Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Queensland Confederation of Industry Limited, Union of Employers and Others [1994] QIRC 513 (1994) 147 QGIG 725

724 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I 4 October, 1994 14 October, 1994] 149942- 55 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 725 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMM ISSION Industrial Re/a1ions Act 1990 s. 144 - application for variation Federated Engine Drivers' and Fircrncns' Association of Australasi a Queensland Branch. Union of Emp loyees AND Queensland Confederation o f Industry Limited, Union of Employers and Others (No. 8 747 of 1994) CI V IL CONSTRUCT IO N, OPERATIONS AND MA I NTENANCE GE!\ERAL AWARD - STATE COMMISSIONER BO UGOU RF. 5 October 1994 Redundancy - Reference to original application before a Full Bench of the Commission - Respondent asks that current application be referred to a Full Bench - Applicat ion refused - History of current provision - Provisions of clause 2. 7 more generous than standard provisions - Application refused. DE CIS ION This is an application by The Federated Engine Drivers' and Firemens' Association of Austra la sia Queensland Branch. Union of Empioyees (F.E. D F.A ) to alter subclause (I) of clause 2.7 (Redu ndancy) as con tained in the Ci vil Co nstruct ion , Operations and Maintenance General Award - State and to insert in li eu thereof the followmg:- -- 1 of 2 -- 726 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE I 14 October, 1994 '·( I)No tw ithstanding th e provisions contained in clauses 2.1 and 2.2 relating to redundancy, t he following provisions shall apply to employees engaged on Civil Constn1ction Work.". The statement of facts and issues attached to such app lication is as follows:- " I. The Clause which is the su bj ect of this app li cation was inserted int o the Award by a Full Bench of the Commission wi th effect as from the 18 February 1994. 2. The new clause was intended to provide for em pl oyees engaged on civil construction work, redundancy provisions consistent with th ose which currently apply nationally in the Bui lding and Construct io n lnduSlry. However, when drafting the proposed variation the Un ion has erroneously referred to '·termination of emp loyment" as we ll as redundancy. 3. The claim herein ~eeks to correct that error by delet ing from subclause ( I), reference to 'te nnination of employment'. 4. The appl icant respectfully reques ts th at the u~ua l period of notice in respect of this ap plica ti on be waived and that the matter be set down fo r hearing at the earliest opportunity. 5. Such other facts and issues as the Commission may deem appropriate.". The above statement of facts and issues ou tli nes the history of t he matter and the reasons for t he applicat ion . Mr .I. Coogan (F.E.D.F.A.), in his submission, outli ned the basis for the application. He indicated that the appl ica ti on see ks to ensure that an employee who is tem1i nated by the employer is given pa id not ice in addition to the redundancy payment set out in the Award. He referred to an instance in which th e employee was tenninated due 10 completion of a j ob hut was only paid th e re du ndancy payment set out in the Award. Mr G. Crompton for The Australian Wo rkers· Union of Employees. Queensland (A.W.U.) supported the applicatio n. Mr M. Pa ui fo r the Queensland Confederation of Industry Limited. Union of Em pl oyers (Q .C.1.) opposed the applicat ion on the basis th at the existing Award provision having been in serted by a Full Bench of the Commission ( 14 6 QGIG 17 ) the present applica ti on should also be referred to a Full Bench. I would firstly note that a provision to the effect of s. 33(4) of the lndu:;trial Conciliation and Arbitration Act 1961 does not seem to now appear in the Industrial Relations Act 199() ( th e Act). Secondly. a perusal of the Full Bench decision ( 146 QGIG 17 ) which made the variation in question indicates that the specific issue, the subjec t of the cun-ent ~pplication, was not actually arb it rated upon by the Fu ll Rench. In the lastmentioned decision. the Fu ll Bench only arbitrated in re lat ion to a q uestion of re trospectivity. The issue now in dispute was agreed between the pa rties in the Fu ll Bench matte r. In those circums ta nces I do no t propose to se .: k approval to refer the matter to a Full Hench. rvtr T. Coombes for the Metal Trades In dustry Association of Australia. Queensland Branch. Union of Employers (M.T.I.A.). dur in g the course of h is sub miss ion opposing the applica ti on. dea lt with the history of the exis ti ng redundancy provision in the Award and pointed out that the provision was in serted d ue to the un ique employment patterns in the. in d ustry. He submitted that in pa st cases th e Austra li an Industrial Relat ion s Commission (AI RC) did not accept th e necessity for notice requi rements but had included a redundancy fommla which is more generous than the standard Tennination. Change and Red undancy pro vi sions. He pointed ou t that th e AIRC had ex tended the tradi tional concepts of redundancy to include an employee·s res ignation in the case of t he Hu ilding Construction Industry. Mr Coombes submitted that to grant th e present application would amount to double dippmg in that having already benefited from a more favourable redundancy provision, employees would now also receive notice as set out in t he Award generally. Ms C. Bray (Crown) stated that she had no submissions and was leaving the matter for detem1ination by the Commissio n. In brief terms the current Award provisions are to t he following effect:- I. Clause 2.1 provides that excepting in cases to which clause 2.2 apply. all employees except casual employees shall be ent itled to receive from and give to the ir employer one weeks not ice of termination of employment. 2. Clause 2.2 provides that except when clause 2.1 app li es, the t enn s of the Statement of Po li cy of this Commission in relation to Termination. Change and Redundancy ( 125 QGIG 11 19) shall apply. 3. Clause 2.7, which is the c la use now under consideration, provides that notwithstanding the provisions contained in clauses 2.1 and 2.2 relati ng to termination and redundancy, ce1tain stated provisions shall apply to employees engaged on civil construction wo rk . Whilst th e matter could. in my opinion, have been more clearly stated the effect seems to be that clause 2.7 applies on ly to t he civil construction industry which industry is also excluded from the benefits of clauses 2.1 and 2.2. The effect would seem to be, as Mr Coogan states. that employees in the civil construction industry who are tenninated are only entitled under the Award to the redundancy provi~ions of clause 2.7 which arc more generous than the standard redu ndancy provisions. However, it is relevant to note that since the Commission hea rd argumen t which resu lted in clause 2.7 being inserted in the Award, s. 293 has been inserted into the Act. The resu lt is that certain mini mum periods of no tice apply in th e circumstances outlined in t he Act. but subject to the exclusions outlined in s. 290 of the Act. The exc lu sions are:- "(a)a casual. p,, rt ti me or seaso na l employee: or (b) an employee engaged by the hour or day; or (c) an employee engaged for a specific period or Lask.". The effect of a ll these provis ions would seem to be that unless fa ll in g within an exclusion aforementioned, an employee in the bu ilding construction industry would be entitled lo the no tice prescribed by the over-rid in g provisions of the Act, notwithstanding t he exclusionary provisions of clause 2.7( I) of the Award. The difficu lty for employers is that having agreed to the more generous re dundancy provisions of clause 2.7 on the understanding that less beneficial notice provisions wo ul d apply, they are now faced w it h the notice provisions im po sed by t he Ac t. Mr Coombes submits that to accede to th e union appl ication amounts 10 "d oub le dipping'·. He stated that for this reason his Associat ion is currently seeking from the relevant Federal Minister certai n exemptions fro m notice periods under the industrial Relations Act 1988 (Commonweal th ). 14 Octobe r, 1994 J QUEENSLAND GOVERNMENT rNDUSTRIAL GAZETTE The pr_oble_m for the union is th at wh ilst t he Act provides for certa in notice, It al~o _provides for exemptions wh ich have particular relev an ce 111 the buildmg construction industry. In particular. the Act excludes from the notice provisions, em pl oyees engaged by t he hour or Jay or fo r a specific period or task. As I have already indicated, clause 2. 7 provides for the building construction mdustry a more generous redund an cy provision than the standard pro:--is ion. In particular, under clause 2.7 an employee who resigns quali fies fo r the benefit. I can understand that under the un iqu e circumstances of the building construction industrv that this is so, however, I fin d it undesirable and confusing that- it is still tem1ed a re dundancy payment, in all cases. To grant the applicat ion wou ld make the provision of clause 2.7 even more generous to certain employees. Upon th e material before me . th e app licant h as not satisfied me that this should be so. Wh il st I cannot exclude the applicab ili ty of s. 293 of the Act which may benefit some employees, I am also not satisfied, upon the material before me, that I sho~ld make an Awa rd provision fo r employees excluded by s. 290 of the Act. The Le gis la tu re having seen fit in ve ry recent umes, to exclude certain em pl oyees from the no tice prov isions of t he Act, I consider substantial reasons would now be necessary to justify an award provision which is more generous than the Act and wh ich is generally opposed by the respondents. In mv view s uch reasons have not been placed before me. • T he app lication is therefore refused. The Commission orders accordingly. R.W . BOUGOUR E, Commissio ner. Appearances:- Mr J. Coogan for the Federated Engi ne Drivers· and f iremens· Association of Australasia ()ueensland Branch, Union of Emplovccs (FEDF!\). - Mr G. Crom pton for The Austra li an Workers ' Union of Employees Queensland (A WU). Mr _M. Patti for the Queensland Confederation of Ind ust ry Limi ted. Unu)JJ of Employers (QCI). Mr T.. Coombes for t he Metal Trades Industry Association of Au stralia, Queensland Branch, Union of Employers (MTIA). Ms C. Bray for the Crown. Oper at ive Date: NIA Decis ion •- Red undancy Re leased: 4 October 1994 727 -- 2 of 2 --