Australian Building Construction Employees and Builders’ Labourers’ Federation Queensland Branch) Union of Employees v Bernerson t/a Active Construction Services [2001] QIRC 121 (2001) 167 QGIG 399

17 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 399 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Australian Building Construction Employees and Builders’ Labourers’ Federation Queensland Branch) Union of Employees AND Gary G. Bernerson t/a Active Construction Services (No. W103 of 2001) COMMISSIONER THOMPSON 2 August 2001 Jurisdictional Issue – Award coverage – National Building and Construction Industry Award 1990 – Workplace Relations Act 1996 (Commonwealth) – Witness evidence – Queensland Industrial Relations Commission not appropriate Tribunal. DECISION This matter, W103 of 2001, was an application under s. 278 of the Industrial Relations Act 1999 (Act) in which the Australian Building Construction Employees and Builders’ Labourers’ Federation Queensland Branch) Union of Employees (BLF) sought an order from the Commission for the payment of wages owing by way of an alleged redundancy entitlement for Mr Daniel McGarry following the cessation of his employment with Active Construction Services (ACS) on 27 October 1998. A preliminary hearing was held in Brisbane on 15 June 2001 where each of the parties placed on record brief submissions in respect of the matter. The Commission, at that hearing, put forward a proposition that a conference be convened between the parties and chaired by another member of the Commission to ascertain if the matter could be settled by the conciliation process and thus avoiding the need to go to hearing. While both parties agreed to participate in the proposed conference, tentative dates, those being Monday 6 and Tuesday 7 August, 2001, were set aside for the hearing, with a Further Directions Order being released on 15 June, 2001, which required the following:– “1. That the Applicant supply to the Respondent, and lodge in the Commission, statement(s) of evidence, from all witnesses to be called and which are to be relied upon in the hearing, by 4.00 p.m. on Monday 2 July, 2001. 2. That the Respondent supply to the Applicant, and lodge in the Commission, statement(s) of evidence, from all witnesses to be called and which are to be relied upon in the hearing, by 4.00 p.m. on Monday 16 July, 2001. 3. That the Applicant supply to the Respondent, and lodge in the Commission, any witness statements in reply by 4.00 p.m. on Wednesday 25 July, 2001.”. On 22 June 2001, a conference was held before Commissioner Brown at which the parties agreed on the length of service of Mr McGarry and of the rate of pay that would be applicable if the application was to be successful. -- 1 of 4 -- 400 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 August, 2001 However, a resolution of the matter was not found, with Commissioner Brown making the following comments prior to adjourning the proceedings:– “In the time since recording ceased the parties have had a discussion both together and separately with the Commission. The discussions have failed to bear fruit. The parties have agreed on the length of service of Mr McGarry and further agreed that his weekly rate of pay was $1,120 and they further agreed that the applicant left his employment of his own volition rather than being made redundant. In my view, the award provision is clear. It is further my opinion that the – that it is not in the public interest to occupy resources of this Commission in the formal hearing of such a matter therefore I recommend that the respondent settle the application prior to the hearing. It is disturbing to note the comments of the respondent in as much as he has stated that he would rather go to gaol than pay the money. I have nothing further.”. On 2 July 2001, in accordance with the Further Directions Orders, the applicant filed three affidavits being from Mr McGarry, Mr Peter Dunnett and Mr Carmello Masi. Each of the affidavits filed met the criteria required by the Commission. On 16 July 2001, the date upon which the respondent was to supply the applicant and lodge in the Commission statement(s) of evidence from all witnesses to be relied upon in the hearing, correspondence was received by the Commission under the signature of Mr Dan Pratt of Australian Industry Group, Industrial Organisation of Employers (Queensland) (AIG) acting on behalf of ACS seeking, as a matter of urgency, a hearing to determine a threshold issue of jurisdiction. The issue to be considered was one of jurisdiction, in that it was to be argued that the respondent, at the time of the cessation of employment, was a member of the Metal Trades Industry Association (MTIA) now known as AIG, and therefore bound by an industrial instrument of the Australian Industrial Relations Commission. That being, the National Building and Construction Industry Award 1990 applies. At the hearing on 23 July 2001, evidence was called from Ms Susan Beaverson, a partner in ACS and the Administration “Head” for the business. In evidence, Ms Beaverson stated that on 14 October 1996, she applied, on behalf of ACS, to be admitted as a member of MTIA, and provided to the Commission, by way of attachment to her affidavit of evidence, a copy of the application and a copy of the MTIA Council Report dated October 1996 showing ACS as a new member of that organisation. Note: Mr Pratt provided to the Commission the original records of the MTIA from which the copy tendered by Ms Beaverson had been obtained. At paragraph 3 of her affidavit of evidence, Ms Beaverson stated:– “When Mr McGarry left ACS in October 1998, ACS was a member of the MTIA.”. Under cross-examination from Mr Rhett Moxham of the BLF, at page 8, line 60 of transcript:– “Moxham: In point 4 you state that you understood that membership bound you to the Federal Award, the National Building Construction Industry Award? Beaverson: Yes Moxham: So you’re aware that once you became a member of the MTIA that you were bound by the Award and you were aware of the contents of that Award? Beaverson: As much as I can be, yeah, it’s a big Award.”. In submissions, Mr Pratt indicated that the relevant time, in respect of this matter, was when Mr McGarry left the employment of ACS, and that was October 1998, at which time the respondent was a member of the MTIA. He then referred to the National Building and Construction Industry Award 1990, Part 7 “PARTIES AND PERSONS BOUND” where it states that the Award shall apply to and be binding upon:– “. . . 7.2(a) The employers and organisations of employers, listed in a schedule to the award in respect of their employees or employees of their members within the classifications contained in 9.1(a) or 9.1(b) of the award whether members of the organisations mentioned in 7.1(a) or not.”. At Schedule A “EMPLOYER RESPONDENTS”, the sixth entry listed to the Award at that time was:– “Metal Trades Industry Association of Australia PO Box 289 NORTH SYDNEY NSW 2060”. It was further submitted that as the respondent was clearly bound by it’s membership of the MTIA to the Award, then the employees of the respondent would fall within the classification structure provided by the terms of the Award which, in itself, was similar in terms of the classification structure the applicant would rely upon under the State Award. At s. 149 of the Workplace Relations Act 1996 which is entitled “Persons bound by awards” at subsection (1):– “Subject to any order of the Commission, an award determining an industrial dispute is binding on: . . . (f) all members of organisations bound by the award.”. This, according to Mr Pratt, demonstrated that ACS, as a member of MTIA at the relevant time, was bound by the National Building and Construction Industry Award 1990. Mr Pratt then referred to clause 38A of the Federal Award that provides for Redundancy, and provided to the Commission the original text of the Award definition for Redundancy at clause 38A:– “(a) Redundancy means a situation where an employee ceases to be employed for any reason and the employee elects to no longer seek work in the industry (as defined in (b)(iii) hereof).”. -- 2 of 4 -- 17 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 401 According to Mr Pratt, the provision had since changed to mirror what effectively was the definition in the State Award, and now reads:– “(a) ‘Redundancy’ means a situation where an employee ceases to be employed by an employer, respondent to this award, other than for reasons of misconduct or refusal of duty. ‘Redundant’ has a corresponding meaning.”. Mr Pratt stated that he had brought the definition of Redundancy to the attention of the Commission simply to provide details that the Federal Award provided ample means for Redundancy as was the case with the State Award. He then referred to s. 152 of the Workplace Relations Act 1996:– “152 Awards to prevail over State laws and State awards (1) Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.”. At page 12, line 40 of transcript, Mr Pratt, in finalising his argument:– “Section 152 of the Workplace Relations Act 1996 Commonwealth, states clearly that it matters not whether the terms of the State and Federal Awards differ from each other, that the Federal Award deals with redundancy, means that pursuant to section 152 of the Workplace Relations Act 1996 Commonwealth, the State Award, the Building Construction Industry Award – State is invalid in terms of matters dealt with by the 1990 Federal Award, and specifically for the purpose of this application, the matter of redundancy. It’s our submission that the Commission cannot hear an application under an Award that is invalid, by virtue of the power of section 152 of the Workplace Relations Act.”. Supportive of the respondent’s position, authorities were tendered relating to the following matters: Metal Trades Industry Association v Australian Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632 before the High Court of Australia, and Sutton v Sharp (No 3) [2000] IRCA 1 (10 March 2000). Mr Moxham, on behalf of the applicant, expressed his disappointment with the manner in which the AIG had handled this matter, and in particular, their failure at a preliminary hearing and conference that followed that hearing to raise the issue of jurisdiction. In fact he alleged that AIG had sought to gain an advantage by waiting until the applicant had filed the witness statements to be relied upon before raising the issue of jurisdiction, only one hour before they were due to lodge witness statements in compliance with the Further Directions Order. Mr Moxham further submitted that the redundancy clause in the Federal Award is the same as contained in the State Award, and that the outcome of this matter, in his view, would be the same whether heard in the Queensland Industrial Relation Commission or the Magistrate’s Court. He indicated that once this matter went to the Magistrate’s Court, the Union would be seeking the imposition of the penalty against the employer for a breach of the Award. Finally, Mr Moxham submitted that whilst it had been shown that ACS was a member of the MTIA in 1996, it was not evident before the Commission in this hearing that the company had satisfied all requirements of membership of the MTIA at October 1998 when Mr McGarry had ceased employment. Therefore, a case had not been made that the Queensland Industrial Relations Commission was not the correct jurisdiction for this matter. Conclusion In the determination of this matter, it was not necessary to give consideration to the substance of the claim, but to merely examine issue of jurisdiction. Evidence produced to the Commission in respect of ACS’s membership was sufficient for the Commission to establish that the respondent company made an application in October 1996 for membership of the then MTIA and the subsequent acceptance of the application. In terms of the respondent’s membership (of MTIA) circumstances at the relevant time, that being the date Mr McGarry ceased employment, the evidence of Ms Beaverson was not challenged in relation to her affidavit of evidence, and confirmation was provided from the Bar Table by Mr Pratt of an ongoing and continuing membership of ACS since the initial acceptance in 1996. There was no evidence or submissions placed before the Commission that questioned the binding of ACS to the National Building and Construction Industry Award 1990 as a consequence of their membership of the then MTIA. In respect of the second significant ground relied upon by ACS in this matter, that being s. 152 of the Workplace Relations Act 1996, the material placed before the Commission by way of authority in the matter of Sutton v Sharp (No 3) [2000] IRCA 1 (10 March 2000) at paragraph 50 of that decision, was not disputed:– “50 The position here is to be contrasted with that in relation to federal awards. The IR Act expressly provided in s 152 that such awards should operate to the exclusion of State laws and awards dealing with the same matters. Federal awards made pursuant to the IR Act were, by the terms of the Act, brought into force as part of the law of the Commonwealth: see Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, where Dixon CJ, McTiernan, Williams, Webb, Fulager and Kitto JJ said at 547: ‘The basis of the application of s 109 to a State law affecting industrial relations regulated by an award is not that the award is a law of the Commonwealth within the meaning of s 109 but that the Conciliation and Arbitration Act constitutes the inconsistent Federal law inasmuch as it means that an award purporting to make an exhaustive regulation shall be treated as the exclusive determination of the industrial relations which it affects. “The award itself is, of course, not law, it is a factum merely. But once it is completely made, its provisions are by the terms of the Act itself brought into force as part of the law of the Commonwealth. . .” per Isaacs CJ and Starke J, Ex parte McLean [(1909) 8 CLR 465].’ ”. Therefore, in respect of the issue of jurisdiction, on the evidence and submissions that have been placed before the Commission, I find that the Queensland Industrial Relations Commission is not the appropriate Tribunal in which this matter should be heard and, as such, is, in effect, excluded from further dealing with matter W103 of 2001. -- 3 of 4 -- 402 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 August, 2001 I doth order. J.M. THOMPSON, Commissioner. Released: 2 August 2001 Appearances:– Mr R. Moxham, of the Australian Building Construction Employees and Builders’ Labourers’ Federation (Queensland Branch) Union of Employees, for the Applicant. Mr D. Pratt, of the Australian Industry Group, Industrial Organisation of Employers (Queensland), on behalf of the Respondent. -- 4 of 4 --