Australian Bank Employees Union Queensland Division Union of Employees & Ors v Illaton Pty Ltd [1990] ICQ 11 (1990) 134 QGIG 439

438 I 10472 QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE BR l $B"NE Printed and Published br S. R, Ha mp~un . Go vernnu:m Printer. Vulture- Strct·t. Wooltoongabba 7 July, 1990 [7 July, 1990 D • • • (4 39] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY Annual Subscription $260 ISSN 0 I 55 -9362 Vo l. CXXXIV] SATURDAY, 14 J ULY, 1990 [No_ 13 Q UEENSLAND INDUSTR1AL COURT INDUSTRIAL RELATIONS ACT 1990 Industrial Conciliation and Arbitration Act /961-1988 s. 34 - appeal from decision of Industrial Commission Australian Bank Employees Union Queensland Division Union of Employees a'nd Others AND Illa ton P ty . Ltd. (No. C/3 of 1989) Illa ton. provides services to the Met way Bank and emp loyed people, tncluding the contracting employees, for that purpose. The Metway Bank had evolved out of what had been the Metropolitan Per- manent Building Society. At the time of the hearing of the appeal one of the individual appellan ts had withdrawn from the proceedings and the other had ceased to be employed by lllaton, although she wa s represented by counsel _also appearing on behalf of a body called the Metway Staff Assoc1a11on. Th at body, as I understand it, was an unincor- porated, unregistered association, the members of which were, or included, the contracting employees. • JUSTICE MOYNIHAN. PRESlDENT 4 fo ly 1990 Appeal - Voluntary Employment Agreement - Error of Law - Pubhc Interest - Calling - Federal Award - State Award - Award RespQndency - Expiration of Award- Variation - Wage Payment - Payment by Cheque - Payment into Account - Secret Ballot - Person AI\S"eved - Trade Practices Act 1974 s.47(1 ) - Industrial Concthation and Arbitration Act. Pan VIA -Ju dgmen: - Agreement Ap plies only to Nominated State Award Empl_o ::;~e s - Agreement of no Consequence whe re Federal Award Apphes - Commission invited Interested Party to detail its Con- cerns - "Reaffirmation" of V.E.A. is Not a Variation of it - Any Variati on or Termination that does not Comply with Act is lnelfecuve - Amendment to Agreement Subsequent to Fi li ng of no Consequence as it Related to Position Titles Never Covered by t~e _Agreement - Payment of Wages into Bank Account Not Proh1b11ed by Trade Pracuces Act - Nothing Untoward in names Appeanng on Ballot Papers Evidencing Conduct and Outcome of Ballot - No Error of Law Found - Appeal Dismissed. At t he commencement of t he hearing the representative of the Federated Clerks' Un ion of Aust r alia (Central and Southern Queensland Bran.eh) Union of Employees and the Federated Clerks' 1:(m on of Au_straha, ~orth Queensland Branch, Union of Employees ( the Clerks Union ) withdrew from the proceedings. Jn fact, the mat ena l discloses that the Clerks' Union and the Bank Union were in conflict in the Federal arena as to coverage of the contracting employees and the Clerks' Union apparently decided its interests were best served by pursuing its claims in that arena. JUOO MENT The Australian Bank Employees Union, Queensland Division Union of Employees, ("the Bank Union") and two individuals appeal from a decision of the Industrial Commission pursuant to s. 94D oft~e Industrial Conciliation and A_rbitration Act 1961 - 1988 ("the Act ). This appeal falls for deterrmna11on in accordance with that legisl~IJon; see s. 1.5 of the Industrial Relations Act 1990. The dec1s1on was to approve a volunta ry employment agreement ("the Agreement") entered into between Illaton Pt y. Ltd. (" Jllato n") and certatn at least of the employees of that company ("the contracting e mployees"). 110472 37 Volun tary employment agreements were introduced consequent upon amendment to the Act which inserted Part VIA and which took effect from I December 1987 and which was the subject of further amendment from 5 May 1989. In this context it is ma terial to note that the Commission's approval of the Agreement was given on 28 April 1989. It is sufficient for present purposes to remark that Part VIA relevantly made provision to the effect that, by a voluntary employ- ment agreement made in accordance with the Part between an employer and not less than a specified percentage of employees engaged m ~ calling covered by a particular award, the effect of the award w11h respect to the matters provided for bv the Agreement could be varied in respect of those employees. There were excep- tions to this, but II 1s unn ece ssary to canvass them. Part VIA provided that, subject to conditions not relevant to present. consid_erations, an agreement was to be lodged with the lndustnal Registr~r _who thereby became obliged to refer it to the Industnal Comm1ss1on. By section 94D(3), as it stood at the time relevant t? these proceedmgs, the Commission then might "o f its own mouon and without a hearing" approve the agreement or "after conferring with the parties" approve or refuse to approve the agreement. The Commission could however only refuse to approve an agreement if it was satisfied that - -- 1 of 3 -- 440 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [14 July, 1990 '·(a) the agreement contravenes or prondes for the contrav- ention of any provision of this Part: or (b) it 1s not in the public :nterest that it should approve the agreement.". Every agreement approved by the Commiss10n was to be registered and upon registration it took effect Once effective an agreement could, according to its terms, operate w vary an industrial .:gree- ment, a ,ohmtary employment agreement or, subject to specified exceptions, the provisions of the Act it,elf which might otherwise apply to the employment the subject of the agreements. The notice of appeal is on the ground of error of law whid, is then particularised in a number of specific aspects. In ;he argument of the appeal these particulars were dralt with as tho,1gh they constituted grounds of appeal. This is a con'enient course to follow although it mu,t be remembefed that for s particular to constitute a bases for a successful appeal what is made out must be such as to constitute an error of iaw: see R. v. The Jnd,,stria! o( Queensland and th!' Honourable Jfostyn f!anger, President the Industrial Court and Mt Isa ,Wines (1967) Qd.R. 349. Not all of the particulars of the ground of appeal said TO man1fest error of law were argued and may he taken w have been absndoned. Thus particular (h), to the effect that the Commisswner ought to have investigated allegations with regard to the coercion of con- tracting employees to consent to the Agreement and as to alleged irregularities in the conctuct of a ballot relied on as evidencing the requisite consents, was not pursued. Nor was particular (c) ro the effect that the Commission erred in law in approving an Agreement which "purported to create a new calling of 'clerical employee or 'support staff employee'". No submissions were directed to partic- ular (k) which complained of a lack of reasons for the Commissior• s approval. I turn now to the particulars of the ground of appeal which were argued. Particulars (a) and (b) may be considered together in the context of s. 94B(2) of the Act which provided:-- "By agreement made in accordance with this Part between an employer and no, less than 60 per centum of his employ- ees engaged in a calling covered by a particular award or industrial agreement the effect of the award or industrial agreement with respect to any matter provided for therein ... may be varied in respect of his employees engaged in that calling.". The A.greement provided. by clause 2. that "the calling covered by the undertaking to which this agreement applies is that of clerical employees". Clause 4 of the Agreement provided:- "The State Award which covers the Calling and Undertaking referred to above, and which would have application but for this agreement is the Clerks and Switchboard Attendants' Award (State),". In this context paniculars (a) and (b) of the ground of appeal are to the effect that the award recited in clause 4 was not the award applying to the contracting employees and the calling recited by clause 2 was not apposite to their calling. It was submitted that the Commission erred in accepting that that award applied to the contracting employees because "emplovees of Banking Institutions" were excepted from the application of the award. In the same context it was submitted that the employer was bound by an interim Federal award, the subject of an appeal at the relevant time. It mav be remarked that in so far as the contracting employees may 'be under a Federal award it would prevail and, in any event, the Agreement is expressed to deal only with the State award it nominates and it would be ineffective in respect of other callings and awards. In my view it was open to the Industrial Commission to conclude that the contracting employees were clerical employees but that they were not employed by a banking institution. The evidence was entirely susceptible to the conclusion that Illaton was a separate legal entity and did nothing but provide services. albeit to a bank for which purpose it employed the contractinjl; employees who carried out functions which were essentially clencaL It is true that the bank may, if it chose. have itself employed persons to do the work covered by the services which it arranged to be done by Illaton. It is also true that, putting it shortly, Illaton's employees were encouraged to identify themselves with the Metway Bank. The fact was. however. that the employees were not employed by a bank, nor a building society. but a separate legal entity which was neither. To accept them as being covered by the award recited in the Agreement therefore does not demonstrabiy reflect an error of law on the part of the Commission in approving the Agreement. The ground of appeal therefore, in so far as it is founded on particulars (a) and lb), in my view, fails. Particular ii) is to the effect that the Comnnssion erred rn law in approving the Agreemem without taking into account a consid- eratinn "relevant to the public interest" (s, 94D(4)(b) of thr Act) that a dispute finding had been made between the Bank Union and lllaton in the Australian Industrial Relations Commission on 23 March, l 989. As I ha"' already said, if the contracting employees came 10 br ccYerec: hv a Federal ,n,ard, the Agreement. by its terrns, would have 110 c:on:leq:.;ence and 1 in any ev::nt, the a\vard would appl:,. The activities of parties leading up and following on matter:, being raised in the Federal area were primarily for the Federal Tribunal to assess and respond to m lhc context of the proceedings before it. There may have been considerations founding an adJournment or the Commission's declining to consider the approval of the agreement. Ev~n it' ther~ were, it has not been demonstrated 1ha1 the Commission ened in law by approving the agreement rather than adopting such a course. Particular (g) of the ground of appeal is to the effect that the Commissioner erred in law by approving the Agreement without '·properly informing himself' as to whether he should approve it by hearing "full submi,s1ons·' from the Bank Union which was said to represent the contracting employees and to be the trade union registered in respect of the callings of the employees. l will not repeat what I said in respect of callings and award in dealing with particubrs la) and (b) It is howeve£ apposite to this ground so as to at least throw doubt on the contentions inherent in the latter part of the particular as to the calling and coverage oi the contracting employees. It is true that there was not a hearing by the Commission based on the model of an adversarial trial in which the Bank Union appeared. The evidence discloses however that the Bank Union was invited to put, and did pnt before the Commission, extensive submissions which made it apparent among other things, that it was cognizant of the terms of the Agreement. The submission included, for example, documents making a comparison with terms of the Agreement and comparable provisions of various awards. The Commission invited the Bank Union to lodge affidavit material detailing its concerns and invited it to attend upon the Commis- sioner dealing with the matter to address any concerns detailed in the affidavit. These opportunities were availed of and a subsequent letter reiterated and expanded the concerns expressed on those occasions There was no suggestion that there was any matter which could have been urged on the Commission by the Bank Union but which wa, not or could not be dealt with. It may be remarked that other rnterested parties availed themselves of similar opportunities provided by the Commission in order that it might mform itself in respect of matters bearing on the exercise of its jurisdiction in respect of the Agreement. It will be recalled in this context that the Commission's jurisdiction to refuse to approve an agreement was confined to the grounds specified by section 94D(4) which I set out earlier. The specific circumstances being those I have outlined, in my view, particular (g) of the ground of appeal has not been made out. Particular (d) of the ground of appeal is to the effect that the Commission erred in law by approving the Agreement when it contained a term allowing it to be varied from time to time by further agreement contrary to sections 94K and 94L of the Act. The ground is a reference to the provisions of clause 3 of the Agreement. The clause shows signs of scissors and paste drafting. Clause 3a is to the effect that the Agreement is to operate from the day of registration and to remain in force for a period of three years unless terminated earlier in accordance with the provisions of paragraph b of clause 3. That sub-paragraph provides:- • • • • 14 July, 1990) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 441 "(i) Aft_er a period oi: 12 months of operation the parties shall Jomtly or severa1ly reassess the contents and tenns of 1his Agreement to determine if it will be re-affirmed. (ii) Upon re-affirmation this Agreement will thereafter con- tinue in force as provided for in Section 94K(2) of the Act and such re-affirmation shall be conveyed in writing to the Industrial Registrar.". Clause 3c provides that, notwithstanding the foregoing provisions of clause 3, the Agreement may be varied from time to time by further agreement. Section 94K of the Act provided that, unless sooner terminated pursuant to section 94L, an agreement was for the term specified therern and not less than 12 months nor more than three vears. Section 94K(2) provided that an agreement shall continue in· force after the expiration of its term unless and until it is terminated in accordance with section 94L That section provides that an agree- ment may be terminated after the expiration of 12 months from the date of its registration and before the expiration of the term of the agreement by notice in writing delivered to the Registrar and satisfying certain specified requirements. In the case of the Agreement: that would require, inter alia, a notice signed by 40 per cent of employees bound by the Agreement. It was submitted for the appellant that the provisions of clause 3c permitted variation of the terms of the Agreement from time to time by further agreement contrary to the provision of section 94K. It seems to me however that the provisions of clause 3c are capable of being performed lawfully. Reaffi_rmation in terms of the Agreement is not a variation of it. A registered agreement c_an be varied by a voluntary employment agreement itself conform mg with the Act; section 94E. Termination is provided for in the provisions of the Act to which I have referred. Although clause_ 3a spe_aks of the Agreement continuing m operat10n unless termmated m accordance with "paragraph b hereof', paragraph b provides for affirmation not termination and clause 3c 1s conformable with the provisions of the Act which as I have said provides for variation by an agreement complying with its terms. A purported variation, or for that matter termination which did not comply with the Act would simply be ineffective. ' Particular (i) of the ground of appeal is to the effect that the Agreement was amended after it had been filed in the Industrial Commission and without evidence that at least 60 per cent oi the employees of Illaton had agreed to the Agreement as amended. Clause 8b(ii) of the Agreement provides that full-time support staff employees, 21 _years of ag_e and over, are to be graded according to work_allocat1ons set out m Schedule I of the Agreement. Schedule l contams five grades with allocation to each grade in accordance with a "position title". The position title "canteen assistant" is contained in grade l and that of"canteen supervisor" in contained within grade 3. Those position levels were deleted from Schedule I after the ballot and indeed after the Agreement had been lodged with the Registrar. Persons employed to carry out the work of those positions were not on any view of it in the calling of clerical employees or covered by the Clerks and Switchboard Attendants' Award - State. That was ti~at calling to which the _Agreement was expressed to apply and that award which was said to have had application but for the Agreement. In the circumstances therefore the deletion of the categories mentioned from the Schedule to the Agreement does not have any consequence but to remove from the Schedule to the Agreement reference to position titles never covered by the Agreement. I turn now to particular (f) of the ground of appeal. Cla_use 5a of the Agreement provides that those employed pursuant to its_ terms are to be paid by the fortnight subject to agreement m wntrng for payment to be made on some other periodic basis. By clause 7 wages may be paid either by cheque or direct deposit mto an account which the employer may require to be maintained at Metway Bank Limited. _These provisions lead to particular (e) of the &round of appeal which contends that the provision to which I have Just referred i_s _contrary to law and to public interest "having regard to the prov1s10n of the Trade Practices Act". Particular reference is made to section 47(1) of the Trade Practices Act 1974 (Commonwealth). This provides that "a corporation shall not. in trade or commerce, engage in the practice of exclusive dealing" and goes_ on to p_rovide that _a corporation engaged in the practice of excl.us1ve deahng, 1nrer a/ta, as to the supply of services on the cond1t10n that the person to whom it supplied the services would not acquire goods or services of a particular kind or description directly from a competitor of the corporation. I find it _difficult to be persuaded that the p_rov_ision of the Agreement complamed of comes w1thm the proh1bll!on relied on. Illaton utilise1 it;, e_mpl_oyees for the supply of services to the Metway Bank tor whJCh 1t paid them wages. The clause provided that for the purpose of the payment of those wages it might require them to open a bank account to which the wages were credited. It is to be doubted whether there was a relevant supply of services. More- over, there is nothing in the clause prohibiting the person to whom the wages were paid in having an account maintained other than at Me_twa1· Bank Limited. or for that matter requiring the person ro mamtam an account there other than for the purpose of receiving the wages. Moreover, sect10n 51(2) of the Trade Practices Act provides that in determining whether a contravention of a provision such as sect1o_n 47 has been committed, regard shall not be had to any prov1s10ns of a contract in relation to the remuneration conditions of employment, hours of work or working condition; of employees. In the circumstances therefore I do not think this particular of the ground of appeal has been made out. Particular ( f) of the ground of appeal is to the effect that the Commissioner erred in law in approving an Agreement said to be accepted by at least 60 per cent of the employees when such consent was obtamed by use of ballot papers which contained the name of each person required to vote on the face of the ballot paper. The question of the ballot arises because section 94B(2) of the Act provides to the effect that in order to comply with the legislation an agreement is to be between an employer and "not less than 60 per centum of his employees engaged in a calling covered bv a particular award". By section 94C(l) an agreement was to be- in wntmg and "executed by the parties thereto". Section 94C(2) pronded for execut10n by an employee authorised in writing by other employees who are parties to the Agreement. The ballot paper was in a form designed to take advantage of this provision. A ballot was a means of ascertaming employees' consent or refusal of consent and evidence of the conduct of the ballot and its outcome was a means of establishing the consent required by statute has been obtamed; see also the Commission's Practice Note of September l 988. It well mav be that in the context of contentions of coercion or other irregularities the fact that the name of an employee appeared on the ballot paper could be a material con- sideration. As I have said, however, grounds of appeal raising such 1;sues were not argued. Such issues aside, there is nothing to md1cate that there was anythmg untoward m evidencing compliance with the prov1s1ons of the Act bv the ballot in which the ballot papers carried the names of those voting. It remains to say that I had earlier deferred a determination of the question of whether the Bank Union had standing (i.e. was a party aggneved by the decision of the Industrial Commission in terms of section 34 of the Act) to bring the appeal. It was for the reason, among others, that it seemed to me that determination of that_ question depended on the resolution of issues raised by the particulars of the ground of appeal, notably particulars (a), (b), (c) and (h). The latter particulars were. as I have already indicated, m the event not argued. In the particular circumstances of this case, it seems to me the J?Oint is appositely disposed of by saying that the Bank Umon part1c1pated, at the Commission's invitation, m the _process the Commission undertook with a view to satisfying itself 1t was appropnate to approve the agreement. None of the particulars of the ground of appeal argued before this Court by the Bank Union have been sustained to the extent founding a conclu- sion of error of law justifying this Court's interference with the Industrial Commission's approval of the Agreement. It is therefore unnecessary to take the matter further. The appeal would therefore, in any event, be dismissed and that is the order I make. M.P. MOYNIHAN. President. Appearances:- Mr_ R. Hanger (and Others), (instructed by Messrs Callaghan and Reid)!) for the Australian Bank Employees Union, Queensland Div1s10n Umon of Employees. Mr J. Murdoch (and Others), for Illaton Pty. Ltd. -- 2 of 3 -- 442 QU EE NSLAND GOVERNMENT INDUS TR IAL GAZETTE Ms A. Milner (and Others), (instnicted by Henderson Trout) for the Metway Group Staff Association and J.M. Bell . Mr P. Channell (and Others), (instructed by Peter Channell and Associates) for the Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees and Fed- erated Clerks' Union of Australia, North Queensland Branch, Union of Employees. Operative Date: N/A Judgment - Appeal - Illaton V.E.A. * (14 J uly, 1990 14 July, 1990] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 443 • • • • -- 3 of 3 --