Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Power Personnel (Qld) Pty Ltd [2003] QIRC 98 (2003) 173 QGIG 488

488 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 ###################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Power Personnel (Qld) Pty Ltd (No. W11 of 2003) ENGINEERING AWARD – STATE 2002 COMMISSIONER BROWN 30 May 2003 DECISION This matter is an application by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) on behalf of Craig Nuske for an order for payment of unpaid wages from Power Personnel (Qld) Pty Ltd (PPQ). Mr E. Moorhead appeared for the AMEPKU and Mr L. Olssen of Employer Services Pty Ltd appeared for PPQ. Mr Olsson submitted that following notification given to PPQ by Energex on 19 June 2002 that PPQ services would not be required by Energex after 19 July 2002, a meeting of PPQ employees was held on 20 June 2002 wherein employees were advised that they would no longer be required in their present capacity, namely PPQ employees contracted to Energex. Mr Olsson stated at this meeting employees were urged by Mr Rogers, Manager PPQ, to apply for vacancies within Energex and invited employees to use him as a reference. He contended that there was never a termination and that Mr Nuske was not made redundant and had Mr Nuske left the employ of PPQ after 19 July 2002 as a result of a failure of PPQ to find him alternate employment, then he would have been paid severance pay. Mr Olssen submitted that the claim for payment of waiting time should not be entertained as the matter has not been simply a refusal to pay an amount but rather a genuine dispute over whether or not the amount is owed. Mr Olssen stated that PPQ did not rely on the customary turnover of labour as a reason that severance payment should not be paid nor did PPQ rely on their ability to apply for exemption for payment of severance pay because of their assistance to Nuske to find alternate employment but solely on the argument that Nuske was not dismissed but left PPQ of his own initiative and consequently was not entitled to payment for severance pay. Mr Moorhead agreed that the issue to be determined was whether or not Nuske was terminated by notice given on 20 June 2002 or left voluntarily. Mr Moorhead contended that Nuske was given notice of his termination of employment with PPQ and had, as an Award entitlement, the right to leave to take up alternative employment without foregoing his right to severance pay. Mr Moorhead maintained that an undertaking by PPQ to try to find alternate work if Nuske failed to secure employment with Energex did not mean that the employee was not terminated. Section 278 of the Industrial Relations Act 1999 (the Act) states inter alia that an application may be made to the Commission for an order for payment of an employee’s unpaid wages. The meaning of “wages” is found in Schedule 5 – Dictionary of the Act. -- 1 of 4 -- 13 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 489 Clause 4.9 of the Engineering Award – State (the Award) covers Redundancy and clause 4.9.1 contains the discussions that shall take place when a employer no longer wishes the job the employee has been doing to be done by anyone. Clause 4.9.6 sets out the severance pay in addition to notice period payable to an employee whose employment is terminated for the reasons appearing clause 4.9.1. Clause 4.9.8 (Employee leaving during notice) states: “An employee whose employment is terminated for reasons set out in clause 4.9.2 may terminate such employment during the period of notice, and, if so, shall be entitled to the same benefits and payments under clause 4.9 had such employee remained with the employer until the expiry of such notice: Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.”. The Commission accepts the position of the parties that the issue to be decided is whether or not a termination at the hands of PPQ occurred and notes the decision of PPQ not to argue that the termination was a result of the usual and customary turnover of labour. In the material submitted with the original application it was claimed that “PPQ informed the employee that his services would no longer be required from 19 July 2002 as Energex had terminated the contract for the supply of labour by PPQ.”. Margaret May, an official of the AMEPKU, confirmed in evidence that Nuske had contacted her and advised that his position with PPQ had been made redundant and that he had not received severance pay whilst others had. That, she said, occurred in July 2002. May’s evidence was that Rogers had claimed to her that no severance pay was owing to Nuske because “suitable alternate employment had been found” (Transcript p. 13, l. 8) and “Doug (Rogers) told me had organised for Craig (Nuske) to become employed by Energex and so therefore he didn’t have to pay severance” (Transcript p.13, l. 22). May stated that she later established through communication with Mr Mould from Energex that PPQ had no influence on the success of Nuske’s application for employment at Energex. Nuske, in evidence, stated that in a meeting of employees of PPQ, Rogers informed himself and others that PPQ was giving them notice of termination as a result of a restructuring within Energex and that their positions were no longer required. Nuske confirmed that Donald Hopwood, an electrician and a co-worker of Nuske at material times, had attended the June meeting but could not recall PPQ offering alternative employment with PPQ should applications for employment with Energex fail. Nuske claimed that Rogers stated that anyone failing to gain employment with Energex would be paid out and get all entitlements (Transcript p. 17, l. 28- 30). Nuske claimed to be certain that Rogers had stated that he would no longer be required by PPQ after 19 July 2002. Douglas Rogers, manager PPQ, gave evidence relating to the meeting with Energex on 20 June 2002 and the subsequent meetings with PPQ employees that day. Rogers’ evidence regarding the PPQ employee meeting was as follows: “I held a subsequent meeting with Power Personnel employees immediately after the Energex presentation, at which I outlined the following: • That Power Personnel (Qld) had received the official notice of 1 month that their contract with Energex was to be terminated on 19 July 2002; • That Power Personnel was happy for any employee to apply for the vacancies; • Those wishing to do so I would be pleased to stand as an employer referee; • For anyone not wishing to apply or being unsuccessful in an application to Energex, Power Personnel would endeavour to continue their employment at an alternative site.”. Rogers claimed that he at no time told Nuske that he was to be terminated. He stated that Nuske did not advise him of any of the details of his successful job application with Energex. Rogers stated that he did not pay Hopwood for notice because he had offered him an alternative position but did pay him severance pay. Rogers stated that 3 employees other than Hopwood were unsuccessful in obtaining work with Energex and these 3 were paid severance pay but were given no notice. Rogers stated that he believed that this was in excess of PPQ’s obligations to those employees (Transcript p.43, l. 20), yet earlier in evidence Rogers stated that in his opinion the severance pay was an entitlement of the employees. (Transcript p. 41, l. 54-55) Rogers claimed that May had never contacted him over the issue. Rogers stated that Steve Ribelt, a sheet metal worker, was paid 246 hours severance pay and that a painter who left voluntarily was paid neither severance pay or notice. Another electrician (not Hopwood) left PPQ to become a subcontractor and was paid severance pay. Rogers stated that those employees who gained a full-time position with Energex after 19 July 2002 were paid severance pay. In evidence, Donald Hopwood, an employee of PPQ working with Energex prior to 19 July 2002, stated that he attended both the Energex meeting with contractors and the subsequent meeting with PPQ management and employees on 20 June 2002. He recalled Doug (Rogers) encouraging employees to apply for employment with Energex and further that Rogers advised that for those employees failing to gain direct Energex employment, PPQ would endeavour to find them work. Hopwood occupied a relief position with PPQ in Energex post 19 July 2002 until he became a direct employee of Energex. -- 2 of 4 -- 490 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 During examination, witness Hopwood stated that Rogers in addressing PPQ employees said they were all encouraged to apply for positions and those who weren’t successful, he would look around for work elsewhere for them. (Transcript p. 30, l. 36-38) This was explained by Hopwood where he said: “With labour hire you can end up working anywhere, if there’s work you go there, so, you know, you stay on the books as, you know, looking for work.”. Hopwood reverted to casual employee status for some weeks after 19 July 2002 and was paid 4 week’s severance pay by PPQ. (Transcript p. 57, l. 29) With respect to the certainty of work after 19 July 2002, Hopwood stated that he had an idea that he would get some fill-in work. (Transcript p. 33, l. 2- 3) Hopwood received payment of accumulated leave and some severance pay and recalled Rogers saying: “I’ll just pay you up to now and we go casual.”. Hopwood could not recall any employee asking Rogers whether the information provided in the employee meeting constituted notice period. Hopwood opted to be paid up and to be engaged as a casual. This choice was made because he “figured I’d be out looking for work again because I didn’t think I was going to get a permanent job”. (Transcript p. 35, l. 8-10) That the application was made under s. 278 was not questioned or contested by PPQ nor was the issue of whether a claim for “severance pay” is an issue that should be dealt with under Chapter 3, Part 4, s. 87, orders about severance allowance with its accompanying time restrictions under s. 88 of the Act. In that PPQ was content to allow the matter to be dealt with as recovery of wages together with the claim for waiting time pursuant to clause 5.6.1 of the Award, the Commission is of the view, that the application having been based on Award provisions, may be dealt with as a wage recovery matter. Further, the application seeks an order for $20,000 being for severance pay and waiting time despite claims that the total amount owing to the employee is $25,324.56. The Commission accepts that the amount claimed of $20,000 is within the limits set by s. 278(2) of the Act. PPQ has not lodged any application to exempt them from payment of severance pay. As mentioned, the issue to be determined is whether or not Nuske was terminated. If Nuske’s evidence was accepted, then the issue would be beyond doubt. Nuske was certain that notice was given in the meeting of 20 June 2002. Rogers denied giving any notice. Hopwood could not recall any employee asking whether the information provided by Rogers in the meeting constituted notice of termination. Whilst not discarding Nuske’s evidence or the AMEPKU’s submissions in determining the position with respect to notice, I believe it would be safer to examine the evidence of Rogers and Hopwood and the submissions of Olsson. Firstly the Macquarie Dictionary states: “Notice – ‘a notification of the termination, at a specific time, of an agreement, as for renting or employment, given by one of the parties to the agreement.”. The evidence of Rogers supported by Hopwood was that the employees in question were advised on 20 June 2002 of the termination of the contract between Energex and PPQ. Both Hopwood and Nuske attested that they were further encouraged by Rogers to seek direct employment with Energex. Both agreed they were then advised that should that fail PPQ would endeavour to find work for them. Hopwood’s evidence that “should you stay with labour hire employment, you would be on the books looking for work” is consistent with the experience of the Commission. The undertaking to endeavour to find work was not a guarantee of a job or indeed an income. The actions of Rogers in the meeting of 20 June 2002 was, in the view of the Commission, to give notice of termination to those present. It was a reasonable way to convey the news and it was reasonable for Nuske to accept the information provided that his contract of employment as it then was would cease on 19 July 2002. It was also prudent of Nuske and others to treat the communication of Rogers as notice. The permanent employment of Hopwood was indeed terminated on 19 July 2002, as was that of other employees. Whether or not the others received correct severance payment or notice is not an issue for consideration of the Commission. Nor is it appropriate to examine Nuske’s circumstances in some attempt to determine whether Nuske was treated equitably by comparison to other employees. The application relates only to whether Nuske received his Award entitlements. Having determined that notice was given on 20 June 2002, the mater for determination is whether or not Nuske was entitled to severance pay given his circumstances and the Award. The cancellation of the contract between Energex and PPQ and PPQ’s subsequent ability to employ or not employ employees constituted, in the Commission’s view, a major change pursuant to clause 4.8 of the Award. PPQ held appropriate discussions with employees in line with clause 4.8.2 that they failed to involve the AMEPKU is not an issue here. PPQ specifically declined the opportunity to categorise the event as the ordinary or customary turnover of labour. Whether or not PPQ wished the job to be done by anyone was also not canvassed by PPQ. In these circumstances I accept that the position of Nuske became redundant. -- 3 of 4 -- 13 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 491 Having accepted that Nuske was given notice of his termination on 20 June 2002 and that the notice came about because of redundancy, I further accept that Nuske is entitled to severance pay pursuant to clause 4.9.6 of the Award and that this severance pay is not diminished by his departure during the notice period. (See clause 4.9.8) The application insofar as it relates to severance pay is granted. The application also seeks a further payment equivalent to 28 week’s pay for waiting time pursuant to clause 5.6.1 of the Award which states: “5.6.1 When an employee is discharged or leaves the employment in accordance with clauses 4.7, 4.8, 4.9 (Termination of Employment, Introduction of Changes, Redundancy), the employee shall be paid all monies due as soon as practical and, in any case, within 24 hours, excepting where a Sunday or Public Holiday intervenes, in which case the employee shall be paid such monies not later than noon on the next working day. If the employee is not so paid the employee shall, for such time as shall elapse between discharge or leaving employment as aforesaid and being paid, be paid at the ordinary rate of wages.”. The evidence of May is sufficient for the Commission to conclude that PPQ should not be held liable for such a payment. Contact between the parties was sparse (even accepting the contested evidence of May) and the application was not lodged until some 6 months after the dispute first arose. The submissions of Moorhead also stated that the initial claim was lodged in July 2002 and again on 11 December 2002, a gap of 5 months. Whilst I found in favour of the applicant with respect to severance pay, it is the view of the Commission that PPQ genuinely held the view that this amount was not owing and as such had an entitlement to contest the claim. I accept that this matter is not one where PPQ deliberately refused payment knowing that the employee had the entitlement and further, that much of the delay in processing the matter was caused by the applicant. The application so far as it relates to waiting time pursuant to clause 5.6.1 of the Award is dismissed. I order that Power Personnel (Qld) Pty Ltd pay Craig Nuske the sum of $4,469.04 taxed according to law within 22 days of the date of release of this decision. D. K. BROWN, Commissioner. Hearing Details: 2003 17 February 14 April Appearances: Mr L. Olsson of Employer Services Pty Ltd for Power Personnel (Qld) Pty Ltd Mr E. Moorhead for the Automotive, Metals, Engineering, Printing and Kindred Industries industrial Union of Employees, Queensland -- 4 of 4 --