Australian Admixture Corporation Pty Ltd t/a Eco Australia v The Federated Storemen and Packers' Union of Employees of Australia (Queensland Branch) and Another [1995] QIRC 551 (1995) 150 QGIG 1114

TTE l3 November, l 995 GOVERNMENT INDUSTRIAL GAZE QUEENSLAND _________ - __ __. t· -f- ,d that the consultation ~---- . 1 vided I am sa ts te . . l 1114 __ ### On the matena pro . ·., ts ofs 180(2)(cl, (e), U,- ~############################################ process underta~en s_afr,fies the requtrcrnen. • (g), (h), (i) and (J) of the Act. QUEEl\SLAND INDUSTRIAL RELATIONS coMMiSSlON Industrial Relations Act 1990 . . . 3 Enterprise Flexibility Agreement Ms Whyte and Mr In opposing the making. of _the a_grcement O'Brien dealt with the followmg issues.- Pait 11, D1v1s1on . I. Admixture Corporation Pty. Ltd. Austra 1an .. trading as Euco Australia AND Clause 3.3 Clause 5 .3 Clause 5.4 Part 4 Salanes: Sick Leave: Bereavement Leave: Hours of Work. • contained therein •d that the salanes The agreement prov1 cs d Packers' Union of Employees The Federated Storemen an h) d Another include compensation for:- of Australia (Queensland Branc an (.No EF/6 of 1995) i O AljSTRALIA ENTERPRISE FLEXIBILITY ELC AGREEMENT COMMISSIONER BECHLY 19 October 1995 Eligible . . . nt - Award Coverage Enterprise Flex1b1hty Agreeme Consultative Process • • l Agreement Union Oppos1t1on o d d Agreement Entitlements - Comparison between Awar an . - Hours of Work Sick S l ries Compensation Disadvantage a a - No Disadvantage to Employees Leave Bereavement Leave d Agreement with regard to Applicant given opportumty to amen f k Aoreement Approved. hours o wor o DECISION . Pt , 1 td which trades as • Corporat10n Y• ·' • Australian Admixture . h .d. of Queensland Cement . d h. h 1s a su s1 1ary Euco Australia, an w ic , • Enter rise Flexibility Agreement Limited. has sought approval of an p negotiated with its employees. lo ees is covered by the Food and The work perfomicd by emp Y ·" • th rn Division {Eastern · ' Award -- -,ou e ,· Drug Store l~mployees A d Stal". None 01 the 'I • . 1 Employees war .... District) and the C enca f . d istrial organisation of employees employees are members ? an l? l,: .. 1 fined bv s. 15 7 of the Act. i • 0 "eligible unton as uc • therefore ta1ere 1s n Wh t , ppcared E Australia. Ms D Ye a Mr I. Tait appeared for uc~ Pa~kers' Union of Employees of for The Federated Storeme:han FSPU) and \1r D. O'Brien appeared Australia (Queensland Bran • ) ( , . . t· . Clerical and Services . M ; • al Admm1stra ivc, 1 for the Australian i un,c1p , 0 lar1d Clerical am. <l Southern 'uecns Union. Central an l' . f Emplovecs (AMACSU) Administrative Branch, .mono , • wcekend penalties: and/or work on public holidays_; _and/or .· d ·th working at the . . f all disab1hties associate w1 recog111t10n o • . . . d/or . ..· d associated fac1ht1es; an l:uco :,lle an overtime include call outs; and/or work during meal breaks. . . he calculation took into acco~nt her For the clencal employee. t . II worked while for the . 1· , ge overtime actua y . . f estimation o avera l 1· t· n included cons1<leratton or 1 es th•' ea cu a JO • 1 d • production cmp oye • . ~ . ·s durinrr a year, time mvo ve 111 working on three pubhc hold1dd~y I paYbment for working a regular d • the year a 1t101w • k t· ,, earl)' starts unng ' . ·<l di• 1arv 38 hour wee •• tm~ h th the nommatc or • - .b d 40 hour week rat er en )lowances presently prescn e . l'"ed mixino powders and the a • 1nvo. o . for handling certain chemicals. • account and then . . h f the above factors mto 264 fak_mg eac o nual paid hours resulted in a figure of 2 convert111g them to an . l vees II c·dhoursforproduct1onempo_ • annua Y pd! • . , l 'II dravm between the application of the A companson \\as t 1c d tl , rates specified 111 the , , t those hours an te . , . award based rates o . h . a considerable excess 111 t the resulting difference cmg • agrecrnen ' l , w rd rate the agreement rate over l ic a a • I I v •e<.; agreed . . ... d scribed in the clenca crop o. c • . A sunilar excess wa,, e. r k into account overtnne hours l i h the calculated rate toJ rate. a t11oug only. . . . . osed for the clerical employee Mr In crit1c1smg the iate_s prop of salary levels provided 111 the O'Brien refemc:d to the 1ull range Clerical Employees Award State. . ies of the clerical employee were not Although the detailed dut • . t· tl e limited information . ,. - ble assumption rom i . . l provided a redsona 1 .·r tion tor this emp oyee . Id b, that the award c asst ica • d - available wou e 1 ,., f the Clerical Employees Awar . ,d the approval of the b Hons who oppose . would be no greater then lcve ~ o State. Each of the a ove ur • - . 1· the agreement and its · d bv the ( ompany 0 agreement, were mfonne • . • contents when filed in the Registry. t, I Co1npanv who will be f Joyees o t 1e • There are only ive cmp f th ·e ·1s a receptionist/clerk and it One o es h. h affected by the agreeme1 • d . the production process w ic · · • ur ar,.. engage m ~ , s the rcmammg io .... . .. 1, nd other materials tor use a. involves the mixing of_ chem1c<1 s a adjuncts in the concrete mdustry. tl perfom1ed during day . t· d that the work is curren y I was m orme .. work between Monday and h1day. . . . , .. a" to the nature of the consultative Mr Tait provided mforrnat1011 ,·1· ber of employees, involved . b of the sma, num • process which. ecause . . the content of the agreement. each one of them m detem11nmg - . , .d d hY Mr O'Brien indicates • f ·alaric·s prov1 e , l The comparison o s ~-, l . the award provides a sa ary • t f that eve 111 • h that the top pay pom o t· the entry level salary 111 t e . . h th salary set or • d which is less t. en e , . o\ $3 000 p.a. less than the propose , d •. approx1mat-.. y , . d t' ti e aureement an is • level envisage or 11 c- I .., t· the aoreement. the max ,mum leve _1 o o clerk/receptionist. I . was a disadvantage because While Mr O'Brien argued thaht t 1Acre_ ·d was not catered for in the · 1- t· scale from t e ¼ar • ,, h the full class1 ,ea ion . d , o when the duties o1 t e I f ·1 t sec that d1sa vantaoe . . agreement a'. o . , , l . )t required to be exercised. additional class1ficatton kv e s arc m . . . , of a recment is that it is tailored to suit The nature ot this typ<:: g . ~ the broad requirements of , • l terprbC. not . the needs ot the part1cu ar en d , of industries. rhere is no . . . ro,~ a broa range ·~, clerical occupations ac :,:-, . . loved and. unless there b a disadvantage to employees currently emp • C • 16899 _ l.D0 3 ~ovember, l 9951 QCEENSLAND GOVERNMENT If\.'DUSTRIAL GAZETTE 1115 substantial change to the nature of the duties performed. that situation will prevail dunng the life of the agreement. In the event that the nature of the duties perfonncd docs significantly change <luring the life of the agreement there is pt~wision in clause 1.5 for a regular review to ensure that it remains relevant to the operation. This provision would not appear to offend s. 182. Any upgrade in duties would be catered for in the additional classification levels available within the agreement. The other issue raised by Mr O'Brien related to Part 4 ~ Hours of Work ,,hich contains minimal prescription as to hours. The essence of the content of Part 4 is that work hours are based on a 38 hour week and are to be detcnnined by the work team and Manufacturing Manager having regard to the needs of the business, safety and legal requirements. The work team organises its own roster including the taking of meal breaks and rest pauses. There is no reference to the days of the week on which ordinary hours are to be worked or the spread of hours within which such hour~ arc to be worked or the number of hours which may be worked 011 any day. Mr Tail advised during the hearing that currently ordinary hours are worked from Monday to Friday between 7.30 a.m. and 4.00 p.m. by production employees and 8.00 a.m. and 4.30 p.rn. by the receptionist. The absence of any regulation as to the number of hours which may be worked could result in a disadvantage to employees, particularly if it was decided that ordinary hours should he longer than twelve on any one day or reduced on a daily basis and worked over a period of seven days. While the working of ordinary time on such a basis may not be in contemplation by the parties, the terms of the agreement may not be such as to prevent such a requirement being introduced during the life of the agreement, notwithstanding the consultative nature of the proposed hours prescription and the role of the team in organising their own roster. I \viii deal further with this matter later in this decision. Ms Whyte also raised concerns regarding clause 5.3 Sick Leave and 5.4 Bereavement Leave. Paid sick leave for a period ofup to three months in any one year is provided in the agreement. This is a significant extension upon the existing award annual prescription. The agreement provides that medical certificates ,,ill not normally he required but the team or the employer may require the employee concerned to verify that an absence is because of illness or injury. The team is given the right to review each mdividual case and make recommendations to the employer. Ms Whyte compared these provisions with the award entitlement and argued that the awards minimum entitlement should be included in the agreement as a safety net. A further criticism was the possible requirement for the employee concerned to verify the reason for absence to fellow workers whereas the award requires verification to th e employer where some confidentiality is available if desired. I see no disadvantage to employees in the requirements of the agreement. Each of the team members have signified a desire to adopt the proposed provisions and appear to have no concern about JUSlif)ing: absences to workmates. In any event access is available directly to the employer and the team is given the nght to make recommendations only. As to bereavement leave. the proposal is that a team member be allowed reasonable paid time off work as determined by the team on lhe occasion of a close relative or friend. The leave is not limited in length, time of taking in relation to the funeral or whether the death occurs overseas. An example was provided by Mr Tait of an employee who was given four weeks paid leave on the death of her child under these proposals. Again I see no disadvantage to employees by comparison with the existing award entitlements. The only matter which requires consideration as provided in s. l 83( 5) is the matter of hours of work. In accordance with s. 183(5) the applicant is given the opportunity to amend the agreement to more clearly delineate hours of work of employees. While the agreement expresses the intention that hours will be based on a nonnal working week of 38 hours it does not, as stated earlier, detennine the daily hours or days of the \\cek when such hours may be worked. The agreement provides that hours will be detem1ined having regard to the needs of the business, health and safety issues and any legal requirements. Legal requirements can be expressed in the Act e.g. s. 221 or the two awards presently governing the employment of employees. While clause 1.3 of the agreement does provide that the agreement will prevail where there is inconsistency with the Food and Drug Store Employees' Award Southern Division (Eastern District) or the Clerical Employees Award Stale, the subordination of team arrangements as to hours, rosters etc. to "any legal requirements" in my view could be interpreted so as to require any arrangements as to hours etc. to comply with the requirements of the Act or the awards referred to. If that was the intention of the parties then that intention should be clearly expressed. If it was not the intention of the parties then greater detail as to intended hours of work ,;;hould he provided in the agreement. The required amendment should be filed in the Registry by ciose of husiness on Friday 27 Octoher 1995 with copies being served on the FSPU and AMACSU at the same time. R.E. BECHLY, Commissioner. Appearances:~ Mr I. Tait, with him Mr L. de Jonk, for Australian Admixture Corporation Pty. Ltd. trading as Euco Australia. Ms D. Whyte for The Federated Storemen and Packers' Union of Employees of Australia (Queensland Branch) Mr D. O'Brien for the Australian \1unicipal, Administrative, Clerical and Services Union. Central and Southern Queensland Clerical and Administrative Branch. Union of Employees. Operative Date: Date of Signing of Agreement Decision Enterprise Flexibility Agreement Euco Australia Released: 19 Octoiber 1995 16899_1.DOC -- 1 of 1 --