Ergon Energy Corporation Limited & Ors v The Electrical Trades Union of Employees Queensland [2006] QIRC 38 (2006) 181 QGIG 384

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 277 - power to grant injunctions Ergon Energy Corporation Limited and others AND The Electrical Trades Union of Employees Queensland (B/2006/15) VICE PRESIDENT LINNANE COMMISSIONER BROWN COMMISSIONER THOMPSON 2 March 2006 Application for injunctive relief - No contravention of certified agreements found - Application dismissed - Industrial Relations Act 1999, s. 277(1)(b). DECISION [1] This is an application by Ergon Energy Corporation Limited, Ergon Energy Pty Ltd, Energex Limited, Energex Retail Pty Limited, Service Essentials Pty Limited, SPARQ Solutions Pty Limited and Queensland Electricity Transmission Corporation (Powerlink Queensland) (collectively referred to as the "Employers") seeking an injunction directed to The Electrical Trades Union of Employees, Queensland (ETU) under s. 277(1)(b) of the Industrial Relations Act 1999 (Act). The injunction seeks to restrain the ETU from contravening or continuing to contravene the following certified agreements which are binding on the Employers:  clause 1.7 and clause 3.8.1 of the Ergon Energy Certified Agreement 2005;  clause 1.9 and/or clause 3.18.1(c)(ii) of the Energex, SEPL and SPARQ Certified Agreement 2005; and  clause 5 and/or clause 23.2.1 of the Working At Powerlink 2005 Certified Agreement (collectively referred to as the "Certified Agreements". [2] The Employers contend that in bringing an application to amend the Electricity Generation, Transmission and Supply Award - State 2002 (Award) (A/2005/115) to insert an Electrical Licensing Allowance the ETU has brought an "extra" or "further" claim within the meaning of the abovementioned agreements. Matter A/2005/115 is scheduled to commence hearing on 13 March 2006 and an urgent decision is sought prior to the Employers having to file material in that matter. [3] At the commencement of the hearing in this matter the ETU sought, and was granted leave, to amend its claim in A/2005/115 so that the claim now seeks the following: "Electrical Licensing Allowance All employees who are required to hold an electrical license for the performance of their work shall be paid a licensing allowance as follows: Electrical licensing allowance $19.00 per week This allowance shall be payable for all purposes of this Award. Where there is a dispute between the parties about the requirement for an employee to hold an electrical license for the performance of their work, such dispute will be dealt with in accordance with the provisions of clause 3.2 of this Award (grievance and dispute settlement procedures). Provided that this sub-clause shall not take affect in relation to Ergon Energy Corporation Limited and Ergon Energy Pty Ltd until the Ergon Energy Certified Agreement 2005 – CA No. 140 of 2005 is terminated, or until clause 3.8 of the Certified Agreement ceases to have effect at law, whichever is the soonest. Provided that this sub-clause shall not take effect in relation to ENERGEX Limited, Energex Retail Pty Ltd, Service Essentials Pty Ltd, SPARQ Solutions Pty Ltd until the Energex SEPL and SPARQ Certified Agreement 2005 – CA No. 276 of 2005 is terminated, or until clause 3.18.1 of the Certified Agreement ceases to have effect at law, whichever is the soonest. Provided that this sub-clause shall not take effect in relation to Queensland Electricity Transmission Corporation trading as Powerlink Queensland until the Working at Powerlink 2005 Certified Agreement – CA No. 256 of 2005 is terminated, or until clause 23.2.1 of the Certified Agreement ceases to have effect at law, whichever is the soonest.". [4] The claim thus does not seek to have any effect until the termination of the Certified Agreements or, alternatively, the EDSD Allowance clauses in the respective Certified Agreements cease to have effect. -- 1 of 4 -- 2 [5] Objection was taken by the Employers to various paragraphs contained in the Affidavit of Peter Simpson (Exhibit 6). We have decided to delete paragraphs 12 to 31, paragraphs 38 to 42, paragraphs 45 to 54 and paragraph 56 of that Affidavit and have not had regard to those paragraphs in deciding this application. [6] Essentially the argument of the Employers can be summarised as follows:  the Certified Agreements all have nominal expiry dates in 2008;  the claim in A/2005/115 is an extra claim as provided for in clause 1.7, clause 1.9 and clause 5 of the Certified Agreements;  the claim in A/2005/115 is a further claim as provided for in clause 3.8.1, clause 3.18.1(c)(ii) and clause 23.2.1 of the Certified Agreements;  the ETU is a party to the Certified Agreements and is bound by the Certified Agreements;  the Certified Agreements make no provision for the payment of an "electrical licensing allowance" which is payable on the terms and conditions prescribed in the claim in A/2005/115;  an "extra claim" or "further claim" is a claim for a benefit or entitlement that is in excess of the matters to which the employees are entitled by reason of the arrangements established by the making and certification of the Certified Agreements;  the issue of the "electrical licensing allowance" was not a reserved matter for negotiation or consideration during the life of the Certified Agreements and therefore does not fall within the contemplated scope of the Certified Agreements;  to the extent that the "electrical licensing allowance" sought in A/2005/115 bears some similarity to the "electrical safety allowance for work covered by Queensland Electrical Safety Legislation by way of compliance and accountability" then such a payment was expressly agreed by clause 3.8.1, clause 3.18.1(c)(ii) and clause 23.2.1 of the Certified Agreements and those clauses specifically provide that there will be no "further claims"; and  if the claim in A/2005/115 is within the scope of clause 3.8.1, 3.18.1(c)(ii) and clause 23.2.1 of the Certified Agreements then it has already been dealt with in the Certified Agreements and cannot be the subject of further claims. [7] The ETU’s position is summarised as follows:  the application in A/2005/115 does not constitute a failure to comply with the Certified Agreements;  the application in A/2005/115 will, if granted, only have effect if, and when, the Certified Agreements are terminated or otherwise clause 3.8.1, clause 3.18.1(c)(ii) and clause 23.2.1 cease to have effect and therefore there is no "claim" that arises during the life of the Certified Agreements;  it does not dispute that the Employers are bound by and are parties to the Certified Agreements, that each of the Certified Agreements are within their nominal term, that the ETU is a party to each of the Certified Agreements and is bound thereby and that both the Employers and the ETU are bound by the Award;  the terms "extra claim" and "further claim" may be used interchangeably and that neither term prevents the ETU from making any application to amend the Award during the currency of the Certified Agreements;  the Certified Agreements are not comprehensive or conclusive of all issues between the parties, e.g. the Application clauses in the Certified Agreements specifically provide for the provisions of the Award to apply where the Certified Agreements are silent on matters and each of the Certified Agreements provide for the express ability to make other arrangements in relation to terms and conditions of employment;  the "no extra claims" clause in each of the Certified Agreements is thus to be construed as preventing "extra claims" in relation to the matters forming part of each of the Certified Agreements;  if the Full Bench were to accept the Employers' primary argument, i.e. that the "electrical licensing allowance" does not fall within the contemplated scope of the Certified Agreements or is not directed at matters covered by the Certified Agreements then there is nothing to prevent the Full Bench hearing and determining A/2005/115: see Australian Industry Group v Automotive, Food, Metals, Engineering, Printing -- 2 of 4 -- 3 & Kindred Industries Union [2003] FCAFC 183 and Brisbane City Council v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Employees, Queensland (2002) 171 QGIG 78. It then follows that the ETU is able to proceed with A/2005/115: see Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (2003) 173 QGIG 278. In this regard there is no agreement processes to be followed by the ETU in making such a claim;  the ETU, however, does not concede that the proposed "electrical licensing allowance" referred to in A/2005/115 is not covered by the Certified Agreements. The ETU submit that the following provision in each of the Certified Agreements: "[a]ny allowance that might otherwise be paid for Electrical Safety Allowance for work covered by Queensland Electrical Safety Legislation by way of compliance and accountability has been absorbed in the EDSD Network Recovery Allowance and there will be no further claims", is the allowance that is sought in A/2005/115;  the "electrical licensing allowance" is not an "extra" or "further" claim as it is not in excess of, or additional to, existing entitlements and the purpose of the EDSD provision in each of the Certified Agreements was to prevent further claims against the Employers for safety allowances. Any "electrical licensing allowance" then would be absorbed by the EDSD allowance and not in excess of it. The Full Bench notes that whilst the Certified Agreements continue to operate, the minimum EDSD allowance payable is $54.37 per week rising to $110.55 per week from the pay period commencing 5 February 2007. The "electrical licensing allowance" sought in A/2005/115 is an amount of $19.00 per week;  the claim in A/2005/115 is not, to use the terminology of the Employers, "a claim for a benefit or entitlement that is in excess of the matters to which the employees are entitled by reason of the arrangements established by the making and certification of the certified agreements";  the claim in A/2005/115 is for an "electrical licensing allowance" for all employees "who are required to hold an electrical licence for the performance of their work". This is said to meet the description in the Certified Agreements of an "Electrical Safety Allowance for work covered by Queensland Electrical Safety Legislation by way of compliance and accountability". The allowance thus attaches to situations where the performance of work requires a licence and not to the fact of having a licence. Thus the allowance sought in A/2005/115 would be absorbed by the EDSD allowance even if it were sought to apply during the currency of the Certified Agreements and would not be a benefit or entitlement in excess of the EDSD allowance;  A/2005/115 is not an "extra claim" but merely a mechanism by which an existing entitlement is reflected in the Award;  a purposive approach to the construction of the EDSD clauses in the Certified Agreements supports the proposition that the Award amendment application in A/2005/115 can be made: see Queensland Nurses’ Union of Employees v Longreach and District Aged Peoples’ Inc trading as Pioneer’s Hospital/Nursing Home (No 2) (2002) 170 QGIG 212 and Queensland Public Sector Union v Department of Corrections (2002) 170 QGIG 422. The "mischief" sought to be remedied by the EDSD provision was the possibility of becoming liable for an additional safety allowance; and  given the amendment to the claim in A/2005/115, no claim arises until after the termination of the Certified Agreements, therefore, there is no non-compliance with the terms of the Certified Agreements and there is no jurisdiction in the Commission under s. 277 of the Act to compel compliance with an industrial instrument. Conclusion [8] If the position adopted by the Employers is correct, then no amendment to an award could be sought during the currency of a certified agreement where the certified agreement contains a typical type of "no extra claims" clause. Yet s. 129(1) of the Act specifically enables the Commission to include in an award, provisions that are based on a certified agreement, if satisfied that the provisions are consistent with principles established by the full bench that apply for deciding wages and employment conditions and are not contrary to the public interest. Section 129(1) does not require the consent of all parties. Section 129(2) provides that the Commission must include in an award, provisions that are based on a certified agreement if the parties to the certified agreement agree, and, the parties to the certified agreement are bound by the award. A number of such applications have been granted. In the 1999 State Wage Case the Full Bench considered the then s. 129 (which was similar to the current s. 129(1)) when dealing with Principle 10 saying "[s]ubject to s. 129 the Commission may include in an award, provisions that are based on a certified agreement whether or not there be consent by all parties to be -- 3 of 4 -- 4 bound". Whilst s. 129 of the Act and the comments of the 1999 State Wage Case Full Bench do not deal with certified agreements incorporating "no extra claims" clauses it is the experience of the Members of the Full Bench that most, if not all, certified agreements contain a "no extra claims" clause. [9] The amendment to the Queensland Rail Award - State 2003 providing for an "electrical licensing allowance" was released on 11 July 2005 with an operative date of 31 May 2005 following a decision released on transcript on 11 July 2005. The "electrical licensing allowance" in Queensland Rail had a history going back to 12 November 2003 with the notification of an industrial dispute in this jurisdiction. By July 2004 the matter was before Commissioner Hoffman in the Australian Industrial Relations Commission under s. 111A of the Workplace Relations Act 1996. Commissioner Hoffman delivered his recommendation on 9 May 2005 wherein he found that the "changes created by the Electricity Safety Act 2002 were of sufficient significance to warrant the granting of a new all purpose allowance of $19.00 per week". Ultimately there was an application in this Commission to have the allowance inserted into the Queensland Rail Award - State 2003. The ETU was the applicant in the proceedings before Commissioner Hoffman. [10] When negotiating the Certified Agreements, the ETU, and we suspect, the Employers, were well aware of what was occurring with the "electrical licensing allowance" in Queensland Rail. The Ergon Energy Certified Agreement 2005, the first of the Certified Agreements to be certified, was signed by most parties on 4 or 5 April 2005. It had been voted upon by employees earlier than this date. Commissioner Hoffman’s decision was pending at this time. The Ergon Energy Certified Agreement 2005 was ultimately certified on 30 May 2005 following hearings by a Full Bench on the issue of the EDSD allowance. [11] It is therefore not surprising that the title “electrical licensing allowance” was not specifically referred to in the Certified Agreements. Rather the terminology used was "[a]n allowance that might otherwise be paid for Electrical Safety Allowance for work covered by Queensland Electrical Safety Legislation by way of compliance and accountability" was used in the Certified Agreements. [12] We therefore agree with the submission of the ETU that the claim in A/2005/115 for an "electrical licensing allowance" for all employees "who are required to hold an electrical licence for the performance of their work" meets the description in the Certified Agreements of an "Electrical Safety Allowance for work covered by Queensland Electrical Safety Legislation by way of compliance and accountability". Thus the allowance sought in A/2005/115 is one that is covered by the EDSD allowance. [13] The claim in A/2005/115 is not, in our view, an "extra" or "further" claim as the amount sought in that application is $19.00 per week whereas the EDSD is substantially higher. As the Employers contend in their written submission, an "extra claim" or "further claim" is a claim for a benefit or entitlement that is in excess of the matters to which the employees are entitled by reason of the arrangements established by the making and certification of the Certified Agreements. The claim in A/2005/115 is, in our view, not such a claim. [14] Further the claim is that the Award provision is not to have effect until the respective Certified Agreements are terminated or the respective EDSD clauses cease to have an effect. If the claim were to be granted, there would be no obligation on the Employers to pay anything other than the terms and conditions contained in the respective Certified Agreements until such time as they are terminated. [15] In the circumstances we determine that, in seeking to have matter A/2005/115 heard and determined at this time, the ETU has not contravened, and is not contravening, any of the provisions of the respective Certified Agreements. [16] We dismiss the application for an injunction. Order accordingly. D.M. LINNANE, Vice President. D.K. BROWN, Commissioner. J.M. THOMPSON, Commissioner. Hearing Details: 2006 28 February Appearances: Mr A. Herbert of Counsel, instructed by Deacons for Ergon Energy Corporation Limited, Ergon Energy Pty Ltd, Energex Limited, Energex Retail Pty Limited, Service Essentials Pty Limited, SPARQ Solutions Pty Limited and Queensland Electricity Transmission Corporation (Powerlink Queensland). Ms T. Butler of Hall Payne Lawyers for The Electrical Trades Union of Employees Queensland. Released: 2 March 2006 -- 4 of 4 --