Australian Workers' Union of Employees, Queensland v Queensland Cotton Corporation Limited [1995] QIRC 665 (1995) 150 QGIG 1687

1686 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E I 15 December, 1995 ( 15 December, 1995 J QUEENSLAND GOVE RNM ENT I ND USTRIAL GAZ E TTE 1687 ####################################################### QUl.:LNSLA D l'IDl 'STRIA! Rt LA TIONS CO \i! MISSIO;,. lndusma/ Relatto11s Act 1990 s. 118(2) appeal from dccision of indU',trial comm1s,1on Australian \\'orkers' Ln1on ofl-mplo)ces. Queensland A D Queensland Cotton Corporation Limited (Vo 8-166 of /995/ 0 1 EE ~ I.A~ D COTTO~ CORPORA no~ I 1\111 t. D ENTER PRI SE F LEXIBILI I\ AG R EEI\ IE:\T (0\1MISSIONI RS BOUGOURE. Hl ·CIILY A D SWAN 30 \Jo\ em her 1995 \ppcal 10 full Bench of Commission Appeal hroughl in the Public lntcrcs1 fnterpnse nc,ibil1t) Agreement tor Queensland (. nuon Corporation Lumted Appro\ cd - WorJ,,.force Cons1,1ed of J \mall Number of Pcnnancnt Fmplo)ees (24) and about 130 '.easonal Workers "legotiauon\ for FFA onl} held \\Ith P.:nnanen1 \\orkforcc - Pennancnt Emplo)-ees Only Voted on Tenns and Condiuons of Agreement Compliance "ith I egislJuon I \CCptional Circumstances Established - Appeal Upheld - Refusal 10 ApprO\e implementation ofl· ntcrpmc Flex1b1lity Agreement. Dl"CISIO\J /\ decision ol this Commission 1S\ucd on 23 Februa11 1995, 111 mailer No EF15 of 1994. "hich approved the making of an fntcrprisc Flex1bilit) Agreement (the Agreement/El A) bet\,cen the Queensland Collon Corporation I imitcd and certain ol its employees employed at couon ginncries and associated depotS at Dalb). Cecil Plams. ~t George. bncrald and B1loela. I he Agreement was appro\ed t,y the Queensland Industrial Relation, Conrnussion pursuant to Di, 1s1on 3. Pan 11 of the lndusmal Relatums Act 1990 !the Act) The respondent 111 this matter, the Australian Worker.,· Umon of l::mployees, Queensland (A WU) (an Organisation of Employees with constitutional CO\erage of the emplo)ec" in question) appealed this decision to the Industrial Relatlons Coun. In a decision of 8 AugusL 1995 (Cl6 and C l7 of 1995). the President of the lndustrinl Re lations Court. Justice Mackenzie. de1ennined 10 refer the mauer to a Full Bench of the Commission pur..uan1 to s. 120 of the Act It is rele\ ant to note that an appeal granted b} the President under s. 120 of the Act "is not 10 be granted un less the Preside nt is of the opinion that the matter b of such imponancc that an appeal should be brought 111 the public interest'·. The grounds upon "hich the appeal lies afl: those other than error of law or excess of ju risdiction (sec s. 120(7) of the Act). s 120(8) of the Act ,tales - "On an appeal dul) instituted under this section the Industrial Commission ma). b} its order - (a) dismiss the appeal: or (h) allo" the appeal and - {i) set aside the decision appea led against and suhstilulc the dec1s1on that. m us opmion. should ha,c been made. (ii) vary as 1t considers appropriate the decis ion appealed against; (iii)suspend the operauon the decision appealed aga1ns1 if. being a decision ,uc h as is referred in subsection {I), it has not alrcad) been sta}ed under secuon 121. and remit the cause. wuh or wllhout directions. 10 the Industrial Commissioner, the Industrial Magistrate or. as the case ma} be. the Industrial Registrar {A) for report 10 the Commission as constituted for the purpoi.cs of the appeal. or (B) lo proceed according Lt1 law; as the Commission considers appropriate" II is appropriate to cue some comments made b} 1he Prci.ident. 1n granting lca\e to the A \\'U to appeal this dcc1s1on 10 a Full Bench of the Commission. as those comments provide a succinct summary ot the h1stol') of the maucr - "II is common ground that the operation of the business of Queensland Cotton C:orporallon is seasonal and 1s earned on m several widespread locations. It was also common ground that the \\Orkforcc con\1sted of a small number of pcnnanen1 emplo)ees (24 at the time of appro, al of the EFA) and about 130 seasonal workers \\ho worked from about March to Jui) each )Car Negotia1ions "ith respect to the EFA ,,ere held in October '1.o\ember 199 -1 \\hen onl) the pennancnt \\Orkforce \\as employed. As was necessary. the l: F/\ ex tends not only 10 them but also to ,casonal \\0rkc~ \\ho ma) be emplo) ed 111 future ~eason~. The EFA was voted upon b) the 24 pennanenl employees in December 1994 and oppro\cd by 1.5 ,otes 10 9. It is alleged that comparative!) seasonal \\Orkcrs arc disadvantaged by the tenns of the FFA. II is common ground that the appellant llnion \\35 not 1mohed m the nego11a1ion,. being unaware of the proposal. Ju~11fica11on for non- invol\Cmcnt of it was said to be that enquiries amongst the pennanent \\0rkforce had foiled to reveal 311) persons m the pennanc111 workforce were members of it. ·1 here is some C\ idcnce that al least one ma} ha\c been a member at rclc\ant umes notwllhstandmg the negative enquiries. There was matenJI before the ('omm1s\loner that the llnion had an historic connectron "Ith the a,\ard g0\Cmmg seasonal cmplo)CC~ and contact 111 previous) cars \\ ith the respondent in that connection. 17477 1D0( -- 1 of 2 -- 16 88 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE ( 15 December, 1995 The principles relating to the granting of leave to appear to a Full Bench are set out in Re: Security Industry (Contractors) Award ( 199 1) 136 QGIG 585 . It is submitted that the applicant is entitled to leave because an important question of principle arises as to the appropriateness o f approval of an EFA in a case where the workforce is swelled on a seasonal basis but th e EFA is approved only by a significantly s ma ller group of pennanent employees especially where it is alleged that seasonal workers are relatively disadvantaged by the tenns of the agreement. It was sub mi tted , and the propos ition was nol dissented from by the respondents, that other seasonal industries may encounter simil ar situations. It is my vie\\ the case involves a matter of such im portance that an appeal ought lo be brought in the public interest. The granting of leave. of course, does not indicate any preference fo r one view over the other so far as the merits of the appeal are concern ed .". We find it necessary to address the question raised by the Preside nt as it go es lo the fact that in voting to accept the terms and condi ti ons of the Agreement, some 24 fu ll-time employees exercised a vote. whilst seasonal employees. who comprise the majority of the workforce during a certain period of each year and on whom the Agreement impacts, were excluded from this process. The Commissioner at first instance was sa ti s fied. upon receiving submissions from the applicant, that "A majority of employees employed by the employer on a da te not earlier than seven days before the application was mad e voted to accept the proposed En terprise Flexibility Agreement (s. 180(1)) ." A plain reading of this section shows that no more or less occurred than a strict adaptation of this provision by the Commissioner. At the time of the negotiation and voti ng on the Agreeme nt , the o nl y persons to be covered by the Agreement employed by the applicant were the 24 aforementioned employees. 1-lo,~ever. it appears from the \\Titten decision of the Commissioner that no further consideration "as given to the facts surrounding the disparity in numbers between those who voted fo r the agreement and those who were excluded from the agreement. In considering the situation regarding those employees (the seasonal workers) whose conditions of employment are 10 be covered by the Agreemen t. we would make the fol lowing observations:- We ackno\,ledge that logistical problems arose for the emplo}er in fo nnulaung this agreement in that, at the t im e of negotiations, seasonal workers were not employed at the various s it es. The industry in question is different from many industries. The difference lies in the fact that th e bulk of the ,,ork force in the induslr) is season al by nature. The " high season.. for this workforce occu rs generally between the months of March to July each year. Therefore, on a yearly basis. this represents a regular pauem . Proport1onally, 84% of the "high season.. \\Orkforce are seasonal as against 16% of the .. high season'· total being regular, pennancnt e mployees. Of that 16%, being 24 persons. 15 voted to approve the agreement. s 181(2)oftheActstates:- ''The Commission may refuse 10 approve implementation if satisfied thai approv ing implementation wou ld be against the public interest because of exceptional circumstances''. We appreciate that at the time the vote on the agreement was taken the employer was required by the Act to limit the vote 10 the 24 emp loyees who voted. In thi s respect there has been no non - compliance with the Act. Whilst it may have been less convenient, the vote could also have been arranged for the "high season" when most casual employees were engaged. The question which arises under s.1 81 (2) of th e Act is whether approval would be against public interest because of exceptional circumstances. In relation lo public interest, it was said by Mason CJ, Wilson and Dawson JJ in Queensland Electricity Commission and Others Ex Pane Electrical Trades Union ofAustralia 72 ALR I at page 5:- '·Ascenaining in any particular case of where the public interest li es will often depend on a balancing of interests, includ in g compelling public interests, and be very much a question of fact and degree.''. In relalion to the question of exceptional circumstances, in the Enterprise Flex ibili1 y Agreement Test Case Decision at page 4 2, the Au stralian Indus trial Relations Commission (AIRC) refers to the submission by the ACTU in relation to situations where agreements are made with a limited number of employees with th e intent of subsequently applying the agreement to a much larger work fo rce. Al page 43 of the decis ion the AIRC said :- "The Commission will adopt a cautious approach to the use of its power under subsection 170HC(3) having regard to the clear legislative intent that such a power o nly be exercised in exceptional circumstances. l loweve r. in our view it is ne ither appropriate nor practical to defin e what would constitute exceptional circumstances. The detennination of this issue will depend on the circumstances of particu lar cases.". Thus the ques ti on which we have to determine in relation to s. 18 I(2) of the Act is a question o f fact and degree and depends on the circumstances of the particular case. In this particular case the \0te of the 24 fu ll-time employees "ill be binding upon about 130 seasonal workers. That in ou r view constitutes exceptional circumstances in this particular case and furthennore we co nsider it is against public interest that in the coniext in question such a large number of seasonal workers should he bound by th e vole of such a lim11cd number of full-time employees whose vote was split 15 - 9. We are therefore satisfied that th e approval of the subject agreement was aga inst the public interest because of exceptiona l circumstances. Whil st a di scretion exists under s. 18 1(2) of the Act. we are c learly satisfied, under the particular circumstances of this case. that the decision to approve implementation of the agreement was erroneous. It should be clearly understood that each case has to be detennined on its 0\\11 circumstances. It must also be understood and accepted that every agreement is, during the course of its lifetime. li kely to cover some employees who did not take pan in the vote. The ci rcums tances of the instant case are more exception al th an that. In the instant case it was well known th at a large number of seasonal employees \\ OU!d be engaged each year in addition to the full-lime emplo}ees. Wh ilst the make-up of the seasonal workforce was not known, it is probable that a percentage wou ld work each year. In view of the decision we have made, \,e find it unnecessal'} to consider the other submissions of the appellant. For reasons aforementioned, pursuant to s .1 20(8) of the Act we allow the appeal. We find some difficulty in detem1ining exactly what fonnal order \\e should make. The circumstances of this case are such that it is not appropriate to accept any undertaking as to the agreemen t's terms under s. 18 3(2) 17477_1.DOC ( . I I 15 December, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE nor to ~mend the agreement pursuant to s.183(5). It is also not appropriate under the lastmentioned subsection for us to give the perso~s who \\Ould be bound by the agreement an opportunity to do what 1~ ne_cessary to enable approval since we have not made our detcnn1? at1on on the basis of the contents of the agreement. We cannot md1ca1e what changes to the agreement would be neccssarv to enable approval, and a further vote by the employees at this t im~ "?uld apparently involve the same 24 employees in order to com ply wi th the Act. Bearing in mind the basis upon which we have detenn ined this app~~I. our fonnal order is that we uphold the appeal. set aside the dec1s1on appealed against and refuse to appro\ e implementalion of the agreement. Mr Low _ submi ts that in these circumstances we make a rccommendauon tha1 the employer maintain wages and conditions und~r the agreement for pennanent employees \,hilst negotiations con11nu~ . W~ appreciate that our decision ma) cause some practical d1f~cu_lues s mce the appellan t_ made no application to stay th e operation of the agreemen t pending the hearing of this appeal. Havi~g upheld the appeal, v.e consider it inappropriate to make an) _spec ific recommendations of the nature sough t. We also cons id er _that th ere is no practical course reasonably open to us under the prov1s 1ons of th e Act to deal with any difficulties which arise from the upholding of this appeal. The Commission orders accordingly. R.W. BOUGOURE. Commissioner. R.E. BEC HL Y, Commissioner. D.A. SWAN, Commissioner. Appearances :- Mr G. Low for The Australian Worke rs' Union of Employees, Queensland. Mr J Jones for Queensland Cotton Corporation L1m11ed Operative Date: NIA Decision - Enterpri~c Flexibilit} Agreement - Queensland Couon Released. 30 November 1995 156666- 121 1689 17477_1 DOC -- 2 of 2 --