Australian Municipal, Administrative, Clerical and Services Union v Queensland Electricity Transmission Corporation T/A Powerlink Queensland
[2010] FWA 2390
•26 MARCH 2010
[2010] FWA 2390 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
Queensland Electricity Transmission Corporation T/A Powerlink Queensland
(C2009/10580)
Electrical power industry | |
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 26 MARCH 2010 |
Summary: interpretation of an agreement – whether allowance forms part of the rate of pay on which additional salary component is levied.
[1] This dispute arose under s.739 of the Fair Work Act 2009 (“the FW Act”).
[2] A conference of the parties (the ASU and Powerlink) has been conducted and the matter in dispute remains unresolved.
[3] Consequently, the parties have jointly requested that I put in writing (following receipt of their written submissions) my view in relation to the dispute application, which concerns the proper construction of the applicable agreement.
[4] The parties have come to arrangements between themselves as to the regard to which they will give to my decision. That is a matter for them and it does not warrant my attention.
ISSUE IN DISPUTE
[5] The dispute concerns a difference between the parties as to the applicability of a particular allowance to a sub category of employees within a classification stream, and the relationship of that allowance to the base rate of pay, as it may be taken to be defined in the agreement.
[6] Specifically, the ‘Working At Powerlink Union Collective Agreement 2008’ (“the Agreement”) provides for a Transmission Network Reliability Allowance (“the TNRA”) to apply to all employees in the Technical Stream, including Network Operators. Employees engaged in the Technical Stream are defined at Schedule 4 of the Agreement.
[7] There is no contest between the parties that Network Operators fall within the definition of the Technical Stream.
[8] The issue in contest is whether the TNRA is to be rolled into the base rate of pay (as it may be defined) for Network Operators so that it serves as an all purpose rate (for purposes, that is, of the calculation of over time, leave, superannuation and redundancy pay etc). If this were so, then an additional compensatory payment paid to Network Operators of 40% (see below) would also be applied to the all up rate.
RELEVANT AGREEMENT PROVISIONS
[9] It is worth noting at the start that the Agreement sets out the terms and conditions of Network Operators discretely at Schedule 13 of the Agreement. Schedule 13 of the Agreement “records the terms and conditions of employment of the Operations Team within Network Operations” and notes that “[t]his schedule should be read in conjunction with this Agreement”.
[10] The Schedule sets out in considerable detail the nature of the work to be performed by Network Operators, as well as the organisational and the work environment within which Network Operators perform their duties, how change affects work patterns and rosters, the work functions and responsibilities of a Network Operator; the remuneration of a Network Operator; how additional hours are worked; and the quantum and rules affecting how leave is accessed.
[11] Clause 9 of Schedule 13, under the heading “Remuneration” reads relevantly as follows:
“All Operations Team members will receive an Annualised salary, which includes payment for:
• All rostered attendances, including a component associated with weekend, afternoon and night attendances where applicable
• Communication of issues at the end of shift to relieving staff person
• Public Holidays
• Leave Loading
• Being available outside normal attendances as required by Team Leader to fill roster requirements
• Additional hours relating to roster maintenance or to attend training, up to 36 hours per year
• Attending monthly team meetings
An additional component of 40% of the base salary will be paid to compensate staff for the above listed items.
[...]
The annualised salary will be used for “all Purposes” eg: Superannuation, Annual leave, Redundancy, Personal/Carers Leave and Long Service Leave. Base salary increases will be consistent with this Agreement.”
[12] That said, Clause 21 of Part 4 of the Agreement states that the TRNA is paid in “recognition of the requirements for Network Reliability, the Allowance will apply to all employees classified in the Technical Classification Stream of the classification structure contained in this Agreement [...].
[13] Clause 21 goes on to state that the TRNA is paid as follows:
“From the first pay period on or after the 20th November 2008, an all purpose allowance of $132.32 a week.”
[14] Clause 21 then stipulates that further increases in the TRNA will apply at certain intervals, and refers again to such payments being “an all purpose allowance”, and that the TRNA:
“has been rolled into the base rates of pay prescribed in Schedule 6A of [the] Agreement [...] and is shown in Schedule 6B for Technical Stream Classifications [...]. Schedule 6B will be specifically used for the calculation of annual wage adjustments of this Agreement, Overtime, Personal Leave, Annual Leave, Long Service Leave, Superannuation and Retrenchment Payments unless otherwise stated.”
[15] Schedule 6A to the Agreement sets out the base rates of pay (inclusive of annualised leave loading and EFT).
[16] Schedule 6B to the Agreement sets out the salary schedule for the Technical Stream and states that these rates “incorporate [...] the [TRNA] and annual wage adjustments and will be used for the calculation of payments for Overtime, Personal leave, Annual leave, Long Service Leave, Superannuation and Retrenchment Payments unless otherwise stated.”
[17] Schedule 6B to the Agreement makes it clear that the rates there-in prescribed are also inclusive of annualised leave loading and EFT.
[18] The rates prescribed by way of discrete tables in Schedule 6B apply to Power Workers, Trade Technicians, Engineering Officers, Supervisors and System Operators.
[19] Schedule 6B also prescribes the rates for Administrative Stream and the Professional and Managerial Stream.
[20] At Clause 7 of Part 1 of the Agreement defines an All Purpose Allowance, and states that it will mean:
“[...] an allowance that is calculated into the employees pay rate for all purposes, e.g. Overtime, Personal\Carers leave, Annual leave, Long Service Leave, Superannuation and Redundancy Payments.”
[21] Clause 7 of Part 1 of the Agreement also defines an “Allowance” as “an amount paid to an employee in addition to the employee’s rate of pay, other than as an all purpose allowance.”
[22] As it is currently applied, the Network Operators are paid a loaded, annualised salary, with the TRNA being paid separately at an hourly rate. That is, the TRNA is excluded from the all purposes amount described above. In effect, therefore, the 40% loading that applies to the Network Operators annualised base rate salary is not applied to the TRNA.
[23] The ASU contends that the Agreement should be read as to provide for an all purpose amount that comprises the loaded, annualised salary plus the TNRA, which is the manner in which other employees within the Technical Stream are remunerated.
[24] In the ASU’s view, the payments of the relevant kind must be based on the rates set out in Schedule 6B which are inclusive of the TNRA. This is buttressed by the contention that clause 7 makes it clear that the definition of an “all purpose allowance” will include an amount that incorporates the TRNA.
[25] The 40% additional compensatory component would then apply to the all up rate.
[26] Powerlink, on the other hand, argues that the TNRA must be paid separately from the Network Operators’ annualised salary (which is the result of the additional component of 40% being applied to the “base rate”, which is exclusive of the TRNA).
[27] That approach, Powerlink submitted, was reflected in past agreements (and without challenge from the ASU). That is, it was been submitted by Powerlink, that its position reflects the way in which the TRNA was applied under the Working At Powerlink Certified Agreement 2005.
DISCUSSION
[28] I start by stating that there is some force to the ASU’s position, if only because the Agreement does not provide a ready answer to the question it has raised.
[29] The terms and conditions of Network Operators are dealt with by way Schedule 13 of the Agreement for reason of their unique working environment. Schedule 13 nonetheless makes clear that it must be read in conjunction with the Agreement.
[30] Clause 21 of the Agreement, generally stipulates that the TNRA, at certain anniversaries, is to be paid as an “all purpose allowance”, a term which is then subsequently defined in Clause 7 of the Agreement (as set out above).
[31] Clause 21 arguably may contemplate generally that the TNRA is to be paid in a common manner to all employees in the Technical Stream. In its own terms, the clause does not make any exceptions or suggest any scope for the allowance to be paid to a sub stratum of employees within the Technical Stream in any other way.
[32] On its face, it does not appear that the TNRA can be applied in any other way other than as an “all purpose allowance” which is rolled into the base rates of pay, as set out at Schedule 6B of the Agreement.
[33] If this were the case, the 40% additional component, referred to above, would apply to the “loaded’ rate of pay set out in Schedule 6B of the Agreement.
[34] But that said, the Agreement establishes certain specific caveats on these generalised provisions.
[35] Clause 21, like Schedules 6A and 6B of the Agreement are to be read subject to the Agreement stating otherwise. That is, they are generalized provisions that must be read subject to any particularized provisions.
[36] In this regard, I observe that Schedule 13 makes no reference to the 40% Additional Component being levied on the TRNA. The 40% Additional Component is instead applied to the “base salary” which results in an “annualised salary”.
[37] Clause 9 of Schedule 13 makes reference to the base salary as being the rate of earnings upon which the 40% additional component will apply.
[38] Though the Agreement (like all agreements) has its drafting imperfections, I further take the reference to “base salary” as reasonably being a reference to the “base rates” set out at Schedule 6A.
[39] The definition of “base rates” in Clause 7 of the Agreement fortifies me in this view. At Clause 7, “base rates” is referable to the rates set out at Schedule 6A of the Agreement.
[40] I do not think it would be possible otherwise to exchange the notion of a “base” rate for a “loaded” or an “all up rate” inclusive of the TRNA (as set out at Schedule 6B of the Agreement).
[41] If I was to conclude otherwise I would be departing from the plain meaning of the word “base” in the Agreement (and particularly at Schedule 13), and this would be counter to the principles of construction. That is, I would be bringing more to the words in the Agreement than they reasonably imply in their own right.
[42] Where an agreement provides a degree of enumeration or specificity (such as Schedule 13 does), I an unable to confer on it a different meaning by way of a provision elsewhere in the agreement with general application (such as at Clause 21).
[43] I must take the specific provision as being intended to operate on its terms, irrespective of its degree of conformity with other general provisions. Of course, as I have said above, here the general provision (at Clause 21 of the Agreement) operates subject to any other arrangements provided for in the Agreement and was not drafted so as to have unconditional application across the Agreement.
[44] Had Clause 9 of Schedule 13 of the Agreement referred only to “salary” or to “the rate of pay”, which are terms of more ubiquitous meaning, my view may have been otherwise.
CONCLUSION
[45] The net result of this discussion is that the “additional component of 40% of the base salary” cannot be applied to the TRNA. Despite the general intent of Clause 21 of the Agreement, the remuneration arrangements applying to Network or Systems Operators are to some measure modified by the intervention of clause 9 of Schedule 13 of the Agreement.
[46] That Schedule provides for the particularisation of the rate of pay on which the additional component will apply – that is to the base rate of pay in Schedule 6A and not to a ‘loaded’ rate or total remuneration as set out in Schedule 6B of the Agreement.
SENIOR DEPUTY PRESIDENT
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