Australasian Meat Industry Union of Employees (Queensland Branch) v Inghams Enterprises Pty Ltd [2005] QIRC 91 (2005) 179 QGIG 451

[Extract from Queensland Government Industrial Gazette, dated 15 July, 2005, Vol. 179, No.13, pages 451-453] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – making, amending and repealing awards Australasian Meat Industry Union of Employees (Queensland Branch) AND Inghams Enterprises Pty Ltd (No. B294 of 2005) VICE PRESIDENT LINNANE 29 June 2005 Application for three Industrial Agreements to be included as Schedules to Award – Applications not opposed – Proposed Schedules contain provisions that are discriminatory – Application not approved – A7, A8 and A12 to be declared obsolete – Industrial Relations Act 1999 s. 101, s. 104(1)(c) and s.126 and Anti-Discrimination Act 1991 s. 7, s. 8 and s. 11. DECISION [1] The application before me is one made pursuant to s. 125 of the Industrial Relations Act 1999 (Act) by the Australasian Meat Industry Union of Employees (Queensland Branch) (AMIEU). The purpose of the application is to amend the Poultry Processing Award – State 2003 (Award) to incorporate as Schedules to the Award, the contents of the following Industrial Agreements: (i) Seniority – Inghams Enterprises Pty Ltd made 16 December 1986 between the AMIEU and Inghams Enterprises Pty Ltd at Murrarie (A8 of 1987); (ii) Seniority – Inghams Enterprises Pty Ltd made 9 March 1987 between the AMIEU and Inghams Enterprises Pty Ltd at Cleveland (A12 of 1987); and (iii) Seniority – Table Talk Poultry Farms Limited made 9 January between AMIEU and Table Talk Poultry Farms Limited. Bartter Enterprises Pty Ltd is said to be bound by the terms of this Industrial Agreement by virtue of its being a transmittee of the business operated by Table Talk Poultry Farms Limited (A7 of 1987). [2] The application is made as a consequence of the Principle issued by a Full Bench of this Commission in the Review of Industrial Agreements Statement of Policy. [3] Essentially the Industrial Agreements provide for the engagement and retrenchment of employees on the basis of a seniority list. The seniority list is based on the employee’s length of service. Casual employees are also to be engaged and retrenched on the basis of seniority. [4] The Schedule sought to be inserted into the Award also makes provision for Loss of Seniority in the following terms: “An employee may forfeit their seniority: (a) If, being an unfinancial member of the Union, fails to become financial within 14 days of being called upon by the Union to do so.”. [5] The seniority list at the Inghams Enterprises Pty Ltd Murrarie site and the Bartter Enterprise Pty Ltd site covers all employees at the respective sites. The seniority list at the Inghams Enterprises Pty Ltd Cleveland site is dealt with on a department by department basis. [6] The position of the Respondents is that they do not oppose the application. [7] The problem identified during the course of the Review of Industrial Agreements is that the “last on first off” method of retrenchment has the potential to raise concerns that the respective Industrial Agreements are discriminatory. Section 126(a) of the Act provides that the Commission must ensure that an award does not contain discriminatory provisions. The potential areas of discrimination are sex, age and trade union activity. In respect of the forfeiture of seniority the Freedom of Association provisions of the Act are also relevant. [8] Section 7 of the Anti-Discrimination Act 1991 prohibits discrimination on the basis of the attributes of sex, age and trade union activity. Section 8 of the Anti-Discrimination Act provides as follows: “Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of – (a) a characteristic that a person with any of the attributes generally has; or -- 1 of 4 -- 2 (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination.”. [9] Section 11 of the Anti-Discrimination Act 1991 deals with the meaning of indirect discrimination and provides as follows: “(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term – (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable. (2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example – (a) the consequences of failure to comply with the term; and (b) the cost of alternative terms; and (c) the financial circumstances of the person who imposes, or proposes to impose, the term. (3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. (4) In this section – “term” includes condition, requirement or practice, whether or not written.”. [10] On their face the terms of all three Industrial Agreements have the potential to be indirectly discriminatory on the attribute of sex and age. As I understand the position, the parties to these Industrial Agreements were advised by Commissioner Fisher during the course of her Review that certain types of evidence would need to be adduced at the hearing of this application in order to overcome the prima facie indication of discrimination. That evidence was not adduced. In fact no evidence was adduced. [11] The parties were given a further opportunity at the hearing to adduce evidence to support the application. The material from Inghams Enterprises Pty Ltd was filed on 27 June 2005 and that from Bartter Enterprises Pty Ltd was filed on 28 June 2005. Sex and Age Discrimination [12] Inghams’ Murrarie Site: I am in receipt of an Affidavit from Jimmy Cramond, the Plant Manager of the Murarrie poultry processing plant of Inghams Enterprises Pty Limited. Mr Cramond has been employed by Inghams Enterprises Pty Limited and its predecessors in the poultry industry since 1961. Mr Cramond says that in his role as Plant Manager and Processing Manager he has been closely involved in the recruitment processes for new staff and that for as long as he has been employed by Inghams Enterprises Pty Limited the criteria for engaging staff has been based upon a person’s ability to perform the duties required. Mr Cramond has attached the current seniority list for both full-time and casual employees. [13] The full-time seniority list indicates that whilst the three longest serving employees are male, the fourth longest serving is a female. The first male was employed in June 1971 and the first female in October 1981. The workforce is predominately female however males and females seem to be recruited at random. The last person employed is a male whose start date was 25 October 2004 and his permanent start date is 16 May 2005. [14] Nothing however has been supplied with respect to the age of these employees. The most senior employee was employed on 29 June 1971 and the least senior on 25 October 2004. The age of the least senior employee may be fifty or fifty-five or sixty but he may also be twenty years of age whereas the most senior employee has to be at least forty-eight years of age or older. The material before me does not satisfy me that the inclusion of a -- 2 of 4 -- 3 Schedule in the Award providing simply for “last on first off” as the means of retrenchment would not be discriminatory in nature on the basis of the attribute of age. [15] The casual seniority list does not provide me with the same concerns as the most senior employee commenced in November 1999 and the least senior in June 2005. Once again there does not appear to be any discrimination on the basis of sex in respect of this list. [16] Inghams’ Cleveland Site: Brian Edward Watson, the Plant Manager of the further processed poultry plant of Inghams Enterprises Pty Limited at Cleveland provided an Affidavit. Mr Watson has been employed by Inghams Enterprises Pty Limited since 1986 and he states that for as long as he has been employed by Inghams Enterprises Pty Limited the criteria for engaging staff has been based upon a persons ability to perform the duties required. Mr Watson also provided various seniority lists for the respective departments at the Cleveland site. These can be summarised as follows: Meat Preparation – Permanent: All employees are male with the most senior having commenced in April 1990 and the least senior having commenced in June 2000; Meat Preparation – Part Time/Permanent: Only one employee (sex unknown) who commenced employment in March 2004; Meat Preparation – Casual: Once again all employees are male with the span of employment being from April 2003 to June 2005; Other – Permanent: These are both male and female with the most senior being a female who commenced in May 1985 and the least senior being a male who commenced in January 2000; Other – Casual: These are all male and are all of recent appointment; Back Dock – Permanent: These are all male with the first commencing employment in March 1996 and the last in May 2002; Back Dock – Part Time/Permanent: These are both male with the first commencing in December 1999 and the other in May 2003; Back Dock – Casual: These three employees are all male and of relatively recent employment; Further Processed – Permanent: I have been provided with two lists – one for females and one for males. The first female commenced employment in June 1986 and the first male in February 1987. The last female was employed in July 2001 and the last male in February 2000; Further Processed – Part Time/Permanent; Once again I have two lists. The first male commenced in November 2001 and the first female in November 1996 whilst the last male and female commencing employment in March 2003. Further Processed – Casual: Once again I have been provided with two lists for males. The employees in both lists have been employed since either June or September 2003. There is no reason given for the provision of two lists. The female list provides that the most senior employee commenced in September 2000 and the least senior employee commenced in June 2005. [17] Once again I have no information on the age of employees. Some department groupings are male only. This then suggests the possibility of discrimination on the basis of sex if, and when, a female is appointed to this area. Where males and females are employed there does not appear to be discrimination in recruitment practices based on sex. There is however up to fifteen years difference between first on and last on. The material before me does not satisfy me that the inclusion of a Schedule in the Award providing simply for “last on first off” as the means of retrenchment would not be discriminatory in nature on the basis of the attribute of age in all matters and the attribute of sex in some circumstances. [18] Bartter Enterprises Pty Ltd: I am in receipt of an Affidavit of Gary Bartlam, the Human Resources Manager for Bartter Enterprises Pty Ltd. Bartter Enterprises Pty Ltd currently employs 341 employees with the longest serving being a female who commenced employment on 1 March 1975. The current employee list reveals that females make up 49.5% and males 50.5% of the workforce. The seniority list reveals that males and females are randomly represented however once again there is a thirty year gap between when the most senior employee was -- 3 of 4 -- 4 employed and the least senior employee. I have not been provided with any information on the age of each employee. [19] Once again the material before me does not satisfy me that the inclusion of a Schedule in the Award providing simply for “last on first off” as a means of retrenchment would not be discriminatory in nature on the basis of the attribute of age. Potential Forfeiture of Seniority [20] The provision in the proposed Schedules that provides that an employee may lose seniority if they fail to remain a financial member of the AMIEU is one that offends the Freedom of Association provisions of the Act. Section 101 of the Act provides that the main purpose of Chapter 4 of the Act is to ensure that a person who does not wish to become or remain a member of an industrial association may refrain from doing so without fear of discrimination. Section 104 (1)(c) of the Act provides that a person engages in conduct for a prohibited reason if the person engages in, or threatens to engage in, the conduct because another person “has not paid, or does not propose to pay, a fee, however called, to an industrial association”. [21] Clearly if an employee were not to remain a financial member of the AMIEU the potential is that such an employee would be discriminated against by virtue of the retrenchment policy sought to be inserted into the Award. They would find themselves at the end of the seniority list and thus subject to being the first person to be retrenched. Such a provision in an award would thus be contrary to the Act. [22] In my view the provision would also offend the Anti-Discrimination Act 1991 in that it could lead to discrimination on the basis of trade union activity. Conclusion [23] In all the circumstances I am unable to approve the amendment to the Poultry Processing Award – State 2003. Accordingly, the application is refused and the Registry will be notified that A8 of 1987 Poultry Slaughtering Award – State, Seniority – Inghams Enterprises Pty. Ltd, Murarrie, A12 of 1987 Poultry Slaughtering Award – State, Seniority – Inghams Enterprises Pty. Ltd., Cleveland and A7 of 1987 Poultry Slaughtering Award – State, Seniority – Table Talk Poultry Farms Limited, can be declared obsolete. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2005 23 and 29 June Released: 30 June 2005 Appearances: Mr C. Buckley of Australasian Meat Industry Union of Employees (Queensland Branch), with him Mr Richardson and Ms D. Sully on behalf of the Applicant. Mr J. Harrison of Livingstones (Australia) on behalf of Bartter Enterprises. Mr C. Pollard of Jones Ross on behalf of Inghams Enterprises Pty Ltd. Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --