Australasian Meat Industry Union of Employees (Queensland Branch) v Inghams Enterprises Pty Ltd [2001] QIRC 190 (2001) 168 QGIG 267

16 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 199 – s. 230(3)(b) – arbitration Australasian Meat Industry Union of Employees (Queensland Branch) AND Inghams Enterprises Pty Ltd (B1342 of 2001) POULTRY PROCESSING AWARD – STATE COMMISSIONER BROWN 6 November 2001 DECISION The Australasian Meat Industry Union of Employees (Queensland Branch) (the union) lodged a dispute notification (D194 of 2001) pursuant to s. 229(2) of the Industrial Relations Act 199 (the Act) which gave rise to a conference chaired by the Commission. The concerns of the union were that Inghams Enterprises Pty Ltd (the respondent) refused to pay medium to long term regularly engaged casual employees compensation by way of severance payments upon the closure of their Park Ridge Plant. The differences between the union and the respondent were unable to be resolved in conference and the parties agreed that the Commission should arbitrate the matter pursuant to s. 230(3)(b) of the Act – “(b) if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute – arbitration.” The union was required to lodge and hence have carriage of this application to be determined by the Commission. The relief sought by the union was arbitration of dispute No. D194 of 2001 pursuant to s. 230(4)(d) as the Commission is empowered to “make another order or exercise another power that the Commission considers appropriate for the prevention or prompt settlement of the dispute” and thereby issue orders pursuant to s. 284(1) and or s. 87 of the Act. In essence the union’s argument centred on a view that whilst the employees in question were called casual and paid as such, they were, in fact, because of their working arrangements and the Award definition, not casuals. The union argued that the casual exclusion contained in the Termination, Change and Redundancy (TCR) provisions as outlined in the Commission’s Statement of Policy had no effect on these employees nor were they excluded for the benefits of clause 14 (Redundancy) of the Inghams Enterprises (Park Ridge Processing) – Certified Agreement 2000 (CA 401 of 2000) (the Certified Agreement 2000) because, in truth, they were not casuals. The respondent’s argument was that the employees concerned were genuine casuals and therefore excluded from TCR severance benefits. The parties agreed that the primary issue to be determined was that of employment status. Mr R. Richardson, Branch Secretary of the union and a full-time union official since 1988, in evidence stated (inter alia):– • in the poultry industry, industrial agreements existed on the ratio of casuals to permanent employees; • employees engaged on a permanent basis who are made redundant would receive benefits in accord with the TCR Policy Statement of the Commission as well as additional entitlements set out in the Certified Agreement; • approximately 4 years ago the respondent began recruiting new employees from a labour hire agency. Such employees were engaged on a “casual” basis; • such casuals were paid in accordance with the Award and Certified Agreements covering the Park Ridge Plant; • all of these employees were required to comply with the following employment conditions:– • present for work daily unless informed the day before that they were not required; • work to the provisions of a published roster; • notify the respondent if they were sick or otherwise unable to attend for work on any day if rostered to work; • be subjected to the respondent’s absenteeism disciplinary procedures if they failed to attend for work on a regular basis; • work regular, stipulated hours every day; • work 38 hours per week (and at times, overtime in excess of 38 hours) on a regular basis; and • notify the respondent when they wished to take unpaid leave and seek approval for same. • seniority systems are common for casuals in the poultry industry; and • length of service for the employees in question ranged from 1 to 4 years. Mr Richardson believed the employees were not casual employees as defined by the Award and that they worked under an enduring full-time contract of employment with the respondent. Mr J. Crammond, Plant Manager of the respondent, gave the following evidence (inter alia) • he was employed by the respondent since 1961; • up until 9 August 2001, the respondent operated 2 primary poultry processing plants at 162 Murrarie Road, Murrarie and Beaudesert Road, Park Ridge; • the Park Ridge plant ceased operations on 9 August 2001; • he was involved in discussions with the union regarding the closure of the Park Ridge plant; • he was involved in the negotiations for the Certified Agreement 2000; • redundancy entitlements were the subject of considerable debate leading up to agreement being reached. Casuals were a feature of those discussions; • the respondent maintained the position that casuals would not be entitled to redundancy benefits; • casuals can be employed on a regular and consistent basis for a significant number of hours per week for a period of at least 12 months and have a reasonable expectation of continued employment as contemplated by both the Poultry Slaughtering Award – State – Seniority – Ingham Enterprises Pty Ltd, Park Ridge – Industrial Agreement (the Agreement) and the Certified Agreement 2000 mentioned earlier; and -- 1 of 3 -- 268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 November, 2001 • from January 2000 all new employees were instructed that the Park Ridge plant would be closing and they would remain as casuals. The union maintained that the contract of employment conditions of the employees in question were inconsistent with the Award definition contained in clause 4(j) which states:– “Casual Employee’ shall mean an employee who is employed for less than one week.”. and that pursuant to s. 135 of the Act – “Inconsistency between awards and contracts 135.(1) To the extent of any inconsistency, an award prevails over a contract of service that is – (a) in force when the award becomes enforceable; or (b) made while the award continues in force. (2) The contract is to be interpreted, and takes effect, as if it were amended to the extent necessary to make the area of inconsistency conform to the award. (3) However, no inconsistency arises only because the contract provides for employment conditions more favourable to the employee that the award.”. The union contended that the Award prevails over any contract of employment except where the contract is more favourable. As a result the union contended such employees were not casuals as defined in clause 4(j) of the Award and pursuant to s. 87 of the Act the respondent should be directed to pay severance allowance. The respondent relied on the evidence of both Richardson and Crammond that long-term casual employment was a feature in the poultry industry. Also, that the Certified Agreement 2000 gave casual employees greater benefits than Award entitlements and allowed casuals to work the same ordinary hours per week as permanent employees and so access RDO’s. The respondent also highlighted the redundancy provisions of the Certified Agreement 2000 that do not provide casual employees at the Park Ridge plant any benefits upon its closure. The respondent maintained the employees in question were engaged as casuals, paid as casuals, recognised by the union as casuals and regardless of the Award definition have other specific agreements that prevail over that definition in respect to such employees at the Park Ridge plant. Conclusions The parties in clause 9 (Rostered Days Off) of the Certified Agreement 2000 have agreed that casuals may work the same ordinary daily hours as permanent employees and for a period of up to 19 working days per month. The Act at s. 165 states:– “Certified agreement’s effect on awards, agreements or orders 165.(1) while a certified agreement operates, it prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137. (2) While a project agreement operates, it operates to the exclusion of any other certified agreement or QWA.”. There is an inconsistency between the provisions of the Certified Agreement 2000 outlined above and the restrictions of the Award definition of a “Casual Employee”. It is my view that the Certified Agreement 2000 prevails. The employees are casuals, employed as such and working in accordance with the terms of the Certified Agreement 2000. I am not prepared to grant the application requesting an order pursuant to s. 284(1) to the effect that any employee working 38 hours or more in any week is not a casual employee under the Award. The ratio decidendi for this is that, in addition to the above, the Award is a common rule Award. There are a number of employers bound by the Award and no evidence of working patterns or arguments have been presented for employers or employees other than at Inghams Park Ridge. Any number of legitimate arrangements operating in establishments other than Inghams Park Ridge may be wrongly displaced by such an order. The orders sought in respect of s. 284(1) are refused. Regarding the application for orders pursuant to s. 87, subsection (4) which defines severance allowance as follows:– “severance allowance or other separation benefits’ means severance allowance or other separation benefits under article 12 of the Termination of Employment Convention 1982.”. Article 12 states:– “A worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to:– (a) a severance allowance or other separation benefits, the amount of which shall be based inter alia on length of service and the level of wages, and paid directly by the employer or by a fund constituted by employers’ contributions; or -- 2 of 3 -- 16 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 269 (b) benefits from unemployment insurance or assistance or other forms of social security, such as old age or invalidity benefits, under the normal conditions to which such benefits are subject; or (c) a combination of such allowances and benefits.”. (The underlining is mine). The national law and practice referred to in this matter relates to clause 22A of the Award which in turn refers to the Statement of Policy of Termination of Employment, Introduction of Changes and Redundancy which in provision 11 of CLAUSE C – REDUNDANCY states: “Employees Exempted 11. This clause shall not apply:– (a) . . .; (b) . . .; (c) To casual employees, seasonal employees or employees engaged by the day or hour.”. This exclusion was considered by the Full Bench in the review of casual loading case (No. B1346 of 1999 and others) and taken into account in the decision to increase casual loading. The Full Bench stated:– “We also take into account that since the last time this allowance was set in 1974 there have been a number of advances in employment conditions prescribed by way of Policy determination or Award prescription of this Commission which are not available to casual employees. We cite, for example, the Termination, Change and Redundancy Policy of this Commission which excludes casual employees.”. Having already determined that the employees in question were casual employees, the orders sought under s. 87 are refused. Order accordingly. D. K. BROWN, Commissioner. Appearances:– Mr L. Norris for the Australasian Meat Industry Union of Employees (Queensland Branch). Mr J. Jones of Jones Ross for Inghams Enterprises Pty Ltd. Released: 6 November 2001 ########################################################################################################################## # -- 3 of 3 --