Australasian Meat Industry Union of Employees (Queensland Branch) v Overseas Game Meat Export Pty Ltd [2004] QIRC 129 (2004) 176 QGIG 589

6 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 589 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 87 – orders about severance allowance and other separation benefits Australasian Meat Industry Union of Employees (Queensland Branch) AND Overseas Game Meat Export Pty Ltd (No. B205 of 2004) COMMISSIONER BECHLY 23 July 2004 DECISION The Australasian Meat Industry Union of Employees (Queensland Branch) has sought orders for the payment of redundancy and notice of termination of employment for two employees of Overseas Game Meat Export Pty Ltd. The employees, Mr A.E. Beck and Mr P. Paraha provided evidence as to conversations between them and the Production Manager Mr Robert Lattimer. Mr Lattimer was not called by the respondent to provide evidence. The respondent was represented by Mr C. Harwood, a director of the respondent. Mr Harwood provided sworn evidence. The respondent operated a meat processing plant at Nerang on the Gold Coast. A decision was made to close that plant down and move the operation to Walkuraka near Ipswich, some 120 kilometers away. Mr Beck lived at Labrador and Mr Paraha lived at Helensvale, both areas relatively close to the Nerang operation requiring a short travel time in the order of 20 minutes each way. There was minimal cross-examination of the witnesses. Both the employees were offered employment at Walkuraka and both declined on the basis of the substantial additional daily travel involved. The total new travel time proposed for Mr Beck was in the order of three hours daily. Mr Beck’s evidence is that he traveled from Labrador to Walkuraka on the weekend noting the distance to be 120km with a travel time of approximately 1.5 hours. Whilst no specific times were quoted by Mr Paraha a similar additional time applied to him. Of concern to both was the fact that the travel to Walkuraka involved payment of toll on several occasions each way, each day. The lack of evidence from the Supervisor, Mr Lattimer together with the minimal cross-examination of the applicants produces some difficulty. I can only rely on the evidence before me including of course the evidence of Mr Harwood. Mr Harwood states that in mid January 2001 plans were finalised for the refurbishment of the Ipswich site and the reduction of the usage of the Nerang premises. Staff were offered continuing employment at the new site. Some staff elected to retain their positions and some decided that they would take the opportunity to resign and move to other jobs. All staff had been given advance advice and the respondent did not find it necessary to make any staff redundant. The respondent established a car-pool arrangement. All tolls, fuel etc., are paid by the respondent. The proposal was apparently offered to the applicants but, on their evidence, the proposal was shaky with little detail as to the provision of vehicles etc, payment of fuel and tolls or length of time that the arrangement would remain in place. The vehicles provided by the company alternate between a utility and a Hi-Ace van. A privately owned vehicle of an employee is also used. The operations at Ipswich are much smaller than those at Nerang, both as to plant operations and office staff, although it is expected to grow. Currently there is work for less than ten people. On the evidence of Mr Harwood those currently employed are not producing a profit but their employment is being maintained. No evidence was provided as to the total workforce at Nerang prior to its closure, other than an estimation of one of the applicants. The discussions about continuing employment, termination and car-pooling by Mr Beck were with Mr Lattimer. He did not provide any evidence. I can only rely on the evidence of Mr Beck. There were some discussions between Mr Paraha and both Mr Harwood and Mr Lattimer. Mr Paraha was on workers’ compensation immediately prior to his cessation of employment. That expired on 5 April 2004. Mr Paraha says that at a time when the plant was “sort of shut down” in early February 2004, he gave Mr Lattimer some WorkCover documentation and, in response to a question from Mr Lattimer as to whether he would accept a job at Ipswich, he replied in the negative the reason being the extra travel time. He asked for a reference and was given one. Subsequently to this conversation he received correspondence from the company dated 7 April indicating that it had been advised that Mr Paraha was fit to resume work on 5 April and requiring him to attend a meeting on 13 April to discuss the matter and “your ongoing employment” with the respondent. -- 1 of 3 -- 590 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 August, 2004 The evidence of Mr Paraha and Mr Harwood differs as to what transpired between them. Mr Paraha states that he thought his employment ceased in early February when he advised Mr Lattimer that he declined the offer to work at Ipswich. Mr Harwood states that he accepted Mr Paraha resigned on 13 April. He states that some work was available to Mr Paraha at that time. However, the plant had been shut down for some time and the work proposed was that of dismantling machinery, not work as a skinner, the work for which Mr Paraha had been employed for over the past two to three years. There was no evidence put to demonstrate that Mr Paraha was capable of performing the short term work offered. On about 22 April Mr Paraha received a payment advice from the company. He had an entitlement to 164.945 hours accumulated annual leave. From this the company deduced three weeks’ wages claiming an entitlement to do so because Mr Paraha had not given and worked out three weeks’ notice. Outcome The respondents’ operations are award free but it generally applies the terms of the Federal Meat Industry (Processing) Award. Mr Harwood expressed the belief that the respondent had done everything in its power to ensure that ongoing employment of a suitable nature was offered to all staff and has fulfilled all requirements and gone past that which is required. On the contrary, on the material before me, that is not the case. The respondent treats the cessation of employment of those employees who chose not to work at Ipswich as resignations rather than termination at the behest of the employer. It is patently clear that the new plant could not sustain the employment of all those employed at Nerang. In the case of Mr Beck and Mr Paraha their principal reason for declining the offer to work at Ipswich was the distance and hours of travel required. This was estimated at approximately 240 kilometers each day and a total of three hours extra each day. It was proposed by Mr Stroppiano acting for Mr Beck and Mr Paraha that the estimate should be regarded as the minimum because of the notorious traffic delays on the Ipswich Motorway. It is true that the Ipswich Motorway has been the subject of extensive media reporting about accidents and long delays in recent times. The respondent has not made out a case that it has offered acceptable alternative employment and thus be entitled to exemption from the requirement to pay a redundancy entitlement, nor has it made any application to the Commission pursuant to Clause 15 of the Termination, Change and Redundancy Statement of Policy of this Commission (the Statement of Policy). It relies on the belief that employees resigned, that many people travel from the Gold Coast to Brisbane to work each day and that transport has been provided to the new plant. Mr Beck declined the offer to work at Ipswich, was offered two extra weeks work of a labouring nature and ceased employment on 19 February 2004. Mr Paraha declined the offer of employment at Ipswich in early February 2004, in a meeting with the Production Manager whilst on workers’ compensation. He enquired as to the payment of his accrued annual leave and was told that it would be attended to. Mr Harwood treats the cessation of employment as resignations. The reality is that he was unable to provide continuing employment at the Nerang plant in the capacity for which Mr Beck and Mr Paraha were engaged. While the respondent may be award free it is bound by the terms of the Industrial Relations Act 1999 and Statements of Policy of this Commission. On the evidence the respondent has not complied fully with the requirements of the Termination, Change and Redundancy Statement of Policy of this Commission with respect to consultation prior to termination (in part), time off during notice period, notice to Centrelink and payment of severance pay written advices to employees etc. Most importantly the respondent has not sought exemption from the requirements of the Statement of Policy. This matter could have been determined simply on the fact acknowledged by the respondent that no payments had been made as required by the Statement of Policy. However, the matter has been dealt with on a broader basis should any application be made for exemption through clause 15 of the Statement of Policy. Such an application if made would be rejected by me. It is apparent from the evidence that both Mr Beck and Mr Paraha were employed as permanent employees for a period of more than three years but less than four years. Each is entitled to a payment of seven weeks as a severance entitlement. While there is a degree of uncertainty about notice of termination it seems clear on the evidence that no notice of termination was given by the respondent. The respondent employed a sufficient number of employees to be bound by the Statement of Policy. It has given little compliance to that Statement of Policy and appears to have acted in a way to subvert the Policy. In the circumstance which have been outlined in all the material before me the appearance is that it was never the intention to implement the terms of the Policy as to notice and payment of severance payment and other facets of the Policy. The attempt to treat the cessation of employment of employees as resignations and thus avoid the requirements of the Statement of Policy is inappropriate if not reprehensible. The cessation of employment was a direct result of the respondent’s failure to provide work at the Nerang site or to provide suitable alternative employment. The additional distance and time of travel outlined in the evidence of the applicants would constitute a sufficient reason to make a finding that the work was not a suitable alternative. The Statement of Policy requires the employer to act in an appropriate fashion to provide some certainty for employees about their future employment with the employer. While there was some consultation with employees about the proposed closure of the plant it seem that little of the other terms of the Statement of Policy were implemented. The Statement of Policy does not envisage a circumstance where the separation date drifts from one week to the next. Mr Beck states that about five weeks before his employment came to an end on 19 February 2004 he and others were informed that the Nerang plant was closing and work, under the same conditions, would be offered at Walkuraka. Subsequent to that meeting he worked for another three weeks undertaking boning and slicing work and was then offered a further two weeks as a labourer. His employment appears to have then simply come to an end. There was no evidence provided by the employer that notice of termination was given. -- 2 of 3 -- 6 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 591 The Statement of Policy at clause 7 requires certain notices to be provided to employees in writing. In all the circumstance of the matter I consider that the respondent has not provided the notice required to Mr Beck and that a payment of three weeks’ pay in lieu of notice should also be made to Mr Beck. In February Mr Paraha attended the plant to give WorkCover documents to the Production Manager. He was suffering from Brucellosis or QFever contracted while working. Significantly the plant was shutdown at that time. The Production Manger offered him a production position at the new plant. Mr Paraha declined the offer, the reason being the additional travel and cost and the uncertainty about a car-pool arrangement proposed by the respondent. Reasonably Mr Paraha assumed that no further work would be available to him at the end of his absence on WorkCover. Indeed the company was not able to offer him continuing employment as a skinner at the Nerang plant. He heard nothing from the respondent about employment until 7 April 2004 when Mr Harwood delivered a letter to him requesting he attend a meeting on 13 April 2004. Mr Paraha had been declared fit to resume work from 5 April 2004. Mr Harwood regarded his employment as still being in place and offered him a position at the new plant. He declined that position and Mr Harwood treated his employment as being at an end and deducted three weeks’ payment of wages from accrued annual leave because in his mind Mr Paraha had not given three weeks’ notice of resignation. Mr Paraha states that he first became aware that there may be a change to the employers operations by way of a newspaper article and rumors circulating at that time. Later, in mid 2003 Mr Harwood addressed employees and advised that the company was considering moving to Wulkuraka. He heard nothing further about the matter prior to his contracting Brucellosis or QFever on 19 December 2003. Again the respondent has not provided the appropriate period of notice of termination of employment to Mr Paraha. Mr Paraha is entitled to the payment of three weeks’ wages in lieu of notice. The deduction of three weeks’ wages from accrued annual leave was unlawful. An order will be issued for recovery. There is some uncertainty about the basis of hourly payments contracted between the parties. A bonus amount has been referred to, together with a guaranteed weekly payment. The applicant is directed to provide the Commission and to the respondent precise details as to the nature of the agreement as to wage rates made between the parties together with the weekly wage upon which theses claims are based within fourteen days of release of this decision. Should the respondent contest that information within fourteen days of the information being provided, a further hearing will be set to enable the Commission to determine the amounts to be awarded to each employee. R.E. BECHLY, Commissioner. Hearing Details: 2004 7 June Appearances: Mr M. Stroppiano, of Australasian Meat Industry Union of Employees (Queensland Branch), on behalf of the Applicant. Mr C. Harwood, on behalf of Overseas Game Meat Export Pty Ltd. -- 3 of 3 --