Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Sharp Security Pty Ltd [1997] QIRC 12 (1997) 154 QGIG 474

474 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 January, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 42 power to grant injunctions Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Sharp Security Pty Ltd (No. 82039 of 1996) SECURITY INDLSTRY (CONTRACTORS) AW ARD - STATE COMMISSIONER FISHER 20 January 1997 Apphcat10n for Orders Legal Aspects Legal Processes Remedie~ Injunction Award breaches - Employees paid flat hourly rate Confhctmg evidence Magistrates Court No current employees covered by Award Underpayment of wages Amended application - Case Law Order refused - Application adjourned for six months Union and/or Company at hberty to produce furlher evidence - Application to lapse should fu11her heanng not be required. DECISION The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, union of Employees (the Union) ha,; applied for an Order under s. 42 of the Industrial Relations Act 1990 to compel Sharp Security Pty Ltd, (the Company) its Directors and Servants to comply with the tenns of the Security Industry (Contractors) Award - State and to restrain continuing breaches of the Award. The application was brought because the Union considered the Company was continually breaching the provisions of the Award. ~n particular the Union contended the Company paid a flat hourly rnte m contravention of several Award clauses including clause 4.6 (Sh1ftwork): dause 4.1 (Hours of Work) and clause 4.3 (Overtime). In evidence, Colin Struthers, an Organiser for the Union, related the history of his Union's dealings with the Company including proceedings_in the Magistrates Court for recover)' of wages for employees of Sharp Secunty Pty Ltd. Mr Struthers told of the Company's failure to appear at C~urt, it~ non-compliance with two Magistrates Court Orders and its out of Court settlements with the Union on uther claims Referen(:e was also made to two other claims for underpayment of wages and one (Company) application for re-opening in the Magistrates Court which are awaiting hearing. The Union believed that unless the Order was issued by the Commission the Company would continue to ignore the Award provisions. Brett Major, Manager, of Sharp Security Pty Ltd, gave evidence the Company no longer employs security staff who arc covered by the Security Industry (Contractors) Award State. The only remaining employee 1s Mr \1ajor himself. The Company has moved away from the direct provision of sec~rity staff and ~rvices to acting as a broker. arranging contracts ~nd subcontracts for other security finns. Mr Major gave evidence that the firm does not intend to employ security staff in the future. Mr Major disputed the Union's allegations of continual Award breaches espedally in relation to the payment of flat dollar amounts. Although he acknowledged some past difficulties, these stemmed primarily from the actions of a former employee responsible for the payroll. Mr MaJor reJccted the allegations of flouting the Award and continual Awar? breaches. _In respect of one of the forthcoming Magistrates Courts claims, Mr MaJ_or acknowledged an inadvertent underpayment of $500 but did not agree w1th the Union'~ calculations. After hearing Mr Major's evidence, the Union arm:nded the form of t_he Orders sought to include contractors and subcontractors to Sharp Secunty Pty Ltd. CONCLUSIONS I have given consideration to all of the matters raised in the hearing. It is apparent from the case law that an injunction to compel compliance with an award is not to be approached lightly and i~ not generally to be considered when other remedies for enforcement of the A ward are "equally convenient, beneficial and effective" (Whittaker Bros , Australian Timber Workers' Union (l 922) 31 CLR 564 at 569). In the present matter the Union after prosecuting two claims in the Magistrates Court for underpayment of wages appears to be confronted by still more claims. On the Union's case the Company's failure to reform in the face of legal proceedings provides a sound basis for the Commission issuing the order. To proceed in such a manner would be consistent with the ca,;c law. In my view there is sufficient material before me to conclude the Company has, in the past, failed to honour its Award obligations. It remains to be tested in the Magistrates Court whether that failure is ongoing and to the extent alleged by the Union. Had the Company continued to employ security staff within the tem1s of the Security Industry (Contractors) Award - State I may have been persuaded to issue the Order sought as it seems that the other r~medy of prosecution has not brought la<;ting positive results. The difficulty arises because Sharp Security Pty Ltd no longer employs security staff and is not a direct provider of security services. Clearly the primary reason for seeking the Order no longer exists. I am 1eluctant to extend the form of the Order to include contractors and subcontractors of Sharp Security Pty Ltd when the affected parties arc una~arc of the proceedings. Moreover, there is no concrete evidence that 111 arrang1_ng contracts for other security providers, Sharp Security Pty Ltd or Mr Ma_1or are undercuttmg Award rates or encouraging such behaviour. I accept this possibility was allude<l to in Mr Major's evidence, however, in the absence of clear evidence of such behaviour I am unwilling to issue the Order. In reaching this conclusion I have also taken note of the views expressed by Clarke, C., that an Order could be made where a breach of an Award was intended (79 QGIG 699) I restate my reluctance to proceed with the course urged upon me by the Union based solely on the limited evidence available to me of Sharp Security Pty Lid's current practices. Comment should be made about Mr Major's evidence. l found much of it to be evasive and unconvincing. Hase<l on his explanation of Sharp Se.::uritv Pty Ltd's current activities and my knowledge of the Security Contra~tors Industry having been assigned to that Commission industry panel for the last three years, l share the Union's concerns that the Award may not he heing complied with. Although l have indicated the lack of a sound basis on which to proceed to issue the Order sought, the past and present activities of the Company give rise to concern about whether the provisiom of an Award of this Commission are heing honoured. In my view the Industrial Relations Acr 1990 gives a role to the Commission in ensuring its Awards arc honoured. While I am not satisfied sufficient evidence exists to issue the Order sought. in light of the unforeseen evidence about the current activities of Sharp Security Pty Ltd in acting a~ a broker ;manging rnntracts for other security providers and the method of calculating the value of such contracts, I intend to adjourn the application for a period of six months. At the expiration of that time, the Union is at liberty to produce any evidence showing Sharp Security Pty Ltd's role in undercutting the Award or the Company 1s at liberty to show its role ha<; been honourable. Should ~either of the patties wish the matter to be relisted at the end of the normnate<l period, the application will lapse. Order accordingly. G.K. FISHER, Commissioner. 31 January, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Appearances:- Mr J. Martin of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr 8. Elgar (of Robertson Foster Solicitors) and with him Mr H. Major on behalfof Sharp Security. Operative Date: N/ A Decision Orders Relea~ed: 20 January 1997 ########################################################## 475 -- 1 of 1 --