Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees [2001] QIRC 32 (2001) 166 QGIG 311

23 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 311 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (No. B218 of 2001) SECURITY INDUSTRY (CONTRACTORS) AWARD – STATE COMMISSIONER ASBURY 12 March 2001 DECISION -- 1 of 3 -- 312 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 March, 2001 Union encouragement provisions – Statement of policy and principles – application seeks mention of a particular union in provision – Departure from approach outlined in statement of policy – Onus on parties arguing for departure from statement of policy to show clear need – No basis for departure from statement of policy in this case – Natural justice would require other parties to be given an opportunity to be heard – Application refused to the extent that it seeks naming of particular union – Application for inclusion of standard provision granted. The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (the ALHMWU), has made an application to amend the Security Industry (Contractors) Award – State, ostensibly, to incorporate the Union Encouragement Provisions set out in the Statement of Policy issued by a Full Bench of this Commission on 21 December 2000 (165 QGIG 25). However, Mr Martin, who represented the applicant in this matter, advised that the application sought to depart from the provisions set out in the Statement of Policy, by incorporating reference to ALHMWU as the union which employees would be encouraged to join. In support of the application, Mr Martin submitted that:– • the contract security industry has been the subject of demarcation disputes in the past; • the departure from the terms of the Statement of Policy was sought in the interests of industrial harmony; • while there were no orders of this Commission pursuant to s. 279 of the Industrial Relations Act 1999 (the Act), or orders under previous provisions about representation rights of employee organisations, undertakings had been given by other unions, and pacts entered into, in relation to membership in the contract security industry; • the subject matter of the Award is limited to employers who provide security services under a contract or on a fee for service basis, and is restricted in its application; and • the ALHMWU is named in the Award as a party bound and no other union is so named. Mr Martin also said that he could not imagine another industrial organisation which would have the rules to cover the work in question. Mr Muir of Employer Services Pty Ltd, representing Chubb Protective Services, said that his client constituted some 75% of the contract security industry and neither supported nor opposed the application. Mr Muir also said that he had been dealing with the contract security industry since 1987, and had never known any union, other than the ALHMWU, to be involved in that industry. Mr Muir also submitted that any amendment to the award as a result of this application should be operative from 2 April 2001. Mr Martin did not oppose this submission. Conclusion In a decision of 1 November 2000 regarding union encouragement provisions ((2000) 165 QGIG 221), a Full Bench of this Commission determined to issue a Statement of Policy, which it was envisaged would consist of a clause regarding union encouragement which was capable of insertion into an Award, together with guidance to a Commissioner sitting alone about how to deal with the matter. The effect of a Statement of Policy was examined by the President, following an appeal to the Industrial Court of Queensland, in relation to the Full Bench decision ((2000) 164 QGIG 21 at 23). The President stated that in issuing a Statement of Policy, a Full Bench of the Commission can do more than develop a draft clause, which upon application, may be inserted in a particular Award. The President went on to say that the Commission, may also develop a Statement of Policy to guide a Commissioner sitting, about how certain industrial matters are to be dealt with. It is clear from point 2 of the Statement of Policy in relation to union encouragement provisions ((2001) 166 QGIG 25 at 26), that the Full Bench did intend to provide guidance to the Commission constituted by a single Commissioner, about how to deal with applications to insert such provisions into Awards. The decision which preceded the development of the Statement of Policy in relation to union encouragement provisions, clearly indicates that the Full Bench saw circumstances where a particular Union would be mentioned in the union encouragement provisions in an Award, as being limited. In relation to this issue the Full Bench said:– “We would consider it onerous and in some instances, impossible, for employers to be required to dictate to employees which Union they should join, if they were already not members of an appropriate Union. We accept, however, that in many well established industries (and in those areas already cited where demarcation cases have determined Union coverage), Union coverage is well known and stability exists around the issue of Union membership. In these instances, it would not be inappropriate for mention to be made of the Union which has a clearly established right to coverage. However, we would not wish to see the destabilisation of these worksites around the issue of Union coverage and in the majority of cases employees should simply be encouraged to join an appropriate Union. The determination of that Union would rest with the Union which believes it has coverage of the employee/s in question.”. While the ALHWMU is specifically named as a party bound by the Security Industry (Contractors) Award – State, and is the only Union so named, Union encouragement provisions deal with the encouragement of membership of “an organisation of employees that has the right to represent the industrial interests of the employees concerned”. It does not necessarily follow, that a Union party to an Award, is the only Union with the right to represent the industrial interests of the employees bound by that Award. Mr Martin did not go so far as to submit that the ALHMWU was the only union which had the right to represent employees in the security industry, and was unable to refer specifically to any order of this Commission with respect to demarcation, in that industry. Further, it was argued by Mr Martin that the inclusion of a reference to the ALHMWU in the Award provision in relation to Union encouragement, would assist in the avoidance of demarcation disputes and clarify matters which had been the subject of previous disputes. In my view, the Full Bench did not intend that a particular Union would be mentioned in an Award provision dealing with Union encouragement, where there was any controversy or even a likelihood that controversy would arise, over union coverage. Further, the Full Bench did not intend that Union encouragement provisions would be a mechanism to prevent or settle demarcation disputes. Rather, these provisions could reflect established demarcation arrangements, where they exist. Clearly, the Full Bench intended that where a Union does seek to be named in a Union encouragement provision contained in a particular Award, that the Union concerned should satisfy the Commission that Union coverage in the enterprise/s or industry sector/s covered by the Award, is clearly established. The existence of a formal order of the Commission in relation to the right of the Union seeking to be mentioned in the Award, to represent employees to the exclusion of other Unions, would be one way of demonstrating that Union coverage is clearly established in a particular industry, industry sector or enterprise. In this case there is no such order, and there is no evidence before me upon which I could reasonably conclude that union coverage is well known, and stable, in the contract security industry. In relation to the matter before me, while Award coverage may be clearly established in the contract security industry I am unable to be satisfied that Union coverage is so clearly established, that the ALHMWU should be mentioned in the union encouragement provisions of the Award covering that industry. Further, other Unions who may have an interest in the matter of whether the ALHMWU is the only Union able to represent the industrial interests of employees in the contract security industry, have not been notified of these proceedings, on the basis that the ALHMWU is the only Union -- 2 of 3 -- 23 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 313 party to the Security Industry (Contractors) Award – State. In my view, to amend the Award as sought, without giving other unions who may also have the right to represent employees in the security industry an opportunity to be heard, would be a denial of natural justice. Accordingly I am not prepared to grant the application in the form sought. In the alternative, Mr Martin sought the inclusion of the provisions as set out by the Full Bench, in the Statement of Policy. I will amend the Award to include those provisions, with effect from 2 April 2001, as agreed between the parties represented at the hearing in relation to this matter. An appropriate order will be issued with this decision. I.C. ASBURY, Commissioner. Released: 12 March 2001 Appearances:– Mr J. Martin of Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr G. Muir of Employer Services Pty Ltd on behalf of Chubb Protective Services. -- 3 of 3 --