Australian Services Industrial Union of Employees (Queensland Local Government, Energy, Ports, Information Technology, Social and Community Services Branch) v Group Training Australia Queensland and Northern Territory Inc and Others [1995] QIRC 80 (1995) 148 QGIG 1072

1072 QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE [13 April, 1995 ##########################################/1######11##### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial !?elw io11s 1lc1 I 990 s. 128 -- app licat ion for nc"' award Australian Services Industrial Union of Emp loi ccs (Q ueensland Local Governmen t, Energy, Ports, lnfonnation Te chnology. Soc ial a nd Community Servi ces Branch) AND Group Training Aus tra lia Queensland and Northern Territory Inc. and Othe rs ({J/498 of 1994) GROt:i> TRA l ~ li\G COMPt\1\IES AWA RD - STA TE COMM ISSIONERS EDWARDS. FISIIER.13LOOMFIELD 3 April 1995 New Award - Ccrtilied Agreements - I lou rs Provision - Full Bench - Simultaneous Decis ion - Coverage - l me rvcn ti on ·- Appropriate Union - Signed Agreement - Award Content - Award Provisions - Amendments - Award Approved - Agrecme nl~ Certified - Pa rt ies to Not ify Inten tions - Decision ()f Full Bench -· 38 !lour Weck Approved. DE C ISION OF COivlMISS IONl:R FISIIER The application befo re the Comm ission sct!ks the making o f a new Award cn tit k d " Group Training Com panies (Quccns landi Award •- State" . At the con clus ion of the he aring on 16 !\farch 1995. the Commission indi cated that it had no obj ec tion in principle to the mak ing of the Award: th crc were. however, several matte rs of content which required c.onsidcration. Further. the. hours prov ision of the /\ward was s ubj ect lo Fu ll lknch delibera ti on. Separate certified agreements. to be read in conjunction with the Award, had also been ti led in res pect of each Group Training Company to be hound by the Award. Whils t a hearing in relation to th em had been conducted, approva l wo1s 1101 immediately given because or their relationship with the stil l undetermined Award. The parties we re advised tha t the most prudent co ur se of act ion was to issue dec is ions encompassing al l th ree mallc rs simu ltancousiy. At the mitia l hearing of the appli ca tion, several organ isations sought to e ither appear or to he granted the right to be heard. By the 1irne the substanti ve hearing arr ived on 13 March 1995, on ly the A ustralian Mun ic ipa l. Admin istrati\·e, Cle ri ca l and Services Un ion. Centra l and So uthern Qucen5land Clerical and Administrative Branch. Union of Employees (AMACSU) re mained. a ll other organisations appearing to have had their concerns sa ti sfied. Mr O'B ri en in f< )rmed the Commission of a proposed agreement to he en tered into be tween his organisation and the applican t, the Austral ian ScrYiccs Industria l Union or Employees (Queensland Local Government. Energy. Po rts. Info rm ation Tech no logy, Soc ial and Com munity Services Branch) (AS U) . Given the particu lar c ircumstan ces of the nature o f the en te rpri ses involved and. more espec ially. the impendin g amalgamation of the Services Branch with the Clerical and Adm i111st rat ive Branch. the issue nf' coverage had been resolved on a '·one o ff specia l case basis" . Su bject to the agreeme nt be ing 5igned by the ; \SU. Mr O'Brien sought l eave to withdraw from the proceedi ngs . Mr Buckley undertook to re fe r the agreement to his Secretary and at the next hearing, 16 March, was able to advise of his un ion ·s acceptance. At that time the agreement requ ired the signatures of the Secretaries of both Branches. The a greement has now been signed and a copy lodged with the Regis try. /\ccor<l ingly. the Commission is prepared to ucccpt, for the purposes of this Award. the /\SU as the ap propriate un ion party. BA CKGRQF'iO Mr Buckley informed the Comm issio n tlrnt Group Tra ining Companies have been in o peration for approximately 12 years an<l exist in all States and Te1Tilorics. In Queensland, 22 Group Training Com panies have been estahlished. 20 o r which s eek to be bound by the Award. lt is not propos ed to in clude in the t\ ward the two objecting Companies. Collectivel y, the Group Tra ining Companies emp loy approx imately 300 peop le who can be covered by the Award. Such emp loyees include field ofltcc rs and traini ng oflicers whose em ploymen t is cu rrent ly award free . Add ition,rlly, emp loyees who have had thei r employment regu lated by the Cle ri ca l Employees A ward - State arc to be encompassed by the proposed A ward. Mr Buckley ex plained the nature of the business or Croup Training Companies and the background to the app licat ion in th..: fo ll owing, lcm 1s :- ' Thc nature of the industry where clie nt, app rentice, trainees and host emp loye rs arc scparatc.d both geographical ly and demographically. depending upon reg ion. co re business and ava ilab ility o f host cn 1ploycrs means that the em pl oyees of the Group Training Companks ar..: foccd with a con ti nuous need to fo in with the work pattcms , hours and avai labil ity of their clicnts. The Group Tra ining Compan ics arc run on non-p rofit lines and arc - bu t arc requi red to demonstrate s~iund commcrciai practices and cover operating cos t1- . While there arc some grants and financia l support g iven by gov.:m mc nts the budgets o f' G l' C's arc not li mitless and like a ll bus iness the money ava ilable to carry st aff is never erl(lugh to recompense the em ployees rwrn what the cmp lo)cr demands or them in a service industry such as this. Wh ile the Gro up Tra ining Compa ni es gene ra ll y an; au emp ting to pay rates and prov ide bc nc lits in line with commun ity standards the grow th in the Group T ra111ing Co mpan) industry and the divc rs ilication or its core business concept ha s led lL) concern, with in the industry itse lf that its large ad h oe approach to lix in g sa laries and remuneration shou ld be better regulated. The catalyst which achieved some un ifo m, ily across the industry ap pears to have been the serving in 1993 of a Federal log o f t·l a ims by the Soc ial and Comm uni ty Scr~ices Div ision or the Austral ia11 Se rv ices Union. And the roping in of Group Tniin ing Companies undcr wh at rs known as the CETSS Award whic h is the Commw1ity Em ploymen t Tra ining and Support SerYices. an award of the A ustral ian Industria l Relations Co mmi ss ion. Tha t roping-in was opposed by the G roup Tra ining Compa ni es here in Quee nsland as it has been e lsewhere as it was fe lt that the CETfS Award d id not address the nc~ds of the Group Tra in ing Companies in tenT,S of lkxibili ty of cmplop:'cs to serv ice clients. 14 678_1 DOC 13 April, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1073 ln February of 1994 the Australian Services Union. Queens land Branch was approached by the Group Training Australia Queensland and Northern Territory Inc. "iih a proposa l to create an award within the State jurisdiction, and structure t hat award such t ha t it was meaningfu l to Lhe ind ustry and de liver benefi ts to emp loyer and employee alike. Since then the /\SU has met with representati ves of the Group Training Australia Queensland and Northern Territory Inc. and ind ividual Group T raining Compan ies in Cairns, Mackay and Brisbane, attend ing executive meetings and State conferences. Each ind ividua l Group Train ing Company has been personally visited by the Auslralian Services Union and d iscussions held wi th both man agement and .:mployecs. as has been the case in respect to Mr Jab lonski's meetings with both em pl oyers and emp loyees alike again over the whole range o f companies here in Queens land . Cop ies of the draft A ward have been widely circul ated to the employees and the conten t and significance of the Award exp lained. Endorsement from employees was then sough t and gained from employe rs and employees and it is on that basis that we havc filed the application and arc here before the Commission today . The application, Commissi oner , is one o f consent be tween 1he named parties in append ix C." (pp. 17 - 18 Transcript). AWARD CONTENT Mr Buckley addres sed the Comm ission on the contents of the Awa rd. Except where otherwise spccilicd. the con tcn:s of the Award are approved. Clause I.I - Title The inclusion of "Queensland ' in the title appears to be a remnan t from the federa l jurisd ict ion. I !ere it is supcrnuous and is de leted. rtause 1.2 - Aw ard Coverai:e The parties propose to list the e mp loye r parties toge ther with thei r addresses in an appendix attached to the Award. Th is Commission's practice has been to regard appe ndices as inoperative pa 1ts of the Awanl or to use them where prov isions arc be ing trialed. Such an important matter as employer parties should not be relegated to an appendix. Although somewhat cumber~ome. the name of eac h n f the ~mployer parti es is to bo: contained within the Award coverage clause. An unnecessary in c lusion arc the addrc.sscs. Aga in this a pproach appears to have been lifted from federal a,-.,rd rcspondency lists. They can be deleted. Ch1usc 3.3 - Wages It is proposed th at the Award be a minimum rates award. T he Commiss ion is informed that som e Gro up Train ing Corn1,ani es arc paying wages in excess of those pres cr ibed in the applica ti on. /\dcq uatc savings provis ions have been bu ilt in to ensure tha( emp loy ee s' wages (and other conditions) arc not reduced as a conse quence of the opera ti on of the Award. Eight broadbands of GTC Officer have been pr oposed with the 100% relativity set a t Group Tra ining Company Officer Level 2c. The proposed weekly rate of pay at tlm level is $450. c lear ly in excess of the es tab lished I 00% relativity of $417 .20. I lowever, th e proposed rates for each of the 8 broadbandcd levels are " loaded" rates co ntaining a provis io n for two hours overt ime paid al the rate of time and a- half. The "loaded' ' ra le is in recognition of the hours worked and pa ttern of work ing by Group Trnining Compa ny Officers. In addition to the 8 broadbands proposed for Group Training Company Officers. a further broad band con sisting of 8 Leve ls has been sough t for Special Managerial and Execu ti ve Officer Classifications. Allocation to a level is dctennined by a complicated fonnula w hi ch includes factors for annual revenue\ gross wages, total expenditure, employee (a pprentice, trainee and other leve l) numbers and geog raphical area serviced. The fonnu la and wage rates have been deve loped as a result of extens ive survey ing of Group Training Com pan ies and manipulat io n of the s urvey data. The Commiss ion is prepa red to ap prove the wage rates for Gro up Trainin g Co mpany Officers and the Special Managerial and Executive Officer cl assifications. I am also prepared to i nc lu de the fom1Ula for salary detem1ina1ion of the lauer group. In so doing, I would record that the document has been put before the Commission on the basis of being a consent award. Acc.ordingly, the Commission has not had the opportunity to eva luate the work o f employees proposed to be covered by the A ward but has accepted the proposed rates and their method of ca lcula ti on as appropriate. Qausc \2 - Stat uton ll2lida ys Suhclause (3) or this clause relates to Show Days. In addition to the swn dard awa rd provisions. the parties seek the inclusion of the following:-· "Shoul d such Show Day not be s pecified in relat ion to a d istrict wi thin which the Group Training Company is located then o ne (I) day in lie u of such Show Ho liday is to be added to the ann ual leave ent itlement of each emp loyee: Provided that such addi tional day is not subject lo annual lea ve loading and only one (I) day per year may be credited.". T he purpose of th~ proposed provision is to cover situations where. due to drought or othe r such circumstanc.es . an annual Show has not bcen held. In suc h cases, an employee has no legal enti tl ement to a Show Holiday unle ss the emp loyer allows the emp loyee to take a day in lieu. In support of the argumen t. reference was made to the electric ity industry, where the relevant Minister decided that in circumstances where a I lorticu ltural or Indu stri al or Agricu ltural Show is not declared within that particu lar area. em pl oyees arc to be granted an additional day o f annual leave. The Commission has not been told of the background to the making of the Min is ter' s decision. Whilst not denying there may have been valid facts and circumstances leading to it, a M inisterial dec is ion relevant to one industry is not binding on this Com miss ion. It is rny view that the matter is one of administrative arrangement and is best not conta ined in the Award . Whether the parties wish to capture th eir agreemen t on this issue in another fom1 is a matter for their considera ti on. Clau~c 5.3 - Sic k Leave Subclause (5) seeks the payment of accrued sick k:avc on term inat ion o r emp loyment. Although it may seem inequitable to employees with a substantial accumulation of s ick leave not to rece ive an y benefit for regular attendance at work on comp let ion of their employment. such claims fail to recogn ise the purpose of s ick leave. It is a protection against hardships associated with lack of earnings dur ing ill ness, not an enti tl ement earned as a result of ac tual perfornrnnce of work. Jn the decision o f the Full nench concern ing a C,cneral Rul ing for Sick Leave. the following was said: - 14 678_ t.DOC -- 1 of 2 -- 1074 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 13 April, 1995 ··we emphasis th at sick leave is to be dis ti nguished from other forms or pa id leave, such as annual l eave . T he fonncr r epresen ts a protection aga i nst l oss of wages through te mporary inabi lity lo \,ork whibt other forms of paid leave r epresen t accrued enti tlerncnu; camcd as a resu lt of the ac tu al pe r fom1ancc o f work. No en titk .rncm Lo pai<l sick l eave arise s, therefore, except during periods of absence d ue to ac tua l i llness. Wc can see no meri t i n the cla im. which (a s already sta ted) is refused.'' ( 1972) 80 Q(ilG 732 at 734 . In th e circumstances I re fuse to gra nt th e inclusion of subclau sc (5) of clause 5.3 - Sick Leave. It is for the parties to consider whether. in ligh t of the p reced ing commen ts, the provision should be contained in a ce rtified agreement. Chrns e 6.1 - S tru c tu ral E fficic n_o: Subc l ausc (I) is t he no extra cl ai ms provisions which was inserted into a"·ards fo l lowing Lhc .l u ly 199 I State Wage Case Decision. This provis ion has out li ved its relevance and should be dclct..: d. Subj ect to thi s decision, the /\ ward is arp rovcd, operat iv e from Mond ay . 10 A r r il 1995 . CERT I FIED AG RED1 E"ffS Except tor the ir ti tl es. the 20 Ag r eemen ts before Ihe Commissi on for certification arc in identi ca l te rms. i\s requi red by the Ru les of Court, affidavi ts have been lodged w i th th e ag.rt,crnenls. In submissi on s the ra rt ics have address ed ss. 160 an d I 64 of the Industrial Relations Act I 990. Thc Commi ss ion is sat istied that the r eq uirem en ts of these sect i ons h <1vc been met and would be prerared to ce rt ify- the ag r eemen ts as th ey stand. In ligh t of the dec ision given by the Commission in r es pe ct of se veral of the pro vi $i ons sought LO he contained in the /\ ward , the pani cs an.: giv en lht: opponuni t) lo am e nd the agreements i n rcsronse to the Commission ·s concerns. As the operati ve dale sought for the ccn i lied agreem ents is I O /\pril 1995. the parties arc reques ted to noti fy the l11<lu s1rial Reg istrar in wr iting pr ior to th is da te of th ei r intention~. I or de r accordingly. Ci .K. 1-'ISllf:R. Comm iss ioner DFCISION OF H ILL BENCI I T ht.: maua hcle! rc the Ful l Bench is lhc approval of t he 38 hour week. The Com mi ssion w as in form ed that cleri ca l em pl oyees were ge nerally employed under the te rms of the Cleri cal Employees Award - Sta te, wh i ch pr esc rib es a 38 hou r week . Other employer, guc h as Field Orliccrs. Div isional Managers and General Managers arc gene rally rc.qui rcd to work tho se hours requ ired for the work lo be com pleted. Recogni ti on for t he hours worked wa~ given in th e ,alary pac k age r ecei ved by those empl oyees . I lo\,-cvcr, 1l1c 38 hour ".:ek is ac knowl edged as be ing the standard hour, . The develo pm en t of the Awa rd wi ll l lhe revamping of wag es and ct,11di tion ~ has led 10 the 38 hour week being rccogrused and fonnahsed for al l employee~ . The parties now see k th e Cornnu ss ion endorsemen t o f these hours of work. Under the December 1994 Wage Principles. an award may be made to i ndu dc a 38 ho ur week provided the Commission is satis fied the cos t impact is minim i se d. (Sec Princi ples 3.2 and 3.2 .5 Slandard I lour, ). We arc sa tisfied tha t as the 38 hour we ek ha;, hc en co ns idered lo be the standard and th at many empl oyees have been wor ki ng such hours under anoL hc r Sta te award the cos t impact is mi nimised. /\c~x:, rdi ngly , we approve the 38 hour week fo r employees engaged under th is Award. We order accordi ngly . K .L. EDWARDS, Commissioner. G.K . FISIIER, Commissioner. A. L. BLOOMFIELD. Commissioner. Appeor ances :- Mr I. 13u ck ley for the /\ us1ral i an Services Industrial Uni on of l~mployccs (Q ueen slan d Local Government, Energy, Ports, lnlonnation Te chnology , Soci al and Commun ity Services Branch). Mr D. O ' Brien for Au stra lian Municipal. /\<lmi nistrativc. Cleri ca l and Services Uni on . Ce ntral and Sou th ern Queens land Clerical and ; \dmin istrative Bra nc h, Union of Employees Mr J. Jablon ski for Group Training Austra li a. Queensl an d and Northern Terri tory Incorporated and Others. Mr J\. Grant for Group Traini ng Au st rali a. Go ld Coast Inc. Mr P. Garske for the Quee nsland Con fede ration of Industry Limited, Union of Employers. Mr M. Bel lie ld for the Metal Trad es Industry Associati on or Australi a. Queen sl and Hran ch, Uni on of Employer s. Operat iv e Da te: 10 Apr il 1995 Decisi on - New Award Re l eased: 3 Apri l 1995 ################l/#####flfl#fl##ll#flll##/lff#####ff####/1###/1/1### 13 April, 1995 ] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1075 -- 2 of 2 --