Federated Engine Drivers' And Firemens' Association of Australasia Queensland Branch, Union of Employees v Pacific Waste Management Pty Ltd [1994] ICQ 27 (1994) 146 QGIG 835

834 QUEE NS LAND GOVERNMENT INDUSTRIAL GAZETTE (21 October, 1994 21 Ocrober, 1994] QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE 835 ############ # ################# ########## ####### ### ##### QUEENSLAND INDUSTRI AL COURT Industrial Relations Ac/ 1990 s. 118(2) - appeal from decision of indus tri al comm is sion Federated Engine Dri ve rs' And Fi rernens· Association of Australasia Queensland Branch, Uni on of Employees AND Puc i fic Was te Management Pt y Ltd AND Another (.'Vo. CJ3 of 199-IJ JUSTI CE MACKENZ I E. PRESIDENT ! 0 October I 994 Appeal - Decision of Industrial Comm ission - Re-open ing -· Certi fied Agreemen t - s. 11 2 now s.160 of th e !ndusirial Relations Aei 1990 - Pa rt y 10 Agreement - Emp loyed in the business part of a business or place of work - Single b usin ess - Con tract of emp lo yment - Appeal dism issed. JUDGMl::NT This is an appea l against an In dustr ia l Co mmi ssioner's re fu sal to re-open an appl ication for certitication of an agreement und er s. 112 of the Industrial Rela1ions Ac1 /990 as it stood prior to the 1994 amendments. The sole ground arg ued related 10 the appl ica ti on of ss .11 2(3) and (5) which are concemed respectively with whether members of an indust ria l organisat ion have yet been employed in connection with the business project or undertaking and whether no ne of the members or an i ndu strial organisation of employees we re em pl oyed in th e bu sine ss part of a business or place of wo rk at th e relevant ti me for conside ra ti on by the Co mmi ss ion . Section 112( 3) may be immed iately pu t aside because it is concerned with a situation where an industrial organisation of employees is a party 10 the agreement. In the present case FEDFA was 11 01 a party to the agrcemcnl. The obligation to consult appl ies onl y where an indust ria l or ga ni slltio n of employees is a pa11y to the agreement and members of it have before the ap pl ication f'or certification was made been ernployecl in connection wi th the bus iness project or undertaking. It says nothing about who should be parties to th e Agreement. That issue is dealt with by s. l 12(1)(c)( i) and ss. 112(4) and (5). Sect ion 112(4) does not app ly, on the facts before me. The question th.:n is whether on th e facts. s.112( I)(e) remains operative on the basis that FEDFA ,vas a party to an award that bound an employer in respect of the wo rk perfonned in the bus in ess, part of the business or place of work and that the exclusion in s. 11 2(5) does not apply. The effect of s.112(5) is that the requir~ment that each industrial organisation of employees that is a party 10 an awa rd that binds a.n em ployer in respect of the work perfonned in the business part of a bu siness or pla..:e of work be a pany to the agreement. does not apply if none of its members are employed in the business part of a business or place of work concerned. The agreement was signed on f 2 Moy I993 and the application fo r certification was made on the same da). Certification occurred on 26 May 1993. it 1s subm it1cd by FEDl'A that prior lO 12 May 1993 one o f it s members had been employed in lhe business part of a husm ess or place of wo rk. I s ho u ld a ls o note th at there was re fere nce to the possibility of' an AWU member having been employed pnor to the relevant dat~ . However. that seems to ha ve -- 1 of 2 -- -- 836 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (21 October, 1994 not been accepted by the Commissioner, a11d therefore ii becomes unnecessary to consider the sufficiency of evidence of consu lt ation which is required under s.112(1 )( c) if that had been so. Section I 12( l)(e)(i) assumes an agreement which applies to a single business, part of a single business or a single place of work. Once such an agreement is found to have been made the subsequent steps in the inquiry are the following:- (a) what is "the work performed in that business"; (b) is there an award that binds an emp loyer in res pect of that work; (c) is FEDFA a party to that award; and (d) ifso, are any of its members employed in the business? It is conceded by FEDFA that there is a single business. Therefore an agreement which app lies to a single business has been made between the A WU and Pacific Waste Management. It was common ground that the Civ il Construction, Operations and Maintenance General Award - State would cover work at the Brisbane Landfill. If there were "an employer" that award would bind in respect of work perfonned in the business. TI1ere is no dispute that FEDFA is a party to the award. Because it is a fundamental issue to be resolved, it is convenient to consider nex t the question whether Mr Morrison was employed in the business at the critical date. Mr Boccabella abandoned the argument that the critical time in respect of emp loyment was the date of certification o f the agreement. He conceded that that appropriate date was 12 May 1993 for the purposes of the proceedings. The facts relied on in support of this proposi tion arc that Mr Morri son (who is said to be a member of FEDFA but which Mr Herbert for the respondent di sputes) became aware that Pacific Waste Management had been awarded the contract for the Brisbane Landfill. He sent a \Hillen application to the company on 6 January 1993. He undertook an aptitude test an d was interviewed by the company's Quality Assurance Manage r. Then on l O May 1993 a letter, the material parts o f which are as follows was received by him: - "It is w ith pleasure that we advise that you have been s uccessfu l in yo ur applica ti on for employment with Pac ific Waste Management Pty Li m it ed. Please be at the Gardner Road Landfill site at 8.00am on Monday the 24th May, 1993 and bring with you any relevant certificates of competency. drivers' licences, your tax file number and banking deta il s Dress will be casual as most of your time will be spent in the training room. We will be breaking for morn ing tea, afternoon tea and will be taking approximately 45 minutes for lunch. With this in mind we suggest yo u bring your lunch with you du ring you r training period. Congratulations on your appointment and we look forward to meeting with you on the 24 th May, 1993." It was submitted on behalf of FEDFA that thi s sequence of events resulted in Mr Morrison being employed in the business prior lo the agreement being concluded between the A WU and Pacific Waste Management. The A W U and Paci fic Waste Management submitted that the letter of IO May 1993 was no more than an offer of employment which could only be converted into a contract of service by Mr Morrison attend ing for work on the day nominated in the letter. The Comm issioner accepted the view that Mr Morrison became employed by Pacific Waste Management on 24 May 1993 when he attended fo r work on the date s ti pu lated in the letter. The analysis of contracts of employment in terms of offer and ac.ceptan ce is often complicated by the particular facts of the case. There is often a degree of infom1ality about the process and it is not uncommon for an indication that an employer is prepared to employ a person to be classified as an offer of emp loyment which must be accepted by the employee. In such a case the acceptance by the employee must occur in the way stipulated by the employer in the offer for a contract to come into existence. The issue in this case is whether as a result of the letter of IO May 1993 Mr Morrison was from that time "employed" in the business by Pacific Waste Management. The thrust of FEDFA's submissions was that. once that letter was wr itten, he was employed by Pacific Waste Management. It was also submi tted that serious consequences could now if an employer and a union could take advantage of s.112(5) by making an agreement to the exclus ion of another union, bu t only because members of the excluded union who had been recruited did not become employed until after the critical date. Th is complaint is not without substance in an industrial sense, but, in the end, the ques ti o n whether s. 112(5) is applicable will depend on whether a member is "employed". That depends on the app lication of the rules relating to fom1ation of contracts. Having rega rd to the form of the communication of IO May 1993 to Mr Morrison the proper conclusion is that Pacific Waste Management agreed on 10 May 1993 to emp loy him fr om 24 May 19 93 . He began to be "employed in the bus iness" from 24 May 1993. l note in passing that the present s.160 speaks of "employed for the business". Whether that expresses the same requirement or no t does not fa ll for consideration on this occasion. T he evidence d iscloses that Mr Morrison was employed in the business from 24 May 1993. On the basis of the concession as to the relevant time for detennining whether a FEDFA member was employed in the business, the appea l must fail because on 12 May 1993 Mr Morrison was not employed in the business. In the circumstances, it is not necessary to consider the sufficiency of the ev id ence that Mr Morrison was a member of FEDFA, nor to embark up-0n any consideration of my obiter remarks in the earlier proceedings or the Morrison K~ decision referred to in the Commissioner's decision. The appeal is dismissed. Dated this tenth day o f October, 1994. K.G . W. MA CKENZIE, President. Appearances:- Mr L. Boccabella (instructed by Peter Channell & Associates) for the Federated Engine Drivers' and Firemens ' Association of Australasia Queensland Branch, Union of Emp loyees, Mr A. K. Herbert (instructed by Blake Dawson Waldron) for Pacific Waste Management P1y Ltd and The Austra lian Workers ' U nion of Emp loyees, Queensland. Operati ve Date: N/A Judgment - FEDFA and Pacific Waste Management Pty Ltd and AWU Released: IOOctober 1994 21 October, 1994] QUEE SLAND GOVERNMENT INDUSTRIAL GAZETTE 837 -- 2 of 2 --