Wide Bay Water Corporation v Employees of Wide Bay Water Corporation
[2015] QIRC 103
•28 May 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wide Bay Water Corporation v Employees of Wide Bay Water Corporation [2015] QIRC 103 |
PARTIES: | Wide Bay Water Corporation And Employees of Wide Bay Water Corporation |
CASE NO: | CA/2015/6 |
PROCEEDING: | Application for Certification of Certified Agreement |
DELIVERED ON: | 28 May 2015 |
HEARING DATE: | 5 May 2015 |
MEMBERS: | Commissioner Black |
ORDER: | Agreement certified subject to undertakings |
| CATCHWORDS: | INDUSTRIAL LAW - CERTIFICATION OF AGREEMENT - Application for certification of agreement - undertakings - Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015 |
| CASES: | Industrial Relations Act 1999 s 143, s 144, s 145, |
| APPEARANCES: | Mr S Blaney for the Local Government Association of Queensland on behalf of the Wide Bay Water Corporation, the Applicant; |
Decision
Background
An application by the Wide Bay Water Corporation for certification of the Wide Bay Water Corporation State Certified Agreement 2015 was lodged with the Industrial Registry on 24 April 2015. It was proposed that the 2015 Agreement replace the Wide Bay Water Corporation State Certified Agreement 2013.
The application was listed for hearing on 5 May 2015 when appearances were entered by the Local Government Association of Queensland (LGAQ) on behalf of the applicant, the Australian Workers' Union of Employees, Queensland (AWU), Queensland Services, Industrial Union of Employees (QSU), and the Construction, Forestry, Mining & Energy Industrial Union of Employees, Queensland (CFMEU). These employee organisations were entitled to be heard pursuant to s 155 of the Act. These organisations submitted that if the Commission ultimately decided to certify the proposed agreement, they would seek to be bound by the agreement pursuant to s 166(2) of the Industrial Relations Act 1999 (the Act).
While the Plumbers & Gasfitters Employees' Union Queensland, Union of Employees (PGEU) and the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) did not appear in the proceedings, they notified the Commission of their wish to be bound by the agreement pursuant s 166(2) of the Act if a decision were made to certify the agreement.
The QSU in its submissions drew attention to a number of provisions in the proposed agreement, which if not removed or modified, may preclude certification having regard to the provisions of s 156 and s 157 of the Act. The AWU informed the Commission that if a decision were made to certify the agreement, it sought to be bound by the agreement. The CFMEU took the same objections to certification as those raised by the QSU and in addition submitted that the agreement did not satisfy the no disadvantage test.
The proceedings concluded on the basis that the decision on whether to certify the agreement was reserved. Notwithstanding the reserved decision, the Corporation and the unions were encouraged to confer to try to resolve their differences on the basis that if an agreement on undertakings were reached, this agreement would be taken into account in the decision to be made about certification.
Subsequent to the hearing, the Commission was informed that, after discussions between the LGAQ and the interested unions, a position had been reached where the employer was prepared to provide certain undertakings. The terms of those undertakings satisfied the concerns of the interested unions.
Undertakings
The employer has offered to provide the following undertakings, or undertakings to this effect, to facilitate certification of the proposed agreement:
Undertaking One
Clause 1.3.1 of the Agreement (Application) shall be read and applied in the following terms:
“This Agreement applies to the Employer and its employees in operational, trade, administrative, technical and professional roles, but shall not apply to the employment of the Chief Executive Officer, Directors, or Managers employed pursuant to a written contract of employment where:
a) the contract of employment states that the Agreement will not apply to the terms and conditions applicable to the employee; and
b) the terms and conditions of the contract did not result, on balance, in a reduction of the overall terms and conditions of employment that would have been applicable to the employee under this Agreement.”
Undertaking Two
Clause 2.8 of the Agreement (Probationary Period) shall be read and applied in the following terms:
“The Employer will employ all employees other than casual employees on an initial probationary period. The initial probationary period shall be for a period of three (3) months.”
Undertaking Three
Clause 5.2.8 of the Agreement (Fitness for Duty) shall be read and applied in the following terms:
"An employee who has been absent for a continuous period of three (3) months or has exhausted paid sick leave entitlements, is required to provide a medical report from their doctor which details the employee’s prognosis and the likelihood of a return to work to their pre-injury/illness position.
The Employer may:
· allow the employee to continue on sick leave with a requirement for a further medical report in three (3) months;
· facilitate a return to work program;
· with the written Agreement of the employee, fill the employee’s position with a view to redeploying the employee on their return to work; or
· refer the employee for a functional capacity assessment and/or a medical review by the Employer’s appointed medical practitioner.
After an employee has been absent for a continuous period of six (6) months the Employer will review the case and determine an appropriate course of action from the options above.
To assist the employee in these circumstances the Employer may pay any remaining sick leave balance. The total period of continuous absence and payment in lieu of sick leave shall not exceed thirty two (32) weeks.
With the Employer’s approval, an employee who has exhausted all of their sick leave may access other forms of leave such as annual or long service leave.
The Employer is not required to create a position for an employee who is unable to return to their substantive position on their return to work, however may consider suitable redeployment options in the first instance before termination on incapacity grounds."
Undertaking Four
Clause 6.2 of the Agreement is read and applied in the following terms:
6.2Transmission of business
6.2.1 This clause applies where the Employer enters into shared services arrangements with the Fraser Coast Regional Council (Council) or where it is proposed to wind up, deregister or otherwise dissolve the Employer.
6.2.2 Transferring Employee per s324 Local Government Regulation 2012
Where work undertaken by an employee of the Employer is required to be undertaken for Council by that employee (transferring employee), then Council will transfer the employee:
(a)into an equivalent position that maintains their existing conditions of employment; and
(b)within a reasonable geographic proximity to their previous place of employment.
Employment of the person by Council under this clause does not:
1.affect the employee’s benefits, entitlements or remuneration; or
2.prejudice the employee’s existing or accruing rights to superannuation or recreation, sick, long service or other leave entitlements; or
3.interrupt continuity of service; or
4.constitute a termination, retrenchment or redundancy; or
5.entitle the transferring employee to a payment or other benefit merely because the person is no longer employed by the Employer.
To remove any doubt, an employee of the Employer is taken to be employed by Council on the same terms and conditions as applied before the transfer.
6.2.3 Displaced Employee post transfer per s 324 Local Government Regulation 2012
(a)Where work undertaken by an employee is no longer required to be undertaken and the employee (displaced employee) who performs that work, becomes redundant as a result, then the Council will wherever possible and practicable, endeavour to offer the employee a suitable position:
1.that takes into account their skill and experience and as far as practicable, maintains their status and conditions of employment;
2.at the same remuneration level or by agreement at one level lower than the same remuneration level (but only on the basis of salary maintenance for the first four months of the employment);
3.within reasonable geographic proximity to their previous role;
4.with recognition of continuity of previous services with the Employer; and
5.with transfer of existing accrued leave entitlements as at the date of transfer.
For the purpose of this clause, a reasonable geographic proximity is where an employee is required to travel less than 20 km each way (in addition to their existing km travelled between home and their previous workplace) to their new workplace.
To the extent that the provisions in contention were capable of precluding certification of the agreement in the first instance, I am satisfied that the undertakings given remedy any deficiency and remove any barrier to the certification of the agreement.
No Disadvantage Test
It was the CFMEU view that the proposed agreement could not satisfy the no disadvantage test. Their concerns were directed at the proposed clause 4.1 (Christmas Close Down); clause 4.4 (Specific Project/Tasks); and clause 4.5 (Span of Ordinary Hours).
Clause 4.1 in the proposed agreement defines the arrangements to be applied in respect to what is understood to be an annual close down of operations over the Christmas period. The CFMEU has taken issue with the fact that while the proposed agreement specifies that two weeks' notice must be given to employees who are required to work during the close down, it does not prescribe that notice of the close down be given to employees generally. If the Christmas close down were a recurring event, I could understand that it may not be necessary to formally inform employees each year that the close down would eventuate. Hence it is doubtful in these circumstances that any disadvantage arises, notwithstanding that the Award provides for 90 days' notice to be given. However the LGAQ advised that if the certified agreement is read in conjunction with the Award, then employer would be obliged to comply with the 90 day notice period, given that the agreement was silent in this particular respect.
Clause 4.4 in the proposed agreement facilitates the employer's response in the event of special projects or special or emergent circumstances. According to the LGAQ, the provisions complained about have been drawn from the Corporation's current certified agreement, do not preclude the certification of the agreement, and were not matters in contention during the bargaining process. Further on my review clause 15.3(c) of the Award includes a provision which is similar to that included in clause 4.4 of the proposed agreement. Beyond this, there is nothing to preclude day workers altering their status to shift workers, either by mutual agreement or subject to reasonable notice.
The CFMEU argued that afternoon shift workers may be disadvantaged by the operation of the proposed clause 4.4. But I think the provisions of clause 4.4 are intended to be applied to day workers not shift workers. If workers were already employed as shift workers there would be no need to contemplate the changes to working arrangements which are allowed under clause 4.4, such as employees working over all seven days of the week and employees working at night. Further the proposed agreement makes no specific provision for shift workers and therefore it is presumed these provisions are covered by the underpinning Award.
In terms of the discussion about ordinary working hours, it is noted that changes to the spread of hours could be effected under the flexible work arrangements set out in clause 4.7 of the proposed agreement and that these provisions are similar to the individual flexibility arrangements set out in clause 6 of the underpinning Award. It is also noted that clause 15.3(a)(ii) of the Award allows the spread of hours to be altered by agreement between the employer and the employee.
Clause 5.5 of the proposed agreement allows for ordinary hours to be worked between 5.00 am and 7.00 pm in particular operational areas. The Award provisions provide for a considerable variation in the spread of hours for the different occupational groups, but the standard spread of hours is between 6.00 am and 6.00 pm. In regard to standard hours, the award provides that the spread of ordinary hours may be altered by agreement between the employer and employee. In the "engineering" group the spread of hours is specified as 6.00 am to 6.00 pm but this spread may be altered by up to one hour at either end by agreement between the employer and the majority of employees involved. There is no specified spread of hours for "water and sewerage treatment plant" employees. While the CFMEU drew attention to the street sweepers and related classifications receiving a loading of 25 per cent for ordinary hours worked before 6.00 am or after 6.00 pm, no starting or ceasing times are specified and they are able to be determined by the employer based on the requirement of the work. Given the capacity under the award for agreements to be reached to vary the spread of hours, and given the provisions of the award relating to relevant occupational groups, and given a general comparison between provisions, I am not of a view that the no disadvantage provisions of the Act preclude certification of the agreement.
In my view, following a consideration of the relevant provisions in both the Award and the proposed agreement, and after an overall review of the provisions of the proposed agreement compared to the provisions of the Award, I am satisfied that the no disadvantage test has been met.
Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015
On 15 May 2015 I caused an email to be sent to the LGAQ and interested unions inviting submissions in respect to the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015, and in particular, to the effect of particular transitional provisions of the Bill that relate to the status of certified agreements, including s 847, s 849 and s 850.
The LGAQ on behalf of the employer took the view that "the potential effect of this Bill, if and when it is enacted into law, is not a matter which this Commission can have regard pursuant to s 156 or s 157 in determining whether to certify the Agreements presented." The LGAQ requested that the Commission proceed to certify the agreement from 5 May 2015.
The QSU informed the Commission that their concerns about the content of the proposed agreement had been addressed by the undertakings provided. It was accepted that the provisions of s 156 of the Act are mandatory and that the Commission must certify an Agreement provided the requirements of the Act have been met. Despite this the QSU advised that, having regard to the provisions of the Industrial Relations Amendment Bill presently before the Queensland Parliament, if the Commission were of the view that there was a residual discretion available to it to defer certification of the Agreement, that was a matter for the Commission and the QSU had no submissions to make in relation to it. The QSU submission was supported by the AMEPKIU.
While the AWU noted the contents of the Industrial Relations Amendment Bill, it submitted that the relevance of the Bill to any determination that the Commission had to make about certification of the proposed agreement, was a matter for the Commission to decide. The AWU also expressed concern that any delay in certification may further delay the payment of wage increases provided under the agreement and suggested that the employer should take administrative action to resolve the matter. However I don’t think that this course of action is reasonably open to the employer given that the contents of the agreement represent a consensus about a range of matters all of which would be expected to be implemented concurrently.
The CFMEU submitted that the Commission should not certify the proposed agreement if there was a prospect that any decision to certify may be voided in the event that the Bill were enacted in its current form. The CFMEU suggested that the Commission was bound by overriding principles to make decisions in a cost effective way and that these principles mitigated in favour of a decision declining to certify the agreement. However no other party or interested union advocated this course of action and I am not persuaded to so proceed.
Decision
I have determined to certify the proposed agreement provided that the terms of the agreement are read and applied subject to the undertakings set out in this decision. The implications of the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015 for the future operation of the agreement, if made, are understood by those participating in the proceedings. Notwithstanding this, the applicant pressed for certification of the proposed agreement, and this course of action was not opposed, except in the case of the CFMEU.
It is also a relevant consideration that clause 1.5 of the proposed agreement provides that the agreement is to be read and interpreted in conjunction with the Queensland Local Government Industry Award - State 2014. It is possible therefore, that if the Award is varied at some time in the future pursuant to s 842 (2) of the Bill, that some or all of the new provisions included in the Award would be incorporated in the agreement pursuant to clause 1.5. Finally any decision to defer certification of the proposed agreement will mean that employees subject to the agreement will experience further delays in the payment of the prescribed pay increases.
The decision of the Commission is to certify the Wide Bay Water Corporation State Certified Agreement 2015 made between the Council and its employees. Section 156 of the Act provides that the Commission must certify an agreement and it must not certify an agreement unless the provisions of s 143, s 144 and s 145 have been met. Further, the agreement must also pass the no disadvantage test as defined in s 160 of the Act. Having considered the submissions made, and having read the application including the affidavit of Peter William Care, Chief Executive Officer of the Wide Bay Water Corporation, I find that the proposed agreement meets the requirements of the relevant sections of the Act and will be certified in the terms proposed except to the extent that those terms have been modified by the undertakings provided. These undertakings will form part of the agreement.
The applicant sought that the proposed agreement be certified from 5 May 2015 which was the date of hearing of the application. However pursuant to s 164 of the Act, the date of operation of the agreement is the date that it is certified. At the end of the hearing on 5 May 2015 my decision on whether the application for certification of the proposed agreement would be granted, was reserved. The decision to certify the agreement is made on 28 May 2015 and this date therefore becomes the date of operation of the agreement.
The agreement that has been made replaces the Wide Bay Water Corporation State Certified Agreement 2013. The new agreement operates from 28 May 2015 and has a nominal expiry date of 15 March 2018.
Pursuant to s 166(2) the following unions are bound to the agreement:
The Queensland Services Industrial Union of Employees;
The Australian Workers’ Union of Employees, Queensland;
The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland;
The Plumbers and Gasfitters Employees’ Union of Queensland; and
The Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland.
I determine and Order accordingly.
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