Building Service Contractors Association of Australia - Queensland Division Certified Agreement 2005 [2010] QIRC 2

CITATION: BUILDING SERVICE CONTRACTORS ASSOCIATION OF AUSTRALIA - QUEENSLAND DIVISION CERTIFIED AGREEMENT 2005 (CA/2009/187) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 173 - terminating agreement after its nominal expiry date Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (CA/2009/187) BUILDING SERVICE CONTRACTORS ASSOCIATION OF AUSTRALIA - QUEENSLAND DIVISION CERTIFIED AGREEMENT 2005 VICE PRESIDENT LINNANE 28 January 2010 Application to terminate certified agreement after its nominal expiry date - termination of the certified agreement is in the public interest - approval granted. DECISION [1] This is an application, pursuant to s. 173 of the Industrial Relations Act 1999 (the Act) by the Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (the LHMU) seeking to terminate the Building Service Contractors Association of Australia - Queensland Division Certified Agreement 2005 (the Agreement). This Agreement has operated in the contract cleaning industry in Queensland. [2] Section 173 of the Act provides as follows: "173 Terminating agreement after its nominal expiry date (1) After a certified agreement's nominal expiry date, the following persons may apply to the commission to terminate a certified agreement - (a) the employer; (b) a valid majority of the relevant employees; (c) an employee organisation that is bound by the agreement and that has at least 1 member who is a relevant employee. (2) If the agreement does not provide for the way it may be terminated after the agreement's nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention. (3) The commission must approve the termination if, and only if, satisfied - (a) for an agreement that provides that it may be terminated if particular conditions are met-the conditions have been met; or (b) for an agreement that does not provide for the way it may be terminated - it is in the public interest to terminate the agreement. (4) The termination takes effect when the commission's approval takes effect.". [3] Section 173(1)(c) of the Act gives the LHMU standing to seek such an order. The Agreement was certified by the Queensland Industrial Relations Commission (the QIRC) on 7 March 2006 to operate from 7 March 2006 until 28 February 2009. Thus the nominal expiry date of the Agreement has been reached. [4] When certified by the QIRC, the employer parties to the Agreement included constitutional corporations as well as sole traders, partnerships and trusts. On and from 27 March 2006, the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) excluded the operation of Queensland laws so far as they would otherwise apply in relation to the employment relationship between a constitutional corporation and its employees. The majority of the employers named as parties to the Agreement were, at that time, constitutional corporations as defined by s. 6 of the Workplace Relations Act 1996 and became subject to the federal legislation. The unincorporated parties to the Agreement continued to be bound by the terms of the Agreement. -- 1 of 6 -- 2 [5] The Agreement became a preserved collective agreement pursuant to the Workplace Relations Act 1996 (Cth) insofar as the constitutional corporations and their employees were concerned. The LHMU made application to the Australian Industrial Relations Commission (the AIRC) under s. 170MH(1) of the pre-reform Workplace Relations Act 1996 to terminate the preserved collective state agreement. That application was successful and on 18 September 2009, the preserved collective state agreement was terminated by SDP Lacy insofar as it applied to constitutional corporation employers and their employees: see Liquor Hospitality and Miscellaneous, Queensland Branch, Union of Employees [2009] AIRC 845 (AG2009/40). The termination operated as and from 1 October 2009. Since 27 March 2005 the Contract Cleaning Industry Award - State 2003 (Qld) has operated as a Notional Agreement Preserving State Award (NAPSA) pursuant to the federal legislation. The NAPSA was the safety net award for the contract cleaning industry in Queensland until 31 December 2009. [6] The decision of SDP Lacy is helpful in detailing those employers bound by the preserved collective agreement which was terminated effective 1 October 2009 and those employing entities still bound by the Agreement as certified by the QIRC. It is in respect of this latter group of employers and their employees that the LHMU application seeks to affect. The list of those employers is found in Schedule A to this decision. [7] The grounds of public interest relied upon by the LHMU to argue for termination of the Agreement can be summarised as follows: • When the parties originally entered into a multi-employer agreement, there was no contemplation of the introduction of the Work Choices reform legislation which in effect created two agreements. The parties' intent, at the time of certification, was to maintain a single agreement creating a level playing field in the contracting industry; • The LHMU as the representative of employees to that multi-employer agreement no longer wishes to be bound by the Agreement; • With the termination of the preserved collective agreement by the AIRC, employees of constitutional corporations and their employers relied upon the NAPSA until 31 December 2009 and now rely upon the Modern Award to ensure the maintenance of proper industrial standards. The termination of that preserved collective agreement was found to be consistent with one of the objectives of the pre-reform Workplace Relations Act 1996. Queensland has a comparable object in s. 3(g) of the Act; • The Agreement currently disadvantages employees and provides remuneration and other conditions which are inferior to those set out in the Queensland award, the NAPSA and the Modern Award. The Agreement which applies to sole traders, partnerships and other unincorporated entities and their employees contains wages rates lower, for the most part, than the Queensland award, the NAPSA and the Modern Award equivalent rates. In the course of the hearing, the Commission was provided with a comparative table of the Agreement rates and the relevant Queensland award rates in support of this submission; • It is contended that the Agreement is particularly disadvantageous to part-time employees in the industry. The majority of employees employed in the contract cleaning industry are part-time employees. At the hearing, the Commission was further provided with a comparative table of the Agreement rates for part- time employees and the relevant Queensland award rates for part-time employees in support of this contention; • The employees of unincorporated entities in the contract cleaning industry will not suffer disadvantage if the Agreement is terminated because the Queensland award, the Contract Cleaning Industry Award - State 2003, for the most part, contains terms and conditions that are better than the Agreement. Further, if the Agreement is terminated, the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) provides that employees may fall back to the Modern Award for the contract cleaning industry post 31 December 2009 i.e. the Cleaning Services Award 2010; • It is not in the public interest to maintain a redundant certified agreement that no longer provides for the terms and conditions of employment of all relevant employees; • Terminating the agreement will not discourage the making of new agreements appropriate to the parties' circumstances and consistent with minimum standards. The LHMU submit that it has been approaching employers in relation to bargaining for LHMU Clean Start Agreements and has been successful in a number of those approaches; • Finally, it is contended that the application to terminate the Agreement is consistent with, and furthers, the objects of the Act. In particular the LHMU relies upon the following: -- 2 of 6 -- 3 ¾ Section 3(a) of the Act which is about providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers; and ¾ Section 3(b) of the Act which is about providing for an effective and efficient economy, with strong economic growth, high employment, employment security, improved living standards, low inflation and national and international competitiveness; and ¾ Section 3(g) of the Act which is about ensuring wages and conditions provide fair standards in relation to living standards prevailing in the community. Service [8] Schedule A to this decision lists those employing entities still bound by the Agreement as certified by the QIRC as found by SDP Lacy when dealing with the LHMU application in the AIRC in September 2009. The LHMU has identified further employing entities still bound by the Agreement. [9] An organisation known as the Building Service Contractors' Association of Australia - Queensland Division, Industrial Organisation of Employers (the BSCAA) has regularly represented the employing entities in matters before the QIRC. Exhibit 3 is correspondence from the BSCAA dated 19 January 2010 indicating that the organisation was aware of the hearing of this application to terminate the Agreement and notifying the LHMU that they had written to their membership "who were the remaining respondents to the CA", to seek their instructions as "to what action they would like us to take on their behalf". The result, according to the correspondence, "was that our members instructed us not to take any further action on the termination of the CA". [10] The LHMU was provided with a schedule of an up-to-date list and details of employing entitles who were members of the BSCAA and were bound by the Agreement. [11] The LHMU then conducted searches to identify whether each employer listed in the schedule was still in operation and to identify addresses for each of the business entities in the schedule. The LHMU were able to identify addresses for twenty-eight of the thirty-four employees listed in the schedule. The LHMU then posted to each of those addresses identified an individual letter addressed to each employer together with a copy of the Application for Termination of the Building Service Contractors Association of Australia - Queensland Division Certified Agreement 2005. [12] The LHMU then cross-referenced the names of employing entities on the schedule provided against the names in Schedule A to this decision and determined that further entities needed to be served. These entitles were served in the same manner as the earlier entities. [13] I find that the LHMU have appropriately sought to identify all employing entities who continue to operate in the contract cleaning industry and who are unincorporated entities bound by the Agreement. Further I find that the LHMU have then served those entities with the application. There was no appearance by any employer entity in the hearing of this application. Schedule B to this decision lists the names of entities which the LHMU were unable to serve as the entity could not be located or alternatively the entity was no longer operating. Conclusion [14] When this Agreement was originally made it was in the interest of all parties that a level playing field be created so that all employing entities were paying the same terms and conditions of employment. It is also evident that the terms and conditions contained in the Agreement are below standards applying in relevant awards. [15] On and from 27 March 2006 things changed with the Agreement no longer applying to the employment relationship between constitutional corporations in the contract cleaning industry as a result of the operation of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). This resulted in the majority of employers in the industry no longer being covered by the Agreement. Further, as of 1 October 2009 the AIRC terminated the "preserved collective State agreement". Thus constitutional corporation employers in the industry reverted to the NAPSA until 31 December 2009 and after that date to the Cleaning Services Award 2010 (Modern Award). So the terms and conditions of the employees of constitutional corporation employers vary from those provided for in the Agreement. [16] I am satisfied that having regard to the provisions of s. 173 of the Act and the objects of the Act that terminating the Building Service Contractors Association of Australia - Queensland Division Certified Agreement 2005 would not be contrary to the public interest. In those circumstances I find that it is in the public interest to terminate the Agreement and thus I must approve the termination of the Agreement. Section 173(4) of the Act -- 3 of 6 -- 4 provides that termination takes effect when the Commission's approval takes effect. The Commission's approval will take effect on 15 February 2010. A prospective operational date will enable the BSCAA to notify its members of the termination of the Agreement and for other employing entities to be made aware of the termination of the Agreement. [17] SDP Lacy, when terminating the preserved collective agreement, required the LHMU to publish a public notice. I will do likewise so as to ensure, as far as possible, that all employing authorities affected by this decision are made aware of the termination of the Agreement. I thus direct the LHMU to cause to be published a public notice in the Courier Mail informing the parties to the Agreement of its termination and the operative date of the termination. I direct that the public notice be published as soon as possible after release of this decision and well before 15 February 2010. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2010 20 January Released: 28 January 2010 Appearances: Ms A. Kent of the Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees for the Applicant. -- 4 of 6 -- 5 SCHEDULE "A" Parties to the Agreement identified as sole traders, partnerships or otherwise unincorporated. Sole Traders Caroline Martin Gerald Richards Peter Hanlon Geoff Telly Nell Buhse Lisa Ahrens Trevor Witcher David Piticco Max Teague Shaune Easte Brett Ries David Sammut Patricia Marree Mossman Robert George Scott Martin Paul Callan Partnerships P.A. & K.M. Halsey D.M. & P. Maras R.J. & R.L. Brown I & M Buchan J. Borg & M. Borg M.N. & S.M. Smithers N.A. & R.W. Clarke B.J. & P.A. Derkson & K.R. & D.E. Gomersall R.J. & R.M. Duggan George & Kay Luther J & L Tapine Mellowship & Palmer V & J Boyd D R West & A R West R S & S M Gambino Joseph and Irene Fenech K A Hollihan & G E Martin & G J Martin C R & C B Goodwill Otherwise unincorporated The Coppleman Family Trust PAS Investment Trust G.M. & J.R. Hoppe Family Trust The David Knox Family Trust The Kelly Family Trust Schillinbush Family Trust The Brown Trust The Trustee for the Action Trust The Wheeler Family Trust The Frisch Family Trust Trustee for Deveson Family Trust Papadimitriou Family Trust The Trustee for Haig Family Trust The Trustee for the Fischer Family Trust The Wright Family Trust Hillvine Trust -- 5 of 6 -- 6 SCHEDULE "B" Employer: Reason service could not be effected: Sole Traders Neil Buhlse, Sole Trader, t/a Neil Buhlse No address could be located Caroline Martin, Sole Trader, Trading as Caroline Martine Services No longer operating Robert George Scott, Sole Trader No longer operating Partnerships J& L Tapine, Partnership, trading as J& L Tapine No record of business could be located KA Hollihan & GE Martin & GJ Martin, Partnership, trading as Cairns Local Cleaning Services No longer operating Other Unincorporated Entities The Trustee for the Action Trust No address could be located The Brown Trust No address could be located The Bynge Biasse Family Trust No address could be located The Coppleman Family Trust No address could be located Trustee for Deveson Family Trust No address could be located Hillvine Trust No address could be located The Kelly Family Trust No record of business could be located Papadimitriou Family Trust No address could be located PAS Investment Trust No address could be located Schillinbush Family Trust No record of business could be located The Wright Family Trust No longer operating -- 6 of 6 --