Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees and Another v The Crown and Others [1994] QIRC 185 (1994) 146 QGIG 17

16 QUEENSLAND GOVERN MENT IND US TRIAL GAZETTE (6 May, l 994 6 May, 1994] 147815-2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 #################################################### QUEENSLAND INDUST RI A L RELAT IONS COMM ISSION Industrial Relations Act 1990 s. 131 - applica tio n for variation Federa ted Eng ine Drive rs ' and Firemens' Associati on of Austra l as ia Queensland Branch, Union of Emp lo yees AND The Australian Wor ke rs' Un io n of Emp loyees, Queensland AND The Crown and Others (N os. 8573 and B623 of 7993 ) CIVIL CONSTRUCTI ON , OPERATIONS AND MA INTENANCE GENERAL AWARD - STATE COMMISS ION ERS BOUGOU RE, FIS HE R, NU TTER 2 7 April 1994 Redundancy Pay ment - Date of Accrual of Service - Exemption of Existing Contracts - Defini tion of Civi l Construction - Utilisation of Superannuation Fund t.o meet Liabi lit i es of Redundancy - Nexus to Federa l Awa rd - Applicat ion granted in amended form . DECIS ION These applications as amend ed seek ing the insertion of a redundancy cl ause in the Aw ard w ere refe rr ed to a Fu ll Bench for determination as the cla us e sought was not in accord with the Declaration of Policy i ssued by a Fu ll Bench of th is Commission on 16June 1987 (1 25 QGIG 1119- 1121 ). The relief was to insert a new clause and relevant extracts are se t out in the fol low ing terms:- ' 2.7 Redu ndancy (1) Notwi thsta ndi ng the prov isions contained in clauses 2.1 an d 2.2 relating to termination and redundancy, the fol l owing provisions shall apply to emplo yees engaged on Civ i l Construct io n work. -- 1 of 2 -- 18 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (6 May, 1994 (2) Definition - 'Redundancy' means a situation where an employee ceases to be employed by an emf loyer, other than for reasons oi misconduct or refusal o duty. 'Redun dant' has a co rresponding meaning. {3)(a) Redundancy Pay - A redundant employee shall receive redundanc 1 tseverance payments, calculated as fo llows in respect o al l cont inuous service (as defined) with the employee s emp loyer provided that any servi ce prior to 22 March 1989 shall not be counted as service unless the emp loy ee is made redundan t by the emp loye r. Period of continuous service w i t h Red undancy/Severance an employer Pay 1 year or more but less than 2 years 2 years or more but less than 3 years 3 years or more but l ess tha n 4 years 4 yea rs or more 2.4 weeks' pay plu s, for al l service in excess of 1 year, 1.75 hours pay per completed week oi service up to a maximum of 4.8 weeks' pay. 4.8 weeks ' pay plus, for all service i n excess of 2 years, 1. 6 hours pay pe r comp leted week of service up to a maximum of 7 weeks' pay. 7 weeks pay plus, for all service in excess of 3 years, 0.73 hours pay per completed week of servi ce up to a maximu m of 8 weeks' pay. 8 weeks ' pay. Provided that an employee employed for less than twelve ( 12) mont hs sha l l be entitled to a redundancy/severance payment of 1. 75 hours per co mpleted week of service if, and only if, redundancy is occasioned otherwise than by the employee.'. Further subclauses sought provided definitions of w ee k' s pay, continuous service, eligibility on death and other matters relating to redundancy . Subclause (7) provided that:- "(7) Employees of Governmen t Depa11ments shal l be paid redundancy payments either under the pol icy for Management of Redundancy in the Queensland Public Sect or of the Queensland Government, or, in accordance with the provisions contained in this cl ause, whichever 1s more favourable to the employees concerned.'. The Crown did not oppose the insertion of the wording i n subclause (7) of the proposed variation. . Ea rlr in pro~eedings the Federated Engine Drivers' and F1_remens Assoc1a11on of Aust ral as ia Queensland Branch, Un ion ot Employ ees {FE Dr A) and The Australian Workers ' Union of Emp loyees, Queensland (AWU) made submissions that a commitment had been given by major parties including the Queensland Confederation of Industry Li mited, Un io n of Employers (QCI) as to the insertion oi the redundancy provisions as sought i n due co urse . Some del ay was experienc ed as a result of certain appeal proceedings i n Western Australia. The QCI on the other hand submitted that the com mi tment m ade on the ir behalf was quali fied. The Comm iss ion after hearing the parties issued a statement on transcript to the efiect that i t was satisfied that any reasonable person appearing for the Union could reasonably believe that a defini te commi tment had been made {Full details of statement p25-26 of transcri pt 18/2/94). The iss ue was not subsequently pursued by the QC! and submissions by the parties were directed to the fol l owing m atters:- 1. Date for accrual of service for redundancy. 2. Exe mption of existing contrac ts . 3. Definition of Civ il Construction. 4. ti li sa tion of Superannuation Fund to meet liabili ti es re Redundancy. Date for Accrual of Service for Redundancy Mr Coogan for the FEDF,\ submitted that the prov1s1on in respect for accrual of service under the Nat io nal Building Construction Industry Aw ard (NBCA) dates from 22 March 1989 although that award was varied i n respect of redundancy on 25 September 1990 . In addition the 22 Ma rch 1989 date was approved for the Building Construction Indust ry Award - State (Mirror Award). It was pointed out that the Sta te counterparts to the NBCA were the M irror Awa rd and the Award current ly be fore the Commission. M r Coogan expressed the view that employers covered by the award were well aware oi the undertakings g iven and emp loy ees should not be disadvantaged as a result of delays i n having this matter iinalised. He su bm itted that the operative date should be the date on wh ich the matter first came before the Commission, nam el y 21 October 1993. Mr Vining for the AWU also emphasised that the parti es were we l l aware that th e redundancy prov isions soug ht wou ld flow to employees under this Award on ce the appeal in Western Australia w as finalised. He dea lt also w ith the relationsh ip s betw een th e NBCA and the present award. M r Power for QCI stated that the provision was in the nature of a deferred payment although ca l l ed redundancy. He stated that the Commission should not impose a retrospec ti ve date of operation but was seek ing that any decision opera te from 10 March 1994, the fi rst date of hearing by the Full Bench. Ms Bray for the Crown suppor ted the submissions of the QC! that 10 March 1994 was appropriate for date of accrual w ith the alternative being October 1993. Reference was made to admini st ra tiv e costs associ ated w i th backdating. The Commission is no t prepared to agree to a backdating for accrual purposes to 1989 where an e mp loyee res i gns of his or her own accord as distinct from having services term inated by the employer. It wou ld impose undue hardship on employe rs . However, it 1s recogn i sed that employers would have been aware for so me time and that the delay in bringing the matter forward was as a r es u lt of appeal proceedings elsewhere and an attempt by the unions to negotiate an agreed posi tion, In the light of all the circum stances, the accrual date in the case of resignation by the employee wi l l be 22 November 1993 . The inclusion of the clause (to be re worded) in the Awa rd will requi re employers to make redundancy payments to emp loyees who have co mp leted at l east one year's service with the employer and cease to be employed with that employer for r easons other than misconduct or ref usa l of duty, but tha t service prior to 22 November 1993 is no t to be ta k en into account i n the event of res ignation by the employee. In regard to the operative date, we determine 18 February 1994, the date on w hich the matter was first heard by the Full Bench . We also indi ca te we are reluctant to approve the u sage of the term ' Redundancy' i n the extended way defined in this application. It is our view that to avoid co nfusion the term "Redundancy• should be restricted to the normall y recognised industrial mean ing, w hich does no t include r es ignations. However, since we are being asked to adopt provisions which already exist by consen t i n other awards applicable in the Buil ding Industry w e w i l l adopt th e term redundancy as used in this application, for the purposes of this Award on the clear understanding t ha t its use in this way is rest ricted to the particular circumstances of the Industry in ques ti on an d does no t involve any acceptance by us that in general usage the meaning of the term "Redun dancy' should be enlarged as outlined in this application. Exemption of Existing Contracts Mr Coogan (FEDFA) stated that an offer was put to employers tha t it woul d be prepared to agree to an exemption for those contr acts w he re work had commenced prior to 18 November 1991 but this was not accepted . He advi sed tha t no exemption clau se was sought when a similar clause was sought under the M i rror Award (in respect of Buildi ng Construction projects) and stated that there were no special and extraordinary circumstan ces 6May, 1994] QUEENSLAND GOVERNME NT INDUSTRIAL GAZETTE 19 under this Award to justi fy exemptions. He referred also to the re lauonship between this Award, the M i rror Award and the NBCA. . Mr Vining (AWU) stated that the substantial majority of work earned out_ by contractors and subcontracto rs under this Award would be to r Lo cal Authori ties an d Councils or the Crown and that __those latter organ1sahons would most likely pick up the add 1t 1o nal cost or renegotiate contracts to take account of any decision by the Commission. Mr Power {QCll put the view that al l contract where work had commenced should be exempt and that th e change should only apply to con tracts commencing after the date of variation. Reference was also made to ~is submissions concerning the ac crual date as we!I as s. 3 ot the Objects of the Act which prov ide 11Her al,a, that the Act is to pr ov ide a framework ior the orderly conduct ot In dustria l Relations in Queensland. Ms Bray for the Crown endorsed the comments by QCI. Reference wa_s made to guarantees by the Government to m ee t the wages ot employees of contractors and subcontractors on Gove rn~nent proJects. She stated that the Cro wn supported exemption fo r ex1s11ng con tracts. It is not unusual ior decisions of the Commi ss ion to have an effect on payments by an employer _but it is the responsi bility of the employer to ensure _t hat appropriate con tractual arrangem en ts are made to protect the interests of the busi ness . In add it ion, the Commission is aware that this matter has been on the agenda for some time and that all parties wou ld have bee n aware the Award_ would be varied, part ic ularly w h en one has regard to the commi tment by the parties. Having . regard . to the circumstances of this case the Commission 1s no t disposed to exemnt existing contracts 1·n h d ec ision. " t e Definition of C1v1/ Construction ,, _rhe parties made l imi ted submissions w ith regard to the dc11n1tion of Civil Construction in the Award. The Commi ssion was adv is ed that wh ilst discuss io ns and negot1at 1o ns had taken place agreement had not be en reached. The _Comm iss ion _was also in formed that th is matter had been under discussion betore Commissioner Bougoure during · the ~pplicat1on tor the $8 sa fe ty net adjust me nt and that the part ies J are 1 to repo rt back to the Commission on this and other matters in u y. It is not a mat te r that requ ir es a Ful l Bench determination and on the subm1ss1on made we understa nd it is causing no real i>,rob lems_ at the present t; me. Accordi ngly, we leave the matter in Comm issioner Bougoure s hands and make no determina tio n. U1ilisa1ion of Superanrwa1ion Funds 10 meet liabili1ies QCI. This matter was ra ised by the AWU and opposed by the Ins ufficient informat io n was placed before th e Commission to persuade us to insert the clau se requested by the AWU . The Commission orders accordingly. R.W. BOUGOURE, Commiss io ner. G.K FISHER, Commissioner. B.J. NU TT FR, Commissioner. Appearances :- ~, J•. Coogan for the Federated Engine Drivers ' and Fi remens ' F sso 1 c1at 1on 0 1 Australa sia Queensland Branch Union of mp oyees. (FEDFAJ ' Mr M. Vining for The Australian Workers' Un ion of E I Queensland. (AWU ) mp oyees, MS C. Br ay for the Crown. Mr . G. Power for the Queensland Confederation of Industry Limned, Union of Employers. (QCJJ Operative Date: 18 February 1994 Decision - Redundancy Released: 27 Apri l 1994 ########## ############### ################## ######### -- 2 of 2 --