Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Bark Australia Pty Ltd [2001] QIRC 104 (2001) 167 QGIG 287

20 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 287 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 – application to amend or void contract Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Bark Australia Pty Ltd (No. B459 of 2001) COMMISSIONER BROWN 11 July 2001 DECISION This application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) on behalf of Rachel Bartholomew (RB) sought orders declaring void her employment contract with Bark Australia Pty Ltd (the respondent) pursuant to s. 276 of the Industrial Relations Act 1999 (the Act) and awarding the amount of $2,640.08 to RB. The respondent did not comply with the Directions Orders issued by the Commission and failed to appear. Following an adjournment to allow for late arrival on 18 June, 2001, I determined to hear the matter ex parte. Having heard the evidence and submissions and whilst in the process of considering my decision, I became concerned when I discovered that the application which, as mentioned, sought orders, sought the first order (the voiding of the contract) against Bark Security Australia Pty Ltd and the second order (the payment of monies) against Bark Australia Pty Ltd. Upon examination of the Directions Order issued, it was apparent that directions were only issued to the respondent as named in the first order sought and not Bark Australia Pty Ltd. In that light I could not rule out the possibility that the failure of the respondent to appear may have been caused by incorrect service. I arranged for the matter to be re-listed and for the re-listing advice to be sent to both nominated entities against whom orders were sought. The matter was re-listed for 3 July 2001 and again the respondent failed to appear. Had the respondent appeared I was prepared to issue further directions for the proper hearing of the matter which would have permitted the respondent reasonable opportunity to defend the claims against them. At the hearing on 3 July 2001, Mr Crank for the ALHMWU sought leave to amend the application to the extent that both orders be made against Bark Australia Pty Ltd. Leave was granted. Bark Australia Pty Ltd have, in my view, been provided reasonable and ample opportunity to defend this action and for whatever reason have not done so. I am tempted to conclude that the respondent’s actions amount to a contemptuous abuse of process, however, in the absence of any evidence as to the respondent’s reasons, I will not make any finding in relation to their failure to appear. I was satisfied that Bark Australia Pty Ltd were properly notified of the proceedings of 3 July 2001 and as such I remained of the view that the matter should be heard ex parte. Mr Crank did not seek to add to or amend any of the evidence or submissions put before the Commission on 18 June 2001. The evidence was that RB commenced work with the respondent on 1 November 2000 and performed her last shift on 10 December 2000. RB signed a contract with the respondent and although not provided with a copy of same recalled that it contained: • that the duties and responsibilities of the employee were to act as a security guard; • a 3 month probation period; • notice requirements for termination; and • confidentiality requirements. RB stated that Mr Dunning of the respondent told her that she would be paid $12.00 per hour, however this was not referred to in the contract. Her evidence was that she was not paid for any of the work performed and Dunning cancelled the written contract on or about 17 November, 2001, but assured her that she would still be allocated work, and she was. RB indicated that Dunning was pursuing her for certain monies he claimed were owing to him with respect to rent, assistance to repossess a vehicle and representing her private problems to the police on her behalf. In submissions Mr Crank of the ALHMWU for RB stated: “Had Ms Bartholomew been engaged as a employee her terms and conditions would have been determined by the Bark Security Certified Agreement 1999.”. This Agreement was certified on 10 January 2000 and is still current. Mr Crank also submitted that the contract between RB and the respondent was unfair and as such should be declared void because: • the respondent failed to make any payments; • the disparity in bargaining power of the parties at the time the contact was made; • undue pressure because of RB’s personal circumstances; • RB was given no option in the way she was engaged; and • the contract provided less remuneration than the Certified Agreement would deliver if RB was engaged as an employee. -- 1 of 2 -- 288 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 July, 2001 Having considered all the submissions and evidence, I find that an employment contract was established in writing between the parties on 1 November 2000 and concluded on or about 17 November 2000 and that a collateral verbal contract existed between the parties from 1 November 2000, until RB’s departure from the respondent to the extent that $12.00 per hour would be paid to RB for work performed. Section 276(4)(b) states: “(4) The commission may consider a contract to be an unfair contract if it considers the contract – (a) was an unfair contract when it was entered into; or (b) became an unfair contract after it was entered into because of the conduct of the parties, or a variation of the contract or for any other reason it considers sufficient.”. I find that the conduct of the respondent in not paying RB at all meant that both the signed contract and the collateral verbal contract became unfair in line with s. 276(4)(b) and s. 276(1)(b). Accordingly, my decision is to void both contracts ab initio. Having decided so, I find that RB’s employment was governed by the Bark Security Certified Agreement. In that light I order Bark Australia Pty Ltd pay the amount of $2,640.08 to Rachel Bartholomew within 22 days of the date of release of this decision. Order accordingly. D. K. BROWN, Commissioner. Released: 11 July 2001 Appearances:– Mr K. Crank for the Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees -- 2 of 2 --