State of Queensland (Department of Community Safety Queensland Ambulance Service) v United Voice, Industrial Union of Employees, Queensland (No. 2)
[2014] QIRC 93
•28 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of Community Safety - Queensland Ambulance Service) v United Voice, Industrial Union of Employees, Queensland (No. 2) [2014] QIRC 093 |
PARTIES: | State of Queensland (Department of Community Safety - Queensland Ambulance Service) v United Voice, Industrial Union of Employees, Queensland |
CASE NO: | CA/2012/544 |
PROCEEDING: | s 149 Arbitration |
DELIVERED ON: | 28 May 2014 |
HEARING DATES: | 8 February 2013 |
MEMBERS: | Deputy President Bloomfield |
ORDERS: | That a new Determination known as the "Queensland Ambulance Service - Determination 2013" be made, operative from |
| CATCHWORDS: | INDUSTRIAL LAW - ARBITRATION IF CONCILIATION UNSUCCESSFUL - matters at issue - requirements to revoke a Determination - arbitration of relationship between determination and certified agreement - changes of entitlements during life of determination - complaints management procedure - determination of wage rates - fiscal strategy relevant to public sector arbitration proceedings - consideration of CPI in determining wage rates - whether commission constrained by legislation in awarding wage increases - objects of Act relevant to wage Determination - public interest considerations - meal breaks - meal overtime - meal windows - crib breaks - whether compensation should be paid to deter employer from avoiding fair and reasonable access by employees to meal breaks - travel and relieving expenses - classification structure - industry allowance - locality allowance - occupational superannuation - salary sacrifice - overtime for public holidays - monitoring of ordinary hours - fatigue management - casual employment and leave - indemnity - uniforms - good faith considerations - equity, good faith and substantial merits of the case considered - new determination approved - striking a balance between interests of employees and employer |
| CASES: | Industrial Relations Act1999, s 3, s 146, s148, Industrial Relations (Fair Work Act Harmonisation) and Other Legislation Amendment Act 2012, s 4 and s 8 Public Service Act 2008 Ambulance Service Act 1999, s 39 Fair Work Act 2009, s 228(1) Acts Interpretation Act 1954, s 14D Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Department of Community Safety (formerly the Department of Emergency Services) and Another (CA/2008/317) - Decision < Voice, Industrial Union of Employees, Queensland AND State of Queensland (Department of Community Safety - Queensland Ambulance Service) (CA/2012/544) < Australia Pty Ltd AND United Voice - Victoria Branch [2012] FWAFB 8599 |
| APPEARANCES: | Mr A. Herbert, Counsel instructed by McCullough Robertson Lawyers, for the Applicant. |
Decision
Introduction
The Queensland Ambulance Service (QAS), certain employees of the QAS and United Voice, Industrial Union of Employees, Queensland (UV) are parties to a Determination made by a Full Bench of the Queensland Industrial Relations Commission (the Commission) on 23 November 2010 (the 2010 Determination). The reasons for the making of that Determination are set out in the decision of the Full Bench.[1]
[1] Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Department of Community Safety (formerly the Department of Emergency Services) and Another (CA/2008/317) - Decision < type="1">
The 2010 Determination commenced on 1 July 2010 and its nominal expiry date was
30 September 2012. The 2010 Determination included a provision requiring the parties to commence negotiations no later than 31 March 2012. After a few preliminary attempts by UV, the parties commenced negotiations in July 2012 for an agreement to replace the 2010 Determination. Several meetings occurred, however, the parties were unsuccessful in reaching agreement and sought the assistance of the Commission under s 148 of the Industrial Relations Act 1999 (the IR Act).On 14 November 2012, the Commission determined, pursuant to s 149(1)(b) of the IR Act, that it was not likely that further conciliation would result in the matter being settled within a reasonable time. As a result the matter was referred to arbitration for a Full Bench to make a new Determination.
The Full Bench as constituted released a decision dated 15 November 2013 granting the first wage increase of 2.2% for all classifications covered by the 2010 Determination operative from 2 December 2013.[2] This decision deals with the matters at issue as set out in the document marked as ID 7 in the hearing.
[2] United Voice, Industrial Union of Employees, Queensland AND State of Queensland (Department of Community Safety - Queensland Ambulance Service) (CA/2012/544) < of s 149
In arbitrating the matter the Commission has the arbitration powers it would have under s 230 if that section applied to certified agreement negotiations instead of industrial disputes: s 149(2)(a). Further, in exercising its arbitration powers the Commission is required to limit its consideration to matters at issue during negotiations for the proposed agreement: s 149(4).
Section 149(5) provides the following directions to the Commission in considering the matters at issue:
"(5) In considering the matters at issue, the commission must consider at least the following -
(a)the merits of the case;
(b)the likely effects of the commission's proposed determination, and any matters agreed before arbitration, on employees and employers who will be bound by the proposed determination;
(c)the public interest, and to that end the commission must consider -
(i)the objects of this Act; and
(ii)either -
(A)for a matter involving a public sector entity - the State's financial position and fiscal strategy, and the financial position of the public sector entity; or
(B)for any other matter - the employer's financial position;
and the likely effects of the commission's determination on those things; and
(iii)the likely effects of the commission's determination on the economy and the community;
(d)the extent to which the negotiating parties have negotiated in good faith."
The above provisions differ from those which governed the making of the
2010 Determination. Although the Commission has always been required under s 149 of the IR Act to consider the cost impact of a decision on the economy and the particular enterprise concerned, the present provisions require more sharply focussed consideration of the financial effect of the Determination on the State and the public sector entity concerned as well as consideration of the State's fiscal strategy.Item 1- Date of Operation
For reasons set out herein, we have decided to make a new Determination to apply to the QAS, UV and employees employed by the QAS for whom rates of pay, conditions and entitlements are provided therein.
The date of operation for the new Determination made from these proceedings is
2 December 2013. This is the date from which the first wage increase was granted. A different operative date will apply to other matters dealt with in this decision.
The Determination to be made as a result of this decision will be known as "The Queensland Ambulance Service - Determination 2013" (the 2013 Determination).
Item 2 - Revocation of 2010 Determination
The QAS seeks the revocation of the 2010 Determination and to this end proposes a clause be inserted into the new Determination stating that, "The Queensland Ambulance Service - Determination 2010 is hereby revoked." UV does not consent to the proposed clause and contends that the 2010 Determination must be revoked in accordance with
s 150 of the IR Act. Further, this cannot occur until a new Determination is made and a proper application is filed.The 2010 Determination expired on 30 September 2012, however, pursuant to s 150(3)(b) of the IR Act, it continues to operate after its expiry date until it is replaced by a certified agreement or the Commission, acting on an application made under s 150(4), revokes it under s 150(6). Section 150(4) sets out who may make an application and this includes an employer.
Section 150(6) provides that after the determination's nominal expiry date has passed, and in circumstances where it does not provide for the way it may be revoked, the Commission must revoke the determination if, and only if, it is satisfied that it is in the public interest to do so. UV is concerned that such a decision can only be made by the Commission after the arbitration has concluded and a new Determination is issued. This would allow the parties to undertake an analysis of the entitlements provided in the 2010 Determination and the new Determination to ensure that no entitlements are inadvertently lost.
Although the QAS has not made any formal application, the proposed inclusion of a clause revoking the 2010 Determination in the new Determination is a matter in issue. In the circumstances we consider this is sufficient to constitute an application. We believe that the concerns of UV can be addressed in the following way. This decision sets out the determinations made about the matters in issue. The parties will be required to prepare a draft Determination reflecting this decision and incorporating the agreed matters. The Full Bench will schedule a report back hearing and allow the parties an opportunity to speak to the draft Determination if required and to make any further submissions about revoking the 2010 Determination. Until that is done and approved by the Full Bench, the 2010 Determination will remain in force. We would indicate however, that we are of the preliminary view that the public interest would seem to require the revocation of the 2010 Determination on the formal approval of the new Determination because, as the QAS submits, the IR Act does not make express provision as to which instrument prevails in the event of an inconsistency: s 150(6)(b) of the IR Act.
Item 3 - Relationship with Certified Agreements
The QAS seeks the inclusion of a clause which terminates certified agreements which were made between 1995 and 2005. UV seeks a clause that provides that the Determination operates to the exclusion of those certified agreements.
In the decision relating to the 2010 Determination, the Full Bench stated that it "decided that the Determination should replace all previous Certified Agreements and operate to the exclusion of those documents."[3]
[3] Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Department of Community Safety (formerly the Department of Emergency Services) and Another (CA/2008/317) - Decision < [11].
At the time of the hearing of the present matter, s 164(2) of the IR Act provided that a certified agreement continues to operate after its nominal expiry date until it is replaced by another certified agreement or it is terminated under ss 158, 171,172 or 173. Since then s 164 of the IR Act has been amended to include the following provisions:
"(2) The agreement continues to operate until -
…
(c) it expires under subsection (3).
(3) A certified agreement expires at the end of the day that is three years after the nominal expiry date for the agreement unless it is sooner replaced by another certified agreement or terminated."
The requirements of s 164 were not raised in the hearing by the QAS, the party that seeks to terminate the certified agreements. Whether the issue remains live in light of the amendments to the IR Act is yet to be considered. Should the issue continue to be pressed by the QAS, then consistent with our decision in respect of the revocation of the
2010 Determination, we would be prepared to treat the inclusion of a provision seeking the termination of the agreements as an application under s 173, which appears to be the only relevant section.We will hear further from the parties at the report back hearing as to the status of this matter, however, we do not intend for any argument that might ensue to unnecessarily delay the issuing of the 2013 Determination.
Item 4 - Changes to Entitlements during the life of the Determination
UV seeks to include a clause that allows for changes to be made to employees' rights and entitlements during the life of the Determination where those changes are made by a General Ruling or Statement of Policy by the Commission or on a whole of government basis.
The clause is opposed by the QAS on the basis that it is inappropriate and likely to lead to anomalous outcomes because it has the capacity to lead to unintended consequences for the operation of provisions expressly provided by the Determination.
In our view, because s 150(8) of the IR Act provides that a Determination cannot be amended during its life, we are prepared to incorporate the clause proposed by UV. However, the provision would need to refer to "conditions of employment", rather than "conditions", and clearly exclude wage increases arising from State Wage Case decisions.
Item 5 - Definitions & Consultation
UV seeks to retain in the new Determination provisions committing the parties to consult (proposed clause 2.2.11) and setting out various structures for this purpose (proposed clauses 1.8.2, 1.8.9 and 1.8.10). The QAS opposes the retention of these provisions.
Despite the opposition by the QAS, we note that during the hearing of this matter a number of managers called by the QAS to give evidence said it was still their intention to consult with employees about various matters. In addition, we consider the history of industrial relations in the QAS shows the success of consultation that has occurred between the QAS and UV. Those consultative measures have allowed the parties to deal with complex issues such as fatigue management as well as the day to day industrial relations issues that inevitably arise with minimal disputation. For these reasons we consider that a consultation provision should be inserted into the Determination.
We accept, however, that a Determination issued by the Commission cannot commit the parties to consult. Further, the consultative structures provided by the
2010 Determination are not supported by the QAS. In the circumstances the Commission determines that the following consultation clause shall be inserted into the Determination:"The parties to this Determination shall develop appropriate processes to allow them to properly consult with each other on matters affecting the implementation and operation of this Determination and other matters affecting their relationship."
The definitions and consultative structures proposed by UV are not approved for inclusion in the 2013 Determination.
Item 6 - Complaints Management/ Grievance Procedure
The QAS seeks to not have a grievance and dispute resolution procedure in the Determination, rather that a complaints management procedure in the following terms be inserted:
"2.1.1 Subject to any Departmental policy or Public Service Directive in force, all employee and/or union complaints arising from the operation of this Determination are to be managed in accordance with the relevant Departmental employee complaints management procedure.
2.1.2 Nothing in clause 2.1.1 or the relevant Departmental employee complaints management procedure will limit the ability of any party to notify the Commission of the existence of an industrial dispute following the observance of the relevant complaints management procedure."
A copy of the Employee Complaints Management Policy (the ECM Policy) that was in place at the time of the hearing, (Department of Community Safety Human Resources Procedure No. B9), was tendered as exhibit 54 and "A guide for managing workplace issues and employee complaints", the companion to the policy, was tendered as exhibit 57.
The arguments submitted in support of the above provision are that the complaints management procedure is "all-encompassing and entirely appropriate for the ongoing management of complaints." Further, it is flexible in that it does not form part of the Determination and is thus able to be altered to suit changing circumstances such as the transfer of the QAS to Queensland Health. This contrasts with the "rigid and inflexible" provision pressed by UV which is unable to be altered during the life of the Determination.
The proposal by UV is to retain the existing grievance and dispute resolution procedure on the basis that it is "fair, workable and consistent with what the parties have previously agreed." UV notes that the QAS claim does not identify the particular procedure to be accessed and as such does not provide for any certainty as it is subject to change. Further, it is inconsistent with s 691C of the Act.
The QAS contends that the purpose of s 691C is to prevent the freezing in point of time of a policy so that it cannot be amended. The QAS proposed provision does not do this as it does not specify a particular policy and it allows for flexibility both of any policy and its capacity to be amended.
Section 691C defines a "policy incorporation provision" to include a provision that "applies to, or adopts for or incorporates into the relevant industrial instrument another document that is a policy." A "determination" is not included in the definition of "industrial instrument" found in Schedule 5 of the Act and we are unaware of the reason that it is not included. Accordingly, we do not accept the submission of UV that to incorporate the proposed provision would be inconsistent with s 619C of the Act.
We note that the ECM Policy "does not preclude an employee from raising a grievance in accordance with an industrial instrument (e.g. award or certified agreement)." Where that is done the grievance is managed in accordance with the provision of the industrial instrument, otherwise the procedure set out in the ECM Policy will apply. Despite a Determination not being an industrial instrument we do not understand that the ECM Policy as it presently exists to attempt to, nor could it, preclude employees from using the provision set out therein. We also note that the evidence from the UV witnesses on the point showed that they were unfamiliar with the ECM Policy.
We are not inclined to insert the provision sought by the QAS. The particular policy is not specified and allows for amendment during the life of the 2013 Determination. Accordingly, and as UV submits, the Commission cannot be certain about what we are bestowing on the parties for the duration of the 2010 Determination. We consider that employees are entitled to some certainty about the provision, which is a critical element of any document prescribing terms and conditions of employment, especially in circumstances where it is imposed by a third party. Moreover, and despite the criticism levelled by the QAS in its submissions about the existing grievance and dispute resolution procedure, we are prepared to take judicial notice of the fact that very few disputes between employees, UV and the QAS result in proceedings before this Commission. In our view the inclusion of a grievance and dispute settling clause has served both parties well. We are loathe to interfere with the present arrangements, except to note that it requires updating to reflect our decision regarding the area, regional and state consultative structures.
For reasons given later in this decision the references to Directives and the Public Service Commission in the clause are to be omitted. We require the parties to further streamline the process.
The QAS claim is refused.
Item 9 - Wage Rates
The parties agree that the Determination should provide for wage increases, however, they differ as to quantum and back pay. This decision sets out our reasons for making the decision to grant the first wage increase of 2.2% as well as our reasons for the wage increases provided in years two and three of the 2013 Determination.
The QAS seeks three annual wage increases of 2.2% (rounded to the nearest $10). The first increase of 2.2% would apply to the rates provided by the 2010 Determination and would be payable from the commencement date of the new Determination. The second wage increase would apply 12 months from the date of the first increase and the third increase would be payable 12 months from the date of the second increase.
UV seeks three annual wage increases of 3.75% commencing 1 October 2012 for the classifications of:
· Ambulance Attendant/Certificate IV training; Patient Transport Officer; Paramedic; Paramedic Advanced Skills; Communication Officers; Communications Centre Supervisor; Baby Capsule Fitter and
Non-Managerial Scale.UV seeks increases of 7.25% operative from 1 October 2012, and 3.75% from each of
1 October 2013 and 1 October 2014 for the following classifications.· Paramedic Student; Advanced Care Paramedic; Intensive Care Paramedic, Senior Ambulance Officer; Station Officer and Managerial Scale.
The higher wage increases sought for the second group of classifications reflect changes to the Clinical Practice Manual (CPM). This is the principal policy document used by paramedics at all levels to guide and support their clinical practice. UV submits that changes to the CPM have increased the duties and responsibilities for the employees concerned and are relevant considerations to determining the quantum of the overall wage increases to be awarded by the Commission. UV acknowledges that despite leading evidence about the changes to the CPM, which have impacted on the work of Advanced Care Paramedics (ACPs), it was not conducting a work value case.
Evidence about the changes to the CPM was given by Mr Noel Mutchmor, Executive Manager, Clinical Standards and Quality, QAS. Mr Mutchmor was responsible for the development of changes to the CPM. The 2011 CPM superseded the 1998 CPM and was reprinted in 2011. The 2011 CPM incorporated and revised clinical practice to ensure it was current and accessible to all levels of paramedic. In addition, a Field Reference Guide (FRG) was developed to replace the QAS Pocket Guide. It contains every clinical practice guideline, drug therapy protocol and a number of additional reference charts. It is also available as an app. Mr Mutchmor believes that the FRG makes the job of a paramedic easier and greatly improves patient safety as it allows paramedics to quickly check a particular protocol or guideline and to calculate or confirm dosages.
Mr Mutchmor said that the CPM was not a significant change to the scope of practice for paramedics. In essence, his evidence is that the changes were the result of a collation, in a new format, of clinical practice standards. Further, although some new drugs were added, these were more an evolution than completely new types of drugs.
However, under cross-examination, Mr Mutchmor conceded that over the last decade the scope of practice and the knowledge base has increased and certain newly acquired skills of ACPs were previously under the scope of practice of Intensive Care Paramedics (ICPs). In addition, further changes are planned for the CPM.
Mr Mutchmor said paramedics were required to undertake two days training followed by three months training in which to familiarise themselves with the new drugs and skills. This was followed by an open book, online examination and a guided competency validation. Mr Mutchmor accepted that this learning process reflected the importance of the 2011 CPM.
Evidence about the impact of the CPM was given by a number of witnesses called by UV, including Mr Michael Muhlenberg, Intensive Care Paramedic and acting Clinical Support Officer, QAS. It was his evidence that the CPM was not only an update, but it increased the scope of practice for both ACPs and ICPs. It included not only new drugs but new procedures to be learnt.
Another witness called by UV, Mr Michael Freeman, an ACP, also took issue with much of Mr Mutchmor's evidence, particularly in respect of the impact of the introduction of new drugs on the skills and knowledge of ACPs.
We note that although UV has not conducted a work value case under the Declaration of Policy (Wage Principles) it still wishes to argue that the 2011 CPM has increased the duties and responsibilities of ACPs and ICPs. In effect UV's argument is one of work value and it seeks that the changes in work value be considered in determining the appropriate wage increases to be awarded in the Determination. We accept that a work value argument is capable of being addressed in a s 149 arbitration, but for this to be properly considered, the work value principle must apply. Although we acknowledge that the 2011 CPM has had some impact on work value, having regard to the devolution of responsibility from ICPs to ACPs for some procedures, we are not prepared to accept a "Clayton's" approach to work value. Given our view about the application of the work value principle, we do not consider it is appropriate for this Determination to include a component in the wage increase to reflect the impact of the CPM.
Evidence about the State's financial position and fiscal strategy was given by Mr Alex Beavers, Deputy Under Treasurer - Fiscal, Queensland Treasury and Trade. Mr Beavers referred to the Queensland Commission of Audit Interim Report. As this has been a well-publicised document, we do not intend to repeat its main findings in this decision. It is sufficient to state that its principal conclusion was that by 2011-12 the State's financial position was unsustainable and "locked into a debilitating cycle of over-expenditure, ever-increasing levels of debt and crippling increases in debt servicing costs." As a result, fiscal repair was required and, to this end, the Queensland Commission of Audit recommended a two stage approach, viz.
· Stabilise the growth in debt and return the budget to General Government fiscal surplus by 2014-15; and
· Reduce the accumulated Total Government debt to restore a AAA rating and provide a buffer to keep that credit rating by reducing the ratio of debt to revenue 60% by 2017-18.
The Queensland Government tabled its Interim Response to the Queensland Commission of Audit Interim Report in Parliament on 11 July 2012. That response includes a commitment to achieving a fiscal balance by 2014-15 by committing to $4 billion or more in savings over three years and ensuring debt stabilises at around $85 billion in the same period. The Queensland Government also adopted the following new fiscal principles to assist in the achievement of these targets:
· Principle 1 - Stabilise then significantly reduce debt
· Principle 2 - Achieve and maintain a General Government sector fiscal balance by 2014-15
· Principle 3 - Maintain a competitive tax environment for business
· Principle 4 - Target full funding of long term liabilities such as superannuation in accordance with actuarial advice.
Mr Beavers said that in framing the 2012-13 budget the Government had regard to the recommendations of the Queensland Commission of Audit and "made savings by exiting activities that are not the domain of the Queensland Government, reduced waste and made efficiencies in Government activity as well as specifically targeted revenue options." Reflecting the Government's fiscal repair efforts, employee expenses were expected to grow by 2.5% per annum on average between 2011-12 and 2014-15. Further,
"With employee expenses accounting for nearly half of Queensland Government expenditure, reductions in employee expenses were necessary to reduce the fiscal deficit and stabilise debt. All Departments were requested to make employee expenditure savings, totalling $4.5 billion across 2012-13 to 2015-16, with Ministers and Directors-General to determine the specific areas of departments in which savings would be made."
One of the major reductions in expenses was the significant job losses of about 14,000 full-time equivalent positions that occurred in the public service in 2012-13.
The Queensland Government also decided, as part of its strategy, to "strengthen" the industrial relations framework to require the Commission to consider the State's financial position and fiscal strategy as well as the financial position of the (relevant) public sector entity. This, Mr Beavers said, has allowed the Government to lower estimates for future employment cost increases. He stated:
"If the State is unable to secure enterprise bargaining/determination outcomes consistent with the Government's wages policy, the reductions in the size of the public service would be greater than has occurred to date to achieve fiscal repair."
Mr Beavers said that based on the budget papers, a fiscal deficit had been recorded in 2012-13, with others forecast for 2013-14 and 2014-15 before a fiscal surplus is achieved in 2015-16.
The State Government released its 2012-13 Mid-year Fiscal and Economic Review (MYFER) on 20 December 2012, which updated the State's fiscal and economic outlook. In particular, the MYFER showed that global economic growth deteriorated since the 2012-13 budget, with growth forecasts revised downwards and unemployment expected to increase. The forecast General Government Sector fiscal balance was expected to be weaker than published in the State budget and this has been impacted by softer economic conditions rather than elements within the control of the Government. Despite this gloomier outlook, the State Government remained on track to achieve each of its fiscal principles.
The MYFER did not incorporate costs borne by the State in responding to natural disasters. These are to be included in the 2013-14 budget. Other considerations for the next budget are the reduction in royalties as a result of decline in coal prices as well as potential contributions to be made to the National Disability Insurance Scheme and changes to school funding.
Mr Beavers concluded by stating:
"[37] It is critical that the Government continues to demonstrate fiscal discipline by ensuring that expenses are tightly controlled across all public sector functions. Wages outcomes that exceed budgeted levels in any part of the public sector may cause ratings agencies and financial markets to question the capacity of the Government to apply the level of expenditure control required to fully implement the State's fiscal strategy.
[38] Any increases in excess of the wages policy will place pressure on the general applicability of the wages policy itself. Through undermining the credibility of wages policy this would similarly undermine the Government's fiscal strategy and ability to stabilise Queensland's financial position unless consequential reductions in employee numbers can offset the increase in remuneration."
Evidence in relation to the financial position of the QAS was given by Ms Fiona Burbidge, Acting Chief Finance Officer, Department of Community Safety. Funding for the QAS comes from three main sources with about 78% being Service Revenue from the State's Consolidated Fund. User charges and grants comprise approximately 19%, with contributions and other revenue comprising the balance of the funding. The average annual growth in the operating revenues of the QAS overall are expected to be 3.6% p.a. over the 2012-13 budget to 2014-15. However, it must be noted that the 2014-15 annual growth projection is subject to the 2014-15 Budget process.
The Commission was advised in correspondence from the Solicitors acting for the QAS that a recommendation had been made to the State Government by the Keelty Report, "Sustaining the unsustainable – Police and Community Safety Review", that the QAS be transferred to the Department of Health but retain its identity. Further, "for the foreseeable future" the QAS will retain its current level of funding from the State Government and the only relevant change is that this funding will be directed to the QAS through the Department of Health rather than the DCS. We understand the QAS has since been transferred to the Department of Health.
UV submits that the wage increases it seeks are supported by the following factors:
· The rate of inflation is relevant to determining the wage increases;
· Employees covered by the Determination have not had a pay rise since
1 October 2011; and· The fiscal position of the State of Queensland does not justify limiting the wage increase to the amounts proposed by the QAS.
To counter the arguments of Mr Beavers, UV called as a witness Professor John Quiggin, Economics Research Fellow, University of Queensland. Part of the Brief of Evidence given to Professor Quiggin was a request for him to analyse the State's financial position and policies taking into account the Queensland Commission of Audit Report. In response Professor Quiggin prepared a report, "Wages issues in relation to the Queensland Public Service". He also provided a self-authored article, "The Queensland Commission of Audit Interim Report - June 2012: A Critical Review".
These reports, together with the oral evidence of Professor Quiggin, provide a detailed critique of the Interim Report of the Queensland Commission of Audit and the consequential fiscal strategy adopted by the Queensland Government. In particular, Professor Quiggin makes the following points:
· The "fiscal balance" measure proposed by the Queensland Commission of Audit is not a standard measure of budget balance. It mixes current and capital expenditure but takes no account of the value of capital assets. The standard measure of current budget balance is operating surplus or deficit.
· The level of public debt, upon which there has been significant focus, does not arise from previously unsuspected problems in the public accounts. Rather, it arises because of the focus on gross debt for the entire public sector rather than measures of net debt or net worth. Gross debt does not take account of the value of financial and physical assets held by the public sector.
· The 2011-12 Budget, prepared by Queensland Treasury and Trade for the previous Labor Government, noted the significant structural budgetary reform undertaken "to strengthen the long term sustainability of the State's finances and ensure the Budget is on track to return to surplus by no later than 2015-16."
· The deterioration in the State's financial position over the period since
2007-08 was primarily due to the global financial crisis and the severe natural disasters of 2011.· The claims that "the state is living beyond its means" and "ever-increasing cycle of debt" imply breaches of the Charter of Fiscal Responsibility and are inconsistent with statements made by Queensland Treasury and Trade under the previous Government that fiscal policy was being managed in line with that Charter.
· The State Government has reduced payroll tax paid by private companies. The resulting reduction has been financed by reducing the number of public servants and the real wages of employees.
· Although the absence of a AAA rating increases borrowing costs, and lower borrowing costs are desirable, the pursuit of a AAA rating results in foregoing beneficial investments, the costs of which may exceed savings in debt servicing costs.
In relation to employee expenses, Professor Quiggin states that the QAS accounts for 1.3% of total Queensland Government expenditure. Employee expenses account for approximately 0.8% of that expenditure. A 3.5% increase in wages would increase total annual Government expenditure by approximately 0.03%. The cumulative impact on the budget by 2015 of a 3.5% skills recognition increase with annual increase of 3.75% will be approximately 0.1%. However, since revenue growth is likely to exceed 4% over the same period, the ratio of QAS employee expenses to total revenue should remain roughly consistent.
Professor Quiggin also considers that for the purposes of wage determination a projected rate of inflation of 2.8% should be assumed.
In summary, the evidence of Professor Quiggin is that the Queensland Commission of Audit and the State Government have misdiagnosed the problem with the State's fiscal position. As a result the measures that the State Government has adopted are unlikely to work in the long term. In his opinion, "the state's overall balance sheet summed up by public sector net worth remains strong and has improved over the last decade."
Professor John Buchanan, Director, Workplace Research Centre, University of Sydney was commissioned by various public sector unions to prepare a report, "Wage Movements relevant to the Queensland Public Sector". Two of the key conclusions reached by Professor Buchanan were that public sector workers, especially those in Queensland, have experienced adverse wage movements relative to their national public sector and private sector peers since late 2008. Further, and based on an analysis of certified agreements, lower wage outcomes will persist for three to four years.
In arriving at our decision on the competing wages claims, we firstly need to make clear that s 149(5) applies to the decision-making process for the entire determination to result from the arbitration. Amongst other things, not only must the Commission consider the merits of competing claims but must also take into account the public interest.
In considering the public interest, the Commission must consider the objects of the IR Act; the State's financial position and fiscal strategy; the public sector entity's financial position and the likely effects of the determination on the economy and the community. The objects of the IR Act are found in s 3 - Principal object of this Act. This section sets out 17 objects of which the following are most relevant to the wages issue:
"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 standards, low inflation and national and international competitiveness; and
…
(d)ensuring equal remuneration for men and women employees for work of equal or comparable value; and
…
(g)ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and
…
(p)ensuring that, when wages and employment conditions are determined by arbitration, the following are taken into account -
(i)for a matter involving the public sector - the financial position of the State and the relevant public sector entity, and the State's fiscal strategy;
(ii)for another matter - the employer's financial position."
In our view, the objects of the Act have a tension between economic considerations and fair standards of wages and conditions for employees. No one object has a primacy over the others.
The amendment to s 3 to include paragraph (p) in 2012 reflects the amendment to
s 149(5)(C) of the IR Act.[4] While the setting of fair wages is an important consideration, the combination of object (p) and s 149(5)(c)(ii) may be considered to give greater weight to economic considerations when determining the wages component of a s 149 arbitration.[4] Industrial Relations Act 1999 s 3 and s 149(5), as amended by the Industrial Relations (Fair Work Act Harmonisation) and Other Legislation Amendment Act 2012, s 4 and s 8.
We consider that s 149(5)(c)(ii) introduces a "capacity to pay" factor, such that in considering appropriate wage increases to be awarded, the Commission must consider how its decision can be accommodated within the State's financial position as well as its impact on the State's fiscal strategy, the public sector entity concerned and the economy and community generally.
We fully accept that s 149(5)(c)(ii) does not compel the Commission to apply the Government's position on wages and is not a legislatively imposed salary increase cap such as that found in New South Wales. In our view s 149(5)(c)(ii) allows the Commission to consider alternative views to that of the State Government. This view is confirmed by the statements made by Minister Elmes in Parliament in the debate on the introduction of the Industrial Relations (Fair Work Act Harmonisation) & Other Legislation Bill.[5] The evidence of Professor Quiggin shows that an alternative approach to an assessment of the State's finances is open.
[5] Queensland, Parliamentary Debates, Legislative Assembly, 6 June 2012, 576.
Although s 149(5)(c)(ii) is not of itself a constraint on the Commission's powers, the position alters when considered in combination with the Cabinet Budget Review Committee (CBRC) Minute, "Fiscal Strategy Relevant to Public Sector Arbitration Proceedings", which Mr Beavers said was made known to Queensland Treasury and Trade on 3 May 2013. To understand the position in which the Commission is required to make a decision, it is useful to set out the CBRC Minute in full:
"Fiscal Strategy Relevant to Public Sector Arbitration Proceedings
1 This Minute has been prepared at the direction of the Cabinet Budget Review Committee (CBRC) for the purposes of arbitration proceedings being conducted (and to be conducted) in 2013 and 2014 in accordance with the Industrial Relations Act 1999 (the Act).
2 Section 149(5)(c)(ii) of the Act relevantly provides that for the purposes of arbitrations under section 149 the Queensland Industrial Relations Commission (QIRC) must consider inter alia the following:
"… for a matter involving a public sector entity - the State's financial position and fiscal strategy and the financial position of the public sector entity; … and the likely effects of the Commission's determination on those things; …"
3 This Minute describes those elements of the fiscal strategy of the State which are considered by CBRC to be relevant to the QIRC arbitrations scheduled for hearing in 2013 and potentially 2014, and which therefore must be considered by the QIRC under section 149(5)(c)(ii)(A) of the Act.
4 This Minute is intended to inform the QIRC, and each of the parties to the arbitration proceedings, of the content of the State's fiscal strategy for the purpose of assisting the QIRC (and the parties) to comply with section 149(5)(c)(ii) of the Act.
5 Queensland's fiscal circumstances have required that the State formulate a fiscal strategy which includes the adoption of a new set of fiscal principles aimed at improving the sustainability of the State's finances. With employee-related expenses accounting for almost half of all General Government expenses, wages outcomes are critical in the achievement of three of the four new principles. These are:
a. stabilise, then significantly reduce, State debt;
b.achieve and maintain a General Government sector fiscal balance by 2014‑15; and
c.target full funding of long term liabilities such as superannuation in accordance with actuarial advice.
6 Accordingly, as a critical part of the fiscal strategy, the State has adopted the CBRC‑approved wages policy for the Queensland public sector, for the purpose of exercising restraint over employment expenditure. That policy provides that budget supplementation from the Consolidated Fund to agencies for the purpose of meeting the cost of increases to employment related expenses, is limited to the amount necessary to meet the cost associated with an increase of 2.2% per annum to existing employment expenditure as at the date of a determination (excluding the effect of any interim pay increase agreed to or awarded in association with the arbitration process), which increase may consist of:
a.the costs directly associated with the aggregation of existing wages and allowances, and/or the creation of an aggregated allowance, howsoever called, in the form proposed by the agency in the arbitration; and/or
b.increased wage rates to assist in offsetting cost-of-living pressures for employees; and/or
c.the costs of implementing such other changes to the employment arrangements and structures in the agency as are expressly authorised by the CBRC or the Public Service Commission ("PSC") before the commencement of the arbitration hearings.
7 Any additional employment cost which exceeds 2.2% per annum, and which is imposed upon the agency by or as a consequence of any determination by the QIRC, will be borne by individual agencies from within their budget allocation (supplemented by the amount referred to in paragraph 6), and the agency concerned will be required to otherwise reduce expenditure to meet any such additional employment cost.
8 The only exception permitted will be in a case where the authorisation by the CBRC or the PSC given under paragraph 6(c) above, exempts such expenditure from the operation of paragraph 6 and 7 of this Minute. Supplementation may be granted for any such expenditure where it causes the employment costs of the agency to exceed 2.2%.
9 As part of the fiscal strategy, an agency will not be permitted by the State to increase any charges that it may levy or collect for services it provides to the public, for the purpose of meeting or offsetting any such additional employment costs.
10 The State is resolute in strictly implementing this CBRC policy as a key part of its fiscal strategy. It should be assumed by the QIRC and any party to the arbitrations that, if employment costs are increased by more than the amounts described in this Minute, no further supplementation to affected agencies will be provided by the State to offset that cost. This action is in accordance with the overall State fiscal strategy which requires the imposition of strict fiscal discipline upon all public sector entities.
11 It is also an element of the State's fiscal strategy that savings in employment or operating costs which are generated by efficiency initiatives, whether through enterprise bargaining processes, determinations of the QIRC or general budgetary considerations, are to be directed to reducing overall State debt, and will not be available as additional supplementation of the budget allocation to the agency concerned, so as to permit the agency to exceed the fixed supplementation amounts referred to herein. All such potential savings have been taken into account by CBRC in formulating its wages policy and determining the permitted level of supplementation. The only exception to this position is if, in the context of enterprise bargaining, approval is given to an entity to offer up to an additional 0.3% wage increase, which amount is offset by real cashable savings. That circumstance does not apply to QIRC determinations.
12 CBRC authorises Queensland Treasury and Trade and the Public Service Commission to convey to the QIRC and other relevant parties, the information contained within this Minute."
The CBRC Minute makes clear that were the Commission to award increases in excess of 2.2% per annum, then the QAS would be required to fund the additional costs from within its existing budget or otherwise reduce expenditure. Although the growth in operating revenues is expected to be higher than the wage increases sought by the QAS, we accept that other costs accompany wage increases and have to be accommodated in the QAS budget. It is also evident from the fiscal strategy established by the State Government that job losses in the QAS could result were the increases to be greater than those provided in its budget. In addition, the evidence of Mr Beavers and Mr Shane Donovan, the Director of Employee Relations, Department of Community Safety (DCS), confirms that any savings generated by any decision made by the Commission in s 149 proceedings is not returned to the QAS. Further, the additional 0.3% "cashable savings" that was available in negotiations does not apply to s 149 proceedings.
In these circumstances the Commission considers that it is unable to award any increase beyond the 2.2% per annum figure proposed by the QAS although, as recorded below, we have slightly brought forward the final 2.2% increase. In addition, we are not satisfied that UV has sufficiently demonstrated how its claim, if accepted, could be accommodated within the financial constraints that the State Government has presently imposed on itself and the QAS and within the fiscal strategy that has been adopted.
UV submits that the Commission can have regard to the date of the last pay increase in determining the operative date of the first increase, i.e., whether to back date or front load.[6] However, the Commission has already decided that the first increase of 2.2% applies from 2 December 2013.
[6] Schweppes Australia Pty Ltd v United Voice - Victoria Branch [2012] FWAFB 8599 at [137] and [141].
In all of the circumstances, the Full Bench determines that the increases that will apply during the Determination will be:
· 2.2% from Monday 2 December 2013 (the commencement date of the
2013 Determination);· 2.2% from Monday 1 December 2014; and
· 2.2% from Monday 2 November 2015, which means that the second "year" of the 2013 Determination will run for 11 months.
We have also decided that the 2013 Determination will nominally expire on Sunday
2 October 2016. This means that the final "year" of the Determination will also be
11 months.We have made these decisions as to operative dates and duration of the Determination (viz two years and ten months) for several reasons:
· The employees subject to this Determination did not receive a pay increase between 1 October 2011 and 2 December 2013. In this respect, while UV states it attempted to commence negotiations for a new agreement at an early date, its attempts were frustrated by the fact that the State Government had not finalised its bargaining position. It was not until 2 August 2012 that negotiations commenced in earnest. This was less than two months before the 2010 Determination was due to expire and some four months after the 2010 Determination specified that negotiations were to commence. (We note that the QAS rejects any criticism of being responsible for any delays);
· The current and projected inflation rate, which is presently in excess of the increases in remuneration determined by this Decision;
· The evidence of Mr Beavers, which is to the effect that the State is projected to return to fiscal surplus by 2015-16;
· The fact that the QAS will have ample opportunity to plan for how it might meet the additional wages impost of 2.2% for one month during November 2015 which, across a full twelve month period, will add 0.18333% to QAS's total wages bill; and
· The 2010 Determination nominally expired on 30 September 2012. The expiry date of 2 October 2016 decided by this Full Bench will bring this Determination into line with the expiry date of the 2010 Determination, offering better opportunities to the parties to negotiate and conclude their negotiations for a Certified Agreement as close as possible to the expiry date of this Determination and prior to Christmas.
Item 10 - Classification Structure for Communications Supervisor
At present the award classification structure for the position of Communications Supervisor/Team Leader has barriers to pay point progression from paypoint 2 to paypoint 3 and from paypoint 3 to paypoint 4, respectively. The barriers are geographic.
Evidence in support of UV's claim was given by Ms Angela Timmins and Ms Brina Keating, both of whom are Operations Centre Supervisors/Team Leaders based in the Cairns Operations Centre. Their evidence addressed the geographic area covered by the Cairns Operations Centre - from Cairns to Thursday Island and west to Weipa. Not all areas are covered by ambulances and, as a result, negotiations with volunteer First Response Senior First Attendants, alternative transport providers and land holders are required to ensure assistance is delivered in an appropriate and timely way. Further, ambulances in that area do not have satellite tracking or mobile data terminals. This necessitates more direct communication between the Operations Centre and paramedics.
Although both Ms Keating and Ms Timmins acknowledge that the Brisbane Operations Centre has higher volumes of work, it is their joint opinion that they perform substantially the same role and at least the same level of complexity of work.
Called in opposition to the claim was Mr Timothy Eva, Acting Director of Operations, QAS. In evidence in chief Mr Eva said that:
"Restrictions on access to paypoints 3 and 4 for Communications Supervisors/Team Leaders were originally introduced in recognition of the difference between regional and metropolitan operation centre acuity and size, the volume of staff to be supervised and the volume of work that comes into the centre."
In his view, these differences which existed at the time of the introduction of the paypoint barrier still remain. Under cross-examination Mr Eva acknowledged that the responsibilities of the role were the same, regardless of location. The differences lay in the volume and complexity of the work as well as the number of staff supervised.
UV submits that the supervisors in Regional Centres have substantially the same responsibilities as their metropolitan counterparts and this is evidenced by their Position Descriptions. Further, UV does not seek that all communications supervisors progress automatically, rather that the cap be removed to ensure that all communications supervisors have the same access to the higher paypoints if their work value at the higher levels can be established. If they are not performing work at the appropriate level for that paypoint, then they will not be able to access it. However, they should not be arbitrarily restricted.
Against that, the QAS submits the evidence from Mr Eva shows that the Cairns communications centre experiences less than 14% of the total call volume of the Brisbane communications centre. Further, the Cairns centre has fewer staff and the scope of responsibility is less because of the lesser demand. The existing geographic barrier to access the higher paypoints is "a sensible and readily understood means of recognising those differences".
An objective analysis of the evidence shows that the communications supervisors in North Queensland experience substantially lesser demand than the Brisbane communications centre. There are also fewer staff to supervise than the larger metropolitan centre. However, it is clear that the geographic area covered (in Cairns at least) means that the Communications Supervisors/Team Leaders encounter issues that are not experienced in the metropolitan area.
UV submits it is not its intention that all Communications Supervisors/Team Leaders would progress automatically were the geographic barriers to be removed. Indeed, perusal of the existing provisions shows that some additional requirements are necessary for appointment to paypoints 3 and 4. However, in our view these do not envisage a work value type assessment to occur. In other words, the removal of the geographic barriers would effectively allow (almost) automatic progression. We do not consider this to be appropriate in circumstances where there is a vast difference in the volume of calls and the numbers of staff supervised. Had an alternative means of progression been proposed, the Commission may have been open to consideration of the removal of the geographic barriers. In the circumstances, we are not minded to remove the geographic barriers to progression for Communications Supervisors/Team Leaders.
Item 11 - Occupational Superannuation
UV seeks to retain in the new Determination, provisions concerning occupational superannuation that are contained in the 2010 Determination. UV argues that were the provisions to be removed the occupational superannuation provisions would be regulated by the Ambulance Service Employees' Award - State 2012 (Award). Further, the QAS has not led any evidence to justify the removal of the clause from the new Determination.
The QAS opposes the retention of the clause on the grounds that it is unnecessary as federal legislation governs the obligations of the QAS to make contributions. Moreover, the Award also makes provision for occupational superannuation.
We do not consider the clause proposed by UV adds anything to the Award provision. In our view it is superfluous and will not be included in the new Determination.
Item 12 - Salary Sacrifice
UV seeks to also retain in the new Determination provisions concerning salary sacrifice. The QAS opposes the inclusion of this clause on the basis that such matters are ones of managerial discretion and judgment.
We note that the Full Bench in the 2010 Determination accepted the merit of the QAS proposal to rewrite the salary packaging provision "to clearly articulate the arrangements under which the Queensland Government allows employees to salary sacrifice within relevant current Federal legislation and Australian Tax Office Rulings."[7] The Full Bench noted employees' confusion about salary packaging and FBT implications and accepted it was appropriate for the clause to be re-written to make it clearer.
[7] Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Department of Community Safety (formerly the Department of Emergency Services) and Another (CA/2008/317) - Decision < at [244] – [245].
We accept that no evidence either in support of or in opposition to the claim has been brought. We also accept as a general principle the proposition that because a provision is in one Determination it does not automatically follow that it should be retained in another. However, given the particular problems identified by the 2010 Full Bench and noting that it was the QAS proposal to re-write the provision to ensure better clarity of understanding, we are content for the provision to remain in the 2013 Determination.
Item 13 - Travel and Relieving
The QAS and UV agree on many of the provisions of the proposed clause. Disagreement arises in respect of an exception to the QAS proposed application of travel and relieving arrangements for employees on a suitable duties plan or who are pregnant.
The QAS claim seeks that travel and relieving arrangements not apply to employees on a suitable duties plan or who are pregnant on the basis that it is inequitable to do so when such arrangements are made for the assistance and often the convenience of the employees concerned. Further, these suitable duties and other arrangements are often undertaken at considerable expense to QAS and it places an additional expense on the QAS to pay travel and relieving expenses as well.
The QAS relies on the evidence of Mr Donovan who explained that when operational employees have limited physical capabilities due to the requirements of a rehabilitation plan or are required to perform safe duties while pregnant they are usually unable to fully perform duties in their normal role. As there are limited numbers of roles that can be performed by operational employees with limited physical capacity, often the employee must be transferred to be placed in those positions. The view of the QAS is that travel and relieving allowances should only be payable when an employee is sent by the QAS to a different location to perform work for the benefit of QAS and not in circumstances where the QAS is assisting the employee to remain safe or return to full operational duties. To do otherwise would place an unsustainable burden on the QAS and the ability to provide alternative roles would be diminished.
[Note: "Ordinary time in addition" means payment at the rate of single time in addition to the paramedic's prescribed rate for the day in question (i.e. ordinary time plus ordinary time on Monday to Friday = double time; ordinary time plus time and a-half on
Saturday = double time and a-half; ordinary time plus double time on a Sunday = triple time)].[183]
These provisions will operate prospectively. Consequential changes will need to be made to clause 5.9 of the 2010 Determination for insertion into the 2013 Determination. The parties are required to draft the meal break provisions to be inserted into the
2013 Determination, consistent with this decision.
Item 22 - Monitoring of Ordinary Hours
[184]UV seeks to continue in the new Determination the clause 5.10 from the
2010 Determination which provides for monitoring of ordinary hours. The QAS opposes the claim on the basis that the existing provision is not adhered to and, further, is unnecessary in light of the parties' agreement to introduce an aggregated wage.[185]The Commission sees merit in the submissions of the QAS and refuses the claim by UV.
Item 23 - Fatigue Management
[186]UV seeks to retain in the new Determination, albeit in a modified form from the
2010 Determination, a fatigue management clause. Clause 5.11 of the 2010 Determination required the parties to develop a comprehensive fatigue management policy position and provided various milestones. UV submits that the fatigue management policy is yet to be fully implemented and continued discussions under the auspices of the Determination will be beneficial to both parties. In this regard reliance was placed on the evidence of Mr Day who said the "policy is not finalised and still contains numerous problems with its implementation and confusion as to how it applies."[187]In contrast, the evidence of Mr Metcalfe and Mr Donovan is that the requirements of the clause have been actioned so that there is no longer any need for the clause to be contained in the Determination. Mr Metcalfe attached to his first Affidavit the Fatigue Risk Management Policy, the Fatigue Risk Management Procedure and the prior sleep/wake model reporting flow chart.
[188]The QAS opposes the claim on the basis that the matters contained in the clause are "matters of management prerogative and policy, and are not the appropriate subject of a prescriptive instrument such as this Determination." Further, because the Determination cannot be varied during its life the prescription will be "inflexible and obstructive."
[189]There may still be some residual confusion about the policy and the need for further consultation and revision. However, that is not dependent on a specific fatigue management clause in the Determination for such actions to be taken. The consultation clause is able to be accessed if further work is required. This claim by UV is refused.
Item 24 - Casual Employment and Leave
[190]The QAS seeks to only include in the new Determination the first sentence of Clause 3.5.4 of the 2010 Determination. UV seeks the preservation of the entire existing clause which allows improvements in leave conditions to be flowed through to casual employees.
[191]Although we accept that changes to leave provisions are not on the horizon, s 150(8) of the Act provides that a Determination cannot be amended while it operates. Given this provision, we can see no difficulty in the existing clause 3.5.4 being inserted into the new Determination.
Item 26 - Professional Registration
Item 27 - Indemnity[192]These two claims are dealt with together.
[193]UV seeks the insertion of a clause providing that the parties work co-operatively to develop a policy or guideline in the event that a national registration scheme for paramedics is introduced. UV also seeks that employees who are required to hold national registration be reimbursed the cost of registration. In relation to the indemnity provision, UV seeks that indemnity be provided for a claim against an employee engaged to perform duties for the QAS.
[194]Evidence in support of the claims was provided by Ms Jeanette Temperley, the Coordinator of the Ambulance Section of UV, who said she understood that the State Government meets the costs of those employees who are required to be nationally registered. UV submits that it is reasonable and proper for the parties to develop policies and guidelines on these issues.
[195]The QAS opposes each of the claims. Reliance is placed on the evidence of Mr Donovan who deposes that, with very few exceptions, registration fees for professional employees are not paid by the State of Queensland as a matter of policy. In relation to the claim for indemnity, the QAS submits that the evidence of Mr Donovan also shows that s 39 of the Ambulance Service Act 1999 creates an indemnity for ambulance officers, medical officers and other staff employed by the QAS. In addition, Mr Donovan attached as an exhibit to his affidavit, the "Queensland Government Guideline for the Grant of Indemnity and Legal Assistance to State Employees". The QAS submits that the Act and the Guideline sufficiently protect the interests of employees and it is a matter of State Government policy, and not a Determination, to decide the extent of protection and risk assumption.
[196]The Commission accepts the evidence of Mr Donovan and the submissions of the QAS on these two claims.
[197]Since the hearing concluded, new provisions providing legislative immunity for civil liability for a range of employees employed by the State, including ambulance officers, from being sued for their actions when they act on behalf of the State has been enacted. In our view, these provisions make clear that ambulance officers have the same protection as other employees of the State.
[198]For these reasons, we decline the claim made by UV with respect to these two items.
Duplication of award clauses
[199]The following Items are all ones which UV seeks to include in the Determination but which the QAS claims are unnecessary because they duplicate Award provisions:
Item 8 - Payment of wages
Item 28 - Incidental and peripheral tasks
Item 29 - Training
Item 30 - Conduct of employees
Item 31- Performance Interviewing
Item 32 - Two classes of work
Item 33 - Anti-discrimination
Item 34 - Termination of employment
Item 35 - Introduction of changes
Item 36 - Redundancy
Item 37 - Long Service Leave
Item 40 - Employee Amenities
Note: Items 35 and 36 have also been considered in respect of the s 691C issues.
[200]The above provisions appear in the 2010 Determination despite being duplicates of the Award provisions. UV seeks that such provisions also be included in the new Determination because to do otherwise would lead to a reduction in entitlements "by stealth." Further, UV contends that the maintenance of these provisions will continue to provide protections to employees in the event of award modernisation occurring. We do not consider the award modernisation process provides sufficient reason to retain award clauses in the 2013 Determination.
[201]Another argument raised by UV is that the Determination should "provide and set out the whole set of entitlements of the employees." This argument overlooks clauses 1.5.1 and 1.5.2 of the Determination which set out the relationship between the Award and the Determination. On that basis alone the Determination cannot be a stand alone
document - the Award will continue to provide certain entitlements whereas the Determination will provide others.[202]These claims are refused.
Item 38 - Payment of annual leave on termination for QAS AFCom employees
[203]UV seeks to retain clause 6.3.3 of the 2010 Determination in the new Determination to be made. The QAS opposes subclause (e) on the basis that it "appears to be an attempt to introduce for the first time the payment out (sic) on termination of employment of personal leave entitlements (and other potential accrued entitlements not legislatively required to be paid out on termination of employment)." As such, it would "immediately produce a substantial unfunded liability."
[204]However, perusal of the 2010 Determination shows that this subclause is included. It is apparent that the agreed clause (ID 9) omits certain subclauses of clause 6.3.3. Given it is not a new provision the basis of the QAS's opposition falls away. We have decided to retain it in the new Determination.
Item 39 - Uniforms
[205]The clause is largely agreed and references the provision of uniforms in accordance with QAS policy. The point of difference is UV's proposal to include after the word "policy" the words "as amended in consultation with the Union."
[206]The QAS contends that consultation will occur in accordance with Government policy and good management practice but it is inappropriate to mandate consultation in the Determination.
[207]If uniforms are provided in accordance with QAS policy, and in light of our position taken in respect of referencing QAS policies in the Determination, we do not see any need for this clause to be inserted into the Determination. In any event the Award contains detailed provisions for uniforms.
Consequential word changes
[208]Both parties have agreed that terminology "AFCom" needs to be updated. We accept this is a necessary change. The parties are required to confer and agree on appropriate terminology.
Appendix 2 to 2010 Determination
[209]Appendix 2 to the 2010 Determination deals with Pay Point Progression. The QAS proposes the classification structure and the progressional arrangements in accordance with the Award. UV seeks to retain Appendix 2 in the new Determination.
[210]It seems to us that Appendix 2 of the 2010 Determination is in the same terms of Appendix 1 of the Award. For reasons of consistency with our decision not to duplicate Award provisions in the 2013 Determination, we have decided not to insert Appendix 2 as sought by UV.
Good Faith Considerations
[211]Section 149(5)(d) requires the Commission, when considering the matters at issue, to consider the extent to which the negotiating parties have negotiated in good faith. Relying on the evidence given by Ms Temperley, UV contends that the QAS demonstrated a lack of good faith in the negotiations by failing to consider, and not being willing to consider, the claims made by UV.
[212]Section 146 of the Act requires that when negotiating the terms of a proposed agreement, the proposed parties to the agreement must negotiate in good faith. Examples of good faith negotiations are given in the section. Section 14D of the Acts Interpretation Act 1954 provides that an example is not meant to be exhaustive. It does not limit but may extend the meaning of the provision.
[213]Section 146 is in different terms to s 228(1) of the Fair Work Act 2009 (Cth) (FW Act) which sets out the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet. Those requirements include responding in good time to proposals from other bargaining representatives and genuinely considering these proposals and giving reasons for the responses.
[214]In our view, the omission of these provisions from the IR Act are instructive in light of the various amendments made to that Act to "harmonise" with the FW Act. We are thus unable to draw the conclusion that the (alleged) omissions of the QAS representatives, or representatives from the Public Service Commission, to properly consider and respond to the UV claims showed a lack of good faith bargaining. We consider, however, that the principles contained in s 228(1) of the FW Act are a useful guide to good faith bargaining.
Conclusion
[215]As noted earlier, the Commission is required to take a range of matters into account when considering the matters at issue to arrive at a decision that is made having regard to equity, good conscience and the substantial merits of the case. The factors listed at
s 149(5) have guided our consideration of the matters at issue.[216]Our decision has considered the competing merits of the various claims. In addition, when considered overall, we are of the view that our decision appropriately takes account of the State's financial position and fiscal strategy as well as the financial position of the QAS while delivering on the objectives of the Act including:
· employment security;
· an effective economy;
· promoting the effective and efficient operation of the QAS;
· ensuring fair wages and employment standards;
· helping balancing work and family life; and
· promoting participation in industrial relations.
[217]We are not satisfied the QAS showed an absence of good faith in negotiations.
[218]Further, we consider that the effect of the new Determination will have negligible effects on the economy and will not adversely impact on the community. We are satisfied that the new Determination strikes a balance between the interests of employees and those of the QAS, taking into account the requirements of the legislation.
Finalisation of the Determination
[219]A document, ID 9, was tendered as the product of the negotiations between the parties. It includes both agreed clauses and clauses that are not agreed. The agreed matters will be inserted into the proposed 2013 Determination, except as modified by this decision.
[220]The parties are directed to confer during the next 21 days to finalise the terms of the Determination to be issued by this Full Bench, which is to reflect the agreed items as well as the various decisions we have made about the matters in issue.
[221]The parties are to report back to the Full Bench on the outcome of their discussions to finalise the terms of the 2013 Determination. The report back is listed for Thursday 26 June 2014 at 8.00 am. A copy of the draft Determination is to be provided to the Commission 72 hours in advance of the report back hearing.
[222]At the report back hearing the parties will be required to address any matters upon which agreement cannot be reached as well as to make any further submissions about the revocation of the 2010 Determination and the relationship of the new Determination with Certified Agreements.
[223]The Full Bench reserves the right to settle any outstanding matters based on the parties' submissions at the report back proceedings. Should it be required a brief decision will be issued.
Operation and Duration of Determination
[224]As recorded in paragraphs [76] and [77] above the Determination will commence on
2 December 2013 and operate up to and including Sunday 2 October 2016.[225]Apart from the first wage increase of 2.2% from 2 December 2013, all other provisions of the Determination which arise as a result of matters contained in this Decision, or by agreement between the parties, will operate from a prospective date to be finalised after the report back hearing.
[226]We envisage that the operative date will need to be framed so as to allow a period during which paramedics affected by the changes to the meal break/meal overtime provisions we have determined can be informed of such changes, as well as any new procedural requirements to be placed on them, prior to their actual implementation. On present indications the operative date for all other elements of the Determination, apart from wage rates, is likely to be Monday 28 July 2014.
[227]We determine and Order accordingly.
0
0
0