Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees v Sclulli Bros [1999] QIRC 134 (1999) 161 QGIG 144

1'' I 144 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE I 8 June, 1999 ############ffl##########################################ffl##################################ffl########################## QUEENSLAND INDUSTRIAL RELATIONS COMMlSSlON Workplace Rela1io11s Acl 1997 - s. 239 - notification o f di�pute Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of .Employees AND ScluJJi Bros (Qld) Pty Ltd (No. D120 of 1999) BUILDING CONSTRUCTION INDUSTRY A WARD- STATE CO.\1MISSIONER BLOOMFIELD 2 June 1999 Dispute - Terminatio11 of Employment - Un ion's Sho p Steward - Decreasing Workload - Least qualified employee - Company's financial po sition exa mined - Need 10 reduce staffing levels because of economic pressures - Commission's view that Company ne eded to reduce full-ume employmen1 levels because of its current position - Termination justified - Company validly se lected employee for redundancy. DECJSJON On 26 May J 999 the Austrahan Building ConstrU<..tion Employees a nd Builders ' Labourers' Federation (Queensl and Branch) Union of Employe es (BLF) noufied the Indu strial Registrar of a dispule in accordance with s. 239(2) of the Workplace Rek,tions Acl 1997 and clause 2.3(4) of the Building Construction Indust ry Award - State. lne dispute was satd to relate 10 a decis io n by managemem of Sciulli Bros (Qld) Pty Ltd to give notice of te rmination of employment to Mr Ian Graham, the Union's Shop Steward. The notification advised the Commission 1ha1 the Union dispu1ed I.he reasons for the 1erminat1o n and also felt tha1 the employer's decision 10 terminate was harsh, unJust and unreasonable. A conference was held before 1he Commission a.� presently co nstituted on Thursday 27 May 1999. It would be fair 10 say that the environment was fairly hostile. Representatives of I.he BLF made a number of allegatio ns abou1 the company's treatment of itS employees and par ticularly I.hose employees who had become delegates of the BLF. Tiie I..;nion aJle.ged that the Company's decision to term.ina1e Mr Graham, ahead of any oiher employee, was because of ht s recent involvement with the Un ion io sever.ii di.�pu1es between the employees and management. The employer repre.$entative s disputed such allegations and indicated tha1 Mr Graham's 1ermination was a result of 1he decreas ing workload of the employer in recent mon1hs. They also argued that Mr Graham was one of the Company's least qualified employees.. It was for this reason that he was terminated ahead of any 01her employee when the Company needed 10 reduce its staffing levels because of the econonuc pres sures currently facmg ll. During 1he course of 1he confe re nce Mr Rhetl Mox.ham, of the BLF, referred me to clau se 2.3(4) of the Building Coos!ruction Industry Award - Staie which is m the following ter ms:- ..(4) Job Steward:, _ Special Provisions _ Noiwuhstanding 1he above, 2 days' notice shall be given LO any job steward and lhe Unio n in cases of termination or transfers. Payment in lieu of notice shall nOI be given. In the event of the Union disputing the decision of management lo transfer the job steward or terminate 1he employee's service the employee shall remain on the job during which lime the Commiss io n shall deal with the matter. The appropriate Unio n shall, within 3 workmg days of notifying the managem ent that it disputes the decision to transfer or terminate the job steward, request the CommiSSlon 10 deal wilh the maner. The Unio n and the employer shall do all thi ngs necessary to enable the Commission to sit within 10 workrng days of the m anag� menl decisi�n to transfer or te rminate the job steward. If 1he Commission cannot sit within 10 workin_g days because of the employer's fa•l�re to nommate repre sentatives. or their unavailability to attend proceedings, the decision to transfer Of termmate theJOb steward shall be null and void. If the Commis sion cannot sil within JO working days because of the Union's failure to nominate representa1ives, or their un availabili1y 10 attend proceedings, 1he job steward's transfer or ter ll1lnation shall automa1ically take effect at the expiry of the period of 10 working days.". Jle ind1c-.,ted thal the Commiss ion was being asked to "deal wi-ch the mailer'' in accordance with such clause. 18 June, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 145 Mr C. Buuenshaw, of Housing Industry Asso ciatio n Limited, who represented the respondent employer sugges1ed to me that the termination had not been effected under cl ause 2.3 but rather clause 2.4 - '·Redundancy·· of the Award. I indicated to him that clause 2.4 did not c onta in a power to dismiss - lhis was contained in clause 2.3 - but simply contained a requirement 10 make additional payments to an employee whose services may have been terminated be ca use of a "redundancy" within the meaning of1ha1 clause. The dispute was .unable to be resol�ed at the conference and I d_ecided to adjourn it Lo 1he following week. In doi ng so I requested the employer to prepare mformat10n which showed Its level of busmess act1v1ty smce the beginning of March 1999, as well as itS recen1 financial performance . J also asked _ it lo produce the records of the employee s' qualifications so that its assenion tha1 Mr Graham was one of the leas1 qualified employees could be exanuned. The maner resumed before me on Tuesday I Ju ne 1999 when the Company produced the material which I had requested the previous week. Because of . the nature of the matenal, which went to the Company's financial position, I issued a directio n pursuant to s. 456 that the malerial produced be withheld ! from publication, release or search. I a.Iso decided to take the proceedings off the record whilst 1he Company's material was tabled and discussed. l The representatives of the BLF were provided with an oppoctunity to analyse and co nsider the material before they were requested to re spond. Afte r such opportunity Mr Momam took issue with some of 1he material provided. He indicated that the records did not disclose the full usage of the Company's vehicles in lhat they did nO! disclose the employees' travelling time nor any downtime o r non-charged lime. He also argued !hat the Company had attempted to pass the r oster ed days off in the industry as days when the employer's vehicles we.e not being used because of lack of WOfk. He suggested thal the Commission needed to be aware I.hat employees were slill required to be available and to man vehicles even though they mighl not be used once they tr avelled to a construction site because of delays at the site, wet weather or for some other occurrence.. He also disputed some of the records relating to the actual vehicle us age bas ed upon copie s of vehicle records which the Union had within ii possession . Mr Moxham also argued lhat M r Graham was nol the least qualified employee in thal he had an operator's tick eL He disputed the employer's assertion that another employee - who had been retained in employmen1 - possessed a heavy vehicle licence indicaling that the informa lion available to the Union was that the employee did not possess that qualification. In order to resolve that matter I spoke to the employee directly in the presence of all other panics. I e stablished that the other employee did possess a heavy vehicle licence but that he was not prepared to use that licence in connection with his employment with Sciulli B ros (Qld) Pty Ltd. However, the employee did possess what was described as a "Yellow Card" which permitS him to work on Queensland Rail co ntracts. Finally, Mr Moxha m argued that in accordance with clause 2.3(4) Mr Graham was entitled to be paid during the period that the dispute about Mr Graham's termination of employment was being dealt with by the Commission. Conclusion The vehicle usage figures and financial position advanced by the employer are, in my considered view, quite revealing. They disclose that the Company's vehicle usages have reduced considerably from the levels which were being experienced in March 1999. The reduction is across the board insofar as the Company's vehicle fleet is concerned and the problem is compounded because of a return of one vehicle to the employer's )lead office in a southern State. Further, the Company's trading posilion s hows a considerable reversal in fortunes over the last seven or eight months. In my conside red view the employer's current position supports its decision to reduce itS full-time employment levels. It was simply not feasible, nor practJcable, for the Company 10 con tinue to employ the same numbe r of full-time employees that it had. The work demands would not, and do not, support the previous levels of full-time employees. Nor does the curreDI financial posi1ion. The vehicle usage figures, as well as the Company's trading position, oonfirm that it needed Hl reduce the number of full-time employees. The mos1 appropr1a1e way for lhe Company to operate would seem to be to have a pool of casual employees which ii can call in at r easonably short notice 10 re spond to chenl demands. This is what it is anempting to do. In my view the employer was justified in terminating two empl oye es for the reaso ns which it has advanced. The ques tion which then arises is whether it was appropriate to select Mr Graham for 1ermina1ion ahe ad of olher employees. Mr Graham holds an operator' s ticket but no other tickets. The other employee (referred to above) does not hold an operator's ticket. Although he holds a trock driver's licence he is not prepared to make that licence available for use during his employment with Sciulli Bros. It is unclear whether he would agree to use it if it mean1 the continuation of his employment as he was not asked that question. However, the other employee does hold a "Yellow Card". The Company has withi n its employ one other employee who also holds a yellow card. Thai other employee holds both an opera1or's licence and a truck licence. I was informed that one of th e Company's future jobs is a job associated with Queensland Rail and that it will be necessary to have two employee s who hold Yellow Cards 10 be avrulable 10 work on that role. The 1wo employees mentioned above will comprise thal crew. Accordingly, the Company was en1itled, i n my view, to select Mr Graham for redundancy ahead of t he other employee who holds a yellow card be cause the Olher employee's qualifications will be re quited if the employer is to be able to perform w()(k on the Queensland Railways contract. T here was no suggestion tha1 Mr Graham should have been selected for redundancy ahead of any employee other thall the one me ntioned if !he Commission found that a redundancy (or redundancies) was warranted. As such, it follows that the employer validly selecte d Mr Graham for redundancy ahea d of all oiher employees because he was lhe least qualified employee based upon the Company's future requirements. ::ODMA\G RPWISEIQIRC-DOM.IRO-PO l .GENERALI :28976.I QGIG 18/6/99 II -- 1 of 2 -- I 146 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 18 June, 1999 It is my finding that:- The current worklo.,.d and financial position of Sciulli Brosjusufied 1ts decision to make the two tmployees (including Mr Graham) redundant. • The decision to select Mr Graham for termination ahead of any other employee was a valid decision. Jn relation to Mr Moxham's claim that Mr Graham should be paid whilst the Commission "dealt with" the maner 1 have decided that the clause can only be intended to read that a delegate is to be provided with their normally scheduled work, or pay. wlulst the matter is being dealt with. Mr Graham was offered casual employment on a number of days whilst the mailer was before the Commission. However, the material advanced suggests that he wa.s less than obliging in responding to the Company's various offers of employment. For e�ample. Mr Graham rejected an offer to commence work quite early on the morning of Monday 31 May because he wished to ta.kc his daughter to school. Consequently, he attended at the Company's yard at 9.30 a.m. Mr Graham should only be paid on this day between 1ha1 time and the normal knock off time. He should be provtded with eigh1 hoors pay (if he has not already received that much) in respect of the Olher days which have lapsed since he was advised of his tecmination up to and including today. During the d11,'jJ\Jte reference was made 10 the Comp0ny's current enlerprise bargaining Certified Agreemo:nt. Toal Agreement appar,;ntly contains restrictions on lhe use of casual employee.�. I recommend that the parties meet 10 discuss a variation 10 the Certified Agreement, in relauon 10 casual employees, because the current restrictions will prevent Mr Graham or any Olher recently terminated employee from being able to work with the employer for more than a two week period. I do 001 believe that such a restriction is in lhe best interests of the employees nor the employer. Jn my view the restricuon is an unnecessary impediment which will severely restrict lhe employer's ability to bid f04' business and 10 offer more permanent employment to any employee - including those that have been recently dismissed. The Comm1ss1on decides and recommends accordingly. A.L. BLOOMAELD, Commissioner. Released: 3 June 1999 Apf>earances:- Mr R . Moxham, Mr J. McHugh and Mr I. Graham for the Australian Building Coosuuction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees. Mr C. Bullenshaw, Mr 1. Lambert and Ms C. McDonald, of the Housing Industry Association Limited, with Mr P. Keenan for Sciulli Dros (Qld) Pty Ltd. ##11#################11#################/Ht###/1###########It########il#####ll##########/1#11##11###11#############lt####/1#####-11-11#/t#### 18 June, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 147 ' I -- 2 of 2 --