Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch Union of Employees v Serco Gardener Merchant Pty Ltd & Ors [2000] QIRC 1 (2000) 163 QGIG 82

82 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 February, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to make, amend and repeal award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch Union of Employees AND Serco Gardener Merchant Pty Ltd AND Others (Nos. B1181 of 1999 and B1364 of 1999) -- 1 of 4 -- 11 February, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 83 GROUND STAFF AWARD – SOUTH EASTERN DIVISION GREENKEEPING AWARD – STATE COMMISSIONER FISHER 1 February 2000 Application for variation – Application for new award – Dispute notification – Award to be limited in coverage – Ground staff work award free – Proposed classification structure – Policy Statement – Statement of Principles – National and State Wage Case decisions – Insufficient information to create an award – Parties directed to confer. DECISION On 17 August 1999 the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) filed a notification of dispute with Serco Gardener Merchant Pty Ltd (Serco) concerning award coverage of employees performing grounds maintenance duties (D214 of 1999). The critical issue in the conference was whether the Greenkeeping Award – State applied to the work of employees engaged by Serco at a particular site where they had a contract with the Defence Department for grounds maintenance. As a result of that uncertainty the Union decided to file an application (B1181 of 1999) seeking to extend the coverage of the Greenkeeping Award – State to grounds maintenance. That application was listed for preliminary hearing on 30 September 1999. At the hearing Serco suggested the making of a new Ground Staff Award – State as an alternate solution. The Union conceded the merit of this proposal and subsequently filed a fresh application, B1364 of 1999, to make a new award entitled “Ground Staff Award – South Eastern Division”. It was listed for hearing with B1181 of 1999. During subsequent hearings various organisations appeared to register an interest in the matters. Their concerns primarily related to the award coverage clause and the potential for the Ground Staff Award to impinge on other awards of this Commission. The issue of award coverage was resolved by the Union proposing as an interim measure to limit its application to employees who service Defence Force contracts. The proposal was made to ensure the making of the Award was not delayed, however, the Union reserved its rights to seek to broaden the coverage at a later time. Those organisations which had an interest in the matter were satisfied with this approach and also reserved their rights to further press their concerns in the event the Union sought to extend the coverage of the Award. The major employer party with an interest in the application was Serco. No other employer or employer organisation expressed any views about the making of a new interim Award or its proposed contents. Serco had no objection to the making of a new Award to cover ground staff employed on Defence force contract sites although some issues arose about certain proposed contents. Having chaired the dispute conference (D214 of 1999) it is apparent that the work performed by particular ground staff is award free. The application of the Greenkeeping Award – State to limited areas of ground staff work is probable but not certain. In that light the making of a new award to cover work performed by ground staff would provide certainty and ensure the establishment of a safety net of relevant wages and conditions. For the reasons outlined above the parties have agreed to limit the application of the new Award. The Commission has no particular difficulty with that approach and accordingly makes a new Award entitled “Ground Staff – Defence Force Contractors – Interim Award – State”. Although Serco had raised a number of concerns about the content of the new Award, ultimately agreement was reached on all issues with the exception of classifications, relativities and rates of pay. On these matters the Union broadly sought a classification structure similar to that found in the Greenkeeping Award and the same relativities and rates of pay as prescribed by that Award. The Union’s application seeks the following relativities and rates of pay. Ground Staff Level 1 Up to 3 months 79% $385.40 Level 2 87.4% $420.90 Level 3 92.4% $443.80 Level 4 100% $477.20 Level 5 $498.10 Level 6 $518.90 In developing its argument the Union provided as exhibit 3 a sample of relativities for classifications comparable to that of ground staff from various State Awards. The Union contended that the relativities sought for the classifications in the new Award were consistent with those established in other awards. Given it was the function of the Commission to ensure that awards provide a relevant and consistent set of wages and conditions the Union argued its proposal ought to be accepted. Serco opposed this approach and pressed the adoption of the classifications, relativities and rates prescribed in the (Federal) Nationwide AWU and ALHMWU Australian Defence Forces Services Consent Award 1992. The classification structure in that Award provides 6 levels of which 3 are relevant to grounds staff. Serco proposed the following classifications, relativities and rates of pay based on the Federal Award:– Level 1 79% $385.40 Level 2 84.3% $406.30 Level 3 100% $477.20 Serco urged acceptance of its proposal primarily on the grounds the Union was a party to the consent Award and to ensure a level playing field applied to contractors to the defence forces. Section 126 of the Industrial Relations Act 1999 requires the Commission to consider a number of matters concerning the contents of Awards. Several of these, namely paragraphs (d) to (f) are particularly relevant to the consideration of the present matter. In addition, the Policy Statement on Making and Amending Awards (19/11/99) sets out a range of matters to which the Commission will have regard in determining the content of a first award and then provides that the Award must be consistent with the Commission’s objectives under Chapter 5 of the Act. The Commission notes the statement of the Full Bench in Re: Application for a Declaration of Policy (162 QGIG 359) that – “. . . the guidelines do not (subject to the availability of appeal by leave) absolutely bind a Commissioner sitting alone.”. The Statement of Principles is intended to guide a single Commissioner on how to approach applications dealing with the making or amending of awards and it is apparent that a single Commissioner should follow the guidelines subject to certain exceptions. -- 2 of 4 -- 84 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 February, 2000 The Statement of Principles provides, with respect to the content of a first award, that “the Commission will have particular regard to” a number of factors. I propose to refer to each of these in turn as they relate to the present matter. (a) The existing wage rates and conditions of employment applicable to the employees to be covered by the proposed award:– As Serco was the only employer party to appear on the matter of content, the information on existing wage rates and conditions is confined to them. The difficulty is that Serco declined to advise the Commission of the existing wages and conditions on the basis that Australian Workplace Agreements (AWA’s) apply. The Commission was not told how the existing rates compare to those claimed in the Union’s application nor Serco’s response. In addition, the Commission was informed that no position descriptions existed. The absence of this information makes the task of the Commission in determining appropriate classifications, wages and relativities extremely difficult. (b) Relevant Statements of Policy and like decisions:– I shall deal with relevant National and State Wage case decisions under headings (c) and (d) below. (c) Relevant wage rates in other awards:– The Union’s exhibit 3 showed that the rates claimed in the current application are broadly consistent with those found in other awards of this Commission. The Union put a strong argument for the maintenance of consistency across awards and submitted that employees to be covered by this Award should not be disadvantaged in terms of their wage rates when compared with other workers who possess similar skills and competencies and perform similar tasks. Serco argued the wage rates in various Federal awards and certified agreements which cover comparable work should be those which applied in the new Award. Mr Townsend, appearing for Serco, took the Commission to the history of the Nationwide AWU and ALHMU Defence Force Services Consent Award 1992, and submitted that the present applicant’s Federal body had consented to wages and relativities in the Federal award which were now being opposed in the matter now being heard. In addition, Mr Townsend provided copies of other Federal awards and a certified agreement to which the (federal) ALHMU is a party and which contain those wages and relativities as being sought by Serco in its response. Serco decried the Union’s inconsistent approach to applications which covered similar work, albeit they applied to companies other than Serco. Mr Townsend did not suggest that this Commission was bound by those awards or agreements, however, by reference to case law, he strongly submitted the Commission could extend consent provisions to unconsenting parties unless it could be shown the provisions were unfair, improper or unreasonable. (Re: Appeal against Order – Municipal Officers (Melbourne and Metropolitan Board of Works Award 1975) (165 CAR 478). In examining the issue of relevant wage rates to determine the content of a first award, the Commission is required to examine other awards. No such requirement exists with respect to agreements. Neither could the Commission be so obliged given the circumstances and conditions under which agreements are made and legislative provisions relating to their making and certification. The extension of consent award rates to certified agreements may be a factor to be taken into account in reaching a decision, however, agreements per se can only be given limited weight for the reasons outlined. Moreover, the particular agreement tendered to the Commission as evidence of the Union’s inconsistency was made by a different entity to the present applicant. The Commission has had the opportunity to read exhibit 8 which is documentation relating to the (federal) ALHMU’s becoming a party to the 1992 Consent Award. The (federal) ALHMU became a party to that Award as a result of a settlement of a s. 118A demarcation application, however, it is interesting to note that it did not gain coverage of grounds’ maintenance staff: such coverage was retained by The Australian Workers’ Union of Employees, Queensland. Accordingly, Serco’s argument regarding the inconsistency of approaches by the ALHMU loses weight. Having said that, the Commission reiterates that it notes the acceptance of those relativities by the (federal) ALHMU given their insertion into a certified agreement to which that Union is a party. (d) The maintenance or establishment of appropriate relativities within and between awards and the need for skill based career paths:– The arguments of the Union and Serco on this issue were similar to those put with respect to wage rates. Setting of appropriate relativities was addressed in the National Wage Case decision of August 1989 (30 IR 81). That decision was one of a series designed to improve efficiency and productivity through the restructuring of awards to ensure their relevance to workplaces. The approach adopted by the National Wage Case Benches was supported by the Queensland Commission as evidenced by the various decisions which followed. Discussing the establishment of relativities, the August 1989 National Wage Case Bench said at p. 12:– “The Commission will only approve classifications in a particular award when satisfied that they are consistent with the rates and relativities fixed for comparable classifications in other awards. Before that requirement can be satisfied clear definitions will have to be established.”. The definitions proposed by the applicant Union are those prescribed by the Greenkeeping Award – State with minor modifications. Hence the consistent relativities sought in the new Award. Whether they accurately reflect the duties and skills required is challenged by Serco. Their counter proposal adopts the definitions and relativities in the Federal Award referred to earlier while broadly referring to duties and skills the definitions are brief thus rendering an assessment of appropriate relativities difficult. The Union provided as exhibit 4 a listing of sample duties performed by ground staff together with typical qualifications held by them. This exhibit was not endorsed by Serco. The Commission views it as informative but not conclusive. * * * * * * In trying to arbitrate the questions of appropriate classifications, wage rates and relativities the Commission is faced with a near impossible task. No information on existing wage rates and conditions have been provided. Position descriptions do not exist. Evidence about duties’ skills and qualifications has not been given nor have inspections been undertaken. The Commission has been asked to determine the questions on the basis of substantially different classification definitions and having regard to competing arguments, viz, that relativities and wage rates should be set having regard to comparable State awards (the Union’s case) or that relativities and wage rates should be set having regard to consent Federal awards which apply to the same industry and to ensure a level playing field (the employers case). In my view to resolve the questions the requirement set by the August 1989 National Wage Bench of establishing clear definitions needs to be met. Without that relativities and wage rates cannot follow. -- 3 of 4 -- 11 February, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 85 Given the paucity of information upon which to make an informed decision I intend to refrain from expressing a concluded view. Instead I propose to express a view on certain critical issues and then allow the parties an opportunity to confer to see whether their differences can be narrowed. In the event agreement cannot be reached then the Commission will require further and better information to be placed before it to enable a decision to be made. I am aware that the Union’s application adopts the relativities approved for the Greenkeeping Industry Award – State. Serco’s application adopts those from the 1992 consent award. My examination of those relativities when compared to the Engineering Award – State (or the Federal Metal Industry Award) has led me to the view that they may be too low. In my view, the employer’s proposed definition of classification Level 1 is more consistent with 82% while Level 2 would appear to range between 87.4% and 92.4% depending mainly on the type of equipment used and the qualifications required for operation but also on the complexity of duties performed. I appreciate my views depart from the AIRC approved consent award, however, the matter before me requires arbitration of competing claims and hence a more critical examination of those claims. Whether a Level 1 “Introductory Level” at 79% is required is not yet a matter about which I can express a view although there may be a benefit to an industry such as this. Any such level would, in my view, only have effect for employees in the first few months of employment. The 79% rate is an introductory rate in the majority of awards in which it is found and does not have continuing application to permanent adult employees. Rates and relativities beyond 100% do not at this stage appear to be required. I would not incorporate them into the Award. I have found the classification definitions proposed by Serco (as taken from other sources) to be limiting. The approach adopted by the applicant which follows that generally adopted by this Commission is preferred. An outline of the definitions, duties, indicative tasks and/or qualifications provides a more complete picture of the role to be performed. In light of these comments the parties are directed to confer to see whether they are any closer to reaching an agreed position. In expressing these views I have not overlooked the rationale of the employers approach. The Commission is cognisant of the case law regarding the extension of consent provisions to non consenting parties. Although I have expressed reservations with the relativities established in the Federal award, this may be a problem of the definition of classifications. In the event the parties are unable to agree then the Commission will require further information to be placed before it. Should the views expressed above have an impact on existing wages and relativities particularly in terms of consistency across contractors then a process is prescribed by s. 170WI of the (Federal) Workplace Relations Act 1996 to present information covering current arrangements. The applicant is required to advise the Industrial Registrar’s Office within 30 days of the date of release of this decision of the progress of the matter. In the event of agreement the Union is directed to file a draft Award. The remaining contents of the proposed Award are considered appropriate. Order accordingly. G.K. FISHER, Commissioner. Appearances – Mr J. Martin of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr R. McColm for The Australian Workers’ Union of Employees, Queensland. Mr T. Townsend on behalf of Serco Gardner Merchant Pty Ltd. Released: 1 February 2000 Ms K. Delange for The Registered and Licensed Clubs Association of Queensland, Union of Employers. Mr G. Muir and Mr M. Patti (of Employer Services) on behalf of the Royal Queensland Bowls Association. Mr S. Pawlowski (of the Queensland Chamber of Commerce and Industry) on behalf of Brisbane Catholic Education, Queensland Catholic Education Commission. Mr R. Egan (of Jones Ross) on behalf of the Presbyterian and Methodist Schools Association. Ms N. Taylor (of Livingstones Australia) on behalf of Queensland Nursery Industries Association. -- 4 of 4 --