Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employyes, Queensland v Inghams Enterprises Pty Ltd; Hawkins v Inghams Enterprises Pty Ltd [2001] QIRC 173 (2001) 168 QGIG 198

198 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 November, 200 I ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act J 999 - s. 230(3 )- arbitration of industrial dispute s. 74 - application for reinstatement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Inghams Enterprises Pty Ltd (No. D 211 of2001) Kevin Hawkins AND lnghams Enterprises Pty Ltd (No. B1435 of2001) COMMISSIONER BLOOMFIELD 19 October 2001 Reinstatement - Dismissal - Termination of Employment - Arbitration of Industrial Dispute - Maintenance Fitter - Redundancy - Closure of processing plant - Claim that company failed to consult with union - Claim that Certified Agreement breached - Arbitrated Matter - No breach of Certified Agreement - No failure to consult with union - Use of contractors at new plant - No position for Applicant at new plant - Reinstatement Application Dismissed - Dispute determined by finding there was nothing harsh, unjust or unreasonable about Respondent's decision to move to contractors and to make Applicant redundant. DECISION Background The Commission has before it an application from the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) which seeks the reinstatement of Mr Kevin Hawkins to a position with lnghams Enterprises Pty Ltd (lnghams). Dispute D211 of2001, covering substantially the same issue, was also referred to the Commission as presently constituted for arbitration. This decision relates to both matters. Mr Hawkins commenced work at Inghams' processing plant at 162 Murarrie Road, Murarrie in mid-1994 as an employee of a contractor to that organisation. In November 1994 he obtained permanent employment with Inghams in the position of maintenance fitter. Mr Hawkins was one of a number of maintenance fitters who were informed on 27 June 2001 that their services would no longer be required after August 2001. The decision was taken on two grounds. The first was that the company's operations at 162 Murarrie Road were shortly to cease because of the impending closure ,of that site. The second reason was that the company had decided to utilise contractors for the vast bulk of its maintenance needs when it commenced operations at a new facility, adjacentto the old facility, at 158 Murarrie Road. Mr Hawkins' termination coincided with the last kill at the 162 Murarrie Road operation on 24 August 2001. Arguments in support of Mr Hawkins' reinstatement Mr E. Moorhead, of the applicant union, argued that Mr Hawkins' termination was unfair, within the meaning of the Industrial Relations A ct I 999, and that he should be reinstated by Inghams. Mr Moorhead raised a number of arguments in support of that proposition, as follows:- • Clause 6.5(1) ,:jf the /nghams Ente1prises (Murarrie Maintenance) Certified Agreement 1999 contained a provision to the effect that it was not the company's intention to replace its current maintenance employees with contractors. Mr Moorhead said the company had breached that provision by engaging contractors to perform the maintenance work at the new facility at 158 Murarrie Road. • The company had not consulted with the union, and its employees, as required bys. 89 of the Industrial Relations Act 1999. Mr Moorhead said that while the company had discussed its intentions with the union, such discussion did not constitute °'consultation". The company had always said that its decision to use contractors was non-negotiable. The company had also failed to consider alternatives to Mr Hawkins' termination. • Mr Hawkins had been dismissed because of his union activism. Findings (1) Alleged breach of clause 6 5(1) of the Certified Agreement -- 1 of 4 -- 2 November, 200 1 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 99 There is no breach of clause 6.5( 1 ) of the Certified Agreement on the facts. The subclause provides:- "The Company rese11'es the righl lo utilise contractors to perform maintenance and project work at !he Plant. However it is acknowledged that ii is not the intention ofthe Company to replace current maintenance employees with contractors.". Mr Cramond's undisputed evidence was that he did not, and never intended to, replace maintenance employees at Inghams' operations at 1 62 Murarrie Road with contractors. If the plant had continued to operate lnghams would have continued to employ maintenance employees. The company only decided to util ise contractors to carry out its maintenance operations at the nm facility at 1 58 Murarrie Road because the company's senior management decided several years previously that maintenance was not a core activity and the company should move to contract labour for maintenance when local factors made such move possible. Mr Cramond - the Plant Manager - said that the move to the new facility allowed him to implement that decision. He was not precluded from making the decision because the lnghams Enterprises (Murarrie Maintenance) Cerlified Agreement 1999 did not, and does not, apply to the company's · operations at the new location at 158 Murarrie Road. Clause 2 - "Application" of the Agreement provides that "(!)his Agreement shall apply to maintenance employees of lnghams Enterprises Pty Ltd who are employed under the terms of the Engineering Award - State at the Murarrie Processing Plant". The evidence is that at the time the Agreement was concluded in October 1 999 there was only one Murarrie processing plant located at 1 62 Murarrie Road. The decision to build another plant (at 1 5 8 Murarrie Road) was not taken until at least a month later in either November or December 1 999. Construction did not start until around April/May 2000 and the construction was not completed until June/July 200 1 . In any event, if ! be wrong in □etermining that the Certified Agreement did not apply at 1 5 8 Murarrie Road, the terms of the Agreement do not prevent the company from moving to contractors. The clause does not bind the company to a course of action. It merely records its intentions. (2) Alleged failure to consult The evidence does not support Mr Moorhead's contention that lnghams railed to consult with the union about the impending terminations - most especially that of Mr Hawkins. It is clear from the evidence that Mr Shooter, AMEPKU's Organiser, asked Mr Cramond on 9 April 200 1 about the company's intentions regarding manning for the new facility. Mr Cramond responded that he had three options available, but that he had not made up his mind which option he would choose. The three options were: to use company employees, to use a contractor or to use a combination of employees and a contractor. The evidence is that Mr Cramond made the decision to go with the third of those options some time early in June 200 I . Arrangements were made to convene a meeting with the union on 14 June 200 I so that that decision could be communicated. At the meeting Mr Cramond informed Mr Shooter and Mr Hawkins, as the site Shop Steward for 162 Murarrie Road, that there would be extensive use of contractors for maintenance in the new plant with only two of the current maintenance employees (both leading hands) moving to the new site. All other employees would be made redundant. There is some disagreement about how and when the employees were to be informed of the company's decision. Mr Shooter and Mr Hawkins argued that Mr Cramond told them that the employees whose services were being retained were to be told of the company's decision that day. Other employees were to be told of their impending redundancy on the following day. Mr Cramond' s evidence was unclear. His written statement did not contradict the evidence of the union but he seemed to indicate in his verbal evidence that the staffwhose services were being retained were to be advised first and the other staffwere to be advised some time l ater. However, it is also clear that Mr Hawkins knew within 24 hours of the meeting with Mr Cramond that the two available positions had been offered to other employees. By direct implication he knew that his services would not be required and that he would shortly be informed of his redundancy. As it turned out, Mr Hawkins was given a letter on 27 June 2001 which confirmed "verbal advice previously given" that the Murarrie processing plant would cease processing on 3 August 200 1 . The letter also informed him the company was unable to provide him with alternative employment and his employment would cease when the plant closed. (The cessation date was later changed to 24 August 200 1 because of delays in the construction of the new facility.) On 1 3 July 200 1 the union notified a dispute to the Commission relating to the company 's decision to make Mr Hawkins redundant effective from 3 August 200 I . It did not challenge the company's decision to make other maintenance employees redundant. A conference was convened before a member of the Commission on 19 July 200 1 . As a result of recommendations made by the Commissioner, the company subsequently reviewed the decisions that it had taken. After that review it wrote to the union on 23 July 200 I confirn1ing that the original decision would stand arid that only two leading hands would be retained to supervise the contractors who would carry out all the maintenance work at the new facility. A further conference was convened, at the request of the union, before the same Commissioner on 10 August 200 1 . Arising from that conference the parties met at the direction of the Commissioner on 23 August. At that meeting the union raised several issues concerning the entitlements of maintenance employees who were to be made redundant. The first was details of the actual redundancy payments and the second was the bringing forward of the payment date. TI10se matters were resolved. After those matters were dealt with the union turned to the issue of Mr Hawkins' reinstatement. The claim was (again) rejected by the company on the basis that his services were not needed. The union was (again) informed that the company had determined not to engage its ov.-n maintenance staff but, instead, to use contract staff supervised by its own l eading hands. Mr Hawkins was not a leading hand and there was no position for him. The evidence showed that the company ' s decision to move to contractors to perform the bulk of its maintenance needs was first communi cated to the union on 14 June 200 1 . The evidence also showed that the company met with the union and discussed its intentions in two compulsory conferences chaired by a Commissioner. The evidence also showed that the company �eviewed its decision after the first conference and decided to stick with the -- 2 of 4 -- -- 3 of 4 -- 2 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 201 My review of all of the evidence leads me to conclude that the company's decision to move to contractors was both bona fide and reasonably open to it based upon its operational requirements. Accordingly, I have determined that there was nothing harsh, unjust or unreasonable about the company's decision to move to contractors and, as a result, to make Mr Hawkins (and other employees) redundant. Application number B1435 of200I is dismissed. Dispute number D21 l of2001 is determined by the above finding. The Commission determines and orders accordingly. AL. BLOOMFIELD, Commissioner. Appearances:- Mr E. Moorhead and Mr B. Burton for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, with them Mr P. Shooter and Mr K. Hawkins. Mr J. Jones, of Jones Ross, with Mr J. Cramond for lnghams Enterprises Pty Ltd. Released: 19 October 2001 -- 4 of 4 --