Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Pacific Waste Management Pty Ltd [1994] QIRC 190 (1994) 146 QGIG 34

34 QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE [6 May, 1994 ################################################### QUEENSLAND INDUSTRIAL RE LATIO NS COMM ISSION Industrial Relations Act 1990 s. 45 - application for re-openi ng Federated Engine Drivers' and Firemens' Association of Australasia Queensland Bra nch, Union of l:mployees AND Paci fic Waste Management Pt y Ltd AND The Australian Workers' U nion of Employees, Qu eensland ( No CA18 of 7993) PACIFIC WASTE MANAGEMENT ( BR ISBANE LANDFILL) CERTIFI ED AGREEM ENT COMMISSIONER FISHER 26 Apr il 1994 Certifi ed Agreement - Application to Re-Open - Appe al - Appeal Dismissed - s. 112(1) - Cumulative Conditio ns to be Sat isfi ed - New Busi ness - Employment Relationship - Award Cover age - Conflicting Case Law - Cri teria to be Satis fied at Tim e Agreemen t Made - s. 112 Criteria Met - Certii i ca ti on Sta n ds - No Bas is to Re-Open - Application Refused. DECISION Th e matter for determination i s w hether the Commission should re-open the proceedings relat ing to a certified agreement made betw ee n Pac ific Waste Management (PWM) and the Australian Workers' Union oi Empl oyees, Queensland (AWU) in respect of the Brisbane La ndfi II (CA 18 OF 1993). The application for re-op en ing is made by the Federated Engine Drivers' an d Fi re mens' Association of Australasia Queensland Branch, U nion of Employees (FEDFAJ pursuant to s. 4.26 (now s. 45) of the Industrial Relations Act 19 9 0. BACKGROUND The fol lowing brief background assists to place the c urrent ap pli ca tion in contex t. An app lication seek ing the certi fi cat ion of an agreement made between PWM and the AWU was lodg ed in the Industri al Registry by PWM on 12 May 1993 . The matter was heard before the Comm iss ion as currently co nsti tut ed on 26 May 1993. In deciding to certify the agreemen t, the Commiss io n took into account the submissions made by the parti es and the contents of the affidavit lod ged by Mr Ran dall Hall, Gen era l Manger, Queensland of PWM . In pa rtic ular, the Commission wa s informed that the agreement:- app lied to a new bu si n ess which at the date of application h ad not engaged any employees wh o would otherwise fall under the agreemen t; an d had b een made w it h an industrial organi sat ion of employees that was able to represen t emp loy ees who w ill be engaged under the agreement. On 7 June 1993, the FEDFA fi l ed an application seeking to re-open the proc eedings of 26 May 1993. At the i nit i al hearing Mr Lud wig for the AWU raised a t hreshold point that the Commission did not have jurisdiction to entertain an application for re-opening. In my decision of 1 Ju ly 1993, the Commiss io_n found that jurisd ictio n was conferr ed (143 QG IG 550). This decision was appealed by PWM but it was dismi ssed by decision of the Pres id en t of the Industrial Court dated 15 November 1993. ( 144 QG IG 657) In li ght of the Pres ident's decision whic h elaborat ed on the proper approach to re-opening proceedings: the Commission must now de te rm ine wh ether the proceedin gs leading to the certification of the ag reemen t sh ould be re-opened. It should be noted that the public in te rest is not a factor for consideration. SUBMISSIONS AND CONCLUSIONS Sec tion 1 12 (1) of the Industrial Relations Act 1990 ob l iges the Commission to certify an agreement made under s. 110(2) of the Act if it is sat i sfi ed certain condi tions are met. These conditions are cumulative. The FED FA conten ds that not all of the condi ti o ns we re met, thus providing the Commission wit h a bas is to re-op en the proceedin gs . Th e condi tions under s. 112( 1) which are non contentious are con tained in paragraphs (a), (bl, (d} and (f) . The FEDfA's argument is l ed in respect of pa ragraphs (c) and (e). By the drafting of s. 112, sub sec ti on 1(c) has a connection w i th subsection (3) and subsection 1(el i s connected to subsectio ns (4) and (5). Subsec tio n (3} relieves an i ndustrial organisation of emp loyees of the obligation im posed under subsection (l)(c) to consul t w ith i ts members over the terms of the agreem en t and to in iorm them of the inten tion to apply for certification. An industri al or gan i sa tion of employees is so re li eved if the agreement 'appl i es to a new business, project or undertaking an d no members of the industrial organisation have yet been employed in that connection at the t im e when the appl i ca tion fo r certifi cation wa s made. The questio n of whether subsection (3) was satisfied, thus negating the obligation of the AW U to co nsult, was central to the debate which occurred at the re-opening hearing. Bec ause al l con ditions listed in s. 112(1) must be met in order for the Commission to cert ify an agreemen t, I intend to respond to the arguments advanced in r es pect of this iss ue. However, in my view, what is p ivotal is not the sat isf act ion of s. 112(3) but s. 112( 1He) and the related subsect io ns (4) and (5 ). I ha ve formed the view that subs ec tion (1)(cl does not apply to th e AWU as the cumu lative criteria in subsection (3) ha ve been met. In my view, PWM 's opera tion of the Brisbane Lan df ill (a nd associated w as te transfer station s) is a new b us i ness, project or undertaking. Although th e Brisbane Landfill itself ma y not have been a new busin ess, project or undertaking at the time when PWM ass um ed operations, given the previous involvement of Th i ess Contrac to r s, the Commission believes that PWM is co nducting a new bus i ness, project or undertaki ng. I accept Mr Ludwi g' s po int that PWM did not take over the d ebts or assets of Thiess bu t commenced operations under a new and separa te contract with the Br i sba ne City Council. The other aspect of subsection (3) which needs to be sat i sfied i s tha t at the time of application for certi fi ca tion no members of the industrial organisati on have yet been employed. There are two facets to this poi nt. Fi rs tl y, th e phrase 'no members of the industrial organ is ation• in pa ragraph (b) of subsection (3) must be read in co njunction with the introductory words of su b sec tio n (3) where it provides that, 'Su b sec ti on ( l )(c) does not apply to an industrial organisation of employees if' . (my underlining). ' lhe' industrial organisa tion referred to in paragraph (bJ pa rticu lar ises •an• indust ri al organisation re fe rred to the introductory words. The second aspect concerns whether members of the industrial organisation had been employed at the time when the application for certi fication i s made. If my interpreta ti on of •an' industrial o rga ni sa tion and 'the' industri al organisation is correc t, then the reference to 'membe r s' wo uld be to members of the AWU. Th ere has been no evidence to suggest that any members of the AW U were employed at the ti me appli ca ti on for cert ification was made. The FEDFA co nten ds however, that certain of the ir mem be rs were emp loyed at the relevant time. Thu s, in the event my i nterpretat ion is incorrect, i t is necessary to examine the FEDFA's argument. In this regard the FEDFA cal l ed eviden ce from M ich ael Frances Morr ison, a plant operator employed by PWM at the W i l lawong Transfer Stat io n. Mr Morrison explained to th e Commission how he had previously been employed by Th iess Contractors for some nine to ten years. When it became k nown that PWM had been awarded the co ntract for the Brisbane Landfill, Mr Morrison sent a written 6May ,J994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 35 application to PWM seek ing a position with the Company. Mr Morr ison undertook an aptitude test and was also mterv1ewed by the Quality Assurance Manager. By letter dated 10 May 1993, Mr Morrison was advised in the following terms: It is with pleasure that we advise tha t you have been successful in your application fo r employment wi th Pacific Waste Managemen t Pty lim it ed . Please be at the Gardner Road Landfill site at 8,00 am on Monday the 24 th May, 1993 and bri n~ w ith you any relevant certifi cates of competency, dr ivers licences, your ta x file number and banking detail s. Congratulations on your appointment and we look iorward to meeting with you on 24th May, 1994.' . Fr om this letter the FEDFA argues that a contract of employment between Mr Mo rrison and PWM came into existence on 10 May 1993, two days prior to the application seek ing certi fication of the agreement being made. The AWU contends that the letter to Mr Morrison should not be construed as a contract of employment as, amongst other reaso ns, it was not accompanied by val uable consideration. The letter cou ld be regard ed as an offer which could only be forma l ised by M r Morrison attending ior work on the nominated day. On this poin t, I prefer the AVVU's argument. Mr Morrison became employed by PWM on 24 May 1993 when he attended for work. The letter was an offer of employment, accepted by Mr Morrison's presence on the nominated day. 1 he p ivo tal issue is, in my view, s. 112(1 }(e) or alternati ve ly s. 11 2(4) or (5) . Subsection (1)(e) relates to an agreement which applies to a single business, part of a single busi ness or a single place of work. The term •single business• is defined in s. 109 of the Act and means:- (a) a busi ness that i~ carried on by a si ngle employer; or (c) a single project of un'~j~·;i~·king. There was no debate before the Commi ss io n which suggested that the Br is bane landfill did not meet the definition of 's ingle business• or alternatively, was part of a single business or a single place of work . Having established tha1 the Bnsbane Landfill sa tisfies the test set out in lhe introductory words oi the subsection it is now necessary to determine whether an award binds an employer in respect of the work performed in the business, part of a busi ness or place of work. Should an award be found to bind the employer, then each industrial organisat io n which is a party to the award is to be a party to the agreement. Alternatively, if no such award is fou nd to exist, then an industrial organisation of employees that is able to represent the industrial interests of the employees who are covered by the agreement is to be a party. These alternatives are subject to the exclusions found at subsections (4) and (5). The FEDFA contends that the Civ i l Construction, Operations and Maintenance General Award - State applied by re ason of subclause (7) of clause 1.2 (Award Coveragej which provides as fol lows :- "{7) All class,es of engine drivers, crane dr ive rs and any other workers tor whom rates of pay are prescribed in clause 3} engaged upon or assist ing in wo rk incidental to the use ot earthmoving machinery." lhe fE OFA is a party to this Award. PWM and the AWU argue that no award was binding as no employees were employed at the relevant time. It seems that the Civil Construction, Operations and Maintenance General Award - State would be the relevant award lo cover the work at the Bnsbane Landfil l 1f no other industrial instrument applied. However, the existence of an employer- employee relationsh ip is a prerequisi te for an award to have appl ication. I earlier found that no such relationship ex ist ed at the time the agreement was made. According to the decision of Mackenzie, P., in examining the application of paragraph (e) of s. 112(1), " . . . the only matters that w i ll not be apparent on th e face of the agniement are whether the union wh ich seeks to re-open had any members employed in the business, part oi a business or place of work al the time when the agreement was made . ..' (my underlinin g). Clearly, Mackenzie, P., believes that in determining whether the criteria listed in paragraphs (a) to (f) of s. 112(1 ) are satisfied, the Cornm1ss1on must have regard to the ti me when the agreement was made rather than either lhe time oi appl ication for certiiication or the time of cert ii ication . It should be noted that the approach taken by Mackenzi e, P., in this matter differs from the approach of a Full Bench of the Australian Industri al Relations Commiss io n Oust ice Boulton, Deputy Pres ident Wi l liams, Commi ssioner Blair) in their decision of 18 November l 993 r ega rding Morr ison Knudsen Corporation of Austral ia Lim ited Certifi ed Agreement 1993. (Pr int L0024). In thei r decision, in considenng whether the prov isions of 'sub - subparagraph (A) of s. 134(1 ){e)(i)' (the corresponding section to s. 112(1)(e)(ii(A)J were satisfied by exa m ining whether the Metal Industry Award applied to the particular business ,n question, the Fu l l Bench said tha t "at the l ime of ce rtification, the Com pa ny did not employ any persons under that Award at i ts Whyalla operati ons and therefore may not h ave been an employer bound by the Award in respect of the work performed in the bus in ess, etc.' (p.5) (my underlining). It is evident from this decision that the Fu l l Bench believes that the relevant da tu m point tor considering the criteria in s. 134E(1J (the corresponding section to s. 112(1)) is at the time of certification and not when the agreement was mad e. In the event that Mackenzie, P., had not addressed thi s issue i n his decision, I would be disposed 10 iollow the deci sion of the Full Bench in Re Mo rrison Knudsen . In such circumstan ces, the Commission would need to cons,der the application of subsections (4) and (5) of s. 11 2 and it would appear th at the FEDFA's position would have reasonable prospects for success as at the time of certification employ ees were employed. In th is rega rd I would again no te that the Full Bench in Re Morr i son Knudsen, in di scuss i ng that application of subsection (5), ta lks about • at the time of certificat i on'. Given that Mackenzie, P. , said in his decision that the Commission, i n determining the app li cation of paragraph (e), is to have regard to the time when the agreement was made, I am bound to follow th is decision. Accordingly, I determine that paragraph (A) of subsection ( 1)(e)(i) does not apply to th e instan t matter. No argument was put that the A WU does not have coverage oi the work in question. From the copy of the Ru l es of the AWU tendered during the initial hearing leading to certificat io n I believe the Avyu has the relevan t coverage. Accordingly, the requirements ot paragraph (B) have been met. I consider that placitum (ii) of subsection (1 )(e) has also been satisfied. G iven my fin dings i n respect oi s. 1 12(1 J(e) it is unnecessary to turn a1tention to subsections (4) or (5) of s. 11 2. In the ci rcumstances as outlined I am satisfied that the requiremen ts of s. 112 have been met and accordingly, cert ification of the agreement must stand . There is no basis to re- open the proceedings. The application is therefore refused . I order accordi ngly. G.K.~ ISHlR, Commissioner Appearances:- Mr J. Ludwig for The Austral ian Workers' Unio n of Employees, Queensland. Mr M . Belfield ior the Metal Trades Indust ry Association of Australia, Queensland Branch, Union of Em ployers and with him Mr M De leacy for and on behalf of Pac ific Waste Management Pty Ltd. Mr G. W ilson and Mr C. Pri ce for the Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch Un io n of ( mp loy ees. ' Operati ve Date: N/A Decision - Application to Re-open Released: 26 April 1994 -- 1 of 1 --