Re: Variation and renaming of a modern Award - Queensland Local Government Industry Award - State 2015
[2015] QIRC 186
•31 October 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186 PARTIES:
The Hon. Curtis Pitt, Treasurer and Minister for Employment and Industrial Relations and Minister for Aboriginal and Torres Strait Islander Partnerships
Local Government Association of Queensland Limited
Queensland Services, Industrial Union of Employees
The Australian Workers' Union of Employees, Queensland
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland
Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
Plumbers & Gas Fitters Employees' Union Queensland, Union of Employees
Queensland Independent Education Union of Employees
Queensland Nurses' Union of Employees
The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees
The Electrical Trades Union of Employees, Queensland
Transport Workers' Union of Australia, Union of Employees (Queensland Branch)
United Voice, Industrial Union of Employees, Queensland
CASE NO:
MAP/2015/9 PROCEEDING:
Variation of a Modern Award DELIVERED ON:
31 October 2015 HEARING DATES:
23, 28, 29, 30 September 2015
1 October 2015HEARD AT:
Brisbane MEMBERS:
Vice President Linnane
Deputy President Kaufman
Industrial Commissioner NeateORDERS:
That the Queensland Local Government Industry Award – State 2014 be varied by:
(a) deleting the numerals "2014" from the title and inserting in lieu thereof "2015".
(b) by deleting clauses 1 - 34 and Schedules 1 to 5 and inserting in lieu thereof the Clauses appearing in the retitled award released concurrently with this decision.
CATCHWORDS: VARIATION OF A MODERN AWARD – Section 140C(1) of the Industrial Relations Act 1999 – request from the Minister for Employment and Industrial Relations that a modern award for the Local Government sector be made by 31 October 2015 – Local Government Industry Award – State 2015 – Modern Award made
CASES: Industrial Relations Act 1999, ss 3, 71HB, 140BA, 140BB, 140C, 140CA, 140CC, 140D, 145D, 273, 319, 320, 322, 366, 373, 840, 841, 842, 843, 844
Industrial Relations (Restoring Fairness) and Other Legislation Act 2015
Public Service Act 1996
Fair Work Act 2009Queensland Local Government Industry Award - State 2014
Queensland Local Government Officers' Award 1998
Municipal Officers' Award (Aboriginal and Islander Community Councils) Award 2004
Queensland Local Government Officers' Award 1992
Municipal Officers' (Queensland) Award 1959
Municipal Officers' (Queensland) Consolidated Award 1975
Engineering Award - State 2012
Building Trades Public Sector Award - State 2012
Local Government Employees' (Excluding Brisbane City Council) Award - State 2003
Waste Management Award 2010Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2015] QIRC 156
Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149
Re: Electrical Engineering Award - State (1963) 54 QGIG 423
Re: Water Supply and Sewerage Labourers' Award - State (Excluding Brisbane) (1973) 84 QGIG 565
Re: Making of a modern award - General Employees (Queensland Government Departments) and Other Employees Award - State 2015 [2015] QIRC 169The Australian Workers' Union of Employees, Queensland and Anor v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (2000) 165 QGIG 221
APPEARANCES: Mr A. James, of the Office of Industrial Relations for the Minister for Employment and Industrial Relations
Mr T. Goode and Mr S. Blaney, of the Local Government Association of Queensland Limited
Mr N. Henderson and Ms M. Robertson, of The Queensland Services, Industrial Union of Employees
Mr B. Watson, of The Australian Workers’ Union of Employees, Queensland
Ms K. Allen, of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland
Ms K. Inglis, of The Electrical Trades Union of Employees, Queensland
Ms M. Delaware, of the Plumbers & Gas Fitters Employees’ Union Queensland, Union of Employees
Ms M. Cerrato, of the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch)
Mr J. Spriggs and Ms D. Wilson, of the Queensland Independent Education Union of Employees
Ms R. Huskie, of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, QueenslandMs L. Booth, of the Queensland Nurses Union of Employees
Reasons for Decision
Introduction
[1]Part 8 of Chapter 5 "Modernisation of awards" as well as Chapter 5A, "Modern awards", were inserted into the Industrial Relations Act 1999 (the Act) by Act No. 61 of 2013. The amending Act thereby introduces a regime which permits the Minister to request the Queensland Industrial Relations Commission (Commission) to undertake a process of modernising awards. Section 140C empowers the Minister to give the Commission an award modernisation request (Request) to carry out an award modernisation process.
[2]On 26 September 2014 following a Request from the then Attorney-General and Minister for Justice given in January 2014, a differently constituted Full Bench of this Commission made the Queensland Local Government Industry Award - State 2014 (the 2014 Award). A copy of the Request is attached to this decision at Schedule A.
[3]The Act was amended in 2015 by the Industrial Relations (Restoring Fairness) and Other Legislation Act 201 which amongst other things, amended s 140D of the Act "Modern award objectives", by deleting the requirement that the Commission have regard to "financial considerations" as defined in that section. It also amended the principal object of the Act by deleting s 3(p) which required that when wages and employment conditions are determined by arbitration and the matter involved the public sector, the financial position of the State and the relevant public sector entity and the State's fiscal strategy were to be taken into account.
[4]The Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 also inserted Part 20, Transitional Provisions for Industrial Relations (Restoring Fairness) and other Legislation Amendment Act 2015 to the Act. Section 841 of the Act requires the Commission to review a relevant modern award and vary it if the Minister gives the Commission a variation notice under s 140CA. Section 140CA(1) requires the Commission to remove certain provisions which had been required to be inserted prior to their repeal by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015, as well as to include certain provisions that had been contained in relevant pre-modernisation awards.
[5]On 17 July 2015 the Treasurer and Minister for Employment and Industrial Relations (Minister), pursuant to s 140CA(1) issued a variation notice and made a Consolidated Request. A copy of the Consolidated Request is attached to this decision at Schedule B.
[6]A differently constituted Full Bench dealt with the Consolidated Request and the requirement of s 844 that the Commission consider an increase to the number of awards covering the Queensland local government industry (Excluding Brisbane City Council) ("Queensland local government industry"). That Full Bench declined to increase the number of awards governing the Queensland local government industry deciding that one award is appropriate.[1]
[1] Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award – Local Government [2015] QIRC 156.
[7]Following that decision, pursuant to the Consolidated Request, the Commission's award modernisation team (AMOD Team) conducted conferences with interested parties in an attempt to come to an agreed position in relation to amending the 2014 Award in conformity with the Consolidated Request. No agreement was reached and, on 10 September 2015, Deputy President Bloomfield referred the variation of the award to the Vice President who constituted this Full Bench to deal with the matter and to vary the 2014 Award in conformity with the Consolidated Request. The Referral included an Exposure Draft of a proposed new modern award for this Full Bench to consider.
Relevant Legislation
[8]Section 3 of the Act sets out its principal object, which provides:
"The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by -
(a) providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers; and
(b) providing for an effective and efficient economy, with strong economic growth, high employment, employment security, improved living standards, low inflation and national and international competitiveness; and
(c) preventing and elimination discrimination in employment; and
(d) ensuring equal remuneration for men and women employees for work of equal or comparable value; and
(e) helping balance work and family life; and
(f) promoting the effective and efficient operation of enterprises and industries; and
(g) ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and
(h) promoting participation in industrial relations by employees and employers; and
(i) encouraging responsible representation of employees and employers by democratically run organisations and associations; and
(j) promoting and facilitating the regulation of employment by awards and agreements; and
(k) meeting the needs of emerging labour markets and work patterns; and
(l) promoting and facilitating job growth, skills acquisition and vocational training through apprenticeships, traineeships and labour market programs; and
(m) providing for effective, responsive and accessible support for negotiations and resolution of industrial disputes; and
(n) assisting in giving effect to Australia’s international obligations in relation to labour standards; and
(o) promoting collective bargaining and establishing the primacy of collective agreements over individual agreements."
[9]Section 140BA of the Act sets out the object of modernising awards:
"140BA Object of modernising awards
The principal object of this part is to provide for the modernisation of awards so they -
(a) are simple to understand and easy to apply; and
(b) together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees; and
(c) are economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and
(d) are in a form that is appropriate for a fair and productive industrial relations system; and
(e) result in a certain, stable and sustainable modern award system for Queensland."
[10]The modern awards objectives are found in s 140D of the Act which relevantly provides:
"140D Modern awards objectives
(1) In exercising its chapter 5A powers, the commission must ensure modern awards, together with the Queensland Employment Standards, provide a minimum safety net of employment conditions that is fair and relevant.
(2) For subsection (1), the commission must have regard to the following -
(a)relative living standards and the needs of low-paid employees;
(b)the need to promote social inclusion through increased workforce participation;
(c)the need to promote flexible modern work practices and the efficient and productive performance of work;
(d)the need to ensure equal remuneration for male and female employees for work of equal or comparable value;
(e)the need to provide penalty rates for employees who -
(i)work overtime; or
(ii)work unsocial, irregular or unpredictable hours; or
(iii)work on weekends or public holidays;
(iv)or perform shift work;
(f)the likely impact of the exercise of the chapter 5A powers on business, including on productivity, employment costs and the regulatory burden;
(g)the need to ensure the modern award system -
(i)is simple and easy to understand; and
(ii)is certain, stable and sustainable; and
(iii)avoids unnecessary overlap of modern awards;
(i)the likely impact of the exercise of the chapter 5A powers on–
(i)employment growth and inflation; and
(ii)the sustainability, performance and competitiveness of the Queensland economy
…
(4) The objectives of the commission under subsections (1) and (2) are the modern awards objectives.
…"
[11]Section 140BB describes the Commission's award modernisation function:
"140BB Commission's award modernisation function
(1) The functions of the commission include carrying out a process (award modernisation process) to reform and modernise pre-modernisation awards.
(2) In performing its functions under this part, the commission must have regard to the following factors –
(a)promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;
(b)the need to help prevent and eliminate discrimination in employment;
(c)protecting the position in the labour market of young people, employees engaged as apprentices or trainees and employees with a disability;
(d)the needs of low-paid employees;
(e)the need to promote the principle of equal remuneration for work of equal value;
(f)the need to help employees balance their work and family responsibilities effectively and to improve retention and participation of employees in the workforce;
(g)the safety, health and welfare of employees;
(h)the Queensland minimum wage;
(i)the desirability of reducing the number of awards operating under this Act;
(j)the representation rights of organisations and associations under this Act.
(3) This section does not limit section 140D."
[12]As noted earlier, s 140C and s 140CA of the Act empower the Minister to make an award modernisation request and a variation to that request respectively. Section 140C and s 140CA of the Act relevantly provide as follows:
"140C Minister may make award modernisation request
(1) The Minister may give the commission a written notice (an award modernisation request) requesting that an award modernisation process be carried out.
(2) An award modernisation request must state -
(a)details of the award modernisation process that is to be carried out; and
(b)the day by which the process must be completed.
…
(4) An award modernisation request may state any other matter about the award modernisation process the Minister considers appropriate.
(5) Without limiting subsection (4), the award modernisation request may -
…
(b)state permitted matters about which provisions must be included in a modern award; or
(c)direct the commission to include in a modern award terms about particular permitted matters; or
(d)give other directions about how, or whether, the commission must deal with particular permitted matters.
(6) In this section -
permitted matter means a matter about which provisions may be included in a modern award under chapter 2A, part 3, division 1 or 2.
"140CA Variation of award modernisation request
(1) Before an award modernisation process is completed, the Minister may vary the award modernisation request by written notice (a variation notice) given to the commission.
…"
[13]The procedure for the carrying out of the award modernisation process is found in s 140CC of the Act and that section provides:
"140CC Procedure for carrying out modernisation process
(1) The commission must carry out the award modernisation process in accordance with the award modernisation request.
(2) Subject to subsection (1) -
(a) the commission may decide the procedure for carrying out the award modernisation process; and
(b)without limiting paragraph (a), the commission may inform itself in any way it thinks appropriate, including by consulting with any person, body or organisation in the way the commission considers appropriate.
(3) To remove any doubt, it is declared that subsection (2) does not limit the powers of the commission under any other provision of this Act."
[14]Section 273 of the Act sets out the Commission's functions and provides:
"(1)The commission's functions include the following -
(a)establishing and maintaining a system of non-discriminatory awards that, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees;
(b)supervising the bargaining of agreements;
(c)certifying agreements;
(d)resolving disputes by concilliation of industrial matters and, if necessary, by arbitration or making an order;
(e)making awards;
(f)resolving disputes in the negotiation of agreements -
(i)by conciliation; or
(ii)by arbitration, including by the making of determinations;
(g)resolving disputes over union coverage by making representation orders;
(h)resolving disputes by performing the functions conferred on the commission under a referral agreement;
(i)resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;
(j)dealing with -
(i)applications for orders under section 85C, 278 or 408F; or
(ii)claims relating to dismissals
(k)making declarations about industrial matters
(2) The commission must perform its functions in a way that -
(a)furthers the objects of this Act; and
(b)avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act."
[15]In order to effect the changes wrought by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015, transitional provisions are necessary. These include sections 841, 842, and 843:
"841 Commission must review and vary relevant modern award
(1) This section applies to a relevant modern award if the Minister gives the commission a variation notice under section 140CA in relation to the award modernisation process.
(2) The commission must review the relevant modern award and vary it under this division as soon as practicable after receiving the variation notice.
(3) For reviewing the relevant modern award under this division -
(a) the commission must carry out the review in accordance with section 140CC; and
(b) section 140CE and chapter 5A, part 3 do not apply.
(4) The award modernisation process under which the relevant modern award was made continues for the purpose of enabling the award to be reviewed and varied under this division.
842 Requirements for review of relevant modern award
(1) In reviewing a relevant modern award under this division, the commission must vary the award to remove -
(a) a provision required to be included by repealed section 71M, 71MA or 71MB; and
(b) any provision ancillary to a provision mentioned in paragraph (a).
Example for paragraph (b) -
clause 8.2 of the Queensland Public Service Officers and Other
Employees Award - State 2014
(2) Also, the commission must vary the relevant modern award to include a provision that was in a relevant pre-modernisation award about any of the following -
(a)union encouragement;
(b)union delegates;
(c) industrial relations education leave or trade union training leave;
(d) right of entry;
(e) prevention and settlement of disputes, including employee grievance procedures;
(f) termination, change and redundancy.
(3) For subsection (2), the commission may amend the provision for insertion in the relevant modern award as the commission considers appropriate having regard to -
(a)the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and
(b)the modern awards objectives under section 140D; and
(c) in relation to a provision mentioned in subsection (2)(e) - the requirements under section 71MCA.
(4) In this section -
provision, of a relevant pre-modernisation award, includes a provision of the award that was of no effect because of repealed chapter 15, part 2.
843 Other variations
(1) The commission may vary a relevant modern award to provide for a matter contained in a relevant pre-modernisation award.
(2) For deciding whether to vary the relevant modern award under subsection (1), the commission must have regard to -
(a) the provisions permitted to be included in a relevant modern award under section 71ND; and
(b) the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and
(c) the modern awards objectives under section 140D; and
(d) a submission made by a party covered by the relevant modern award about the proposed variation.
Overview
[16]The current provisions of the Act and the Minister’s new Consolidated Request require that the 2014 Award be varied. It is also a requirement of the Consolidated Request that this variation be made by 31 October 2015.
[17]Consequently, this Full Bench is required to re-consider the provisions of a new award to apply in the Queensland local government industry. As mentioned previously, the Referral to this Full Bench included an Exposure Draft of a new modern award for the consideration of the Full Bench. This Exposure Draft is included in Exhibit 1. Prior to determining its terms and conditions, the Full Bench has been required to deal with a number of threshold issues. Those issues include:
· the Minister’s Intervention;
· the format of any varied 2014 Award for the Queensland local government industry;
· whether a number of allowances contained in the awards in existence prior to the making of the 2014 Award should again be included in the varied award in lieu of the Local government industry allowance which was inserted into the 2014 Award; and
· whether Locality Allowances and the additional week of annual leave, which was included in the former Queensland Local Government Officers' Award 1998 and the Municipal Officers' Award (Aboriginal and Islander Community Councils) Award 2004 by way of a reference to a Directive of the Queensland Government, should again be included in the varied award.
[18]At the outset it should be noted that, at the time of the hearing of this application, out of a total 22 of 76 local governments in Queensland have their employment conditions governed by either the 2014 Award or by the 2014 Award together with a certified agreement approved by this Commission since the making of the 2014 Award in September 2014.
[19]Throughout this decision the following organisations will be referred to as follows:
· the Local Government Association of Queensland Limited (LGAQ);
· the Queensland Services, Industrial Union of Employees (QSU);
· the Australian Workers' Union of Employees, Queensland (AWU);
· the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland; the Electrical Trades Union of Employees, Queensland; the Plumbers & Gasfitters Employees' Union of Queensland, Union of Employees and the Construction, Forestry, Mining & Energy, Industrial Union of Employees Queensland (BEMS Unions);
· the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU);
· the Electrical Trades Union of Employees, Queensland (ETU);
· the Construction, Forestry, Mining & Energy, Industrial Union of Employees Queensland (CFMEU);
· the Plumbers & Gasfitters Employees' Union of Queensland, Union of Employees (PGEU);
· the Transport Workers' Union of Australia, Union of Employees (Queensland Branch (TWU);
· the Queensland Independent Education Union of Employees (QIEU).
Threshold issue - the Minster's intervention
[20]A preliminary, or threshold, issue relates to the extent to which the Consolidated Request may be said to direct the Commission as to the content of any variation to the 2014 award made in response to the Consolidated Request. In particular:
(a) whether the Minister can direct the Commission about what should be included in the varied award;
(b) whether the Consolidated Request contains directions to the Commission about what the varied award must contain; and
(c) if so, what weight the Commission should give to any directions contained in the Consolidated Request and how much discretion the Commission has in the way in which it gives effect to a specific direction or directions from the Minister.
[21]At first blush, it appeared that the terms of the Consolidated Request may have impermissibly breached the doctrine of the separation of powers between the executive and judicial arms of government. The Commission, albeit a tribunal, is a court of record and required to act judicially.
[22]In order to deal with this issue, submissions were sought from the parties, including the Minister.
[23]Written submissions were received and oral argument in relation to this issue was heard on 28 September 2015.
[24]The Minister intervened as of right pursuant to s 322 of the Act, and thereby became a party. Somewhat ironically, Mr J Murdoch QC, who sought leave to appear on behalf of the Minister, was unable to do so because the LGAQ objected to the Minister being legally represented. Section 319(2)(b)(ii) only allows a party to be legally represented in proceedings of this nature with the consent of all other parties. The Commission lacks the power to exercise a discretion to grant leave.
[25]In his written submission, the Minister submits in essence that the Commission is required by the Act to ensure that the varied award "is compliant with the terms of the [Consolidated] Request," in particular the statements in Schedule 1 of the Consolidated Request that the Commission:
(a) "is to give consideration to a review of the allowances and other provisions" in the 2014 Award and, to that end, the Commission "is to give consideration to restoring the provisions of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation award/s;"
(b) "is to review the Consolidated and other allowance arrangements" currently in the 2014 Award to "ensure employee entitlements have not been reduced in comparison with the allowance arrangements prescribed in the pre-modernisation awards;" and
(c) "is to give consideration to the submissions of the parties in the review of the allowances and other provisions, in particular where a party can demonstrate a reduction in employee remuneration or an employee entitlement as a consequence of the consolidation of, or changes made to, the allowances and other provisions."
[26]The Minister submits that "it was envisaged" in the Consolidated Request that, in determining the varied award, "employee entitlements and conditions would not be reduced or removed from what was available in pre-modernisation awards."
[27]Ultimately, the separation of powers issue need not be decided because no party has submitted that either the Act or the Consolidated Request goes so far as to direct the Commission as to what is to be contained in any provision that the Commission prescribes in the varied award.
[28]The position of the Minister is encapsulated in the following exchange with Anthony James, who appeared for the Minister: " … the Minister’s intent through this process is to ensure that it is not - as a consequence of process for entitlements to be removed or lost." … "But how we get to that point is up to us? … As long as the objective is reached, the form of the award which achieves that outcome could be expressed, notionally, in a number of ways?" "Yes." "And so is your submission that we should ensure that that objective is reached, but, beyond that, the Minister isn’t prescribing how we get to that objective?" "The Minister is not prescribing the detail of what will be in the award, but he does clearly contemplate that the outcome should not be a reduction in the terms and conditions that were available to employees in the pre-modernised award."[2]
[2] Transcript of proceedings, Re: Making of a modern award - Queensland Local Government Industry Award – State 2015 (Queensland Industrial Relations Commission, MAP/2015/9, VP Linnane, DP Kaufman, Industrial Commissioner Neate, 28 September 2015, 1 - 24/5 - 40.
[29]How the Commission achieves that is up to the Commission.
[30]It is timely to refer to s 140C which makes it clear that the Minister’s request is in relation to process. We note that the Minister may request that an award modernisation process be carried out by the Commission and the Commission is to carry out the award modernisation process in accordance with the award modernisation request. Beyond an ability to direct the Commission as to subject matter to be included, or not, in the award, the Consolidated Request does not extend to the content of the subject matter.
[31]No separation of powers issue has therefore arisen.
[32]The BEMS Unions faintly submitted that the Consolidated Request is delegated legislation and that accordingly its requirements are imperatives. This submission was not advanced. The Consolidated Request is not delegated legislation.
[33]In support of their case the unions relied, particularly, on the Statement of Intent and Schedule 1 of the Consolidated Request where the Minister said:
"A modern award shall provide for fair and just employment conditions.
The purpose of award modernisation is to ensure awards remain relevant and provide for the rights and responsibilities that ensure economic advancement and social justice for all employees and employers.
Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in pre-modernisation awards. Having regard to this, the Commission shall ensure wages and employment conditions continue to provide fair conditions in relation to the living standards prevailing in the community and what is afforded to employees and employers in the relevant pre-modernisation award/s.
Schedule 1 - Local Government (excluding Brisbane City Council) award modernisation priorities
Allowances and other provisions
The Commission is to give consideration to a review of the allowances and other provisions in the Queensland Local Government Industry Award - State 2014. To this end the Commission is to give consideration to restoring the provision of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation award/s. Furthermore, the Commission is to review the consolidated and other allowance arrangements currently in the Queensland Local Government Industry Award - State 2014 to ensure employee entitlements have not been reduced in comparison with the allowance arrangements prescribed in the pre-modernisation awards.
The Commission is to give consideration to the submissions of the parties in the review of the allowances and other provisions, in particular where a party can demonstrate a reduction in employee remuneration or an employee entitlement as a consequence of the consolidation of, or changes made to, the allowances and other provisions." [Emphasis added]
[34]We are reminded by the Minister's Statement of Intent that award modernisation is not intended to reduce or remove employee entitlements and conditions from what was available in pre-modernisation awards, and to that end we are to ensure wages and employment conditions continue to provide fair conditions in relation to living standards prevailing in the community.
[35]We note that this requirement is not dissimilar to that of the Request of the former Minister pursuant to which the award was made in 2014. That Request directed the Commission to have regard to the safety net community standards operating in respect of similar work throughout Australia, including properly fixed minimum rates and allowances.
[36]Given that direction, a premise of the 2014 Award must be that it was made having regard to safety net community standards and therefore already provides fair conditions in relation to living standards prevailing in the community.
[37]In varying the award we have had regard to the Minister's intent expressed in the Consolidated Request, and consistent with our statutory duty we act conformably with it. No party has suggested that the Statement of Intent precludes a reduction or removal of any employee entitlements.
[38]It is readily apparent that the Commission is required to give consideration to restoring locality allowances and an extra week's leave. No party has suggested that the Consolidated Request demands more.
[39]Much of the debate centered around that portion of the Consolidated Request that requires the Commission to review allowance arrangements to ensure employee entitlements have not been reduced vis à vis those in the pre-modernisation awards.
[40]The unions' submissions, which we deal with in detail later, were to the effect that the requirement that the Commission ensure employee requirements not be reduced from those which pertained in the pre-modernisation awards, means that each and every pre-existing allowance be now included in the varied award.
[41]In making the 2014 Award, the Full Bench said:
"The Full Bench, in considering the submissions, has formed the view that an Industry Allowance should be included in the award. The approach taken by the AMOD Team reflects, in the Full Bench's view, one of the objects of the modern award process - namely, to provide for awards that are simple to understand and easy to apply.[3] The Full Bench was advised that in excess of 200 separate allowances have been reduced to 19 in the Exposure Draft. It is apparent to the Full Bench that the incorporation of the Industry Allowance into the modern award would provide significant cost and administrative savings to the Local Government sector, and its inclusion is consistent with the award modernisation process."[4]
[3] Industrial Relations Act 1999 s 140BA(a).
[4] Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149, [152] (e).
[42]In order to ensure that individual employees were not to be disadvantaged by the reduction of some 200 allowances to 19, the Full Bench created a Local government industry allowance and also made a "preservation order" to enable any employee who was in fact disadvantaged to seek an order preserving his or her allowances. The Exposure Draft retains the Local government industry allowance and adds another allowance (the Construction, reconstruction, alteration, repair and/or maintenance allowance) to further ensure that employees are not disadvantaged by the loss of individual allowances.
[43]This regime may properly be described as an allowance arrangement. Its purpose was manifestly to ensure that employee entitlements had not been reduced in comparison with the allowance arrangements prescribed by the pre-modernisation awards that were repealed upon the making of the 2014 Award.
[44]The Consolidated Request must, of course, be read in the context of the Act, which is paramount. The Commission must comply with the Consolidated Request, but only insofar as it can do so conformably with the Act.
[45]Insofar as terms and conditions of employment and entitlements are concerned, the Act has not changed significantly since the making of the 2014 Award. The deletion of the references in the Act to "financial position" and "fiscal strategy" in ss 3(p) and 145D are not relevant to our decision, as they were not adverted to in the 2014 decision.
[46]It follows that the 2014 Award was made in a context that is substantially the same as that which currently pertains.
[47]The restoration of the pre-existing allowances is not required by the Consolidated Reference, nor is it consistent with the award modernisation provisions of the Act. We refer in particular to ss 3(f), 140BA, 140BB, 140D and 273.
[48]Further in our view, the restoration of the pre-modernisation allowances would be antithetical to the requirements of ss 3(f), 140BA(a), (b), (c), and (d), and 140D(1), (2)(iii), (vi) and (vii).
[49]Significantly, the evidence called by the unions does not demonstrate that any employee's actual entitlements have been reduced in comparison with what he or she would have received under the allowance arrangements prescribed in the pre-modernised awards. We will analyse the evidence later in these reasons.
The format of the varied award
[50]Another threshold issue is what form the varied award should take, in particular, whether this Full Bench should vary it to conform with:
(a) the Exposure Draft prepared by the AMOD Team; or
(b) the draft prepared by five unions (the PGEU, QSU, ETU, AWU and CFMEU) and supported by some other unions.
[51]In summary, the Exposure Draft comprises eight parts dealing with formal matters; dispute resolution; types of employment, consultation and termination of employment; minimum wage and salary levels, allowances and related matters; hours of work, breaks, on-call, overtime, shift work, weekend work; leave of absence and public holidays; transfers, travelling, camps and equipment; and union related matters. Schedules 1 to 6 deal with classifications and wage levels for employees in particular streams, and the definitions and position descriptors for those streams. Schedule 7 lists employers declared not to be national system employers.
[52]The draft award submitted by the five unions comprises five short parts dealing with formal matters; consultation and dispute resolution; superannuation; leave of absence and public holidays; travelling; and award compliance and union related matters. The bulk of the document is set out in three divisions applying respectively to:
(a) administrative, technical, community service, supervisory and managerial employees;
(b) building, engineering and maintenance employees; and
(c) operational employees.
Each division contains provisions in relation to substantially the same matters as the other divisions (including application; types of employment and termination of employment; minimum wages and salary levels, allowances and related matters; hours of work, breaks, on-call, overtime, shift work, weekend work; leave of absence and public holidays; and travelling). Some other provisions are specific to one or more divisions.
[53]Oral submissions were made in relation to the two forms of the proposed Award.
[54]Unions' submissions: The BEMS Unions, and the AWU, QSU and TWU (the supporting unions) made separate submissions in support of the five unions' draft award. Considered together, their submissions were to the following effect:
(a) this Full Bench is not bound by the Exposure Draft but is required to consider the matter afresh, and nothing in the Act or the Consolidated Request precludes the Full Bench looking at using a different approach;
(b) it is open to the Full Bench to consider different configurations of the single award in order to recognise several discrete and distinct occupational groupings;
(c) that form of award would streamline and be reflective of different occupational groupings;
(d) in substantive terms, that form of award would be the simplest and most effective way of ensuring that employees' entitlements are not reduced by comparison with pre-modernisation standards;
(e) that form of award would ensure that the modern award remains clear, stable and certain;
(f) union members would find it easier to access and understand;
(g) employers would find it easier to understand and correctly apply relevant conditions;
(h) that form of award would be consistent with the approach local governments take when negotiating enterprise agreements, and hence would make it easier to create enterprise agreements;
(i) that form of award is consistent with s 140D of the Act (particularly s 140D(1) and s 140D(2)(g)) and the Minister's statement of intent, "Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in pre-modernisation awards."
[55]By contrast to their proposal, the BEMS Unions and supporting unions submit that one award in the form of the Exposure Draft is large, complicated and difficult to read. They also submit that, in the absence of divisions along occupational lines, the only way to ensure employee standards are not compromised or reduced would be by picking the high standard in each instance and have it apply more generally. Such an approach, they concede, would not be acceptable.
[56]The BEMS Unions submit that employees not covered by those unions (e.g. teachers and nurses) could be included in the appropriate existing stream or other streams could be created and included in the modern award.
[57]The QSU specifically disputes the suggestion that the five unions' draft award appears to be in conflict with the decision of a differently constituted Full Bench, that only one award should be made for the local government industry. Rather, the QSU submits that the draft award provided by the unions has a "common core" and several divisions.
[58]LGAQ's submission: The LGAQ supported, or at least had no problems with, the form of award contained in the Exposure Draft. It pointed to the substantial reduction in documentation compared with the 18 pre-modernised awards and, significantly, noted that 22 local governments (large and small) are operating under the 2014 Award. The LGAQ submitted that to depart radically from that award in content would adversely affect those local governments.
[59]The LGAQ submits that, by contrast, the five unions' draft award:
(a) contains only 18 pages of common provisions (including some provisions not included in pre-modernised awards);
(b) in essence adds a number of awards with a cover sheet, rather than being a genuine attempt to create a single local government industry modern award;
(c) is some three to four times longer than the 2014 Award;
(d) would not be simple and easy to understand and apply; and
(e) in its current form, would not take into account all the other potential groups that are currently covered by the 2014 Award.
[60]Consideration and conclusion: Although this Full Bench is not bound to accept the form of the Exposure Draft, we have not been convinced to adopt a different form.
[61]We accept that the length of a modern award is not necessarily an indication of its compliance with the modern award objectives in the Act and other requirements or guidelines. However, we are not persuaded that the incorporation of long and detailed divisions dealing separately with categories of employees into one award is the preferable way to meet those objectives and requirements. Indeed, while it might be easier for some employees to navigate through the separate parts of an award that apply only to them, the range and greater number of provisions applying to one or more categories of employees could significantly add to the administrative burden of local governments in giving effect to the varied award.
[62]As noted earlier, the five unions' draft award in its present form does not cover all employees who need to be covered by a modern local government award. In the course of oral submissions, there were suggestions about whether it would be necessary to create other streams to accommodate other employees (such as nurses and teachers) or whether those employees could be accommodated within one of the three proposed streams. Although it was not incumbent upon the BEMS Unions and the supporting unions to provide a draft covering employees other than their members, the discussion about this issue in the hearing and the lack of ready answers indicate that a considerable amount of work might need to be done if that form of agreement were to be adopted and revised to cover all relevant employees.
[63]There are other practical reasons for retaining that form of award. They overlap with the reasons given by another Full Bench when deciding that there should be one modern award for the local government industry in Queensland.[5] They include:
(a) reducing the risk of significant differences and inequity where different provisions apply to people working side-by-side within distinct operational areas; and
(b) recognising that, for those local governments who have had practical experience in adapting to and administering the 2014 Award, the experience has been positive and the 2014 Award has proved easier (and less risky) to administer.
[5] Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award - LocalGovernment [2015] QIRC 156.
In other words, this Full Bench is able to decide the appropriate form of award on the basis of practical experience as well as conceptual arguments.
[64]We have decided to vary the 2014 Award to make it consistent with the form contained in the Exposure Draft and will consider the submissions made in relation to specific provisions that are in contention later in this decision.
Local government industry allowance or restoration of allowances contained in the pre-modernised awards
[65]The AMOD Team proposes a Local government industry allowance of $0.55 per hour in Clause 13(b)(i), and describes the working conditions that would qualify an employee to such compensation in Clause 13(b)(i)(A) to (E). The Local government industry allowance is intended to replace a number of specific allowance provisions in the pre-modernised awards. The Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State[6] inserted such an allowance into the 2014 Award.
[6] Re: Making of a modern award - Queensland Local Government Industry Award - State [2014] QIRC 149.
[66]In so doing that Full Bench stated at [152]:
"a)Local Government Industry Allowance: The AWU, AMWU, ETU, and PGEU oppose the establishment of the Local Government Industry Allowance (Industry Allowance). In particular, these Objectors argue that Clause 13(a) provides a level of monetary compensation less than the allowance regime under the existing awards. The submission is that the proposed clause would disadvantage employees who are suffering from discrete and separate disabilities on one occasion during the course of a working day. In addition, the disadvantage would be further compounded in the event that multiple disabilities were suffered at the same time or during the same day. As a consequence, they argue that the flat rate of $0.50 per hour would not provide proper or fair compensation.
b)The AMWU, ETU and PGEU oppose the Industry Allowance on the following grounds:
·it is a significant departure from the historical entitlement to an allowance arising as a result of a discrete disability being suffered by an employee;
·the quantum is lower than many allowances currently payable to employees under pre-modernised awards;
·it departs from the established principle of accumulation of allowances and acknowledgement that an employee should, in most circumstances, receive payment for each disability suffered;
·it does not apply in situations where other allowances payable under the proposed modern award apply; and
·it creates disadvantages and inequities to those employees required to work in environments and conditions in which they ought to be duly compensated for by way of separate and discrete allowances.
c)In short, the AMWU, ETU, and PGEU submit that Clause 13(a) should be deleted from the modern award and be replaced by discrete and separate disability entitlements that can be accumulated in circumstances where more than one disability is being suffered. In the alternative, the AMWU, ETU, and PGEU submit that, should the Full Bench be minded to determine that the modern award should include an Industry Allowance, there should be:
·an increase in the per hour flat rate payable to employees in the building trades group, engineering and electrical/electronic group and operations group, respectively, of the General stream to $1.50 per hour;
·provision for additional payments of $0.50 per additional disability when one or more disabilities as detailed in Clause 13(a) are being suffered; and
·an accumulation of special rates provision to ensure employees suffering from multiple disabilities that are subject to allowances elsewhere in Clause 13 are duly compensated for each disability suffered, unless otherwise already excluded by the current award allowance provisions.
d)The LGAQ supports the incorporation of the Industry Allowance in the modern award. However, it submits that the clause should be amended to delete reference to 'streams'. The submission of the LGAQ is based on a different classification methodology than that adopted by the AMOD Team and by this Full Bench.
e)The Full Bench, in considering the submissions, has formed the view that an Industry Allowance should be included in the award. The approach taken by the AMOD Team reflects, in the Full Bench's view, one of the objects of the modern award process - namely, to provide for awards that are simple to understand and easy to apply. The Full Bench was advised that in excess of 200 separate allowances have been reduced to 19 in the Exposure Draft. It is apparent to the Full Bench that the incorporation of the Industry Allowance into the modern award would provide significant cost and administrative savings to the Local Government sector, and its inclusion is consistent with the award modernisation process."
[67]That Full Bench went on to state that "Whilst accepting the utility of incorporating the Industry Allowance into the modern award, the Full Bench is nevertheless cognisant of the fact that the introduction of the modern award could lead to a reduction in the amount of an allowance, or the total amount of allowances, payable to an existing employee under Clause 13. To deal with such a situation, the Full Bench raised, in the hearing of this matter, the prospect of permitting a local government employee as at 1 January 2015 to seek a preservation order from the Commission once the modern award applies to that employee".[7]
[7] Ibid [152] (f).
[68]In the current proceeding, the AWU objects to the provision as it stands, submitting the substitution of an hourly allowance in lieu of a variety of allowances that were paid to its members on a weekly basis, will result in significant income losses to its members. The AWU proposes the allowance be paid as a weekly allowance of $21.00. It would also amend the provision so that work performed at cemeteries is excised from the working conditions for which the allowance is payable, on the basis that other specific allowances in Clause 13 compensate employees for such work.
[69]The TWU objects to the Local government industry allowance should it remain at $0.55 per hour and proposes an additional dirt money allowance for bitumen sprayer drivers, at a rate of $2.60 per day. Alternatively, the TWU proposes a dirt money allowance for bitumen sprayer drivers of $6.77 per day should the local government allowance be removed.
[70]The BEMS Unions propose the Local government industry allowance be removed altogether, submitting it is a radical departure from the way in which the Commission has dealt with allowances in the past, and that the proposed rate of $0.55 per hour does not adequately compensate their members for the disabilities suffered doing particular kinds of work, for example, working in cramped spaces.
[71]The LGAQ submits that much of the argument for the restoration of pre-modernised award conditions is based on the various union assertions that there has been a diminution in conditions of employment as a result of the single award. The LGAQ submits that these arguments have little basis in practice.
[72]It is the LGAQ's submission that the practical experience from local governments that have transitioned to the 2014 award, is at odds with what is being claimed by the unions. In this regard the LGAQ relies upon the affidavit of Tony Goode (Exhibit 17). Mr Goode is the Workforce Strategy Manager with the LGAQ and in response to the unions' submissions in this matter, actively sought information from the 22 local governments subject to the 2014 modern award.
[73]In the survey undertaken by Mr Goode not one of those local governments was subject to an application for a Preservation Order from an employee or had received any formal grievance from any such employee. Eleven of those local governments indicated that employees had gained income as a result of the introduction of the Local government industry allowance.
[74]By way of example: as the unions had complained that the Local government industry allowance was insufficient because it incorporated the exhumation allowance of $45.76 for each exhumation provided for in pre-modernised awards, Mr Goode further undertook a survey of local governments to establish just how many exhumations occurred each year. Of the 21 local governments who had indicated in a 2014 survey that they did perform this function, only five exhumations had occurred in the past year. That survey revealed one in the Banana local government, one in the Southern Downs local government, one in the Toowoomba local government and two in the Townsville local government. It is an allowance received by very few employees in the Queensland local government industry.
[75]The submissions of the various unions seeking the restoration of the allowances contained in the pre-modernised awards relied heavily on the terms of the Minister's Consolidated Request.
[76]In this Exposure Draft the AMOD Team has, in addition to the Local government industry allowance also included in Clause 13(h) the Construction, reconstruction, alteration, repair and/or maintenance allowance of $0.80 per hour in lieu of the Local government industry allowance whilst engaged on such work. This allowance was not provided for in the 2014 Award.
[77]It is also to be noted that no application for a Preservation Order has been made since the making of the 2014 Award. Whilst not all local government employees have been covered by the 2014 Award, at least 22 local governments and their employees have been. The fact that no individual in those 22 local governments has sought a Preservation Order suggests that the detriment to employees envisaged by the various unions did not eventuate.
[78]The Full Bench has, in dealing with the objections to Clause 13, decided to include in the varied award the Construction, reconstruction, alteration, repair and/or maintenance allowance of $0.80 per hour. The Full Bench has also decided to provide for the ability to obtain a Preservation Order. These matters are dealt with later in this decision.
[79]In those circumstances the Full Bench has formed the view that the Local government industry allowance of $0.55 per hour be included in the varied award. When one looks at the proposal of the BEMS Unions to insert 52 separate allowances into the modern award to replace the Local government industry allowance, the benefits of the one allowance are obvious. The Local government industry allowance in the modern award will provide significant cost and administrative savings.
[80]The insertion of such an allowance is consistent with the objects of the modern award provisions in the Act.
Locality Allowance and the additional week's leave
[81]In its 2014 decision, the Full Bench said:[8]
"(dd)Locality Allowance: The LGAQ opposes a Locality Allowance provision in the modern award. There is no such provision in the Exposure Draft. The QSU and the QIEU seek the insertion of such allowances in Clause 13 of the modern award. In its submission, the LGAQ argues that locality allowances provide disparity and prejudice between the 'haves' and 'have nots'. The LGAQ argues that allowances based on geographical location are not appropriate in a modern minimum award. The QSU argues that the inclusion of a locality allowance provision has a strong historical basis and employees in regional and remote areas of Queensland are reliant on the payment of such an allowance. The LGAQ, by contrast, submits that '[t]he historical genesis for these provisions in pre-modernisation awards is not a reason for their retention in a modern award context.' The LGAQ goes on to submit, '[c]ost and ease of travel and transport infrastructure has changed markedly since the inclusion of these considerations; the social relativities between the centres within these predefined districts have varied considerably since their development; and technological advancement (such as tele-health) has made significant in-roads into the remoteness and isolation of these locations/districts.'
(ee)The Full Bench sees merit in the submission of the LGAQ and it is appropriate that the basis for both the payment and the topographical boundaries which underpin the locality allowances should be comprehensively reviewed. In regard to the payment of a locality allowance, the Full Bench has indicated that it is prepared to continue the operation of Clause 13.1 of the Municipal Officers' Award (Aboriginal and Islander Community Councils) and Clause 12.1 of the Queensland Local Government Officers' Award 1998 until 31 March 2015. Such a course will enable applications to be filed in the Industrial Registry (prior to 30 November 2014) by any organisation seeking the insertion of locality allowances in this modern award. Provided that such applications are filed within that time, the Commission will hear and determine such applications by 10 March 2015."
[8] Re: Making of a modern award - Queensland Local Government Industry Award – State 2014 [2014] QIRC 149, [152].
[82]Consequently, the matter was referred to Deputy President Kaufman, who heard and determined the matter. His Honour outlined the historical basis for the inclusion of those provisions in the pre-modernised award, the Queensland Local Government Officers Award 1992. He concluded that it was not appropriate that the modern award contain the locality allowance or the additional week's leave, albeit his Honour retained them for a period. It is convenient to repeat some of his Honour's reasons:[9]
[SIGNED]
HON. CURTIS PITT MPTreasurer
Minister for Employment and Industrial Relations
Minister for Aboriginal and Torres Strait Islander Partnerships
17 July 2015
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