Dutana Pty Ltd t/a Undara Experience (ACN 010 948 982) Lava Lodge, Undara v The Employees of Undara Experience and Another [1994] QIRC 186 (1994) 146 QGIG 19

18 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (6 May, 1994 6May , 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 ## # ############################ # ## # ################# QU fF NSLAND IN D US T RIAL RELATIONS COMMISSIO N Industri al Relations Ac t 1990 s. 131 - application for new award Dutana Pty. Ltd. tradi ng as Undara Exp eri en ce (ACN 010 948 9 82 ) Lava Lodge, Undara AN O l he Employees of Undara Experien ce AND The Aust ra lian Wor kers' U nio n of Employees, Queensland (No EB93017) HOTELS, RESORTS AND CERTAIN OTHER LIC ENSED PREMISES AWARD - STATE (EXCLUDING SOUTH -EAST QUEENSLAND) UNDARA EXPER I ENC E ENTERPRISE BARGAINING AWA RD COMMISSIONER BOUGOURE 2 7 Apri l 1994 New Aw ard - Em p loyer/ Emp loyee en terpri se agreemen t - AWU interven tion - Uni on c ov erage oi wo rk being done - No members on site -:- Wo rk is seaso n al - Emp loyees held meetin gs rel at ive to operational needs - Un ion officials vi sited sire - Fm ployer co-operative - employer pr ep ared to i nsert preferen ce clause - Employer r efusa l to im pose cond ition on future e mp loyees to joi n union - All emplo yees strongly opposed ro any preference cl ause - W i tness eviden ce - Reference to the Industrial Relations Act 1990 - Provisions of proposed award i ncluding loaded wage ra tes considered - Reference to 'No rther~ Ho tels Award' - 'S ite Interpreters• award fr ee - Wo rk pl ace to be c_o~sidered on basis of an enterprise arrangem en t - N oti ce pr ov isions as per proposed award - Classification st ructure an d wage rates as per proposed award - Amendments to hours clause re: l 2 hour work periods - Commi ssion adopts all other provisions of proposed award - Preference clau se not included - New award granted from 1 Feb ruary 1994 for 2 years - Draft award w,th amendments 10 be submitted by pa rties w ithin 14 days. D [CISION . Th is is an application by Mr Victor Gerald Collin s, Managi ng D irector of Du tana Pty. lid. trading as Undara Experience for the making of a new award enti tl ed the "I lo tels, Resorts an d Certain Other licensed Premises _Award - State (Excluding South-Ea st Queensland) U ndara Experience Ent erpri se Barga ining Award' (the proposed award}. The proposed award is set out in an amended Schedule to the application. The application arises from ag reemen t between the applicant employer an d all employees. At the heari ngs the emplovees were represented by Mr J.C. Patti. I he Austral i an Wo rk ers' 'U nion of Employees, Queensland (A \,\fU) was granted leave to be heard on the application on the bas is that it had coverage of work proposed to be covered by the award, even th ough the AWU had no members on _si te. It may be va li dly argued that the extent to wh ,ch I permitted the AWU to be heard and call a w i tness w as excessive, however, I adopted such a course to ensure as far as possible that the interests of the AWU and the employees were adequately protected. The Statemenr of Material Fac ts attached to the appli ca tion, in part, sta res:- 'Du tana Pty. Ltd. operates a unique outback tour ist fac i li ty k nown as the Undara Experience. The business, due to its remoteness, seasonal influ ences and the unique nature of i ts faciliri es, has special operational needs and employment arrangements for staff whic h are not curren tly met by ex isting Industry Awards.'. -- 1 of 4 -- 20 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 May, 1994 The evidence before me indicates that "Undarah is located ,;;ome 50 kilornetres from Mount Surprise m Far North Queensland. Undara was said to be a 4 hour drive from Cairns and a 5 hour drive from Townsville. Evidence indicates that the accommodation and guest facility are;:i known as "Lava Lodge" comprises a 13 site camping ground, 11 site caravan park, 25 Swag Huts, 12 Dongas and 25 Railway Carriage Units. There is also a restaurant, bar area and souvenir shop. A significant activity is tours of the Lava Tubes and in this work site interpreters arc employed. The evidence . ind 1 cates that generally approximately 17 employees are employed, with most staff being employed either on a full time basis or for the duration of the season. Undara commenced operations in 1990 when it had 1000 guests and last calendar year had 20,000 guests, including day trippers. During evidence it was particularly pointed out that the operation is seasonal. The peak touri~t season is from April to November, a period of 28 weekends, whiist activity between December and March is minimal. It was said that during the peak periocis, guest visitations may exceed 4000 per month, whilst 1n the off season it may be as low as 500 per month. It was said that thii, wai, one of tne reasons why award provisions hindered the operation. In relation to employees, it should also be recorded that under current arrangements employees work 10 days on, living temporarily on site, and then have 4 days off. This arrangement seems to be convenient for employees, many of whom have their permanent homes some considerable distance from "Undarai/. Excluding those ot the employer, there arc no private homes at or near "Undara". As I have indicated, the Undara Experience has developed in popularity very substantially since its commencement in 1990. No doubt staft numbers have also expanded. There is evidence that a number of meetings of al: employees have been heid to dii,cuss the operational needs of the resort, the concerns of the staff and the future direction of the Undara Experience. As a result, an agreement was reached between the employees and the employer which ultimately lead to this application. When the application initially came before this Commission on 4 January 1994 Mr Timo sought leave to be heard on behalf of the AWU. The other parties raised no objection to Mr Timo being heard. l he ev,dence before me indicates that the AWU had no members on site at the time of initial discussions in 1993 and still has no members at time of the completion of this hearing. AvVU official~ have been to the site severdl time~ ~im:e the filing of the application and have had ample opportunity to discuss issues with employees, but have apparently been unsuccessful in recruiting any membership. So far as I can see the employer has in no way hindered the AWU. As a result of AWU discussions with the employees and the employer, certain changes to the originally proposed award have been made. It was submitted to me that realistically the only outstanding issue so far as the AWU was concerned could be the refusal of the employer to impme a condition that all future employee~ become members of the AWU. In view of the attitude adopted by the AWU, it became necessary for the matter to be heard at some length. During the hearing, Mr Jones called the following witness for the appl1cant:- Victor Gerald COLLINS of Undara E:xpenence, Lava Lodge, Undara via Mount Surprise, who is the Managing Director of the Company which operates the relevant business. On behalf of the employees, Mr Patti called the followirg witness:- /v1argaret Valentine SPEEDIE of lnnot Hot Springs, who is employed as Head Guide at Undara and who has been so employed for 2 years and 8 months. Mrs Speedie ;s one or the duly elected representatives of the employees and she had had a significant and continuing role in all negotiations. ,\1rs Speedie holds a Degree in Science and is a person of substantial knowledgP in the tourist industry. In support of his submissions Mr Timo was permitted to cal 1 the following witness:- Andrew TWOMFY of 19 Fima Street, Woree, an Organiser for the AWU in the Tablelands and Gulf Area. Mr Twomey was one of the AWU officials who negotiated with the employees on site at Undara. Since it is only Mr Timo, on behalf of the AWU, who has raised any opposition to this application, I will initially deal with some of the i~~ues raiseJ by him. Mr Tirno's submissions are wide ranging and involve aileged non-compliance with award provisions and Wage Principles of this Commission and submissions as to the merits of the application. As I understand him, Mr Timo concedes that this Commission does have jurisdiction to make the award ai, i,uught. This arises by virtue of the fact that the application may be made by an employer pursuant to Section 67 of the Industrial Relations Act 1990 (the Act) and bv virtue of Section 105 of the same Act an Award may provide that it is in force for a specific period in relation to 1 or more named establi~hment~ or operdlions of 1 or more specific employers. The proposed award in clause 1.3 states that it shall be read in conjunction with the I lotels, Resorts and Certain Other I icensed Premises Award State (Excluding South-East Queensland) (the "Northern Hotels Award") on matters on which the proposed award is silent. In oarticular, the applicant relies on clause 7.9 of the "Northern Hotei~ Awdrd", which clause provides for the making of enterprise agreements. The genesis of clause 7.9 may be found in Practice Note 2 issued with the State Wage Decision of this Commission dated 29 July 1991 (137 QCIG 477). Clause 7.9 prov;des for discuss;on at an enterprise ievel and in part provides as fol lows:- " (3) Any proposed genuine agreement reached between an employer and emp!oyee(s) in any enterprise is contingent upon (a) a majority of employees affected genuinely agreeing to the changes; (b) the agreement being consistent wit'1 the current State Wage Case principles; (c) the relevant union or unions (of employees or employers) being invited to part1c1pate 1n any discussions which involve alterations to award conditions, (and may be a party to any 1·esultant agreement); (d) changes sought in such agreements not affecting award provisions reflecting currently established standards of the Commission; (e) parties to such agreements acknowledging that the Commission docs not intend that any employee should lose any existing entitlement to earnings, award or overaward, for working ordindry hour<, of work as a result of any award changes made as part of the imp1ementation of the Structural E:fficiency Principle.". Subclause (4) provides that the relevant Industrial Organisation of Employees shall not unreasonabiy withhold consent to an agreement reached between the parties. It might be legitimately observed that clause 7.9 contains many features which are, in general, consistent with certain provisions of the 1994 amendments of the Act and which provisiom becdrne operative after completion of the hearing in this matter. It is now appropriate to consider in some detail the provisions of subclause (3) above. In relation to paragraph (a) of subclause (3), there is ample evicience that the majority of employees affected did agree to the proposed award provisions. A secret ballot was conducted under the supervision of a Justice of the Peace and only 1 employee voted against the proposal Since thdt time the issue has been argued at length and Union Officials have spoken to employees, yet there 1s nothing before me to indicate that a majority of employees do not continue to support the proposal. In fact there is material which indicates that the employees are now considerably upset by the AWU's opposition to this application. Paragraph (b) requires the agreement to be consistent with current State Wage Case Principles. The State Wage Case Decision of 30 January 1992 further endorsed the emphasis on enterprise bargaining and the principles attached to such decision provided for the approval of enterprise bargaining arrangements in the form of consent vwards (See also Practice Note 1 of 1992). The State Wage Case Decision of 1 February 1994 provided that increases under prior State Wage Case Decisions should continue to be available under those prior decisions and also provided that 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 a consent award or industrial agreement may be made to reflect an enterprise agreement between parties. I am satisfied that the agreement is consistent with current State Wage Case Principles. Paragraph (c) of subclause (3/ aforementioned requires that the relevant union of employees be invited to participate in any discussions which involve alterations to award conditions. It is relev;:int to note that it has been submitted to me that Site Interpreters are award free. However, it seems clear that a number of employees are subject to the "I\Jorthern Hotels Award". It is true that the AWU was not involved in initial discussions leading to the agreement. In her evidence, Mrs Speedie stated that the emp'ovees considered it would be hypocritical of them to ask the A WU tor assistance when none of them were members of the union. However, in late 1993 a Union Official did visit the site and did have extensive discussions with the employees. The emp:oyer did nothing to hinder such discussions. On 4 January 1994 the hearing was adjourned and further discussions took p:ace between the employees and union officials on site. The employees were 1nv1ted to join the union but declined. As a result of discussions with the AWU and issues subsequently raised with the employer, a number of provisions of the original agreement were altered, apparently to the advantage of employees. Even on the last day of hearing certain amendments were made to increase wage rates. I am satisfied that the AWU was invited to participate in discussions in relation to this matter and in fact did participate in lengthy discussions. I am satisfied that all aspects of the agreement now before me were open for discussion with the AWU before the agreement were finally placed before me in terms of the proposed award, as amended. In my opinion there has been ample opportunity for the AWU to have genuine and frarik discussions with the employees and the employer, and that in practical terms there has been compliance with paragraph (c). Whilst no' appiicable to these proceedings, it might be noted that under recent legislation in relation to E:nterprise Flexibility Agreements, the circumstances of this case are such, that the AWU would not have been an "eligible union" as defined and would not have been even entitled to an invitation to participate in discussions prior to the hearing. In relation to paragraph (d), I consider that the changes sought do not adversely affect any currently established Cornrni<,<,ion standards, however, comments later in this decision may also reflect on this issue. In reiation to paragraph (e), it is my understanding that the parties acknowledge that the employees will not suffer any loss of entitlerm~nt<, mPntioned in such paragraph Later in this decision I will be considering any disadvantage which may be suffered by employees. Clau~e 7.9 aforpmentioned oi the '·Northern Hotels Award" envisages that any enterprise agreement shall be inserted ,,as an award provision (as a schedule or otherwise) and take precedence over any provision of the relevant and named award to the extent of any inconsistency therewith.". In the instant case it is proposed that the enterprise agreement be contained within a consent award whilst ma1ntair1 ing the applicability of the "Northern Hotels Award" on matters on which the consent award is silent. Whilst the matter i~ a little complex, 1 am satisfied that bearing in mind the provisions of clause 7.9 oi the "Northern Hotels Award", the contents of State Wage Case Decisions and Principles to which I referred earlier and the provisions of the Act, to which I also referred earlier, that 1t is appropriate to formalise this enterprise agreement by mea,,., of a consent award, if I am satisfied with the contents of the proposed award. A reason raised by Mr Tin10 for opposing the application wa<, that the employees either were already or could be adequately coverPd by the provisions of the "Northern Hotels Award" even if ~ome agreement with :he union would be necessary to deal with 12 h<?ur work periods. It was strongly submitted by the applicant that Site Interpreters were award free. Mr Timo submitted that they would be covered by the "Leisure Attendant" classifications 1n the I/Northern Hotels Award!/ or, if necessary, a minor variation could be made. Mr Twomey, the AWU organiser for the area, conceded in evidence that the "Northern Hotels Award!/ does not specifically cover Site l:1terpreleri, dnd that some change of 9ct1n1t1ons would be necessary to cover them. Furthermore, the ~orthern Hotels Award" only provides for 3 Grades of Leisure AttPndant, up to 92.4"/o relativity, whereas the proposed award rrov1des tor 5 levels of Site Interpreter up to 100% relativity. In my view the Site Interpreter classifications under the proposed award are not covered by the Leisure Attendant classifications under the "Northern Hoteis AwardN. Mr Timo also submitted that this workplace should continue to be covered by the provisions of the uNorthern Hotels Award" since there were no unique circumstances or circumstances of isolation justifying a departure from the Common Rule Award. It seems to me that parties have to now appreciate that, unlike in the past, there is now an emphasis upon providing industrial regulation at the enterprise level. In this regard, the emphasis is upon providing flexibility by means of an award or agreement to suit the individual requirements of the particular enterprise. The Principles of this Commission have indicated such a direction for several years and now provisions of the Act, which became operative after the hearing of this application, emphasise such direction in statutory form (e.g. Section 3 of the Act). Upon the material before me I am satisfied that it is appropriate to favourably consider an enterprise arrangement for Undara. Mr Timo also submitted that this application effectively conflicts with what a rull Bench of this Commission endeavoured to achieve in the case of the "Northern Hotels Award". It seems to me that the "Northern Hotels Award" was dealing with a common rule situation, whereas this application seeks to deal with the individual circumstances of one particular enterprise. In my view, when considering enterprise arrangements, this Commission should determine each case on its own particular circumstances. it seems to me that if proper consideration is to be given to the present emphasis on the enterprise, then there will obviously be conflict with the provisions of Common Rule Awards, such as the "Northern Hotels Award". This does not mean that in overall terms, the enterprise arrangement will be disadvantageous to employees when compared with the Common Rule Award. Mr Timo alleged that a number of the terms of the proposed award were actually, or potentially, detrimental to employees. Clause 7 9, aforementioned, of the "Northern Hotels Award" clearly indicates that employees should not lose existing entitlements in relation to ordinary hours of work. Recent legislation in relation to enterprise flexibility arrangements states that employees should not be disadvantaged in relation to their employment conditions, which is to similar effect as clause 7.9 aforementioned, but is possibly more extensive in its application. Whilst ensuring that there is no departure from certain minimum standards, it is my view that in dealing with changes proposed to be effected by an enterprise arrangement, the desirable benefits of the process will be nu!lified if one concentrates too closely on the effect of each individual change. Rather, the purrose of enterprise bargaining will be more fully implemented i one generally considers the totality of the proposed changes in determining whether there has been any overall disadvantage to the employees and their conditions of employment. I will now specifically deal with some of the issues raised by Mr Timo in relation to the terms of the proposed Award. Mr Timo submitted that the notice required to be given by employees is onerous. The proposed award does include the notice periods as now set out in s. 175BC(2) of the Act. There is no compla;nt that empioyers are generally bound to give up to 4 weeks notice, but it is submitted that this is too lengthy for employees. The periods at the upper end of the scale are possibly too lengthy for an employee in general circumstances, although, because of the isolated. nature of this workplace, some longer period may be appropriate to enable recruitment of new staff. There may be cases where the employer would waive the award notice periods for employees and accept a lesser period. Sorne persons may also argue that if it is good enough for employers to give lengthy notice then employees should do likewise. Bearing 1n mind that this 1s an enterprise award, the workplace is somewhat remote and the parties have consented to the provisions, I propose to adopt the notice provisions as set out in the proposed award. Mr Timo made lengthy submissions in relation to the classification structure and the factors which are included in the wage rates. Schedule 1, attached to the proposed award, sets out in detail how the wage rates are achieved. What is called the base rate is, in each case, adopted from the total award rate in the "Northern Hotels Award". Thus the base rate, including northern parity, at the level of 100% relativity is $420.45. Such rate includes al! struc!ural efficiency and minimum rates adjustments, but not the $8 sarety net adjustment. In order to achieve the total annual award rate (the loaded rate) for the purposes of the proposed award, a number of amounts have been added, depending upon the type of work performed. In challenging the loaded rate, Mr Timo questioned the adequacy of the amounts added in lieu of weekend penalties, leave loading, public holiday penalties, 40 hour per week adjustment and late work allowance. -- 2 of 4 -- 22 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (6 May, 1994 In support of his submission, Mr Timo tendered Exhibit 8, which compares the loaded rates with the provisions or the "Northern Hoteb Awd'o" in ,espect of 2 cd1egones of ernployC>es, na'.llely Cuest Service Level 1 and Qualified Cook. As a result of amer:drnents made by the applicant on the last day of the hearing, and the inc;usion oi the $8 Safety Net Adjustment, the diilererice in gro::,s wage ratf's is le,s than set out 111 hhibit 8. l lowever, in addition I ccms1der f:xi11b1t 8 does noi truly reflect the UndJra seasonal situation. In my view Exhibit 8 does not give sufficient consideration to the seasonal factor involved at Undara wherPin most visitations occur between April and November and involve a season of about 28 weekends. Based on the material placed before me, and giving due ailowance for seasonal factors, I con'.,ider thdl the loaded wage rates proposed for LJndara are at least comparable with the said award provisions, and that employees will not be dis,1dvantaged in this respect. Wnilst one should pr1mariiy consider the provisions ot the "Nonhern Hotels Award" in assessing any disadvantage to employees, In my v;ew it is also a relevant factor to give some cor1;ideratior1 to loaded rates out!ined :n ag 0 eemen!s to which thP AWU is a party in the same indus1ry. In this regard I have also considered the wage rates as set out in the Off-Shore Islands Re::,orts Industrial 1'\greement and the Laguna Quays Resort AWU - lndustria! Agreement. Whilst the factors making up the loaded rates are not all constant a reasonable comparison is possible. For example 1 the loaded rate for a Qualiiied Cook 100°/o relativity at Undara is $25 1 114.30 per annum or $98 peI· day, including the $8 per week SNA the 17 1/2% leave loading and certain penalties. After aliowing for factors which are not constant this figure seems to compare quite favourably with the rate for QuaUiPd Cooks unoer the 2 lnoustrial A 0 reen1ents aforementioned. I have made comparisons at some other levels with the same result, but wdl not mention them herein. In general terms, I am satisfied that the wage rates propo:=.ed do not disadvantage employees or cause employees to lose any existing entitlements to earnings for ordinary hours of work, particularly when one con-;idt'r~ the SPasonal n;:iture of the operatiori. Mr T1mu ~ulirnitted that in particular the 17 1/2% ieave loading should not be included in the loaoed rate. The applicant submitted that for reasons of cash flow, it was advantageous to the emoloyer to pay the 17 1/2°/o leave loading each week rather than whefl anm1al leave is actudlly taken. As a resul' employees oo not have the advantage of a lump surn paid to them as they proceed on leave, however 1 alternatively, they do have the use, in advance, of the additional ;11oney with each pay. An example of a situation in which this Commission h;:is recently determineo io vary the manner in which annuai leave may be taken ,n the case of employees of a single enterprise may be found in the matter of Hamiltor1 I'.,larn.b Ernplovee::, - lnduqrial Agreen1eril, a deci'.,iur1 by a Full Bench ot this Commission dated 11 March 1994. In the latter matter a Full Bench of th;s Commission dctcrm:ncd that portion of the annual leave entitlement could be "cashed in'1 upon an employees request In its decision of 9 November 197.1 (84 QGIG 12 17), a Full Bench of this Commission detc•rmined how annual holiday pay should lw c;,kulated to include the 17 1/?'1/n leavP luading. However, the said Full Hencti also determined that exemption from that method of calcu!at1or~ could be granted by the Comrnic,'.,ion 011 the grounds thdt '.,Orne alternative prov,sion is more appropriate in order to mee, individ,,al circumstances. This 1s not a case where the employer is seeking not to pay the 1 l 1/2°/o loading, but merely a case In which it is sought to vary the method uf pdyme:1t and ti1erelJy calculatior1. Upon thP oniy material placed before me, I see no real reason to reject the proposal. s;nce this is an enterpri'.,e arrangement and the employer and employees rave agreed :o the rrie:hod o: oayment of the leavt> loading, I will adopt it <l.nd include it in the loaded rate. I wil, exempt the employer from calculating annual leave ioading, as set out in the lastrnentioned decisior 1 on the baSiS that the alternative method proposed is appropr:ate to meet the ir,dividual circurn,;;tance\ oi Undara. Mr Timo also submitted in particulJ.r that the employer should not be permitted to ''buy back" the 40 hour week whilst retaining the befleiit ot cost oif<;ets used tn obtain the 38 hour week under the "'-lorthcrr ~lotels /\ward" I he "buy back" inv:Jlves a sum, included in tf.e loaded rate at each class iication whereas the grdn,ing of the 38 hour week involved minim,sat;or of the cost ifllpact ir reduct;on or the standard hours to 38 per week. The effect of minimisation r1ay vary frocr1 urie pmployer lo ar10ther. The fact that cost min,misat.on and not cost neutra 1 ity was involved indicates the likelihood that individual emoloycrs WC'rc not fully compPn:c,atcd for the grantirig of the 38 hour week by cf-ianges in work practices. In the in::,:ant case Scheclule 1. sets out the speofic sum included in the loaded rate for the add1t1ona! 1 hours work. It is submitted that such sun1 is fuil compensation at ordinary time rates for the additional 2 hour~ worked. Such a "buy back" arrangement is alwJys likely to '.-ece:ve critical consideration and may not always be approved for inc! 0s ion in a loaded ra:e. However, a-; I indicated earlier, each eriterpr;se arrangement has to be determined upon its own overall circumstances. Furtr1ermore 1 the Act still provides that, except 1t this Corrimission otherwise de,ermine~, the period an employee is required to work must not exceeo 40 hours in any period of 6 consecutive davs. In the State Wage Case Decision of 29 July 1991 ,,i 3 7 QGIG 477) the Commission 1 1n dealing with standard hours, in part, said:- "lt should be apparent that deletion of this clause does not connote a Commission standard of less than 40 hours per week. Rather it makes access to a reduction to :rn hours per week available where the requirements of the Principle are sahficd.". In this ca<,e the partie,;; have sought to include a 40 hour week :n the proposed award on the basis that it is prima facie the existing ccwdition of employment, which fact might have beer1 arguable in tr1e ca::,e ui at least some employees The parties have then sought to include an amount in the loaded rate to compensate for the increase from 38 hours 1 as i'l the 1 'Northern Hotels Award" to 40 hours pe~ week. Bearing in rnind ,he overall circurnstarKes, I arn satisfied that I should not reject the agreement between the parties on this issue. Mr limo submitted that in 1991, in its deci-;ion :n the 11 Northern lintels Awa1·d'1 , the Full Bench of this Commission 1nd1cated that it would not accept the introduction of annualised wage rates except in the context of an Industrial Agreement, on the ba::,i~ that a di.,pas.,ionate third party such as a trade union would have a roIe in the determination of rates. I would merely say that industrial re;ations have changed somewhat since 1991. There is now an increa'.,ing ernphasi'> or1 t'nlerprise arrangements and if annualised rates are appropriate tor industrial agreements (as has been accepted) then I can sec no reason why/ after appropriate scrutiny by this Commission, they should not be appropriate in ca<,es oi the nature now before n1 e !n this case, having considered the various submissions made by Mr Timo and the parties, I am satisfied that the c:assification structure arid loaded waee rates in question do not d 1 saclvantage the employees concerned. I am prepared to adopt such rates However, it will be necessary for the wages clause to clearly stipulate that minimum wage rates are involved and the usua; clauses <'~'"ociatcd with the $8 SNA will havP to be in<,ertecL 1he wages clause will have to be set out in a manner which complies w,th the practice ot this Commission. It will also be necessary to indicate in 'he proposed award that the rel2tivities oi employees are basPd on tho,;e set out in thP uNorthPrn I lotelc: Award". l he hours of work clause oi the proposed award causes me some concern since it authorises work periods of a maximum of 12 ordinary hours being worked within a spread ot 1G hoc1rs on any one day (see clause 4.1 (b)). l he capacity to work 12 hour periods of ordinary time is not now unusual in awards, however, it i~ ger1era!ly by ag~eernent with the employee. I appreciate that this is a consent award, and current employees may be seen as having al:eady consented to 12 hour work periods, however, the position of future employees must also be coi1sidered. Some awards require thd arrangements, such as outli1°ed in clause 4.1 (b), be made with the agreement of a union, however, it seems to me that with the greater flexibility which now appears in awards and which is being encouraged by legislation 1 ,t is unnecessary for a union to now be involved. In my view It should be within the capacity oi an employee to make· such an agreement with an employer, provided it falls with,n the framework of a facilitative clause in the award. I req~1ire that clause 4.1 (b) be subject to the agrf'er:,ent of thf' employee concernPd I am pcepared to adopt the other provisions oi :he proposed award and I will not specifically cor-nmer1t upon thei,1. in addition to the existing clauses of the proposed av,a:·d, the question of insertion of a preference clause in iavour of the AWL ha~ aIIser1. The AWU cur-rently has no members at the workplace so far as I am aware, nolwithstanciing tr1at recent efforts ha·1e been rrade to recruit menrbcrs. Mr Timo submi'5 that Mr 1womey, the AWU Organiser, has a cordia; re'ationship with the employer and 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 employees, however, it 1s quite obvious to me that the AWU ;:iction in intervening in this matter and effectively delaying approval has created sorne anirno~ity between the AWU arid the subject employees. It should be stated that the employer has not hindered the AWU at all and seems to h2.ve given encouragement to the union. In a letter of ] (J lanuary 1994 1 the Queensland Hotels AssoC!ation, acting on behalf of the employer1 wrote to Mr W. Ludwig, the Secretary of the AWU, advising that the emp;oyer wa5 orepared to incorporate a number of matters raised by the AWU into the proposed award and in particular was prepared to insert a preference clause giving site coverage to the AWU for all employees covered by the agreerrent. Such letter, in part, also stated- "The question of Union membership was discussed at length dlso. fhe position of the employer i,;; that the Company is prepared to acknowledge the importance of developing a partnership approach with the Union on establishing a stable :ndustrial arrangement for employees employed at the Lodge. The Compaqy recognises that to most effectively design and ,mplement employment arrangements to suit their own unique operational needs that a long term relationship needs to be dPvdoped. It is of the view that this relationship, in view of the present perceptions held by staff members of the Union, needs to be developed over time in a positive manner. Tr,e Company is concerned that if it is lo make any arbitrary decisions regarding membership now that it will damage its present excellent relationship with staff. Nutwithstanciing this, the Company is prepared to r1otify the Union details oi new staff as they are engaged. The Companv will advise such staff members upon engagement that the Union is an important partner in the business and its growth and highlight the importance of the relationship to the Company. The Company is also prepared to highlight the advantages of becoming a Union member in a form agreed between the Uriion arid the Company. The individual employee will then need to make a decision regarding membership of the Union. The Company believes that in the short term this approach will enable the present relationship with staff to be maintained and yet introduce a mechanism for a cultural change regarding membership of the Union and the role of the Union in thP businP<;S 11 Notwithstanding such letter 1 the AWU continued to oppose app 0 nvai of the proposed award, and has at !east irnpliedly reJected the employer's offer. At the comp!etion of the hearing Mr Jones stated that the employer was not opposed to the iri<.lu.,ion oi a preference clause, however, the employer will not impose as a condition oi ernploynwnt that its employees Join the AWU, which Is apparently what the 1\WU seeks. l he practical enforcement of such a condition of employment in view of recently arner1ded industrial legislation, discrimination legislation and I.L.O. conventions would seem to me to bP fraught with potential difficulties for an employer. I can well understand that c1n employer would not wish to embark on such a course and would wish to avoicJ a condition of employment involving sp(:c1t1ed union membership In my view, in a mattn ,;;uch as this, which involves an employer/employee enterprise agreemert, it is, the provisions oi the proposed award and any perceived d 1saovant.:ige to employee~ which are the important issues for a union to address and it is not appropriate for a union to oppose an enterprise aI·:-angemert because an employer will not impose a condi:icm oi employment as aforesaid or agree to a preference clause. If th,s Commission found otherwise it could be seen as an organ:sing medium for the enrolment of union member5hip. In lederated \iillers' and ,V\ill Employees Association of Australasia v. Brun!on & Co. Pty. Ltd. (1949) 63 CAR 274 at p 287, Morrison C sa1d:- ''furthermore it (the Commission) should not place itself in a positior1 where it could be regarded as an organising medium tor the enrolment of union mPmhership." l he attitude of the employees, as finally expressed by Mr Patti on 21 February 1994 1 contrasb quite c:leariy with that of the employer in relation to pre,erence. Mr Patti spoke a: length in oppos1rig any preierence clause and in part he stated:-- ''Whereas some two months ago, give or take a few days, my clients, the staff of Undara, would have been open to and possibly even agreeable to an inclu~ion of a provision for preference in this document or any similar document, and that provision for preference to be in favour of the AWU. That situation no longer pertains. As recently as 9 March and last night, by unanimou,;; decision of the Undara staf( I am instructed to inform you that the staff do not want to see a preference clause in any shape or form by whatever title, on whatever scope in favour of whatever union in any document that would emanate as a result of this applicat1on.' 1 , It became obvious to rne during the hearing of evidence that the attitude of the employees in opposition to any requirement that employees become members of the AWU had strengthened since the period of initial contact. The current situation as expressed to me by Mr Patti, which I have no reason to doubt, is that employees strongly oppose any form of preference clause, To impose a preference clause at this time would probably achieve nothing but would possibly further antagonise employees. The AWU has already been afforded a significant opportunity to recruit membership and has failed. If the appropriate action suggested by the employer in Exhibit 9, the letter of 19 January 1994 1 is taken the AWU may achieve some membership in future1 even without a preference clause. Whilst there is no preference clause in the propo'.,ed award1 as agreed by the parties, it is appropriate for me to now consider whether one should be inserted. Section 147(1) of the Act requires that, in the absence of agreement, I consider whether it is advisable that preference be granted. The decision of Moynihan J. in Power Brewing Co. Ltd. and The Federated Liquor and Allied Industries Employees Union of Australia, Queensland Branch Union of Employees (137 QGIG 569) outlines the matters which I must consider in determining the issue of preference. In re Mount Isa Mines I imited Award (1 %5) 60 QGIG 508 at p 509, Commiss!oner R.H. Tait sa1d:- 11 The granting of preference to enable an association or union merely to increase its membership is not a function of this Commission, there must, in my opinion1 either be a genuine desire on the part of the employees to have some organisation to look after their interests or some evidence by the organisation that the employer is not dealing fairly with the employees. Neither of these factors are present in the case before me.". In this case there is material before me which indicates that an increase in membership may be a factor in the attitude adopted by the union. There is no desire by the employees to have a union look after their interests and in tact there is specific opposition to union involvement at this time. There is also a lack of evidence that the employer is not dealing fairly with employees. In fact the employer/employee relationship seems to be very sound and co-operative. In the proceedings before me the employer seems to have adopted a most co-operative attitude in relation to changes to the proposed award. The AWU has had an adequate oDportunity to recruit members and the employer has offered to assist the union in future. Under the particular circumstances, bearing in mind the significant decision in 1he Power Brewing Co. Ltd., aforementioned, and particularly 111 view of the strenuous opposition by employees, I am satisfied that it is not advisable to inc,ert a preference clause ir1 the proposed award. The proposed award should indicate that pn~ference is not applicable to it. Another overriding issue, which I must consider, arises under clause 7.9(4) of the ,;Northern Hotels Award" which provides that:- ,1(4) The relevant industrial organisation (of employees or employers) shall not unreasonably withhold consent to an agreement reached between the parties.". Under all of the circumstances, but particularly bearing in mind the concessions offered by the employer in Exhibit 9, the letter of 19 January 1994, I am satisfied that in this case the union did unreasonably withhold consent to th s agreement. It the only or principal reason for w1thholdin~ coment was a failure by the employer to agree to imposition ot a condition of employment as mentioned ear!ier, then that reason is inappropriate. In my view a union is certainly entitled to seek to protect the interests of potential members and is also entitled to ensure that employment -- 3 of 4 -- 24 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E cond itions in the subject indust ry are not undermined to the potential detriment of union members already working elsewhere in the industry. In th is case I am satisfied no disadvan tage occurs to employees at the subject workplace or elsewhere in the industry. In my view, giving a union a right 10 be heard in re l ation to applications of this nature to protect the interests of po te nt i al and existing members as mentioned, whi l st being most appropriate, and wh il st a ls o giving the union scope to negotiate, does not in the final analysis, entitle the union to impose p re ference or a condition of employment as a condition preceden t to its w ithdrawal of opposi tion to an enterprise arrangement between an employer and employees, the making of which is authori sed by Pr i nciples of this Commission or the Act. Bearing i n mind the inter ests of the parties directly co ncerned, and the community gene ra lly, I can see no reason why this applic at io n should no t be gran ted in the current industri al relations environment. I am therefore sa ti sfi ed that this application should be gran ted and that the propo sed award, as am ended, will be m ade . The operative da te wi ll be 1 February 1994, as requested by the parties, since this would seem to be nefit employees, who have already indicated unhappiness w i th the delay which has occurred. I require the repr esen t at i ves of the employer and employees, namely Mr Jones and Mr Patti 10 submit to me wi thin 14 days of the date of this decision a draft award i ncorporating cha nges I have i ndica ted as necessary. The Commi ss ion orders accordingly. R.W. BOUGOURE, Commissioner. Appearances:- Mr D . Jones, with h im Mr V.G . Colli n s, for D ut ana Pty. Ltd. trading as Un dara Ex perience (ACN 010 948 982) Lava Lodge, Undara. Mr J.C. Patti for the employees of Undara Experience Lava Lodge, Undara. Mr N . Timo for The Austral i an Workers' Union of Employees, Queensland. Operative Date: 1 February 1994 Decision - New Award - Undara Experience Rel eased: 27 April 1994 ################################################### [6 May, 1994 6May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 25 -- 4 of 4 --