Department of Employment, Training and Industrial Relations v Sherrin Hire Pty Ltd [2000] QIRC 104 (2000) 165 QGIG 184

184 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 October, 2000 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Department of Employment, Training and Industrial Relations AND Sherrin Hire Pty Ltd (No. W138 of 2000) COMMISSIONER BLOOMFIELD 18 October 2000 Unpaid Wages – Employer contracted by Energex Limited – Applicant claimed that QTSC Group of Corporations Enterprise Bargaining Certified Agreement 1996 applied to contractor – Arbitrated Matter – Employer not party to Certified Agreement – Commission found that Certified Agreement could not apply to third party – Application dismissed. DECISION On 16 October 2000 I dismissed an application by David Francis Cox, of the Department of Employment, Training and Industrial Relations, which had asked the Commission to make an order under s. 278 of the Industrial Relations Act 1999 requiring Sherrin Hire Pty Ltd to pay unpaid wages of $9,506.39 to one Terry Anthony Douglas. The application claimed that Mr Douglas was employed by Sherrin Hire Pty Ltd as a Level 2 Employee under the terms of the QTSC Group of Corporations Enterprise Bargaining Certified Agreement 1996 (No. CA225 of 1996). The application said that Sherrin Hire was contracted by Energex Limited to clear vegetation and trees away from live power lines in the city of Gold Coast and environs. Mr Douglas was, in turn, employed by Sherrin Hire to perform that type of work. Mr Cox’s application said that the Certified Agreement contained a provision at clause 4.4 to the effect that all contractors performing “core work”, as defined in the “Use of Contractors’ Industrial Agreement” between the QTSC Group and various unions, were to be entitled to rates of pay and allowances which in aggregate were no less favourable than those payable to employees under the Electricity Supply Industry Employees Award – State and the Electricity Generation, Transmission and Supply Award – State. It was alleged that Sherrin Hire had not paid Mr Douglas in accordance with the terms of the QTSC Certified Agreement and/or the terms of the “Use of Contractors’ Industrial Agreement” mentioned at clause 4.4 of the Certified Agreement. Although the QTSC Certified Agreement purports to confer obligations on contractors, and benefits to employees of contractors, Sherrin Hire is not a party to the Certified Agreement, nor to the Industrial Agreement, and is not bound to observe their respective terms. The QTSC Certified Agreement was made between Queensland Transmission and Supply Group of Corporations and various unions. The Agreement, as a matter of law, can only apply to such parties and to the employees of the QTSC Group (see definition of “party” in Part 11 – “Promoting Bargaining and Facilitating Agreements” of the Industrial Relations Act 1990). Similarly, the “Use of Contractors’ Industrial Agreement”, which is sought to be relied upon, is only binding on the direct parties viz. QTSC and the signatory unions (see Part 10 – “Awards and Industrial Agreements” [especially s. 141] of the Industrial Relations Act 1990). Chapter 6 – “Agreements”, of the Industrial Relations Act 1999 also makes it clear that a certified agreement only applies to the parties who made the agreement (see s. 141, s. 142 and s. 166). Accordingly, an agreement’s terms cannot apply to, nor be binding upon, third parties. Such statutory provisions reflect the common law position spelt out in such cases as Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460 and Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. Sherrin Hire Pty Ltd was not a party to the QTSC Certified Agreement (No. CA225 of 1996) and, therefore, was not bound by its terms. Accordingly, Mr Douglas had no entitlement to the benefits supposedly conferred by that Certified Agreement. Similarly, although the “Use of Contractors’ Industrial Agreement” purports to confer obligations, and benefits, upon third parties, such provisions have no effect because the terms of the agreement have no application to third parties. It was for these reasons that I dismissed the application of Mr Cox on 16 October 2000. A.L. BLOOMFIELD, Commissioner. Released: 18 October 2000 Appearances:– Mr D. Cox for the Department of Employment, Training and Industrial Relations. Mr C. Delaney and Mr I. Sherrin for Sherrin Hire Pty Ltd. -- 1 of 1 --