Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees [1995] QIRC 9 (1995) 148 QGIG 217

2 16 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (27 January, 1995 27 January, 1995) QUEENSLAND GOVE RNM E T I NDUSTR IAL GAZETTE 2 17 #############ll##ll###ll###ll###ll##ll#llll###ll########ll#####/1# QUEENSLAND lNDUSl RIAL RELA f'IONS COMMISSION lndus1r1al Re/a,ions Ac, 1990 s. 46 - appl icntion for reopening ,\ ustr.ilian l 1quor. Ho~pi1ali1y and Miscellaneous Worker; Lnion. Queensland Dranch. Union ofr.mplo}ee, 1\ND Australian Municipal. Administrative. Clerical and Scrviccs Union. Cemral and Southern Queen~lnnd Clerical and Adminbtrative Branch. l,;nion of FmplO)ccs (So Rfr.Jof/989) CLERK 'A WARD - II OTELS 1\ 'ID R EG I TERE0 CU lB. -ST ATE CO MM ISS IO NER OOUGOlJRI· 13 January 1995 Reopening - ' c" Award - 01e:rlapping of coverage bCl\\CCn 2 a\,anl~ - Amended classification structure Reference to rclc,an1 pa~t decis ions on rcopenings - (i rou nds for grant ing a reopening - ALI IMWU to be given opportUllll) to be heard - Apphcot1on for reopening granted \,fauer rehsted for hearmg on 23 Fcbruilr) 1995 at 9.30 a.m. DFC ISION By applicalion liled on 4 No,ember 1994 the Aus1ralian Liquor. Ho~pi1a li1y and Mi~eellaneous Workers Union. Queensland Branch. Union of EmplO)ccs (the ALIIMWU) seeks to reopen Case No . R 137-3 of 1989 "hich rcsu hed in 1he granting of a new award emi1led ··ctencal Award - Reg1 s1cred and Licensed Clubs State ... opera1i\,e from 16 August 1994. It 1, submined that there is some o, crlapping of coverage of employees bcl\\CCn the lastmcnt1oned award and the Clubs Etc. Employees· Awurd - South-EaM Queensland. In lhis regard the s1a1emc n1 of facts and issues anached 10 lhe reopening npplica1io11 slate:- .. 4. The classificmion struc1urc. cla use 3.2. of the Clerical Award purports to cover employees already covered by the cla!>sification structure defined at clause 4( I) of the Clubs A"ard . 5. This dup lic11 1io n of award coverage for the same emp loyees by Awards \\ith different conditions of emp lo)'meni. i:, not in Lhc public interesl 6. Disputal iorr has been created a1 1h c workplace where employers hove moved emp loyees who \,ere covered by the Clubs A\\ard into the Clerical Award·· Mr J. Spriggs. for the ALI IMW U, infom1cd me tha1 when Case Rl 37-3 of 1989 originally came before the Commission his union ,,as rcpresen1ed. however. since the applicahon lht!n sought 10 rcn.:ct in the proposed new award the "clerical structure .. ,1hich had been determined by this Commission in another case. his union had no in1erest in the proceedings and \\ i1hdrew from further proceedings. Howc,cr. in due course "hen the new 3\\Jrd. cmi1led Clerica l Award Registered and Licensed Clubs - State. was made 1hc c lassification struclure and relevant cla~~ifica 1i on defini ti ons were somewhal difTerent to 11lmc ou1lined in the original application. Thi s had resulted due to amcndrnentS subm111cd at the hcarmg bul not scr\ ed on the AI.HM\Vl/. Mr Spriggs 1h creforc subn1111ed that whil st his union was aware of the co nten1 s of' the original application and de cided not to further appear based on 1he contents of such ongmal applica1ion. his union had no no1iec of the amendments \\htch included rnanl!rs objecuonable to h is union. It seems not 10 be disputed that the amended application. a, finally approved, doe s differ $ignili can1 ly f'rom the original appli ca1ion. Mr Spriggs hib rderred to the specific areas of concern for his union and has referred to alleged areas of"o,erlapping.. between the 2 awards concerned. In support of his applicJt1on for reopemng. Mr prigg~ has re ferred to sc , eml past decisions of this Commission. He referred to a decision in the matter of lhe Colton Ginneries. Colton Oi l and Other Seed Oil Manufacturing Employees' Award - Stale ( 122 QCIG 517) ,1hich involved somewhat similar facts. In 1ha1 case Birch C. said:- ··Taking all 1h11 submissions into considcrJtion, I am satisfied 1ha1 the ramifications of 1he applica1ion as original!)' framed were significamly different to th ose which nowcd from 1he application as nmendcd at the hearing. I ha"e concluded that the grounds and reasons g" en b) the applicant do not ,upport the c:\tent of the , ariation and that no in1 crested union or pe rson could have reasonab ly fore seen that the appli cation wou ld result in the varia ti on which llowed as a result of the application be111g , aried at the he.iring:·. Commiss10 11 er Birch granted a reopening in the las1mcntioncd C11)C. -- 1 of 2 -- 218 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 127 January , 1995 There is a strong public interest in Lhc fi nal ity of proceedings which have been heard and dete rmined on the merits and this Com mission has . in the past, made it plain t ha t a sig nifican t reason has 10 be estab lished to j ust ify a reopen ing. In !he mallc r of the Teachers Award - St::itc (86 QG IG 611) at p 613 a Full Bench of this Comm ission sa id:·- "T his Com mission holds the stro ng view that a mallc.r which ha~ been fully argued by a ll the. part ies. and in respect of which a dec ision has been given on the me rits. shou ld o nly he reo pened if it can be sho wn t hcll som e vi1<1I and rdevant material which was not avai lab le at th~ hea ri ng. is now av,,ilablc and that t h~ Ctinnnission h as made an olw io us error o r created clear anoma lies or has been in some ma nner mi skd in arriving a l its or igina l d ec is ion ." . In Re FED FA (Qld ) ( 1987) 126 QGIG 340 Moynih:ui J .. 1he th~n Prcsidcn l. made it pl<1 in that a reopen ing of a proceed ing d ete rm ined on the me rits should not he granted unless a ~ignilicant reason was csta bli~hed. Many of the dec ided cases invo lve app licatio ns for rcope ni!lg fo llowi ng upon the l'omial hearing and d eterm in ation upon the meri ts after all interested part ies h,m:. had an amp le opportunity to place all rek:van t material be fore the Comm ission. Past dec is ions show th at in those case s it is not ea sy to succeed in a reopening app lication, However. some decis ions such as that by Bi rch C. in Co tton G inncr ies. Collon O il and O ther Seed Oil Manufacturing Employees· Award - State (aforemen tioned) indicate th at in cases involving conse nt vH riations, where the Co mmiss ion has no t been call ed upon to ma ke a fomial de1cm1ination, a ~li ght ly more 10 lcr an1 atti tude has been adopted in the case of reopcn ings. In my view this is a ppro priate bearing in mind that parties are encouraged to conci li ate on matters before this Comm iss ion and sectio n 92 o f the Act provi des that the Comm ission is govern ed in its dec is ions by "equity, g,ood con~cicncc and the substantial meri ts of the case. without regard to t echn icali ties or lega l fom, s and having rega rd Ill hnth t he int.:rcsts of the persons immed iate ly concerned and of the commu nity as a whole" . It see ms to me th at the ex ist in g co nciliatory practices o f this Commission shn ul d not be disco uraged. hom.:vc r. if as a result of concil iation, a consent award or variation is approved by thi~ Comm ission . and it is subsequently ~h0 \111 tha t the Comm ission may have been misled, made an error or crea ted an anoma ly (>r in cons istency wi th some other award prcw isi on. th en in approp riate circumstances , this Com miss ion should reopen proceedings to enable interested parties to make full submi ss ion, on the issue and ir neccssar) make such variat ion as is seen to be appropriate 10 co rrec t the s ituation. In my view it is in the i11 tcrcs1s of the persons immed iately concerned. and of the eonnn uni ly as a whole. that errors , ant•mal ies or inconsistencies ma de or created in award~ ~hould be corrected even if made by consenl as in this case. Likewise variatio ns made as a result o f the Commission bei ng misl.cd may be correc ted. In this case Mr Sp ri ggs submi ts that cert<1in dc li ni ti ons arc in fact be ing interp reted in the workplace in such a way as 10 create --o ve rl apping .. and incons isten cy bct\\•Ccn the 2 awa rds in question. Whet her the interpretat ion crea ting such --ov erlapping" or inconsistency is reasonab ly open is a mailer for fu rther subm issions. Wh eth,;r some further variation is appropriate to correct the perceived pro blem is also a mailer for lurther su bmission. It seems Lo me that ,f Mr Sp riggs· subm issions arc correct th1~ Comm ission by approvin g the consen t award ag reed between the pai1ics and being in somew hm differen t tenns to the applica ti on as original ly fi led may ha ve created anoma lies or incon sis tencies 111 rcla11on to the 2 awa rds in ques ti on under circumstances 111 which t he Al .HM\V lJ did not make su b1m ss 1ons in th e belie f tha t the pro posed application di <l not adverse ly effect the interes ts o f its members . In that situation I am sat isfied th at it is appropriate th at the relev ant proceedings be reo pened and the;\ LI IMWU be gi ve n an opport uni ty 10 be hea rd in relation lo the spec ific issues raised. The reopened proceedings will be listed for further hearing in relation to the issues referred LO by Mr Spriggs on Thursday 23 February 1995 at 9.30 a. rn. The Comm iss ion o rders acco rding ly . R.W. BOlJGOURE, Comm iss ione r Appearances:- Mr J . Sp ri ggs. with hi m Mr N. Murray, for the Australian Liquor, I lospi tali ty and Mis ce ll aneous Workers Union. Queens land 13 ranch. Union of Emp loyees. Mr D. O'B rien for tht' Austra lian Mu nici pal. Administrative, Clerical and Services Union, Ce ntral and Sou thern Q ueensland Clerical ,md Ad mi nistrative Branch. Un ion of Employees a nd the Federated Clerks ' Union o f A ustralia, North Queens land Branch. Union of Employees . Operative Date: NIA Decision - App lication for Re open ing Released: 13 Jan uar y 1995 ########## ###########1/####### ######################### # 27 Januar y, 1995) QUEENSLAND GOVERNM ENT INDUSTRIAL GAZETTE 2 19 -- 2 of 2 --