AgForce Queensland Industrial Union of Employers v The Australian Workers’ Union of Employees, Queensland [2003] QIRC 168 (2003) 174 QGIG 206

206 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 September, 2003 ########################################################################################################################## INDUSTRIAL COMMISSION OF QUEENSLAND Industrial Relations Act 1999 – s. 125 – application to amend award AgForce Queensland Industrial Union of Employers AND The Australian Workers’ Union of Employees, Queensland (No. B532 of 2003) STATION HANDS’ AWARD – STATE 2003 COMMISSIONER EDWARDS 9 September 2003 Amendment – Queensland Minimum Wage – General Ruling – Keep – Wages – Application Refused. DECISION On 26 March 2003 AgForce Queensland Industrial Union of Employers (AgForce) filed an application seeking to amend the Station Hands’ Award – State (the Award) (as it was at that time) as follows: “(a) by deleting clause 3.1 (Guaranteed Minimum Wage) and inserting the Commission’s standard Queensland Minimum Wage (QMW) clause resulting from 18 December 2002 decision of the Full Bench of the Commission in lieu thereof; and (b) by deleting subparagraph 3.4(5)(b) and inserting the following in lieu thereof: 3.4(5)(b) The full value of ‘keep’ shall be included in the calculation of payment for employees working overtime, on Annual Leave or Long Service Leave, and in the calculation of the Queensland Minimum Wage as prescribed in clause 31 of the Award.”. The rates of pay for employees are prescribed by clause 3.2 (Wages) of the Award, the preamble of which states, inter alia: “3.2(1) the following shall be the rates of wages with keep payable to the respectively designated classifications: ”. The provisions in respect of “keep” are prescribed by clause 3.4(5) of the Award which states: “(5) Keep – (a) The following classes of employees shall be paid the respective amounts in addition to the rates of wages prescribed in clause 3.2 of the Award: (i) ‘Not Found’ Employees – $70.90 per week (ii) Employees provided with accommodation only – $57.85 per week (iii) Employees provided with meals/rations only – $13.20 per week (b) The full value of ‘keep’ shall be included in the calculation of payment of employees working overtime, on annual leave or long service leave. (c) The full value of ‘keep’ shall be increased by two cents per week for each ten cents per week increase in the weekly ‘without keep rate of pay’ for an adult Station Hand Level 3 employed in the Southern Division Eastern District. (d) Casual employees shall not be entitled to receive any payment in respect of ‘keep’ in addition to the rate of wages prescribed in clause 3.2(4) of the Award.”. Clause (9) of Schedule 2 of the Award defines the “without ‘keep’ rate of pay” as meaning: “the sum of the rate of pay prescribed by clause 3.2 (Wages) and the ‘not found’ allowance prescribed in paragraph (a) of subclause 3.4(5).”. -- 1 of 2 -- 19 September, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 207 In considering this application the Commission has examined the detailed chronology provided by Mr Turner in which he contends that the “without ‘keep’ rate of pay” is the proper rate of remuneration to be taken into account when determining whether the State Minimum Wage has application to the rates of pay prescribed for the respective classifications of employees under the Award. As a result of a decision of the Full Bench dated 18 December 2002, the QMW was expressed to apply as from the first pay period after 1 April 2003. The applicable wage rate being $431.40 per week. Parties were given the opportunity to make application under s. 287(5) of the Act. The Full Bench exempted from the operation of the General Ruling those awards that had already been amended in accordance with the Commission’s declaration of policy on the QMW. The Award had not been amended in accordance with the Commission’s declaration of policy on the QMW and was not excluded from the operation of the General Ruling on the QMW for the purposes of s. 287(5)(c) of the Act. Mr Swan submitted that the General Ruling on the QMW concerned minimum weekly rates of wages for employees. As at 31 March 2003 the Award provided minimum weekly rates of wages for employees engaged to undertake or perform work upon or in connection with station property within the State of Queensland. As a consequence of all of the above, the Award was taken to have been amended to accord with the General Ruling on the QMW on and from the first pay period commencing after 1 April 2003. Immediately prior to the issue of the General Ruling on the QMW, the minimum weekly rate of wages for all employees engaged pursuant to the terms and conditions of the Award were less than $431.40 per week. Consequently, each of the minimum rates of wages expressed at clause 3.2 to the Award was amended by the General Ruling to become $431.40 per week. Presently, the full value of “keep” provided for by the Award is $70.90 per week. If the claim of AgForce in these proceedings were to succeed, the full value of “keep” (i.e. $70.90 per week) would be used in the calculation of the QMW (i.e. $431.40 per week). The inevitable result of that claim would be to reduce the quantum of the QMW for employees engaged pursuant to the terms and conditions of the Award to $360.50 per week (i.e. $431.40 less $70.90), which apart from domestic employees, regresses the minimum weekly rate of wages for all employees below those that existed immediately prior to the operation of the General Ruling. Alternatively, the claim of AgForce has the effect of denying the application of the full value of “keep” to any employee. In those circumstances, proper pleading should have been made for the deletion of all “keep” allowances from the Award. Schedule 5 of the Act defines wages as meaning: “wages” means – (a) an amount payable to an employee for – (i) work performed, or to be performed, by the employee; or (ii) a public holiday; or (iii) leave the employee is entitled to; or (iv) termination of employment; or (b) a salary; or (c) an amount payable from wages for the employee, with the employee’s written consent; or (d) a shortfall under section 220.”. In 168 QGIG 90–92, Hall P. states: “The ordinary meaning of the word ‘wages’ was examined by Wilcox CJ in Ardino v. Count Financial Group Pty Ltd (1994) 57 IR 89. At 95 His Honour observed: ‘The word “wages” is not defined by the Industrial Relations Act, so in s. 170CD it bears its ordinary meaning. The Shorter Oxford Dictionary defines “wage” as: “A payment to a person for service rendered; now esp the amount paid periodically for the labour or service of a workman or servant. Freq pl.” The Macquarie Dictionary gives the primary meaning of “wage”, noting that it is often plural, as “that which is paid for work or services, as by the day or week; hire; pay”. I think these definitions’ emphasis on payment makes it difficult to argue that benefits that do not take the form of money payments are “wages”. ’ ”. The Queensland Minimum Wage – General Ruling 172 QGIG 4–5 related to the minimum wage for all employees. The decision does not provide for a salary or remuneration package . By this application the Commission cannot alter the quantum of the QMW as declared by the Full Bench. The application is refused. Dated 9 September 2003. K.L. EDWARDS, Commissioner. Hearing Details: 2003 15 May Appearances: Mr W. Turner of AgForce Queensland Industrial Union of Employers on behalf of the applicant. Mr B. Swan of The Australian Workers’ Union of Employees, Queensland on behalf of the respondent. -- 2 of 2 --