Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees, Queensland Independent Education Union of Employees v Queensland Catholic Education Commission [2000] QIRC 112 (2000) 165 QGIG 200

200 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 November, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – making of a new Award Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees, Queensland Independent Education Union of Employees AND Queensland Catholic Education Commission (B1585 of 1999) COMMISSIONER SWAN 24 October 2000 DECISION B1585 is an application made by The Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees (ALHMWU) for the repeal of The Catholic Boarding Schools and Colleges Employees South-Eastern Division – Industrial Agreement and the making of a new Award entitled “Catholic Boarding Schools and Colleges Employees’ Award – South-Eastern Division”. During earlier preliminary hearings of this matter, the Queensland Independent Education Union of Employees, represented by Mr J. Spriggs, sought and was granted, in accordance with a recent Rules change, leave to appear in the matter. I have determined that the Industrial Agreement aforementioned has the same effect as an Award of the Commission given that there was no applicable award to which these parties could respond (see Chapter 19 – “Saving and Transitional Provisions for Industrial Relations Act 1999”, s. 713 “Existing industrial agreement continues” Industrial Relations Act 1999). It is my understanding that all but one part of the proposed Award is agreed to by the parties. The ALHMWU and the employing body (represented by Mr K. Cuddihy) are in agreement on all components of the proposed Award. The difference of opinion exists between Mr Spriggs’ organisation and the employing body. The difference goes to consideration of one specific clause relating to “term time employment”. The concept in itself is not in dispute between the parties – what is in dispute is whether the clause agreed to between the ALHMWU and the employing body should be incorporated, as drafted, within the Award. Mr Spriggs’ submissions are as follows:– . The proposed concept of “term time employment” was not contained within the Industrial Agreement. . The Industrial Agreement did reflect a position around the issue which provided a reasonable safety net provision which should be retained. -- 1 of 2 -- 3 November, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 201 . During discussions between the ALHMWU and the employing body, an agreement was reached to include within the Award a modified form of the earlier provision including the introduction of a “term time employment” provision. . The Industrial Agreement, as a consequence of changes to the relevant Legislation, was unable to be varied to reflect basic safety net conditions and safety net wage adjustments. . The Industrial Agreement before the Commission for consideration is not a “contemporary document”. . Notwithstanding that, as a consequence of enterprise bargaining outcomes, employees have received appropriate wage increases etc. . Were it to be the case that enterprise bargaining outcomes were not in the future achieved with some of the employing party’s constituents, then the parties would be required to rely upon the Industrial Agreement/Award for its safety net provisions. . Having a safety net Award in place, one would then look to a Certified Agreement which should reflect the arrangements reached between the parties beyond the Award provisions. Mr Cuddihy’s submissions are as follows:– . In “other non-governmental” sectors, specific definitions regarding “term time employment” have been included within the Award. . There is a belief that the clause as proposed should be within the Award as there is no Certified Agreement in place to reflect this agreed situation. . The provision proposed for the new Award was in fact more beneficial to employees than the clause being debated between the parties during their enterprise bargaining discussions. . If and when an agreed position is reached between the parties in enterprise bargaining negotiations around the issue, then to the extent of any inconsistency with the Award, the provisions in the enterprise bargaining document would prevail. Conclusion There is agreement between the parties around the concept of “term time employment”. I understand that the specifics around that clause are to be determined through enterprise bargaining. Without challenge, Mr Spriggs has asserted that the existing provisions contained within the Enterprise Agreement permit the employer to do what it wishes to do in this regard, in any event. It would seem to me that, notwithstanding the agreement which exists between the ALHMWU and the employing body regarding this provision, the more appropriate course would be to incorporate within the proposed Award those provisions already existing within the Industrial Agreement, and to leave the fine tuning of “term time employment” provisions to the enterprise bargaining negotiations. The safety net would then exist for employees within the Award, and whatever is then achieved through enterprise bargaining would over-ride those safety net provisions where applicable. There is technical correctness in the submissions made by Mr Spriggs around the Principles of this Commission, the nature and content of Awards of this Commission and specifically as it relates to enterprise bargaining outcomes. It is my understanding that the proposed Award would provide the standard provisions reflecting (with the exception of enterprise bargaining outcomes as they go to wages etc.) the general nature of the industry as it now operates. It seemed to me that the debate between the parties was more philosophical than practical. In any event, I am more persuaded by Mr Spriggs’ argument. In permitting retention of the clauses in the Industrial Agreement to which Mr Spriggs refers, my understanding is that no damage is done to either party. The parties can then continue to debate in more detail the actual specifics around the issue of “term time employment” as they see fit during enterprise bargaining. The draft document put before the Commission requires a number of amendments as discussed during the course of the hearing. The parties are directed to confer on these points and to submit to the Commission the amended document within two weeks from the date of release of this decision: Provided that material is received within that time, the appropriate repeal of the Industrial Agreement and the making of the new Award will occur. The operative date should be 7 November 2000. Order accordingly, D.A. SWAN, Commissioner. Released: 24 October 2000 Appearances:– Mr J. Spriggs of the Queensland Independent Education Union of Employees, and Ms J. Billingsley of The Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees, for the Applicant. Mr K. Cuddihy, with him Mr B. Cooper, of Queensland Catholic Education Commission, for the Respondent. -- 2 of 2 --