State of Queensland (Department of Community Safety Queensland Fire and Emergency Services) v United Firefighters' Union of Australia, Union of Employees, Queensland and Queensland Fire and Rescue Senior Officers...
[2014] QIRC 224
•23 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of Community Safety - Queensland Fire and Emergency Services) v United Firefighters' Union of Australia, Union of Employees, Queensland and Queensland Fire and Rescue - Senior Officers Union of Employees (No. 2) [2014] QIRC 224 |
PARTIES: | State of Queensland (Department of Community Safety - Queensland Fire and Emergency Services) v United Firefighters' Union of Australia, Union of Employees, Queensland Queensland Fire and Rescue - Senior Officers Union of Employees |
CASE NO: | CA/2012/56 |
PROCEEDING: | s 149 Arbitration |
DELIVERED ON: | 23 December 2014 |
HEARING DATES: | 1 February 2013 (Directions Hearing) |
MEMBERS: | Deputy President O'Connor |
ORDERS: | 1. That a new Determination known as the "Queensland Fire and Emergency Services - Determination 2013" (the 2013 Determination) be made, operative from 2. That agreed provisions and matters in this Decision which are the subject of a clear decision are to operate from Sunday 15 February 2015. 3. The parties are directed to confer about finalising all provisions of the 2013 Determination and report back to the Full Bench, on a date to be advised, in mid-late February 2015. |
| CATCHWORDS: | INDUSTRIAL LAW - ARBITRATION IF CONCILIATION UNSUCCESSFUL - objects of the Act - relationship with s 149(5)(c) - relevance of State’s financial position and fiscal strategy - impact of strategy upon Commission’s decision - matters at issue - dispute resolution and consultative arrangements - wages - restrictions in present roster provisions - excessive use of sick leave - excessive overtime costs - need to reduce reliance on overtime - desire to reduce cost base and improve flexibility - part-time and casual employment options - reserve roster - aggregate wage rate - employer’s claims substantially granted - claims for new pay points and allowances - such claims should be pressed on whole-of-service basis - new Determination to be made - parties to firstly confer about agreed provisions - duration of Determination to be 2 years 10 months. |
| CASES: | Industrial Relations Act1999, s 3, s 149, s 149(2)(a), s 149(4), s 149(5), 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 < Energy Electricity Ltd & Anor v Queensland Competition Authority & Anor [2012] QSC 414 |
| APPEARANCES: | Mr A. Herbert, Counsel instructed Mr M. Moy and Ms L. Bain of McCullough Robertson Lawyers, for the Applicant. |
Decision
Background
On 28 November 2012 a Member of the Queensland Industrial Relations Commission (Commission) reached a conclusion that further conciliation between the (then) Queensland Fire and Rescue Service (later renamed to be Queensland Fire and Emergency Services) (QFES), United Firefighters' Union of Australia, Union of Employees, Queensland (UFU), Queensland Fire and Rescue - Senior Officers Union of Employees (SOU) and a number of other Unions, in connection with their enterprise bargaining negotiations, was unlikely to result in those negotiations being settled within a reasonable time. Having reached that conclusion, the Member referred the matter for Arbitration pursuant to s 149(1)(b) of the Industrial Relations Act 1999 (the IR Act).
After thirteen hearing days over the period from late June 2013 up to and including
3 December 2013 the Full Bench as constituted released a Decision on 9 December 2013 granting all classifications, other than senior officers, covered by the Queensland Fire and Rescue Service - Certified Agreement 2009 (CA/2009/129) (the 2009 Agreement) a first wage increase of 2.2% under this Determination operative from 8 December 2013.In the case of senior officers, the increase awarded was 0.5% - in recognition of the fact that the Member referring the matter for arbitration had Ordered, as an interlocutory Order pursuant to s 230 of the IR Act, that senior officers be paid an additional 1.7% from 15 November 2012. The reasons for that interlocutory Order are set out in the Member's Statement of 28 November 2012.
This Decision deals with the fifty-one "matters at issue" between the parties to the failed enterprise bargaining negotiations as recorded in the document marked ID28 in the proceedings. In accordance with the provisions of s 831 of the IR Act, which came into effect two days prior to the day on which our Decision was reserved, we are required to determine the matter by reference to the provisions of s 149 of the IR Act as they stood prior to the amendment operative from 1 December 2013.
Requirements 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."
Importantly, in terms of the Commission's consideration of the matters before it, the provisions of s 149(5)(c)(ii) were amended, to that recorded above, with effect from 12 June 2012. At the same time as those amendments were made, the Objects of the IR Act as set out in s 3 were also amended to include the following provision:
"(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."
The debate around s 149
The nature of the 2012 amendments to s 149 of the IR Act and their impact on the Commission's approach to arbitrating matters was the subject of considerable debate between QFES and UFU. In summary (the written and oral submissions record the full extent of the debate), the position adopted by each of these parties is set out below.
QFES
The gravamen of the amendments to s 149 is that the IR Act explicitly equates the "public interest" with:
· the objects of the Act; and
· the State's financial position and fiscal strategy; and
· the financial position of the public sector entity concerned.
In determining a matter under s 149 by arbitration the Commission is required to consider, or take into account, a number of matters. In so doing, it must balance the competing considerations implicit in the listed matters by reference to the evidence and submissions presented in the proceedings. Depending upon the facts and evidence, particular matters which the Commission is required to consider will inevitably be attributed a far greater practical significance in the proceedings than other matters. Whilst all relevant matters must be considered, each of those matters will not always have an equal bearing or impact on the outcome of the proceedings.
Where, as here, a particular consideration (concerning the financial position of the State and the public sector entity, and the fiscal strategy of the State) is added to the list of stated mandatory considerations in both s 149(5) and in the objects of the IR Act itself, that suite of considerations, must, by its very nature, be accorded very significant weight in the overall assessment and outcome of the arbitration proceedings. In addition, where the State has:
· developed and implemented strict wages policies as part of a package of fiscal repair measures intended to effect significant changes to the economic structure of Queensland; and
· announced those measures and included them as part of the Government's plan to restore the State's finances to the desired parameters within a stated timeframe; and
· amended the governing legislation to ensure that such matters are required to be considered by the Commission in arbitrating wages and conditions for public sector employees,
it is plain that such considerations must be placed at the forefront of the Commission's deliberations in these proceedings.
The amendment of s 149(5) of the IR Act, by consciously equating the "public interest" with the financial position of the State and its agencies and the fiscal strategy of the State, and explicitly requiring consideration of those matters, is a clear recognition by Parliament that any untoward or unbudgeted disruption to the financial position or fiscal strategy of the State would have a direct and indirect effect on the interests of the general public at large, being the whole population of Queensland.
The "direct" affect will be a reduction in the funds available to provide other services to the wider community. The "indirect" affect will be the potential undermining of the Government's wages policy, with the consequences as outlined immediately above, and also the undermining of enterprise bargaining itself, by raising the precedential expectations that arbitration (rather than agreement) is a possible means of overcoming the adherence by the State to the terms of the wages policy implemented for the benefit of the general community[1].
[1] Taken from attachment AB1 to Affidavit of Byron Beavers, Exhibit 24.
As a consequence, the Commission has a critical role to play in deciding the "big issue" as to whether or not the State may continue to implement its fiscal strategy in accordance with its declared terms or whether the UFU/SOU have established a merit case for QFES employees to be exempted from the constraints of that strategy, and for those employees to have access to a more substantial proportion of the revenues of the State than the State itself considers sound or appropriate in light of the existing financial position of the State and its financial position and fiscal strategies.
UFU
The amendments to s 149 should not take the focus of the Commission anywhere else than may have been the case under previous arbitrations. The Commission has statutory obligations to discharge and threats by the Government to terminate staff, close services and the like, fall outside the statutory parameters which guide the Commission's deliberations. The situation has not changed from previous arbitrations: the Commission makes its determination, based upon the merits of the case, after which it is up to the Government to prioritise its expenditure.
UFU disagrees with the submissions of QFES to the effect that the amendments to s 149, which explicitly require the Commission to consider the State's fiscal strategy and the State's financial position and the financial position of the public sector entity, now require the Commission to place those matters at the very forefront of its consideration. While those matters are mandatory considerations, they have no more weight than any of the other mandatory considerations and no more weight than any other consideration not explicitly set out but which the Commission finds to be relevant.
The State's financial position and fiscal strategy and the financial position of QFES have no more weight than the other matters identified, and not necessarily more weight than any other relevant matter that the Commission might consider. In this regard, the authorities clearly indicate that in the absence of a requirement that specified matters are to be accorded more weight or significance than others, the weight to be given to each specified matter is to be decided by the decision maker[2] [3].
[2] R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at [334] (ID 18 in the proceedings).
[3] Origin Energy Electricity Ltd & Anor v Queensland Competition Authority & Anor [2012] QSC 414 (ID17).
Having regard to the authorities and the terms of s 149(5) of the IR Act, UFU submits that:
· there is no requirement in s 149 that any one of the matters mentioned is to be accorded more weight or significance by the Commission than any of the other mentioned matters; and
· the weight to be given by the Commission to each of the matters mentioned is to be determined by the Commission itself in light of its consideration of the evidence and the submissions made by the parties.
Our conclusions in relation to the debate around s 149
Any consideration of the provisions of s 149 cannot be undertaken in isolation from a consideration of the relevant objects of the IR Act at s 3. This section sets out 17 objects of which the following are most relevant to our determination of the matters at 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
(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
…
(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."
(our emphasis)
After considering the above objects we agree with the observations of the Full Bench[4] in State of Queensland (Department of Community Safety - Queensland Ambulance Service v United Voice, Industrial Union of Employees, Queensland) (No. 2) [2014] QIRC 093 at [68] where the Full Bench observed "… 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 other."
[4] State of Queensland (Department of Community Safety - Queensland Ambulance Service) v United Voice, Industrial Union of Employees, Queensland (No. 2) [2014] QIRC 093.
We also agree with the observations of the Full Bench in the following paragraph where they stated "… 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", but would extend the Full Bench's reference to "fair wages" and "wages", respectively, to include "and employment conditions" in each case.
Given these observations, we have come to the conclusion that in arbitrating the matters at issue between the parties we are required to consider the particular objects of the Act mentioned in paragraph [19] but, in doing so, are required to give special attention and consideration to the issue of how our decision can be accommodated within the State's financial position and fiscal strategy, and the financial position of QFES.
The State's financial position and fiscal strategy
Extensive evidence about the State's financial position and fiscal strategy was given by Mr Alex Beavers, Deputy Under Treasurer - Fiscal, Queensland Treasury and Trade, in the course of which he highlighted a number of findings of the Queensland Commission of Audit which were contained in its interim report of June 2012. Mr Beavers said that the Commission's interim report (a copy of which was attached to his affidavit) made a number of important findings and recommendations which included the following:
· Queensland was forecast to record a fiscal deficit of $9.5 billion in 2012-13, with deficits expected to continue across the forward estimates to 2015-16;
· the State's financial position was a result of a lack of fiscal discipline. Since 2005-06 Queensland had been living beyond its means, with expenses growth significantly outstripping revenue;
· Queensland Government debt, which had grown to $64 billion in 2011-12 was projected to rise to $92 billion in 2015-16, reaching $100 billion by 2018-19, unless immediate corrective action was taken;
· Queensland's credit rating was downgraded in 2009-10, from AAA to AA, after a continued increase in borrowing. This followed Queensland's ratio of debt (net financial liabilities) to revenue rising from below 20% in 2005-06 to a figure projected to reach 100% in 2011-12 and 132% in 2012-13.
· Queensland's financial position by 2011-12 was unsustainable. The State was locked into a debilitating cycle of over-expenditure, ever-increasing levels of debt and crippling increases in debt servicing costs. A major task of fiscal repair was imperative to prevent further damage to the future prosperity of the State.
· in order to return Queensland to a position of financial strength, the Commission of Audit recommended a two stage approach, viz:
ostabilise the growth in debt and return the budget to General Government fiscal surplus by 2014-15; and
oreduce the accumulated total government debt to restore a AAA credit rating and provide a buffer to keep that credit rating by reducing the ratio of debt to revenue by 60% by 2017-18.
· in its response to the Audit Commission's interim report tabled in Parliament on 11 July 2012, the Queensland Government announced its commitment to achieve a fiscal balance by 2014-15 by achieving $4 billion or more in savings over 3 years and ensuring debt stabilised at around $85 billion in 2014-15. In order to achieve these targets, the Government outlined four fiscal principals, as follows:
oPrincipal 1 - Stabilise, then significantly reduce, State debt
oPrincipal 2 - Achieve and maintain a General Government sector fiscal balance by 2014-15
oPrincipal 3 - Maintain a competitive tax environment for business
oPrincipal 4 - Target full funding of long term liabilities such as superannuation in accordance with actuarial advice.
· Mr Beavers then went onto say:
"8.In framing the 2012-13 Budget, the Government had regard for the recommendations of the Independent 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 introduced specifically targeted revenue options. The total net value of Budget measures between 2012-13 and 2015-16 is $7.766 billion consisting of:
·$5.277 billion in expense measures
·$0.812 billion in revenue measures
·$1.677 billion in capital measures.
9.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 the departments in which savings would be made.
…
11.Reflecting the Government's fiscal repair efforts, employee expenses were expected to grow on average 2.5% per annum between 2011-12 and 2015-16, in line with the Government's election commitment. It was expected that there would be around 10,600 redundancies in 2012-13. The total reduction in FTE positions attributable to the fiscal repair measures contained in the 2012-13 Budget was expected to be around 14,000. The difference is attributable to discontinuing temporary positions and not filling vacant positions."
· The expected employee expenses growth of an average of 2.5% per annum mentioned in paragraph 11 of Mr Beavers' statement is to be compared with that recorded in the findings of the Commission of Audit, which was to the effect that over the period 2000-01 to 2010-11 employee expenses increased by an average 8.7% per annum, comprising growth in employee numbers of around 3.5% per annum and wages growth (including classification creep) of around 5.2% per annum.
Mr Beavers also said that ratings agencies take a very keen interest in enterprise bargaining outcomes and management of employee expenses. They see this as a key test of a Government's resolve to manage its budgets and achieve its fiscal principals. As such, 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 rating 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. Mr Beavers also said that economic conditions were softer than expected when the 2012-13 Budget was prepared and that expenditure had also increased beyond that budgeted for because of the need of the State to respond to various natural disasters.
In concluding his evidence, Mr Beaver's stated:
"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 the 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 about the State's financial position and fiscal strategy was also provided by Professor John Quiggin an economist currently employed as a Research Fellow at the University of Queensland. He had been commissioned by a number of public sector unions to prepare a report in response to certain questions posed to him which he titled "Wage and Fiscal Issues in relation to the Queensland Public Service". He also tabled a self-authored article "Queensland Commission of Audit Interim Report - June 2012: A Critical Review".
Part of the Brief of Evidence given to Professor Quiggin by those who commissioned the report was a request for him to analyse, inter alia:
· the overall state of the Australian economy;
· the overall state of the Queensland economy;
· projected movements in the cost of living over the next three years;
· a comparison of movements in the Wage Price Index in both the private and public sectors in Australia and Queensland, respectively;
· an analysis of the Queensland Government's fiscal position and policies taking into account a range of matters including the Commission of Audit Report; and
· undertake a variety of investigations, and provide comment in relation to, the current fire service levy.
In the course of the conclusions contained in the first Report mentioned above, Professor Quiggin stated:
· contrary to claims made in the Commission of Audit interim report Queensland does not face a fiscal crisis;
· fiscal difficulties in the current budget arise from the fact that the Government has adopted logically inconsistent goals of maintaining service standards while cutting taxes and reducing debt;
· on balance, the fiscal position in Queensland is similar to that in other States. The global financial crisis and natural disasters have had some impact on the State's balance sheet, but net worth remains strongly positive;
· the absence of a AAA credit rating has only had a modest impact on borrowing costs;
· the Government's desire to improve its fiscal position by reducing wages below the level that would be expected on the basis of ordinary wage-setting processes is no different from that of any other employer seeking to finance mutually inconsistent objectives at the expense of its employees.
Professor Quiggin also filed a further affidavit in which he commented on the evidence given by Mr Beavers, during the course of which he made the following points:
· the "fiscal balance" measure proposed by the Commission of Audit is not a standard measure of budget balance. It mixes current and capital expenditure and takes no account of the value of capital assets;
· the standard measure of current budget balance is the operating surplus or deficit, not the "fiscal balance" as adopted by the State Government;
· the Government's focus on gross debt is inappropriate since it is worsened by the acquisition of assets, even when the value of those assets exceeds their cost. In any event, the ratio of debt to revenue was projected to peak in 2012 under existing policy settings and was projected by the Audit Commission to decline from 2012-13.
As interesting as Professor Quiggin's evidence might have been, it was only marginally relevant in informing us about the financial position of the State and totally irrelevant in assisting us to identify the State's fiscal strategy. For example, it is not relevant that Professor Quiggin might not agree with the Government's acceptance of the Audit Commission's finding that the State's level of debt is too high and that steps should be taken to stabilise and then reduce it. Equally, it is not relevant that he advocates a different approach to that chosen by the Government to focus on gross debt levels and achieving a fiscal balance.
What is relevant is that the Government has decided that the level of debt, and the cost of servicing it, had reached unacceptable levels and, as a result, has chosen to adopt the recommendation of the Audit Commission that it should, firstly, stabilise the growth in debt and return the budget to General Government fiscal surplus by 2014-15 and, secondly, reduce accumulated total Government debt to restore a AAA rating. To achieve that result it has committed to four fiscal principles (its fiscal strategy) as identified above in Mr Beaver's evidence. In addition it has established, as an integral part of its fiscal strategy, a wages policy which requires agencies to fund any wages outcome above 2.2% per annum from internal sources, even if this means staff reductions or reductions in service delivery.
In terms of a summary of our views in relation to the State's financial position and fiscal strategy and Professor Quiggin's evidence in relation thereto, we adopt the reply submissions of QFES, as follows:
"127 Professor Quiggin did not contest that there is a very substantial State debt which, at some indeterminate time in the future, must be repaid by the present and future generations. Whether or not the Audit Report can be characterised as presenting State debt in its worst case scenario (and it is submitted that it did not) the relevant fact for the purposes of these proceedings is that the State has accepted the advice that the current level of debt is too high to be carried by the Queensland economy, and ought to be consolidated and reduced as quickly as is feasible.
128 Having adopted that particular fiscal strategy and the operational steps needed to implement that strategy, the Commission is required by the Act to then consider the implications of its decision upon that strategy. It is not required to consider what Professor Quiggin might think to be a better or alternative strategy, or to consider the effect of its decision on a strategy that does not exist.
…
130 … the submissions to the effect that Professor Quiggin thinks that the economy is not in poor shape are of no consequence whatever in these proceedings, so long as the State has accepted that the levels of debt which do exist are well in excess of safe or acceptable levels and so long as the State is actually implementing a definite fiscal strategy to reduce that debt.
131 It is not contended by any party or witness that the reduction of State debt is a bad thing or that it is an unacceptable strategy that should be given short shrift by the Commission. The speed at which that debt might be reduced is a matter for political debate, but that debate has been settled by the decision of the State, and that decision is the factor which must be considered by the Commission as to its propriety or rationality."
The financial position of QFES
Ms Fiona Burbidge, Acting Chief Finance Officer, Department of Community Safety, gave evidence about the financial position of QFES. She said that funding for QFES came from three sources, as follows:
· approximately 70% from fire levies collected by local government councils through rate notices and remitted to QFES;
· approximately 19% from the State's Consolidated Fund; and
· the remainder from user-pays charges (approximately 10%), grants, contributions and other revenues.
Average annual growth in QFES operating revenues are forecast to be 3.6% per year over each of the 2012-13 to 2014-15 budget periods. During this period QFES will be required to contain its operating expenses, including capital expenditure, within its estimated funding limits.
The forward estimates for QFES include an increase of 2.2% per annum in wage costs, including costs directly associated with the aggregation of pay rates and costs associated with the introduction of a Technical Rescue stream. In light of the Government's wages policy the above costs will have to be funded internally. There was no capacity for QFES to seek additional funding to cover any employee-related costs above the 2.2% mentioned above. Any such costs above those budgeted for would necessitate QFES having to fund such costs by taking funds presently allocated to other items of expenditure, which could lead to: additional reductions in employee numbers; reductions in the capital expenditure program; placing restrictions on the capital expenditure program; placing restrictions on the purchase of operational equipment; and, service delivery closures.
In a supplementary affidavit Ms Burbidge addressed the funding of QFES following an announcement in the 2013-14 Queensland State Budget to recast the Urban Fire Levy as the Emergency Management, Fire and Rescue Levy. This new levy was proposed to apply to those areas of Queensland that were previously outside an urban fire levy district, within income gained to be utilised to help offset the cost of provision of emergency services. Ms Burbidge said that while this change would deliver more income from non-government sources, it would also have to be utilised to fund the operational cost of providing emergency management, fire and rescue services, which included QFES, within the Department of Community Services. Importantly, it would not lead to a greater level of available income - merely an alteration in the proportions mentioned in paragraph [33].
The likely effects of the Commission's determination on QFES, its employees, the economy and the community
In a supplementary affidavit, Mr Beavers referred to a Cabinet Budget Review Committee (CBRC) Minute, "Fiscal Strategy Relevant to Public Sector Arbitration Proceedings", which was made known to Queensland Treasury and Trade on 3 May 2013. Because of the way it impacts the environment in which the Full Bench is required to make this Determination it is necessary to record the full content of the CBRC Minute, as below:
"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."
In summary the Minute makes the following points:
· because employee-related expenses account for almost half of all General Government expenses, wages outcomes are critical in the achievement of three of the four principals underpinning the State's fiscal strategy;
· as a critical part of the fiscal strategy, the State has adopted the CBRC - approved wages policy which 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 2.2% per annum on existing employment expenditure as at the date of a Determination;
· any additional employment costs which exceed 2.2% per annum, by or as a consequence of any determination by the QIRC, will be borne by individual agencies from within their budget allocation;
· as part of the fiscal strategy, an agency will not be permitted to increase any charges that it may levy or collect or services it provides to the public for the purpose of meeting or offsetting any such additional employment costs;
· savings in employment or operating costs which are generated by determinations of the QIRC are to be directed toward 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 2.2% per annum referred to above.
Consequently, the effect of the above Minute is that while s 149(5)(c)(ii) of the IR Act does not compel the Commission to apply the Government's position on wages and employment conditions, the reality is that any increases in wages and employment-related costs which exceed the figure set out in the Minute will (not might) lead to reductions in employee numbers in the agency concerned and/or reductions in areas of service delivery and/or reductions in capital expenditure, and the like. Such outcome is confirmed in the evidence of Ms Burbidge, Mr Beavers and Mr Shane Donovan, Director of Employee Relations, Department of Community Safety.
As such, not only will the employer and employees directly concerned suffer a detriment, any job losses and/or reductions in services and/or reductions in capital expenditure will have a flow-on effect across the economy and the community. Indeed, the impact on the economy and community generally as a result of Government decisions to reduce employee numbers and expenditure levels, of the type referred to by Mr Beavers in his evidence, was the subject of strong criticism by Professor Quiggin.
It is against the background of the practical realities mentioned above that we proceed to decide the 51 matters at issue between the parties and which we are required to arbitrate.
The numbering system we have adopted to record our decision in respect of each item in dispute reflects the order in which matters were dealt with in the QFES arbitration submissions (ID 41) with the addition of two items dealt with in the submissions of the parties which are recorded in ID 28 at QFES clauses 4.12 and 4.14, respectively. These have been numbered as items 18 and 20, with item 19 dealing with clause 4.13 - Leading firefighters.
However, before turning to the items to be arbitrated it is necessary to address a particular issue raised by UFU which requires decision.
Extent of the matters at issue
In the course of its submissions UFU raised its concerns that QFES, by canvassing the Government’s wages policy of 2.2%, was attempting to broaden the matters at issue by requesting the Commission to take notice of the Government’s wages policy in circumstances where it had never been raised during the course of the parties’ attempts to negotiate a new certified agreement. Further, UFU argued that the employer’s last wages offer had been 2.7% and, on that basis, the Commission could not consider the current wages policy which “was concocted long after the negotiations for the proposed agreement had ceased and the matters at issue between the parties were referred to arbitration”. In UFU’s view consideration of the wages policy would be impermissible. “A Government agency could alter, or raise, totally new bargaining claims during arbitration, which were never at issue during proceedings, on the basis that they purportedly form part of, or relate in some way to, the State’s ‘fiscal strategy’.”.
In its reply submissions QFES rejected UFU’s contentions on two primary grounds:
“40. …Firstly, as the current wages policy is a part, and an essential part, of the fiscal strategy as described by the CBRC, it is a matter which must be considered under section 149(5), irrespective of whether it was ever the subject of specific negotiations between the parties.
41. The specific requirement for that matter to be taken into account under section 149(5) displaces entirely the question as to whether it was ever mentioned in negotiations or formed any part of the discussions between the parties. It is directly required to be taken into account and that requirement is not displaced by the terms of section 149(4).
42. Secondly, the submission is wrong as a matter of fact. The submission appears to come down to the suggestion that to the extent that here is “ambit” in these proceedings, in relation to wage increases, the base wage adjustment ambit range is said to be between 2.7% to 3.75% per annum.
43. This is a complete misunderstanding of the nature of the proposal put forward by the QFRS. The offer by the QFRS in the course of the negotiations, so far as the evidence disclosed it, was a proposal to pay ‘up to’ 2.7%. That was a maximum payment, not a minimum payment…”.
In support of its submission that the employer’s offer was “up to” 2.7%, QFES referred to the evidence of Mr Donovan (at T8-9) to the effect that QFES had offered to pay up to 2.7% if UFU agreed to its claims. “In plain English terms, this means that if there was any lack of acceptance of any of the proposals on the part of the State, the amount which would be subsequently agreed would be less than 2.7%. This means that the ambit of the offer by the employer at that time was between 0% and 2.7%.”.
In the circumstances of this case we do not accept the submissions of UFU about the employer’s last wage offer “of 2.7%” setting the “base” in terms of the lowest figure we can decide in arbitrating the matters at issue between the parties. Rather, we agree with QFES’s reply submissions on this point, as follows:
“47. …the ambit in the proceedings, to the extent that it is necessary to ascertain, is between 0% and 3.75% per annum.
49. As submitted in transcript on 1 November 2013, the Industrial Court in the Sun Metals case decided that the matters in issue for the purpose of section 149(4) is a question of fact to be determined by the Commission. This requires an ascertainment of precisely what is meant by the ‘matter’. In this case the ‘matter’ is the quantum of a wage increase in circumstances where one party was offering ‘up to’ 2.7% subject to the achievement of certain concessions, and the other party was offering to accept 3.75%.
50. In those circumstances, the matter in issue was the overall question as to:
(a)whether a wage increase should be granted with or without cost offsets; and
(b)what the extent of the wage increase should be; and
(c)what the extent of any offsets should be.
51. It is artificial and nonsensical to confine the concept of ‘matter’ in those circumstances as being confined to numerical offers being exchanged between the parties in circumstances where they were all subject to cost offsets and concessions that were never made. The only sensible way to characterise the ‘matter’ which was undoubtedly an issue, is the overall notion of the quantum and offsets necessary to meet the cost of wage increases generally, without artificially confining the identity of that ‘matter’ by numbers bandied around by the parties in the proceedings…”.
We also do not accept UFU’s argument that we are not able to take notice of the Government’s wages policy or to take it into consideration in deciding the matters at issue between the parties. As highlighted by QFES in its reply submissions (above), and by this Full Bench earlier in our Decision, the Commission is actually obliged to consider the State’s financial position and fiscal strategy, an integral part of which is the CBRC – approved wages policy, in reaching its overall decision in these proceedings. That obligation is absolute and is not displaced, or otherwise diminished, by the terms of s 149(4).
Item 1 - Date and period of operation
For reasons set out below we have decided to make a new Determination to apply to:
· QFES;
· employees employed by QFES for whom rates of pay, conditions of employment and entitlements are provided therein; and
· those Unions covered by Awards of this Commission identified at clause 1.3 of document ID 28.
The Determination to be made as a result of this Decision will be known as "Queensland Fire and Emergency Services - Determination 2013" (the 2013 Determination). The date of operation for the 2013 Determination is 8 December 2013, which 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 nominal date of expiry of the Determination will be Saturday 1 October 2016, as recorded below.
Item 2 - Relationship to awards
The parties are unable to agree the full extent of the wording to be included in the Determination at clause 1.3. In the absence of any real argument on this point we have decided to adopt the general wording proposed by QFES, with some modification to the proposed clause 1.3.2 which will read as follows:
"1.3.2 In the event of any inconsistency with any provision in an award listed in clause 1.3.1, the terms of this Determination will apply to the extent of the inconsistency."
In addition, we note that the parties' reference to the General Stores, Warehousing and Distribution Award - State 2003 is not relevant on the basis that this Award was made obsolete on 30 July 2013.
Item 3 - Closed Determination and no extra claims
UFU seeks to include a clause (2.2.3) that allows for changes to be made to employees' rights and entitlements during the life of the Determination where those changes arise as a result of:
· general rulings, statements of policy and decisions issued by the Commission;
· any improvements in conditions that are determined on a whole-of-government basis; and
· reclassifications.
QFES opposes the inclusion of any reference to "decisions" and improvements on a whole-of-government basis but otherwise agrees with the clause proposed by UFU.
In the absence of any detailed debate on the issue, and noting that s 150(8) of the IR Act provides that a Determination cannot be amended during its life, we are prepared to include the clause proposed by UFU subject to:
· the deletion of the reference to "decisions" in the first point;
· the inclusion of a provision which clearly excludes wage increases arising from State Wage Case decisions; and
· the inclusion of the words "of employment" in the second point after the word "conditions".
In terms of the disagreement about no extra claims we believe the clause proposed by QFES (2.2.1) to be more representative of the relevant legislative provisions and will incorporate it in the Determination.
Item 4 - Dispute resolution
Item 51 - Consultation and dispute resolution
QFES seeks the inclusion of a provision in the Determination which is to apply to any dispute in relation to the operation or interpretation of the Determination. In proposing such clause, QFES makes it clear that it opposes the inclusion of compulsory consultative mechanisms on the basis that QFES and its employees have a long history of co-operating in matters of consultation and that it should be allowed the freedom to treat its staff accordingly without imposed and restrictive measures that have the appearance of being legally enforceable, even if they are no longer useful.
On the other hand, UFU seeks the inclusion of more substantive provisions which are predicated on the parties adopting a co-operative and consultative approach to preventing and settling disputes at a state, local and individual level. In particular, UFU seeks the inclusion of provisions which would have the effect of requiring QFES to participate in regular "issues forums", which would discuss issues specific to particular employee groups or workplaces, as well as a requirement for QFES to consult with the relevant unions about "major issues or common issues affecting a major part of QFES".
UFU submits that while QFES states that it is its intention to continue with existing consultative arrangements, its claim that such provisions should be removed from the Determination, as an administrative measure because they are not needed, does not sit comfortably with its stated intentions. As such, in UFU's view, there should be no controversy about including the modified consultative and dispute resolution provisions proposed by the Union. The inclusion of such provision would also act to maintain "sensible, mature, industrial processes" should QFES change its mind in the future.
In terms of its claim for a specific consultative process to address establishment levels and staffing issues, UFU highlighted the evidence of Inspector/Area Commander Mark Gribble who provided evidence about the need to ensure that appropriate staffing numbers are applied in fire and rescue operations from both a health and safety perspective and a fire suppression perspective, respectively. In addition, the Union pointed to the evidence of Station Officer Cameron Corneal who highlighted his concerns about the lack of 24/7 coverage at the Airlie Beach Fire Station and his unsuccessful attempts to have the management of QFES address and resolve those concerns.
Although QFES argued very strongly that the Determination should not contain any provisions which require it to consult with UFU about matters previously canvassed during the course of issues forums, or about establishment levels and staffing issues, its principle witness, Acting Deputy Commissioner Mark Roche, acknowledged there would be no prejudice (T 5-28), nor any problems (T 5-29), if consultative provisions were contained in the new Determination. Indeed, his commitment, on behalf of QFES, to the continuation of consultative arrangements extended to including such obligation in a Standing Order issued by the Fire Service Commissioner, or other document (T 5-29).
The evidence of the employer and Union witnesses points to a long history of consultation between the parties in terms of managing their relationship and attempting to address both minor and major matters as they rise. For that reason we are loath to remove consultative provisions from the new form of industrial instrument which will regulate the parties' relationship and to, in effect, leave it to the good graces of QFES to do what it says it intends to do. In our view, employees to be covered by the Determination are entitled to be aware of their capacity to raise issues with their employer, through appropriate forums, as well as to know how any grievances or disputes they might have, either as individuals or as a group, can be raised and addressed.
As such, we have decided that a "hybrid" consultation, complaints management and grievance procedure should be included in the Determination in a form which reflects the following aspects:
· the continuation of regular "issues forums" at a State level, where important issues in the parties' relationship can be raised and addressed;
· the establishment of appropriate processes to allow the parties to consult each other on matters affecting the implementation and future operation of this Determination (this does not necessarily require the creation of a separate consultative process to that referred to immediately above); and
· a disputes resolution process which records how any disputes in relation to the operation or interpretation of the Determination, as well as any dispute about any industrial matter, may be progressed.
We envisage that the latter requirement can be accommodated through minimal changes to the dispute resolution provision proposed by QFES at clause 2.3 of ID 28.
Item 5 - Wages
Each of UFU and SOU seeks wage increases of:
· 7.5% from 1 July 2013
· 3.75% from 1 July 2014.
The first increase claimed contemplates 2 x 3.75% annual wage increases to cover the two year period from 1 July 2012 - 30 June 2014 and is said to reflect the fact that the last wage increase granted to employees to be covered by the proposed Determination covered the period 1 July 2011 until 30 June 2012. Each Union also argued that because of the fact that the last wage increase occurred on 1 July 2011, employees' wages and salaries had declined and no longer represented fair standards in relation to living standards prevailing in the community.
In support of its claims UFU called evidence from Professor John Buchannan, Director of the Workplace Research Centre at the University of Sydney. Professor Buchannan provided a range of data dealing with movements in average weekly ordinary time earnings (AWOTE) and the wage price index (WPI), respectively. In relation to AWOTE, he said that "since 2008 public sector workers in Queensland have fallen behind their national peers, while earnings in the Queensland private sector continue to outpace the Australian private sector at large". After comparing both data sets (i.e. AWOTE and WPI) he opined that "public sector workers generally, and in particular those in Queensland, have experienced adverse changes relative to their peers in the last three years."
Reliance was also had on Professor Quiggin's reports in which he said "an annual rate of wages growth of around 4.5% was justified" (P3 - Exhibit 44) and that "on standard wage-setting principles, a productivity-based increase is justified" (P37 - Exhibit 46). His evidence, as well as that given by Professor Buchannan, was relied upon by UFU to support its claim for a 3.75% per annum wage increase which it argued "is moderate and well within the wage movement trends in the community."
In addition to pursuing the levels of wage increases mentioned above, SOU also sought an additional increase for senior officers based on work value grounds. In its submissions SOU said that the evidence it led during the proceedings showed that, since 2009, there has been a clear and substantial increase in senior officers' workloads accompanied by, and attributable to, increases in a variety of matters including: complexity of work; increased hours of work; additional skills, responsibilities, and accountabilities. There had also been a substantial decrease in staffing levels which further increased the workload and hours of work performed by senior officers. In addition to the above matters, amendments to the Disaster Management Act 2003 in 2010 had seen senior officers of QFES take a leading role in preparing for, and coordinating responses to, disasters in Queensland, other States and internationally. In arguing for a wage increase based upon work value grounds SOU relied upon a number of witness affidavits, details of which appear at the foot of pages 3, 4 and 5, respectively, of its written outline of submissions.
The increases claimed by UFU and SOU were strongly opposed by QFES which argued that the Commission should not grant a wage increase which exceeded 2.2% per annum, at 12 monthly intervals, over the proposed 3 year life of the Determination. In doing so, QFES made extensive reference to the evidence of Mr Beavers and Ms Burbidge as it related to establishing the financial position of the State Government and of QFES, respectively, as well as the State's fiscal strategy. In particular, QFES highlighted the CBRC Minute and QFES's incapacity to fund any increase in employment costs above 2.2% if the Commission was minded to grant an increase above that level.
In that respect, QFES said that if the Commission was considering whether to award a wage increase in excess of 2.2% per annum it was required to consider the financial position of the agency concerned and the effect of its decision on the agency. In particular the Commission was required to understand and accept that QFES would be required by strict Government policy to sacrifice other programs and/or employment numbers in order to provide the necessary supplementation of funding to meet any increase in wages which exceed the Government's wages policy.
QFES also highlighted that the Government's wages policy was not targeted at QFES's employees. It was part of a wider fiscal strategy which had been decided by the Government in its role of the manager of the finances of the State in the interest of all Queenslanders. Such matters were all relevant facts, the impact of which the Commission was required to consider when determining the quantum of the increase in wages of employees in all public sector entities, including QFES.
In the concluding parts of its submissions on this topic QFES said:
"108 It is submitted that it would be an extraordinary step for the Commission in section 149 proceedings to impose an outcome on the State that is a measure that is directly contrary to the budget and fiscal repair strategies of the State in its management of the whole economy, and a measure that the State could not agree to in enterprise bargaining without breaching its own published policies.
109 There is no reason offered by UFU/SOU in these proceedings as to why QFRS employees should be spared conformity with the wages outcomes which are intended to assist the fiscal repair measures undertaken by the State of Queensland for the benefit of all, and which have been accepted by a wide range of other public sector employees.
110 In these circumstances, it is not productive to debate whether or not the State can ‘afford’ to pay higher wages than those on offer. Clearly on a whole of government basis the extra costs involved are not capable of placing the government of Queensland into financial default. However, that is not the issue, nor is it the question to be answered.
111 Section 149 of the Act requires the Commission to consider, and to take into account, the State’s fiscal strategy as a whole, and also the impact of that strategy on the State agency in question. The fiscal strategy of the State is, by definition, the strategy which the State adopts to manage the Treasury and the State economy as a whole. As approximately half of State expenditure is employment costs, the wages policy is an important tool in the management of the whole economy.
112 To compromise an important part of that strategy which is being implemented across the whole public sector, is to potentially damage the integrity of the whole of that strategy, which it is submitted would be an inappropriate outcome for the Commission to decide. To consider that strategy, and to then determine that it can be breached on this occasion without adverse consequences, or that the expected consequences for the State and QFRS are tolerable, is a decision within the jurisdiction and power of the Commission to make, but it is submitted that to accede to the UFU/SOU request would be to accept an invitation to error of significant proportions.
113 Further, the Commission must consider the objectives of that fiscal strategy, and the State-wide importance of it, together with the implications for that strategy of ordering a departure from it to advantage the employees of a relatively small agency such as QFRS.
114 As submitted, the Commission must consider whether the imposition of further cuts in programs and/or staff, as would be required to pay the higher wages of existing staff, where there is no capacity on the part of QFRS to absorb higher wages in its budget, is an appropriate and acceptable outcome of these proceedings."
Given the content of the CBRC Minute, the persuasive argument of QFES as set out immediately above and the direct impact any decision we might make to go beyond the "limit" set out in the Government's wages policy will have on QFES and its workforce, we are not persuaded to award any increase beyond the 2.2% per annum figure proposed by QFES but have decided, for a combination of reasons including the operative dates and duration of the Determination made by another Full Bench in the Ambulance matter[5], that the wage increases that will apply during this Determination will be:
· 2.2% from Sunday 8 December 2013 (the commencement date of this Determination);
· 2.2% from Sunday 4 January 2015; and
· 2.2% from Sunday 25 October 2015.
[5] State of Queensland (Department of Community Safety - Queensland Ambulance Service) v United Voice, Industrial Union of Employees, Queensland (No. 2) [2014] QIRC 093.
We have also decided that the 2013 Determination will nominally expire on Saturday
1 October 2016. This means that while the first "year" of the Determination will run for approximately 13 months, the second "year" will run for approximately 10 months, with the final "year" to run for 11 months.
Item 6 - Superannuation
UFU seeks the inclusion of a provision which would require QFES to include the 38 hour week allowance in its calculation of superannuation contributions. The Union submission is that because the 38 hour week allowance is paid to employees in lieu of reducing their ordinary working hours from 40 to 38 per week, and is paid on all leave, it should be regarded as part of each employee's ordinary wages and, for that reason, should be superannuable. The claim is primarily opposed by QFES on the basis it is not supported by any evidence or other relevant material but also on the basis it cannot be accommodated within the Government's wages policy. Further, QFES submits that the definition of ordinary time earnings is regulated by federal law and no case has been made out as to why those provisions should change in relation to employees of QFES.
Given the lack of evidence or submissions in support of the claim, as well as the precedent it would create if granted, we have decided to reject UFU's claim.
Item 7 - Salary sacrifice
Although the parties are in agreement that the existing clause 3.2 of the 2009 Agreement should be reflected in the Determination, we require that it be amended to delete the reference to employees being able to salary sacrifice "up to 100% of salary to superannuation". While that might have been the case at some point in the past, the amount an employee may salary sacrifice has been subject to numerous legislative changes since the 2009 Agreement was negotiated.
The relevant provision to be included in the Determination should reflect that employees are permitted to salary sacrifice "up to the maximum amount permitted by Commonwealth superannuation guarantee legislation".
Item 8 - Hours of work and rosters
Except for the process to be adopted for the setting of the pattern of working hours for employees other than continuous shift workers, these provisions are agreed. The point of difference between QFES and UFU is that while UFU seeks the inclusion of a provision which would permit the employer to set the pattern of working hours, that is to be after "having due regard to the work requirements and the wishes of the employee". QFES opposes the provision pressed by UFU on the basis it is capable of being misrepresented as a requirement to consult and in a manner which may give rise to an attempt by an employee to veto the employer's proposal.
We agree with QFES that the existing provision is capable of being interpreted in the manner it suggests. Notwithstanding that situation, we are also concerned that adoption of the words proposed by QFES might lead to situations where working hours arrangements are changed by local management without consideration of the potential impact it might have on an individual employee or employees.
In such circumstances, we propose to add the words "after consultation with the affected employee or employees and, where requested by the employee(s), their Union representative" after the words proposed by QFES at clause 4.1.4 of ID28.
Item 9 - Flexible work practices
QFES seeks the inclusion of what can only be described as a statement of its intentions to adopt more flexible work practices in the future by availing itself of a number of additional provisions which it seeks to have included in the Determination. These new provisions include the capacity to engage casual employees and to utilise part-time, temporary and job share arrangements. The proposed provision is opposed by UFU on the basis it does not prescribe any rights or obligations and is confusing.
We note UFU's submission that the proposed provision is not agreed and also note the fact that the proposed wording is, in essence, a statement of the employer's intentions to act in a particular way in the future. In our view, such a provision should not be included in an arbitrated outcome in the form of a Determination. QFES's proposal is refused.
Item 10 - Establishment levels and staffing issues
UFU seeks the inclusion of a provision which would have the effect of:
· requiring QFES to meet with it to discuss staffing levels in all stations and functional areas with a view to optimising the allocation of resources based upon current conditions and predicted growth in population, industrial development and the like; and
· requiring QFES to meet with it at least annually to attempt to agree relative priorities for any changes in existing stations' staffing levels, method of operation (e.g. 5/7, 24/7), appliance types and the like.
The provision is opposed by QFES on the basis, firstly, there should be no provision in the Determination which requires QFES to consult with UFU and employees about such matters and, secondly, there was no intention on the part of QFES to "diminish its current levels of consultation about resources and establishment levels (that) are a matter of management prerogative". QFES also submitted that the Full Bench was entitled to rely upon information within the knowledge of one of its members, from earlier conciliation proceedings, to inform itself of the current level of consultation that exists within QFES about establishment levels and staffing issues.
Although one of the members of the Full Bench did recommend to the parties, in a dispute situation, that they adopt particular processes and procedures in the course of conciliating that dispute, we are not inclined to incorporate a provision in the Determination which would have the effect of requiring QFES to consult UFU about matters of the type pressed in its claim. To do so, we believe, would elevate the recommended steps to a new status, which could have the effect of causing particular firefighters to believe that UFU has an equal say, or some right of veto, in the allocation of resources. For example: after listening to the evidence of Mr Corneal we are somewhat apprehensive that the inclusion of such provision might actually lead to an increase in disputation about staffing and resourcing issues rather than helping to reduce them.
In any event, the practical reality is that while QFES management might consult UFUQ and its members about staffing and resource issues, any recommendations it might make will always be subject to approval, and perhaps different prioritisation, by the Government of the day.
Given all of the circumstances this particular claim is refused. However, it should be possible for the parties to have mature discussions about such matters in the course of their regular "issues forums", which we have decided should continue (see Item 4 above).
Item 11 - Reserve rosters
Item 13 - Part-time employment
Item 14 - Casual employment
Item 15 - Special flexibility allowance
Item 16 - Aggregate wage
Because the evidence and submissions in relation to these five topics is so inextricably intertwined we have decided to deal with these items together rather than attempt to deal with them in a particular order. In summary (the exhibits and transcript (again) contain all of the relevant evidence and submissions), QFES seeks a raft of changes to the provisions of the 2009 Agreement, which are captured under three main headings, as follows:
· variations to the composition of the Aggregate wage rate presently paid to many of its employees;
· variations to existing certified agreement provisions to facilitate the implementation of a process for managing overtime costs; and
· the introduction of flexible and contemporary employment and work practices.
The nature of, and rationale for, these claims
Aggregate wage rate
Mr Roche said that the proposed Aggregate wage rate would apply to all employees of QFES covered by the Determination and would incorporate, in a single wage rate, each staff member's entitlement to the following existing benefits:
· base salary;
· weekend shift penalties;
· night shift penalty;
· the 38-hour week allowance;
· where relevant, a 2.5% special flexibility allowance;
· an average of the existing public holiday penalty payments;
· an average of the existing travel allowance payments (where employees are required to travel to a different work location from that at which they are normally employed - including officers undertaking relief duties);
· an average of the existing meal allowance payments; and
· five overtime shifts per annum (totalling 60 hours and based on 5 x 12 hour shifts) paid at 150% of base salary.
The 2.5% special flexibility allowance is only payable to certain, identified, employees and is deemed to "buy out" the first two hours of overtime which might be worked in any one week. Because the allowance does not apply to all employees there would, in fact, be a different Aggregate wage rate for employees entitled to receive the special flexibility allowance compared to those that are not. Generally speaking, however, all employees in the same classification, at the same paypoint level, would receive the same Aggregate wage rate.
Mr Roche said (at paragraph [12] of Exhibit 9) that QFES sought this outcome "to improve the utilisation and efficiency of existing resources within current funding and staffing arrangements, and to provide a platform for the reduction in the current costs of administration of the Service by:-
(a) streamlining administrative processes; and
(b) implementing a process for managing overtime costs that:
(i)equitably distributes overtime across all staff; and
(ii)changes the current overtime culture to curb misuse of personal leave."
Adoption of the proposed Aggregate wage rate structure would significantly assist QFES's plans to streamline administrative processes within the Service because it would remove the requirement for staff to submit timesheets to Queensland Shared Services (QSS). Currently there is a requirement for all staff, from a Recruit Firefighter to a Chief Superintendent, to submit timesheets. The processes required to complete, verify and process each timesheet was both significant and inefficient and had the potential for errors and discrepancies. In addition, having fewer matters to input would reduce the cost of using QSS and would reduce the cost of purchasing a proposed new payroll system.
Managing overtime costs
Presently, QFES incurred significant costs through overtime payments for a variety of reasons including the misuse of sick leave entitlements which necessitated replacing an absent employee with another employee, who received overtime at the rate of double time.
Mr Roche opined that there was an expectation within many employees in QFES's workforce that they would be provided with overtime shifts, as of right, as part of their regular income. This expectation had given rise to the circumstance that overtime shifts and personal leave entitlements had become the subject of misuse. For example, a firefighter who took personal leave was paid at ordinary time rates for the period of their absence but an employee called in to replace that employee was paid overtime at the rate of double time. This was a win-win for the staff involved but was very costly for QFES, which was required to expend the equivalent of triple time to cover that shift. It meant, for example, that an employee called in to work a night shift of 14 hours “benefitted” to the extent of 28 hours pay.
Currently, the average uptake of personal leave by operations staff was 73.75 hours per year out of a maximum annual entitlement of 80 hours. This situation occurred in circumstances where each operational staff member was rostered to attend work, because of the 10/14 shift roster system, on only 152 days per annum.
The use of personal leave (i.e. sick leave) had increased significantly in recent years, with the level of absences being particularly bad on Fridays, Saturdays and Sundays, as shown in Attachment 1 to this Decision and in the table below (both of which have been prepared from information extracted from Mr Roche's evidence (Attachment MORI to Exhibit 11)).
| 2008-2009 | 2009-2010 | 2010-2011 | 2011-2012 | 2012-2013 | |
| Monday | 128 | 88 | 313 | 260 | 342 |
| Tuesday | 131 | 113 | 322 | 284 | 345 |
| Wednesday | 121 | 123 | 360 | 284 | 328 |
| Thursday | 124 | 115 | 370 | 347 | 381 |
| Friday | 191 | 172 | 414 | 467 | 459 |
| Saturday | 365 | 295 | 613 | 686 | 692 |
| Sunday | 215 | 194 | 471 | 443 | 505 |
| Total | 1275 | 1100 | 2863 | 2771 | 3052 |
The data in Attachment 1 shows that the level of personal absences increases significantly over the Friday night shift, Saturday day shift, Saturday evening shift and Sunday day shift compared to the rest of the week. Further, the data shows that the level of personal leave taken in 2012-13 was approaching three times the level of leave taken in 2009-10.
[100]In order to try to counter the (alleged) misuse of personal leave, as well as the inequitable working of overtime shifts across its workforce, QFES proposed that existing arrangements be modified so that the Aggregate wage rate payable to each of its employees would include payment for five overtime shifts (totalling 60 hours and payable at 150% as opposed to 200%), which would then be "owed" to the Service by each employee. This would mean that QFES was effectively "pre-purchasing" the ability to call upon staff to work up to 60 overtime hours before it incurred any additional liability to pay any further overtime payments. Staff who were not called upon to "re-pay" all of the 60 hours would not be required to re-pay any "overpayment". However, shift overruns and other incidental overtime could not be used to offset the pre-purchased 60 hours of overtime. Only time worked on whole shifts (i.e. a day shift of 10 hours or a night shift of 14 hours) would be counted towards re-payment of the 60 hours of pre-paid overtime.
[101]Introduction of such a system, according to Mr Roche, would:
· allow QFES to predict and manage its financial obligations in relation to overtime;
· spread the obligation to fill absences amongst the broader workforce; and
· deter the misuse of personal leave and resulting entitlements occurring within select groups of employees by:-
oproviding an incentive and requirement for management to spread the burden of managing personal leave absences across all staff (in that all staff would be required to fill vacancies created by the absence of other employees in order to re-pay the pre-purchased overtime); and
oreducing the immediate financial incentive for employees to "exchange" personal leave (so as to access overtime shifts).
Contemporary employment and work practices
[102]Mr Roche said that the current 10/14 roster arrangement required staff to work a rolling eight day cycle of two day shifts (of 10 hours each) and two night shifts (of 14 hours each) followed by four days off. This arrangement did not allow QFES to introduce the following employment arrangements:
· casual employment agreements
· day shifts only
· night shifts only
· split shifts; or
· job sharing.
[103]Further, because of its rigidity, the current 10/14 rostering model made it difficult for the Service to accommodate instances where existing staff members required flexible work arrangements to cater for either short term or long term absences associated with such matters as: the birth of a child; parenting responsibilities; adjustment due to marital separations; the desire to reduce working hours leading into retirement; caring responsibilities for elderly relatives; and reduced hours through injury or illness. In addition to those matters, the current rostering model limited QFES's ability to manage staffing levels in cases of unexpected absences and long term absences (both planned and unplanned).
[104]In order to address some of these issues, which would not eliminate the need for overtime, QFES proposed a number of initiatives, to be contained in the Determination, which included:
· the introduction of a reserve roster (to be primarily staffed by part-time and casual employees);
· changes to existing part-time employment provisions, which presently limited such employees to no more than 32 hours per week;
[206]Messers Watts and Ryan gave evidence designed to generally support that advanced by Mr Cross. They spoke about situations they had witnessed where senior personnel would provide advice and guidance to less experienced Station Officers and other firefighters during fire fighting operations. They opined that more experienced firefighters took on an informal leadership and mentoring role and kept a watch over less experienced firefighters on the fire ground.
[207]Mr Ruig said that experienced firefighters with considerable periods of service were generally referred to as the "senior man" or "senior hand". He claimed that these firefighters are expected to assume a significant degree of responsibility and to mentor and advise lesser experienced firefighters. As a senior First Class Firefighter he was called upon to mentor other firefighters, while on the fire ground he was relied upon by others to ensure that lesser experienced personal were safe. In that respect, he was frequently told not to let a more junior firefighter out of his sight.
[208]Mr Ruig also said that as a result of his extensive exposure to a multitude of situations and hazards he knew what to look for and to expect. He found lesser experienced firefighters often did not identify the hazards they might encounter as they had not seen them before. By contrast, he was able to anticipate, for example, the likelihood of flash overs or back drafts. During road accident rescue work he was able to impart his considerable experience to others, including how to deal with the situation of encountering deceased persons. He was frequently able to guide the mental health needs of junior or inexperienced firefighters because they felt comfortable with his position and role in the crew.
[209]UFU's claim for the additional paypoints was opposed by QFES for a variety of reasons including the absence of objectively verifiable criteria against which it could be established whether an individual firefighter had attained any particular level of expertise, other than by the passage of time. Further "there is no basis on the evidence for suggesting that all senior firefighters who have attained five years' experience thereby pass some invisible line in which they become mentors, guides or protectors of other firefighters, other than as an intrinsic and fundamental part of the work which they all do." Further, QFES argued that there is no objectively verifiable means of ascertaining whether any of the firefighters with more than five years' experience perform any mentoring functions at all which might be described as more or different from those which they performed before the fifth anniversary of appointment to their classification.
[210]QFES also referred to the evidence of Mr Roche in relation to both claims, during the course of which he indicated there was no discernable difference between the duties undertaken by Senior Firefighters and First Class Firefighters, before 2007, when Mercer undertook its work evaluation, and after that date. Further, the duties referred to in the affidavits of Messers Watts, Ryan and Ruig were consistent with those duties that QFES reasonably expected its First Class Firefighters to perform from time to time and which had been part of those duties for many years. Similar comments were made in respect of the witnesses who gave evidence about the duties of a Senior Firefighter.
[211]We have decided to reject UFU's claims for the additional paypoints. The evidence simply does not establish any discernable difference between the duties of Senior Firefighters and First Class Firefighters between, or prior to, 2007 and the present time. All that the evidence does is confirm:
· that exposure to different fire fighting and rescue operations over many years allows an officer to draw on their experience whenever they encounter a new situation; and
· that other employees might expect, or seek to, use that level of experience to deal with a situation they might not have encountered before and/or improve their own knowledge base.
[212]With great respect to the witnesses who gave evidence, there is nothing special or unique about their situation. A carpenter, plumber, electrician, or even an airline pilot, with many years of experience would be able to recount similar experiences about how they have been able to draw on their exposure to previous situations to help them deal with any new situation which might arise and that other employees might seek to draw on that level of experience. However, none of those occupational groups receive additional remuneration on the sole basis of length of employment in the performance of their particular role. In pay structures based upon time served the wage rate of less experienced staff are necessarily lower than those with more experience. If we had been of a mind to consider these claims we would also have had to consider what (lower) wage rates should be paid to those officers in each role with less than 5 years’ experience.
Item 42 - Additional pay point - Building Approval Officers (BAO's)
[213]UFU seeks an seeks an additional paypoint, set at 3.5% above BAO2, for BAOs who possess a Graduate Diploma of Fire Safety on the basis of the extra skills and capacities the holder of such diploma brings to the role of Building Approval Officer. In support of its claim UFU called Mr Ken Clark who gave evidence about the additional skills and knowledge he was able to bring, as the holder of a Graduate Diploma, to the performance of his role above that exhibited by other BAOs who only possessed a Graduate Certificate. In particular, Mr Clark opined that a BAO who held a Graduate Diploma possessed a far greater depth of understanding of fire safety installations and services than other BAOs and allowed that person to establish, for example, if a particular fire safety solution, especially an alternative solution to that generally prescribed, was designed in accordance with legislative requirements. In addition, by having a more in-depth knowledge of fire engineering principals, such a person provided stakeholders with more relative and comprehensive advice in a significantly shorter timeframe.
[214]Finally, Mr Clark opined "the Graduate Diploma facilitates BAOs to perform other tasks that can generate additional revenue for the QFES, as well as greatly increasing a BAO's capacity in all tasks in their role description".
[215]QFES opposed UFU's claim on the basis Mr Clark had elected to undertake further study to improve his knowledge in circumstances where the additional qualification he had obtained (the Graduate Diploma) was not requested or required by QFES and, relevantly, was not mandated in his role statement. In opposing the claim, QFES called evidence from Mr Roche and Mr Steven McKee, Executive Manager, Fire Engineering Command, State Community Safety Operations Branch of QFES. Mr McKee is a Registered Professional Engineer of Queensland and a Chartered Fire Engineer with the Institution of Fire Engineers. In addition to his Bachelor's Degree he held a Post-Graduate Diploma in Building Fire Safety and Risk Engineering from Victoria University.
[216]After providing evidence about the nature of the work undertaken by BAO1 and BAO2 employees Mr McKee said:
"25 I am aware that several BAO2 employees have completed a Graduate Diploma in Building Fire Safety and Risk Engineering from Victoria University. Whilst it is expected that those employees who have completed a Graduate Diploma will have an enhanced level of fire safety engineering knowledge and capability above those who have only completed a Graduate certificate, this additional knowledge and capability will not change the employee's prescribed duties or responsibilities.
26 Regardless of whether an employee holds a Graduate Diploma or a Graduate Certificate, the Building Approval Officer will still be required to undertake the same prescribed tasks, perform the same prescribed duties and display the same minimum competencies.
27 Completing a Graduate Diploma will not allow the employee to undertake duties above that of a BOA2 that involve the provision of 'professional engineering services' unless and until the Graduate Diploma qualifies the fire officer to become a Registered Professional Engineer in Queensland, and is appointed to a position that has those duties and accountabilities."
[217]In the course of his evidence (T4-65) Mr McKee said it was not the role of BAOs "to interrogate the nuts and bolts of the engineering" of any alternative fire solutions, that was the role of an engineer. "If they were to do that they may stray into the realms of doing engineering and that's not, you know, their role. And in Queensland you have to be a registered engineer to do engineering and that's why everybody has got their role. The BAO has got their role and the engineers have got their role".
[218]After considering the evidence, especially that given by Mr McKee, we have decided to refuse UFU's claim for an additional paypoint. In doing so, we agree with the submissions of QFES which were to the effect that an employee is not at liberty to impose a particular qualification on an employer, in the sense of demanding a higher rate of pay for a qualification that the employer does not want or need for someone to perform the role in question. To borrow the employer's example "If a qualified fire engineer applied for and was appointed to the BAO role, that person would not be entitled to a higher salary for a role that is other than the role which the employer requires of them".
Item 43 - Additional provisions for BA hazmat / safety equipment officers
[219]UFU seeks the inclusion in the Determination of a new stream, which has a similar structure to the agreed rescue technician stream, which is said to be needed to recognise the specialist skills and training of safety equipment officers. Evidence in support of this claim was provided by Station Officer Andrew Berrill (Exhibits 50 and 51).
[220]Mr Berrill is one of three Special Operation Response Team members at Cannon Hill who work within the Breathing Apparatus Hazmat Unit (BAHU), and whose role title is Safety Equipment Officer (SEO). The duties of the 3 x SEOs include responding to incidents which require breathing apparatus and associated equipment and/or hazardous material (hazmat) equipment; delivering of training to QFES and other emergency services’ staff in connection with breathing apparatus and hazmat; servicing and maintaining breathing apparatus, hazmat suits and gas detection equipment; and project management associated with such matters as identifying new equipment and/or processes to enhance service delivery.
[221]Mr Berrill said that while he was remunerated at the rank of Station Officer, paypoint 2, the nature of the duties he undertook as an SEO had not been considered by Mercer during its 2007 evaluation of roles within QFES. Before that time, and subsequently, there had been many changes in the nature of his work including: the introduction of negative pressure masks in 2009 which had to be individually face fitted; the purchase of additional maintenance equipment in 2011 to enable in-house servicing of four gas detectors; the start of the roll-out of hazmat support vehicles (largely breathing apparatus) in 2011; becoming part of the international USAR deployment taskforce team during 2012 and, in this role, conducting field calibrations and servicing of equipment - thus enabling the functionality of the equipment to continue during deployment; the purchase of hazardous transfer equipment during 2012 which provided a capacity for hazardous liquids to be decanted from damaged vessels to a recovery vehicle, and so on.
[222]Mr Berrill generally opined that the role he and the other SEO's undertook was a specialist role which required recognition, including the rank structure set out in the UFU claim. Such structure would accommodate decisions announced by QFES which would see the commissioning of new vehicles and equipment and the engagement of specialist additional staff at Cannon Hill. There was also an expectation of increased chemistry-based training and incident specific equipment, with movement towards further in-house maintenance of equipment as a cost saving measure.
[223]The Union's claim for an additional stream and classification structure was opposed by QFES. In particular, QFES was critical of the approach adopted by UFU in its attempt to have the Commission re-arrange the structures of QFES to create a stream that did not exist, as well as classifications that did not exist. It might have been different if QFES had created such a stream, in that the Commission could have been asked to rule upon the appropriateness of remuneration levels and the like within the stream, "but to create the stream is to re-design the QFES business operation, which simply can't be done."
[224]QFES also highlighted that Mr Berrill held the substantive rank of Station Officer and, like a number of other persons who held that substantive rank, was required to work in some speciality area of QFES's overall operations. While he was performing in his specialist role he was not required to perform his general Station Officer duties. Further, the evidence did not provide any comparison between the duties, skills and responsibilities of a Station Officer compared to those undertaken by Mr Berrill and his colleagues as SEOs. As such, there was no basis upon which the Commission could determine that the work being undertaken by SEOs should be paid at a higher level than the classification at which they were already being paid.
[225]We are not prepared to grant the claim advanced by UFU. This is for a number of reasons, including:
· there has been no evidence given about the differences between duties undertaken by staff such as Mr Berrill and other Station Officers;
· it would be highly unusual for the Commission to decide to establish a specialist stream within a particular workforce, in the face of employer opposition to such step, during a s 149 arbitration;
· although Mr Berrill is currently working in a specialise role he, and his colleagues, could be transferred back to normal Station Officer duties at any point in time; and
· any changes in the nature of the work performed by a particular classification of employees (in this case Station Officers) should be assessed on a whole-of-service basis rather than by setting different wage rates for individual employees, or groups of employees, while they are assigned to a "specialist" role for a period of time.
Item 44 - Fire Investigators' pay level
[226]UFU seeks the creation of a new minimum pay rate for officers who undertake fire investigations (Fire Investigators) such that it is equivalent to that of a BAO1. In pressing this claim UFU argued that Fire Investigators received no additional remuneration to recognise their fire investigation training and expertise and that the nature of their role demands that they should receive additional compensation, equivalent to that paid to a BAO1.
[227]Evidence and material in support of the Union's claim was provided by Mr Christopher Markwell who is employed in the specialist role of Fire Investigation Officer. He said that QFES has a legislative obligation under the Fire and Rescue Service Act 1990 to conduct fire investigation activities to determine the origin and cause of fire incidents. These are conducted to identify unsafe equipment, work practices, building design or malicious activity within the community. The outcomes of such investigations are used, amongst other purposes, to develop public safety information packages to educate and increase awareness in fire safety practices within the community.
[228]The development of a formalised fire investigation capability began in 1994 under the predecessor of QFES. The Fire Investigation Research Unit (FIRU) was introduced in 1995 and renamed as the Fire Investigation Unity (FIU) in 2009. As a result of developments over the years FIU has designed and developed training courses to fulfil the requirement for fire investigations capability within QFES. The course is conducted in components across a 12 month time frame and consists of:
· a six month distance education component;
· a three week residential stage;
· a four month regional based practical investigation component; and
· a further one week residential stage.
[229]The training package has achieved national recognition to the degree that other State Fire Services regularly send participants to the FIU conducted course. The FIU course, which leads to successful participants receiving a Statement of Attainment, is recognised by the Charles Sturt University which grants a 50% credit towards the Graduate Certificate in Fire Investigation offered by that University and a 25% credit towards its Graduate Diploma in Fire Investigation.
[230]In addition to dealing with the history of fire investigation within QFES and the number of fire investigations undertaken during the 12 year period 2002-2012, Mr Markwell identified the nature of the duties undertaken by a Fire Investigator in Queensland, some of whom were engaged full-time in the role while others only undertook the work on an "as required" basis. At the time he prepared his affidavit there were 80 Fire Investigators in Queensland whose qualifications were contemporary, with approximately 30 of those having achieved their qualifications within the last three years. Since 1994 the FIU had trained approximately 120 QFES officers in fire investigation.
[231]Mr Markwell also provided a comparison between the training, assessment, role, responsibilities and duties of a BAO1 and opined that the comparison provided justification for UFU's claim that Fire Investigators should be paid at the same wage level as a BAO1. He also said that Mercer did not look at the work of Fire Investigation Officers in 2007, and that, as a result, the work of he and his colleagues had never been properly evaluated.
[232]UFU's claim that full-time Fire Investigators be paid at the equivalent to the BAO1 rate was opposed by QFES, primarily through the evidence of Mr Roche. He said that while QFES was undertaking work to develop an Advanced Diploma package it did not require an employee to have completed an Advanced Diploma in order to be a Fire Investigator. He also said that UFU's claim failed to take into consideration the additional benefits Fire Investigators received above that of a BAO1. For example, Fire Investigators such as Mr Markwell received:
· an allowance whilst on call;
· overtime at the rate time and one-half;
· a 2.5% flexibility allowance, which also compensated the Fire Investigator for the first two hours of overtime; and
· overtime penalties generally.
[233]By contrast, the payscales for a BAO1 differed in that they:
· received a 20% loading to be on call for 1 week in every 4, but received no additional payment for their attendance at any incident during the on call period; and
· did not receive payment for overtime worked outside their normal hours of duty being required, instead, to accrue TOIL at single time rates.
[234]In addition, Mr Roche strongly disputed the comparative table in which Mr Markwell set out the training requirements, duties and the like of a Fire Investigator compared to those of a BAO1. He said "these tables do not provide an accurate account of the training and assessment as well as the roles and responsibilities of the BAO1 and Fire Investigator. They appear to be an unbalanced appraisal and distorted to support his argument… I do not consider that there is any justification to suggest that the performance of that position has changed in recent years, and certainly not so as to warrant a reclassification to BAO1."
[235]Our consideration of Mr Markwell's evidence, as well as our exposure to him during the inspections, leads us to conclude that he is a very dedicated and enthusiastic officer who is totally committed to the role he undertakes. However, more than enthusiasm and dedication is required to meet the criteria against which we are required to evaluate the Union's claim for a higher wage rate to be paid to him and his two colleagues.
[236]On the evidence presented we have no way of being able to identify the relative value of the work undertaken by Fire Investigators, such as Mr Markwell, with that undertaken by BAO Level 1 employees. Further, we do not have any clear evidence before us which would enable us to evaluate any changes in work value for Fire Investigators since their last (reasonably significant) wage increase in 2007.
[237]Quite apart from these considerations, we are (as explained elsewhere in this Decision) reluctant to consider setting a new wage rate for an individual group of employees who, while appointed to perform a particular specialist role at the moment, appear to be, yet again, classified at the Station Officer level. As such, granting an individual rate of pay to such group would simply create a "silo" or "box" within the overall structure of QFES, with all of the problems that type of situation brings. Employees in silos or boxes are reluctant to be moved out of their specialist roles because their pay rates alter. Any reluctance by individuals to move back to their substantive level reduces the opportunities available to other employees to move into new and/or different roles. Rather than leading to an expansion of skills, including having trained back-up staff, across an organisation such as QFES, such a practice tends to lead to an overall reduction in skills which, while it might not have an immediate effect, can ultimately impact the overall responsiveness of the particular organisation.
[238]Accordingly, for the foregoing reasons, we formally refuse this claim.
Item 45 - Senior communications officers' paypoint
[239]UFU seeks the introduction of a new Communications Officer paypoint between levels FCO1.4 and FCO2.1 to apply to a new role described as "Senior Communications Officer". In advancing this claim UFU relied upon the evidence of four witnesses (Docherty, Girgenti, Carney and Taylor), stating that their evidence established:
· there is an operational gap between the highest level of Communications Officer (FCO1.4) and a Communications Supervisor (FCO2.1);
· a number of more experienced Communications Officers are increasingly being called upon to perform tasks which fall outside of their role description;
· introduction of the senior communications role will prepare Communications Officers to advance to Supervisor or acting manager levels; and
· a number of centres did not have Supervisors as a result of which senior Communications staff, because of their significant experience, became "de-facto" Supervisors, although not appointed as such.
[240]The UFU claim was opposed by QFES which argued:
· it was the witnesses' own assessment that the work they performed went beyond the requirements of their position description;
· the additional paypoint would create a supervisory role which each witness understood QFES did not want and had assessed as not been required; and
· each of the witnesses had successfully performed the role of acting manager in the past, and been remunerated for working at that level, notwithstanding the absence of the claimed additional paypoint.
[241]In addition, QFES noted that the witnesses (and UFU) still pressed for the introduction of the new paypoint notwithstanding their knowledge that QFES had assessed the need for a supervisory position of the kind claimed and had decided that no position of that type was required.
[242]Notwithstanding the passion with which each of the witnesses who gave evidence on this topic pressed for the new classification and paypoint to be introduced, we are not prepared to interfere with the decision taken by QFES, after assessment, that a position of the type claimed is not required in the relevant communications centres.
[243]It is part and parcel of any classification structure that there will be a spread of skills and experience between employees classified at the same level. In that respect, it is a natural consequence of that circumstance that some more "senior" people in a particular role will be called upon to exercise additional responsibilities or provide guidance and/or some "direction" to less experienced staff from time to time and as circumstances dictate.
[244]However, that fact does not justify a higher rate of pay for the people concerned. This is because pay rates usually reflect the range of skills and/or experience of the people who undertake a particular role. If this was not the case then two, three or more classification levels might be necessary to cover the range of skills and experience which are held by individual employees ostensibly performing the same role. While industrial tribunals might have adopted that approach in the past (where, for example, the Metal Trades Award 1952 had over 350 individual classifications of employee) that approach has long since passed (the metal industry award now only has 14 classifications).
Item 46 - Employment security
[245]QFES opposes UFU's claim to retain clauses 2.3.1, 2.3.3 and 2.3.4, respectively, from the 2009 Agreement on the basis that such provisions offend s 691C of the IR Act.
[246]While not obviously apparent, in that the term “industrial instrument” in the IR Act does not include a Determination, the adoption (at s 691A) of the definition of the same term from the Public Service Act 2008 has the effect that s 691C also applies to Determinations made under s 149. Accordingly, we are required to refuse UFU’s claim on the basis the provisions it proposes be included in the 2013 Determination are non-allowable.
Item 47 - Permanent employment
[247]For reasons identical to those recorded in the previous Item we refuse UFU's claim that clause 2.4 - Permanent Employment of the 2009 Agreement be replicated in this Determination.
Item 48 - Work and family life balance
[248]UFU seeks to replicate the provisions of clause 2.5 of the 2009 Agreement in the Determination. Relevantly, this clause provides:
"To balance work and family life the following provisions are available subject to service delivery requirements and financial considerations:
·Extension of purchased leave arrangements to purchase up to six (6) weeks purchased leave per year; and
·Introduction of half pay recreation leave subject to Chief Executive Officer discretion."
[249]The inclusion of such provision is opposed by QFES which relies upon the evidence of Mr Donovan to the effect that the employer is opposed to the inclusion of provisions which restrict its ability to legitimately manage its business and to implement reforms consistent with Government requirements. In particular, QFES is opposed to the inclusion of matters, such as the clause claimed by UFU, which might need to be adjusted from time to time as circumstances require.
[250]Given QFES's objection to the inclusion of this provision and the absence of any evidence in relation to it we are not inclined to include it in 2013 Determination. This is because we have no way of knowing whether such provision is a reflection of existing policies, in which case there will be no detriment to the employees covered by the Determination, or whether they were provisions peculiar to the 2009 Agreement. If it is the latter situation, the employer's agreement to the inclusion of such provisions has now been withdrawn.
Item 49 - Conversion of casual communications officers to permanent part-time
[251]UFU also seeks the inclusion of the provisions of clause 6.7 of the 2009 Agreement which records QFES's commitment to maximising permanent employment and job security and other matters designed to increase permanent employment. The inclusion of such items is opposed by QFES on the basis they offend the provisions of s 691C of the IR Act.
[252]For the reasons recorded under item 46 we refuse the claim. In any event, we also note that the provisions sought to be continued are largely unenforceable because they are generally statements of intention rather than ones which bestow actual rights on employees.
Item 50 - Extra - ordinary hours of duty
[253]UFU also seeks to include clause 4.7.5 from the 2009 Agreement in the Determination. The introductory paragraph of this provision records that it is "an interim arrangement pending the development of a Departmental or whole-of-government employment arrangement relating to emergency services deployments."
[254]Unfortunately, no evidence was produced by either party in connection with this matter. As such, we are not able to establish whether it is necessary to include comparable provisions in the 2013 Determination or whether the other provisions of the Determination will suffice to deal with any emergency deployment.
[255]In the absence of any agreement between the parties in relation to this matter we are not presently inclined to include it in the Determination. However, if the parties agree to the inclusion of the previous provisions, or some modification to them, we are prepared to include them in the ultimate Determination we will issue.
Item 51 - Consultation and dispute resolution (see Item 4)
Finalisation of the Determination
[256]As mention in paragraph [124] above, we direct the parties to confer about finalising the terms of the proposed 2013 Determination, in light of the contents of this Decision, and to report back to this Full Bench on a date to be set in mid-late February 2015. The dates of that Report Back Hearing will be advised to the parties in early January 2015.
[257]Clauses which are agreed between the parties or which are the subject of clear decision by the Commission (other than wage increases) will have an operative date of Sunday 15 February 2015. Clauses which require further discussion and/or which will be the subject of report back in mid-late February, as discussed immediately above, will have an operative date as agreed between the parties or by later decision of the Commission, whichever is relevant.
[258]We determine and Order accordingly.
| Sick Relief Callbacks per Day and Night (and Totals) – Raw Data | |||||||||||||||
| 2008-2009 | 2009-2010 | 2010-2011 | 2011-2012 | 2012-2013 | |||||||||||
| Day | Night | Total | Day | Night | Total | Day | Night | Total | Day | Night | Total | Day | Night | Total | |
| Monday | 78 | 50 | 128 | 60 | 28 | 88 | 182 | 131 | 313 | 156 | 104 | 260 | 184 | 158 | 342 |
| Tuesday | 83 | 48 | 131 | 56 | 57 | 113 | 178 | 144 | 322 | 150 | 134 | 284 | 194 | 151 | 345 |
| Wednesday | 48 | 73 | 121 | 56 | 67 | 123 | 196 | 164 | 360 | 168 | 116 | 284 | 190 | 138 | 328 |
| Thursday | 54 | 70 | 124 | 49 | 66 | 115 | 176 | 194 | 370 | 195 | 152 | 347 | 185 | 196 | 381 |
| Friday | 81 | 110 | 191 | 58 | 114 | 172 | 187 | 227 | 414 | 209 | 258 | 467 | 197 | 262 | 459 |
| Saturday | 124 | 243 | 365 | 99 | 196 | 295 | 248 | 365 | 613 | 250 | 436 | 686 | 287 | 405 | 692 |
| Sunday | 145 | 70 | 215 | 124 | 70 | 194 | 290 | 181 | 471 | 265 | 178 | 443 | 289 | 216 | 505 |
| TOTAL | 613 | 664 | 1275 | 502 | 598 | 1100 | 1457 | 1406 | 2863 | 1393 | 1378 | 2771 | 1526 | 1526 | 3052 |
1