Brisbane Market Authority v Australian Liquor Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees [1997] QIRC 591 (1999) 157 QGIG 8

8 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 January. 1998 ########################################################## QUEENSLAND INDt;STRJAL REI..ATIONS COMMISSIO!\ Workplace Relation> Ac/ /997 chapter 2. pan l - ,;ertified agreementS Brishane Market Authonty Australian Liquor. Jlo�p1tali1y and Miscellaneous Workers Union. Queensland Branch, t;nion of Employees (No. C:4706 of /997) BRISBANE-�IARKET AUTHORITY EMPLOYEF.S' CERTIFIED AGREEMElliT COMMISSIOi',fER BUX)MFIELD 22 Decemher 1997 Certified Agre.emcnt -Application for Approval -Opposition by ALHMWt; on hehalf of a relevant employee- No Disadvantage Test - Puhlic Interest - Long Service Leave - Effect of s. 191, s. 193 and s. 196 of Workplace Relarinns Act I 997 considered - Arhitr ated Matter - Miscellaneous Workers' Award - Srare determined to be appropriate Award under s. 120 for deciding whether prnpo!led Agreement passes the no disa dvanta ge test - Proposed Agreement does nOI pa.<c• no disadva ntage test -No entitlement to long �ervice leave if the Agreement approved hy virtue of effect of s . 191. s . 193 and.<. 196 -Cenifying of Agreement nOI i n puhlic interest - Agreement referred hack to parties for opportunity 10 amend. DECISION This is an application by Brishane Market Authority for approval of a Certilkd Agreement hetween itSelf and it5 employee-< 10 he k nown as lhe Bri.�hane Mark et Au thority Employees' -Certified Agreement. This i.s the second such apphcal!on, lhe Conuniss,on having consider ed an ear her proro.<ed Certified Agreement (CA439 of 1997) on 6 Augu.st 1997. On that date I declined to certify th" Agreement hecau.<e it did not meet lhe no disadvantage 1est in a numher of areas including wage.< (which were less than the then rates payahle under the I ndustrial Agreement hetween i\u.<tralian Liquor, Hospitality and Miscellaneous Worker,5 Union. Queensland Branch, Union of Employee.< (ALHMWU) and the Market AuthOflty), the lack of a provision for payment for sta1utory holidays and douht ahout the rate of pay when an employee proceeded on annual leave. Quite apart from that the affidavi t lodged in purported comphance with the Regula1ions failed to address a numher of the matter s required to he addres�ed in such an affidaviL I invited the Au thority 10 correct the document to ensure lhat 11 met the no di.<advantage t,:st and to re-suhmit it at a future time, together with a fre;.h affidavit which met the requi rement< of Regulation 4 of the Workplace Relatio n.< Regulati()n 1997. A new document wa.< lodged with the Commis.<ion on 12 Novemb er 1997. some three monlhs after the earlier proceedings. The fresh application was li�1ed for hearing on 2 December 1997. On that date, Mr I. Humphreys, a solicitor, entered an appearance on behalf of the Brisbane Market Authority as well as twenty-tw o of the employees. M r J. M ar tin. of ALHMWU appeared. without ohjection, pursuant to s . 24 of the Workplace Rdations Acr l99i on hehalf of an employe e(.s). Mr Humphrey.< indicated that twemy-two out of a t0tal of twenty-four employee$ had indicated in writing to the Authority that they appr oved the term.sof the. new Agreemen1. I was informed that on 2 3 September 1997 the Authority "'Tote I<) each employee enclosing • copy of a r evised Agreement (following the Augu,1 hearing) for lheir perusal and comment. Each employee wa. < asked to satisfy him<elfiher.self ab<>ut the cont�nt of t he A!;(reement hy I O October 1997 and invited 10 raise any queries wilh the Authority. On I O October I 997 the Authority again wrote t o all employee .< indicating thal the feed-hack which it had requested had identified on, "over.sight" which the Authority su ggested be included i n 1he proposed Certified /\greemenl. ·1nis re.lated to the ove.r time rates for Gatekeep ers. 9 January, I 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 The lett.or infonncd �mployee.• that the Auth orit)' was giving them fourteen <l,ly<: notict! of its mknt1on to l?nh.·r into th.; . i\grccrn�n_ t anti cndo�cd an ami;nJcd ,opy of it. The t!.mploycc.,· wt!rl.! al<.:c., mfonr1c:d ;pur<.:uanl to <:, 20/S)) that any employ,,· ,._fa, wa, a m�mh"r of a l 'nion wa, eo1i1kLI Ill reque...::t that L'nion to rcpre:.:it.rnt thc•m in n1e�ting and conferri ng with the Authority .wou• 1he temt< of th,. Agreement. lhe klla went on to md1ca1c thal ,,n 24 Oc1,,her all cmploycos would he pr,wided with a fu,1her letter inviiine thern 10 imlicak their con�<nl to the proposed Agree.ment by signing a cop)· (,f th.at lctk:r. Twen1y�1w<\ nut t.>f . tw�nt.y-f<."Ur ,. cm.ployt!c5: ;u hsequently signed the 24 October ktter therehy .s1gmfyrng their agreement l�) lht 11:rnt� of tJ1e propo.<.:�d Ccrt1.fit!<l A�n:<:ment. I wa.< also irlfom,cd th,H the ALH�·IWl! was a.<k'-'d 10 repre.<ent • relevant employee(.<) and that th� Authonly met and conferred with the ALHMWl: on 21 Oc1oba 1')97 before the Agreement was made. A.< a ,.,.<ult of this discu.<sion the Authonty "cho.<t: to improve·· the Agreen1c.n1 in a numhtr of ways whic..:h. it was suggest(!d, w..::r� ot a formal or cleric.a) nature'. and did not adversely affec t a relevant employee'.< interests. Mr Humphreys also requested lhc Comm1�.<1on lo acl pu rsuant to.<. 120 <>f the Workplac� Relmio,1.1· ;\rt /997 to dct ennine that the Mi.scellano.ous Workor.s' ,'\ward - State. a.< an Award regulati ng cmployn1ent condition.< of employee.< eng agc·d in a similar k.in,i ol work a< persons under th" Agreement, wa• the apprnpriale Award for deciding whether tht: Agreement pit<.<cd th,· no di,a1Jvan1ag<' te�t. Arising from the discussions with AI.HMWC on 23 Octo�er - and the .<u�sc<jucnt de cision to "improve" the Agrecrnen1 - Mr Humphreys .<ought to m.1kc certain .. uod(·rtaking:.;'' in r<!�p::ct 10 the Agrc(!.ml.!nl. However, in thG sanw p«rJgraph of his suhmission he sought tha t the Agreen1cnl "he varied acc,>r<lingl)''. ·rhe undertaking .</re<jUl!St for variation involv<.:d: change.< to wage rates t< > take acl•ount of a recrnt Safety s.,, AdJU.Stment; change.< to certain �llowanct'� to reflect a ri:::c�nt Sa.fdy '.'\t.·t A.djus1n1cnt: change.� to correct a "t ypognq>hical error" to show th,,t a panicular allowance w:,< payable d•ily rnthtr than weekly: the removal nf a provision whkh indicated that th,, all owanc'-'s wer� ahs()rhablc into any mc.rea."-�S granted m hat� rate.,;; whilst lhe /\grecment w:t< in operation: an u ndertaking that the.re ho a hrcak of eight hour.,· b!!twei.!n shifL<: "in ai.:cordance: with gent!cal award provbdons'': and, an undertaking to pro\'itlc one tw�nty rrunutl! or ,wo tt!n nUnutc: h.:a hrcak.< in acco rdance wilh the rekvant Award clause (in h�u of the fifteen n-u nu1es propo.<ed}. \lr \lartin, a1 the ,mt.<ct, accepted that the M,secllaneous Worka,· Award - Stale wa.< the app ropriate Award again st which the. Com1ru!<.<i110 should apply the no disad,,antagc lest. I am satisfied. and I now for mally r,,c ord pursuant to. <. 120(4) of the Workplace Relo1io11., Ac/ /9<)7 - a< I am requir ed lo do following a rcque-<1 to determine an app ropriate /\ward - that the Mi.scella.neous Workers· Award - State ,.s the appropriate Award for deciding whether the propn<t'd Agreemenl pa.'<.<cs the no disadvantage test. I do this 1101with,1anding that there is a registered lndu,tnal Agreement between ALHMWU and Brisbane Market Author ity which, of course. can he re.scindcd at any ume hv the giving of appropriate notice hy either of th� parties. It L< also ('onven,<,nl lor me to record at this point lhal m the earlier pr<weedings on 6 August 1997 I used lhc e�1s1mg Industrial Agreement a.< U1e rcfer,mce point to apply the no disadvantag� 1�s1. '!hat option L, no lo nger availahle to me following the detcrminatton - at the Author ity's re4uest -lhal lhe Miscellaneous Work<1rs' Award - State (the Award) he the Award for deciding whether the Agree.1ncnt pas.<c s the no disadvantage tc.<t. Mr �fartin arg u<'d that the propos,d Atrccment did not meet the no d1sadvan1agt: test when compare d 10 the Award. l·k indicated that. in addition to the item< ide ntified hy Mr llurnphrey.<, the Award provided for a .<h1ft allowance ()f 15% for workers who wor ked a shift Monday to Fnday inclu.<1ve and that Uie proposed afternoon and 111gh1 shift dllowancc of $8.60 per ,hih would not compensate for the lo.ss of the per centage shift penalty. For a Lcvd 4 employee five days on shift under U1e Award would return S67.70. l'n der the Agram�nt th e shift wo rke r would nominally receive $43.00. However, because there were no hour .< of daily work prescribed (except for cleaners) and becauSe there was nc> shift definition no employee w<>uld have a legal entitlement to recei,·e the $8.60 daily ($43 pe.r week) shift payment prnposed in the Agreement. "1r Martin :<i.<o refecred m� to correspondence from Dawson Waldron, on hdialf of the Authority, which rderred to the mccting held with ALHMWt: on 23 ()c1oh..>r. 'lnat letter contained a suc.::in ct summary of the matt.:r.< rai� hy the Union a.s alleged ddic,encie.< in the Agreement in any n0 disadvanLage test. Included in tht: it�.m'-' raised was that there v:as no reqmremcn l for the ordinary hours of work to he worked over live consecutive days: that there was no provision to the effect that annual leav� loading .<hou ld he calculated hy reference. to an employee's projected ro.<ta: that !her<' wa.< no provision for long .<crvice leave: that there was no definitio n or �xplanation of the term., used m the. allowan.::e� clau�e: that Lhac was now a requiremen t to produt:e a doctor'.< certificate for abs,.,nces of two days (>r more: and, that there was no r<0quir.men1 to consult with th< t;nion in relation tu p roposed rosters. Mr Martin argued that the Agreement should provide fot at ka.st two week's pay for e,,ch year of service in the case of redundancy, ra1her than the Commis.<1on·s Stalem..-:nc of Policy "Termination of Employment, Introduction of Changes. Redundancy", beca use there were employee.< working side hy side with those, d the AuthO(ity who were cn1i1led to a redundancy package in the order of three we.ek.< pe r year of .service. He also rai.sed a concern ah out the levd of c:xplanation about the term., of the Agreement which had heen given I(> employees a< well as the amount of consultation which had occurred with the Al .H MWt; pu rsuant to s. 20(6) ()f the Act. Finally, in referring to s. 25(3}, Mr Martin indicated that he under.<tood that the ;\et required the Co mmission 10 certify an Agreement which did nOI pa.ss the no disadvantage test if the Commis.•ion wa< satisfied that Certifying the Agreement w,-, not C<lntrary to the public intere.<t. He queried why a s1a1u1ory aulhooty wooId nOt he required 10 rnec.t the no disadvantage test In hL5 reply Mr Humphreys addressed a nu mher of the i.ssues raised hy Mr Martin including the adequacy of the proposed afternoon and night shift allowance. In doing so he provided a iunher undertaking, on hehal f of the Authority, to pay the shift allowance recently de1em1ined under a General Ruling of the Commi<sion. viz. $9.13 per shift. in lieu of the $8.60 mcnlioncd in the propo.<ed Agre�ment. He also reJetted Mr Marti n'.< contention that the Agreement's failure tn provide for further increa.ses during 11.< tem1 offende,d the no disadvantage test. He submitted that there was no requiremen t under the Act for Agreernent5 to provide for future wage increases. The Commission wa.< n1crely rc<juired t,> .<at i.<fy iL<elf at th� time of certifying the Agre ement that the no disadvantage test had heen met hy refere nce to the Award a, it .<tood at thdt till'!<,, I agree with this suhmission. On the matter of the f.ulur" of the Agreement to addre.<s long service leave Mr Humphreys �ubmilled lhat the employer wa.s proposing to deal wilh a numher of the 11em.s rai.sed t>y the union in their discussions with the Authority - i ncluding long st:rvice leaw - am1 indicated that the Authonty proposed that those matters be part of the negotiation.< for the next Agreement. Mr Humphreys al.so sought for lhe undertakings/requests for varia1ion.< in rdation t<) tJ1c proposed Agreement to he dealt with in accordance with .< . 20(10) of the Workplace Relatio11.< A(t 1997 in that th� Agreement sh{)IJ!d he amended - to renect the undcrtakingsNariations - without the. need to take them hack to the employee.< for futthe r con.sideration. h wa.s suhm11ted that this could he done hecau.,e the am<,ndmenL, were e.ither of a formal or clerical nature. or were such 1hat they did nOt adwr sely affect a rele.v anl employee's interesL5. Conclusion This is the second time that t his proposed Agreement ha< hee n before lhc Commissio n for certification. Bearing that fa,1 in mind, and noting that on the first occa..<ion the CommL<sion drew lhe Authority's anen tion 10 a number of in.tdequacie.s in the proposed Agreement as well as a suh.stantial nu mher of inadequacies m the affidavi1 which accompanied it, I would have thought that the Authority would have paid much greater at tention to en.suring 1ha1 the tenns of this Agr oement wcr.; such that the no disadvantage 1 e .st would no1 come into qu�stion. However, the numher of undertakings/reque.<t.s for variation made hy Mr Humphreys during the cour$e of the proceedmg.< renects lhe el\tent to which the proposed Agreement (as lo dged) failed 10 meet the no disadv antage t e.<L His undenakings/reljuests for variation represent only those area., where the need 10 change the propo,5ed C.ertified Agreement was conced ed hy the Authority if the Agreemenl wa.s t o meet the te.<L On t<>p of these conce.s.sion,, 25707_1.D<>C -- 1 of 2 -- ]() QUEENSLAND GOVERNMENT INDUSTRIAL GAZErrE 9 January, 1998 however, lhc propo.<ed Agreemenl, in my view, also fail.• 11) meet lhc n,l <lisadvan1age 1e.s1 in a numher of 01ha re.,pe�1s, a.< follow.s: - IL< failure 10 provide a <lefinilion for $hill work produce.s lhc: rc.sull 1ha1 no employee would have an c:n1i1lcmen1 10 r<cei"e a shift paymcnl - whe1her II h..: a monclary allowance as propmcd or lhe 15% payment provided for in 1he Award: It.< fai lure I<) provide 1ha1 work he pe,tnnn«I only on any live t-on.<ecu11ve days out of seven as provided for in 1hc Award : It< failure 10 provide 1hat ordinary hours he worked only helw.:,n 6.00 a,m, and 6.00 p, m, as provided fnr in 1hc Award: • hs failure 10 provide 1ha1 ordinary hours worked l�Jt.<ide lh,, spread ahove he paid for at ovenime ra1e.s: Section 25(3) of lhe Workplace Rrltition.,· Act 1997 provides a.s follow.<:- "(3) ff- (a) !he only rea.son why lhe commi,<.<ion mu<! nnl certify an agreemen1 i.< lhal lh� agreemen1 d(ic.s nol pass the no.. disadvancagc le!'!; and (h) lhe commi.1sion LS .sa1i.sfi"d that cenifying the agreemen1 i., no1 con1ra.ry 10 1he puhlic in1<::re.51: lhc agreemcnl is take.n10 pass lhe no-di.sadvan1age lesL", It •• clear from the conccs.sions hy Mr Humphreys (above) and my own findings ahoul areas of disadv,m1agc 1ha1 lhe Agr"em"nl docs not pass lhc no-disadvan1age lesL However, chat de)<'.., m>t end !he manor. Sec:1ion 250) of the An al.so re4uires me to consider whether certifying lhe Agreemenl would 001 he con1rary 101he puhlic inkrest I am sa11sfied, upon my review of the /\greemen1 and the ow.rall d1sad,·an1age which would t1ow 10 -,mploye.,, if it were approved, 1ha1 cenifymg the J\grcemem (as lodged) would he t:on1rary 10 the public inlercsL The Brisbane Market Authori1y is no1 an in.significanl employer and i1 faoes no immediale, or foreshadowed, c'ris1s -such as tha1 recorded ill the example of lhe applica1ion of s. 25(3)(h) - which would .suggesi a need for the Agreement'.< provisions 10 be k.ss favourable 1han tho.<e which would olhcrwisc be applicahk if lhc �1scdlancc,us Worker.,· Award - Swtc operaled al lhe site, In my view certifying the proposed Agrcemem of such a v1s1hk and .'.'-igniti<:anl crnploycr � the Authorily, in circu1 n�tance� whc:.re th� no disadvan1agc le,st ha< heen failed in so man)' individual aspect<, would sc.nd lhe wrong message 10 employers and employ,;e., g�n,srally. ,'\ccordmgly, m all of the circu1mtanceS, I detenninc thal it would 1'e contrary 10 !he puhlic inlcrcsl to certify 1hc Agrccmcnl (as lodged) and I forn1ally declinG 10 do so. See1ion 27 of the Act indicaleS thal if, unda s, 25, lhc Conunission has grounds 10 refust 10 certify an Agretmen1 the Commi.ssion mu.<I give the person� who made lhe J\greemen1 an opportur1i1y 1(1 cake the ae1ion 1ha1 may he necessary 10 make the Agreemenl cenifiahle, I propose 10 do !his and 10 re1urn the Agreement t<I 1he parties in orda tha1 they may rnt�'lder lh<: variou.< disadvan1ages, conceded hy \1r Humphr«ys and idenlified hy me (above), and ac1 IO amend !he propo.<ed Cenified Agr<'ctnenl such tha1 lhc area< of disad,· antagc arc overcome.. In thisregard I record thal lhe inclusion of a mone1ary shift allowance of $9, I 3 would no1 cause me 10 rejecl the l\greemen1 again. Similarly, I would nol require lhe sick leave dause 10 l>e allered 10 deal with absences of 1wo days or kss. :--or would I require lhc clause dealing wi1h paymen l for annual leave 10 he altered. In refemng the prO,XlSed Cenified Agrecmem hat:k 10 !he partie,, for their a11en11on I also wish to rai"e cen,un concem< regarding long service leave. Th�se concerns have ari$en only af1er detailed consideralion of the L5Sue of long service leave and the effect of Pan -I of Chap1er 4 of the Workplace Relation.< Act 1997, The effect of the Part on entillen-,nts 10 long service leave and the possillle loss of same, when a Cenifted J\greemen1 i• approved, do not app;:ar to have been previou.sly wnsidcred hy anOlher Member of 1he Comrmssion dunng a cenifica1ion hearing. CUJTenlly, lhe employees of the Authori1y are covered by U)e Brishanc:: \farkot TrtL<I - Markel Officers - Industrial A1treemen1. That Agreement provide.,, al dau.se 5.-1, 1ha1 "all employees covc;cd by Uiis Agrcen;ent shall he entitled 10 long service leave on full pay under, suhjecl I<>, and in accordance wilh, 1he provision.< of s, 1 1 of lhe /11d11.,trial R,lation., Act 1990,". The "vliscdlaneou, Workers' Award - S1a1e provides, in clause 7.4, for lc>ng servi�e leave for employees covered hy 1ha1 Award, The "coverage'' clau.�c of 1ha1 Award provides 1ha1 lhe Award shall 1101 "PPIY 10 cmpl(lyee.< "for lh• 1ime being covered by any Olher lndus1rial Aw,11d or Aereemenl". Accordingly, lhe employees of 1he Au1hoti1y, heing covered hy an �lndu.s1rial Award or Agreement" ie.. lhe Brishane Markel Trust - Markd Officers - lndumi.11 Agrcemeni, would have no en1i1lemen1 10 long .service leave an.sing from the .\1iscellaneou.< Workers' Award - S1a1e. u· lhe proposed Certified Agreemen1 is apprnv;,d and lhe s:xis1ing Industrial Agreemenl is subsequently cancelled -or 11 is found, as a nu111er of law, 1hat lhe Certified Agrecmenl supersede.• lhe lndus1rial Agreemenl - the employees of the Authorily would <..'Onlinue 10 he excluded from coverage under lhe Miscellaneous Workers' Award - Slale and, hy virtue of lhe opera1ion of Pan 4 - Long Service Leave, of Chapler 4 of lhe Workplace Rr.la1to11x A('( 1997, would have !!2 cn1itlcmen1 lo long .service kave, This is hecau.se of the comhined effe.(1 of s, 191, .s. 193 and s. 196 of the Workplace Relatiom Act 1997. Section 191 - '·Source of long service leave en1i1lemcnt" of the Workplace Relariom Act 1997, pmvide_s, in pan, a< follows:- "191. Tnc en1illemen1 of employees 10 long service kave on full pay i$ - (d) for employees who have an en1i1leme111, under an 1ndus1rial ins1rument, that i.< 1101 as favourable a1 the en1i1lcmen1 under !his par! - as prescribed under 1hi< part.". Seclton 191 would nm provide a "safe1y nel'' en1itlenwn1 10 long service leave hecau.</e. the proposed Certified Agreemenl provides no en1i1lemen1 10 long �ervice leave!. Scc1ion 193 - "En1i1lemen1 10 long service leave'' of !he Workplace Rtdariom ,;\et 1997 provides chat "(a)n emplnye" who L< enlilled 10 long ,service leave under a law, industrial i11s1rumenl, or 01her agreemenl or arrangemen1, , s cnlilled HJ leave tha1 i s al leas! as favourahle "-' the enlitlemenl under this pan:·. U !he propn.<ed Certified Agreemenl 1.s approved, ,e. withoul providing for an en111lernen1 to long service leave, lhere would also he no ",<afe1y nel" enlitlemcnt ari.sing from s, 193, s�c11<>n 196 - "Long scr"ice leave for employees no1 go,•erned hy awards elc. " of the Workplace Relation< Act /997 provides an enti1lemen1 10 long s,orvice leave for employees who are not covered hy an indus1rial ins1rument. lf the proposed Certified Agres:menl is approved !he employees wo11/d he covered hy an "indu.,1rial in,1rumen1" and no ".<afe1y net" en111lemen1 would arise from s. 196. The Workp/aa Relaticms Acr 1997 provides no xennal en1i1lemcn1 Lo lllng servi<:c k•ve. The source of "safe1y ne1" long service leave is provided only through lhe operation of s. 191/s. 193 or s. 196. For the reasons ci1ed above none of lho.se section.< would confer an enciLlement 10 long service leave 10 employee< of 1he Au1hori1y, Acc,)rdingly, lhe empl<)yees would have n<> source of long .<ervice leave en1i1lemen1 in lhe even1 thal the existing lndus1rial Agreemenl is cancelled or ii i� found, as a maner of law, 1ha1 lhc Certified Agrcemenl (if approved) supersedes 1he lndus1rial Agreement In such circunw1anre.s I would expec1 tha1 any new Cenified Agrcemenc which may be re-submined deal wilh long service leave, In the ahsence of such provision lhe no disadvan1age lest could again hecome a consideration. If the area� of disad,·anlage identified above are addressed sausfaclorily in any r�-.submined Certified Agreement I would no1 require the Agre.c.me.nl 10 be re-considered hy employees. All of lhe maners ideniified are such 1ha1 lhey would, in my view, salisfy s, 25(10) of !he Workpl(lce Re/(ltion.v Act /997, AL BL00\1FIELD, Commissioner. 9 January, I 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZE1TE r\ppearances:- .\1r I. Humpllr"Y'· with h,m '-fr 0, Broadbenl, for the Brisbane !'vfarkel Authori1y. \1r J. .'v1art1 n for eh� Au,1ralian L14uor, Hospi1ali1y and M1.scellancou.s Work,:r.- l 'nion, ()ucc n.sland Branch, \;nion of Employee.<. Opera11ve l);,tc: -:,./A (k...:1�H.m - ('�rt11it:d /\grccmcnl Released: 22 [)ecemh"r 1997 ########################################################## I I -- 2 of 2 --