Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees v CS Energy [2000] QIRC 25 (2000) 163 QGIG 404

404 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 March, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 284 – interpretation of certified agreement Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees AND CS Energy (No. B1632 of 1999) AUSTA ELECTRIC, SWANBANK POWER STATIION (ENTERPRISE BARGAINING) CERTIFIED AGREEMENT 1997 COMMISSIONER BLOOMFIELD 16 March 2000 Interpretation – Certified Agreement – Entitlement of riggers to scaffolding allowance – Commission found there is duplication of scaffolding allowance provisions in Certified Agreement – Clause has no application to riggers who hold scaffolding certificates – Riggers not entitled to double dip by claiming allowance – Riggers’ wage rates include compensation for holding certificate. DECISION This decision relates to an application by the Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees (FIA) for “an interpretation” of the Austa Electric, Swanbank Power Station (Enterprise Bargaining) Certified Agreement 1997. The FIA, represented by Mr D. D’Arcy, informed the Commission that the issue “for interpretation” was whether riggers were entitled to an allowance specified at clauses 3.3(2)(31) and/or clause 3.3(3)(2) of the Certified Agreement. In reality, the matter before the Commission was more properly a dispute about the entitlement of riggers to an allowance. I have dealt with it on the basis that it is a dispute and that the Commission has taken cognisance of it. Clause 3.3(2)(31) of the Certified Agreement provides:– “(31) Scaffolding Allowance. Persons holding and using a scaffolding certificate shall be paid 36c per hour in addition to their rate only.”. Clause 3.3(3)(2) provides:– “(2) Certificate Allowance – Employee (sic) who is the holder of a scaffolding certificate or rigging certificate issued pursuant to the Workplace Health and Safety Act 1989 and is required to act on that certificate whilst engaged on work requiring a certified person shall be paid an additional 36c per hour.”. Mr D’Arcy indicated that there was a long history to the payment of scaffolding allowances to employees employed at Swanbank. He tabled a number of internal memoranda tracing such history. The first memorandum dated 24 October 1977 showed that riggers holding scaffolding tickets had been granted a ticket allowance of $3 per week “payable in full, weekly.”. In 1995 the allowance was increased to $5 per week (all purpose) as an administrative arrangement, notwithstanding that the Award did not provide for an allowance. Mr D’Arcy said that the riggers who held scaffolding certificates had taken the issue of their entitlements up with the employer in late 1998. In doing so they relied upon the provisions in the 1997 Certified Agreement (above). Initially, the employer’s representative had agreed to make payment of the 36 cents per hour. That had subsequently been reversed. Mr Drew and Mr Maurice, the representatives of the scaffolders, indicated that the scaffolders were concerned that without the payment of the allowance they had lost relativity vis a vis base riggers and labourers who were now classified at the same wage level. If the scaffolder allowance of 36 cents per hour was paid they would receive an additional $640.90 per annum. Mr G. Harris, who represented CS Energy/Swanbank Power Station, informed me that there was no Award entitlement for the riggers to be paid a scaffolding allowance. Although clause 3.3(1)(11) of the Electricity Supply Industry Employees Award – State contained a certificate allowance it was only paid to tradespersons who held, and were called upon to use, a scaffolding certificate or rigging certificate issued pursuant to the provisions of the (then) Workplace Health and Safety Act 1989. Mr Harris said that CS Energy/Swanbank Power Station admitted to the existence of an error in the 1997 Certified Agreement, namely the inclusion of clause 3.3(2)(31) under the disabilities section of the Agreement. He said that the holding of a scaffolding certificate was not a disability and the fact that it was included amongst the disability allowances clearly showed it to be an error. -- 1 of 3 -- 31 March, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 405 By contrast, clause 3.3(3)(2) was designed to be an ability payment payable in similar circumstances to the Award provision. However, the Certified Agreement did not restrict the payment of the allowance solely to tradespersons. It was payable to any employee who held, and was called upon to use, a scaffolding certificate or rigging certificate issued pursuant to the Workplace Health and Safety Act. Mr Harris also said that clause 3.3(3)(2) was not relevant to riggers because of the “Note” which appeared at the commencement of the “Ability Allowances” clause. That Note is in the following terms:– “Note: Ability allowances shall not be paid to employees whose rates of pay include compensation for any of the following abilities.”. The certificate allowance for persons who held a scaffolding certificate or rigging certificate, and who were required to act on them, was the second “ability” cited. Mr Harris said that the rates payable to riggers under the 1997 Certified Agreement recognised that they held a scaffolding certificate and/or rigging certificate and that they could be called upon to use it as part and parcel of the performance of their job. In support of this contention Mr Harris subsequently provided a spreadsheet, showing translation of employees from the old 185 paypoint structure to the 59 paypoint structure, which had been prepared at the time of the making of the 1997 Certified Agreement. The spreadsheet showed that employees classified between levels 31 and 39 of the old salary structure had been rolled into a single salary level, level 1-3, of $27,500 per annum. The spreadsheet also showed the wage payable to the existing employees, including the then scaffolding allowance of $5 per week/$260 per annum, and the actual increase which would flow to each employee as a consequence of them being placed into the new broadbanded salary level. In the case of riggers who held a scaffolding allowance the increase was $947 per annum. In the case of the rigger who did not hold a scaffolding allowance the increase was $1,207 per annum. Mr Harris confirmed that the scaffolders had first raised the question of their entitlement to the scaffolding allowance in late 1998. He also said that it had been agreed during the negotiations for the 1999 Certified Agreement to leave the wording of clauses 3.3(2)(31) and 3.3(3)(2) unchanged and to refer the matter to the Queensland Industrial Relations Commission for determination. Conclusion It is not unusual for individual employees to complain that the process of broadbanding has led to a loss of relativity vis a vis some of their work colleagues. However, very few employees ever complain that the process of broadbanding has led to an increase in their own wage rate because they have moved to a new, higher, wage level arrived at because of the process of broadbanding. It is certainly true that Mr Robinson, a rigger, has faired better as a result of broadbanding than the other riggers who hold scaffolding tickets. However, different wage increases are a potential, and natural, outcome of any broadbanding exercise – particularly one as large as at Swanbank where the number of classifications was reduced from 185 down to 59. The important thing about the broadbanding exercise was that every employee received some increases – albeit with some receiving larger increases than others. The riggers have not complained about their increase of $947. They have, however, complained that Mr Robinson, and the labourers, received more. Their argument is unsustainable. At the time of the broadbanding exercise in 1997 Austa Electric/Swanbank chose to draw a broadbanding line below the wage level for a second year rigger and to move that level upwards into the next grouping (1-3 at a salary level of $27,500) rather than drawing the line above the third year rigger and including that rate at the upper level in wage group 1-2. Had the employer moved the rigger group into the lower level the salaries payable to riggers, excluding the scaffolding allowance, could have been some $1,000 to $1,200 less than the rates which were ultimately determined. After taking into account the then scaffolding allowance of $260 per annum the rates could have been between $750 and $1,000 lower. The calculation sheets clearly show that it was a conscious decision of the employer to lift the riggers upwards into the next wage group, after taking into account the scaffolding allowance. The riggers have benefited from the employer’s decision and will continue to benefit into the future. Broadbanding of employees into new classifications facilitates multi-skilling and career progression. It is also designed to reduce demarcation disputes because employees are expected to be able, and can be called upon, to perform a wider range of duties encompassed in the broadbanded classification. The problems at Swanbank are accentuated, perhaps, because of the fact that Mr Robinson has apparently never obtained a scaffolding certificate and because labourers are now classified in the same wage group as riggers. As unfortunate as that might be in the eyes of the scaffolders it does not constitute a ground to argue loss of relativity. Nor does it provide a basis upon which the scaffolders can argue for payment of an allowance based upon their reading of the Certified Agreement. There is clearly a duplication of the provisions set out at 3.3(2)(31) and 3.3(3)(2) within the Certified Agreement. The former provision is clearly an error. It was probably written into the initial drafts of the document in an attempt to simplify the provision contained within the Electricity Supply Industry Employees Award – State. However the provision came to be, it was placed into the disabilities section of the Certified Agreement in error because it is not a disabilities payment. The provision was (correctly) written into the Certified Agreement as an ability allowance in clause 3.3(3)(2). The former clause should be removed to avoid further confusion because it is a duplication. The second clause (3.3(3)(2)) has no application to the riggers who hold a scaffolding or rigging certificate. Their pay rates clearly include compensation for the fact that they hold a scaffolding certificate or rigging certificate issued pursuant to the provisions of the Workplace Health and Safety Act. They are, therefore, not entitled to “double dip” by claiming the allowance. Entitlement to the allowance is reserved for other employees whose wage rates do not include compensation for holding and using the scaffolding or rigging certificates – such as maintenance tradespersons. For the foregoing reasons it is the Commission’s determination that:– 1. Clause 3.3(2)(31) of the Austa Electric, Swanbank Power Station (Enterprise Bargaining) Certified Agreement 1997 should be removed because it is a duplicate provision; and -- 2 of 3 -- 406 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 March, 2000 2. The riggers who hold scaffolding certificates or rigging certificates are not entitled to the allowance prescribed at clause 3.3(3)(2) because their wage rates include compensation for the fact that they hold, and can be required to act upon, such certificate(s). The Commission determines accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr D. D’Arcy, with him Mr R. Drew and Mr D. Maurice for the Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees. Mr G. Harris, with Mr W. Hirning, Mr R. Pennington and Mr T. Nugent for CS Energy. Released: 16 March 2000 ########################################################################################################################### -- 3 of 3 --