Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Queensland Confederation of Industry Limited, Union of Employers and Others [1995] QIRC 576 (1995) 150 QGIG 1188

1I 88 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [10 November, 1995 ## ######## ########## ###### # ########### ########### ##### QUEENSLAND INDUS TR IAL RELATI ONS C(}fv!MJSSJON Industrial Relations Act 1990 s. _144 - applicat ion for variat io n Aust ra li an L iq uo r. Hospitality an d Misce ll aneous Workers Union, Queensland Branch, Union of Employees AND Queenslan d Confederation of Industry Limited, Union of Employers and Ot hers (No. 13 766 of 1995) KINDERGARTE N TEAC I IERS' AWARD - STATE COMMISSIONER NUTTER 26 October 1995 Term in ation of Employment, Introduction of Changes, Redundancy - Termination of Emp loyment Provis io n - Insertion of Clauses 13 and C of the Policy Sta1ernent - Claimed Inconsistency with the Child Ca re Industry Award - State - Arb itralcd Matter - Appl ication Granted. DECISION The Austra li an Li quor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Emp loyees (A LHMWU) seeks the in 1roduction into the Award or Clauses B and C of the provisions contained in the Po li cy decision of the Commission dat ed 16 June 1987 with respect to Termination of Employment, Introduction of Changes, Redundancy (TCR). The appl icant sought to reta in the present provisions in the award in respect to notice peri ods on terminat ion. Those provisions provided for four weeks notice in writing to be given by the employee and the employer or paid or forfe ited as the case may be . T he app lication in its current form was opposed by Mr Molo ney on behalf of th e Queensla nd Professional Child Care Ce nt res Association and the Child Care Cen tres Assoc iation of Queensland. His submission was that t he full prov1s1ons in the Po l icy statement (including the no ti ce periods) should be inserted if the Award was to be varied to include TCR provisions. Mr Spriggs for the Queensland Assoc iat ion of' Teachers in Independent (Non-Governmental) Schools. Un ion of Employees (QA TIS) supported the application bu t opposed the position taken by Mr Moloney. Mr Garske for the Queensland Confederation of Indust ry Limited, Union of Em pl oyers (QC!) d id not oppose the app lication bu t opposed the proposal hy Mr Mo loney. Mr Reed for the applicant submitted that 11 has long been accepted by the Industrial Relations Commiss ion and its predecessor, t he Industrial Conciliation and Arbitrat ion Commission of Queensland, that redundancy provision ought to be inserted in awards lo ameliorate the lraunrn and dislocation suffered by em pl oyees in cases of retrenchment. Sec 125 QGlG 11 19 He referred 10 the Federal TCR case where. he sa id, the Commission made it clear that severance pay did not relate· to the requirement 10 search for another job or to tide an employee over during periods of unemp loyment. bu t was rather ··compl!nsation fo r non transferable credits and inconvenience and hardship irnposcd on employees:'. See ( 1984) 294 CAR 175 at 2 19 and 220. Mr Reed submitted that the rationale in respect to normal term ination provisions as compared with retrenchment provisions was quite different an d that there had been l'r<!quent dev iation from the Commission standard in respect to the ordinary termination provisions. He stated that the present Notice of Termination provisions in the Award were in line with other awards covering teachers in the private sector. A need existed, he said, to insert the "redundancy.. provisions to protect employees who suffered in that sitmllion. The Commission was advised th at --redundanc} •• provisions we re included in the Chi ld Care lndust r) Award - State (CCIA). the other award covering employees in this indl1stry. Mr Spriggs stated that in the particular circumstance, of this case. he supported the application. He stated that a Fu ll Bench decision was pending on this award and the CCIA in re lation to Award coverage. llowever. at the present tinie. his union was still a party to and had members covered by the Aw;mL 16993_!.DOC I0 November, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1189 I lis union recognised the concerns of the applicant and their desi re to have " redundancy" provisions spelt out in t he Award. He stated that the posit ion of his union in this matter was without prejudice to a position they might adopt in other cases. Mr Spriggs opposed any change to the Notice of Termination provisions currently in the Award. Mr Spriggs put two possibl e alternative proposals if the Commission was not disposed to grant the applicalion in its present form. The fi rst was that QA TIS members be excluded if the notice period was to be varied. The second was that the matter be held over until t he Fu ll Bench decision was known. Mr Moloney stated that his clients had no o bj ection 10 tJ1e insertion of the provision in the TCR Statement of Po licy previously referred to but was opposed to insertion of only part of those provisions, He stated that the n on insertion of t he Notice of Termination provisions wou ld result in employees under the CCIA having different conditions to th at of employees under this Award when they could be working along side each other in the same establishment. Mr Mo lon ey's proposal was that the notice of tenninalion period by t he employer should reflect the Industrial Relations Act 1990 requirements (s. 293(2)) but that this period shou ld also be required of employees wi th forfe itu re of salary if not given. Mr Moloney referred to the history of the Award in question and ilc; previous relationship with leaching awards. He staled that the position had tota ll y changed and t.hat many of the employees are now employed in long day care centres. Mr Moloney recogn ised that he did not have an application before the Commission but staled t hm t he Comm iss ion had wide powers un der s. 32(3) to grant whatever relief it considered appropriate, irrespective of what 1s actua ll y claimed. I accept that view. In reply to a question from the Commission Mr Moloney acknowledged that to grant his request would resu ll in an inconsistency between th is Award and the CC !A bu t stated that this inconsistency wou ld be small and that hopefully the awards wou ld be brought up to date when the Full Bench decision was known. Mr Garske stated that his clients would happily accept any clce,sion of the Commission on the app lication lodged in the Commission. However, th is was without prejudice 10 any position they might subsequently take pursuant to the decision of the Full Ben ch on the CC IA an d the Award. However, Mr Garske stated that his clients employed teachers under th is Award who were employed in pre-schools attached to non-governmental schools and they wished to reta in the present Notice of Tcnninalion provisions in the Award. According. the proposal of Mr Mo loney in regard to that matter was strenuously opposed. Mr Garske stated that if the Commission found merit in Mr Moloney 's submissions, it might consider the options proposed by Mr Spriggs. Conclusions I have given this matter considerable thought. One matter canvassed was that a decision could be de layed until the Full Bench decision on th is Award and the CCIA in re lation to coverage is known. I do not favour this opt.ion . The result would be that employees made redundant between the date of operation of this decision and the Full Bench decis ion and perhaps for some longer period would not have the benefit of having redundancy provisions in the Award. To delay the decis ion would be unfair to those employees. ·n1e Fu ll Bench TCR Policy decision in 1987 was intended to give some minimum entitlements to employees in respect to cessation of employment. However. there have been many situations where the ful l provisions have not been inserted in to an Award. The most noticeable has been the non inseriion of the Termination of employment provisions par1icularly in re la 1io11 to the period of notice. Mr Reed aptly referred to the Fcde 1·al TCR decision when he submitted that different crileria ex isted lti r normal terminat ion and severance payments based on redundancy. No submissions or evidence is before me to indicate that the present notice periods in the Award have caused difficu lty or harm to responden ts. In fact, the respondents represented b} Mr Ga rske wish to retain i t. T he notice period imposed on employers is. of course, su~ject to the requiremen ts of the Act. Pending the Full 13ench decision in respect to award coverage and other matters re lating to this Award and the CCIA. I am not disposed to altering this provision. The submission of Mr Moloney is that by not so doing I will be leaving an inconsistency between this Award and the CCIA where employees may be working side by side. The inconsistency exists now . I lowever, by insertmg the provision proposed by Mr Moloney another inconsistency in conditions wi ll be created in place of the inconsistency wh ich already exists. This is not appropriate. II is acknowledged th at this matter may 11ccd to be revis ited in the light of the Full Bench decision. Accordingly. I gran1 the appl ication and so order. 13. J. NUTTER, Commissioner. Appearances: Mr R. Reed for the Australian Liquor. I lospitality and Miscellaneous Workers Union, Queensla nd Branch. Union of Employees. Mr J. Spriggs for the Queensland Association or Teachers in Independent (Non-Governmental) Schools. Union of Employees. Mr I'. Garske for the Queensland Confederation of Indust ry limited. Union of Employers. Mr L. Mo loney of Livingstones Australia for the Queensland Professional Ch ild Care Centres AssQcialion and 1he Chi ld Care Centres Assoc imio n of Queensland. Operative Date: 30 October 1995 . Decision- TC R Released: 26 October 1995 ######### ############################################# -- 1 of 1 --