Agforce Queensland Industrial Union of Employers v The Australian Workers' Union of Employees, Queensland (No. 3) [2002] QIRC 55 (2002) 169 QGIG 783

26 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 783 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – Industrial Relations (Tribunals) Rules 2000 Agforce Queensland Industrial Union of Employers AND The Australian Workers' Union of Employees, Queensland (No. 3) (No. B391 of 2001) SHEARING INDUSTRY AWARD – STATE PRESIDENT HALL COMMISSIONER K.L. EDWARDS COMMISSIONER J.M. THOMPSON 16 April 2002 DECISION The advocates for the parties have adopted an entirely constructive approach to the issues raised by the response and counter proposal of The Australian Workers' Union of Employees, Queensland (AWU). In consequence, save as to three matters, it is unlikely that this Bench will be required to hear argument. Commissioner Edwards will convene a conference to monitor the process of formulating consent amendments to the Shearing Industry Award – State to bring to finality the issues raised by response and counter proposal. There is every prospect that this Bench will be able to give formal approval to the amendments on the papers or by way of a brief mention. The three outstanding matters are:– (a) the matter of “Union encouragement”; (b) a claim for a percentage wage increase in lieu of the introduction of a 38 hour week; and (c) a claim to fold the existing lump sum allowance for “experting and grinding” into the rate per hundred sheep shorn. It is unnecessary to set forth the proposed “Union encouragement” clause. It is sufficient to say that it is consistent with the Statement of Policy issued by a Full Bench of this Commission on 1 November 2000, see 165 QGIG 221. Whilst Agforce Queensland Industrial Union of Employers does not consent to amendment of the Award to include the “Union encouragement” clause, it does not oppose the amendment. Agforce is content to abide by the decision of the Commission. In the circumstances described, we grant the AWU's application for amendment. The conference to be convened by Commissioner Edwards will revisit the drafting of the clause. We have some sympathy for the submission that employees in the shearing industry should be granted a benefit, be it in money or otherwise, in lieu of the 38 hour week. The shearing industry is one of the few industries which does not enjoy the 38 hour week. Having regard to the nature of the industry and the circumstances in which work is performed, it is unlikely that a 38 hour week would be attractive to employees or to those who employee them. It would be inequitable if this Commission were to omit to search for an alternative employment benefit. It would, however, be equally inequitable if such a benefit were made available in the absence of the “cost offsets” which, consistently with the Statement of Policy of the (then) Industrial Conciliation -- 1 of 2 -- 784 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 and Arbitration Commission at 129 QGIG 33, have always been required of claimants for a 38 hour week. In the circumstances, we adjourn further consideration of this claim until the hearing of Agforce’s application for relief in the year 2003. The claim to fold the existing lump sum allowance for “experting and grinding” into the rate per hundred sheep shorn has caused us some angst. The existing allowance was introduced, by consent, in settlement of the proceedings before Commissioner Blades. Our first impression was that, consistent with our decision to refrain from hearing Agforce’s claim until the year 2003, this claim by the AWU should be deferred until that time. On further reflection we have satisfied ourselves that there has been a significant change in circumstance. The experience with the lump sum allowance has been unsatisfactory. For practical purposes, where the allowance has not been paid it has been irrecoverable. The itinerate lifestyle of the shearer ensures that problems with recovery will persist into the future. It is unrealistic to expect that a shearer will be available when proceedings to test the validity of a failure to pay is finally called in the local Industrial Magistrate’s Court or in this Commission. Other allowances in this industry have been folded into the rate per hundred sheep shorn. Save in the case of shearers who process upward of 170 sheep per day, the amounts actually paid by employers will be less than the existing lump sum daily allowance. Provision is to be made for the withholding of the folded-in allowance where the employer engages an expert pursuant to the provisions of the federal Woolclassers’ Award 1999 to undertake the experting and grinding duties associated with shearing, and the shearer has consented, (in writing,) to that arrangement prior to the commencement of shearing. The amendment is about securing the performance of an obligation rather than a new impost. We grant the claim. Once again, scrutiny of the form of the amendment is remitted to the conference to be convened by Commissioner Edwards. Dated 16 April 2002. D.R. HALL, President K.L. EDWARDS, Commissioner J.M. THOMPSON, Commissioner Appearances:– Mr W.J. Turner for Agforce Queensland Industrial Union of Employers. Mr B. Swan for the The Australian Workers' Union of Employees, Queensland. -- 2 of 2 --