DEED OF SETTLEMENT
THIS DEED is made the
6th
day of
August
2008
BETWEEN
1.
QUEENSLAND INDEPENDENT EDUCATION UNION OF EMPLOYEES a registered organisation under the Industrial Relations Act 1999 (Queensland) of 346 Turbot Street, Spring Hill, Queensland.
AND
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION – QUEENSLAND BRANCH, UNION OF EMPLOYEES a registered organisation under the Industrial Relations Act 1999 (Queensland) of 27 Peel Street, South Brisbane, Queensland.
AND
THE QUEENSLAND NURSES’ UNION OF EMPLOYEES a registered organisation under the Industrial Relations Act 1999 (Queensland) of 56 Boundary Street, West End, Queensland.
AND THE AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND a registered organisation under the Industrial Relations Act 1999 (Queensland) of 333 Adelaide Street, Brisbane, Queensland. (hereinafter called "the Unions")
2.
ALL SOULS ST GABRIELS SCHOOL ABN 95 156 713 592 of Flinders Highway, Charters Towers, Queensland. (hereinafter called "the Employer")
Deed of Settlement
Page 2.
BACKGROUND A.
The Employer conducts a non-government educational undertaking and in that undertaking employs many persons who are members of the Unions.
B.
The Employer and the Unions have in the past, and continue to desire to do so, negotiated agreement on many matters relating to the employment of members of the Unions and relationships between the Employer and the Unions.
C.
In particular, over a period of years, enterprise bargaining processes have resulted in a number of certified agreements being registered under the Industrial Relations Act 1999.
D.
Prior to the commencement of Work Choices, the parties had a desire and an intention, which are retained, to negotiate and to record in formal legally enforceable documents agreement on matters relating to the employment of the members of the Unions and the relationships between the Employer and the Unions.
E.
The parties note that there are various other uncertainties arising under the Work Choices legislation though constitutionally valid, which go to the heart of the applicability of Work Choices to the matters to be negotiated between the Employer and the Unions and in particular whether or not any particular Employer is a constitutional corporation under the constitution of the Commonwealth of Australia and thus an Employer for the purposes of the Work Choices legislation.
F.
The Employer and the Unions have reached agreement on various matters set out in Schedule A and it is their desire to record in this Deed of Settlement the agreement so reached, on the explicit basis that such agreements are to be legally enforceable as between the Employer and the Unions and, to the extent that rights are conferred upon present or future employees of the Employer who are or become members of one of the Unions, by such employees against the Employer.
G.
The parties note that in Queensland there is explicit statutory provision in Section 55 of the Property Law Act 1974 under which, in accordance with the provisions of that section, promises made for valuable consideration moving from a promisee to a promisor may be enforced by a third party who is the beneficiary of that promise (subject to acceptance by that beneficiary).
THE PARTIES AGREE: 1.
INTERPRETATION 1.1.
Definitions In this Deed, unless the context otherwise requires: "Authorised Officer" means in the case of the Employer a director, secretary or manager and in the case of a Union the secretary, howsoever designated. or a person discharging the duties of the secretary or a person authorised to sign such a document on behalf of the Union. "Business Day" means Monday, Tuesday, Wednesday, Thursday or Friday other than a day gazetted to be a holiday in Charters Towers. "Deed" means this Deed and any Schedule. F:\DATA\Reference\Independent\All Souls St Gabriels\EB3\DEED OF SETTLEMENT - FINAL.doc
Deed of Settlement
1.2.
Page 3.
Interpretation of this Deed Unless expressed to the contrary: 1.2.1.
the singular includes the plural and vice versa;
1.2.2.
if a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding definitions;
1.2.3.
the word "person" includes a firm, unincorporated association, corporation and a government or statutory body or authority;
1.2.4.
a consent or notice is to be in writing;
1.2.5.
the word "including" when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind;
1.2.6.
any gender includes the other genders;
1.2.7.
a reference to a person includes legal personal representatives, successors and permitted assigns;
1.2.8.
a reference to a statute, regulation, ordinance or code ("statutory provision") includes a reference to: 1.2.8.1.
that statutory provision as amended or re-enacted from time to time; and
1.2.8.2.
a statute, regulation or provision enacted in replacement of that statutory provision;
1.2.9.
a reference to a right includes a benefit, remedy, discretion, authority or power;
1.2.10.
a reference to an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation;
1.2.11.
a reference to time is to local time in Queensland;
1.2.12.
$ or "dollars" is a reference to the lawful currency of Australia;
1.2.13.
the word "writing" includes any mode of representing or reproducing words in tangible and permanently visible form and includes facsimile and email transmissions;
1.2.14.
a reference to any thing includes a part of that thing;
1.2.15.
a party, clause or schedule is a reference to a party, clause or schedule of or to this Deed;
1.2.16.
a reference to this Deed or another instrument includes any variation or replacement of either of them;
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Deed of Settlement
1.3.
Page 4.
1.2.17.
the word "day" means calendar day and the word "month" means calendar month;
1.2.18.
if any period of time expires on a Saturday, Sunday or gazetted holiday for the City of Charters Towers, then the period will be taken to expire on the next Business Day; and
1.2.19.
the word "year" means a calendar year of 365 or 366 days as the case may be.
Headings Headings do not affect the interpretation of this Deed.
2.
3.
AGREED INTENTION TO CREATE LEGAL RIGHTS 2.1.
The Employer and the Unions agree that it is their explicit intention to create legal relations between them and, to the extent consistent with law, between the Employer and those of its present or future employees who are members of the Unions.
2.2.
The Employer and the Unions agree that it is their explicit intention to create legally enforceable rights and obligations between them and to the extent consistent with law between the Employer and those of its present or future employees who are members of the Unions.
2.3.
The Employer and the Unions agree that, to the extent that promises by the Employer recorded in this Deed are acts for the benefit of a beneficiary who is or becomes a member of one of the Unions, then, in accordance with Section 55 of the Property Law Act 1974, such members of one of the Unions shall be entitled legally to enforce such promises subject to acceptance by that beneficiary.
2.4.
The parties agree that acceptance of the benefits conferred on such members of the Unions by this agreement in the context of knowledge of such agreement having been reached shall (without prejudice to any other basis for establishing that acceptance has occurred) constitute acceptance for the purposes of Section 55 of the Property Law Act 1974.
2.5.
The parties agree that promises by the Employer or one or more of the Unions recorded in this Deed shall be enforceable by each against the other (including promises for the benefit of a member of the Unions) on the basis that this Deed of Settlement is a contract intended to create legal relations and legally enforceable rights and obligations as a contract between the Employer and the Unions.
2.6.
The parties agree that it is their intention that upon the execution of this Deed the relevant provisions of this Deed shall by virtue of this Deed be incorporated as terms and conditions or modifications of terms and conditions of the contracts of employment of members of the Unions.
CONSIDERATION AND FUNDAMENTAL OBLIGATIONS 3.1.
In consideration of the promises made by the Employer and the Unions to each other and in further consideration of the payment of the sum of Ten Dollars ($10.00) by each of the Unions to the Employer it is agreed by the Employer and each of the Unions that they will comply with the terms of this Deed and that throughout its term the Employer
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Deed of Settlement
Page 5.
promises to confer upon and provide to its present or future employees who are members of the Unions the benefits provided for in this Deed. 3.2.
4.
5.
In particular, but without prejudice to the generality of clause 3.1, the Employer and the Unions each agree to comply fully and promptly with the terms and conditions of any Schedule to this Deed and, so far as the Employer is concerned, to comply fully and promptly with all provisions of any such Schedule conferring rights, benefits or entitlements upon present or future employees of the Employer who are members of one of the Unions.
TERM 4.1.
This Deed shall commence on the 19 March 2008 and shall remain in force until the 31 December 2009 subject to clause 4.3.
4.2.
The parties will commence, not less than six months prior to the expiration of the term in clause 4.1 enter into negotiations in good faith for the purpose of entering into another Deed of Settlement to govern relations between the parties and the terms and conditions of employment of the members of the Unions employed by the Employer for a term of three years commencing on 31 December 2009 and will throughout those negotiations participate in good faith in a genuine attempt to reach such agreement and to enter into a new Deed of Settlement.
4.3.
Notwithstanding the provisions of clause 4.1, this Deed shall remain in force after the 31 December 2009 unless and until a new Deed of Settlement has been executed and come into force as a result of the negotiations provided for in clause 4.2.
NOTICES 5.1.
A communication in connection with this Deed 5.1.1.
may be given by an Authorised Officer of the relevant party or the solicitors for the relevant party;
5.1.2.
must be in writing; and
5.1.3.
must be left at the address of the addressee in Australia, or sent by prepaid ordinary post to the address of the addressee in Australia or sent by facsimile to the facsimile number of the addressee in Australia or sent by email to the email address of the addressee.
5.2.
Unless a later time is specified in it, a communication takes effect from the time it is actually received or taken to be received.
5.3.
A communication is taken to be received 5.3.1.
in the case of delivery by hand, on the day of delivery if delivered by 5.00 pm on a Business Day, otherwise on the next Business Day;
5.3.2.
in the case of delivery by post, if posted in Australia on the third Business Day after posting or if posted outside Australia on the seventh Business Day after posting;
5.3.3.
in the case of an email, on the day on which the addressee indicates by return email that the email was received; F:\DATA\Reference\Independent\All Souls St Gabriels\EB3\DEED OF SETTLEMENT - FINAL.doc
Deed of Settlement
5.3.4.
5.4.
Page 6.
in the case of a facsimile, on the day shown on the transmission report produced by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient but if the time of transmission is after 5:00 pm on a Business Day the facsimile is to be taken to be received on the following day.
Until a party notifies otherwise, addresses for service of communication are as follows: To the Unions: Name: Address: Telephone: Facsimile:
Queensland Independent Education Union of Employee’s 346 Turbot St, Spring Hill, Qld 4000 (07) 3839 7020 (07) 3839 7021
Name: Address: Telephone: Facsimile:
Liquor, Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees. 27 Peel Street, South Brisbane, Qld, 4101 (07) 3291 4600 (07) 3291 4699
Name: Address: Telephone: Facsimile:
The Queensland Nurses Union of Employees 56 Boundary Street, West End, Qld, 4101 (07) 3840 1444 (07) 3844 9387
Name: Address: Telephone: Facsimile:
The Australian Workers’ Union of Employees, Queensland 333 Adelaide Street, Brisbane, Queensland, 4001 (07) 3221 8844 (07) 3221 8700
To the Employer: Name: Address: Telephone: Facsimile:
5.5.
6.
All Souls St Gabriels School Flinders Highway, Charters Towers, Queensland, 4820 4787 1433 4787 3049
Without preventing any other mode of service, any originating process in an action in respect of this Deed may be served on a party by being delivered to or left for that party at its address for service of notices under this clause.
MISCELLANEOUS 6.1.
Governing Law and Jurisdiction This Deed is to be governed and determined in accordance with the law of the State of Queensland and the parties must submit to the jurisdiction of the Courts of that State.
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Deed of Settlement
6.2.
6.3.
Page 7.
Waiver and Variation 6.2.1.
A provision of or a right created by this Deed may not be waived or varied except in writing.
6.2.2.
A party’s failure or delay to exercise a right does not operate as a waiver of that right.
6.2.3.
The exercise of a right does not preclude its future exercise or the exercise of any other right.
6.2.4.
The waiver of a right will be effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
Remedies Cumulative The rights provided in this Deed are cumulative with and not exclusive of the rights provided by law or in equity independently of this Deed.
6.4.
Preservation of accrued rights The expiration, termination or determination of this Deed –
6.5.
6.4.1.
will not affect the provisions expressed or implied to operate or have effect after expiration, termination or determination; and
6.4.2.
will be without prejudice to any right of action already accrued to a party in respect of a breach of this Deed by another party.
Invalidity If any term of this Deed is invalid for any reason, that invalidity will not affect the validity or operation of any other term of this Deed except to the extent necessary to give effect to that invalidity.
6.6.
Counterparts This Deed may consist of a number of counterparts and the counterparts taken together constitute one and the same instrument.
6.7.
6.8.
Joint and several liability 6.7.1.
An agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally.
6.7.2.
An agreement, representation or warranty on the part of two or more persons binds them jointly and severally.
Act or omission In this Deed, reference to an act or omission by a party includes – 6.8.1.
if a party comprises more than one person, an act or omission by any one or more of those persons; F:\DATA\Reference\Independent\All Souls St Gabriels\EB3\DEED OF SETTLEMENT - FINAL.doc
Deed of Settlement
6.9.
Page 8.
6.8.2.
the permitting or allowing by a party of an act or omission; and
6.8.3.
an act or omission of an employee (whether or not acting within the scope of his employment), agent, contractor or invitee of a party.
Non-merger The provisions contained in this Deed survive and do not merge on completion.
6.10.
No partnership None of the provisions of this Deed are to be taken to constitute a partnership between the parties.
6.11.
Survival of Indemnities Each indemnity in this Deed is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Deed.
6.12.
Further Assurances Each party must execute the documents and do everything necessary or appropriate to bind it under and to give effect to this Deed and must use its best endeavours to cause relevant third parties to do likewise.
6.13.
Consent A party must not unreasonably withhold its approval or consent unless this Deed expressly provides otherwise.
7.
8.
OBLIGATION ON TRANSFER OF UNDERTAKING OR PART THEREOF 7.1.
The Employer will not transfer to any other person any non-governmental educational undertaking conducted by the Employer, or any part thereof relevant to the employment of any member of one of the Unions, unless prior to that transfer the transferee has entered into a Deed of Settlement in a form approved by the Unions whereby the transferee undertakes so far as relevant the obligations of the Employer under this Deed.
7.2.
Each of the Unions agrees, that it will enter into any arrangement such as an amalgamation as a result of which the affairs of the Union are conducted by a Union which is a separate legal entity from that Union unless, prior to that arrangement taking effect, the Union which is a separate legal entity has entered into a Deed of Settlement whereby it undertakes so far as relevant the obligations under this Deed of the Union party to this Deed.
DAMAGES AN INADEQUATE REMEDY 8.1.
The parties agree that, in the event of any breach of this Deed, damages are an inadequate remedy in respect of those duties and obligations which arise under this Deed (apart from those duties and obligations which require the payment of money to employees) and further agree that in any action for enforcement of this Deed, neither party will object to orders being made in the nature of injunctions and/or specific performance of the duties and obligations arising under this Deed.
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Deed of Settlement
9.
Page 9.
INDEPENDENT ADVICE 9.1.
The Employer warrants that it has prior to entering into this Deed taken independent advice as to the duties and obligations undertaken by the Employer as a result of entering into this Deed.
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Page 10.
EXECUTED as a Deed. SIGNED on behalf of the QUEENSLAND INDEPENDENT EDUCATION UNION OF EMPLOYEES in the presence of:
) )…………………………………….. )
…………………………………….. Witness:
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Page 11.
EXECUTED as a Deed. SIGNED on behalf of the LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION – QUEENSLAND BRANCH, UNION OF EMPLOYEES in the presence of:
) )…………………………………….. )
…………………………………….. Witness:
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Page 12.
EXECUTED as a Deed. SIGNED on behalf of the QUEENSLAND NURSES’ UNION OF EMPLOYEES in the presence of:
) )…………………………………….. )
…………………………………….. Witness:
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Page 13.
EXECUTED as a Deed. SIGNED on behalf of the AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND in the presence of:
) )…………………………………….. )
…………………………………….. Witness:
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Page 14.
EXECUTED as a Deed.
EXECUTED by ALL SOULS ST GARIELS SCHOOL ABN 95 156 713 592 in accordance with the Corporations Act 2001 and signed by:
) ) ) ) ) )
……………………………………... Director
…………………………………….. Director
……………………………………... Full name of Director
…………………………………….. Full name of Director
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Dated: ______________________, 20____
QUEENSLAND INDEPENDENT EDUCATION UNION OF EMPLOYEES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION – QUEENSLAND BRANCH, UNION OF EMPLOYEES QUEENSLAND NURSES’ UNION OF EMPLOYEES AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND
("the Unions")
ALL SOULS ST GARIELS SCHOOL ABN 95 156 713 592
("the Employer")
DEED OF SETTLEMENT
Macrossans Lawyers ABN 15 472 758 298
Level 23 AMP Place 10 Eagle Street Brisbane QLD Australia
GPO Box 2763 Brisbane QLD 4001 Telephone (07) 3292 9777 International Telephone +61 7 3292 9777
Facsimile (07) 3292 9799 International Facsimile +61 7 3292 9799 www.macrossans.com.au f:\data\reference\independent\all settlement - final.doc - [k]
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