Benowa Children's Centre v Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees [1994] QIRC 687 (1995) 148 QGIG 133

132 QU EENSL AND GOV E RNMENT INDU ST RI AL GAZETTE [ 13 January, 1995 I 3 January, 1995 ] QUEENSLA ND GOVERNMENT IN DUSTRIAL GAZETTE 133 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COM MISSION Industrial Relations Act 1990 s. 178 - application for approval Enterprise Flexibility Agreement Benowa Children ' s Centre AND Austral ian Liquor, Hospitality and Miscellaneous Workers Union, Queens land Branch, Union of Employees (No EF9 of 1994) BE NOWA CHILDREN'S CENTRE ENTERPRISE FLEXIBILITY AGREEMENT - 1994 CO MMISSION ER NUTTER 20 December 1994 App li cation for approval of Enterprise Flexibility Agreemem - Opposition by Union - No Union mem bers on site - Reference to Jndusrrial Re/a/ions Acr I 990 - Comparison between Agreement and Parent Award - Union subm its no disadvantage test - Commission not satisfied Agreement meets the no disadvantage test - Opportunity given Lo the employer to amend agreement. DECISION This matter concems an application pursuant LO section 178(2) of the industrial Re/a/ions Acr J 990 for approval of the Benowa Children' s Centre Enterprise Flexibility Agreement - 1994. The application was opposed by the Australian Liquor, Hospitality and Miscellaneous Workers Union , Queensland branch, Union of Employees (ALHM WU) under s. 179( I) which states:- " 179( I) On an application to the Commission - (a) to approve implementation of an agreement: or (b) to extend an en terprise flexibility agreement's period of operation; an industria l organisation of employees is en titled to be heard if it is bound by an award or industrial ag reement that binds the employer fo r work performed in the enterprise.". The Commission was advised that the ALHMWU did not have any members at Benowa and they were therefore not an "eligible union" in terms of Part 11 of the A ct (s. 15 7 - Definitions). As a consequence the right for the Com mi ssion to refuse to ap prove the agreement on the basis that the industrial organisation being an eligible union was not notified or given an opportunity to take part in negotiations as required under s. 181 (6) does not app ly. The opposition by the ALHMWU went to the areas of disadvant age to, and lack of consultation with employees. This will be dealt with in considering the requirement under sect ion 180( 2) of the Act. That section requires that the Commission must and may only approve implementation of an agreement if satisfied that the cri teria under that section are satisfied. (the underlining is mine). Dealing now with each of the criteria. (a) The agreement applies only to tJ1e named enterprise and is only about an industrial mauer. (b) The wages and employment conditions of the employees are regulated by the Child Care Industry Award - State. This award binds the employer. (c) The agreement covers all employees at Benowa bound by that award . (d) The next matter on which I must be satisfied is that the agreement does not disadvantage the emp loyees covered by the agreement about their employment conditions. Subsection (3) s tates that:- " ....an agreement disadvantages employees in re lation to their employment conditions only if - ( a) approval of implementation wou]d result in reduction of the emp loyees' entitlements or protection under an award or industrial agreement; ruli! (b) in the context of the employment conditions considered as a whole, the Comm ission considers the reduction is against the public interest.". Ms Rogers for the ALHMWU provided an exhibit detai ling employment conditions under the Chi ld Care Industry Award - Stale and the EFA and in respect to Kate ' s Place (an industrial agreement made with the ALHMWU). The Act rel ates the award under which the employee works and whether approval of the EFA would result in a reduction of entitlements under that award. In terms of this prescription I am unable to take the " Kates' Place" agreement into consideration as the employees at Benowa are not subject to that agreement. Ms Roger's exhibit showed the following:- Child Care Industry Award Proposed Benowa EFA Sprea d of Hours 6.30 a.rn . 10 6.30 p,m,, Ope n ~fonday ro Frida y Hours of Duty 40 Hours per Week Average of 40 Hours per Week 8 Hours per Day Up 10 10 Hours p<r Day 13646_ 1.DOC -- 1 of 3 -- 134 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [13 January, 1995 Child Care Industry Award Proposed Benowa EF A Penalty Rates: Mon, - Friday, Overtime Rates Apply 15% for all ordinary hours 6.30 p.m. to 6.30 a.m. worked between 6.30 p.m and 6.30 a.m. Saturday Overtime Rates Apply No penalty paid between 6.30 a.m and 6.30 p.m From 6.30 p.m. to midnight 25% penalty for those hours worked after 6.30 p.m. Sunday Overtime Rates Apply From 12.00 midnight to 6.30 a.m. a 25% penalty applies for those hours worked after midnight. From 6.30 a.m. Sunday to 6.30 a.m. Monday, a 50% penalty applies for those hours worked. Additional Work' Overtime Rates Apply Employee may request additional work. Such work is remunerated at casual rates. Mr Moloney for the applicant stated that Benowa had been trialing child care for children during week day evenings and occasionally on weekends but that staff engaged on evening care are separate to those staff who are engaged during normal week day hours. The evening care is carried out by 2 staff members and weekend care on an ad hoe unscheduled basis. He stated that shifts worked outside the 6.30am to 6.30pm spread would attract the 15% shift loading which compares favourably with the Commission's standard that provides for a flat monetary allowance. In relation to work performed between 6.30am and 6.30pm Saturday, no reference was made in the EFA to additional payments although the attachment to the affidavit from B. Lowy indicates that payment of an additional 15% will be made. Mr Moloney referred to the additional payments being made for other work performed on Saturdays and Sundays and the additional loading provided. He stated that no current employees were working at weekends. No employees would therefore be disadvantaged. Firstly, in relation to shift work, Monday to Friday outside what could be termed a day shift, I am of the view that a 15% loading does not disadvantage the employees having regard to the Commission's standard afternoon and night shift allowance. In relation to work performed on Saturdays and Sundays as part of ordinary hours, there are a number of awards of the Commission covering such situations. These are situations in which it is in the public interest that persons work or are able to work during the weekend or alternatively, it is in the interests of the employer's business. Where it is in the interests of a particular employer to roster employees on Saturday and/or Sunday as part of ordinary hours, the employee is credited or paid in accordance with the applicable overtime rates under the award for those particular days. As an example the Engineering Award - State provides for work on any 5 out of 7 days per week (by agreement) with overtime rates/ payment credited for week end work. A number of other awards which provide for 5 out of any 6 days (Monday to Saturday) provided for Saturday to be paid/credited at the appropriate Saturday rate. In contrast industry awards in the "fast food'' and "hotel industries" provide lesser entitlements for Saturday and Sunday work. However. these are 7 day per week industries. The Retail Industry Interim Award - State provides for lesser entitlements for Saturday work and in some respects for Sunday work (exempt and independent shops) but these are areas in which legislation applies giving certain stores the right to open in the "public interest" whilst in other situations (non exempt shops) determinations granting extended hours have been made by the Industrial Commission under the Trading Hours Act 1990 . Such decisions have been made, not on an individual basis, but on an area of the State or State basis. The situation in respect to long day care in the child care industry is that at the present time the industry is essentially a 5 day per week Monday to Friday operation with hours between 6.30 am and 6.30 pm. There is insufficient evidence before me to indicate that as an industry, in the public interest, it should be regarded a 7 day per week operation. Indeed if this were so an application to vary the Child Care Industry Award- State should be made. In these circumstances I am of the view that it is not apposite to consider the rates applicable to week end work in the 7 day per week industries referred to above. In this application no compensating factors such as a wage increase under the EFA for employees apply which could be offset against the change in payment for Saturday and Sunday work. The change will place employees who are required to work such hours under the EF A in a disadvantageous position in relation to the applicable award. I find that in those respects this would result in a reduction or potential reduction of entitlements or protection under their current award. Another matter raised by Ms Rogers for the ALHMWU was the fact that a 38 hour week application was presently before the Commission under the Child Care Industry Award - State and if granted would place employees under the EFA in a disadvantageous position to other award employees (the EFA prevails to the extent of any inconsistencies). Mr Moloney indicated on transcript that in the event of such a decision the employer would extend the benefit of the 38 hour week and consequential changes to employees. Protection needs to be written into the agreement. The question that I must now deal is whether in the context of the employment conditions considered as a whole, the Commission considers the reduction is against the public interest. In the course of his 2nd reading speech on the Industrial Relations reform Bill 1994 the Honourable the Minister made the following statements in relation to the no disadvantage test:- "The ·no-disadvantage' test has been an important innovation. Applying as it does to the overall package of employee entitlements, it allows for a wide range of variations to award conditions. It also allows for agreed reductions if these are not against the public interest, for example, as part of a strategy for dealing with a short term business crisis and revival. However, as has been consistently stressed, the provision is intended to protect well established and accepted standards which apply across the community; standards such as maternity leave, hours of work, parental leave. minimum rates of pay, termination change and redundancy provisions and superannuation.". I am of the view I am able to give consideration to the 2nd reading speech in interpreting the relevant provisions in this particular case. The Act Interpretation Act 1954 ins. 14B(l) allows 13646 I.DOC 13 January, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 135 consideration to be given to extrinsic material capable of assisting in the interpretation of an act provision in certain circumstances. Subsection (3) includes in the meaning of"extrinsic material'':- "(f) the speech made to the Legislative Assembly by the Member in moving a motion that the Bill be read a second time.". It is clear that in the context of the Ministerial Statement that the public interest test was not intended to allow for a down grading of established and well recognised conditions unless there was a compensating benefit across the overall range of conditions applying to the employees. In this case no such compensatory benefits exist for the reduction in award conditions for week end work. I am not satisfied that the "no disadvantage" test has been satisfied. (e) the agreement contains a grievance procedure for the prevention and settlement of disputes. (f) the agreement establishes a process for persons bound to consult each other about changes to the organisation or performance of work. This is embodied in the "Objectives of the Parties" which provides for the creation of an environment which will encourage and support a highly motivated and skilled workforce where the participation, freedom of choice and employee development will enhance the services provided to clients and will enhance the long term job security of the employees. In addition the agreement at clause 7 (Rosters) requires consultation and mutual agreement. (g) the Commission was advised in an affidavit from B. Lowy, proprietor of Benowa Children's Centre, of meetings with all employees on 15 August and 5 September when the enterprise document was discussed. Questions were invited and answered and a secret ballot conducted resulting in a unanimous vote in favour of the agreement. At the meeting on 15 August it was agreed to proceed with the implementation of the enterprise agreement and seeks its approval before the Industrial Commission. The affidavit was not challenged by the ALHMWU nor was B. Lowy required to give evidence in support of the affidavit. Whilst Ms Rogers indicated that a union official spoke to some employees at Benowa who indicated a lack of knowledge of the agreement. no evidence was presented in support of this contention. In the circumstances, having regard to the affidavit, I am satisfied that reasonable steps were taken to advise employees of all particulars in relation to the agreement and the intention to apply for its registration. (h) the staffing consists of 9 employees whilst B. Lowy in her affidavit indicated that meetings were held with all stafl~ (7) staff signed the agreement. A term of the agreement was that the parties agree that the agreement was not contrary to the public interest; not unfair, harsh or unconscionable, not entered into under duress, and reflects the interests and desires of the parties. Clearly a majority of employees have genuinely agreed to be bound by the agreement. The signatures were all on the same day. 5 September 1994. (i) the agreement specifies a date of operation that being for a period of 2 years from the date of approval by the Commission. There are also other statutory requirements under s. I 81 in which the Commission must not approve or may refuse to approve an agreement. I am satisfied that:- • the agreement is not inconsistent a provision of Part 4, Division 2 or 3 or Part 12, Division 5 or an order of the Commission under the Divisions; • there are no exceptional circumstances why, in the public interest, the agreement should not be approved; • the agreement does not contravene the section so the Act referred to in s. 181 (4); and • the agreement does not contain a discriminatory provision. The Commission is also required under s. 184(2) to identify employees whose interests may not have been sufficiently taken into account in negotiating the agreement. The Commission was advised that all staff were women, 5 of those staff being under age 21 . Having regard to the affidavit supplied by B. Lowy I am satisfied that they were consulted, the terms of the agreement were explained to them and that their interests were sufficiently taken into account and recognised at the time of making the agreement. I have indicated that the agreement as currently drawn up does not satisfy the no disadvantage test. The agreement satisfies all other requirements. Section 183(5) provides:- "(5)Before refusing to approve the implementation, the Commission in any case must give - (a) the employer an opportunity to amend the agreement by an instrument made with the approval (obtained as directed by the Commission) of a majority of the persons who, as at the end of a day specified in the direction, were employees covered by the agreement; or (b) the persons who would be bound by the agreement an opportunity to do what is necessary for the Commission to be able to approve implementation." I adjourn the proceedings to enable the EFA to be amended to comply with s. 180 of the Act. The following amendments would be required:- • the clauses relating to weekend work should be amended to meet the "no disadvantage" test; or alternatively other compensating factors should be written into the agreement so that there is no reduction in employee overall entitlements. • provision should be made in the agreement to record the undertaking in relation to a 38 hour week. Order accordingly. B. J. NUTTER. Commissioner. Appearances:- Mr L. Moloney for Livingstones Australia on behalf of the Benowa Children ·s Centre. 13646_1.DOC -- 2 of 3 -- 136 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Ms P. Rogers for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Emp loyees (ALHMWU). Operative Date: NI A Decision - Enterprise Flexibility Agreement Released: 20 December 1994 ####ll######### ###### ################ ###ll### ####/1####### (13 January , 1995 13 January, 1995 ) QUEENSLAND GOVERNM ENT INDUSTRIAL GAZETTE 137 -- 3 of 3 --