Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland and Others v QBuild, A Business Unit of the Department of Housing and Public Works [2012] QIRC 450

CITATION: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland and Others AND QBuild, A Business Unit of the Department of Housing and Public Works (D/2012/243, 244 and 245)- Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 230 - action on industrial dispute Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland and Others AND QBuild, A Business Unit of the Department of Housing and Public Works (D/2012/243, 244 and 245) DEPUTY PRESIDENT BLOOMFIELD 30 October 2012 DECISION [1] Late on the afternoon of Friday 26 October 2012 the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CFMEU), The Electrical Trades Union of Employees Queensland (ETU), and the Automotive Metals Engineering Printing and Kindred Industries Industrial Union of Employees, Queensland (AMWU) each notified the Commission of a dispute in relation to the failure of QBuild, A Business Unit of the Department of Housing and Public Works (QBuild), to appropriately consult with affected staff and Unions prior to effecting structural change and redundancies in the organisation. [2] Each of the Union notifications informed the Commission that QBuild was selecting certain employees for redundancy based on a consideration of whether or not those employees had completed an Expression of Interest (EOI) signifying their desire to remain in employment with QBuild. Further, the Unions indicated that the selection process was also unfair in that QBuild failed to provide relevant information to employees at the time they were invited to lodge an EOI, which included, but was not limited to:  The organisational structure to operate into the future, including locations where employees would be based and the number of employees (including classifications) to be based in each location;  A clear warning that failure to lodge an EOI would automatically exclude the employee from being considered for placement within the restructured organisation. [3] The Unions especially complained that a number of documents they had been informed would be provided to employees at the time they were asked to lodge an EOI (such as proposed new organisational structure and the number and locations of available positions) were not provided to employees either at all or until several days after the EOI forms were distributed. In the Unions' submission every employee who lodged an EOI did so without any knowledge or awareness of the number of available roles, and locations, which were to exist in the "new" QBuild. [4] Further, the Unions complained that a large number of employees who failed to lodge an EOI were not considered for placement in the restructured organisation solely because of their failure to lodge an EOI. This was said to be unfair because the employer "deemed" that anyone who had not lodged an EOI did not wish to continue to work in the organisation. In the Unions' submission, employees should have been asked to clearly indentify a preference to remain employed or to take a VER, especially in the absence of any information about the availability, and locations, of roles in the new organisation. [5] Finally, the Unions complained that following lodgement of the respective dispute notifications to the Commission and a Notice of Listing being issued by the Commission during the course of Monday 29 October 2012, QBuild issued an Urgent Notice of a Staff Briefing to be held at 8:00am on Tuesday 30 October 2012 for the purpose of informing staff about the actions it proposed to take in relation to the filling of positions in the new structure and the announcement of redundancies. This was in circumstances where QBuild had previously informed the Unions that such announcement was not to be made until Wednesday 31 October 2012, by letter to individual employees, and the Commission had listed a Compulsory Dispute Conference at 2:00pm on Tuesday 30 October 2012. [6] The Unions said that the employer's action in bringing forward the announcement to staff was both provocative and disrespectful to not only the Commission but also to the employees of QBuild and their Unions. [7] The representatives of QBuild argued that the processes they had adopted had been discussed with, and agreed to by, the relevant Unions at several Staff Consultative Committee meetings, most especially 20 September 2012 and 15 October 2012. The representatives said that the steps QBuild had taken to call for EOI's and subsequently determine which staff would be retained in the restructured organisation, as well as those who would be "let go", had also been discussed with, and agreed to by, the relevant Unions. -- 1 of 3 -- 2 2 [8] In particular, the representatives of QBuild argued that the EOI's which were distributed to employees made it clear that any staff member who wished to be considered for a position in the new structure had to complete and lodge an EOI. As such, by excluding persons who had not completed an EOI from being considered for a position in the new organisation, QBuild simply acted in the way it had always indicated. [9] After hearing from each of the parties (at length) I decided that I would issue an Order pursuant to s.230(4) of the Industrial Relations Act 1999 to restrain QBuild from acting to terminate any field staff employee for a period of 28 days from 5:00pm on 30 October 2012 on the basis that the process of (alleged) consultation it had engaged in was fundamentally flawed from the time it called on employees to lodge EOI's. [10] The minutes of the Staff Consultative Committee meeting of 15 October 2012 record that the representatives of the Unions questioned the QBuild representatives about whether an organisational structure would be available for staff to identify which jobs they would be applying for. The general response from a QBuild representative was that employees would be aware of "what would be available to them" before being asked to make a decision. [11] The employer representatives also indicated to the Unions that employees would be provided with the opportunity to provide a resume as well as a two-page statement relating to the requirements associated with new position descriptions at the time they lodged their EOI's. [12] However, the actual material distributed to employees was significantly different. For example, staff were not provided with the new organisational structure and, thus, did not know how many positions, nor classifications, were to be retained in each location from which the workforce was to work in the future. Further, while the two- page EOI had a provision for an employee to identify their supervisor and a referee, employees were not informed about any advantage or detriment if they left this section of the form blank. Similarly, there was no information provided to employees about the methods the employer proposed to adopt to "select" those employees who would be offered positions ahead of those who were to be retrenched. [13] Indeed, the whole process was such that had I allowed it to continue virtually every employee who was not selected for retention in the new organisation (approximately 330 employees) would have had good grounds for disputing their termination on the basis that it was harsh, unjust or unreasonable, in that, inter alia, the processes adopted were unfair and the selection process not transparent. [14] In the circumstances I decided to issue the following Order: ORDER THIS Commission, after hearing the parties in the above matter at Brisbane on 30 October 2012 does, pursuant to s. 230(4) of the Industrial Relations Act 1999 (the Act), Order that: [1] QBuild, A Business Unit of the Department of Housing and Public Works (QBuild), be restrained from taking any steps to implement the organisational changes as described in the letter to Unions dated 10 August 2012 under the hand of Natalie MacDonald, Director-General. [2] To remove any doubt as to matters referred to in paragraph [1], the correspondence as mentioned is attached and forms part of this Order. [3] QBuild is to consult potentially affected employees and their Unions about the changes proposed in the correspondence referred to in paragraph [2] of this Order as required by the relevant "industrial instruments" (as defined in Schedule 5 of the Act) covering employees employed by QBuild. [4] In particular, QBuild is to consult about:  The method by which employees might be informed they need to clearly indicate their preference to remain in the employ of QBuild or to leave the employ of QBuild by means of a VER;  The organisational structure to apply in each depot/location in the future;  The numbers of employees in each classification to be retained in each depot/location in the future; and  The method QBuild proposes to adopt to determine which employees will be selected to remain in its employ. [5] This Order shall come into effect at 5:00pm on 30 October 2012 and shall remain in effect for twenty-eight (28) days thereafter, or until otherwise decided by this Commission. -- 2 of 3 -- 3 3 [6] An authorised Officer of QBuild is to file an affidavit by 12 noon on 9 November 2012 outlining the steps taken to comply with this Order. [7] Liberty be granted to any party to apply for a variation to this Order upon 24 hours notice to the Commission and other parties. [8] Order accordingly. Dated 30 October 2012. A.L. BLOOMFIELD, Deputy President. Released: 30 October 2012 -- 3 of 3 --