Automotive, Metals and Engineering Industrial Union of Employees, Queensland v Hunter Brothers (Queensland) Pty Ltd [1994] QIRC 456 (1994) 147 QGIG 189

188 QUEENSLAND GOVERNMENT IND US TRIAL G AZETTE [2 Septem ber, 1994 2 September, 19941 QUE ENS LAND GOVERNMENT IND US TR IAL G AZETTE 189 ####################################################### QUEENSLAND INDUSTRIAL RELAT IONS COMMISSION Industrial Relations Ac! I 99() s. 187 - notification of dispute Automo tive. Metals and Engineering Indu strial Union of Employees. Queensland AND Hunter 13rothers (Queensland) Pty . Ltd. (No. D402 of 1994) COMMISSIONER BLOOMFIELD 22 August 19 94 Redund ancy Payments - Claim for equality of bene fit - Question subrniued for Arbitration - Circ um s tan ces fo und to be differe nt - Question answered in the ne ga tive. DECISION By no tificati on dat ed 17 June 1994 the Automotive. Metals and Engineering Industrial Unio n of Em ployees, Queensland (the AMEU) not ifi ed the Industr ial Re gis1rar of a dispute between itself 149478- 14 and Hunter Brothers Pty. Ltd. as well as the Brisbane Ci ty Council. The subject of the dispute was stated to be a claim for a redundancy package in respect of seven workshop employees who were to be made redundant on 30 June 1994 as a consequence of the expiry of the garbage cartage contract held by Hunter Bro thers (Queensland) Pty. Ltd. The dispu te was the subject of several conferences before Commissioner G.K. Fisher and, arising out of such conferences, an issue was submitted for arbitration pursuant to sect ion 319(4) of the Act. The fo llowi ng question was submitted:- ''Should employees of Hunter Bro s (Queensland) Pty. Ltd. engaged under the Eng ineering A ward -- State or the Clerical Employees Award -- State receive equivalem redundancy benefits to those negotiated by the Transport Workers Union of Au stralia with the Brisbane City Council for employees engaged under th e Transport Workers (Refuse) Award 1988 and who are to be made redundant effective from 30 June 1994.". The question submitted for arbitration was assigned to the Commission as presently constituted by Chief Commissioner Ha ll pursuant to powers vested in him under the Act. After a preliminary hearing on 30 June 1994 the matter was listed for hearing on 28 Ju ly 1994. At the hearing the AMEU was represented by Mr Goodwi n, Hunter Brothers by Ms K. Pri or and Mr J. Thompson, who represented Brisbane City Council (BCC), appeared by virtue of an invitation extended to h im by myself in order 1hat I might be infonned of the redundancy benefits negotiated between the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (TWU) and BCC for employees engaged under the Transport Workers (Refuse) Award 1988. No appearance was entered for clerical employees as none of them were members of a trade union. Mr Goodwin, on behalf of AMEU, outlined to the Commission some of the background which had led the matter to come before the Co mmi ssion. In par1ic ular he highlighted the indu strial action undertaken by mem bers of the TWU in November of 199 3 which cu lminated in proceedings before Commissioner Peterson of the Australian Indust rial Relations Commission on Monday 29 November 1993 . Mr Goodwin produced transcripts of those proceedings. In such proceedings Co mm issioner Pe terson was informed of an agreement reached between Brisba ne City Council and the TWU. and its membership, in respect of claims fo r redundancy payments upon ex piry of the then existing garbage carting contracts on 30 June 1994. Mr Goodwin infonned the Commission that his Union firsi wrote to the Council on 26 November 199 3 seeking advice on the Co unci l's position re lative to workshop employees. He states that correspondence passed between the parties and one or t wo meetings also to ok place prior to early February 1994 when the Deputy Ma yor wTote to the Union infonning it th at it should deal directly with the employers concemed on the question of redundancy. On 18 May 1994 the Union wrote to Hunter Brothers seeking spec ifi c infom1ation in relation to the actual employees who would be made redundant a nd spelt out to the employer that such employees wou ld be entitled to be paid the minimum redundancy provisions as set ou t in the Award which covered their employmen t. The Union also sought the employer's advice as to whether an y ad ditional be nefits would be paid by wa y of an in-house agreement. On 8 June the Union made a request to meet with the Brisbane City Cou ncil to discuss the issue of redundancy pay for its members, totalling (at that time) four employees, who were to be ma de redundant on 30 June by Hunter Brothers. On 16 June the Brisbane Ci ty Council respo nd ed advising .that it wo ul d be necessary for the -- 1 of 2 -- 190 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 September, 1994 Union to deal direct ly with the employer, through the Industrial Relations Commission of Queensland, prior to further consideration being given to the claims by the Council. On the following day the Union placed a full claim for redundancy on the employer to reflect the redundan cy package negotiated between the TWU and BCC and also notified the Industrial Registrar requesting the involvement of QIRC. Mr Goodwin infom1cd the Commission th at three compulsory conferences were held before Commissioner Fisher which resu lted in the question (above) being submitted fo r arbitration. Mr Goodwin sought, on behalf of his members, the full benefits of the package negotiated between the Council and TWU submilling tliat the fact that th e TWU Refuse Award had no redundancy provision did not provide a valid basis for arguing that employees under other Awards sho uld receive standard minimal TCR benefits only. Ms K. Prior, who appeared for Hunter Brothers (Queensland) Pty. Ltd., presented an extensive submission during which she advised the Commission that in previous garbage contracts the re had been a transmission clause in tender documents which required incoming contractors to "take over" the employment of employees engaged by the outgoing contractor. She fu rther in formed the Commission that although 1h is had been a non-negotiab le item in previous tenders it had become obvious during tl1e course of 1993 that the transm ission clause would not be a feature of the new contract scheduled Lo commence from I July 1994. To assist in the presentation of her case Ms Prior called Mr Christopher Graham Tanzer as a witness. Mr Tanzer was ab le to inform the Commission that of 129 employees "transmitted" from the employment of Berkeley 's to Hunter Brothers in 1984, 56 such employees were the subject of the Transport Workers Union claim in 1993. Mr Tanzer infom1ed the Co mmi ssion that the issue or redundancy payments was raised in early 1993 when employees became aware that the tender was to be re-issued and he fur ther informed the Commission of approaches. understood by him to have been made by the TWU to the Brisbane City Council, which led 10 a meeting being held at TWU House on 22 April 1993 between the TWU and Brisbane Ci ty Counci l. Mr Tanzer further informed the Commission of various o th er meetings held between the TWU and the Company, the Company and Brisbane City Council. and the TWU and Brisbane City Coun cil be tween that period and 23 November 1993 when the new contractor for both North and South Brisbane was announced. He also informed t he Commission thal everyone except those people employed in the workshop wen t out on strike. Mr T. Cole and Mr B. Van Deursc. a lt hough workshop employees, also went out on strike. On 29 November 1993 when the ma tter came before Commissioner Peterson, the Commissioner was infonn ed that meetings held between th e Brisbane City Council and th e TWU leadi ng up 10 that hearing had resolved the iss ue and he was infom1ed of th e terms of the rcsoluLion of t he TWU claims fo r redundancy pay. Ms Prior also called Mr Allan Robert Hunter as a witness who was able to confim1 that none of th e mechanics. the subject of the AMEU claim, were transmitted to Hunter Brothers employment at the time of their takeover of Berkeley's contract in 1984. In arguing that the question submitted for arbitration should be answered in the negative Ms Prior referred the Commission to the decis ion of the Australian Conciliat ion and Arbitration Commission in the Tennination Change and Redundancy Case 1984. She also drew to th e Commission 's attention that the reasoning and ration al e for that case was adopted by the Ind ustrial Conciliat ion and Arbitration Commission of Queensland in 1987 (matter No. B734 of 1984). In referring to the Commission's decision in this matter she particularly drew to the Commission's attention the following paragraph :- " ln the absence of a further decision by a Full Bench of this Commission, it is our intention that condi ti ons more favoura ble than se t out in the Declaration of Pol icy should not be awarded." . Ms Prior also took the Commission to several other decisions where the Commission had been asked lo either reduce (standard) TCR provisions or to extend th em. In one of these cases •· ~atjonwide Fjeld Catering Pty Ltd v The Australian Workers' Union (Print No. 1-15959) -· Commission Sweeney decided not to extend redundancy arrangements in an agreement covering workers on an oil ri g to employees engaged in the catering industry at the same location. In concluding her submissions Ms Prior highlighted that the four (4) employees who were the subject of Mr Goodwin's claim were employed under an awa rd which had a termination and redundancy provision in it from the time at which those em ployees were employed; it was their rightful expectation that their employer would pay such redundancy payment and in fact such redundancy payments were paid. Ms Pr io r submitted that the si tuation between the Brisbane City Cou ncil and th e TWU was different entirely. Firstly, because no such TCR provisions were included in the TWU Award and, secondly, th e arrangement was one negotiated between the Brisbane City Council and the Transport Workers Union only. Mr J. Thompson was able to i nfom1 the Commission of the terms of settlement of the garbage collect ion employees· redundancy claims. In doin g so Mr Thompson high lighted to the Co mmission that the settlement achieved a fundamental change in tenns of, fi rstl y. the contractual obligations for the future viz a viz the 13 ri sbime City Council and the new ga rb age collection contractors and, secondly, the relationship between garbage c-0llection employees and the Brisbane City Council. With re gard to th e first point Mr Thompson informed the Commission that the new contract was perfonnancc-based in that it allowed for rise and fa ll on ly on the basis of movements in the Consumer Price Index, whereas previous contracts were related to movements in wage rates. Further, the new con tracts required the contractor to have an Enterprise Bargaining Agreement and a number of other arrangements. With respect to the second aspect Mr Thompson submitted that in the past the arrangement had almos1 been one of '"employer/employee" between th e Brisbane City Council and garbage co llection employees. He indicated that the re were some employees employed under t he garbage collection contracts who had more than thirty years service who were finished up on 30 June 1994 . 2 September, 1994] QUEENSLAND GOVERNMENT INDUSTR I AL GAZET TE 19 1 In fu rt her appraising the Commission of tenns of settlement Mr Thompson indicated th at under previous arrangements garbage collection employees had expected continuity of employment and t ha t s uch issue was .. passionately.. raised by the TWU in 1993. There were also long service .leave trust and sick leave trust an-ar1gements in place dealing with employment transfers which were concluded wi th the expiry of the Hunter Brothers (and Pacific Waste) contracts on 30 June 1994 . Other changes negotiated from previous practices included changes to service in crement pa yments; lat er starting and finishing times because of complaints from the public; changes to public holiday entitlements and so on . All of these issues have now been removed from the agenda insofar as direct negotiation between garbage collection e mp loyeesrrwu and the Brisbane City Counc il are c-0ncc med. Future wage adjustments or changes 10 conditions of employment are to be negotiated directly with the contractor concerned under the required Enterp ri se Bargaining Agreement. Mr Thompson also informed the Commission that the Brisbane Ci ty Coun cil had consistently refused 10 entertain claims from both the TWU and the AMEU for th e same conditions of settlement, as agreed to for garbage employees, to be 0owcd to other em ployees of Hun ter Brothers/ Pacific Was te . He pointed to recen t cla im s received fro m the TWU for a range of other TWU members which h ad been rejected by the Brisbane City Council on the basis that they were not employe c:s covered by the tenns of seltlement recorded on 29 November 1993. From the evidence and submissions, as "ell as other material presented to the Commission, it is apparent thal previous contracts requ i red incoming contractors to assume responsibility for employees employed by lhe outgoing contractor. Trust and other arrangements have covered such employees' sick lea ve and long service leave entitlements, amongst other issues. Further, it is apparent that, because rise and fall in the contract has been based up on wages movements, the Council has had a dom inan t role and ha s actively been in volved in any negotiations which have contributed to increases in wages and wages on-costs. The agreement successfully concluded with t he TWU. and recorded in the Australian Industrial Relations Commiss i on on 29 Novem ber 199 3, puts an end tO all such arrangements and, fu rther. puts an end to the direct (and indi rect) in volvement of the Brisbane City Council insofar as wages and conditions or employment of garbage co ll ection employees arc concerned. It wou ld also appear lhat none of the trust and o th er arrangements ha s app li ed , or cou ld apply. to employees of contractors other t han those engaged as garbage collection emp loyees. Addit ionally, none of the four (4) persons the su bject of the question submitted for arbitration had been employed al th e time of the expiry of the 1984 contrac t. , . On th e basis that the agreement negotiated betwe en the Brisbane Cr ty Council and th e Transport Workers Union or Aust ral ia covering employees engaged under the Transport Workers (Refuse) Award 19 88 applies to the specific circumstances of that group of employees employed as garbage collection contractors the Comm iss ion has reached the view that it must find in the negative to th e question su bmitted for arbitrat ion . Persons engaged as mechanics and the like under t he Engineering Award -- Sla te have not had to co ncede the same cond itions of employment and provisions dealing with their onooing cont' · f • 0 IO ur ty o service as have other employees engaged by Hunter Brothers (Queensland) Pty . Ltd. Jn such circumstances it wou ld be inap propriate to suggest tl1at the equi va lent redundancy payments be pa, d to mechanics and others employed under the Engineer in g Award •• State. On the material presented to the Commission in th ese proceedings it appears that whilst certain benefits have been paid to garhage collection employees the reason for such payment does not relate solely to such employees' redundancy. Other benefits and conditions of employment previously applicable to such emp lo yees have be en ·'bought out" as part of the terms of settlement. T he question submitted for arbitration is detem1ined in th e ne gative. The Commission determines accordingly. A.L. BLOOMFIELD, Commiss ioner. Appearances:- Mr N. Goodwin for the Automotive, Me tals and Engineering Industrial Union of Employees, Queen sl and. Ms K. Prior, with her Ms R. Johnston, for Hunter Brothers (Queensland) Pty. Ltd. Mr J. Thompson for the Brisbane City Council Operative Da te: NIA Decision - Redundancy Payments Released: 22 Augusl 1994 ####################################################### -- 2 of 2 --