Amalgamated Society of Carpenters, Joiners. Bricklayers, Plasterers, Painters and Decorators of Australasia. Union of Employees, Queensland v Queensland Master Roof Tilers' Association [1996] QIRC 736 (1996) 153 QGIG 843

842 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 November, 1996 15 November, 1996 ) ( I I) QUEENSLAND GOVEfil..1MENT INDUSTRIAL GAZETTE 843 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lndu.,trial Relations A ct 1990 s. 120 - application for appeal s. 144 - appl ication for variation Amalgamated Society of Carpenters, Joiners. Bricklayers, Pla.~terers. Painters and Decora tors of Aust.ral asia. Union of Empl oyees, Queensland AND Queensland Ma.,rer Roof Tilers· Association (Nos 86 30of/995and8! 30R ,f/ 996) BlJILDING CONSTRUCTION INDUSTRY AWARD - STATE COMM ISSIONERS FISHER, BECHL Y AND NUTTER 31 Ocrober 1996 Appeal - Dec isi on of Commission - Roof Ti lers - Redundancy Pro vision;; - Appeal Withdrawn - Application for Variation - Deletion of Exclusion for 2I657_1.DOC -- 1 of 3 -- r 844 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE I 5 November, 1996 Roof Tilers History of Prov1s1on Reference to Interstate Decisions Affidavits Application Granted Proviso to Subclause ( 1) of Clause 2.4 Deleted. DECISION There arc two matters before us for determination. The first matter is an appeal pursuant to s. 120 of the Industrial Relations Act 1990 against the decision of the Industrial Commission inserting a clause in the Building Construction Industry Award State (BCA) exempting employees employed in the classifications of roof tiler, slate, ridge or roof fixer from the redundancy provisions where the employee elects to terminate a contract of employment with an employer. The second matter is an application ~king to delete the said clause from the BCA. In respect of the first matter, the Commission was advised that Mackenzie P., issued a stay order until such time as the appeal was determined. However, a check of that record indicates that whilst the President granted leave to appeal to the Full Bench, the application for a stay was adjourned to a date to be fixed to be brought on for hearing on 2 days notice to the other party Such notice wa~ not activated. The variation to the Award, 10 operate from I March 1995, wa~ gazettedon4April 1995(148QGIG 1234-5). At the hearing, leave was sought by and granted to the applicant to fonnally withdraw the appeal. The Commission then dealt with the second matter (B 1308 of 1996). The statement of material facts relied upon to support the applicant contained the following:- "(a) The ASC&J and other unions have members employed in the construction industry, the subject of the Award, who are employed in the classifications of roof tiler, slate, ridge or root fixer. (b) The current Award variation shall be to reduce benefits or entitlements and/or conditions of employment presently enjoyed by member~ of the ASC&J and other~ employed in the classifications of roof tiler, slate, ridge or roof fixer and who are subject to the Award, by excluding such persons from redundancy pay in the circumstances where such a person elects to tenninate employment. (c) The current award provi,ion shall he to cause persons employed in the classifications of roof tiler, slate, ridge or roof fixer to be treated in a different manner at the point of termination from all other persons employed in the building and constmction industry and who are subject to the Award. (d) The weight of the findings and decisions of the Australian Industrial Relations Commission and other State Tribunals is that the roof tiling sector was not so distinguishable from the remainder of the building and construction industry as to warrant different prescriptions for redundancy. (e) The history and content of the redundancy proviswns demonstrates their appropriateness to the industry. (f) The unions case was based on the Federal findings that the building industry is unique. These findings were not challenged by either the employers (i.e in the roof tiling sector) or the Commission. (g) The evidence as to the similarity of the roof tiling sector with the remainder of the building and construction industry supported a finding that the redundancy provision should continue to apply to the roof tiling sector or that industry. (h) It was not in issue that the provisions differed from standard provisions but rather that they were redundancy/severance prnvisions appropriate for the building and construction indust1y. (i) The manner. continuity and the length of engagemeflt of employment for persons employed in the cla,;sifications of roof tiler. slate, ridge or roof fixer and subject to the Award were different in any material way from the manner. continuity and the length of employment of per;,;ons employed in classification;; other than roof tiler, slate, ridge or roof fixer and who are subject to the Award. (j) The effect of and likelihood of different conditions of employment would cause disharmony and lead to the potential for industrial disputation. (k) Such other grounds as the Full Bench deems just and proper." No party appeared in opposition to the application. Witness Evidence Two witnesses were called. Written affidavits were tendered as exhibits. Also, an aflidavn was tendered in respect to a person who was not available to appear on the day of hearing. The evidence was consistent. Such evidence asserted:- that roof tilers were in the building and construction industry and not in the manufacturing industry: that roof tilers work under the same award and were concerned with the same issues and problems as other employees on the building and construction industry; that the roof tiling sector should not be exempted from the award redundancy provisions as they are no different to any other employer, contractor or employee working in the building and construction industry; and that the redundancy fund (BERT) is fully transportable for the industry needs. Origin of the Redundancy Clause in the Award The clause as it appears in the BCA (without the exemptions relating to employees in the r(X)f tiling indw.t1y) was first inserted in the National Building & Construction Industry Award (NBA) pursuant to a decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) on 22 March 1989 ln that decision the Full Bench stated that they adopted a redundancy payment scheme designed to meet the needs of the industry. The AIRC Full Bench was not prepared to have more than one standard in the industry and did not grant exemption to any sections of the industry. A number of Employers were successful in obtaining orders in the High Court prohibiting the Pull Bench from issuing orders to give legal effect to the decision but the orders were subsequently lifted. In October 1989, Commissioner Grimshaw (AIRC) vaned the Award in terms of the Full Bench decision. Jn January 1992, following an application by a number of Employers, Commissioner Palmer refused to vary the Award in respect to the roof tiling sector. He stated inter a/ia:-- "That based on the evidence and my knowledge of the industry I am unable to reach a decision that the roof tiling sector is so different from the remainder of the building industry that it shnuld have, as a result of this application. different award redundancy provisions., (Print K2254) This decision was appealed to a Pull Bench. The basis of the appeal was that the appellants should not be bound, firstly because they did not participate in the previous proceedings and secondly that the roof tiling industry was distinguishable from the building industry generally. The appeal was rejected on the basis that it was not demonstrated that either there was an error of principle or that the conclusion reached could not rea<.onably he reached on the information provided. Interstate Decisions Victoria In October 1990. the Industrial rdations Commission of Victoria in Full Session upheld an appeal against a decision of the Commission e:>-cluding the Victorian I lousing Sector from the flow-on of the Federal TCR provisions in the f\.BA. In the course of the appeal decision it was stated· "We consider that as a matter of industnal principle, building mdustry awards in this State should be regarded as counterpart awards of Federal Building Industry award~. This 1~ a long established prmciple which has been followed by this Commission. and its predecessor, over many 15 November, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 845 vears. In a recent decision, the Commission reiterated the principle in dealing with an application by the building industry unions to provide different accident make-up pay provisions in Victorian State awards to what prevails Federally From what has been put to us, it is clear that rhe AIRC, after a lengthy inquiry, decided that the housing sector should not be excluded from the broad parameter of the building industry.". and further "We consider that if any distinction is to be made regarding the housing sector then this should be considered and determined by the AlRC in the first place and not this Commission. It follows that the various State awards before us should be varied to reflect the variations made to the Federal awards by the AIRC on the subject matter of these appeals."(Case No 90/2549, 2550 and 2571 ). Western Australia A decision in respect to an industry standard provision for an entitlement to redundancy payments was handed down by the Commission in Court Session on 29 April 1996. This decision was in respect to the Building Trades (Construction) Award, one of a number of Awards in that State in the construction industry. The Employers whilst they supported the availability of redundancy payments in the industry opposed the basis upon which the entitlement could be accessed, namely where the employee resigns and in relation to periods recognised for an apprentice who completes his apprenticeship. The Commission by majority judgment stated that it had not been demonstrated that there were good reasons on the merits of the case to provide the clause opposed by the respondents. In so doing they stated:- "Further, there is a need to provide for bona tide redundancy, not resignation. If the benefit is to be for the purposes of a deferred payment or a general termination benefit then it ought to be clearly stated as such, and argued on its merits. To use the term 'redundancy', to rely on the TCR Case and on the need for a provision in the circumstances of genuine redundancy as the basis for a termination payment by another name does not provide the necessary justification, and devalues genuine redundancy."(No 1154 of 1995 and No R 14 of 1978). It must be stated that the application of the clause was to all employees and employers covered by the award and not just one category of employees. We were advised that as a consequence of that decision a number of Employers in Western Australia have now been roped into the Federal Award. New South Wules The most recent decision in this matter was handed down by the Full Commission in New South Wales dated 19 April 1995. The appeal was against the decision of the Commission (Maidmcnt J .) of 16 December 1993. Maidment J. refused to extend the NBA provisions to the roof tiling sector insofar as redundancy pay be.comes payable upon the resignation of an employee. The Full Commission in upholding the appeal dealt in detail with the decision handed down in the Federal jurisdiction. They said inter alia:- "Such unusual provisions in relation to the building industry, however, have emerged from a series of cases decided by the Australian Commission in relation to that industry. They must be accepted as representing the deliberate views of that Commission as to what are ai:,propriate redundancy provisions in the circumstances of that industry.,.; and further "In the circumstances, we have considered for ourselves the evidence relating to this aspect in the proceedings below, together with the submissions of counsel in the appeal proceedings. We accept that the ca~e of the respondents is not without merit. Howeve,, the respondents face a formidable task when one considers the overall applicability of the disputed provisions under both federal and State awards, including its specific applicability to the roof tiling industry under the federal award as a result of separate proceedings; the principle of State counterpart or roping-in awards, on practical grounds of comity and uniformity, being reflective of provisions in relevant federal awards; and the obvious undesirability that two standards concerning one condition of employment in an industry should 'operate essentially side by side'. Giving full weight to the evidence supporting the position of the respondents, we are not convinced that a case has been made out that they should be exempted from the general redundancy provisions of the award and that alternative redundancy provisions of a more usual and orthodox nature should apply to them."(No IRC3148 of 1993). Queensland Situation The BCA and its predecessor the Building Tradesmen's (other than Plumbers) and Builders' Labourers' Construction Award State has been colloquially referred to as the "mirror Award" - that is the mirror of the NBA For example, increases granted under the BCA are of the same amount and operable from the same date as the NBA. During negotiations in l 993 on the new Award, it was agreed that the Award would continue to mirror the NBA save insofar as there was direct conflict in regard to policy decisions of this Commission. No change was sought in the redundancy provisions when the Award came before the Commission for approval on 30 November 1993. The Commission was told the only difference between the BCA and the NBA was in respect to sick leave provisions. We have some sympathy for the argument that resignation is the antithesis of redundancy (i.e. generally understood to mean termination by the Employer). In terms of the general Policy decision redundancy benefits would not flow to employees who resign of their own accord. However, as indicated in the various decisions quoted, the building and construction industry is "unique" and can be quarantined from other industries. We generally agree with comments in the decisions by the Full Commission in New South Wales and Industrial Relations Commission of Victoria previously quoted. In those jurisdictions as well as under the NBA, the application of the redundancy provisions to the roof tiling sector of the building industry was specifically considered. In addition, to leave the Award as it now stands would result in one group of employees receiving differential treatment to the remaining employees under the A ward. The question of exempting one group of employees as distinct from all employees wa., not a matter considered in the Western Australian decision. We have had regard to the comments expressed by Commissioner Bougoure in his decision of27 January 1995 in inserting the provision in the Award. At the time of that decision, Commissioner Bougoure did not have the benefit of the appeal decision in New South Wales nor the range of infonnation we now have before us. In terms of the Award, its relationship to the NBA and the relationship to counterpart A wards in other States, it would be inappropriate for us to differentiate between different employees under this Award and between this Award and the NBA. The application is granted. The proviso to subclause ( 1) of clause 2.4 will be deleted operative from 4 November 1996. Order accordingly. G. K. FISHER, Commissioner. R. E. BECHLY, Commissioner. B. J NUTTER, Commissioner. 21657_1.DOC -- 2 of 3 -- 846 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Appeurunces:- Mr M. Ravbar for 1he Amal gamated Society of Carpenters, Joi ners, Bricklayers, Plas1erers, Painters and Decora1ors of Australasia. Un ion of Employees, Queensland. Operate Date : Decision - TCR provisions for Roof Tilers Rclea. ed: I November 1996 #####################lt#lt############lt####ltlt####lt########lt# 15 November, 1996 15 November, I 996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 847 I 2 1657_1.DOC -- 3 of 3 --