Banana Shire Council v The Australian Workers' Union of Employees, Queensland and Others [1995] QIRC 178 (1995) 149 QGIG 563

562 QUEENS LAND GOVERNMENT I NDUSTR IAL GAZ ETTE [ 16 June, 1995 16 Jun e, 1995] QUEENSLAND G OVERNMENT INDUSTRI AL G AZETTE 563 ##ll# lllfl#l#llllllll#####ll ll ########## ##### # llll######ll######II### QUEENSLAND INDUSTRIAL RE LATIONS CO \4MISSI O \J Industrial R cla 11 0 11s Ac, /990 s. 160 - np pli ca 1ion fo r cenific:u io n Oanana Shrrc Councrl A l) Th e Australian Workers' Union of Lm ployces. Q t1 ccnsla nd and Others f,lt,'o. CA /()8 of 1995} BANANA S HI Ri:.: COl li\T I L- E:>;TERPRI SE BARGA l :\' l~ G CE R rlFIED AGREDI E~T COMM ISS IONER BO UGOU RE Ccrti fied i\g rc cm em - "Cashin g-in'' or Long Se rvice Leave Pro vi sions - Disad,antage 10 Emp loyees - Contrary to Public Interest - Arguabl> in Breach of Section 249( I) of th e i\ct - Application Referred 13ack to Part1 c~. D EC I '1O~ I am asked to certify an agreement be tween the Oana na Shire Council. as employer. and The Austral ian Worki:r) · Union of Empl oyees. Queensland and the Federated En gine Dri,. ers· and I 1rcmcns· A:.)oc ia1ion of Australasia Queensland Rran ch. Union of Employees (t he uni on s). Oolh unron:. dre\\ m) anention to clause 14 of the Agre emcnL whi ch rea ds os follows: " 14 . l.ong Sen-ice LeaH (I) The m in imu m pe ri od approved lo be taken be two (2) wee ks (2) Variable options for payment of Lon g en ice L.:.i,.: arc ova ila blc subject 10 agreement between the employee and Council In a ll instances whereby an emplo) ee chooses 10 be paid for Long Serv ice Lea ve in excess of th e act ual Lo ng crvice Leave taken. su ch e)(cess Long Service Lea, c \\ rll remar n a\·ailablc for ial.rng b~· t he cmplo) cc (mut uall y agreed) wit hou t payment. For Fxample:- Pa1d for 13 \\Ceks bu1 lakes 4 \\etks (re,ult 9 \\ Ce ks UNPAID l ong Sen•rcc Leave a, a1lable). Prov id ed th at the 10101 pay ment nn cmploycc receives by \ \8) of Long Service! I cave pa}mcnL is 1101 10 be lcs~ than lhe o rdin al) l ime earning) the employee v. ould have been entitled to , were he al wor k during !he period 111 \\hi ch 1hc leave i~ ph }sically tnkcn .... 1 he union~ advised that the> had consulted w11h 1h c1r membc ri,, part ic ul arl y in re lat ion 10 thi s clause. The un ion ~ stal ed th at no1wi1hstandm g reserva ti ons c,prcsscd b) uni on otlic ia ls I\• members. the members had ~pecificall> .1greed 10 th e clause aforementioned. I he att itude of the union ad,oc.i1cs before me ,,as 10 draw m) a11cn11on to th e cl au~c and ach ise that 1f I found nothing ohjcc11onable in the clause. then t hi: un ions "ould oner no objection lo cc rti fica ti on . In fact the 11grccmcn1 is already signed by hot h unron, Ms McAuhlTc. for the cmplo}Cr. stated that the suhJCCt clause contained no benefit for the employer o th er t han the achiev ement of a happy ,\on.force. I c.m see that some cmplo}ees. \\h0 ha\c accu mu la ted a lcnglh> period of I ong Sen i ce Leave, ma) see some imme di ate bc 11 cli1 in obtai nin g access to a suhs1an 1ia l sum of money "hil st continu ing to v. orl. for the Council. 7 he mone~ might sati~I'> a pressing financial burden. or finance ~umc purchase b} th e e mpl oyee. ~omc employees may understandably sec s ig ni li canl ad vnn tage in using a pay me nt in ways such as indi cated . howe\'cr. 1h a1 see ms 10 be in connict "ith the purpose of Long Ser.ice Lea, e Hfcctively. the clause allows the ..cash mg-in .. or Long Se rvice Leave en titl ements Jn relat ion to Annual I ca,e. t hi s Co mmi ssion has. on se,cra l 0CC-d!,I0ns. appr0\ ed. SUOJCCI to fe)lriCU0ns. the: limn ed "cashin@- in" of Annual Lc aq;_ Ho"c ' c r. the Commi ssion has vo iced reserv ati on~ :i h ou t th e practice in t he case of Annu al Lea, c In 111} , ic w the reservations \\Qui d be even s tronger in th e 2 June 1995 ca,.e of Long ~Cl" ice Lco"c 15173_ 1. l>OC -- 1 of 2 -- 564 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE One matter upon which l must be satisfied before certifying an agreement is that the agreemen t does not di sadvan tage employees covered by the agreement in relati on to their employment condiLions. In my view the subject proposal does result in the reduction of the emp loyee's entitlements, however, s. l 60(2)(b) of the Industrial Relations Act I 990 (the Act) effectively provides that l may not certify the agreement if in the context o f employment conditions considered as a whole, I consider that the reduction is against the public interest. In my view the interference with Long Service Leave en titlements in the way proposed is against public interes1. Howev er , in my view, there is more cogent reasons why thi s agreement should not be cert ified in its present fom1. Section 240( 1) of the Act provides for an entitlement to Long Service Leave. Section 249(1) of the Act provides as follows:- " Except upon termination of an employee's employment, an employer is not to make, and an emp loyee is not to accept, payment in lieu of long service leave.". In my view it is arguable that the subject clause in the Agreemen t would p lace both the emp loyer and the rel evant employee in breach of the Act. Ce11ainly I consider the subje ct c lause to be in breach of the intention of s .249( I). It seems to me that the subj ect c lau se is an attempt to evade the intention of s249( I) of the Act by perm iuing the "'cashing-in" of Long Service Leave. I am not prepared to certify the Agreement in its present fonn. Pursuant to s 163(5) of the Act. I give the parties an opportunity to amend the agreement and do what is necessary for the Commission to be able to certify the Agreement. Whi lst I have not considered the matter in making the above determination, and I received no submi ss ions on the matter, I would comment that long term employees who have a Long Service Leave entitlement prior to August 1978 may be disadvan taged under the subjec t clause o f the Agreement, in so far as the rate of income tax is conce.rned. The Co mmission orders accord ing ly . R.W. BOUGOURE, Commissioner. Appearances:- Ms S. McAuliffe, of Freeh ill, Hollingdale and Page, for the Banana Shire Council ',,Is Y. D'Ath for The Austra lian Workers· Uni on of Employees Queens land (A WU). Mr J. Coogan for the redcratcd Engine Dr ivers' and Fireme ns' Assoc iation of Aus tralasia Queens land Branch, Union of Employees (FEDFA) a nd the Transport Workers· Union of Austra lia, Union of Employees (Queensland Branch) (TWU). Operative Date: NIA Decision - Certi fied Agreement. Released: 2 June I 995 [16 June, 1995 16 June, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 565 15373_1.DOC -- 2 of 2 --