Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v The Crown [1995] QIRC 632 (1995) 150 QGIG 1409

1408 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l24 November, 1995 24 November, 1995] QUEENSLAND GOVER 1MENT INDUSTRIAL GAZETTE 14 09 QUEENSLAND 11\DUS I RIAL Rl·I /\TION~ COMMISSIO \J /11dustr1<1f Rt•launm la !'NII s I l I :ipplrL,Hion lur \'aria111111 Australian I iquor. I hhpllaht, and \11'ccllaneo Worl..cr.. • lJmon.()uecn,l.111d Br.111d1. Unum of Emplo)CC~ lhcCnmn 1,\0 II~ r of I '1?5J E.\11'1.0\'EE S OF Q I ' FENS! \ \'I} GO\ I R\" L\ f DEi' \lff.\lf:\ I (OTI J E l{ fllA:'\ l'l"llLI(" !-.ER\ Al\ r ) A\\ AIU) - s·, ATE 8 '.\imcmher 1995 Variations 10 [mplo)c.:, of ()u.:enslund GO\cmmcnt Dcpanmcnts (Other Than Pubh~ '><:nan1,J \\\ard I mplo)cc, under (omnwn Ruic A\\ald~ to he co,crcd b) I 111plo,cc~ of Queensland Go,cmment Departments (Olhcr Than Public \cnants) \\\arJ Apphcauon <,ranted III Pan Panic, tn Report 10 Comml\sion h) \\a)' of Further He~nn g. DI CISIO\I The app lication befo re the Com1n1ss 1on scd,s certain variations to the EmploJecs ol Queensland Go,emmcnt Departments (Other lhan Puhl l '>cn.111b) \\\.ird (the ··ccrtain 1:-mploycc:. A,\acd"') pursuant 10 ,. 1.i.i ol the flld11.11riaf Refa11om Ac r 1990. Proposed by the applicant. 1hc ·'\uwalian I iquor. I lo~pilalit) and M1scellancou~ \\'orl..crs l 1110n. ()uccnsland Branch. l.Jnion of [mplo)ees (the Union) pri rna ri l) 1s th e 111cl11sion 111 tlu: Award of Security Officers at TAFE and rnoks a11d 1-.itchcnhands direct ly employed in canteens ut I Al-[ \, \\CII. thc l nion sec!..) to nu.ludc under the A,\ard, cool..s and l..itch cnh,111d, ernpl0)cd ,It the Challinor Centre, amongst other mauers. On the date ol the 10,1,al heanng. the C-ro,\11. ,,hilst not directl) opposing the app lication. sought extend ed tim e from th e Commis..ion dunn° \\hich to lei the Jpplication filter through certain Go, cmmcnl prt>c,"c' hcfurc fom1JIJ) ~tating its po~iuon In•~ course was .i<.:cep icd hy th e C'o 1111nission . l 'pon n:,umptiun of thr, h~anng. ~lore the Commi,s1on. certain component, ol tht: applica1ion ,1cre consenied to hy the parties. TI1 c Olli) area ol disagreement n:latcd to persons employed os canteen ,tall m T \I I rnllcgc, Brie f II istn ry o( Matter in Conh-11tjun l "pon the mal..111,! of the ( crtain I mplo)ces Award m 1993. 11 wa~ ac knowledged hy the p ar1ics th at th e rationa lisation of Award cmerage for Cnmn cmploJee~ ,,ould cncompass two s1ages. The fi!"!,I stage ,ought tu r,111onalis\; all d1'tmctl) puhhc sector awards to cn~ure that ,,II Cro,111 cm pl oycc, 11 11 cli:r s uch awu rds would see th ose a11Jrds a111,1lg,11natcd 11110 the Certain I mplo)cc, Award fhc nc,t , tcp ol the proccs~ was to ensure that Crown employees covered b~ Common Ruic A11.irds wc,c brought under the coverage of the Cert,1111 l·mplo,ccs 0\\\,1rd ·1his J.1111.:r area II a~ lo he the suhjcct of on-going negotiations hct11ccn th~ p.1nic, I he au, ocme 1\ir 1hc Union , 1at cd 1ha1 since March 1994, the ( 'nion ha, undcrtal..cn d,~cu,sions rcg;1rJ1ng this particular group of cmplO)CC) In c,,..:ncc. th.: l 'nion ,1J1c, that ,uOicicnt time ha., el,q,scd and the Cro1111 should haH: co111p lc1cd 11s 1n vcs1iga1io ns into the 11ansla11n11111 the ( cnain I mplo~cc, \\\ard of these employees l11 stat111g lls po"111ln, lhc .idvocalc lor the Crovm contended 1h ,tt a ,cclor-111dc appn1ach 10 rcsnlving i'Sucs. such as t he issue in c111 lcntion. " "the 11 ,t pra<.11<.JI anJ thorough means of addressing the conc.:rn, nf thc l ninn I he sc<.tor•\\ ide ,tpproach rcferred LO included cn11s idcral1(111s b) th e employer upon tran sl ation of cmploJee, 111to th .. Certain I mploJcc, \\\artl nf fact ors such a.! ensuring rn11lon1111) "ith thc S1rnctural I flicienC) Principle, amongst other cn11s 1d cralioll', Further d1 l1icultics associated with tra1 ,la1ion rcl ,tcd to questions of appl1<..1blc allo\\ance,. and general C011'1deratin11\ nf ..:mpln)mcm pt:rtain111g to the d1ffenng group, to bc cons id ered for 1ran sl.11io 11 . Hearin., 111 mind the Cro1111\ subn11~,ions concerning the need for fllrlhcr 11111c 111 which 10 im cst1ga te fu ll y the di fficultics associated II uh tran,l.111011 .ind to fadillJle a global tran~lation of emrlo)ce, 111ti1 111~ C-crtain I mplo~ec, \\\ard rather than b) wa) of a r1cccmcal ,1p pro .1d1. the Commission asked the panics to s ta le 11hc1hcr an_, real di,ad,antagc \\as sulkred b) cmplo)ccs targeted for 1ransla11.,, ,tJ~ 111 • unJer prc,cnt a\\ ard CO\ crage until an o,·crall tr,111,l.ition rnuld occur. !he Crn ,n liche,cd that no r..al 1i~advan1.1gc "11:> C\ldent a, urmn tran~la111m. the f',1) po111111m~1 compJrable 10 the one present!) exis 1111g. ""uld be op1.:ra1i"e. 11 ,111y thmg . .i marg inul incrc,,~e in pay might aris~ I ,r, 1111c cmplo~c,, 17 178_ 1. DOC -- -- 1 of 2 -- 1410 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (24 November, 1995 The applicant Un ion claims that the disadvantage suffered is more from an admin istrative perspective. For example, the payment of SIPS a ll owances have "created an enormous amount of adm in istrative confusion". As welL difficul ti es have arisen in determ in ing whe th er the employees the subject of this application, were eligible for safety net adjustments. It was also claimed that t he difference in Award conditions (eg overtime and shift provisionsi for these em pl oyees vis a vis other Crown employees was ma rked. The speci fic s of these claims were not elaborated upon before the Commission. A further di ffi culty arose as a resu lt of current enterprise bargaining processes which Sa\\ these employees excluded frorn consideration . Whil st t he Crown d id not res il e from the general thrust of its submissions, it was generally accepted by the pa rties that a translation of the employees in question wou ld have negl igible r am ifications, particula rl y fr om the Crown's perspect ive. Conclu~ion T he Crown acknowledges th e need to hasten this translation process. It cites t he onset of the second round of Enterprise Bargaining as one of the reasons to have this tra ns lati on process impl emented speedily. Th e ra ti onale underscoring the Crown's submissions are p lau sible - ie the desire to deal with translation issues thorough ly and collectively and in a cost cf'ficicnt manner. As well, the Commission appreciates the fa ct that those officers of the Crown charged with the respons ibi li ty of finalising this process arc dealing with a range of Government Departments an d employees. That said, the Commission is also sympathet ic to the claims of the Union concerned. The discussions have been ongoing for a lengthy period of t ime and, in the present in stance. t he re seems to be no identifiable impediment to translatin g these employees, other than fo r the Crown's desire 10 dea l with the trans lations en masse. It was pu t to me b) the Crown that it investigations and general work in this area, together with the imp lementation of specific Government processes. could be completed by the end of 1995. It wa~ not suggested ll wl these comments should be seen as formulating a firm proposi t ion - rather, it was anticipated that an outcome mi ght occur before the end of th is year. In we igh in g the competing claims of bo th parties, I propose t he following course of action. I require a report-back meeting (b) way or formal hearing before the Commission) on Monday, 18 December 1995 at 12.45 pm. At this hearing, the Crow11 should fu ll y detail what progression it has rnadc wi th regard to the gene ra l question of translation of employees into the Ce rtain EmplO)CCS A,\ard. /\ t that stage. I wil l make an assessment of the likelihood of the translation process being completed within a reasonable period of time. Jf no t satisfied with the rate of progression, I wi ll hear su bmi ssions from the parties as to why I should no t determine. on that date. 10 permit that component of the Union's appl ication which seeks to trans late the employees in question. To faci litate an inform ed debate at the report-back meeting. di rect th e parties to meet. fonnally. prior to 18 December 1995 to discuss the issues in con tention. Wi th regard to th e other components of t h..: application before me, I am adv ised tha t all areas are consented to. save for the question of whether the spread of hours for employees at the Chall in or Cen tre formerly covered by the Cooks and Kitchcnhands' Award - Brisb,ine Metropolitan Hospitals Boards and Psychiairic Ilospi tal s and Other Institutions Under the Control of the Department of IIea lth should remain the sallle as they were under that Common Rule Award, or whether the spr e;,d of hou rs should confonn to the general applicable provision wi t hin the Certain Employees Award. The Cro\•1n advocated the retention o f' the Common Ru le Award provisions (an outcome not dissilll ilar for other e mpl oy ees who have translated to the Certain Employees Award) for reasons which related prim;lrily to cenain wo rk practices prevalent fo r e mp loyees at the Cha llinor Cen tre. An example of this is s hown by considering the span of hours under the Ce rtain Employees /\ward (eg 6 am - 6 pm). At the Cha ll inor Centre, a shi ft had traditionally commenced at 5 am for wh ich the re was no overtime component. Th at Award d id not contain an Hours of Work clause and that appears partly to have occurred as a consequence of th e nature of the work perfonn ed and the type of industry involved. Against th is. the Uni on sought uni fom1i ty of condi ti ons fo r all Crown employees and saw its proposi ti on as creating only "minor variances to th e no rmal spread of hours". I propose to accede to th e Crown's submiss ion s on this point. The staws quo with regard to tl 1c spread of hours fo r the se employees should be retained and recorded in th e Schedule to the Certain Emp loys:es Award. Having determined as such, it is not to say tha t upon reviewing th e Certain Emp loyees Award, this particular area of concern may not be addressed. Indeed, when determining to grant the Ce11ain Em pl oyees Award, I had made it clear t hat certain anomalies may need to be addressed during the process of En tcrrrise Bargaining. llowever, for present purposes, the existing spread of hours prov ision wi ll be re tained. This decis ion also results in th e resciss ion of the Cooks and Kitchcnhands' /\11ard - Bri s ban e Metropolitan Hospitals Boards and Psychi;1tric Hospitals and Other Insti tutions Under the Control of the De partment o i" I lcalth. In re lation to all other components of the application, they are consented to by the pa rties and the Commission is prepared to grant these claims. ·n ,cs.: components of the appl ication which have been gninted by th e Commission arc operative from t he date of the release of this decision. I order accordingly. D.A . SWAN. Co ,nm issionc r. Appearances :- Mr R Reed fo r Lh<:: Australian Liquor. Hospitality and Miscellaneous Workers· Union . Queensland Branch. Union of Em pl oyees. Mr 13 Stronach ftlr the Cr0\1n. Operative Date: Date of Release Decision - Application for variation Released: 9 No\'cmbcr 1995 17 178_1.DOC 24 November, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 141 l -- 2 of 2 --