Re Queensland Outside School Hours Care Enterprise Agreement

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re Queensland Outside School Hours Care Enterprise Agreement [2024] QIRC 302
PARTIES:	MacGregor State School Parents & Citizens Association AND United Workers' Union, Industrial Union of Employees Queensland AND The other parties listed in Schedule 1
CASE NO.:	CB/2024/79
PROCEEDING:	Application for certification of an agreement
DELIVERED ON:	23 December 2024
HEARING DATE:	16 December 2024
HEARD AT:	Brisbane
MEMBER:	Merrell DP
ORDER:	The orders contained in paragraph [43] of these reasons.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – CERTIFICATION OR APPROVAL – application for certification of a proposed bargaining instrument under ch 4, pt 5 of the Industrial Relations Act 2016 – requirements for certification – whether proposed bargaining instrument, supporting material and submissions require the Commission to grant the application or require the Commission to refuse the application – supporting material and submissions made not sufficient for the Commission to make a decision under ch 4, pt 5 of the Industrial Relations Act 2016 – persons who will be covered by the proposed bargaining instrument given the opportunity to take action that may be necessary to enable the Commission to grant the application
LEGISLATION:	Education (General Provisions) Act 2006, ch 7 Industrial Relations Act 2016, s 168, s 169, s 170, s 171, s 189, s 192, s 194, s 196, s 197, s 198, s 201 and s 529 Industrial Relations (Tribunals) Rules 2011, r 167 Parents and Citizens Associations Award - State 2016, cl 12
APPEARANCES:	Ms A. Lowe of the MacGregor State School Parents & Citizens Association. Mr A. Nash of the United Workers' Union, Industrial Union of Employees, Queensland Mr C. Payne of Parents and Citizens Queensland

Reasons for Decision

Chapter 7 of the Education (General Provisions) Act 2006 provides for the formation of a parents and citizens association ('P&C') for a State instructional institution. As a consequence, P&Cs are formed for State Schools in Queensland. Some State School P&Cs provide for outside school hours care. Those P&Cs employ persons to perform work providing for such care, and those particular employees are covered by an award made by this Commission pursuant to the Industrial Relations Act 2016 ('the IR Act'), namely, the Parents and Citizens Associations Award - State 2016 ('the State award').
On 22 November 2024, the MacGregor State School P&C applied, pursuant to s 189 of the IR Act, for the Commission to certify, pursuant to ch 4, pt 5 of the IR Act, an agreement known as the Queensland Outside School Hours Care Enterprise Agreement ('the proposed bargaining instrument'). The proposed bargaining instrument is a multi-employer agreement within the meaning of s 168 of the IR Act.
On 16 December 2024, I conducted a hearing for the purposes of determining whether or not I would certify the proposed bargaining instrument.
As I understand the situation from the material presently before me and from the submissions made, this year the Commonwealth Parliament passed legislation which provides for the Commonwealth government to make available grant funding in the form of worker retention payments for low-paid employees who provide outside school hours care. Some Queensland State School P&Cs are desirous to access such grant funding for their employees who provide such care. A condition in respect of accessing such grant funding is that an industrial instrument is in place for the provision of payments to such employees.
The parties to the proposed bargaining instrument are:
·the MacGregor State School P&C;
·the '…United Workers Union'; and
·forty-one other State School P&Cs that are listed in Schedule 1 to these reasons for decision.
For the following reasons, I will:
·neither grant or refuse the MacGregor State School P&C's application; and
·pursuant to s 194(1) of the IR Act, give the persons who will be covered by the proposed bargaining instrument an opportunity to take action that may be necessary to enable the Commission to grant the MacGregor State School P&C's application.
The application for certification
The application for certification made by the MacGregor State School P&C was signed by Mr Jishu Das Gupta on behalf of that P&C. Mr Das Gupta states in the application that the date of the proposed bargaining agreement was '…13/11/24'. During the hearing I was informed that Mr Das Gupta is the President of the MacGregor State School P&C.
The proposed bargaining instrument was not signed by or for any one of the 42 employing P&Cs, and it was not signed by the '…United Workers Union.'
The terms of the proposed bargaining instrument
The proposed bargaining instrument is sixteen pages in length of which two pages (Appendix A) list the names of the forty-two employers and nine pages (Appendices B, C and D) are made up of wage schedules.
The main body of the proposed bargaining instrument is in two parts.
Part 1 deals with the proposed bargaining instrument's application and operation and consists of the following headings to the nine clauses contained in that part:
·cl 1.1, 'Title';
·cl 1.2, 'Arrangement';
·cl 1.3, 'Application and Parties Bound';
·cl 1.4, 'Date and Period of Operation';
·cl 1.5, 'Definitions and Abbreviations';
·cl 1.6, 'Relationship to Award';
·cl 1.7, 'Posting of Agreement';
·cl 1.8, 'Commitment to consultation'; and
·cl 1.9, 'Equity Considerations'.
Part 2 deals with one discrete issue, namely, the provision of wage increases for employees whose positions are classified in the 'OSHC and vacation care stream' of the State award as set out in cl 12.4(d) of that award. Part 2 of the proposed bargaining instrument provides:
PART TWO: WAGES
2.1     Wages
(1)     This clause 2.1 applies subject to clause 2.2.
(2)     The minimum hourly rates are set out in Appendix B for all permanent employees, Appendix C for all casual employees, and Appendix D for junior employees employed at a Level 1.1, Level 2.1, or Level 2.2.
(3)     For the purpose of ensuring accuracy of payments, the role classifications covered by this Agreement are mapped against the role classifications under the Children's Services Award 2010 in Appendix B, Appendix C, and Appendix D.
(4)     Effective from the first full pay period on or after 1 July 2025, there shall be an increase to the rates in columns four and five in Appendix B, Appendix C, and Appendix D based on the Annual Wage Review Decision for the 2025/26 period.
(5)     Employees shall, from 1 December 2025, receive an additional payment, which is calculated on the following basis:
(a) Rate of pay payable on 30 November 2025 exclusive of the Worker Retention Payment, plus an amount calculated at 5% of the Childrens [sic] Services Award mapped rate as of 30 November 2025.
(6)     Effective from the first full pay period on or after 1 July 2026, there shall be an increase to the rates in columns four and five in Appendix B, Appendix C, and Appendix D based on the Annual Wage Review Decision for the 2026/27 period.
(7)     Employees engaged in employment with an Employer prior [sic] the commencement date of this Agreement shall not suffer a reduction in their existing ordinary rate of pay and shall receive the additional applicable wage increase set out in Column 5 of Appendix B, Appendix C, and Appendix D.
(8)     The Employees' base rate of pay shall at no time fall below the minimum rate under the Award or the mapped rate for the equivalent classification under the Childrens' Services Award 2010, as amended from time to time.
(9)     Junior employees employed at a Level 1.1, 2.1, or 2.2 will be paid no less than the following percentages of the Level 2.1 rate (for Level 1.1 and 2.1 employees) or the Level 2.2 rate (for Level 2.2 employees):

Age % of adult rate

Under 17 years 70

Under 18 years 80

Under 19 years 90
(10)   Junior employees employed at Levels 3.1 and above will be paid at the appropriate adult rate.
2.2     Worker Retention Payment subject to Government Scheme
(1)     The minimum hourly rates set out in Column 4 of Appendix B, Appendix C, and Appendix D are payable to Employees of an Employer that has been approved by the Australian Government to receive grant funding for a Worker Retention Payment.
(2)     Employees of an Employer that has not been approved by the Australian Government to receive grant funding for a Worker Retention Payment will instead receive, at a minimum, the Award rate applicable to the Employee's position.
(3)     The additional payment payable to an Employee under the Australian Government worker retention scheme shall cease if the funding ceases.

The supporting material

One affidavit was filed in support of the application to certify the proposed bargaining instrument, being an affidavit of Mr Das Gupta affirmed on 20 November 2024 and filed on 22 November 2024.
Mr Das Gupta's affidavit does not describe what role he or the MacGregor State School P&C played, if any, in relation to the multi-employer bargaining that led to the proposed bargaining instrument. At paragraph 9 of Mr Das Gupta's affidavit, he affirms and declares that the proposed bargaining instrument '… provides eligible employees with the 15% wage increase over two years subject to an employer obtaining Government funding for a worker retention payment.'
The only other material that was filed with the application for the certification of the proposed bargaining instrument was a document from a company called TrueVote Pty Ltd entitled 'Ballot Report'. Page two of that document under the heading of 'Ballot Report' provides:
The following ballot report is for Queensland Outside School Hours Care Enterprise Agreement conducted by TrueVote on behalf of Queensland Children's Activities Network Ltd. The ballot was live from 12/11/24 6:00 PM AEST to 13/11/24 8:00 PM AEST.
There was no reference to that report in Mr Das Gupta's affidavit. Indeed, there is no explanation in Mr Das Gupta's affidavit as to the role the Queensland Children's Activities Network Ltd played in the conduct of the ballot or indeed the role, if any, that company played in the bargaining that led to the proposed bargaining instrument.
On 13 December 2024, an affidavit was filed for this proceeding by Ms Rebecca Woulahan. In her affidavit, Ms Woulahan, amongst other matters, affirmed and declared that:
·she was the President of the Geebung State School P&C;
·the Geebung State School P&C was a paying member of '…QCAN' which was described as '…an organisation that describes itself as the peak body for the outside school hours care sector in Queensland.';
·in September 2024, QCAN advised its members, including the Geebung State School P&C, that it was arranging '…for the creation of what it described as a "multi-employer agreement" (MEA)' and that she was advised that the purpose of the MEA was to '… allow participating P&Cs to access Commonwealth funding for wage increases (Worker Retention Grant)';
·after paying a requested fee to QCAN and arranging for a staff member to complete an online "Invitation to participate" sent out by QCAN:
-     the Geebung State School P&C '…did not formally participate in the MEA process';
-     the Geebung State School P&C did not vote on agreeing to participate in any proposed MEA;
-     she did not recall ever seeing or being provided with a copy of the MEA, whether in draft or final form;
-     the Geebung State School P&C did not vote to adopt or endorse the terms of any MEA; and
-     she was unaware that the outside school hours care staff employed by the Geebung State School P&C were requested by QCAN to vote on the terms of a proposed MEA and the Geebung State School P&C did not authorise or consent to any such vote occurring; and
·on 22 November 2024, an email was sent to QCAN on behalf of the Geebung State School P&C that the Geebung State School P&C wanted '…to withdraw from the MEA we have subscribed to.'
Having regard to some of the exhibits to Ms Woulahan's affidavit, it is clear that QCAN is the company referred to earlier in these reasons, namely the Queensland Children's Activities Network Ltd.
The hearing
At the hearing on 16 December 2024:
·representatives of 17 P&Cs, listed as employers in the proposed bargaining instrument, were present in the court room;
·representatives of 15 P&Cs, listed as employers in the proposed bargaining instrument, participated by telephone; and
·no representative of 10 P&Cs, listed as employers in the proposed bargaining instrument, participated in any manner, either in person or by telephone (despite my Associate and representatives of the Industrial Registry making arrangements for representatives of any relevant P&C to participate in the hearing by telephone if they so wished).
Mr Das Gupta and Ms Woulahan were not present at the hearing.
At the hearing, Ms Lowe of the MacGregor State School P&C, made submissions about the proposed bargaining instrument as did Mr Nash on behalf of (I assume) the United Workers' Union, Industrial Union of Employees, Queensland ('the Union').
Ms Lowe made no submissions about the specific provisions of the IR Act that are relevant to the decision of the Commission to certify an agreement under ch 4, pt 5 of the IR Act.
Mr Nash made a number of general submissions to the effect that the requirements of the IR Act have been met; and he also submitted that he understood the requirements of s 171 of the IR Act had been met by way of a representative of his Union being present at certain information sessions, although he conceded he himself did not participate in such sessions. Mr Nash also submitted, in effect, that the Geebung State School P&C should not be permitted to contend it has not agreed to the terms of the proposed bargaining instrument at a point in time after the date of the vote of the approval of the relevant employees.
At the hearing, pursuant to s 192(5) of the IR Act, I allowed Mr Payne, an employee of Parents and Citizens Queensland, to be heard on the limited basis about the evidence contained in Ms Woulahan's affidavit.
Ms Ria Tattersall also addressed the Commission. Ms Tattersall informed the Commission that she was the Vice President of the Geebung State School P&C. Ms Tattersall further informed the Commission that Ms Woulahan's affidavit was a surprise to her, that the relevant employees of the Geebung State School P&C wanted the proposed bargaining instrument, and that she disputed the assertions made by Ms Woulahan that certain information had not been received by the Geebung State School P&C about the proposed bargaining instrument.
The clear impression I obtained from reading Ms Woulahan's affidavit, and from hearing from Ms Tattersall, was that there were competing views about whether the worker retention payments should be addressed by way of a proposed amendment to the State award or by way of a certified agreement. This is not a relevant consideration for me having regard to the Commission's function in determining whether or not to certify the proposed bargaining instrument pursuant to ch 4, pt 5 of the IR Act.
During the hearing, I also gave the opportunity to any representative of any P&C, listed as an employer in the proposed bargaining instrument, whether they were present in the court room or participating by telephone, to make any submission. Submissions were made by Ms Belinda Gilbert of the Springwood Road State School P&C and by Ms Raeleen Wren of the Wilston State School P&C, both of whom supported the certification of the proposed bargaining instrument.
At the conclusion of the hearing I indicated to the parties that I would reserve my decision.
The Industrial Relations Act 2016
As I informed all persons who participated in the hearing, the certification of a proposed bargaining instrument by the Commission is not simply for the asking. The Commission is compelled to certify a proposed bargaining instrument if it is satisfied of certain matters set out in the relevant provisions of the IR Act. Similarly, the Commission is compelled to refuse an application to certify a proposed bargaining instrument in certain circumstances as described in the IR Act.
I am not satisfied of the matters that compel me to grant the application made by the MacGregor State School P&C to certify the proposed bargaining instrument. Similarly, there are issues that may compel me to refuse the application in respect of which the material before me is not clear or is silent. In this regard the parties' attention is generally drawn to the provisions of ch 4, pts 2 and 5 of the IR Act.
However, s 194 of the IR Act provides:
194 Opportunity to take action before commission refuses to grant application
(1) Before refusing to grant a part 5 application, the commission must give the persons who will be covered by the proposed bargaining instrument an opportunity to take action that may be necessary to enable the commission to grant the application.
(2) The commission may conciliate the industrial matter concerned with a view to helping the persons concerned to take the action necessary to enable the commission to grant the application.
I must give the persons, who will be covered by the proposed bargaining instrument, the opportunity to take such action that may be necessary to enable me to grant the application. The persons to whom I must give such an opportunity are the employers and the employees who will be covered by the proposed bargaining instrument, and the Union. The nature of any such action is a matter for those persons. I draw the following matters to the parties' attention.
First, no party has addressed, given that the proposed bargaining instrument is a multi‑employer agreement, whether the relevant provisions of s 170 of the IR Act (and r 167(2) of the Industrial Relations (Tribunals) Rules 2011) were met and, if they were not, the implications of such non-compliance in respect of the application to certify the proposed bargaining instrument.
Secondly, Mr Das Gupta's evidence about the relevant compliance with s 169 of the IR Act was vague. Further, Mr Das Gupta's evidence about each proposed employer's compliance with s 171 of the IR Act is similarly vague and is obviously hearsay as was Mr Das Gupta's evidence about s 195(b) of the IR Act.
Thirdly, as I have said above, the proposed bargaining agreement is not signed by or for all the parties. No party has addressed s 196 of the IR Act.
Fourthly, having regard to s 197 of the IR Act, apart from the mere filing of the Ballot Report compiled by TrueVote Pty Ltd, no cogent evidence has been filed that will enable me to be satisfied that the majority of the relevant employees employed at the time approved the proposed bargaining instrument.
Fifthly, no party has addressed the requirements of s 198(1)(c) of the IR Act.
Sixthly, no party has addressed the requirements of s 201(a) of the IR Act.
Finally, no party has addressed the requirements of ch 4, pt 5, div 2, sub-div 3 of the IR Act.
There may be other matters which I have not mentioned, in respect of which action must be taken, that may be necessary to enable me to grant the application.
The taking of any relevant action by the persons who will be covered by the proposed bargaining instrument does not mean that I will certify the proposed bargaining instrument. I will still need to give consideration to the action taken and to the relevant provisions of the IR Act.
There are formal issues to which I draw the parties' attention. There are typographical errors in sub-cls 2.1(5) and 2.1(7) of the proposed bargaining instrument. Further, the name of the Union listed in the MacGregor State School P&C's application and, in sub-cl 1.3(2) of the proposed bargaining instrument, does not describe it by its registered name under the IR Act.
Orders

I make the following orders:
1.       The persons who will be covered by the proposed bargaining instrument, namely, the Queensland Outside School Hours Care Enterprise Agreement, may file in the Industrial Registry any application and, or in the alternative, any affidavit material by 4.00 pm on Friday, 24 January 2025.
2.       The persons who will be covered by the proposed bargaining instrument, namely, the Queensland Outside School Hours Care Enterprise Agreement, may each file in the Industrial Registry any written submissions (no more than five A4 pages, type-written, line and a half spaced, 12‑point font size and with numbered paragraphs and pages) by 4.00 pm on Friday, 24 January 2025.
3.       The application made on 22 November 2024 by the MacGregor State School Parents & Citizens Association for the certification of the Queensland Outside School Hours Care Enterprise Agreement will be decided on the papers unless otherwise ordered by the Commission.

Schedule 1

1.Albany Hills State School Parents & Citizens Association
2.Belmont State School Parents & Citizens Association
3.Blair State School Parents & Citizens Association
4.Bulimba State School Parents & Citizens Association
5.Camp Hill State School Parents & Citizens Association
6.Chancellor State College Parents & Citizens Association
7.Coolum State School Parents & Citizens Association
8.Cooroy State School Parents & Citizens Association
9.Currajong State School Parents & Citizens Association
10.Eatons Hill State School Parents & Citizens Association
11.Freshwater State School Parents & Citizens Association
12.Undurba State School Parents & Citizens Association
13.Geebung State School Parents & Citizens Association
14.Glenvale State School Parents & Citizens Association
15.Ipswich East State School Parents & Citizens Association
16.Jindalee State School Parents & Citizens Association
17.Jones Hill State School Parents & Citizens Association
18.Junction Park State School Parents & Citizens Association
19.Kelvin Grove State College Parents & Citizens Association
20.Shorncliffe State School Parents & Citizens Association
21.Kuluin State School Parents & Citizens Association
22.Middle Park State School Parents & Citizens Association
23.McDowall State School Parents & Citizens Association
24.Moggill State School Parents & Citizens Association
25.Mooloolaba State School Parents & Citizens Association
26.Morningside State School Parents & Citizens Association
27.Mundingburra State School Parents & Citizens Association
28.Newtown State School Parents & Citizens Association
29.Pacific Paradise State School Parents & Citizens Association
30.Payne Road State School Parents & Citizens Association
31.Rochedale State School Parents & Citizens Association
32.Samford State School Parents & Citizens Association
33.Springwood Road State School Parents & Citizens Association
34.Sunnybank Hills State School Parents & Citizens Association
35.The Willows State School Parents & Citizens Association
36.Townsville Central State School Parents & Citizens Association
37.Weir State School Parents & Citizens Association
38.Wellers Hill State School Parents & Citizens Association
39.West End State School Parents & Citizens Association
40.Wilston State School Parents & Citizens Association
41.Woree State School Parents & Citizens Association

Age	% of adult rate
Under 17 years	70
Under 18 years	80
Under 19 years	90

[2024] QIRC 302

23 December 2024