Re: In the matter of the making of Modern Awards - Common Provisions
[2015] QIRC 194
•13 November 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Re: In the matter of the making of Modern Awards – Common Provisions [2015] QIRC 194 |
PARTIES: | State of Queensland (Office of Industrial Relations, Queensland Treasury) Australian Workers' Union of Employees, Queensland Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland Brisbane City Council Construction, Forestry, Mining & Energy Industrial Union of Employees, Queensland Local Government Association of Queensland Queensland Council of Unions Queensland Nurses' Union of Employees Queensland Teachers Union of Employees Together Queensland, Industrial Union of Employees United Firefighters' Union of Australia, Union of Employees, Queensland United Voice, Industrial Union of Employees, Queensland |
CASE NO: | MAP/2015/19 |
PROCEEDING: | Making of a modern award |
DELIVERED ON: | 13 November 2015 |
HEARING DATE: | 12 November 2015 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President O'Connor, Deputy President Swan, Deputy President Kaufman, Industrial Commissioner Black, Industrial Commissioner Neate |
| CATCHWORDS: | INDUSTRIAL LAW – AWARD MODERNISATION – Desirability of model clauses for modern awards – Model clauses not necessary or desirable. |
| APPEARANCES: | Mr C.J. Murdoch, Counsel instructed by the State of Queensland (Office of Industrial Relations, Queensland Treasury) Mr T. McKernan for the Australian Workers' Union of Employees, Queensland Ms K. Allen for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland Ms R. Huskie for the Construction, Forestry, Mining & Energy Industrial Union of Employees, Queensland Mr J. Martin for the Queensland Council of Unions Ms V. Semple for the Queensland Nurses' Union of Employees Ms K. Roy for the Queensland Teachers' Union of Employees Mr R. Rule for Together Queensland, Industrial Union of Employees Ms P. Newman for the United Firefighters' Union of Employees, Queensland Mr B. Peverill for United Voice, Industrial Union of Employees, Queensland |
Reasons for Decision
On 8 October 2015, a differently constituted full bench heard two matters: the proposed Health Practitioners and Dental Officers (Queensland Health) Award - State 2015, and the proposed WorkCover Queensland Employees Award – State.
Common questions arose in relation to the wording of clause 6 - Enterprise flexibility and facilitative award provisions, and clause 7 - Dispute resolution, in each proposed award.
The clauses in each proposed award are in similar terms and the matters were left on the basis that the parties would consider their positions and inform the full bench of their considered view.
Following what transpired on 8 October, on 14 October 2015 Mr Andrew Harris, Executive Director, Public Sector Industrial Relations of the Office of Industrial Relations (OIR), wrote to the Industrial Registrar, asking that the Commission consider a separate listing of these "generic" issues, as well as another issue relating to the interaction between awards and directions.
On 28 October 2015, Deputy President O'Connor replied to Mr Harris saying, inter alia:
"I agree it is highly desirable to adopt a consistent approach in regard to modern award provisions dealing with dispute resolution and procedures to implement facilitative award provisions. To this end, the Commission would be amenable to convening a Full Bench, for the sole purpose of dealing with submissions in relation to above provisions.
Attached are draft provisions dealing with Dispute Resolution and Procedures to implement facilitative award provisions. There drafts will serve as a useful starting point for the preparation of submissions and might provide the basis for the consent position of the parties. In any event, the drafts should focus the debate at any subsequent Full Bench hearing."
On 3 November 2015, Mr Harris replied, accepting the offer of a hearing before a full bench. He also advised that, insofar as the issue of the interaction between directives and awards is concerned, having regard to the approach taken by another differently constituted full bench in relation to the making of a modern award - General Employees (Queensland Government Department) and other Employees Award - State 2015, the OIR no longer sought that this full bench deal with that issue.
Consequently, this full bench was constituted to deal with the clause 6 and clause 7 matters. As requested, all parties filed written submissions prior to the hearing of this matter on 12 November 2015.
Mr C. Murdoch, of counsel, who appeared for the OIR, submitted that the Commission should prescribe model or template clauses which could be adapted having regard to the organizational nuances for individual awards. He commended the making of model clauses in the form appended to his submissions.
The position of the unions was that there is no necessity for model clauses, but that if the Commission were minded to insert them they should be in the form appended to the submissions of the OIR.
The unions pointed out that the clauses 6 and 7 contained in the proposed awards had been agreed between the parties and the Award Modernisation Team.
Further, those clauses largely replicated the clauses that were contained in the relevant pre-modernisation awards, and similar clauses to those in the proposed awards are contained in several modern awards that have recently been made by the Commission.
The unions submit that the majority of the pre-modernisation awards relevant to the Queensland public sector contain similar provisions and that these provisions have operated satisfactorily for many years.
In these circumstances we have come to the conclusion that it is not necessary or desirable that there be model clauses dealing with those matters. The consistency between awards apparently sought by the OIR already exists, and more appropriately has regard to "organisational nuances" than would a model clause. Given the satisfactory operation of the pre-modernisation clauses, any proposals for change should be resolved through the award modernisation process and would need to demonstrate why alterations that deviate from historical provisions are appropriate.
Accordingly, it is not necessary to deal with substance of the submissions of the OIR or the unions.
We will not make model clauses in relation to those matters.
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