate, inactions, have resulted in the extension of time argument, in my view, having to be had in the first instance and I am not of the view that granting the extension of time will greatly prejudice the respondent. (e) Any relevant conduct of the respondent – I think that may be well covered in relation to the comments I made in respect of point (d), the prejudice to the respondent, if the extension of time is granted. In terms of the three caveats that were also applied in the Qantas decision, I have looked closely at those as well and taken that into consideration in terms of this matter. I am of the view that the applicant should be granted the extension of time being for 18 days, to allow the application to proceed and go forward.”. Applicant The evidence of the applicant, Ms MacKenzie, commenced with details of her employment with the respondent which included:– • • • •

hours worked per week; scope of work performed; place of employment – Shop 322, Pacific Fair; experience in the clothing industry – in excess of twenty (20) years.

In terms of the applicant’s employment status, evidence was given that, through the course of her employment, she had been told that she was a casual employee. With respect to her work performance, it was stated at paragraph (h) of the affidavit of evidence:– “I was often praised for the work I performed and for my support of the owners and their business. I gave Rosa 100% commitment and support throughout my employment. I have not been approached in respect of any issue concerning my ability, work attitude or the need to reduce my hours.”. In the statement of reply to the affidavit of Ms Rosa Arfuso, at paragraph 5, the applicant stated:– “I have not been informed of any complaints regarding my work and was unaware of any figures regarding the alleged downturn in trade. Prior to my termination new staff were employed.”. Since the ceasing of the employment relationship, Ms MacKenzie had not found a position with similarity in hours to that of her previous position, and was at present, in work, which provided her with some $250 per week for work performed over a period of between two (2) and three (3) days. The evidence of Ms Susan Flemming and Ms Christine Barry, both former work colleagues of the applicant and also past employees of the respondent, provided a view, from their perspective, as to the competency of Ms MacKenzie in her work performance. Ms Barry, in evidence, provided details of her resignation from RMF due to a disagreement with Ms Arfuso and Ms Yvonne Gorman over the reasons for the applicant’s termination. Finally, evidence was given by a Mr Jeffrey Coates, a former employer of the applicant, which attested to her level of competency as both a sewer and a machinist. Respondent The respondent’s argument relied upon evidence from the owner/operator, Ms Arfuso, and an employee, Ms Gorman, who is employed as the senior dressmaker at Pacific Fair Suit Hire, the premises where the bulk of the applicant’s employment had taken place. no.14 06.04.01

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Ms Arfuso’s evidence was that she purchased, through her company RMF, the business from the then owners Noela and Ted Lehermann in September 1999 and she is currently directly involved in the operation and management of the Pacific Fair Suit Hire (Pacific Fair Shopping Centre) and Rosa’s Alterations (Oasis Shopping Centre). The applicant had been employed by the previous owners since April 1999, and it was agreed on Ms Arfuso’s acquisition of the business, that Ms MacKenzie would continue on in employment under the same arrangement that had existed with the Lehermann’s. Ms MacKenzie’s employment, by nature, was that of a casual employee. In the opinion of the respondent, the applicant had the skills and experience to perform cuffs, simple hems, and taking in the backs of trousers, but was not sufficiently experienced or skilled in the areas of jackets, evening wear, dressmaking or tailoring. Prior to 30 June 2000, the applicant had been working on a regular basis in the vicinity of between thirty-six (36) and forty (40) hours per week, however, following the introduction of the Goods and Services Tax (GST), there was a substantial reduction in the availability of work and her hours were then reduced to that of thirty (30) hours per week. At that time, it became apparent to the respondent, that if the downward trend in sales continued, there would need to be a consideration given to a company restructure. Supportive of the loss of income, being experienced by the company, due to the downturn in sales, was evidenced in the Commission by the document which formed attachment 1 of the respondent’s affidavit of evidence which provided figures relating to the income derived from alterations and sales from May 2000 until December 2000. These figures were as follows:– • • • • • • • •

May – $28,870 June – $33,610 July – $20,387 August – $26,033 September – $22,960 October – $23,440 November – $21,349 December – $19,775.

In evidence, Ms Arfuso, at paragraph 8 of her affidavit of evidence, detailed her actions in appraising Ms MacKenzie of the difficult set of circumstances in which the company had found itself:– “I had spoken to Mrs MacKenzie numerous times about the decline in sales of the alterations side of the business and the complaints we had received about her work as early as six weeks prior to her termination. Mrs MacKenzie was aware that the business was not going well and needed to improve. Our cash flow was low and our expenses continued to be high.”. On 3 August 2000, the respondent, having made an assessment from her own knowledge of the skills of the applicant, and other employees of the company, determined that because of the declining sales, a restructure of the company was required and at that time, decided that the termination of the applicant would be inevitable. During the week of 3 August 2000, the applicant was spoken to by the respondent regarding a number of complaints that had been received in relation to her work and again the shortage of work in the area for which the respondent deemed the applicant competent was again subject to discussion. On 10 August 2000, the applicant was advised that her employment was terminated on the basis that a slow down in sales had occurred, specifically in the area of “simple sewing” and it was stated that if an increase in sales became evident at some time in the future, then the respondent committed to contacting the applicant in respect of future work. Some three (3) weeks after the termination had occurred, Ms MacKenzie requested that a termination letter be provided. A letter was subsequently prepared by the bookkeeper on behalf of the respondent, however this letter was never forwarded to or collected by the applicant. Finally, at paragraph 15 of the affidavit of evidence, the respondent summed up the predicament in which she found herself as a result of the downturn in business and the need to terminate the services of the applicant:– “I made a business decision to terminate Ms MacKenzie. Since June 2000 sales have declined significantly and the introduction of GST had left the business with a large tax bill. Given this situation and the skill level of Mrs MacKenzie I made a purely business decision to terminate her employment. I personally have taken over many of Mrs MacKenzie’s duties, and am currently working 70 hours per week just to keep the business alive. The profit of the business has been significantly eaten away in the current economic climate.”. The evidence of Ms Gorman was, at times, quite scathing in terms of the applicant’s level of competency and ability to perform her duties in a satisfactory manner. There was confirmation given by this witness of a reduction in the level of sales in respect of alterations that the company had, and was continuing to experience. Submissions Applicant Mr Royce, representing the applicant, stated that in the course of his final submissions, he would address three particular points made by the respondent at the proceedings. Those being:– • • •

casual employee (status); economic circumstances of the business; and procedural fairness.

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Mr Royce presented the position that both parties had little or no understanding of the Award (Clothing Trades Award – Southern and Central Divisions) which governed the terms and conditions of employment. The Award definition relating to casual employment, in Mr Royce’s words at page 108 of transcript, line 20 was:– “Employees employed for less than 30 hours per week exclusive of over-time, and that they be given a 33 and a third per cent loading.”. Reference was made to a matter, Ross Atkins v Hymix Industries B1579 of 1997, in which, according to Mr Royce, the Commission found that the relevant Award in that case had a definition relating to the number of hours a casual could be employed. Additionally, Mr Royce referred the Commission to a matter of Katherine Hinkins v Micro Corporation in B1170 of 1999, before Edwards, C suggesting that this should be considered by the Commission when determining the employment status of the applicant. Mr Royce submitted that the applicant regularly and systematically worked hours in the region of between thirty-six (36) and forty (40) hours per week and could only, in his view, be classed as a full-time employee. In respect of the economic circumstances of the company, it was submitted that the financial information presented as an attachment to Ms Arfuso’s evidence, had not been directly collated by the respondent, and therefore, Mr Royce stated that in accordance with Wendy Chee Fong Tan v Atherbook Pty Ltd in B1253 of 2000 before Vice President Linnane, if the person who prepared the financial information was not subject to cross-examination, then the Commission could not place significant importance on this information. On the issue of procedural fairness, the applicant refutes that the matter of her possible termination was subject to any discussion with the respondent on 3 August 2000 as had been evidenced during the course of the hearing. Mr Royce was of the view that other employment options should have been discussed with the applicant prior to the termination. In terms of the witnesses produced by the applicant, Mr Royce stated that all had shared similar opinions in that Ms MacKenzie was a capable and competent worker. On the credibility of the respondent’s witness, Ms Gorman, Mr Royce stated at page 110 of transcript, paragraph 40:– “This particular witness also assisted – I thought she assisted us more than she did the respondent.”. He then went on to make further comments at page 111 of transcript, paragraph 30:– “She goes on to further contradict herself about the type of work, and there’s a lot more jackets and a lot more of those particular items coming in, wedding gowns. So we say as far as point 9 goes that is a deliberate attempt to mislead the Commission in relation to the aspect of the respondent’s case. We also say that she was evasive in relation to dates. Point 3 of her document, she was asked was she there, or did she attend those particular meetings, and it was found to be all hearsay, and point 4 was hearsay. She had no first hand knowledge of these particular items, so she was relaying through a Chinese whisper, things that she heard from somebody else about somebody else, and we say all those particular issues which were proven to be hearsay, where she had no first hand knowledge, obviously can’t affect – or be given any weight or consideration by the Commission.”. Finally, Mr Royce sought that the Commission, in accordance with s. 73(1) of the Act, find that the termination of the applicant was harsh, unjust and unreasonable and this would particularly be so if the applicant was found to be a full-time employee as opposed to that of a casual employee. The relief sought by the applicant was reinstatement to her former position without prejudice and loss of entitlements, and that she be paid any remuneration to which she would have been entitled from the point of dismissal to the date of her reinstatement. If the Commission was to find that the issue of reinstatement was impractical, then substantial compensation should be awarded. Respondent Mr Humphries, on behalf of the respondent, firstly stated that the applicant’s witnesses had provided the Commission with character references for the applicant, but there had been little evidence relevant to the termination of the applicant’s employment. The argument as to Ms MacKenzie’s employment status was simple to refute in that the applicant’s own statement of evidence made it clear that she believed that her employment had been that of a casual nature. The fact that the applicant’s hours of work may have, from time to time, exceeded thirty (30) hours per week, did not entitle her to become automatically a full-time employee, in fact the respondent would argue that the hours worked over and above the thirty (30) hours per week, would at worst put the employer in a technical breach of the Award. The evidence of the respondent was that at least two (2) conversations took place between 3 and 10 August 2000 at which the downturn of work was discussed as well as the possibility of terminating the services of the applicant. Mr Humphries drew the Commission’s attention to s. 77 of the Act:– “Matters to be considered in deciding an application 77. In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider– (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to– (i) the operational requirements of the employer’s undertaking, establishment or service. . .”. It was submitted that in respect of both subclauses (a) and (b) which were relevant in the circumstances of this matter, that in both instances the company was compliant with those provisions. no.14 06.04.01

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Ms MacKenzie was not the only employee to have been terminated due to the downturn in the business, and that the respondent Ms Arfuso, had gone through the correct process in undertaking the terminations so that she could give her company the best chance for survival in what were difficult times. Mr Humphries was of the view that the Commission should find that the termination was not harsh, unjust or unreasonable and that the application should be dismissed. Conclusion An important factor as to whether the termination issue was harsh, unjust or unreasonable, would appear to hinge on the employment status of the applicant. Mr Royce’s argument was that because the applicant worked regular and systematic hours in excess of the thirty (30) hours per week limit set under clause 21 of the Award, the applicant should therefore be deemed to be a full-time employee. However, the difficulty in sustaining that argument is that the Award does not contain a provision that automatically progresses someone from a casual to a full-time employee once the thirty (30) hour per week limit has been exceeded, nor is that implied elsewhere in the Award. The applicant, in her statement of evidence, at paragraph (c) stated: “Throughout my employment, I have been told I was a casual employee.”. There was no evidence produced that during the course of the applicant’s employment with the respondent, or for that matter, the previous owners of the business, that the casual nature of the employment had ever been questioned or subject to any form of dispute. I find that the employment status of the applicant in this matter was that of a casual as opposed to a full-time employee and therefore, under the “Terms of Engagement” clause 14(2) of the Award, the applicant’s services were able to be legally terminated on an hour’s notice. In terms of the reasons for the termination, I accept the evidence of the respondent that the company suffered, and continues to suffer, a significant downturn in business from 1 July 2000, and the decision of the respondent to effect the termination of the applicant was due to the operational requirements of the business. In respect of the procedural fairness, it would be reasonable for the applicant to have some concerns in respect of not receiving a written notice at the time of termination. However, I accept the evidence of the respondent that the applicant was advised, prior to the termination, of the reduced work availability and the possible need to restructure the company. Under the circumstances, the respondent was only required, by the Award, to provide an hour’s notice of termination to the applicant and it is the view of the Commission that the Award provision has been complied with in a correct and reasonable manner. Therefore, I find that the termination was not harsh, unjust or unreasonable, and accordingly I dismiss the application. J.M. THOMPSON, Commissioner.

Released: 22 March 2001

Appearances:– Mr S. Royce, of Australian Industrial Reinstatement Services, for the Applicant. Mr M. Humphries, of the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, for the Respondent.

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Dale Latemore AND Roma Town Council (No. B1403 of 2000) COMMISSIONER THOMPSON

28 March 2001

Application for reinstatement – Inspection – Allegation of serious misconduct – Investigation – Procedural fairness – Harsh, unjust and unreasonable – Compensation ordered – Re-employment – Application granted. DECISION An application was filed by The Australian Workers' Union of Employees, Queensland (AWU) seeking the reinstatement of Dale Latemore to his former position with the Roma Town Council (Council). The applicant had commenced employment with the Council on 24 May 1983 and was terminated on 12 September 2000. Background The applicant was summoned to attend a meeting with the Chief Executive of the Council, Mr Russell Hood, on 12 September 2000 following receipt by the Council of an “unsigned” letter alleging that he had been observed depositing an amount of soil behind his residence at 43 Charles Street, Roma. It was alleged by the Council that the soil had been removed by the applicant, from the Council stockpile without authorisation, in a Council vehicle, during normal Council working hours. On 6 September 2000, the Council officer, Mr Mark Worland, had been given the responsibility to investigate the allegations and subsequently reported back to Mr Hood the details of a conversation between the applicant and himself, where the applicant was alleged to confirmed the substance of the allegations. It was the contention of the Council that the applicant had the opportunity, in the presence of Mr Hood, and other Council officers, to provide a plausible explanation for his actions, but had failed to do so. At the conclusion of the meeting, the applicant was handed a pre-typed letter (dated 11 September 2000) by Mr Hood, which advised that actions in this matter constituted serious misconduct and that his employment was terminated effective immediately.

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Inspection On 14 March 2001, day 1 of the proceedings, the Commission, and both parties, visited the property of Mr Latemore, located at 43 Charles Street, Roma, and was able to observe, first hand, the lay of the land, the subsidence hole, and the location of where the soil was deposited. Additionally, a recent excavation which was approximately one meter deep and exposing a sewer manhole, was able to be viewed by the parties. On a property adjacent to the Council property where the soil had been left in the first instance, stood a recently completed industrial building. Applicant The applicant’s explanation of events were that for the period of some ten (10) years, there had been a subsidence hole on a property next door to his residence which was owned by a Mr M. Weidman and that the subsidence hole had required periodical “filling or topping up” to prevent a dangerous situation arising. At the time in which the subsidence had first come to his attention, the applicant had sought the assistance of a then Council Officer, Mr Maxwell Robertson, as to the probable cause of such occurrence and advice was received that it was likely that a broken Council sewer main was causing the problem. Approval had been given at that time by Mr Robertson to provide on-going maintenance to the area of subsidence using the Council material on the basis that the problem was as a result of a fault in the Council sewer main. The reasons for the placement of the soil on the Council property at the rear of the applicant’s premises was given that in the immediate future the Council would be required to provide a sewer connection on an adjacent property (also owned by Mr Weidman) and the soil not used to fill the subsidence hole could be utilised as backfill for that job. The applicant was represented by Ms Tracey Lane of the AWU and evidence was produced from the applicant himself and Mr Robertson, a former sewerage foreman with the Roma Town Council. Affidavits of evidence were provided during the course of the direction orders process from three (3) Council employees being Mr Trevor English, Mr Frank Saunders and Mr Steven Outen. The evidence of these three persons was not considered during the course of the proceedings due to their failure to present themselves at the hearing. Mr Latemore, in evidence, stated that he commenced employment with the Council on 24 May 1983 and had been the AWU representative at Council for the past twelve (12) years. For a period of five (5) years prior to his dismissal, he had continually been filling a subsidence hole on a block of land (owned by Mr Weidman) next door to his own residence. The property directly adjoining the back boundary of his property is land owned by the Roma Town Council. The Council’s sewerage officers, Mr Robertson (past) and Mr Brian Larter (present), had been totally aware of his work on the subsidence hole and the method being used to rectify the problem. Until recently, the soil required for the work had been delivered to site in the bucket of a small front end loader, but due to a change in law which prohibited the driving on a public road of such vehicles, he had used a Council truck to deliver the soil. The evidence of the applicant was that the approximate retail value of the soil was in the vicinity of $14. His evidence was that the actions in performing the work had saved the Council having to excavate the sewer main (between four and five meters in depth) to repair the damaged pipe. On Wednesday 6 September, Mr Worland visited the applicant’s residence to inquire about the soil and is alleged to have commented to the applicant “how fast can you move it as there has been a nasty letter written to the Council”. The applicant’s evidence was that he told Mr Worland that the soil was there for a Council job and therefore declined the advice to relocate the soil. On the day of his dismissal, the applicant was requested to go to the office of Mr Hood where he was informed that an “unsigned” letter had been received by Council which made certain allegations that had taken Council property (soil) and placed it at the back of his own residence. At paragraph 18 of his affidavit of evidence, he said:– “I told Mr Hood that this was true. I handed Mr Hood a copy of the sewerage plan and told him what was going on with the hole. He did not look at the plan in detail and said ‘Too bad you’ve had too many warnings, see the pay clerk on your way out.’ ”. Mr Hood then handed him a letter of termination which was in a sealed envelope. The applicant, in evidence, believed that his position as a union representative at the Council, may have been a factor in his dismissal. On 22 November 2000, the applicant noticed that the soil, which had remained at the back of his residence since his termination, had been removed and consequently he rang Mr Hood and advised him that the soil had been removed by a person or persons unknown to him. A Queensland Police officer (Constable Chris Dalgleish) called on the applicant on 15 January 2001 to investigate a complaint that two (2) metres of soil had been stolen. The applicant’s evidence was that no further contact with the police had been made with himself following the initial interview. During the evidence-in-chief, the applicant at page 12 line 50 of transcript was asked a question by Ms Lane to which he replied:–

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“One last question, Mr Latemore, do you believe that if you were awarded reinstatement in this matter that there would be no problem with you returning to the Roma Town Council in the capacity of working there? - - No, I couldn’t see any problem. I’ve had a lot of support from the workers down there. So you would have no problem going back to Roma Town Council? - - No, none at all.”. The second and final witness for the applicant, Mr Robertson, was a person who had been employed as a sewerage foreman by the Roma Town Council for a period of thirty-six (36) years and ten (10) months and had retired from that position in 1998. His evidence provided details of the role of the sewerage foreman which required him to have involvement in the installation of sewerage pumping stations, sewerage mains, manholes, house drain connections, as well as the maintenance of the above installations. From his experience, he was able to conclude that broken sewerage pipes cause sinkage and subsidence and generally need a “topping up” with waste soil in paddocks and loam in house yards provided suitable rectification of the problem. Under cross-examination from Mr Beer in respect of the methods of filling subsidence holes, at page 53, line 40 of transcript, an exchange between Mr Beer and Mr Robertson produced the following:– “Well, I mean, you were looking after the system for 30 years. It strikes me as a little bit ridiculous to suggest that you’re not really looking after it if you’re prepared to fill holes in and not fix them? - - You haven’t got time to fix everything up, mate, all the time where there’s only two of youse in the department when you should – you could probably employ four or five or half a dozen.”. Further on in the cross-examination, at page 55 between lines 10 and 30 of transcript, the following question/answer exchange between Mr Beer and Mr Robertson occurred:– “You recall issuing an instruction to Dale to cart soil to the Weidman property to put into this hole that kept developing? - - Yes, yeah. Did you – when did you issue this instruction? - - Hey? When did you issue this instruction to Dale? - - When it - when if first occurred, right, and I just said, ‘Just keep topping it up or let me know,’ and just top it up. If he - if he just said, say, later on two or three years or that, ‘That hole’s getting bad,’ I’d just say, ‘Well, when it suits us, top her up.’ It mightn’t be straight away. It might be tomorrow or the next day. Okay. So on each occasion the hole developed, Dale would raise it with you and you would give Dale an Instruction to top it up with some dirt? - When I was at the Council. Okay. So did you give him any instructions about what to do after you’d left Council? - - Not - after I left Council? No, not after I left the Council. You’d just carry on with your natural - what you’ve been doing all your - all your life - what your previous instructions were . . . Okay? - - . . . the way of working. When did you first give Dale the instruction to start putting soil into that hole? - - Oh, probably about when it first happened, 10 year ago, something like that, when I first stated. And would you expect Dale to carry out that instruction during smokos or weekends or lunch times? - - For his own benefit, you would.”. Respondent The respondent’s position, represented by Mr Beer of the Local Government Association of Queensland (Incorporated) (LGA), was that the applicant had been dismissed under s. 83(2)(a) of the Industrial Relations Act 1999 (the Act) relating to theft in that he had stolen Council property (soil) to be used for purposes for which no authorisation had been given. They refuted the reasoning promoted by the applicant that the cause of the subsidence hole was a broken sewer main on the basis that the actual location of the main was some twelve (12) to fifteen (15) metres away from the position of the hole. The Council had taken the decision to terminate Mr Latemore because he could not afford to tolerate a position where Council materials were being used for private purposes. In the view of the Council, this matter had the potential not only to have some impact on the Council, but also on the way in which the Council is perceived within the community. The respondent called evidence from Mr Hood, Mr Arthur Seaby, Mr Larter, Mr Jason Bartels, and Mr Worland, all of whom are current employees of the Council. The evidence of Mr Hood, the chief executive officer of the Council, was that he received an “unsigned” letter on 6 September 2000 which contained information that Dale Latemore had deposited a load of soil behind his residence during Council working hours and using a Council vehicle. Following a meeting between Mr Seaby (Council overseer) and Mr Worland (construction foreman/deputy overseer), he requested that the allegations be investigated which led to a visit by Mr Worland to the applicant’s residence. Mr Hood stated that Mr Worland’s advice was that the applicant had admitted to the allegations contained in the letter. Further, that during the course of the conversation with Mr Worland, a suggestion had been made to the applicant that the soil disappear to which the applicant had replied “he would ride this one out”. In determining the appropriate disciplinary action in respect of this matter, Mr Hood at paragraph 10 of his sworn statement of evidence indicated that he considered the following facts:– “(a) the substance, although unsigned, was supported by the physical evidence, and confirmed by Dale Latemore himself; (b) when confronted with the allegations by a supervisor, Dale Latemore offered no reason as to why the material had been deposited behind his residence;

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(c) Dale Latemore exhibited no remorse for his actions and refused to co-operate by removing the soil, stating he would ride this one out; (d) the monetary value of the material was insignificant, as Council charges $77 for a load of loam delivered on site, as per Council’s schedule of fees and charges; (e) there was the issue of the unauthorised use of Council plant. The minimum charge for hire of a Council truck or motor as per Council’s schedule of fees and charges is $55 per hour, and $85 per hour respectively; (f) there was also the issue of the value of lost wages while Dale Latemore was engaged in unproductive activity; and (g) Dale Latemore hade been given numerous verbal warnings regarding incidents of misconduct during the term of his employment.”. Mr Hood’s evidence was that he determined the matter constituted serious misconduct in accordance with s. 83(2)(a) of the Act and arranged for a letter of termination to be prepared. The following day he requested that Mr Bartels (water gas and sewerage overseer) arrange for the applicant to be brought to his office. On 12 September 2000, at a meeting attended by Mr Hood, Mr Bartels, Mr Larter, and Mr Latemore, the allegations were finally raised with the applicant. At the conclusion of the meeting, Mr Hood did not accept the applicant’s explanation for the following reasons:– • • • •

Dale Latemore’s supervisors were unaware of the existence of the hole in question, or his actions in filling the hole with appropriate Council material; the material supposedly to be used in filling the hole was not deposited anywhere near the hole; the hole was not located on Latemore’s property; and he did not believe that Latemore was such a motivated employee that he would take it upon himself to maintain Council infrastructure in his spare time.

Mr Hood then handed the previously prepared letter of termination to the applicant, and thus severing the employment relationship between the parties. A phone call was received from the applicant on 22 November 2000 informing that the soil at the centre of the dismissal had been removed from the Council property behind the applicant’s residence and Mr Hood, at that point, issued an instruction to have the matter reported to the police. Mr Seaby, in evidence, stated that he was employed as an overseer with the Council, and held that position for some twenty-two (22) years. His duties included supervision of the general operations of road works, water, sewerage and gas. In response to a request from Mr Hood, he arranged for Mr Worland to investigate a matter in which it was alleged that Mr Latemore had dropped a load of soil behind his residence. During his time as overseer, he had occasion to warn Mr Latemore on numerous times about the improper use of Council plant, material and damaging Council property. Under cross-examination from Ms Lane, Mr Seaby indicated that he was not aware of Council employees making use of Council equipment for their own personal benefit. The evidence of Mr Larter (sewerage foreman), the applicant’s direct supervisor, was that on 6 September 2000, it had been brought to his attention that the applicant had deposited a load of loam behind his residence and upon his questioning of Mr Latemore, he was advised that this was correct. On 12 September 2000, he attended the meeting at which the applicant was terminated. On being questioned by Mr Beer during the course of evidence-in-chief, when asked “What do you understand the hole to be?”, he replied at page 139, line 30 of transcript:– “Well, I understood at the time that it was a hole caused by subsidence over a sewerage main. I was told this by Dale and accepted it as that because he’d been told it by the guy that was in this job previously. That’s since been proven to be some distance from the sewer main.”. Further on during the continuation of the examination of Mr Beer, at page 141, line 30 of transcript, the following exchange occurred:– “Okay. Did you at any time on that morning authorise him to dump any sand at the back of his property? - - No, I didn’t. Were you aware that he was going to do that? - - No, I wasn’t. ... Okay. You’re quite clear you hadn’t authorised him to go and get any sand and? - - No. I had to ask him to go and get sand and metal in order to mix concrete. Right. Have you ever authorised him to get sand for filling in subsidence holes on the Weidman property? - - At different times I have, yes. Places where we dig - when we dig up a sewer connection or something and the ground shrinks into - after it gets wet or whatever and requires topping up. He’s been - he’s done this on occasion. But does Dale do that on his own accord or initiative or? - - He - well . . . . . . do you authorise him to, or instruct him? - - He had done it on his own accord. He had said to me at different times that he had a little bit of loam left on the truck, or sand or whatever, ‘What do you want to do with it? We want to put it in that job that’s’ - we work together as a team.”. In cross-examination from Ms Lane, Mr Larter indicated that the applicant was a good worker, had always done what had been asked of him, and that he has never had any problems with him.

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In the two years that Mr Larter had held the position of supervisor, he was asked whether or not he had any reason to warn the applicant in terms of his employment and the reply was that there had been “. . .a couple of blues over that period, but that he had never had a problem with his actual work as such.”. Mr Bartels had held the position of water, sewerage and gas overseer with the Council for the past eight years. He had been informed by Mr Hood on 6 September 2000 about the contents of an “unsigned” letter and understood that the Council was investigating the matter. On 12 September 2000, Mr Hood requested that he arrange for the applicant to attend a meeting at which the allegations contained in the letter had been put to Mr Latemore and subject to extensive discussions between the parties. At the conclusion of that meeting, Mr Hood declined to accept the explanation given by the applicant and handed him a letter of dismissal. Mr Bartels stated that on two (2) occasions he had given the applicant warning relating to the misuse of Council equipment. Under cross-examination from Ms Lane, at page 175, line 20 of transcript, Ms Lane asked this question:– “So you’ve never had to speak to Dale with anything that would warrant putting it on his personal file as a formal warning or anything like that? - No.”. The final witness for the respondent, Mr Worland, had held the position of construction foreman and deputy overseer with the Council for sixteen (16) years. On 6 September, he was requested to investigate a complaint about Mr Latemore regarding soil being dropped off behind the applicant’s residence. At page 182, line 20 of transcript, Mr Beer asked:– “When you got there, you engaged Mr Latemore in a conversation about exactly what? - - I just said there’d been a letter of complain written in about the - some soil tipped here. I think the letter said waste soil, or - or soil, so I just said this is probably the soil. There was not other soil in the area, and I asked him could he disappear it.”. In evidence, Mr Worland indicated that the applicant had not offered him an explanation as to why the soil was there. Mr Worland reported back to Mr Hood in respect of the investigation that he conducted and Mr Worland was aware that on 12 September 2000, the applicant’s employment was terminated by the Council. During Ms Lane’s cross-examination, reference was made to the possible consequences should the soil disappear, to which, at page 191, line 10 of transcript, Mr Worland indicated:– “Well they would have been up to - whoever’s - my bosses, as the consequences were up to my bosses what happened after the soil was left there. Do you think there would have been any consequences at all? - - With the last CEO - probably with this CEO. We’ve got a new set of rules and things have changed. Like what? Like what’s changed? COMMISSIONER: Well, you did make a comment that there’s a new set of rules. Maybe the answer lies in there. I mean, what are the new set of rules? - - Well, basically, in everyday stuff that we do, Russell'’ made it quite clear that it’s a - a - he’s tightened a lot of things up. Yes, and . . . So, that’s what’s changed, that Mr Hood’s tidying things up in the Council? - - Well, not tidying things up – tightening things up.”. In a question from the Commission in respect to the terms of procedures within the Council for persons required to pick up a load of loam or other similar material, Mr Worland indicated that there was not a docket system as such that required written authorisation of the person obtaining the material. Final Submissions Applicant Ms Lane, on behalf of the applicant, stated that the allegation of theft, by the Council, had always been disputed by the applicant and that he had always acknowledged that he had placed the loam, the subject of this matter, on Council property, immediately behind his own residence, and that the purpose of his actions were two fold, in that it was to be used firstly to “fill or top up” a subsidence hole on a property next to his own which he believed was caused by a leaking Council sewer main with the remainder of the unused soil being used at a later date on a sewer connection that was to be completed by the Council. The loam was delivered using a Council vehicle, but the applicant has at all times indicated that the delivery was made during the course of his “smoko” break as opposed to normal working time. At each stage of the Council investigation in relation to the matter, the applicant has never once denied his actions nor believed that his behaviour was wrongful in any way whatsoever. Ms Lane submitted that the Council had not provided the applicant with procedural fairness, or given him an opportunity to explain his position and that is clearly obvious by the actions of the CEO, Mr Hood, in preparing a letter of termination for the applicant prior to the meeting of 12 September 2000 at which the applicant was to be given the opportunity to provide an explanation to the Council. The letter of termination was handed to the applicant by Mr Hood immediately at the conclusion of that meeting. Evidence was provided to the Commission by both the applicant and Mr Robertson that indicated the practice of filling the subsidence hole had been occurring for a lengthy period of time with the approval of Council. The assumption of the Council that the applicant had stolen the soil for his own personal use, according to Ms Lane, had not been substantiated during the course of the proceedings.

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The Council had acted against the applicant on the basis of an “unsigned” letter and had never sought to determine the identity of the person responsible for generating the letter. The cause of the subsidence hole was subject to differing views from both the respondent and the applicant and the investigations carried out by the Council to determine their view, were in effect, carried out at a time long after the termination of the applicant. The evidence of the witnesses called by the respondent was highlighted by Ms Lane at page 202, line 20 of transcript:– “Today we’ve heard from four witnesses on behalf of the Council. These witnesses through evidence stated that Mr Latemore was a good worker and all tried to help Mr Latemore not be dismissed from the Council.”. The alleged warnings given to Mr Latemore during his employment with the Council had never been recorded on the file, and as such, should not be relied upon to justify the actions of the Council in respect of this termination. Supportive of the procedural fairness argument, Ms Lane relied upon the authority Berhe Tuke v CDC Diocasting Pty Ltd V11739 of 1994 in which a decision of Gray J. in Byrne v Australian National Airlines Limited (1994) 52 IR10 at 65 and it states:– “Finally, the refusal to hear the appellants on reasons why they ought not to be dismissed involved a denial of natural justice. Even if a person is caught in the act of some gross misconduct, there might be mitigating factors which would lead a reasonable employer not to dismiss.”. In terms of substantial fairness, Ms Lane argued that this had been denied through the entire course of the process by the Council, and that the dismissal had been harsh, unjust and unreasonable. A number of other authorities were relied upon by the applicant, including the Liddell v Lambke (1994) 56 IR 447. Ms Lane, in closing, indicated that the preferred remedy was for the applicant to be reinstated to his former position without loss of status or entitlements or earnings. However, if the Commission found that this was impracticable, then the maximum compensation available under the Act should be awarded. Respondent Mr Beer, for the respondent, in his opening submissions stated that the crux of the applicant’s case was procedural fairness had not been afforded and that the Council’s investigation had been inadequate leading to a view that the termination had been harsh, unjust or unreasonable. Further, that the failure of the Council to provide the applicant with a copy of the letter in which the allegation of theft was first raised, and the premeditated action in the preparing of the letter of termination prior to the meeting of 12 September 2000, had the elements of prejudging and determining the applicant’s dismissal. The applicant’s case had been that the Council had knowledge of his actions in filling the subsidence hole over a number of years, and in essence, this amounted to the approval of those in charge of the respective areas of Council. The Council refutes all of these positions, and argued that the applicant was given every opportunity to provide a plausible reason for his actions and until this hearing, he had not offered a single reason which the Council could have considered, prior to the termination, acceptable. The witnesses produced by Council had not substantiated the applicant’s position that there was general awareness of the subsidence hole, nor approval for his method in addressing the problem. Mr Beer submitted that the letter in which the applicant’s employment was terminated did not go into the issue of the applicant’s past indiscretions, or previous warnings that had been verbally provided, but clearly the termination was a result of the allegations of theft of Council property being, in this instance, some two (2) to three (3) metres of soil. The Act, at s. 73(2) makes a specific reference to the term “theft” and that the drafting contemplates that theft is misconduct, which is exactly what the Council has relied upon in this instance. The investigation of the matter was carried out under the direction of the Chief Executive Officer, and Ms Lane’s inference that because Mr Hood did not personally conduct the investigation, then that investigation was flawed, is not a correct assessment. The evidence, during the proceedings, pointed to at least two occasions where the applicant was given the opportunity to explain his actions, and chose not to take advantage of the situation. In terms of the applicant’s attendance at the meeting of 12 September 2000, the evidence of Mr Bartels would confirm that he was pre-warned that the meeting could be “rough” and therefore had ample opportunity to provide a reasonable or acceptable response to the allegations. According to Mr Beer, the Council’s decision to terminate was arrived at by Mr Hood under the guidance of legislation which governs local authorities in Queensland, and was based upon the fact that the applicant’s actions were not authorised by the Council, nor were they for the benefit of Council. The cause of the subsidence hole, so heavily relied upon by the applicant, has, on evidence, been discredited by the respondent. The Council did not rely upon previous warnings given to the applicant to justify the termination, however, the Commission could certainly form a view that during the applicant’s seventeen (17) years of employment at the Council, his record was not “totally clean”. The key point in these proceedings is that Mr Latemore was dismissed as a result of the theft of Council property. The position of the Council is that their handling of this matter was fair and reasonable, and that following serious allegations made against the applicant, he had never taken the opportunity to provide a suitable explanation for his actions. In fact, he chose not to. Mr Beer stated, in conclusion, that if the Commission was persuaded to a view that procedural unfairness, or harshness, had been visited upon the applicant, that reinstatement, or re-employment was not practicable.

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The Commission should look closely at the impact a decision, in favour of the applicant, would have, not only upon Council staff, but in terms of the perception of the Roma Town Council within the community. Conclusion The applicant’s dismissal was facilitated in accordance with s. 83(2)(a) of the Act, which identifies a reason for dismissal for misconduct as a result of theft and, in the Commission’s view, is one of the most serious grounds available to affect the termination of an employee. In this case, the Council alleged that the applicant used a Council vehicle to deliver some three (3) metres of soil (the property of the Council) to a location behind his place of residence to be used for his own personal benefit. The soil, according to the respondent, was delivered in Council time, and the applicant did not have the authorisation of an appropriate Council officer. The applicant, from the outset, acknowledged that he had delivered the soil (he estimates approximately two (2) metres as opposed to three (3) metres) which was, in the first instance, to be used to “fill or top-up” a subsidence hole in the property next door to his own residence, with the remainder of the soil to be used to backfill a Council sewer connection that was to be completed at a later date. The applicant had a view that the subsidence for which the soil was to be used had come about as a result of a leaking Council sewer main, and in remedying this situation, he was in effect looking after the interests of the Council. The Council’s awareness of the soil being placed behind the applicant’s residence was by way of a complaint in the form of an “unsigned” letter forwarded to the Chief Executive Officer who authorised an investigation of the complaint. The first stages of the investigation were conducted by Mr Worland, a Council officer, who visited the location where the soil was deposited on 6 September 2000, and during the course of that visit, had a conversation with the applicant, in which Mr Worland admitted, in evidence, that he advised the applicant to make the soil disappear. The applicant is alleged to have said to Mr Worland that he would not move the soil, and made a comment along the lines that he would “ride this one out”. On 12 September 2000, the applicant was summoned, by Mr Hood, to a meeting at which the allegations in respect of the soil were raised with the applicant, and it is apparent, from evidence, that the explanation given by the applicant was not of a satisfactory nature in that the CEO handed a preprepared letter (dated 11 September 2000) of termination to the applicant. The applicant, in evidence, stated that he had been given advice and authorisation by his former supervisor, Mr Robertson, as to what procedures to adopt in managing the subsidence problem, and that he had simply continued to follow those instructions after Mr Robertson’s retirement. In evidence, Mr Robertson confirmed the position put by the applicant, and acknowledged that he had given advice and authorisation whilst in the employ of Council. Evidence produced by the respondent, and obtained well after the termination of the applicant on 12 September 2000, appeared to cast some significant doubt over the theory that a damaged Council sewerage main was the cause of the subsidence hole. Certainly of interest to the Commission was the evidence given on behalf of the respondent by Mr Seaby and Mr Bartels, both of whom provided detail of having the need to reprimand the applicant for the misuse of Council equipment or materials on more than one occasion, but it appears that the culture that existed within Council was such that on not one occasion was the applicant given a written warning that would form part of his employment record. The actions of Mr Worland, in advising the applicant to “disappear the soil” and Mr Bartels, in providing confidential information to the applicant prior to his meeting with the CEO on 12 September 2000, clearly illustrates, in the view of the Commission, the type of employment culture that was in vogue in the Council at the time of the applicant’s termination. Interestingly enough, the Commission was never given an explanation, by Council, as to why the soil in question was not removed from where the applicant had deposited it after the applicant’s termination, and in effect, it was the applicant who advised Mr Hood that the soil had been removed from that spot by persons unknown, on or about 22 November 2000, some ten (10) weeks after the applicant’s termination. It is therefore, not unreasonable to give credence to the applicant’s evidence that the remainder of the soil, after the subsidence hole was filled, was to be utilised as backfill on a Council sewerage connection in close proximity to the property, which incidentally was completed by early to mid December 2000. The evidence of Mr Hood was clear that he was determined to introduce measures to prevent the misuse of Council property, equipment and materials, however, by the actions of middle management in the case of Mr Worland and Mr Bartels in their dealings with the applicant in this matter, it is not unreasonable to assume that on 12 September 2000 the message Mr Hood wanted to get to the workforce, had not reached those on site. In all, from the evidence before the Commission, I am not convinced that the actions of the applicant in placing the soil on Council property, behind his own residence, was that of theft, as argued by the respondent. Nor am I convinced from any of the evidence produced during the proceedings, that the soil had been placed there for the applicant’s personal benefit. I have, however formed a view that the applicant’s actions were not subject to proper authorisation by an appropriate Council officer. With this background, the Commission was required to determine whether the action of the Council, in terminating the employment relationship was harsh, unjust or unreasonable. In a matter not dissimilar to these proceedings, a decision of Swan C in Anthony Dark v Maroochy Shire Council (B67 of 1993) in which the Commission referred to a decision of the Industrial Commission of New South Wales in court session in the Shop, Distribution and Allied Employees Association (NSW Branch) v Jewel Food Stores (1987-88) 22 IR I was of assistance in forming an opinion. In that matter the Commission stated:– “We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out.”.

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The investigation into the allegations, in my opinion, did not provide the applicant, at any time, with due process or procedural fairness, and whilst this was evidenced in a number of instances during the proceedings, there was none more definite than the pre-prepared letter of termination dated 11 September 2000 and that was handed by Mr Hood to the applicant at the conclusion of the first meeting between the parties. Mr Hood had made up his mind, prior to that meeting, that the services of the applicant were to be dispensed with and as such, I determine that the Council’s decision in terminating the applicant was harsh, unjust and unreasonable. In terms of a remedy, I have given consideration to Ms Lane’s position that reinstatement or re-employment be afforded the applicant without loss of employment conditions, and that remuneration for the period of time from the date of termination, 12 September 2000, until a date of reinstatement. I have formed the view, from the evidence of the respondent’s witnesses in this matter, that the applicant had a work history that identified him as an employee with satisfactory levels of performance, and the evidence in particular of Mr Larter, his immediate supervisor, that the applicant’s position had not been filled following his termination, allowed the Commission to consider the option of reinstatement or re-employment without any form of restriction. For the respondent, Mr Beer submitted quite strongly that reinstatement or re-employment would send the wrong message to current Council employees and the community as a whole. I have given serious consideration to the argument of Mr Beer in respect of reinstatement, and whilst at the end of the day, I am of the view that either reinstatement or re-employment is not impractical, I would place on record that no Council employee should draw an inference from this decision that in future the unauthorised use of Council equipment or material would not lead to strong disciplinary action being taken against them by the Council. I concur with the stated goals of Mr Hood in changing the culture in respect of the misuse of Council property, and would recommend that the Council forward written information to each employee clearly stating the policy objective of the Council in respect of this matter. Therefore, in accordance with s. 78 of the Act, I order that the Roma Town Council re-employ Mr Dale Latemore to his former position as held immediately prior to his termination on 12 September 2000, and as referred to at s. 78(4)(a) of the Act, that the continuity of the applicant’s service be maintained. The resumption of employment should occur as a result of a negotiated date between the parties within seven (7) days of the release of this decision. In determining an amount of compensation (if any) that is allowed for under s. 78(4)(c), I have looked closely at the evidence before the Commission, and have been unable to form a view that the applicant’s actions were beyond reproach to the extent that he should be awarded a substantial amount of compensation for monies lost from the date of his dismissal until his re-employment. However, there was a recommendation issued as a result of the conference (held 4 October 2000) that, if accepted at the time by the Council, would have allowed for the applicant’s re-employment at a significantly earlier date. On that basis, I order that the Roma Town Council pay the applicant, upon his return to work, an amount of four (4) week’s wages at the rate of pay to which he will be entitled to receive on the date of his re-employment. Appearances:– Ms T. Lane, of The Australian Workers’ Union of Employees, Queensland, for the Applicant. Mr R. Beer, of the Local Government Association of Queensland (Incorporated), for the Respondent.

J.M. THOMPSON, Commissioner.

Released: 28 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL REGISTRAR Industrial Relations Act 1999 – s. 482 – arrangement for conduct of elections Queensland Teachers Union of Employees (No. Q7 of 2001) REGISTRAR EWALD

27 March 2001

Request for Conduct of Elections – Prescribed Information – Expiry of Terms of Office – Casual Vacancies – Unfilled Positions – Composition of Branches and Area Councils – Methods of Elections – Electoral Commission to Conduct Elections. DECISION On 21 March 2001 the Queensland Teachers Union of Employees lodged in the Registry under s. 481 of the Industrial Relations Act 1999, the information prescribed in s. 36 of the Industrial Relations Regulation 2000, and supporting material in relation to the conduct of elections by the Electoral Commission of Queensland for the following positions of office:– Office

Number of Positions

Method of Election

State Council Representative of a Branch – Beenleigh ....................................................................................................1 Browns Plains .............................................................................................1 Cairns South................................................................................................1 Callide and Dawson Valleys ......................................................................1 Darling Downs South .................................................................................1 Ipswich West ..............................................................................................1 Northern Tablelands ...................................................................................1

Direct vote by members of Branch

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Office

Number of Positions

6 April, 2001

Method of Election

State Council Representative of an Area Council – Capricornia .................................................................................................1 Metropolitan East .......................................................................................1 Metropolitan West ......................................................................................1 North Queensland .......................................................................................1 Peninsula.....................................................................................................1 South Coast.................................................................................................1 South Queensland .......................................................................................1 Sunshine Coast............................................................................................1 Wide Bay ....................................................................................................1

Collegiate vote by members of Area Council

Area Council Officers – Capricornia President 1, Vice President 1, Treasurer 1, Secretary 1 Metropolitan East President 1, Vice President 1, Treasurer 1, Secretary 1 Metropolitan West President 1, Vice President 1, Treasurer 1, Secretary 1 North Queensland President 1, Vice President 1, Treasurer 1, Secretary 1 Peninsula President 1, Vice President 1, Treasurer 1, Secretary 1 South Coast President 1, Vice President 1, Treasurer 1, Secretary 1 South Queensland President 1, Vice President 1, Treasurer 1, Secretary 1 Sunshine Coast President 1, Vice President 1, Treasurer 1, Secretary 1 Wide Bay President 1, Vice President 1, Treasurer 1, Secretary 1 Area Council Representative of a Branch –

Office

Collegiate vote by members of Area Council

Direct vote by members of the Branch Number of Positions

Capricornia Area Council Blackwater ...................................................................... 2 Callide & Dawson Valleys ............................................. 2 Central Highlands ........................................................... 2 Keppel............................................................................. 2 Mt Morgan & Dawson Valley........................................ 2 Peak Downs .................................................................... 2 Port Curtis ....................................................................... 2 Rockhampton North ....................................................... 2 Rockhampton South ....................................................... 2 Metropolitan East Area Council Brisbane Central ............................................................. 2 Camp Hill........................................................................ 2 Capalaba.......................................................................... 2 Chermside ....................................................................... 2 Cleveland ........................................................................ 2 East Brisbane .................................................................. 2 East Moreton................................................................... 2 Ferny Grove .................................................................... 2 Geebung .......................................................................... 2 Mt Gravatt....................................................................... 2 North East Brisbane........................................................2 South Brisbane................................................................ 2 The Gap........................................................................... 2 Windsor........................................................................... 2 Wynnum.......................................................................... 2 Metropolitan West Area Council Brisbane Valley .............................................................. 2 Browns Plains ................................................................. 2 Fassifern.......................................................................... 2 Inala District ................................................................... 2 Ipswich Central............................................................... 2 Ipswich East.................................................................... 2 Ipswich West .................................................................. 2 Macgregor/Rochedale..................................................... 2

Office

Number of Positions

Peninsula Area Council Barron ............................................................................. 2 Cairns North ................................................................... 2 Cairns South ................................................................... 2 Cape & Gulf ................................................................... 2 Cassowary Coast ............................................................ 2 Northern Tablelands....................................................... 2 Torres Strait.................................................................... 2 South Coast Area Council Beaudesert ...................................................................... 2 Beenleigh........................................................................ 2 Gold Coast North ........................................................... 2 Gold Coast South ........................................................... 2 Logan.............................................................................. 2 Merrimac ........................................................................ 2 Nerang ............................................................................ 2 Southport ........................................................................ 2 Woodridge ...................................................................... 2 South Queensland Area Council Balonne........................................................................... 2 Border............................................................................. 2 Dalby .............................................................................. 2 Darling Downs Central .................................................. 2 Darling Downs North..................................................... 2 Darling Downs South..................................................... 2 Lockyer........................................................................... 2 South Western Queensland ............................................ 2 Stanthorpe....................................................................... 2 Warrego .......................................................................... 2 Warwick ......................................................................... 2 Western Downs .............................................................. 2 Sunshine Coast Area Council Caboolture ...................................................................... 2

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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Number of Positions

Office

Mt Coot-tha.....................................................................2 Runcorn........................................................................... 2 Sherwood ........................................................................ 2 Sunnybank ......................................................................2 North Queensland Area Council Hinchinbrook .................................................................. 2 Lower Burdekin .............................................................. 2 Mackay............................................................................ 2 Mackay North ................................................................. 2 North Kennedy................................................................ 2 Ross................................................................................. 2 Thuringowa..................................................................... 2 Townsville ...................................................................... 2 Whitsunday ..................................................................... 2

Office

373 Number of Positions

Caloundra ....................................................................... 2 Coolum ........................................................................... 2 Deception Bay ................................................................ 2 Maleny............................................................................ 2 Maroochydore ................................................................ 2 Morayfield ...................................................................... 2 Nambour......................................................................... 2 Noosa District................................................................. 2 Pine Rivers North ........................................................... 2 Pine Rivers South ........................................................... 2 Redcliffe ......................................................................... 2 Wide Bay Area Council Bundaberg North ............................................................ 2 Bundaberg South ............................................................ 2 Gympie ........................................................................... 2 Hervey Bay..................................................................... 2 Maryborough.................................................................. 2 North Burnett.................................................................. 2 South Burnett.................................................................. 2

Timing of Elections The Rules prescribe that nominations shall be called by advertisement in the “Queensland Teachers’ Journal” with the closing date of nominations no earlier than twenty-one days after the date upon which such notice first appears in the Journal. I am advised that the next Journal is to be printed on 29 March 2001. However, the Rules have no clear date for the opening of nominations for election to assist in determining the “prescribed date” as referred to in s. 36(4) of the Industrial Relations Regulation 2000. Accordingly, a date is not definable. Notwithstanding, I have exercised my discretion under s. 481(2) of the Industrial Relations Act 1999 and extended the prescribed time for filing of such information 21 March 2001. Composition of Branches and Area Councils The number, formation and geographical boundaries of Branches and Area Councils are approved by the State Council through its general powers under relevant Rules. Evidence has been produced regarding the State Council determinations of previous and newly formed Branches and Area Councils as they currently are and relevant to the above positions of office. Methods of Election I am satisfied that the methods of election are as specified above. Conduct of Elections I have considered the request, the Act and Rules and I find that the elections being sought are for positions of office within the meaning of the Act and are required to be held under the Rules of the Industrial Organisation. Therefore, under s. 482 of the Industrial Relations Act 1999, I am making arrangements for the elections of the above named positions to be conducted by the Electoral Commission of Queensland. Dated this twenty-seventh day of March, 2001. E. EWALD, Industrial Registrar. Released: 27 March 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL REGISTRAR Industrial Relations Act 1999 – s.580 – application for exemption from holding an election The National Union of Workers Industrial Union of Employees Queensland (U31 of 2000) REGISTRAR EWALD

31 January 2001

Application for Exemption from holding an Election – Election held in Counterpart Federal Body – Exemption granted. DECISION On 22 December 2000 The National Union of Workers Industrial Union of Employees Queensland (the Organisation) filed in the Registry, under s. 580 of the Industrial Relations Act 1999, an application seeking exemption from holding an election for positions of office that comprise the committee of management of the organisation. In the application and accompanying documentation the Organisation contended that the National Union of Workers is the Organisation’s counterpart federal body (the body). Further, the positions of office that make up the committee of management correspond to offices in the body for which an election (the federal election) has been held under the Workplace Relations Act 1996(Clth). Persons elected in the federal election will fill the offices in the committee of management, namely Branch President, Branch Secretary, Branch Vice President, Branch Organisers and 6 committee members. no.14 06.04.01

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As a consequence of the federal election, the Organisation published in its journal a notice informing members of the intention to apply for exemption from holding an election for the committee of management. There was no objection from the members. Hearing Mr Payne, for the Organisation, reading the rules of the Organisation and the counterpart federal body and considering the documentation accompanying the application, satisfied me to the extent required by s. 580(2) of the Industrial Relations Act 1999. In the circumstances, on 31 January 2001 I granted The National Union of Workers Industrial Union of Employees Queensland exemption under s. 580 of the Industrial Relations Act 1999 from holding an election for those positions of office for which the counterpart federal body already has held an election. Dated 22 March 2001

Appearances:– Mr J. Payne of Hall Payne Solicitors for the applicant.

E. EWALD, Registrar.

Released: 22 March 2001

########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Organisations Act 1997 – s. 245 and s. 246 – application under s. 246 that penalties be imposed on respondent for contraventions of s. 237 and s. 238 of Industrial Organisations Act 1997 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Performance Security Services (No. C35 of 1999) PRESIDENT HALL

15 March 2001 ORDER

This matter coming on for hearing before the Industrial Court of Queensland at Brisbane on 15 March 2001, this Court orders that Marsha Louise Frankling forthwith pay to the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees the sum of $1,668.00 by way of compensation and $1,500.00 by way of a pecuniary penalty. Dated this 15th day of March, 2001. By the Court, [L.S.] E. EWALD, Industrial Registrar. ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 679 – confidential material tendered in evidence James Peter Byrne AND Bottom Line Risk Pty. Ltd. (No. B687 of 2000) COMMISSIONER EDWARDS

20 February 2001 SUPPRESSION ORDER

THIS Commission, after hearing the parties to the above matter in Brisbane on 20 February 2001 does order pursuant to s. 679 of the Industrial Relations Act 1999 that confidential exhibits 15 and 16 tendered in evidence; and pages 143 to 160 of the transcript of proceedings recorded on 20 February 2001 be withheld from search absolutely until further order of the Commission. This Order to be substituted for previous Order gazetted on 16 March 2001, 166 QGIG 293. Dated this twentieth day of February, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 20 February 2001 Order – Suppression

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 679 – confidential material tendered in evidence Jean Marie Papy AND Westpoint Autos Qld Pty Ltd (No. B1648 of 2000) COMMISSIONER EDWARDS

14 March 2001 SUPPRESSION ORDER

THIS Commission, after hearing the parties to the above matter in Brisbane on 16 March 2001, does hereby order pursuant to s. 679 of the Industrial Relations Act 1999, that the Confidential Exhibits 5 and 13 tendered in evidence be withheld from search absolutely until further order of the Commission. Dated this sixteenth day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 14 March 2001 Order – Suppression

6 April, 2001

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

375

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – order for unpaid wages Department of Industrial Relations AND Blue Light Investments Pty Ltd t/a Chicago Joe’s Restaurant and Bar (No. W42 of 2001) COMMISSIONER BROWN

27 March 2001 ORDER

THIS matter coming on for hearing before the Commission at Brisbane on 27 March 2001, this Commission, after having decided that Luke Marshall Lloyd was underpaid wages and pro rata annual leave by Blue Light Investments Pty Ltd t/a Chicago Joe’s Restaurant and Bar, of registered office 109 Chelford Avenue, Alderley, Qld, 4051, in accordance with the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – SouthEastern Division, orders as follows:– 1.

Blue Light Investments Pty Ltd t/a Chicago Joe’s Restaurant and Bar pay to Luke Marshall Lloyd the amount of $825.20 in respect of unpaid wages for the period between 2 June 2000 and 21 July 2000.

2.

That the amount set out in paragraph 1 of this Order is to be paid by no later than 22 days of the date of release of this Order.

Dated this twenty-seventh day of March, 2000. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Order – Arrears of Wages Operative Date: 27 March 2001 Released: 28 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 138 – application to amend order The Australian Workers’ Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B1389 of 2000) SUPPLY OF TOOLS TO APPRENTICES COMMISSIONER BROWN

22 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 18 August and 13 November 2000, 9 February and 6 and 22 March 2001, this Commission doth order that the said Order be amended as follows as from the first day of April, 2001:– 1.

By deleting from clause 1 the apprenticeship callings and attendant values and terms for “Bread Baking”, “Bread Baking/Pastrycooking” and “Pastrycooking” contained in Group 1 and inserting alphabetically the following in lieu thereof:– “Apprenticeship Calling

Total Retail Value of Tools $ Bread Baking .............................................................................. 220.00 (see also clause 6(c)) Bread Baking/Pastrycooking ...................................................... 440.00 (see also clause 6(c)) Pastrycooking ............................................................................. 440.00 (see also clause 6(c))”. 2.

Annual Retail Value of Tools $ 55.00

Nominal Term of Apprenticeship

110.00

4

110.00

4

4

By adding a new proviso (c) to clause 6 as follows:– “(c)

Bread Baking, Bread Baking/Pastrycooking and Pastrycooking Apprentices – (i) In recognition of the custom and practice in the Baking Industry, employers may provide all tools required by apprentices for their work and college requirements, in lieu of supplying their apprentices tools in accordance with clause 1. Tools provided to apprentices in accordance with this subclause shall remain the property of the employer; and (ii) Tools supplied to apprentices in accordance with clause 1 of this Order shall become and remain the property of the apprentice.”.

Dated this twenty-second day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 1 April 2001 Amendment – Supply of Tools to Apprentices Released: 28 March 2001

no.14 06.04.01

376

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

6 April, 2001

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B189 of 2001) CEMETERY EMPLOYEES AWARD – STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 10.3 (Union Encouragement) as follows:– “Union Encouragement 10.3.1

Union Encouragement

This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. 10.3.2

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. 10.3.3

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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B190 of 2001) CONTRACT CLEANING INDUSTRY AWARD - STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 6.10 (Union Encouragement) as follows:– “Union Encouragement (1) Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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.

6 April, 2001

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

377

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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. (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. (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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B191 of 2001) CREMATORIUM EMPLOYEES AWARD – STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 6.9 (Union Encouragement) as follows:– “6.9 Union Encouragement (1) Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. (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. (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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s.125 – application for amendment Queensland Public Sector Union of Employees AND The State of Queensland (No. B1944 of 2000) EMPLOYEES OF QUEENSLAND GOVERNMENT DEPARTMENTS (OTHER THAN PUBLIC SERVANTS) AWARD COMMISSIONER BECHLY

11 January 2001 no.14 06.04.01

378

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

6 April, 2001

AMENDMENT THIS matter coming on for hearing before the Commission at Brisbane on 11 January 2001, this Commission orders that the said Award be amended as follows from the thirtieth day of September 1997:– 1.

By deleting the title of Section 15 of Schedule I of the Award and replacing it with the following:– “Section 15 – Recreation Camp Managers Employed by the Department of Communication and Information, Local Government, Planning and Sport”.

2.

By deleting Section 15(1) of Schedule I of the Award and replacing it with the following:– “(1)General Overtime/On-Call Allowance A general overtime/on-call allowance at the fortnightly rates prescribed below for Recreation Camp Managers employed at the camps as prescribed below shall be payable to Recreation Camp Managers in addition to their ordinary rate of pay and any other allowances in consideration for being on-call and for work performed outside the ordinary hours of work Monday to Friday inclusive:– As from 30/9/97 per fortnight $ (a) Tallebudgera .............................232.50 (b) Currimundi & ...........................214.30 Lake Perserverance (c) Christmas ..................................210.00 Creek, Lake Julius, Leslie Dam, Magnetic Island, Seaforth, Lake Tinaroo, and Yeppoon.

As from 1/7/98 per fortnight $

As from 1/7/99 per fortnight $

As from 1/1/00 per fortnight $

As from 1/7/00 per fortnight $

241.80 222.90

251.50 231.80

254.00 234.10

261.60 241.10

218.40

227.10

229.40

236.30

The allowances prescribed in this subclause may be increased upon application by an amount equivalent to any increase in the wages actually received by Recreation Camp Managers after 1 July 2000.”. Dated this eleventh day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 30 September 1997 Amendment – General Overtime/On-Call Allowance Released: 28 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award The Australian Workers’ Union of Employees, Queensland AND the Department of Industrial Relations and Others (Case No. B383 of 2001) EMPLOYEES OF QUEENSLAND GOVERNMENT DEPARTMENTS (OTHER THAN PUBLIC SERVANTS) AWARD COMMISSIONER BLADES

22 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 22 March 2001, this Commission orders that the said Award be amended as follows as from the twenty-second day of March, 2001:– 1.

By inserting a new proviso (d) in subclause (8) of clause 3.3 (Wages) as follows:– “(d) Farmhands and gardeners employed by the Department of Primary Industries will be eligible to apply for progression to Level 3 of the operational stream upon satisfying the following criteria:– (i)

A Farm Hand/Gardener must have performed duties at a satisfactory standard at Level 002 paypoint (4) for a minimum of 12 months before becoming eligible for progression to Level 003.

(ii) Mandatory criteria relating to qualifications and certificates relevant to the operations of the local work or industry area must be held by the employee. (iii) Core competencies specific to the local work or industry area and other specific criteria, e.g. workplace health and safety, computer literacy, etc, as determined by the Department.”. 2.

By deleting subclause (10) of clause 4.2 (Overtime) and inserting the following in lieu thereof:– “(10) Employees covered by Sections 15 and 17 of Schedule G of this Award are covered by the provisions of such Sections in addition to the provisions of clause 4.2 herein.”.

6 April, 2001 3.

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

379

In Schedule G – (a) by deleting Section 14 (Award for Certain Employees of the Department of Primary Industries Employed at Regional Experimental Stations, Research Stations and Animal Health Stations) and inserting the following in lieu thereof:– “Section 14 – Award for Certain Employees of the Department of Primary Industries Employed at Regional Experimental Stations, Research Stations and Animal Health Stations (1) Risk Allowance – Employees required to handle materials or animals infected with disease pathogenic to humans shall be paid an allowance of $12.90 per fortnight. (2) Wet Conditions – (a) All time lost through wet conditions shall be paid for, provided the employees turn up for work and hold themselves in readiness. The supervising employee or employee who acts in the absence of that employee and under whose direction the employees are working, shall decide whether it is too wet to work: Provided that, when employees are prevented by wet weather from following their usual vocation, unless the employees are willing to perform any work the employer may direct them to do during such wet weather, they shall not be entitled to payment for such time lost. (b) Work in the Rain – Where practicable suitable waterproof clothing shall be supplied by the employer to the employees who are required to work in the rain. Notwithstanding the foregoing, in the performance of work the employee gets their clothes wet, the employee shall be paid double time for all work performed and such payment shall continue until the employee is able to change into dry clothing or until that person ceases work, whichever is the earlier.”. (b) by inserting a new Section 17 (Award for Farm Supervisors (Department of Primary Industries)) as follows:– “Section 17 – Award for Farm Supervisors (Department of Primary Industries) (1) Overtime – In lieu of clause 4.2 (Overtime) herein the following shall apply:– An employee may elect and at the discretion of the employer, to take equivalent time off in lieu of overtime in accordance with the conditions prescribed in Directive 23/99, made under section 34(2) of the Public Service Act 1996, existing at the date of this award and any amendments thereto. (2) Wet Conditions – (a) All time lost through wet conditions shall be paid for, provided the employees turn up for work and hold themselves in readiness. The supervising employee or employee who acts in the absence of that employee and under whose direction the employees are working, shall decide whether it is too wet to work: Provided that, when employees are prevented by wet weather from following their usual vocation, unless the employees are willing to perform any work the employer may direct them to do during such wet weather, they shall not be entitled to payment for such time lost. (b) Work in the Rain – Where practicable suitable waterproof clothing shall be supplied by the employer to the employees who are required to work in the rain. Notwithstanding the foregoing, in the performance of work the employee gets their clothes wet, the employee shall be paid double time for all work performed and such payment shall continue until the employee is able to change into dry clothing or until that person ceases work, whichever is the earlier.”.

Dated this twenty-second day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 22 March 2001 Amendment – Award Conditions Released: 28 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B192 of 2001) FUNERAL SERVICES AWARD – STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:–

no.14 06.04.01

380

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

6 April, 2001

By inserting a new clause 10.3 (Union Encouragement) as follows:– “10.3

Union Encouragement

10.3.1

Union Encouragement

This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. 10.3.2

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. 10.3.3

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.”. Dated this first day of March, 2001. Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

By the Commission, [L.S.] E. EWALD, Industrial Registrar.

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B194 of 2001) GROUND STAFF – DEFENCE FORCE CONTRACTORS – INTERIM AWARD – SOUTHERN DIVISION COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 10.3 (Union Encouragement) as follows:– “Union Encouragement 10.3.1 Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. 10.3.2 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. 10.3.3 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.”.

6 April, 2001

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

381

Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B193 of 2001) GREENKEEPING INDUSTRY AWARD – STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 6.12 (Union Encouragement) as follows:– “6.12

Union Encouragement

(1) Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. (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. (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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B195 of 2001) LAUNDRY WORKERS’ AWARD – BRISBANE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 4I (Union Encouragement) as follows:–

no.14 06.04.01

382

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

6 April, 2001

“Union Encouragement 4I.(1) Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. (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. (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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B196 of 2001) MISCELLANEOUS WORKERS AWARD – STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March, 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 11.5 (Union Encouragement) as follows:– “11.5

Union Encouragement

11.5.1

Union Encouragement

This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. 11.5.2

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. 11.5.3

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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

6 April, 2001

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

383

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B197 of 2001) MOTORING SERVICES AWARD – SOUTH-EASTERN DISTRICT COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March, 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 6H (Union Encouragement) as follows:– “Union Encouragement 6H.(a) Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. (b) Union Delegates – Union delegates and job representatives have a role to play within a workplace. The existence of accredited union delegates and/or job representative is encouraged. The employer shall not unnecessarily hinder accredited union delegates and/or job representatives in the reasonable and responsible performance of their duties. (c) 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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B198 of 2001) MUNICIPAL BATH ATTENDANTS’ AWARD – STATE COMMISSIONER EDWARDS

1 March 2001 AMENDMENT

THIS matter coming on for hearing before the Commission at Brisbane on 1 March, 2001, this Commission doth order that the said Award be amended as follows as from the second day of April, 2001:– By inserting a new clause 30 (Union Encouragement) as follows:– “UNION ENCOURAGEMENT 30.(1) Union Encouragement – This clause gives effect to s. 110 of the Industrial Relations Act 1999 in its entirety. Consistent with s. 110 a Full Bench of the Queensland Industrial Relations 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. 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 Queensland Industrial Relations Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. no.14 06.04.01

384

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

6 April, 2001

The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. (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. (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.”. Dated this first day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 April 2001 Amendment – Union Encouragement Released: 23 March 2001

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application for amendment Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (No. B999 of 1997) OPTICAL MANUFACTURING INDUSTRY EMPLOYEES’ AWARD – STATE COMMISSIONER BECHLY

19 March 2001 AMENDMENT (CORRECTION OF ERROR)

WHEREAS an error occurred in the copy of the amendment of the abovenamed Award as published in the Queensland Government Industrial Gazette of 26 March, 1999, 160 QGIG 270-271 , this Commission doth order that the following correction be made and to be effective as from the fifteenth day of February, 1999:– By deleting from Item 1 the amount of “$412.60” from the classification “Mechanical Optician Grade II” and inserting the amount of “$465.20” in lieu thereof. Dated this nineteenth day of March, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 15 February 1999 Amendment – C.O.E. Released: 28 March 2001