Central SEQ Distributor-Retailer Authority T/A Queensland Urban Utilities

[2018] FWCA 1910

[2018] FWCA 1910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Central SEQ Distributor-Retailer Authority T/A Queensland Urban Utilities
(AG2017/4380)

APPLICATION FOR APPROVAL OF THE QUEENSLAND URBAN UTILITIES (QUU) ADMINISTRATIVE AND TECHNICAL EMPLOYEES’ ENTERPRISE AGREEMENT 2017

Water, sewerage and drainage services
COMMISSIONER SIMPSON	BRISBANE, 3 APRIL 2018

Application for approval of the Queensland Urban Utilities’ (QUU) Administrative and Technical Employees’ Enterprise Agreement 2017

[1] At the conclusion of a hearing conducted on Thursday 29 March 2018 I issued a brief ex tempore decision to approve the Queensland Urban Utilities (QUU) Administrative and Technical Employees' Enterprise Agreement 2017 and indicated to the parties that further written reasons would follow. Set out below are those reasons.

[2] On 22 September 2017, Central SEQ Distributor-Retailer Authority T/A Queensland Urban Utilities (the Applicant) made an application for approval of an enterprise agreement known as the Queensland Urban Utilities (QUU) Administrative and Technical Employees' Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[3] The Agreement is a single-enterprise agreement. The Agreement was made on 18 September 2017, and was signed on 22 September by Mr Glenn Smith, Executive Leader People and Culture, Queensland on behalf of the Applicant. The Agreement was also signed by Ms Leonie Scalia, an employee bargaining representative on 22 September 2017, and Mr Brian Devlin, Assistant Secretary of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on 21 September 2017.

[4] On 27 September and 4 October respectively the AMWU and the Australian Workers’ Union (AWU) filed a Form F18 supporting the approval of the Agreement. On 28 September 2017 the Australian Municipal, Administrative, Community and Services Union (ASU) filed a Form F18 opposing approval of the agreement. All the Unions have given notice under s.183 of the Act that they elect to be covered by the Agreement. In accordance with s.201(2), I note that the Agreement covers the AMWU, the AWU and the ASU.
[5] On 12 October 2017 Mr Greg Adams, an employee of the Applicant wrote to the Commission advising he wished to object to the approval of the Agreement. Mr Adams outlined his objections in a further email addressed to the Commission on 20 October 2017. On 25 October 2017 Mr Scott Small an employee of the Applicant wrote to the Commission outlining his concerns with the Agreement.

[6] The matter was referred to my chambers and was listed for Hearing in Brisbane on 29 March 2018. I granted leave to allow the Applicant to be legally represented by Mr Jamie Wells of King & Wood Mallesons. Ms Michelle Robertson appeared on behalf of the ASU, Mr Ben Fullerton appeared on behalf of the AWU, Mr Kegan Scherf appeared on behalf of the AMWU, Mr Scott Small represented himself, as did Mr Greg Adams.

Objection by ASU

[7] The ASU outlined its objections in its Form F18 as follows:

“1. No formal advice was provided to employees at level 7 and above who are proposed to be excluded from the Agreement. These employees have been described on Form 17, clause 2.2.

2. No assurances have been provided to excluded employees about whether this would result in a loss of conditions and entitlements.

3. No information has been provided to excluded employees about whether this would result in a loss of conditions and entitlements.

4. It would not be fair if excluded employees would suffer a reduction in conditions or entitlements.

5. These employees would not be better off overall unless such undertakings are given.”

[8] On 5 January 2017, the Employer provided the following submissions on the issue of whether the group was fairly chosen:

“• The group to be covered by the QUU Administrative and Technical Employees' Enterprise Agreement 2017 is operationally and/or organisationally distinct. Broadly speaking, it covers administrative and technical employees who are primarily office-based.

• They are operationally and organisationally distinct from laboratory employees (covered by the recently approved QUU SAS Laboratory Employees Enterprise Agreement 2017) and from employees conducting field work (bargaining for a field agreement is ongoing).

• The EA covers employees in specified classification levels, namely, level 2 to level 7, with some roles in level 7 being excluded. Level 8 employees are also not covered.

• The excluded employees can be distinguished from other employees covered by the EA based on the senior, specialised and professional nature of their roles. These roles comprise professional employees who are traditionally award free (eg Human Resources, IT Specialists etc) or whom are paid well in excess of the rates of pay provided by the EA due to the specialised and senior nature of their roles.”

[9] On 18 January the Commission wrote to the ASU requesting it respond to the Applicant’s submissions in relation to the objection provided in the Form F18. In particular, why the scope of the Agreement was not an issue previously.

[10] On 31 January the ASU wrote to the Commission seeking the following undertakings from the Applicant:

1. To identify all positions at Level 7 and above proposed to be excluded from the Agreement.

2. That the employer identify all the steps taken to inform affected employees prior to the ballot about the proposed exclusion of their position from the Agreement.

3. To provide an undertaking that no proposed excluded employees would suffer a loss of conditions and entitlements.

[1] The ASU submitted that if the above undertakings were provided by the Applicant, it would enable its objection to the approval of the Agreement to be withdrawn.

[2] In the course of the hearing Ms Robertson emphasised the ASU’s concern that certain employees who had previously been covered by enterprise bargaining would not now be, and sought an agreement with the Applicant that such employees would be paid at least what those under the Agreement are to be paid, however did not press a position that the Agreement could not be approved because of s.186(3).

[3] Submissions were made for the Applicants that the coverage of the agreement had been the subject of discussions in the course of negotiations and ultimately a compromise on the matter was reached. I have had regard to the Applicants submissions on the groups of employees that were excluded and are satisfied the group of employees covered by the Agreement was fairly chosen. Whether the Applicant and the ASU reach some other understanding about arrangements for employees not covered by the Agreement is not a matter I need to consider.

Objections by Mr Adams

[4] Mr Adams raised the following objections:

“(1) I was not able to either get a representive [sic] of my choice or was not told how I could get myself represented. I will if required provide an email showing this. Supposedly the employer does not recognise my Industrial Organisation in the area. But since when does my employer tell me which union I can be in. [sic]

(2) The overtime provisions do not allow any payment of wages to be credited to super.

(3) There are two pay scales, one for 14% super and one for 9%. And some employees if they wanted to go to the 9% cannot.

(4) I also include below sections of the Fair Work Act 2009. Which was designed to preclude any agreement in the FWC. Copy of the Queensland Legislation attached.”

[5] In response to Mr Adam’s first objection, the Applicant submitted that a notice of employee representational rights was provided to all employees to be covered by the agreement (including Mr Adams), and no QUU employee was denied representation by a union with coverage. The Applicant submitted that Mr Adams sought to appoint an official from the CEPU (Plumbing Division) as his representative; however that union does not have coverage over the work that is to be performed under the agreement. The Applicant submitted therefore, under s 176(3) of the Act, Mr Adams could not be represented by that official.

[6] The Applicant submitted that in any event, even if this objection had any merit, it is not clear why it would prevent approval of the agreement. The Applicant submitted if anything, it is a good faith bargaining issue that should have been dealt with during bargaining.

[7] At the hearing Mr Adam’s concern on this point appeared to be more that he was not told he could represent himself. When asked if he received a Notice of Employee Representation Rights (NERR) his submission was to the effect that he did not recall receiving one but he was not certain. The Form F17 Statutory Declaration filed with the Application states that all employees were emailed a copy of the NERR on 4 December 2015. The NERR was attached to the Statutory Declaration and is in the required form including the part of the NERR that states that an employee can appoint themselves as a bargaining representative. I am satisfied that the Applicant has met the requirements of s.173 and s.174 regarding notice of representation rights. Mr Adams first objection does not give rise to a basis not approve the agreement.

[8] In response to Mr Adam’s second and third objections, the Applicant submitted:

“These objections are opaque as to the issue raised. We cannot see that the Water Industry Award confers the entitlements complained about. It appears that Mr Adams is simply unhappy with the terms of the agreement, and this is not a basis for objecting to approval.”

[9] The second and third objections raised by Mr Adams do not give rise to a basis not to approve the Agreement.

[10] In response to Mr Adam’s fourth objection, the Applicant referred to the High Court decision CEPU v Queensland Rail [2015] HCA 11 (Queensland Rail), submitting it is accepted that statutory authorities with trading objectives and activities are in fact trading corporations caught by the Fair Work Act. The Applicant submitted Queensland Rail clarified that the question is not about the structure of the entity established by the State, but whether the entity is in fact a trading corporation.

[11] The Applicant said this issue was ventilated during a protracted bargaining dispute involving Unitywater, following the High Court’s decision. Unitywater and QUU are both water retailers, and statutory authorities established under the South East Queensland Water (Distribution and Retail Restructuring) Act 2009. Both provide water and sewerage services to customers, who pay for those services. They are indistinguishable, except that they operate in different regions.

[12] The Applicant referred to the decision of Booth C AWU v Unitywater[2016] FWC 6104 at [2], where the Commissioner expressly stated that in light of the decision of the High Court, Unitywater was clearly subject to the Fair Work Act, not the Queensland Industrial Relations Act. The Applicant submitted it is not in contest that the water retailers are national system employers, and this is accepted by the relevant unions.

[13] I am satisfied that the Applicant is a National System Employer and on that basis Mr Adams fourth objection does not give rise to a reason not to approve the Agreement.

Objections by Mr Small

[14] Mr Small submitted there was an inherent issue with overtime inequality between employees with a 14% or 9.5% superannuation rate written into the current agreement. Mr Small submitted when 14.0% & 9.5% superannuation employees work normal time, gross hourly incomes match up, however when working overtime, employees who fall into the 9.5% category are then on higher penalty rates than 14% employees.

[15] Mr Small submitted QUU had an obligation to ensure all its employees are treated fairly with equal pay. Mr Small submitted this could be achieved by QUU extending the scope of its payroll system modifications to ensure that overtime penalty rates are calculated using the higher pay scale for all employees, regardless of which superannuation rate they are on.

[16] On 15 February 2018 the Applicant responded to Mr Small’s objection, noting that Mr Small accepted that the differences he complains about derive from legacy issues under superannuation legislation. The Applicant submitted it is unclear how is this is relevant to approval of the agreement.

[17] There is no suggestion that the Agreement does not satisfy the Better off Overall Test (BOOT). The matter raised by Mr Small does not give rise to a reason not to approve the Agreement.

Conclusion

[18] I accept the undertakings offered by the Applicant in regard to the definition of a shift worker and on the basis of those undertakings I am satisfied that the Agreement satisfied the BOOT.

[19] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[20] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

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