Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees v Local Government Association of Queensland (Incorporated); The Australian Workers’ Union of Employees, Queensland v Local Government Association of Queensland (Incorporated) [2001] QIRC 138 (2001) 168 QGIG 44

44 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 September, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application for amendment Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees AND Local Government Association of Queensland (Incorporated) (No. B46 of 2001) and The Australian Workers’ Union of Employees, Queensland AND Local Government Association of Queensland (Incorporated) (No. B128 of 2001) LOCAL GOVERNMENT EMPLOYEES’ (EXCLUDING BRISBANE CITY COUNCIL) AWARD – STATE COMMISSIONER ASBURY 10 September 2001 -- 1 of 3 -- 21 September, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 45 DECISION Background These are applications by the Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees (FEDFA) and The Australian Workers’ Union of Employees, Queensland (AWU) to amend the Local Government Employees’ (Excluding Brisbane City Council) Award – State. The applications seek to increase the allowance prescribed by clause 4.7 of the Award for employees using their own vehicles to travel to a work site. Leave was granted for the applications to be joined. Argument in Support of the Applications The basis of the claim is that the increases sought are in line with similar allowances prescribed in what are said to be other related Awards of the Commission, as follows:– • Brisbane City Council Engine Drivers Award; • Brisbane City Council Construction and Maintenance Award; • Building Trades Public Sector Award – State; and • Civil Construction, Operations, Maintenance General Award – State. It was argued that the allowance prescribed by these Awards is 69c per kilometre, while the allowance under the Local Government Employees’ (Excluding Brisbane City Council) Award – State is 57.08c per kilometre. This was said to disadvantage employees under the Local Government Employees’ (Excluding Brisbane City Council) Award – State. Some material was put before the Commission in an attempt to establish that due to contracting out of work, employees under the Local Government Employees’ (Excluding Brisbane City Council) Award – State are often required to work side by side with employees under the above Awards. This situation was said to be becoming more prevalent. The applicants also submitted that grant of the application would be consistent with the Declaration of Policy by a Full Bench of the Commission regarding Wage Fixing Principles ((1999) 162 QGIG 356). In particular, the applicants submitted that the Full Bench in that Declaration had stressed that the principles inter alia contribute to equitable outcomes. Further, the Full Bench stated that the Principles are fundamentally guidelines, which do not (subject to the availability of appeal by leave) absolutely bind a Commissioner sitting alone. The Full Bench also stated that:– “The role of awards has been enhanced. Awards are intended to provide secure, relevant and consistent wages and employment conditions, and to provide fair standards for employees in the context of living standards generally prevailing in the community.”. It was further submitted by the applicants that the current Declaration of Policy regarding Wage Fixing Principles ((2000) 164 QGIG 375) states under the heading “Role of Principles” that their purpose is to provide guidance to a single Commissioner sitting alone, and that however constituted, the Commission will have regard to s. 3 of the Act, and must have regard to s. 126. The grant of the application was argued to be consistent with and further the objects of the Industrial Relations Act 1999, including in particular, ss. 3(c) and (f). Those sub-sections provide as follows:– “The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by:– … (c) preventing and eliminating discrimination in employment, and ensuring equal remuneration for men and women; and … (f) ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community.”. It was also submitted that grant of the application would be consistent with and further the operation of ss. 125(1); 126 (d); 126(e) and 273(1)(a) of the Act. Argument in Opposition to the Applications The applications are opposed by the Local Government Association of Queensland (Incorporated) (the LGA). Mr Beer for the LGA argued that the applications were clearly claims to import conditions under the Civil Construction, Operations and Maintenance General Award – State, into the local government arena. Mr Beer submitted that the issue of whether the exclusion in that Award should be removed, was considered by a Full Bench of the Commission in 1993 when the Local Government Employees’ (Excluding Brisbane City Council) Award – State was made (1993) 142 QGIG 515 at 517. The Full Bench at that time, rejected an application by the FEDFA to remove the exclusion. Mr Beer also pointed to a decision of Fisher C, which states that travelling arrangements for employees not living in camps were determined by reference to the draft Award provisions submitted by the LGA. The provisions submitted by the LGA were derived from the Federal Award applicable to local government, which was in turn, based on a directive issued under the then Public Service Act. The amounts thus established, have been increased in line with wage fixing principles allowing increases to expense related allowances. The applications currently before the Commission are seeking to create a new nexus, by increasing the travelling allowance in the Local Government Employees’ (Excluding Brisbane City Council) Award – State based on the quantum of the travelling allowance in the Civil Construction, Operations and Maintenance General Award – State, rather than actual increases in the cost of running a vehicle, as provided for by current Wage Fixing Principles. Mr Beer also tendered material to illustrate the cost of operating motor vehicles in the current economic environment, to support the argument that the current travelling allowance in the Local Government Employees’ (Excluding Brisbane City Council) Award – State, is adequate. In concluding his submissions, Mr Beer said that the purpose of the allowance was to reimburse employees for the expense of operating their own vehicles, not to pay an allowance on the basis of some standard, which may exist elsewhere. Conclusions It is undoubtedly the case, that the Industrial Relations Act 1999 has enhanced the role of Awards. However, it should also be noted that the Act provides for declarations of policy to be issued by the Commission, and this has occurred on a number of occasions since the commencement of the Act. While the current Wage Fixing Principles are a guide, and do not absolutely bind a Commissioner sitting alone, in my view, they must be given weight in any application for an increase under an Award. -- 2 of 3 -- 46 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 September, 2001 This is because the objects of the Act while being directed at ensuring that wages and employment conditions provide fair standards, are also directed at providing a framework for industrial relations that supports economic prosperity and social justice by:– • providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers (s. 3(a)); and • providing for an effective and efficient economy (s. 3 (b)). Wage Fixing Principles are established following detailed submissions, generally including economic argument, from industrial parties including peak councils representing the interests of both employers and employees. As such, they play an important role in ensuring that the objects of the Act are balanced, when consideration is being given by a Commissioner sitting alone, and considering an increase to wages or allowances, or an improvement in working conditions under an Award. The arguments put forward by the applicants in support of the increase to travelling allowance under the Local Government Employees’ (Excluding Brisbane City Council) Award – State, may very well have substance, and be capable of giving rise to the increase sought. Indeed, it would appear from a perusal of the 1993 decision when the Local Government Employees’ (Excluding Brisbane City Council) Award – State was made, that one of the considerations in the Commission refusing the claim for the removal of the exclusion in the Civil Construction, Operations and Maintenance General Award – State, was the fact that the removal of the exclusion would result in some employees enjoying better conditions than those then enjoyed by employees of the Brisbane City Council. I accept that when employees receiving a higher travelling allowance are required to work along side employees receiving a lesser amount, that issues of equality and community standards may very well arise. I also accept that there may have been significant changes in the local government industry, which have resulted in a situation where local authorities are tendering for work outside of their usual areas of operation. These changes, if they have occurred to the extent submitted by the applicants, could very well have resulted in employees under the Local Government Employees’ (Excluding Brisbane City Council) Award – State, being called upon to work along side employees of other local authorities and employers in the private sector, who are covered by other Awards which prescribe higher allowances, wage rates or other conditions of employment. In the present case I have no evidence in relation to the inequalities the applicants say the amendments sought are directed against. While some material has been tendered from the bar table, in my view, this material does not demonstrate that a departure from the current Wage Fixing Principles is warranted, on the basis of fairness, equity or justice, as outlined in s. 3 or s. 125 of the Act. Given the lack of evidence, either in support of the applications or in opposition to them, I am not prepared at this time to determine the matter. Should the FEDFA and/or the AWU wish to further pursue their applications before the Commission, I will require the filing of appropriate material in support of the applications. Once such material is filed and served on the LGA I will then issue further directions for the conduct of this matter. I.C. ASBURY, Commissioner. Released: 11 September 2001 Appearances:– Mr J. Coogan of the Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees. Ms Y. D’ath of The Australian Workers’ Union of Employees, Queensland. Mr R. Beer of the Local Government Association of Queensland (Incorporated). -- 3 of 3 --