East End Hotel v Employees of East End Hotel [2002] QIRC 191 (2003) 172 QGIG 90

90 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application to certify agreement East End Hotel AND Employees of East End Hotel (No. CA429 of 2002) EAST END HOTEL – CERTIFIED AGREEMENT COMMISSIONER ASBURY 19 December 2002 DECISION Industrial Relations Act 1999 – s. 156 application for certification of agreement – Agreement made between employer and employees – Requirements for certification – Communications from disaffected employees prior to certification – Refusal by disaffected employees to be identified – Detailed examination of issues raised by disaffected employees – Finding that all possible steps were taken to examine concerns – Requirements for certification of agreement met – Agreement certified – Further communications from disaffected employees after certification – Requirement for procedural fairness to be provided to parties – Consideration of whether procedural fairness requires ability of affected party to cross-examine person making allegations – Finding that employees seeking to remain anonymous have other options in relation to issues raised – Evidence that employees had involved a union in negotiations – Evidence that employer had negotiated with union as requested – Changes made to agreement by employer as a result of negotiations with union – Commission not prepared to revisit certification of agreement on the basis of communications from persons desiring to remain anonymous – Commission is functus officio with respect to certification – Undertakings given by employer included in schedule to decision – Information to employees about their rights with respect to the ongoing operation of the agreement included in schedule to decision – Order that employer provide a copy of schedule to each employee bound by the agreement. -- 1 of 11 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 91 Overview This is an application for the certification of an agreement termed the East End Hotel – Certified Agreement (the Agreement). The application made on 3 October 2002, stated that the Agreement was made pursuant to s. 156 of the Industrial Relations Act 1999, between SSUT Pty Ltd (the employer) and its employees. On 8 October 2002, a letter was received by the Industrial Registrar making certain allegations about the process which the employer followed in making and seeking approval for the Agreement and questioning whether the Agreement passed the “no disadvantage test” as laid down in s. 160 of the Act. The letter was signed, but the writer made a request to remain anonymous. The letter also purported to be on behalf of a majority of employees although it was signed by only one person claiming to be an employee of the employer. A hearing into the application for certification of the Agreement was listed for 24 October 2002. The employer was represented by Mr C. Mossman of McCullough Robertson Hancock Lawyers. At that hearing, I outlined to the employees the concerns raised in the letter of 8 October 2002, and indicated that the hearing would be adjourned and continued in Bundaberg on 11 November 2002. I also advised the employer that I proposed to randomly select a number of employees and have the Industrial Registrar make contact with those employees and request them to attend the hearing in Bundaberg. Those employees would be asked a series of questions about the process which was followed in the negotiation and approval of the Agreement and the matters raised in the letter of 8 October 2002, which can be summarised as follows: • employees were required to sign for ballot papers; • the ballot papers were numbered raising concerns that in combination with signing for those ballot papers, that the vote of an individual employee could be identified; • there were 15 postal votes which were not valid; • if the 15 invalid postal votes were excluded, the Agreement would not have been approved by a valid majority of employees; • inappropriate contact had been made by the employer with employees who voted by post; • a group of employees in the night club had refused to be part of the Agreement and had been removed from it because they had “clout” resulting in a weakening of the “no” vote; • the Agreement did not pass the “no-disadvantage test”. The employer supplied to the Commission a list of names of all employees proposed to be covered by the Agreement and their contact telephone numbers. Staff of the Industrial Registrar contacted employees randomly and selected 6 employees who agreed to come to the hearing on 11 November 2002 and answer questions about the Agreement and the process of making and approving it. The applicant also called 10 witnesses, 5 managers and 5 employees working in the bar, cellar, bottle-shop and security. The witnesses for the applicant were also questioned by me in relation to the substance of the allegations made in the letter of 8 October 2002. At the conclusion of the hearing on 11 November 2002, I advised the parties that on the basis of the evidence and submissions, and undertakings given by the employer in relation to the operation of the Agreement, that I was prepared to certify it. That decision was made on the basis of the evidence and material that was before me as at 11 November 2002. This decision sets out my reasons for being prepared to certify the Agreement at that time. Requirements for Certification The Commission must certify an agreement if, and must not certify an agreement unless, it is satisfied that the requirements set out in s. 156 of the Act are met. There are a number of additional grounds upon which the Commission may refuse to certify an agreement set out in s. 157 of the Act. It is well established that the Commission may require no more nor accept no less than what is laid down in those provisions. If the requirements are satisfied, and none of the circumstances for refusing to certify an agreement are considered by the Commission to exist, the Commission must certify the Agreement. Further, s. 158 of the Act provides that if the Commission has grounds under s. 156 or 157 to refuse to certify the Agreement: “(a) the commission may accept an undertaking from 1 or more of the persons who made the agreement in relation to the operation of the agreement, and, if satisfied the undertaking meets the commission’s concerns, certify the agreement; and (b) before refusing to certify the agreement, the commission must give the persons who made the agreement an opportunity to take action that may be necessary to enable the commission to certify the agreement.”. I set out below my reasons for finding that the relevant requirements of s. 156 have been met. Notice of Intention to Begin Negotiations for Certified Agreement to be given to Proposed Parties Section 156(1)(a) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless the things required by s. 143 have been done. Where a certified agreement is proposed to be made between an employer and employees, the proposer (in this case the employer) must give the other proposed parties (in this case the employees) written notice of the intention to begin negotiations for the Agreement (refer s. 143(2)(a)). The proposer must advise the proposed parties of the intention to make the Agreement 14 days before the negotiations are proposed to begin. The affidavit of Steve Burton filed with the Agreement (Exhibit A10) attached a memo to employees dated 9 September 2002, which contained a statement that the Company intended to make a certified agreement with employees. Mr Burton deposed that this memo was handed to 40 employees at a meeting on 9 September 2002. Mr Burton further deposed that he personally saw the remaining employees shortly after the meeting of 9 September 2002, and handed them that memo. The ballot for the approval of the Agreement was originally scheduled for 23 September, being 14 days after the memo was provided to employees. It was subsequently decided that the ballot would be conducted on 28 September to ensure that all employees who were not at the meeting would have 14 days to consider the Agreement. Mr Burton also gave evidence at the hearing into the certification of the Agreement. On the basis of the affidavit and the evidence of Mr Burton, I am satisfied that the requirements of s. 156(1)(a) are met in that the things required by s. 143 have been done. Explanation of Agreement to Employees Section 156(1)(a) of the Act also provides that the Commission must certify an agreement if and must not certify an agreement unless the things required by s. 144 have been done. Section 144(2) provides that when a certified agreement is proposed to be made with employees the employer must take reasonable steps with respect to relevant employees, to ensure that: “(a) at least 14 days before the relevant employees are asked to approve the agreement, each relevant employee has, or has ready access to, the proposed written agreement; and -- 2 of 11 -- 92 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 (b) the terms of the agreement (including the procedures for preventing and settling disputes), and the effect of the terms, are explained to each relevant employee before approval is given; and (c) for an agreement with employees – each relevant employee is informed that he or she may ask a relevant employee organisation to represent the employee in negotiating with the employer about the agreement.”. The affidavit of Steve Burton filed with the Agreement (Exhibit A10) sets out steps taken to comply with s. 144 which included a briefing of employees held on 9 September 2002, about the Agreement making process; the effect of certified agreements; the certification of agreements and the requirement for a majority of employees to agree to its terms. Mr Burton also deposed that the terms of the proposed Agreement were discussed in detail with employees. The briefing was substantially conducted by Mr C. Mossman of McCullough Robertson Hancock Lawyers, who had been engaged by the employer to assist with the making of the Agreement. It was further deposed by Mr Burton that employees had been told that their questions, comments and feedback were welcome over the next 14 days. Mr Burton also said in his affidavit that employees were provided with a copy of the proposed Agreement; a table comparing the Agreement to the relevant Award and a document setting out frequently asked questions and answers. These documents were also attached to Mr Burton’s affidavit. Mr Burton’s evidence was supported by the following witnesses called by the employer who provided affidavits and gave evidence to the Commission: Ms Joanne Louise MAJOR – Manager Krystal’s Night Club (affidavit Exhibit A1); Mr Leith Desmond SWALLOW – Bottle Shop Worker/Security Guard (affidavit Exhibit A2); Mr Brett RICHARDS – Bottle Shop Attendant/Security Guard (affidavit Exhibit A3); Mr Graham John MURRAY – Gaming Manager (affidavit Exhibit A4); Mr Anthony Robert BUCHHOLZ – Cellarman (affidavit Exhibit A5); Ms Sharon Maree LENZ – Bar Attendant (affidavit Exhibit A6); Ms Leigh Anne ROYAN – Bar Attendant (affidavit Exhibit A7); and Mr Peter James THOMPSON – Bistro Manager (affidavit Exhibit A7). These employees also confirmed that they had approached Mr Burton after the meeting with questions about the proposed Agreement, and that these questions had been answered to their satisfaction by Mr Burton. A number of employees were also requested by the Commission to attend the hearing and to give evidence about the making and approval of the Agreement. Ms Jennifer Yvonne BURTON, Clerk, said that about 3 weeks before the ballot for the approval of the Agreement, Mr Steve Burton had told her about the proposed Agreement and how it would operate. Ms Burton had also been provided with literature about the Agreement including the sheet comparing the Agreement with the relevant Awards. Similarly, Ms Tracey Nicole BRADBURY, Bottle Shop Attendant, confirmed that she had attended a meeting at which the proposed Agreement had been explained, and questions from employees had been invited. Mr Dennis Rama CORETIC, Bottle Shop Attendant, confirmed that he had received a memo about the meeting on 9 September and had attended that meeting. Mr Coretic believed that he had been provided with a thorough briefing about the proposed Agreement. Luke Adrian ROBERTS also gave evidence of attending a meeting at which the terms of the proposed Agreement were explained, and written information was provided to employees. The memo appended to Mr Burton’s affidavit (Appendix A to Exhibit A10) contained the following statement: “If you are a member of the Union and would like the Union to represent you throughout the process, please have a Union representative contact Steve directly. Steve will then arrange to meet and confer with your Union representative about the Agreement.”. Witnesses confirmed that they had received this memo. On the basis of the evidence and other material before me, I am satisfied that the requirements of s. 144(2) have been met. Section 144(3) provides that if a relevant employee organisation is asked to represent an employee, the employer must give the organisation a reasonable opportunity to represent the employee in negotiating with the employer about the Agreement before it is made. The term “relevant employee organisation” is defined in s. 144(5) as an employee organisation of which a relevant employee is a member and that is bound by an award or industrial agreement that binds or would bind the employer apart from an award under the Commonwealth Act, or if there is no award or agreement that binds or would bind the employer, is entitled to represent the industrial interests of the employee. The term “relevant employee” is defined in Schedule 5 of the Act as follows: “ ‘relevant employee’ for a certified agreement, means an employee whose employment is, or will be, subject to the agreement.”. Appended to Mr Burton’s affidavit was a letter from the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU), addressed to Mr Mossman, dated 24 September 2002 (Exhibit A10 Appendix G). That letter advised that the ALHMWU had been requested, pursuant to s. 114(3) of the Act, to represent members in negotiations about the proposed Certified Agreement, and requested a meeting to discuss this matter. Appendix H to Mr Burton’s affidavit is a letter to the ALHMWU dated 25 September 2002, recording the outcomes of a conference on that date between Mr Mossman and the ALHMWU. Those outcomes included agreement by the employer to amend a provision of the proposed Agreement and undertakings with respect to the operation of other provisions. In relation to the amendment, I am satisfied pursuant to s. 151(3) that it did not adversely affect a relevant employee’s interests, but rather, provided additional benefits to employees in the form of an increase to the minimum break which employees are required to have between shifts, from 6 to 8 hours. Accordingly, the steps in s. 144(2) and (3) were not required to be taken with respect to the amendment. The ALHMWU did not seek to be heard on the application for certification of the Agreement pursuant to s. 155 or to be bound by the Agreement pursuant to s. 166(2) of the Act. There is no evidence before me to indicate that the ALHMWU was not given a reasonable opportunity to negotiate with the employer about the Agreement. On the basis of the evidence before me, I am satisfied that the requirements of s. 144(3) have been met. The proposed Agreement is not a project agreement, and accordingly s. 145 is not applicable. I note that it is arguable that the ALHMWU was not a relevant organisation of employees for the purposes of s. 144(5) as the Award binding on the employer is a Commonwealth award. However, the employer in this case acted in a manner consistent with a belief that the ALHMWU was a relevant organisation of employees, and complied with the requirements of the Act in this regard in any event. Section 156(1)(a) also requires the Commission to be satisfied that the Agreement was explained in a way that was appropriate, having regard to the particular circumstances and needs of the persons proposed to be covered by it, in particular the needs of women, persons from a non-English speaking background and persons with limited literacy and numeracy skills. The evidence establishes that the Agreement was explained at a formal meeting both orally, and with reference to comparative documents. The formal meeting was attended by a solicitor who provided a detailed explanation to employees about the terms of the Agreement, the certification process and the effect of certification. Further, employees were told that they could raise any questions about the Agreement with managers in the period prior to the ballot at which approval would be sought. -- 3 of 11 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 93 Persons who gave evidence at the hearing into certification of the Agreement on 11 November, also indicated that they understood the essential terms of the Agreement and were able to explain in their own words the effect of those terms. On the basis of the evidence before me, I am satisfied that the Agreement was explained in an appropriate manner to employees and that the requirements of s. 156(1)(a) in this regard have been met. Coercion in Relation to Union Representation Section 156(1)(b) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that the employer did not coerce or attempt to coerce an employee not to make a request for union representation in negotiations for an agreement or to withdraw such a request. There is no evidence of any coercion in relation to representation of employees in negotiations by a union. The evidence demonstrates that the ALHMWU wrote to the employer advising that it had been requested to represent members in negotiations about the proposed Agreement. There is also evidence that the employer’s representative met with the ALHMWU and as a result of that meeting the employer amended the Agreement and gave undertakings about its operation. On the basis of the evidence before me I am satisfied that the requirements of s. 156(1)(b) have been met. Agreement to be in Writing and Signed by or for all of the parties Section 156(1)(c) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that the agreement is in writing and signed by or for all the parties. In this case the Agreement is signed by Stephen Andrew Burton for the employer, and Sharon Marie Lenz for the employees. There is no requirement under the Act for the persons signing an agreement to be appointed as an agent of the organisations or persons on behalf of whom they sign that agreement. Coupled with the requirement under s. 156(1)(g) that a valid majority of relevant employees employed at the time approve the Agreement, and the Commission being satisfied that this requirement is met, I can see no basis for holding that a person who signs an agreement on behalf of the valid majority of employees who have approved the Agreement must be appointed as an agent of those employees. For the reasons set out below, I am satisfied that a valid majority of employees employed at the time approved the terms of the Agreement. Accordingly, I am also satisfied that the requirements of s. 156(1)(b) of the Act have been met, in that the Agreement has been signed for all the parties. I am also satisfied on the basis of the application before me and Appendix A to the affidavit of Mr Burton (Exhibit A10) that the Agreement is in writing. Disputes Procedure Section 156(1)(d) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that the Agreement includes procedures for preventing and settling industrial disputes. The proposed Agreement appended to the application before me contains a Grievance Procedure at clause 9. I note that the employer gave an undertaking to the ALHMWU in the letter dated 25 September 2002, that the reference in the procedure to a “nominated representative” would include an industrial representative. At the hearing on 11 November 2002, the employer gave a formal undertaking to the Commission that an employee was entitled to be represented by an officer of a Trade Union or any other person chosen by the employee with respect to the resolution of grievances. This undertaking is detailed in Schedule 1 to this decision. I am satisfied that the Agreement meets the requirements of s. 156(1)(d) of the Act in that it includes procedures for preventing and settling disputes. Nominal expiry date of Agreement Section 156(1)(e) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that the Agreement specifies a nominal expiry date that is no later than 3 years after the date on which the Agreement will come into operation. Clause 5 of the proposed Agreement provides that it will operate from the first pay period following certification and will remain in force for 3 years from that date. In my view the Commission cannot certify an agreement so that it operates from a prospective date. Section 164(1) of the Act provides that an agreement starts operating when it is certified. The Agreement was certified on 11 November 2002, and by virtue of clause 5, will remain in force for a period of 3 years from that date. Employees are entitled to the benefits of the Agreement from the date of certification regardless of whether that date falls part way through a pay period. I am satisfied that the Agreement meets the requirements of s. 156(1)(d) of the Act in that it specifies a nominal expiry date that is no later than 3 years from the date of certification. Agreement to be accompanied by information required by regulation Section 156(1)(f) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that the Agreement contains or is accompanied by information prescribed under a regulation. The relevant regulation is Regulation 9 of the Industrial Relations Regulation 2000, which requires that for the purposes of s. 156(1)(f) of the Act, an agreement must be accompanied by an affidavit containing the specified information. An affidavit sworn by Mr Steve Burton, General Manager of the East End Hotel, was filed with the Agreement and tendered at the hearing on 11 November 2002, (Exhibit A10). A further affidavit sworn by Mr Burton was also filed at the hearing on 11 November 2002, (Exhibit A11). These affidavits contain all of the information prescribed under Regulation 9. Accordingly, I am satisfied that the Agreement meets the requirements of s. 156(f) of the Act. Approval of valid majority of employees Section 156(1)(g) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that a valid majority of employees employed at the time approved the Agreement. The term “valid majority” is defined in Schedule 5 of the Act as meaning the majority of relevant employees who cast a valid vote to give an approval, after the employer has given the employees a reasonable opportunity to decide whether they want to give the approval. The original affidavit sworn by Mr Burton (Exhibit A10) stated that the ballot for approval of the Agreement was conducted on 28 September 2002. Each employee attended the hotel premises and was handed a ballot paper, all of which were individually numbered to ensure the integrity of the vote. Employees had voted by ticking the appropriate section on the ballot paper and then placed the ballot paper in a secured box. Mr Burton also said that the ballot box could only be opened by smashing the top of it off. The votes were counted by Mr Burton in the presence of a representative of employees, “Sharon” and Mr Mossman. A total of 44 votes were counted with 33 being in favour of the Agreement and 11 opposed to the Agreement. Mr Burton’s affidavit deposed that there are 23 female employees, 43 male employees and 1 apprentice to be covered by the Agreement. Mr Burton said in his affidavit that 6 employees had advised him that they would not be present for the ballot on 28 September 2002. Those employees had completed a ballot paper and had placed it in the ballot box in a sealed envelope, prior to their departure from Bundaberg. Mr Burton also said that those employees had attended the meeting on 9 September, and had therefore had the Agreement for the required 14 days prior to casting their votes. -- 4 of 11 -- 94 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 In a second affidavit tendered at the hearing into the certification of the Agreement on 11 November, (Exhibit A11), Mr Burton responded to allegations made about the ballot process in the letter to the Commission dated 8 October 2002. Mr Burton said that although the ballot papers had been numbered, before distribution they had been shuffled to ensure that they would be handed out in random order. Mr Burton said that he had placed the ballot papers face down on the table secured with a bulldog clip. When employees came to vote they were told to sign their name on a book to confirm that they had received a ballot paper, and then told to take a ballot paper from the pile. Mr Burton said that he had no idea whether employees took a paper from the top, bottom or middle of the pile and it was up to each employee which ballot paper they selected. Mr Burton said that the reason for numbering the ballot papers was so that both the employer and employees knew that there were only a specific number of ballot papers in existence. This would ensure employees that the employer could not add in any additional votes, and ensure the employer that employees could not take more than one ballot paper from the pile or take ballot papers away and duplicate them. Mr Burton said that employees were told in two memos that the ballot was a secret ballot and that he had absolutely no knowledge of how employees voted. Even employees who had voted prior to 28 September because they would have been absent from Bundaberg on that day, had selected ballot papers randomly from the pile of ballot papers. A general invitation had been issued to employees to attend the count of the ballot papers by way of a memo dated 27 September 2002. This memo had been in response to an anonymous telephone call received by Mr Burton from a male person claiming to be a friend of some employees, who had expressed concerns about the ballot process. During his evidence to the Commission, Mr Burton tendered the original ballot papers (Exhibit A12). The ballot papers are numbered on the front with the number being in the bottom left hand corner of each paper. All of the witnesses including those requested to give evidence by the Commission, stated that they had not felt coerced in relation to the ballot. Further, the evidence of the witnesses was generally consistent with that of Mr Burton with respect to the selection of ballot papers. Witnesses generally said that they had picked their own ballot paper from a pile on the table, and that Mr Burton would have had no way of knowing which ballot paper they had selected. Further the papers had been face down so the number on them was not visible to Mr Burton. All witnesses indicated that they had no concerns whatsoever with the fact that the ballot papers were numbered, or that the employer had been endeavouring to ascertain the way in which employees voted on the Agreement. In my view, it is inadvisable for employers to number or otherwise mark ballot papers in circumstances where a secret ballot is being conducted to determine whether or not employees approve the terms of a certified agreement. In this case, employees came into a room, signed a document to indicate that they had been given a ballot paper and then placed that ballot paper into a sealed box after completing it. It would be surprising if the employer could not have found some other means of ensuring the integrity of the ballot than numbering ballot papers. In the case of the small number of employees who voted by postal ballot, I am also of the view that a better means of ensuring the integrity of the ballot could have been found than the practice of numbering ballot papers. Notwithstanding my concerns about the practice of numbering ballot papers in general, there is no evidence that the numbering of ballot papers was used to identify the way in which particular employees voted. There is also no evidence of coercion in relation to the conduct of the ballot. Further, all of the witnesses who gave evidence to the Commission specifically said that they were not concerned that the employer was attempting to identify the way in which they had voted or to pressure them in any way with respect to their vote. The memo which is Appendix A to Mr Burton’s affidavit contains a statement to employees that the Agreement could not be made legally binding until a valid majority of employees voted to approve it. The ballot was originally scheduled for 23 September, but was subsequently conducted on 28 September to give employees an opportunity to consider the Agreement for the required 14 day period, given that some employees were not able to attend the first meeting at which the Agreement was distributed, on 9 September. The document headed “Questions and Answers” which was handed out to all employees (Appendix E to the affidavit of Mr Burton) stated that the vote for the approval of the Agreement would be conducted by secret ballot and that voting was not compulsory. On 18 September 2002, a further memo under the signature of Mr Burton was provided to employees (Appendix F to the affidavit of Mr Burton) which stated inter alia: “The vote will proceed by way of a secret ballot. A locked ballot box will be set up in the East End Hotel. The ballot will open at 10.00 am in the morning and close at 6.00 pm in the evening. When attending to vote you should see me directly and I will give you a ballot paper which you can fill in and place in the secured ballot box. The ballot paper will simply ask you to answer a yes or a no to a question as to whether you agree to the terms of the Certified Agreement. If you will not be present in Bundaberg at the time of the vote, please see me directly and I will arrange for you to have a postal vote. At the close of the ballot at 6.00 pm the ballot box will be opened in the presence of myself and an employee representative and the votes will be counted. We shall advise you of the outcome of the vote as soon as we have a result. We are required to receive a majority vote of the employees in order for the Agreement to be filed in the Industrial Relations Commission. We believe that the Agreement is in the best interests of all employees at the East End Hotel. Voting is not compulsory, however we hope to receive your “Yes” vote. If you have any queries, please do not hesitate to contact me.”. The original ballot papers were tendered by Mr Burton (Exhibit A12) in support of the material contained in his affidavit. It is arguable that in a workplace where employees are casual and working irregular hours; or are working a roster which provides for them to have a block of time off after working for an extended period; or where employees may be absent on various forms of leave, a ballot for approval of an agreement should be conducted over a period longer than one day. It would also have been preferable for the employer in this case to have refrained from making gratuitous statements about the hope for a “yes vote”. However, on balance, I am satisfied on the basis of the evidence before me, that a valid majority of employees approved the Agreement. I am also satisfied that employees were given a reasonable opportunity to decide whether to approve the Agreement. Accordingly, I find that the requirements of s. 156(1)(g) have been met. Requirement that agreement passes the “no-disadvantage” test Section 156(1)(h) of the Act provides that the Commission must certify an agreement if and must not certify an agreement unless it is satisfied that the agreement passes the no-disadvantage test. That test, which is set out in s. 160 of the Act, essentially provides that an agreement does disadvantage employees only if the Commission considers that it would result in a reduction in the employees’ entitlements or protections, under a relevant award, designated award, industrial agreement, order under chapter 5 part 5 or chapter 2 of the Act as reviewed by general ruling of a full bench. On perusal of the Agreement, the Commission had a number of concerns in relation to whether it passed the no-disadvantage test, which were raised with the employer during the hearing on 11 November 2002. These concerns were addressed by the employer giving undertakings to the Commission. Details of the concerns raised by the Commission and the clauses to which those concerns relate, are set out below, together with undertakings given by the employer to address those concerns. These undertakings have also been included in a Schedule to this decision to enable them be easily accessible to employees covered by the Agreement. -- 5 of 11 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 95 The undertakings given by the employer with respect to the clauses of the Agreement as detailed below, addressed the concerns that the Commission had in relation to whether the Agreement passed the no-disadvantage test. The Commission accepted the undertaking pursuant to s. 158(1) (a) of the Act. Clause 8.3(a) Termination of Employment Clause 8.3(a) of the proposed Agreement provided that where an employee was absent from work for a period of 3 consecutive working days without notifying the company, it shall be considered to have terminated the employment of that employee without notice, and is liable to pay wages and other payments up to the last day of actual work. The application of this provision is dealt with in a letter written on behalf of the employer by Mr Mossman of McCullough Robertson Hancock to Mr Revelo of the ALHMWU, dated 25 September 2002, which is Attachment H to the affidavit of Mr Burton (Exhibit A10). It is clear that the application of clause 8.3(a) of the proposed Agreement was an issue raised with the employer by the ALHMWU. The response to the ALHMWU was: “Clause 8.3(a) – Our client confirms that they will not use this provision to dismiss an employee for prolonged absence when the employee offers a reasonable excuse.”. Mr Mossman reiterated this advice to the ALHMWU in the form of an undertaking to the Commission, at the hearing on 11 November 2002. Further, Mr Mossman advised the Commission that the employer understood and accepted the right for an employee to argue that a dismissal in reliance on clause 8.3(a) of the Agreement was unfair in particular circumstances, regardless of whether an excuse for the absence had been provided by the employee and regardless of the employer’s non-acceptance of that excuse. Clause 8.3(b) Termination by the Employee Mr Mossman gave an undertaking that the obligation to give one week’s notice in the case of employees who resign their employment, does not apply to casual employees. Similarly, the right for the employer to withhold one week’s pay in lieu of notice not given by employees who resign their employment does not apply with respect to casual employees. Clause 8.3(c) Termination of Employment Mr Mossman gave an undertaking that termination of an employee’s employment pursuant to clause 8.3(c) of the Agreement would still be governed by the provisions of the Act in relation to unfair dismissal, and that an employee dismissed under that clause would be entitled to argue that the dismissal was unfair. Clause 8.5 Introduction of Changes, Termination of Employment in Cases of Redundancy Mr Mossman gave an undertaking that the intention of this clause was that the extended periods of notice set out in the Commission’s Statement of Policy on Termination Change and Redundancy would not apply to an employee who resigned his or her employment. Where employment was terminated by the employer, the employee would be given the relevant extended notice period as provided by the Statement of Policy and the Act. It was not intended that the clause operate in any other way to impact on the operation of the Commission’s Statement of Policy on Termination Change and Redundancy. This provision is dealt with in a letter written on behalf of the employer by Mr Mossman of McCullough Robertson Hancock to Mr Revelo of the ALHMWU, dated 25 September 2002, which is Attachment H to the affidavit of Mr Burton (Exhibit A10). The response to the ALHMWU was: “Clause 8.5 – The effect of the Agreement is that reference to the TCR decision will mean a reference to the TCR decision as amended by the Queensland Industrial Relations Commission from time to time.”. I formally record the advice to the ALHMWU in relation to this matter as an undertaking to the Commission. Clause 8.11 Annual Leave This provision is dealt with in a letter written on behalf of the employer by Mr Mossman of McCullough Robertson Hancock to Mr Revelo of the ALHMWU, dated 25 September 2002, which is Attachment H to the affidavit of Mr Burton (Exhibit A10). The response to the ALHMWU was: “Clause 8.11 – The entitlement to 20 days paid leave per year is equivalent to the Award’s 4 weeks. There is no reduction in any employee’s annual leave.”. I formally record the advice to the ALHMU in relation to this matter as an undertaking to the Commission. Clause 8.15(3) This provision is dealt with in a letter written on behalf of the employer by Mr Mossman of McCullough Robertson Hancock to Mr Revelo of the ALHMWU, dated 25 September 2002, which is Attachment H to the affidavit of Mr Burton (Exhibit A10). The response to the ALHMWU was: “Clause 8.15(3) – Our client confirms that it will make payment for an employee’s absent day if they have reasonable excuse for not being present at work on either side of a public holiday.”. I formally record the advice to the ALHMU in relation to this matter as an undertaking to the Commission. Clause 9 Grievance Procedures Mr Mossman gave an undertaking that an employee could be represented by any person of their choice at any stage of the Grievance Procedures. Specifically, employees could choose to be represented by a union official at any stage of those procedures. Clause 14 Classifications This provision is dealt with in a letter written on behalf of the employer by Mr Mossman of McCullough Robertson Hancock to Mr Revelo of the ALHMWU, dated 25 September 2002, which is Attachment H to the affidavit of Mr Burton (Exhibit A10). The response to the ALHMWU was: “Clause 14 – We confirm our advices that the classification system under the Agreement does not lead to a declassification of any employee pursuant to the Award.”. -- 6 of 11 -- 96 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 I formally record the advice to the ALHMU in relation to this matter as an undertaking to the Commission. Clause 16.2 Hours of work – full-time employees Clause 16.3 Hours of work – part-time employees Clause 16.4 Hours of work – casual employees Mr Mossman gave an undertaking that no employee could be compelled to work more than 304 hours in any 8 week work cycle. Employees who did not wish to work hours in excess of 304 hours in any 8 week work cycle would not be discriminated against or adversely affected in their employment because of refusing to work in excess of 304 hours in any 8 week work cycle (refer clauses 16.2.1 and 16.2.2). I take that undertaking to operate with respect to all employees be they full-time, part-time or casual employees. Mr Mossman also gave an undertaking that the maximum of 14 hours work in one day or shift would only apply during the Christmas and Easter holiday periods, and even at those times, employees would only be expected to work a maximum of 14 hours in one day or shift in a “super-emergency” situation, such as the unexpected arrival at the hotel of a football team. Further, employees would not work the 14 hour maximum in one day or shift during any other times of the year (refer clauses 16.3.1 and 16.3.2). The 14 hour maximum would apply in cases where all of the hours worked on any day or shift were part of the 304 ordinary hours, or where some of the hours were in excess of the 304 ordinary hours, so that no hours in excess of 14 in any day or shift would be worked. I take that undertaking to operate with respect to all employees be they full-time, part-time or casual employees. This undertaking would also apply with respect to clause 16.7.4 which deals with extensions to rostered hours. Clauses 16.2.4 and 16.3.5 provide that a maximum of 10 consecutive days may be worked by full-time and part-time employees. In response to a question from the Commission about the application of this limit with respect to casual employees, Mr Mossman said that there would be no requirement for casual employees to work on more than 10 consecutive days. I take this as an undertaking that the provisions of 16.2.4 and 16.3.5 will also apply to casual employees working on a full-time and a part-time basis. In relation to clauses 16.2.5 and 16.3.6, Mr Mossman gave an undertaking that a minimum break of 8 hours would apply from the finish of a shift on the one day to the commencement of a shift on the following day. I accept that undertaking. However, I am also concerned that casual employees should have a break between work on successive days or shifts, particularly in the context of an agreement where the maximum hours which may be worked in a day or an 8 week cycle are the same for casual employees as they are for full-time employees. Accordingly, I require an undertaking from the company that casual employees will also be entitled to an 8 hour break between work on successive days or shifts, where they work a shift of 8 hours or more, or where they are rostered to work the same hours as full-time and part-time employees. Schedule 1 Wages It is submitted for the employer that but for the operation of the Agreement, the terms and conditions of employees would be regulated by the following Awards: • Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (Cth); • Clerical Employees Award – State. The wage rates in the Agreement are loaded to encompass the following hours of work which but for the Agreement would attract penalty payments, throughout the course of a year: • 150 Saturday hours; • 100 Sunday hours; • 200 Late work hours. The penalty hours encompassed in the Agreement wage rates are set out in Schedule 1 to the Agreement. It was submitted by Mr Mossman that the company would be “surprised” if any employee worked hours which would but for the Agreement attract penalty payments, in excess of those set out in Schedule 1. An undertaking was given by the employer that any current or former employee who worked penalty hours in excess of those set out in Schedule 1 in any year, could seek to have their rate reviewed to compensate for such excess work. It was submitted by Mr Mossman that the starting rates under the Agreement were intended to be 8% in excess of the current Award rate for weekly employees and 30% in excess of the current Award rate for casual employees. In effect, the loading for casual employees under the Agreement is 30% as against the 25% casual loading under the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 and the 23% casual loading under the Clerical Employees Award – State. However, the rates upon which the employer had calculated comparative tables for the purposes of demonstrating that the Agreement passed the “no disadvantage test” were based on the Award rates as at 22 May 2002. The rates in the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 were increased as a result of the decision of a Full Bench of the Australian Industrial Relations Commission in Safety Net Review Wages May 2002 (PR002002) effective from 9 May 2002. The rates in the Clerical Employees Award – State were also increased as a result of the decision of a Full Bench of this Commission in The Declaration of General Ruling, 170 QGIG 442. The table appended to the affidavit of Mr Burton as Appendix C, showing a comparison between the rates in the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 and the Agreement reflects the correct Award rates. However, the table showing a comparison between the rates in the Clerical Employees Award – State and the Agreement does not. Mr Mossman for the employer gave an undertaking that the rates in the Agreement at the time of certification were intended to be calculated on the basis of weekly award rates applicable at that time, with an additional loading of 8% for weekly employees and 30% for casual employees, and that rates in the Agreement would be adjusted at the outset to reflect this undertaking. Further, rates in the Agreement would be subject to increases of 3% on the anniversary date of the Agreement, in the second and third year of its operation. Other Requirements The Agreement is not a project agreement; is not made with an organisation of employees and is not an agreement for a new business. Accordingly, s. 156(l)(i); s. 156(1)(j); s. 156(1)(k) and s. 156(1)(m) do not apply. The affidavit filed with the application made by Mr Steve Burton states that the requirements of s. 156(1)(l) had been met. Further, there is nothing on the face of the Agreement to indicate that it does not provide equal remuneration for men and women. I am satisfied that the Agreement meets the requirements of s. 156(l)(i). After considering all of the evidence and material before me, I do not consider that a provision of the Agreement is inconsistent with the any of the provisions of the Act set out in s. 157(1) – Equal Remuneration for Work of Equal or comparable Value; Dismissals or Freedom of Association. There is no basis upon which I could find that the employer has contravened the sections of the Act set out in s. 157(2)(a) in connection with negotiations for -- 7 of 11 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 97 the Agreement – Amendment if Discrimination between Unionists and Non-unionists and Freedom of Association. I am also satisfied that the employer has not caused an entity to engage in conduct of the kind specified in s. 157(2)(b) or (c). I am satisfied that none of the provisions of the Agreement are discriminatory, as required by s. 157(4) and that the Agreement does not seek to prohibit or restrict an application being made under Chapter 2 Part 5 of the Act – Equal Remuneration for Work of Equal or comparable Value. There is no material or evidence upon which I could be satisfied that the Agreement applies in an unfair manner as set out in s. 157(6). Accordingly, the Agreement must be certified. “Anonymous” Communications Communications from persons desiring that their identity not be revealed to the employer, have been a feature of this case. Unfortunately such communications have continued after the hearing on 11 November 2002. The Commission has limited ability to refuse to approve agreements and provided that the Commission is satisfied that the specified requirements of the Act have been met, the Commission must approve agreements. The Commission may accept an affidavit from one of the parties to an agreement as the basis for being so satisfied, without hearing oral evidence from the deponent, and this is a common feature of applications for certification. Indeed the contents required in such an affidavit are stipulated in the Regulations. It is also common for the Commission to hear some evidence from employees in cases where a proposed Agreement is made directly with employees without the involvement of a union. In this case, the contents of the letter received by the Industrial Registrar dated 8 October 2002 was given detailed consideration by the Commission, notwithstanding that it was not in the form of an affidavit or a statutory declaration, and that its author stressed the desire to remain anonymous. The details of the allegations made in the letter were advised to the employer at a preliminary hearing held prior to the substantive hearing of the application for certification of the Agreement on 11 November 2002. The employer was given an opportunity to call evidence to refute those allegations. The case was heard in Bundaberg to enable as many employees as possible to give evidence. The Commission took the somewhat unusual step of exercising powers under s. 329 of the Act to inform itself about the matters raised in the letter, by requesting a group of employees, selected at random, to give sworn evidence. The Commission also heard sworn evidence from a significant number of witnesses called by the employer. The Commission was able to directly observe the demeanour of the witnesses and the manner in which they gave their evidence. The allegations made in the letter of 8 October were put to each witness, and each witness was advised of their rights not to be damaged or discriminated against in their employment as a result of giving evidence. After concluding the hearing in Bundaberg on 11 November 2002, I received a telephone call from a person making further allegations in relation to the process followed by the employer in the making and approval of the Agreement. This person was prepared to be identified for the purposes of leaving messages and communicating with the Commission, but was not prepared to be identified to the employer. The person also purported to be acting on behalf of a number of employees proposed to be covered by the Agreement. The same person also left a detailed message on my answering machine on 25 November 2002, making further allegations, about the conduct of the employer both before and after the certification of the Agreement and indicating a preparedness on the part of an unspecified number of employees to be identified and to give evidence about the allegations they were making. It was also alleged in the message that a number of persons who gave evidence to the Commission at the hearing in Bundaberg on 11 November 2002, had lied under oath. My associate told the person concerned that if that person or any other person wished to pursue the allegations, a statutory declaration detailing the allegations could be forwarded to the Industrial Registrar. At this point in time, no person has forwarded a statutory declaration, to the Industrial Registrar in relation to these matters. The person who left that message has now been dismissed by the employer, according to that person’s advice to my associate by way of a further telephone call. My associate has also received a telephone call from a person claiming to be the husband of a disaffected employee. Further, a number of employees have filed a notice of industrial dispute, which has been listed for conference before another member of the Commission. Notwithstanding my concerns about the manner of these communications, I have given consideration to the matters raised in them. I have done this to ensure that justice is done with respect to what is in all probability a group of unrepresented persons with little if any bargaining power because of the casual nature of their employment. In considering what weight to put on the matters raised in these communications I have considered what I believe to be the overarching requirement for the Commission to act in a manner which is fair and just. I have also given consideration to the rights of the employer and employees who have satisfied the Commission that the requirements of the Act necessary for certification have been met, to have the Agreement they have reached certified and to have that Agreement remain in force for its agreed term. Because of the unusual issues which have arisen in this case, I set out below my views in relation to the weight if any, which should be given to communications from persons who wish to make serious allegations about the propriety of parties to proceedings, while having their identities concealed from those against whom the allegations are made. The Commission is not bound by technicalities, legal forms or rules of evidence, and may inform itself on a matter it considers appropriate in the exercise of its jurisdiction: s. 320(2). The Commission is also to be governed in its decisions by equity, good conscience and the substantial merits of the case, having regard to the interests of the persons immediately concerned and the community as a whole: s. 320(3). However the fact that the Commission is not bound by the rules of evidence, does not mean that those rules will not be applied. Other “rules” such as those relating to procedural fairness, also apply by virtue of the fact that the Commission is required to act in a judicial manner. Further, the principles of natural justice are applicable to hearings before the Commission: R v The Commonwealth Conciliation and Arbitration Commission and others; Ex parte Angliss Group (1969) 122 CLR 546; Re: Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513. The term “natural justice” in the context of administrative decision making can be equated to an obligation to act fairly or to accord procedural fairness. The requirements of natural justice or procedural fairness are not fixed and in any given situation, depend on the circumstances: Mobil Oil Australia Pty Ltd v Federal Commissioner for Taxation (1963) 113 CLR 475 at 504 per Kitto J. The High Court in Re: Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 519, pointed out that one aspect of the duty to act judicially is the duty to hear a party and allow that party a reasonable opportunity to present a case. Further, the duty to act judicially includes a duty to consider the cases put by parties. It follows that the provision to parties of an opportunity to present their cases, requires that they be given notice of the time and place of a hearing, and the issues to be considered. An application should provide information about the case to be met by the respondent: R v North; Ex parte Oakey [1927] 1 KB 491 at 502 per Scrutton LJ. Procedural fairness also requires that the Commission hears both sides and provides parties with an opportunity to challenge or contradict material advanced against them. The Commission would not be at liberty to receive evidence from one party in the absence of another without at least notifying the absent party and providing them with an opportunity to answer the evidence received: Wajnberg v Raynor & Metropolitan Board of Works [1971] VR 665. It does not necessarily follow however that the only method of challenge or contradiction which would meet the requirements of procedural fairness is the capacity to cross-examine the author of such material. What may be regarded as an adequate opportunity in a particular case is dependent on a -- 8 of 11 -- 98 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 range of factors including the character of the evidence or material involved, the manner in which it has been adduced before the tribunal and the significance of the material in the determination of the matter before the tribunal. It may also be appropriate to distinguish between material advanced to establish relevant facts and that which is presented in support of an argument directed to the exercise of discretion or judgment: Mayor, Councillors and Citizens of the City of Brighton v Selpam Pty Ltd (1987) VR 54 at 59 per Vincent J. In that case, Vincent J was considering an appeal against a decision of a Planning Appeals Board, on grounds including a refusal by the Board to allow a party to cross-examine the author of a letter submitted by another party. The legislation under which the Board operated, included a requirement that it was to act according to equity, good conscience and the substantial merits of the case, and stated that the Board was bound by the rules of natural justice. In determining that natural justice required that the party be allowed to cross-examine the author of the letter, Vincent J held that the applicants were at a significant disadvantage in not being able to explore the motivation of the person concerned. Vincent J distinguished cases where facts which were within the knowledge of the person who was sought to be cross-examined, were facts readily ascertainable through other means, or cases where there was merely a difference of opinion between two expert witnesses in the context of a dispute before an expert tribunal ((1987) VR 54 at 61). It was also stated by Vincent J that nature of the powers and responsibilities of the tribunal in a situation where there was only a limited form of redress available to a person affected by its decisions, would seem to suggest that any such decisions are fairly and properly made, and that an appropriate measure of procedural fairness be accorded to the parties concerned. In this case, the allegations made prior to the certification of the Agreement, if substantiated, may have prevented the Commission from certifying the Agreement. Clearly the material went beyond merely establishing facts, and dealt with matters relevant to the Commission being satisfied that the requirements of the Act for certification had been met. A refusal by the Commission to certify the Agreement would have had the consequence of denying the employer the opportunity to manage its business in a manner which would provide for improvements in flexibility and efficiency. For employees, a refusal to certify the Agreement would have resulted in an inability to access the benefits which the Agreement confers. This is not a case where employees had no redress if they did not approve the terms of the Agreement. The ALHMWU had attended at the employer’s premises and had corresponded with the employer seeking changes to the Agreement. The employer had entered into discussions and had agreed to a number of changes to the Agreement. Those discussions occurred prior to the ballot of employees. Employees had the right to request the ALHMWU to represent them in negotiations for the Agreement and at the hearing into certification. There was no appearance from the ALHMWU at the hearing on 11 November 2002, and I can only assume that employees did not avail themselves of the opportunity to be represented by what is a major and very active union in the hospitality industry. Further, the Act provides protection for employees who give evidence to the Commission and who seek to be represented by unions in the negotiation of a certified agreement, and prohibits those employees from being discriminated against or injured in their employment, because they have exercised their rights in this regard. I am of the view that it would be unfair for the Commission to form a view that an employer had breached the provisions of the Act or the Agreement, on the basis of allegations made by persons desiring to remain anonymous, and in circumstances where the employer did not have the opportunity to contradict or challenge the allegations. In this case, the veracity of the allegations and the motivations of those who made them would have in all probability been relevant. Where persons who make serious allegations fail to make themselves available for cross-examination, those allegations cannot outweigh sworn evidence which is contradictory to the allegations. In my view all reasonable steps have been taken to test the allegations as they existed on 11 November 2002 when the application for certification of the Agreement was heard. On balance, after considering all of the evidence and material available at the time of the hearing, I was not able to be satisfied that any of the allegations made in the letter of 8 October were made out, and accordingly, consistent with the obligations laid on the Commission with respect to the certification of agreements, I was required to certify the agreement. The Agreement was certified on 11 November 2002 and the Commission is now functus officio in respect of that decision. In relation to communications made with the Commission after the certification of the Agreement, I am of the view that there are provisions in the Act which could be used to address the types of concerns raised in the communications to the Commission after the certification of the Agreement. Employees who wish to access these provisions can do so directly by making an application on their own behalf, or through a Union. I am also unable to be satisfied that I should act on the basis of a telephone call after the certification of the Agreement, to revisit the matter of certification. Absent a specific application by or on behalf of an employee bound by the Agreement for the certification proceedings to be re-opened, the Commission would be required to act on its own motion in this regard. While the power to do so may well exist, I am of the view that such a drastic and unusual step should not be taken on the basis of allegations from a person who is not prepared to be identified and to have the veracity of those allegations properly tested. Conclusion The decision to certify the agreement was issued on an ex tempore basis on 11 November 2002. I have taken the additional step of releasing these detailed written reasons for that decision, and of including a Schedule to the decision setting out all of the undertakings given by the employer, and the rights of employees with respect to the ongoing implementation of the Agreement. I have also included in the Schedule information for employees as to how they can obtain a copy of this decision and contact details of sources of advice for employees in relation to their rights and obligations under the agreement. By virtue of s. 158(2) the Commission may order compliance with an undertaking by a party in breach, or terminate an agreement, in circumstances where an undertaking is breached. I have included the undertakings in Schedule A to ensure that they are in a form which can be easily disseminated to employees. Schedule A also includes information for employees about the status of the undertakings and other rights to seek assistance in the ongoing implementation of the Agreement. The Agreement, as impacted by the undertakings detailed in this decision and in Schedule 1, is certified in terms of the application before me. The agreement will operate from 11 November 2002, and remain in force for 3 years from that date. The employer is to provide every employee covered by the Agreement with a copy of Schedule 1 to this decision, and keep that Schedule in a place with the Agreement to enable it to be inspected by employees. I order accordingly. I.C. ASBURY, Commissioner. Hearing Details 2002 24 October 11 November Appearances: Mr C. Mossman of McCullough Robertson and Hancock for the East End Hotel. Released: 19 December 2002 -- 9 of 11 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 99 SCHEDULE 1 UNDERTAKINGS IN RELATION TO THE EAST END HOTEL CERTIFIED AGREEMENT The East End Hotel Certified Agreement was approved by the Commission on 11 November 2002. The reasons for the Commission deciding to approve the Agreement are set out in a decision of 19 December 2002. The undertakings in this Schedule are also detailed in the Commission’s decision of 19 December 2002. Any employee who wants to obtain a full copy of the Commission’s decision of 19 December 2002 may do so by contacting the Registrar of the Queensland Industrial Relations Commission on telephone (07) 3227 8060. In the event that the undertakings set out below are breached, an employee covered by this Agreement is entitled to seek an order requiring compliance by the employer with an undertaking or to make application for the Agreement to be terminated. Employees may seek advice and assistance from an Industrial Inspector of the Department of Industrial Relations in Bundaberg on telephone (07) 4151 9714. Union members may also seek assistance from an official or officer of the Australian Liquor, Hospitality and Miscellaneous Workers’ Union on telephone (07) 4151 1912. Clause 8.3(a) – Termination of Employment The provisions of clause 8.3(a) will not be utilised by the employer to terminate an employee’s employment for absenteeism, where the employee offers a reasonable excuse for the absenteeism. An employee who is dismissed by the employer in reliance on clause 8.3(a) has the right to argue that the dismissal was unfair in particular circumstances under the provisions of the Industrial Relations Act 1999, regardless of whether an excuse for the absence had been provided by the employee and regardless of the employer’s non-acceptance of that excuse. Clause 8.3(b) – Termination by the Employee The obligation in clause 8.3(b) of the Agreement for an employee who resigns employment to give one week’s notice, does not apply to casual employees. Similarly, the right for the employer to withhold one week’s pay in lieu of notice not given by employees who resign their employment does not apply with respect to casual employees. Clause 8.3(c) – Termination of Employment Termination of an employee’s employment pursuant to clause 8.3(c) of the Agreement is governed by the provisions of the Industrial Relations Act 1999 in relation to unfair dismissal, and an employee dismissed under that clause is entitled to argue that the dismissal was unfair. Clause 8.5 – Introduction of Changes, Termination of Employment in Cases of Redundancy The extended periods of notice set out in the Commission’s Statement of Policy on Termination Change and Redundancy do not apply to an employee who resigns his or her employment. It is not intended that this clause operate in any other way to impact on the operation of the Commission’s Statement of Policy on Termination Change and Redundancy. Reference to the Termination Change and Redundancy (TCR) decision means a reference to the TCR decision as amended by the Queensland Industrial Relations Commission from time to time. Clause 8.11 – Annual Leave The entitlement to 20 days paid leave per year is equivalent to the Award’s 4 weeks. There is no reduction in any employee’s annual leave. Clause 8.15(3) Payment will be made by the employer for an employee’s absent day if they have a reasonable excuse for not being present at work on either side of a public holiday. Clause 9 – Grievance Procedures An employee using the Grievance Procedure in clause 9 of the Agreement is entitled to be represented by an officer or official of a trade union, or any other person chosen by the employee. Clause 14 – Classifications The introduction of the classification system under the Agreement will not lead to a declassification of any employee pursuant to the Award which would otherwise cover the employee. Clause 16.2 Hours of work – full-time employees Clause 16.3 Hours of work – part-time employees Clause 16.4 Hours of work – casual employees The undertakings with respect to hours of work apply to all employees including full-time, part-time and casual employees. No employee will be compelled to work more than 304 hours in any 8 week work cycle. No employee who does not wish to work hours in excess of 304 hours in any 8 week work cycle will be discriminated against or adversely affected in their employment because of refusing to work in excess of 304 hours in any 8 week work cycle. The maximum of 14 hours work in one day or shift will only apply during the Christmas and Easter holiday periods, and even at those times, employees will only be expected to work a maximum of 14 hours in one day or shift in a “super-emergency” situation, such as the unexpected arrival at the hotel of a football team. -- 10 of 11 -- 100 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 Employees would not work the 14 hour maximum in one day or shift during any other times of the year (refer clauses 16.3.1 and 16.3.2). The 14 hour maximum applies in cases where all of the hours worked on any day or shift are part of the 304 ordinary hours, or where some of the hours are in excess of the 304 ordinary hours, so that no hours in excess of 14 in any day or shift would be worked. Any extension to rostered hours under clause 16.7.4 will also be consistent with the undertaking as to the application of the 14 hour maximum in any day applying only at Christmas and Easter and in “super-emergency” situations. Employees will work a maximum of 10 consecutive days. Full-time and part-time employees will have a minimum break of 8 hours between the finish of a shift on the one day and the commencement of a shift on the following day. Casual employees working the same rostered hours as other full-time and part-time employees or shifts of 8 hours or more, will also be entitled to an 8 hour break between work on successive days or shifts, where they work a shift of 8 hours or more. Schedule 1 Wages But for the operation of the Agreement, the terms and conditions of employees would be regulated by the following awards: • Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (Cth) • Clerical Employees Award – State The wage rates in the Agreement are loaded to encompass the following hours of work which but for the Agreement would attract penalty payments, throughout the course of a year: • 150 Saturday hours; • 100 Sunday hours; • 200 Late work hours. Any current or former full-time, part-time or casual employee, who works penalty hours in excess of those set out in Schedule 1 (and in this undertaking) in any year, may seek to have their rate of pay reviewed to compensate for such excess work. Further, rates in the Agreement are to be increased by 3% on the anniversary date of the Agreement, in the second and third year of its operation. -- 11 of 11 --