Consulting Surveyors Queensland Industrial Organisation of Employers v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers & Ors [2005] QIRC 100 (2005) 179 QGIG 668

[Extract from Queensland Government Industrial Gazette, dated 5 August, 2005, Vol. 179, No.16, pages 668-673] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – making, amending and repealing awards Consulting Surveyors Queensland Industrial Organisation of Employers AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B248 of 2005) SURVEYING (PRIVATE PRACTICE) AWARD – STATE DEPUTY PRESIDENT BLOOMFIELD COMMISSIONER EDWARDS COMMISSIONER THOMPSON 25 July 2005 Application to amend Award – 30% wage increase proposed – Application to dismiss made pursuant to s. 331(b)(ii) as not in the public interest – Witness evidence – Critical shortage of qualified surveyors – Increasing unreliability of the cadastre – Application under s. 331(b)(ii) dismissed – Actually in public interest to consider application on its merits. DECISION Background On 18 February 2005 the Consulting Surveyors Queensland Industrial Organisation of Employers (CSQ) filed an application in the Queensland Industrial Relations Commission to amend the Surveying (Private Practice) Award – State (the Award) to increase wage rates for professional classifications covered by the Award by 30%. The claim also sought amendments to a number of other provisions in the Award. Not surprisingly, the application attracted a great deal of interest. Not only was the quantum of the claimed increase significant the application was also unusual in that it was lodged by an organisation of employers. During a preliminary hearing on 22 April 2005, to discuss the method of progressing the application, the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI) indicated that it would be moving to have the application dismissed pursuant to s. 331(b)(ii) of the Industrial Relations Act 1999 (the Act) on the basis that further proceedings in relation to CSQ’s application to increase certain wage rates by 30% were not in the public interest. The Honourable Minister for Industrial Relations (the Minister), who appeared as of right under s. 322 of the Act, indicated he would support QCCI’s submission. To this end, arrangements were made to conduct a hearing on 11 July 2005 to deal with such applications to dismiss. Evidence from CSQ In support of its contention that the application should proceed to trial and be determined on its merits CSQ called 4 witnesses who gave the general evidence recorded below. Mr Kenneth McKeague Mr McKeague is the Principal of McKeague Surveying Consultants located in Rockhampton and a past President of CSQ. Mr McKeague said he currently employed 4 employees which included one graduate surveyor and one semi- retired surveyor. He said he was finding it increasingly harder to find qualified, competent staff and currently had vacancies for 3 qualified surveyors. For every vacant surveyor position he also had a (theoretical) vacancy for a “surveyor’s offsider”. Mr McKeague said he paid well over the Award rates but had given up advertising for staff. Instead, he tried to entice people he found who possessed the necessary skills and the qualifications to join his firm by personal approach and by offering them the opportunity to work with high tech equipment in his practice. He often made approaches directly to students at the universities. Mr McKeague said the shortage of surveyors was having a significant impact in regional Queensland. From his own knowledge of what was happening in Rockhampton there was a back-log of surveying work of 3 to 4 months. Further, because of the shortage of qualified surveyors, the correctness of the cadastre was increasingly being placed at risk. In this respect, the importance of the cadastre had been recognised by organisations such as the United Nations which had long recognised that security of tenure was one of the most important catalysts for sustainability of growth and attracting capital investment. If there were problems with the cadastre it not only affected development but, more importantly, the certainty that individuals and their financial institutions could have in the value of a particular security. -- 1 of 7 -- 2 Finally, Mr McKeague said there was no benefit to be achieved in entering into workplace agreements or certified agreements which encapsulated the proposed 30% wage increase. This was because these rates were already being paid and the Award contained all of the flexibilities that employees and employers required. For Mr McKeague, the greatest problem was the lack of people choosing surveying as a career. This meant that insufficient numbers of students were entering the educational institutions proposing to make the surveying profession a career. Guaranteed higher wage rates, through the Award, as opposed to the “possibility” that over-award payments might be maintained, would act as an inducement to encourage people to select surveying as a career. Associate Professor Frank Young Associate Professor Young is the Head of the School of Surveying and Land Information at the Faculty of Engineering and Surveying, University of Southern Queensland in Toowoomba. Associate Professor Young said he had discussed the issue of the shortage of surveying students with the heads of equivalent university departments in Australia and New Zealand. In this regard, it was universally acknowledged that there was a major issue about attracting school leavers to surveying courses. This had led to a shortage of graduates and, in turn, a shortage of qualified persons in the field. The exception was New Zealand which now had an excess of interest following a significant increase in the relevant award for surveyors in that country and the publicity which followed. Associate Professor Young also said that the high rates on offer in the industry were, unfortunately, encouraging a number of graduates to leave the relevant courses before they had completed their qualifications. This meant that they did not possess the requisite skills to enable them to properly operate as a surveyor, although they were performing surveying related duties. Whilst there were opportunities for those students who left early to undertake further training, such as by correspondence, this was infrequently accessed and, where it was, it was stretched out over a period of years. This meant that the skills base of the industry was in decline. Associate Professor Young said the pressure placed on him, and on equivalent heads of departments in other universities, meant that the entry level requirements for graduates had been in progressive decline. In his own institution the OP level for entry had been reduced to 12. In the Queensland University of Technology it had apparently been reduced to 20. The Associate Professor said this reduction in entry requirement, whilst helping to initially fill course numbers, had other consequences. Some students were academically tested by the requirements of the course and simply pulled out. Others used the concessional entry granted by the low OP requirement as a bridging mechanism to transfer to other courses. Finally, those students who completed the course were often challenged, in a practical sense, once they completed the course and entered into employment. The Associate Professor also said that the average age of surveyors was significant. It was 53 in Victoria and 58 in New South Wales. Despite the number of vacancies, students were generally not attracted to the profession because it did not have a public profile. In addition, students were more concerned about the guaranteed salary rates on offer and were not attracted by the published award rates, or the possibility of over-award payments, given the study that had to be achieved before they obtained a surveyor’s licence. Instead, they sought out careers where they could earn good money, such as in law or architecture. Finally, Associate Professor Young spoke about the significant legal implications if the quality of the cadastre was not upheld. He had already been asked to consult in a dispute about the location of a boundary at a very remote property location in north Queensland. One surveyor had identified the boundary as being on one side of a waterhole whilst another surveyor had identified the boundary as being on the other side. The dispute had generated in excess of $100,000 in legal fees already and was going further. The Associate Professor opined that this type of dispute could potentially increase given the reducing OP levels of surveying graduates and the increasing pressures being placed on suitably qualified surveyors. Mr Ross Gordon Mr Gordon is the current Chairman of CSQ. He said that he, and his colleagues, were critically concerned about the increasing requisition rate published by the Department of Natural Resources. The “requisition rate” is the number of errors identified by the Department in checks it makes on surveys registered with what used to be known as the Government Titles Office. Mr Gordon said the error rate had increased to such a degree that it was of concern to the Government and the relevant department now published quarterly statistics recording the requisition (i.e. “error”) rate. This had increased significantly in recent years. [It was now around 11%, up from 7% 3 years ago.] Mr Gordon also said that the accuracy of the cadastre was critical to economic investment and development. This had been recognised, for example, by the United Nations during the rebuilding process in Timor. One of the first things the United Nations concentrated on was to re-build an accurate cadastre. -- 2 of 7 -- 3 Mr Gordon said the industry was already suffering significant shortages and this position was worsening because there were insufficient new graduates coming through to meet industry requirements. For example, Queensland University of Technology was only producing an average of 3 graduates each year who went into cadastral practice. Staff shortages, and questionable skills possessed by those now coming through, was becoming an increasingly significant problem. Mistakes were being made because of insufficient skills or because of time and work pressures. Mr Gordon said the problems confronting the industry would not be able to be fixed immediately. It would take a number of measures, including lifting wage rates to attract more, and better, candidates. It would also be necessary to advertise the profession to a wider potential audience. Mr Jacobus de Lange Mr de Lange is the current Executive Officer of CSQ, a position he occupies as part of his role as Chief Executive Officer for Spatial Queensland. Mr de Lange has previously held a number of roles in the private industry and the public sector – including Deputy Director of the Division of Surveys, Department of Mapping and Surveying between 1982 and 1985. Mr de Lange said the shortage of suitably qualified surveyors had reached critical proportion despite the efforts of the industry to attract more and better qualified candidates. He also said the pressures facing the industry were now beginning to be reflected in the number of requisitions identified by the relevant Government departments. These had increased significantly in recent years and there was anecdotal evidence to indicate that people with inappropriate competencies may be doing work which should be performed by highly skilled surveyors. This was because of the overload of work due to a shortage of surveyors, with some qualified surveyors cutting corners in order to get through the work which confronted them. These developments had significant implications for people’s security because property titles relied upon the correctness of the cadastre. Mr de Lange said the Spatial Sciences Institute, a professional association to which surveyors belonged, had started to promote surveying as a career. This was important because the requisite school subjects, to fit someone to enter surveying practice, had to be chosen in Year 8 or 9. The promotional program also included an “Adopt-a-School” program and the production of a CD for school counsellors. Mr de Lange also said that the majority of his 100 member companies (out of 200 surveying firms in Queensland) had between 5 and 10 employees in total. Whilst the association had endeavoured to assist those who wished to negotiate certified agreements he was only aware of 2 businesses that had actually entered into certified agreements some years previously. In Mr de Lange’s view this lack of interest was because the Award provided significant flexibility and no one saw any advantage in negotiating a certified agreement simply to record wage rates. Finally, Mr de Lange said higher award wage rates were needed to attract students to undertake a career which ultimately led them to becoming a surveyor. Students were more interested in entering a rewarding career where there was some certainty about the wages they would receive. Everyone knew that lawyers and doctors and the like were highly paid but surveying was regarded as the “invisible profession” because there were less than 1,000 of them in Queensland. Contentions of QCCI in support of application to dismiss pursuant to s. 331(b)(ii) of the Act QCCI raised a diverse range of arguments in support of its contention that CSQ’s application should be dismissed in the public interest. Firstly, QCCI argued that the Commission as presently constituted had no jurisdiction to deal with the application because it was inconsistent with the Commission’s Wage Fixation Principles. Secondly, it was argued that even if the first submission was over-ruled, the application could not be considered because CSQ did not contend that the proposed wage increase was based on work value grounds, as was required by Principle 7 of the Wage Fixation Principles. In this respect, it was argued that the current version of the Award came into effect on 4 July 2001 by consent. At that time a number of classifications received substantial wage increases. Further wage increases could not be supported unless there had been a significant change to the work value of surveyors since 2001. Not only had this not occurred, CSQ did not suggest that it had. Accordingly, there was nothing to underpin CSQ’s application. Thirdly, the magnitude of the increase sought, in the context of the Wage Fixation Principles themselves, was contrary to the public interest and outside the scope of the powers vested in the Commission under ss. 125 and 126 of the Act. Fourthly, the application, if granted, would create “paid rates” classifications running alongside minimum rates classifications within the same Award. This was undesirable and contrary to the public interest. -- 3 of 7 -- 4 Fifthly, the desired outcomes of CSQ could be achieved through certified agreements or Queensland Workplace Agreements. There was no suggestion that any attempt had been made along these lines. Sixthly, the Commission should not increase wage rates under an award on the basis of one group of employers in an industry wishing to set market rates for the total industry. In this regard, it was generally suggested that CSQ represented only about 50% of the employers in the surveying industry. Seventhly, the application would be inconsistent with, and contrary to, the principle objects of the Act because it would result in significant wage disparities between employees in the public and private sectors of the surveying industry. Those disparities would result in unwarranted industrial situations and significant cost to the public of Queensland. [This submission was not supported by any evidence or other information, such as wage rates for surveyors said to be engaged in the public sector.] Finally, QCCI submitted the application would result in a significant disparity within the classification structure in the Award. This would create the potential for flow-on to similarly qualified people in other awards. Contentions of the Minister in support of application to dismiss pursuant to s. 331(b)(ii) of the Act Like QCCI, the representative of the Minister raised a diverse range of arguments in support of the contention that the Commission should dismiss the wages aspect of CSQ’s application in the public interest. Firstly, it was argued that the increases sought, if the application was granted, went far beyond what would be considered fair and just, and in the public interest, within the meaning of ss. 3, 125 and 126 of the Act. Secondly, the approximate 30% wage increase proposed greatly exceeded the average disparity between award rates and wage rates contained in certified agreements (e.g. 10% in the Queensland public sector) and would take the relevant award wage rates far beyond those wage rates that may already have been put in place through enterprise bargaining. In that sense, they would be regarded as well above any prevailing community standard. Thirdly, the application was purely based on a proposal to move to so called “market rates” which would be 30% above the rates previously fixed by the Commission as being fair and reasonable in 2001. There were no reliable grounds upon which the Commission could be persuaded to take such a significant step. Fourthly, it was in the public interest for any proposals involving significant wage increases to be bargained between employers/unions/employees at the enterprise or workplace level where market forces and prevailing circumstances were more relevant and capable of being taken into account. Fifthly, the public interest would not be served because the prospects of a flow-on of an increase of the size proposed would be significant. There were significant implications for flow-on claims to be made in a range of other like common-rule awards, including those awards covering professional engineers, draftspersons, production planners and professional scientists. Finally, granting of the application and likely flow-on to other awards would have significant inflationary effects which would be contrary to the obligations imposed on the Commission pursuant to s. 126(h) of the Act where the Commission was required to “take into account the efficiency and effectiveness of the economy, including productivity, inflation and the desirability of achieving a higher level of employment”. Submissions by QSU opposing application to dismiss The Queensland Services, Industrial Union of Employees (QSU) opposed the applications by QCCI and the Minister to dismiss the wages aspect of the application pursuant to s. 331(b)(ii) of the Act. In addition to supporting the submissions of CSQ (below), QSU also advanced the following contentions in support of its submission that the application should be allowed to proceed to a merit argument. Firstly, QSU stated that the application, coming as it did from an organisation of employers, clearly demonstrated the importance of the matter under consideration and the major concerns of the industry about its future direction. These concerns should be shared by the community generally because the evidence raised in the proceedings highlighted the very serious risks the community was increasingly facing as the reliability of the cadastre became questionable. Secondly, QSU highlighted the extreme difficulty unions faced in attempting to negotiate certified agreements in the surveying industry. This was because the industry was comprised of a number of very small businesses where the “target” audience (i.e. surveyors) was frequently in the field and difficult to contact. In addition, the attractiveness of enterprise bargaining was questionable given the evidence from several witnesses about the flexibility contained within the existing Award document. In this context, it was also submitted that where an industry was prevented, by virtue of the circumstances, from progressing applications by other related means (such as through an s. 129 application) it was -- 4 of 7 -- 5 reasonable for an industrial tribunal to give consideration to the practical achievement of the wages outcomes necessary to secure an industry’s future. Thirdly, the submissions of those who opposed the application about possible flow-on were not based on serious or considered argument which could be supported by factual or credible evidence. The likelihood that a sizeable wage increase in a small segmented award such as that under contemplation would flow back into public sector rates, or elsewhere, was virtually non-existent. Further, those seeking a flow-on would need to substantiate their own argument because nothing would be automatic. Fourthly, in contrast to several recent high profile cases, the industry had limited ability to negotiate an “Attraction Allowance” to entice prospective graduates to enter surveying courses and, ultimately, the industry. The only way that any attraction payments could be made widely applicable was through the Award. Fifthly, QSU was aware, through counterpart organisations, of concerns within the local government sector about declining surveyor numbers. Many local government authorities had discontinued services where surveyors had previously been engaged. Such authorities had now become reliant on the private sector in every respect. Sixthly, it was ironic that the Minister should advance a public interest argument in which he proposed the application be dismissed when the Government, itself, was completely reliant on the provision of accurate information from licensed/registered surveyors. Of particular significance was the importance to Government of the accuracy of the cadastre. Seventhly, the concerns of those in the industry who have the responsibility for training and maintaining an appropriately qualified number of surveyors deserves the Commission’s serious consideration. If the views coming from people such as those who gave evidence are ignored the economy could be faced with the same skills vacuum which has developed in other areas. This could impact on growth in the medium to longer term. Finally, QSU contended that a bona fide case to be heard had been made out by CSQ. Those that opposed the application being determined on its merits had failed to advance any real argument why it was against the public interest to consider the application. It should be allowed to proceed. Submissions by AWU opposing application to dismiss The Australian Workers’ Union of Employees, Queensland (AWU) provided a brief submission in which it urged the Commission to reject the application to dismiss CSQ’s application developed by QCCI and by the Minister. Contentions by CSQ about why the matter should not be dismissed as being contrary to the public interest Without being exhaustive, CSQ advanced the following general propositions in opposition to the submissions of QCCI and the Minister:  the relevant organisation of employers had lodged the application. This was not only unusual but it was also highly significant. It reflected the serious cause to be argued by CSQ;  the appropriate unions of employees supported the application;  the application should be seen as one of vision and one which underlined the serious concern held by CSQ for the future of the cadastre. In the ultimate, the certainty of land tenure is absolutely fundamental to economic growth and investment;  contrary to the submissions of QCCI, a Full Bench of the Commission is not bound by the Wage Fixation Principles. The present Full Bench is required to consider the application on its merits in accordance with the obligations placed upon it by the relevant sections of the Act;  there is limited authority about applications made pursuant to s. 331(b)(ii) of the Act. Nothing in the limited authorities suggests that it would be appropriate for the Commission to dismiss the current application without making further enquiry. It would also be contrary to the public interest to displace a litigant’s normal right to have a case heard and determined;  contrary to it being against the public interest for the application to be heard, the evidence given by CSQ witnesses suggested that it would be entirely in the public interest if the Commission moved to hear and determine the application on its merits;  the public interest in ensuring the accuracy of the cadastre was a significant factor supporting CSQ’s argument that the matter should be allowed to proceed to trial;  if the Commission accepted QCCI’s and the Minister’s arguments about potential flow-on applications the Commission would decline to hear any application for any wage increase. This was because there was always some possibility that someone might claim a flow-on of any favourable decision. However, in reality, any applicant which might seek to claim a flow-on of any successful outcome in these proceedings could not rely upon the unique circumstances facing surveyors. Any claim would have to be justified on its own facts; and -- 5 of 7 -- 6  the submissions of QCCI and the Minister that the proposed wage increases should be pursued through enterprise bargaining was in conflict with the provisions of the Act. Since 1999, awards and certified agreements were equally relevant. Certified agreements were no longer the primary method of fixing wage rates, in contrast to the Federal arena. Conclusions We believe that unless there are compelling circumstances to justify a decision to the contrary every applicant has, prima facie, a right to have their application heard and determined on its merits. In our view, that right should only be restricted or removed if there are compelling reasons to do so. With respect to QCCI and the Minister, no compelling grounds have been advanced in these proceedings which could underpin any decision we have been called on to make to dismiss CSQ’s application in the public interest. The various grounds raised in support of the respective contentions that the application should be dismissed, with respect, go more to the merits of why the application should not be granted rather than why it should be dismissed at the outset. As Mr Muir rightly observed, the Wage Fixation Principles, whilst persuasive, are not binding on this Full Bench. In exercising its jurisdiction the Commission is required to consider the relevant legislative provisions (such as those mentioned at ss. 3, 125 and 126 of the Act) but cannot otherwise be constrained in its deliberations of matters that come before it. Further, whilst the claim for a 30% wage increase is significant that fact, alone, provides no justification to dismiss a claim before its relevant merits have even been considered. In that regard, every application that comes before the Commission must import some risk that another party, or parties, might seek to flow any successful outcome into their own area. However, as will be well known and understood, the days of justifying applications on the basis of comparative wage justice are long gone. Every application for a wages claim has to be justified on its merits and it is only those limited number of matters which possess the necessary merit that are successful. Even then, the original quantum claimed is not always granted. We are also conscious of the very (telling) argument presented by Mr Buckley of QSU to the effect that the application was, in essence, a cry for help from an industry which held grave fears about its future direction, the likely consequences for the public – through the increasing unreliability of the cadastre, and the risks this posed to economic development if the current critical shortage of surveyors was not addressed appropriately. It was for these primary reasons that we alerted the parties at the conclusion of proceedings on 11 July 2005 that we had decided to reject QCCI’s and the Minister’s application to dismiss CSQ’s application pursuant to s. 331(b)(ii) of the Act. Not only did QCCI and the Minister fail to advance compelling or cogent reasons why the application should be dismissed in the public interest, we believe that the issues raised in the evidence are of such significance that we would be remiss in our statutory duty if we failed to hear and determine an application which raises such significant matters of public interest. Without repeating that which is recorded above, it is clear from the various witnesses who gave evidence that the current short supply of qualified surveyors is starting to effect economic and other development (particularly in regional areas) and is causing serious question marks to be raised about the accuracy of the cadastre. Further, whilst the current application seeks to require all employers in the industry to pay significantly higher minimum wages to qualified surveyors that fact is not, alone, sufficient to cause us to doubt the motives which underpin the application or the validity of those motives. At the end of the day, it will be up to the applicant to provide sufficient supporting argument, and perhaps further evidence, to underpin its contention that granting the proposed wage increase – in whole or in part – is an appropriate mechanism to help the industry commence the process of addressing the issues raised in the contentions. In addition, it will be up to the applicant to convince us, firstly, that there is the necessary statutory support to allow us to seriously consider its proposition and, secondly, that as a matter of discretion we should grant the application (in whole or in part). In accordance with the request communicated to us by CSQ at the close of its submissions we direct the parties to confer about the whole of the application, especially those aspects of the application which do not involve the wages claim. We grant leave to CSQ to apply on 7 days’ notice to have this matter listed for further directions. -- 6 of 7 -- 7 The Full Bench determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. K.L. EDWARDS, Commissioner. J.M. THOMPSON, Commissioner. Hearing Details: 2005 22 April 11 July Appearances: Mr G. Muir, of Employer Services Pty Ltd, for the Applicant. Ms Y. D’Ath and Ms S. Schinnerl, of The Australian Workers’ Union of Employees, Queensland. Mr I. Buckley, of Queensland Services, Industrial Union of Employees. Mr T. Coombs, of Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers. Mr R. Gillespie, of the Department of Industrial Relations. Released: 26 July 2005 Government Printer, Queensland The State of Queensland 2005. -- 7 of 7 --