Bowman v Pioneer Concrete (Qld) Pty Ltd [1994] QIRC 638 (1994) 147 QGIG 1378

1378 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 December, 1994 ####################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act I 990 s. 175 - ap pli cat ion for re ins tatement Richard John Bowman AND Pioneer Concrete (Q ld) Pty I.Id f:\'o BJ 27 of I 994) CO MMISSION ER SWAN 14 Nove mb er 1994 App li cation for reinstatement - J urisdictiona l quest ion - Ext ens ion of T ime - Sec tion I 70 HA Industria l Re latio ns Act 198& (Cth) - Federal Award ·- Dispute Se11 lem e111 Procedures .... Unfai r Dism issa l Provis ions - Appl icability of State Legis lation •- Inconsistency - Adjust me nt of Indus tri al Relations ·- I LO Tem1ination of Emp loyment Co n vention - Appl ication refused on jur isdictional grounds. DECISION The Commission, in th is application. is asked to dctcnninc fi rs tl y, a jurisdic tion al point and s econ dly, in the cve111 that the aforementioned is d etermined in favour of the ap plica nt, an ex tension of ti me que stion . 130th of these points would need to be d ctc m1ined in favour of the app licant bc fore the Commission could consid er an app lication for reinstatemen t of em pl oyment (which is the primary th rust o f t hi s ap pl ication ). Clear !) , if the Commiss ion detcm1i ncd that it di d not possess the jurisdiction to hear the matter. the oth er questions become aca dem ic. In co nsidera tion o f factors of time and costing to bo th parties. and with thei r concurrence. the Comm is;ion dec id ed to hear subm iss ions on both points dur ing the course of the initial h0::aring . BR I EF RACKGRO l::'i D TO CLA l \-1 The appli cant commenced emplo yment with Pi(ineer Co ncrete (Qld) Pty Ltd (the re spon dent) on 20 February I 984. The relevant Award under wh ich the applicant was employed was the Concrete Batching Plants Awa rd 1985 (the /\ward) . This is an Awa rd o r the Austra lian Indus tri al Relations Co mm i,s ion (/\ IRCi made pursuant to the provisions of the Industrial Relations Act 1988 ( C't h) (the Federal Act). The app li cant was not a member of a Union at the time of d ismiss al Te nni nation of the a pp lican t's employment occurred on 25 March 1994. The applicant claims that his tem1in at io n was unfai r, harsh, un j ust and unreaso nable. JUR ISD ICT IONAL ARGUMENT Respondent's Su b mi ssions Briefly, the submissions of the respondent in c laiming t ha t the Qu eens land Ind ustria l Relat ions Com mi ssion (QIRC) does n ot have the jurisd iction to hear the matter were:- The Award in question contains provisions which provide a m echani sm for dealing with issues of tem1in at ion of em ployment. Such provisions incl ude : not ice provisions on tenn ination. payment in lieu of notice, time off du ring notice per iod. statement of employment, and a speci fi c provision dealing with s ummary dismissals. In the case of an allegation that an unfair di smissa l has occurred, the Award, in a provision under the heading of 'Disputes Se1tleme 111 Procedures - Unfl,ir Dismissals· /5. CONTRACT OF EMPLOYMENT (c) (vii)/, provides that - ( I ) As soon as is practi cab le atter the dispute or cl aim has ar isen, the employee concerned will take the matter up with hi s or he r immed iate supervi sor affording h im or her the op portun ity to remedy the cause of the d ispute or c laim. (2) Where any such attempt at se ttlement has fa iled, or ,vhere the dispute or c laim is of such a nature that a di rect discussion between the employee and his or he r immediate supervisor wou ld be inappropriate, the e mpl oyee shall notify a duly authorised represe ntati ve of his or her union who. if he or she considers that there is some su bs tance in the d ispute or c lai m. sh a ll forthwith take the matte r up with the em ployer or his or her represen t ative. (3) l f the ma tter is not settled it shall be s ubmiued to the Australian Industria l Relations Com mission wh ich shall en deavou r to reso lve the issue between the parties by co ncil iation. (4) Without prejudice to eit her party, work shou ld cont inue in accordance with the award while the matters in dispute arc be ing dealt wi th in accordance with th is paragraph.'' Based upon th ese A ward provis io ns. the responden t so ught to rely upon a decis ion of Qt RC (Philip Cl aude Dowl ing v CS R Wood Panels 1992 139 QG IG 81 7) (hereafter Do wling; and subse quent find in g from the President of the Industrial Relations Court fam issi ng an appeal on the point ( 1992 140 QGIG 690). These cases decide that. in esse nce. where a Fed era l Award c.ontains provis ions relat in g to dism issa l of e mp loyees , inclusive of obligat ions regarding the manner in which the ri ght to di smiss is exercised, any in trusion by a State Tribuna l (with diffe ren t Legislative ent itlem en ts for dism issed em pl oyees) would be seen to be ina pprop ri ately interfe ri ng with the adjustment of industria l relations made by that Federal Award. The res ul t ant inconsistencv wou ld effect ively ous t the j urisd iction of the State Tribuna l. Th~ dec ision under ap peal in Dowling was made in the knowledge that the app licant was unable to p ursue a rei nstateme nt claim before the AIRC as a consequence of the failure to find an interstate industrial dispute. Referring to provis ions of the State legis la ti on. Moy nihan J stated · 'Se ction 11. I I d oes not presc ribe particular conduct. it provid es a basis for the intervention of the Commiss ion in 2 December, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1379 ci rcum stances when emp loyment has been tenninated ". The Queensland leg islation d id not provide for procedural fairne ss que s ti ons to be addressed until 30 March 1994. The respondent saw the above memioned cases as being similar in fact to the matter at hand and sub mitted that those cases settled the point in comention. The respon de nt was aware t hat the applicant sought to rely, amongs t other thi ngs, upon an interpretation of Section I 70 HA of the Fe deral Act to arg ue that the inte nt of that provision assisted the applicant in seeking to have the matter heard wi thin the State j urisd iction. Section I 70HA states:- "SECT IOi'i 170HA ORDERS Ji\CO!'i SISTENT AWARDS AND 170HA On and after 26 February 1994, when the Te m1 ination of Em ployment Conven tion tak es e ffect any award or order of the Comm iss io n that is inconsistent with the requiremems of that Convention does n ot have effect to the extent of the inconsistency.'' (It hardly needs to be pointed ou t that the re fe rence in this section to 'the Co mmi ssion' is a re ference to the AIRC as de ta iled in S ec tion 4 of the Industrial Relations Act 1988 (C'th).) The respon dent noted that the relevant provisions of the Federal Act (includi ng Section 17011A ) we re not proc laimed unt il 30 March 1994 and tha t there was no provision in the Federal Act which retrospectively ap plied those provis ions. T he respondent s u bm itted that the use of the word '· whcc:n" in the abovemenlioned section of the Federa l Act merely sta tes when the prov ision is proclaimed - and this was not unti I 30 March 1994. The re.spondent argued tha t ' 'there was no such thing as proced ural fairness le gis lated as a requiremen t of conduct until 30 March 1994." In the event that there existed inconsistencies between the Federa l Act provisions (post 30 March 1994) and the Award in ques ti o n, then they could only be addressed as from 30 Ma rch 199 4. In the a lternative, were the Co mmission to fi nd tha t the applicant's sub mi ssions held me ri t. the res pond ent su bmitted that the Award provisions as they relate to questions of te m1 ination o f e mp loymen t is not com plete ly inconsistent w ith the Tem1ination of Em ploymen t Convention. Because of prov isions (cited ea rl ier) within the Award wh ich deal wi th employ ment te1minat ion, these wou ld sati sfy, in the main, the req uiremen ts of the Conven tion. Applicant's submi ssio ns The Award under which the applicant was emp loyed wa, a Federal Award. The Federal Act was amended on 30 Ma rch 1994 to pennil appl ications for reins tatem ent, some 5 days alter the date o f th e dismissal complained of. The applicant, being both an "em pl oyee" and having been ' •dismissed" from his emp loyme nt fel l at the outset within the category of persons able to make application to the QIRC for relie f. The appl icant was aware that prece dent ex isted with in the Quee nsland jurisd iction whereby the power to reinstate an em pl oyee co vered by a Federal Award cou ld be inconsistent wi th th<.: provis ions co nta in ed within Federal Awards whi ch gave the emp loyer the ri ght to tern1inate the services o f an emp loyee on the giving of a pprop riate notice and such inconsistency with a Federal A ward equated l0 incons istency with the Federal Act for the purposes of sect io n I 09 of the Const itution. Clause 5 o f the Award in question (namely 5 . Contract of Employment incorporating provisions relative to Te m1ination of Empl oy ment: Not ice of T ennination by Employee: Ti me off During Notice Period; Statement o f Empl oymen t; Summary Dismissal: Unfair Dismissal: Disputes Settlement Procedures - Unfair Dismissa ls; etc ..... ) prov id es a process whereby issues such as cla ims of unfair dismissal can be dealt with. However, in co ns idera tion o f this factor, it was claimed that the find ings o f the President of the lndustrial Co urt, Moyn ihan J in Dowling (aforementioned), which saw a similar clause in a Federal Award deemed to be appropriate for a dismissed emplo yee and the reby oust the jurisd iction of the Queensland Commission, could be distingu ished because of the particular circu mstances of this case and recent amendments to t he Federal Act ( name ly Sec tion 170! IA of the Federal Act which has been cited earlier). The applicant first d rew the attention of 1he Comm ission to the inappl icability of Section 5 of the Award in the particul ar circumstances of this case. One aspect of inapp li cability went to the applicant not being a member of a Union and thereby not being able to ''notify a duly authorised representative of his/her Union" as detailed in the section. Having alleged ly been su m mar ily d ismisse tl by his employe r, he no longe r exercised the rights of an ··e mp loyee" as detailed in the section. The provision of the Award in question merely conte mp lated a g ri evance procedure being pursued whi lst the employment relationship was in continuance. Given that his c ircumstances fe ll outs ide of those p ro visions, he was unable, in a realistic sense , to gain any ass istance from the Award provisions. T he applican t was not a party to the A ward and therefore e ven if the ap pli cant sough t the assistance of the AIR C, a ll it co uld have done is to attempt to reso lve the issue betwe~n the pan ics by way o f conc iliation. In relian ce upon Sect ion l70 HA of'the Federal /\et, the applicant c lai med that the prov isio n, dependant upon Sc he dule I() of the Tem1ination of Employment Conven tion, required that, amo ngst other things:- a val id reason mus t ex ist re la ti ve to ca pacity. co nduct and performance be fore d ism issa l: an emp loyee must be afforded an opport uni ty to de fe nd again st allegations made: a worke r wh o considers that his/ her employment has been unjustifiably tcnninatcd shal l be enti tled to appea l ag ain st tha t termination to an i mpania l body. su<.: h as a Co urt, labour tr ibunal, arbitra tion com mittee or arbitrator: the bodie s referred to above sha ll be empowere d to examine the reasons g ive n for the term ination and the other c.ircumstances relating to the ca se and to render a decisio n on whet he r the tem1ination was j usti fi ed. Th e app li cant poi nted ou t that, in considerati on of the abovementioned provision, as the Award and jur isdiction of the AIRC stoo d at the ti me, the employee could do little more (in t he eve nt that he cou ld go before the Al RC) than e nter inlo a co nciliation p rocess before th at body. The capac ity to render an arbitrated d ec ision on the ma tter was simply outside of the j urisdict io n of tha t body at tha t time. Article 10 of Schedule 10 of the Conven ti on s tates :- · '[f the bodies re ferr ed to in Art icle 8 of this Convention find that tenn ination is unjustified and if they are not empowered or do not lind it pract icable. in accordance with nationa l law· and practice. to decla re th e tcnn ination inv~lid and/or ord er or propose reinstatement of the worker, tbey shall be em powered to order payment of adequate compensation or such other relief as may be d eemed appropr iate.". -- 1 of 2 -- 1380 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 December, 1994 This type of re li ef was not ca pable of being awarded by t he AIRC at that poim in time. Art icle 11 of Schedule I Oof the Convention states that:- "A worker whose employment is to be terminated sha ll be entitled to a reasonable period of notice or compensation in lieu thereof. unless he is gu ilty or ser ious misconduct. that is. misconduc t of such a nature that it would be unreasonahle to requi re the employer to continue hi s employment during the not ice period .''. The appl icant's submission was that there were no allegat ions or misconduct made by the emp loyer against the employee. In this instance, it is my understand ing that the employee was paid fo ur week's pay in lieu of notice. Notwithstand ing that factor, the applicant submitted that the Awa rd was .inconsistent with the Convcmion in that it merely provided for the giving of one week's notice by the employer to a d ismissed emp loyee. In su mmary, it was submitted that Section I 70HA of the Federal Act has effect to in va lidate cl ause 5 of the Award to the extent o f the inconsi stencies referred 10. The app licant contends that, in respect of the per iod of 26 February 1994 (when Section 1701-iA became operative) to 30 March 1994 when the dismissal prov isions of the Federal Ac t commenced. Dowling was clearly dis ti ngu ishable. 17,e tenor of the newer provis ions in the Federal Act were beneficial to employees and s hould be co nstrued in that manne r. The applicant stated that ·'.....the em ployer no lon ger had Lhe un fettered right to 1em1 ina te the em ployment of Mr Bowman on or abo ut 25 March 1994. In such circumstances. the reinstatement jurisdiction of this Commission is en li vened. for it is no longer inconsis ten t with the tenns of an Award of the Al RC and therefore in this se t of circumstances, and it 's a window in ti me where thi s set of circumstances can only ar ise, and that is for tc m1i 11at ions o f persons covered by Federal Aw ards which occurred between 26 February and 30 March I 994 .'' CONCU!S IO ;"\ I have duly considered the subm iss ions of both the ap plica nt and the responden t. The re appear to be two limbs to the submissions of the applicant that need to be con s id ered . I. That the Award prov isions. as they stood at the ti me of d ismissal. did not rea listically affo rd the employee an opportunity to access an y form of re li ef with regard to his tem1ination (primarily because he was not a member of the relevant Union). T hcrdore. there was no adjustment of industrial relations under the Federal provis ion with which use of the procedures under the Queensland Act might interfere . It would then follow. it was sub mitted. that the deci sion in Dowling would no t prohibit access to the Queens land j urisd iction. I do not accept this proposition. There was a process ava ilab le. under the Federal Award. which afforded the employee the opportunity to process his c laim aga in st his emp loyer. To access this process . the employee had the right to join the Union which was party to the Award in question and which the Award recognised as the appropriate body to process his claim. The law did not preclude the e mployee from adopting th is course o f act ion. That he chose not to do so. is a situation of the em ployee's own making. That process in the. ;\ward (<>ut li ncd earlier) represents. in my view. the adj ustmen t of industrial relations env isaged by the Federal provis ions. In thi s context. the dec ision in Dowling remains appli cable to the circumstance, of this case. 2. That the effect of Section l 70HA of the Federal Act was that the rights and procedures available to the employee within the Award were struck down because they were inc,onsistent wi th the terms of the ILO Termi nation of Employment Convention. My understanding of the subm issions of the applicant is that, because the Award processes were therefore inoperative afler 26 February 1994 and the Federal statutory provisions relating to reinstatement/compensation etc. were not able to be accessed un til after 30 March 1994 in the Federal arena. it should follow that there wou ld be no in consistency with any Queensland leg is lation. Thus. at the ti me of dismissa l, the Queens land j urisdiction was able to provide reinstatement/compensation to dismissed emp loyees and the te st in Dowling wou ld not be infringed because there was no operative •industrial arrangemem' in the Federal arena from 26 February 1994 to 30 March 1994. In the ahsence of any ava il able explanatory materia l or case law relating lo Section I 70HA. I would determine as fol lows: The argumen t depends upon the assertion that the Federal Award provisions conferring rights on the employet: were inconsistent with the Termination of Employment Convention. In my view. the on ly relevant test of inconsistency is whether the provisions o f the Federal Award are directly incons istent wi th the provis ions of the aforementioned ILO Convention. The test is applied by exam in ing whether the Award seeks to restrain some activity wh ich is authorised by the Convention, or to autho ri se some activity which is forbidden by the Conven ti on. To the exte nt that it does either of those things. a provision of the Award does not have effect. An emp loyee to whom the Federal Award appl ies cou ld. in taking action relat ing to termination of employmen t. in the circumstances of this case. comply with the provisions of t he Federal Awa rd without breaching any of the provisions of the Convention. He may not. in doing so. be able to take full ad va ntage of the provisions of Lhe Convention but in fa il ing or being unable to do so. he doesn ' t breach the tenns of the Co nve ntion. Furthermore. in authorising such ac ti on by the emp loyee relating to termination of employment. the Award docs not seek to restrain the emp loyee from doing somethi ng the Convention a uthorises, nr seek to authorise so mething which the Convention forbids. Therefore. in prov id ing the e mployee with some . albeit limited avenues of redress, th e Award is not in consistent. in the relevant se nse , with the Convention. On the other hand, an emp loyer may. no t wi thstanding compliance with the Federal A wa rd conditions. breach the tc nn s o f ihe Conven tion (eg. if the employer did somethi ng authorised by the Award but forb idden by the Convention). To that extent. bui o nly to that exte nt, would the tem1s of the Award be inconsistent with the tenns of the Convention. To the extent that the Award con fers limited procedural rights on the employee, it is not inconsis tent with the tcnns of the Convention although not as advantageous to the em ployee as the Convention. In any event, it s ti ll remains the case that an adjustment of industria l relations was in existence. at t he relevant time. in the Federal arena. On that basis, I reject th e second limb of the argument advanced by the applican t. Hav ing det ennincd those points and thereby recogn ising the j urisd ictiona l po int made by the employer, it becomes unnecessary fo r me to detcm1ine questions of ex tens ion or time and reinstatement. I order accordingly. 2 December, I 994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE D. A. SWAN Commissioner Appearances:- Mr J Lawson for the App li cant Mr G. Power for the Quee ns land Confederation of Industry Limited. Un ion of Employers, with him Mr I. Pepper, for and on behalf of Pioneer Concrete (Qld) Pty . Ltd. Operative Date: N/A Decision - applica ti on re fused Released: 17 Novem ber I 994 ####################################### 13 8 1 -- 2 of 2 --