Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Hutchisons Child Care Services Ltd & Ors [2004] QIRC 91 (2004) 176 QGIG 84

84 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 May, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 277 – application for injunctive orders Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Hutchisons Child Care Services Ltd and Others (No. B351 of 2004) CHILD CARE INDUSTRY AWARD – STATE 2003 COMMISSIONER EDWARDS 17 May 2004 DECISION By application filed on 5 March 2004 the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (the ALHMWU/the applicant) sought injunctive orders against Hutchisons Child Care Services Ltd and Others (the employers/the respondents). At the hearing on 5 March 2004 the Commission granted leave to the ALHMWU to amend the application in points 1 and 2 by deleting the words “s. 90 and s. 90(A) of the Act” and inserting the words “Child Care Industry Award – State 2003” (the Award) in lieu thereof. At the conclusion of the hearing on 5 March 2004 the Commission refused the application, as amended. -- 1 of 2 -- 28 May , 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 85 Basically the applicant sought interim injunctive orders against the respondent for the purpose of restraint for alleged breaches of the said Award. Mr Pearce on behalf of the respondents outlined that he had prepared responses to the application for continuing breaches of the Act. With the amendment granted he was now responding to continuing breaches of the Award. It was his submission that the applicant should be required to particularise and draft the injunction as it was his view that the form of the injunction sought was unsatisfactory. Hutchison Child Care Services Ltd is a company of management consultants which specialises in managing Child Care centres on behalf of the owners. Initially a number of Tadpoles’ centres were owned and operated by Tadpoles. Subsequently, Tadpoles contracted with a competitor of Hutchisons, Peppercorn Management, to provide management services in the operation of the centres. On or before 30 March 2003 Tadpoles terminated the management contract with Peppercorn Management and contracted with Hutchisons to provide a similar service. Throughout each phase of management, Tadpoles continued to be the employer of the employees engaged at the centres. The terms of the management contract were partly written and partly verbal. Each of the Tadpoles’ employees engaged at those centres purchased by Hutchisons were notified of the change in employer entity on 16 February 2004 and those employees who were offered alternative employment received contracts from Hutchisons on 19 February. Those who were not offered employment received letters of redundancy from Tadpoles on the same day. In regard to the application in question, Mr Crank outlined that the order for one and two related to an interim injunction, not a permanent one and was sought until the relevant provisions of the Award were complied with. The Union considered that discussions were necessary as the redundancies may have been avoided or alternatives satisfactory to the parties agreed upon. Further, he outlined that order number three was not an injunction but an order under section 90(3) which provides that an employer may dismiss employees under certain conditions. In this regard he outlined that there are a significant number of the employees who were dismissed but who are members of an employee organisation, namely the ALHMWU. Section 90A(1) of the Industrial Relations Act 1999 provides: “The employer must give each employee organisation of which any of the employees is a member an opportunity to consult with the employer on ways to – (a) avoid or minimise the dismissals; and (b) minimise the adverse effects of the dismissals, for example, by finding alternative employment.”. In continuing Mr Crank stated, “In relation to those principles, we say that our case is a strong one because the facts are very simple, that is, the law, both in terms of the Act itself as well as the Award requires notification to the Union about particular details concerning redundancies, which has not occurred, and requires consultation to occur, which has not occurred. So in that sense the case for a breach of the Act and for a breach of the Award is a strong one. The only defence we’ve had from the employer in relation to that contention is that the employer was unaware that any of the employees were union members.”. Mr Pearce advised that as from Monday, 8 March 2004 Hutchisons would be the employer of all but 6 of the 155 persons. Such transfer would result from the purchase of the centres by Hutchisons. The sale of business was completed at 12 noon on 5 March 2004. At the close of business on 5 March the Tadpole Learning Centres would have no child care centres and no interest in employing people. As a result of the business transaction, Hutchisons were required to offer employment to as many persons as they required and Tadpoles were required to assist and encourage them to stay in employment. Accordingly, 152 staff accepted employment with Hutchisons to commence with the new employer on Monday 8 March 2004. In responses to questions from the Commission, Mr Crank advised, “. . . the answers that we seek do not prevent employees being employed by Hutchisons if they’ve accepted offers with Hutchisons. There is no law that says that people can’t have two jobs at one time.”. At the time of the hearing the 152 employees had accepted the new employment arrangements. It was not appropriate for the Commission to deny those persons the opportunities to progress the new employment arrangements. The new employer did not breach the Award or Act in relation to negotiations. If a breach had been committed it was with the former employer. Should the ALHMWU desire to pursue a breach of the Award or Act they should make such a determination. This application is not the appropriate way to pursue such breaches. Accordingly, it was on this basis that the Commission arrived at its decision on 5 March 2004. The Commission orders accordingly. K.L. EDWARDS, Commissioner. Hearing Details: 2004 5 March Appearances: Mr K. Crank of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and with him Ms K. Leighton and Ms K. Jones on behalf of the applicant. Mr J.B. Pearce instructed by Ms N. Taylor of Livingstones Australia on behalf of the respondents. -- 2 of 2 --