Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Local Government Association of Queensland (Incorporated) and Others [1996] QIRC 766 (1996) 153 QGIG 935

934 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 November, 1996 l ( l t ) l > 22 November, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 935 ############## ############################################ QUEENSLAND INDUSTRIAL REL ATIONS COMMISSION Industrial Relations Act 1990 s. 144 - application for variation Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees ANO Local Government Association of Queensland (Incorporated) and Others (No B396 of 1996) LO CAL GO VE RNMENT EMPLOYEES ' (EXCLUDIN G BRISBANE CITY COUNCIL) AWARD -STATE COMMISSIONERS FISHER, BECHLY AND BLOOMFIELD 6 November 1996 Mixed Functions - Payment for 4 hours or less if employed in a higher classification - Arbitrated matter - Reference to Full Bench - Whether application constitutes a Special Case - Reference to Hanger Repon - Commission not satisfied on limited material before it - Applicant given opponunity to call evidence - Application neither refused nor granted. DECISION The Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (FEOFA) filed an application to vary the Local Government Employees' (Excluding Brisbane City Council) Award - State in the following terms:- "By deleting clause 2.9 (Mixed Functions) and inserting the following in lieu thereof:- ·2 .9 Mixed Functions An employee engaged for more than four hours on any one day on work which carries a higher rate than their ordinary classification, shall be paid at the higher rate for the whole day. If employed for four hours or less on any day the employee shall be paid at the higher rate for four hours."'. The effect of the variation, if granted, would be to ensure that employees who perfonn work of a higher grade for four hours or less on any one day are paid at the higher rate for four hours. The Award is currently silent on this issue. The application is opposed by the Local Government Association of Queensland (Incorporated) (LGA) but supported by both The Australian Workers' Union of Employees, Queensland and the Transport Workers' Union of Australia, Union of Employees (Queensland Branch). 21741_1.DOC I -- 1 of 2 -- 936 QUEENS LAND GOVERNMENT INDUSTRIAL GAZETTE 22 November, 1996 Reference to a Full Bench The maner initially came before Fisher C. on 13 May 1996 . At tha1 time the LGA raised two preliminary points. The first of lhese was that the application sought to vary the Award above the safety net and hence should be considered as a special case . In !his regard the application needed to be referred to the Chief I ndustrial Commissioner. The second preliminary point concerned insufficient material being contained in the Statement of Facts and Issues for the LGA to adequaiely respond. In relation 10 the laner preliminary point raised, further directions for particulars were issued by Fisher C. With re.~pect to whether the applicaiion constitutes a special case, in tenns of the relevant Wage Principles, the. maner was adjourned to allow the LGA to make submissions to the Chief Industrial Commissioner. In tum the LGA filed an appl ication pursuant to s. 47(2) of the lndusrrial Relations Act 1990 (the Act). It was heard in Chambers by the Chief Industrial Commissioner on 28 June 1996 , at the conclusion of which the following statement was issued:- "On the materials presently before me, I am unable to detennine and J further think it inadvisable that I should anempt to detennine, whether or not this application should be characterised a~ an anempt to vary an Award above the safety net. I am, however, satisfied having regard to the history of the Award, lhe nature of the relief which is claimed, the policy issues which arise in connection with the relief which is claimed, and the overlap with other existing proceedings and contemplated proceedings that I should find that the matter is of such a substan1ial industrial significance thal I shou ld refer the matter 10 a Full Bench. I shall consult with the other members of the Commission abour their availability in det.ennining the composition ofthal Bench.". From this s ta1emen1 the path by which this maner arrived before the Full Bench can be seen. Submio;sions The FEDFA filed lhe application primarily in response to a situation which emerged in one Regional Co uncil where it was contended that employees routinely performed work of a higher grade for four hours or less. Such work did not attract the mixed functions provis ion of the Award. Mr Coogan. appearing for the applicant Union, referred to olher Councils. where it was alleged the same practice occurred. The FEDFA was particularly concerned about the .. fairly widespread" practice amongst Councils of having employees perfonn higher duties for up 10 4 hours without payment. It said :- "Th is practice of taking advantage of an employee's skills without paying for them amounts to nothing more than a negative cost cutting exercise and the exploitaiion of employee.~ employed under the terms of this Award and should be outlawed by the Commission.". Both the FEDFA and the LOA dealt in some detail with the report of the Committee of Enquiry into the Industrial Conciliation and Arbitration Act 196/-1987 (the Hanger Report). We shall shortly return to these submissions. Likewise in our conclu.sions we shall respond to 1he submissio ns of !he LGA concerning the Wage Principles and the potential flow-on effects if the application was to be granted. Outside of these submissions, rhe LOA was essentially concerned with the FEDFA' s anempt to "snipe away at elements (of the Award package)". It was contended this was contrary to the public interest and should not be penniued. To emphasise its point. the LGA took the Commission 10 the Full Bench decision leading 10 the creation of the Local Govern ment Employees· (Excluding Bris bane City Council) Award - Stale and the ensuing discussions between the Award parties over various drafts of the Award. The LGA submitted the Award had been a product of the 1989 Wage Principles (especially structural efficiency) and should be considered as a package which was inter-dependent and inter-related. It provided substantial wage increases, an interim career based classification structure and significant flexibilities in terms of meal times, s1arting and ceasi ng times and mixed functions . Reference was made to the final draft of the Award subrnined by the LOA to the Commi ssion and the submissions made by all parties in respecl of ic. The LOA considered that some significance should anach to the fact the Full Bench inserted the mi~ed functions clause into the Award as it presently s1ands. Conclusions When the applicarion came on for hearing before the Full Bench, one member was unable to be presenl. Commissioner Bechly ha~ s ince had the opponunity to read the transcript and exhibits. The decision is the unanimous view o f the Full Bench . We wish firstly 10 deal with lhe submissions that 1he F£DFA 's claim is seeking an increase above !he Award safety net. The LGA contended that because 1he application sough! to vary existing conditions of employment, lprima facie, i1 was a claim above the safety net. Consequently, a de1ennina1ion needed to be made as to whether it co nstituted a s pecial case. To a.,sis1 the Commission in deciding the issue various decisions were presented. In re,ponse the FEDFA said the application was not seeking higher wages to employees perfonning particu lar classes of work. Accordingly the claim was not proposing to adjust the safety net upwards. Reference was also made to the Commission 's obligations under the Award safety net sub- principle to ensure employees are protected by Awards which ser fair conditions of employment which are maintained al a relevant level. The sub- principle enables the Commission, in fulfilling its obligations, 10 review and adjust the safety ne1 from time 10 time. We find each of the argument~ in1eresting but because of the decision we ultimately reach. it has been unnecessary to reach a concluded view at this point. We are cognisant of the Award review process which is occurring before Bloomfield C., which has as one of its elements a consideration of the cla~sification structure. We are also aware of the application before another Full Bench of this Commission to reopen the Full Bench decision which led to the making of the Local Government Employees' (Excluding Brisbane City Council) Award - State. While a decision with respect to this maner has not yet been released, it is evident that the Award is not a static document, but needs to be capable of responding to the requirements of the workplat-e, that is. to both the needs of the employer and the employee. The cun-ent application must be seen in that context. The Hanger Repon concluded that in order to encourage the implementation of the Structural Efficiency Principle, the mixed functions sectio n of the Ac1 should have a s un se1 provision added to provide for its future elimination. The Repon said:- "Such a solution is aimed at encouraging parties to move toward the 'broadbanding' and ·multi-sl<llling' arrangements discussed, or to move to protect their present position by Award provision in other appropriate cases by the time the s unset provision takes effect." (page 197). Although the cla~si fication structure in the A ward ha~ been broadbanded, we are not satisfied that multiskilling in the sense envisaged by the structural efficiency process ha~ been fully implemented in areas covered by the A ward. We reject the submissions of the LGA that lhe current Award cla.~sification structure is bes! characterised as career based. In our view it is a hybrid skills based and task based struclu(e . For this reason a mixed functions clause remains appropriate. When a truly sl<llls based classification.5 s tructure forms part of the Award !hen the need to retain mixed functions provisions would obviously be reduced. We note the FEDFA in commenting on a proposed draft of the Award held a view consistent with that which we have now expressed . In dealing with the Act provision. the Hanger Report commen ted !hat it wa5 "designed not to guarantee a higher rate of pay for mixed functions but o nly 10 guarantee a period of payment at that higher rate ." (page 196). We think these comments are equally apposi1e to lhe current Award provision While a difference of opinion about the in1erpreta1ion of !he Award provision may exist between the Unions, the LGA and certain of its member Councils, we are not satisfied on the basis of the limited material before us thal the FEDFA' s claim s hould be granted at this stage. Although acknowledging the unfortunate disposition of 1he FEDFA's wimess for the hearing, no evidence of any weight was pu1 before us to justify the granting of the claim. It remains open to the applicant 10 present such evidence as part of this case . Of particular concern is whether it can be demonstrated that l { I 22 November, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE employees are regularly perfonning work of a higher grade for 4 hours or less without payment at the rate of the higher grade. Should the applican1 decide to present evidence, the Commission, in its fin al deliberations, would also need 10 give consideration to the outstanding mauers of whether the claim constitutes a special case, any flow-on effects and whether the issue would be better considered as part of an enterprise bargaining agenda. In light of the views we have expressed, the applicant is required to advise the Industrial Registrar within 28 days of the date of release of this decision as to its in1entions with respect to this application. Should the FEDFA decide nO( to call evidence 10 support its claim, the application will then be formally refused . The Commission orders accordingly. G.K. FISHER, Commissioner. R.E. BECHLY, Commissioner. A.L. BLOOMFIELD, Commissioner. Appearances:- Mr J. Coogan for the Federated Engme Drivers' and Firemens' Association of Austialasia Queensland Branch, Union of Employees . Ms Y. D' Ath for The Australian Workers ' Union of Employees, Queensland. Ms D. Whyte for the Transpon Workers' Union of Australia, Union of Employees (Queensland Branch). Mr M. Coonan. ofFreehill Holliogdale and Page, with him Ms K. Clarke for the Local Government Association of Queensland (Incorporated). Operative Date: NIA Decision - Mixed Functions Released: 6 November 1996 ########################################################## 937 21741_1.DOC -- 2 of 2 --