Department of Employment, Vocational Education, Training and Industrial Relations v State Public Services Federation Queensland Union of Employees [1994] QIRC 475 (1994) 147 QGIG 278

278 QUEENSLAND GOVERNMENT IN DUSTR IA L GAZETTE (16 September, I 994 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS CO MMISSION Industrial Relations Act 19')() Part I0 -· A wards and Industrial Agreements Department of Employment, Vocational Education, Training and In dus tri al Relations AND State Public Services Federat ion Queensla nd Union of Employees (No. R 18-0 of 1992) COMMISSIONER SWAN 31 Au gus t 1.994 Application for cessation of foe for service payments for quaran tine officers - Work performed outside of ordi nary working hours - Shill work and overtime provisions - Night shin - Effi cient and effective working arrangement - Workplace Health and Safety legislat ion - Cost impediment of ex isting arrangement - Work performed on agency basis - Increase in aircraft arrivals - Fee for service payments could not continue indefi nitely - En terprise Bargaining - Compensation - Acceptable working conditions •- Application granted. DECISION During the course of a hearing by a Full Bench of this Commission in matter No Rl&-0 of 1992, a distinctly separate is sue affec ti ng persons employed as quarantine inspectors arose for dctennination. This matter was allocated for hearing to the Bench as p re sently constituted. Currently th ere exists for quaranti ne employees an arrangement whereby payment on a fee for service basis (hereafter FFS ) exists for work perfo rmed outside of ordinary working hours at both Br isbane and Caims International Airports. Briefly, th e system works as follows;- payment is made to employees per aircraft serviced, rather than for the period of t ime one spends at the workp lace. Jn th e wo rds of one witness "... ..so it doesn't specifically matter the time that you spend there. it 's the numher of aircraft that come in during that time whereas the nonnal overtime. it is paid on the amoun t of time that is being spent at the airport ..... "(Mr W. A. Ives, Transcript p. 26 2) . The Crown seeks to re mov e that method of payment and replace it with shift wo rk and overtime provisions similar LO those contained within the proposed Public Service Award - Stale with the specific exclusion of the defi ni tion of 'night shift'. The rep la cement definition fo r 'nig ht shift' would be included in a schedule to th e Award detailing those provisions. The Crown proposes this course of ac tion for t he following reasons:- - the arrangements currently in existence no lon ger meet the needs of the service; - the p ro posed system would provide a more efficient and effective working arrangement: - the proposed arrangements would comply more approp ri ately with workplace hea lth and safety legislation: - there is a cost impediment associated with the existing arrangements. Brief Backeround to Existing Arrani:ements Early records detailing the genesis of the current system are unavailable, however. there is knowledge that in 1970 approval was gran ted by the approp ri ate body that inspect0rs undertaking plant and ani ma l quarantine inspections at airports be paid according to the numb<.'r of ai rcra ft serviced out of hours. Histo ry shows that responsibi li ty fo r the quarantine service provided in Queensland was d iv ided between the general quarantine section of the Commonwealth lleallh Department and the Plant and Animal Qu arantine Section of the Queensland Department of Primary Industries (DP!). Payment to oflicers of the DPI was re imbursed by the Commonwealth Government. Currently. all funds for the service are provided by the Commonwealth. The work perforrncd by employees of the Quarantine and Inspection unit wi th in the Queensland DPI is undertaken on an agency basis for the Commonwea lth Department of Primary Industries and Energy's Australian Quarantine and Inspect ion Service (AQIS) wh ich is responsible for all funding and policy developmen t for Quarant in e and Plant Expo rt maners. FFS paymen t., are current ly only app licable to personnel \\Orking at internation al airpons - in other areas, payments are made in a variety of ways. eg. overtime payments and t ime off in lieu. 16 September, 1994] QU EENSLAND GOVERNMENT lNDUSTRJAL GAZETTE 279 The marked increase in international aircraft arrivals at the releva nt airports has caused the funding body to review this method of payment to quarantine officers. A wide-ranging series of discussions have ensued between the Union representing these employees (the State Public Services Federation Queensland, Union of Employees)(the Union) and the Crown over a considerable period of time with varying options being put by both parties for consideration. Those discussions have failed to resolve the problem. T HE CLA IM S OF THE PARTIES (The evidence of a ll witnesses has been considered by the Commission. The following represents merely a collation of the more pertinent points raised by witnesses). The Crown General Comments FFS payments had never constituted, in a forn1al sense, part of th e salary package of the employees in question. It represented a method of payment for overtime. The working of overtime is vo lun tary (except for a period of time at the Cairns airport) and a number of employees chose not to work in that manner. The Crown produced evidence showing that. upon engagement, employees were made aware of the fact that the payments they would receive by way of FFS were distinctly separate from remuneration they would receive by virtue of the ir employment contract with the Crown for an ordinary working week. It was stated that employees were well aware that FFS payments would not continue indefinitely and discussion had occurred between t he parties over some years in this ve in. The Crown, being aware that its proposed change may cause a monetary dislocation to some employees, made an offer to employees which involved an interim arrangement for the staggered introduct ion of shift work and access to an increased amount of overtime in the initial four months after shift work was introduced. It is n ot necessary to go in to the finer detail of this proposal at this point. That offer. however, rep re sents the current view held by the Crown. The evidence of witnesses called by the Crown is as follows;- :\-lr. \\' . h · es ( l\fanager, Quarantine and Inspection - DP!) - ... The 1993-94 Commonwealth Budget package forecast that th ere would be some 750 AQJS job losses over the next four years. The States were to lose I 00 of these positions with Queensland losing 8.5 positions wi th further reductions over the next three yea rs . .. .The introduction of shiftwork would, while still achieving sign ifi cant savings. enable some employees who otherwise might be retrenched to be redeployed in the airport operational area. - ... Increases in numbers of aircrat1 at Brisbane and Cairns airports have proved to be more expensive to service under the FFS arrangemen t. - ... An additional 32 aircraft are expected at the Brisbane airport with the opening of the new Kansai airport in Japan. ... It was an ticipated that the imroduction of shiftwork at Bri sbane and Ca irns airports would create an additional e le ven staff pos itions on airpon operations while making considerable monetary savings. - ... A key area of concern for Lhe employer was workplace health and safety issues arising as a result of the extremely long hours worked by employees at Brisbane and Cairns ai rportS. Mr . K.S. Murray (Chief Quarantine Inspector, DP!) - .. .The current FFS syst em creates inefficiencies which may be overcome by the introduction of a shift arrangement. - ... When employees opt to work under the FFS arrangement, they invariably arrive late at or leave early from their routi ne job in order to perfonn these extra duties. - ... An example of the long hours worked by some inspectors is as fol lows:- "Under the fee for service arrangement it is no t unusual for an inspector to start work at 7.30 am in Brisbane and finish the last place at 12 .30 am the following moming or later, a span of 17 hours at the workplace. The in spector starts work again at the nonnal wo rkplace at 7.30 am the same morn i ng . The break has been seven hours ... From my personal experiene-e I am aware th at the situation where staff work the long hours of combined nonnal hours and out of hours airport has led to increased sick leave by staff due to associated excessive tiredness and breakdov.m of health". - .. .Due to loss of efficiency and tired ness of staff, the quality of the service delivered at the se airports had suffered. .Mr D.W . Currey (General Manager, Division of Standards and In spection) - ...This witness detailed a history of the agency re lationship which exists between the Commonwealth and the States and th e Policy of the Commonwealth for Cost Recovery and ·u ser pays' processes in activities in which they are engaged. - .. .That, whi lst all States have been under scrutiny with regard to their costings, Queensland costs per officer had been iden tified as be in g well above that of other States. - .. .In some other States, shift work had been introduced to provide a more cost effective and flex ible operation for aircraft clearances. - . .. There had been industry criticism (specifically from users within the export industry) of the costings involved and the impact tJ1is had upon small businesses attempting to export. . .. Whi 1st fee fo r service had, over the years, served both the needs of the Department and employees well , the time had arrived for attempting to counter the increasing cost factor, hence the need for con trolled shift work arrangemen ts. - .. . For some period of time. new employees were advised that l'FS would not continue indefinitely. The Em ployees General Comments The Union's concerns focussed in part upon the anticipated monetary lo ss to some employees if FFS payments ceased and shift work was introduced, possible compensation for such employees, loss of flexibility in working hours and consequent detriment to fam i ly li fe . The Un i on had, over some period of time, proposed various options to be considered to resolve the differences obvious be tween the parties. I appreciate that a considerable amount of work had been done to progress the matter, however, the difficu lties were not capable of being fina ll y resolved to the satisfact ion of both groupings. -- 1 of 3 -- 280 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 16 September, 1994 The e\ idence of witnesses called by the Union is as follows:- Mr. B. C. McCulloch (Quarantine Inspector. DP!) .. Upon commencement of employment as an Assistant Quarantine Inspector in I 98 I, FFS had formed an integral part of his income. An example of the amounts earned by employees under the FFS scheme will be detailed. in a general manner. later in this decision. ... The benefit of the FFS system was that it permitted a greater degree of flexibility for employees. ... The introduction of shift work would have an adverse effect on both family life and standard of living. .\1r. G.'.\. Johnston (Quarantine Officer. DP!) ... rFS payments constitute a significant component of his take home pay. The loss of FFS payments would have a significant impact upon 'my ability to maintain my current financial commitments'. ... The FFS arrangements are different from nonnal overtime arrangements in that FFS rosters arc regularly produced some 6-12 months in advance and this enables employees to plan their working and family lives accordingly .. Were a move to shift work to occur. then employees should receive a fair and equitable ··compensation package in exchange for lost income that will result if FrS ceased". :\lr. A.W. Christie (Quarantine Officer. DP!) ... Loss of FFS payments would have an adverse effect upon his present financial situation. ... This witness was not in favour of shift work "because of its affect on lifestyle. family and particularly health". :\lr. 11.G. Smithard (Quarantine Officer. DP!) ... The loss of FFS payments would "directly impact significantly on my income and in turn my family's standard of living". ... This witness sought to work in this specific industry because of the degree of overtime involved. ... As \.,ith other witnesses. there was a belief that the FFS payments were to compensate employees for vehicle usage, meals, telephones, travel time and disruption to leisure time. .The shift work proposals of the employer were deficient in that more officers than being suggested would be required to adequately pcrfonn the \,ork required. ... The proposed shift roster of the employer "makes no mention or provision for the gro\\th of the Brisbane airport and the expected increase in arrivals'·. :\1r. D. R. Glover (Quarantine Officer. DP!) ... This witness. upon leaving employment with the Common¼ealth to move to State employment. understood FFS payments to be an integral part of his "take home" pay. ... Employees who elected to transfer to State employment 'were advised prior to transfer to the State, that no Officer would be financially disad\ antaged' by the move. - ... "Loss of access to FFS would obviously impact on my ability to meet financial commitments". Conclusion The FFS arrangements as currently exist can no longer continue. There has been considerable material put to the Commission and length) submissions made in this matter. At varying stages throughout the hearing. some submissions appeared to be at variance with definitive comments made on the same point by the same party at earlier stages. I understand, because of many variables which exist in the debate. that it was sometimes difficult to accurately estimate possible outcomes. Unfortunately. whilst not being critical of either party. this factor has made the task of the Commission considerably diflicult. Notwithstanding that, the issues to be considered are not complex. In essence. they revolve around a determination on the part of the body funding the FFS arrangement and the immediate employer to review in toto the method of payment for employees performing the relevant work as well as the manner in which the work is performed. The employer wishes to introduce shift work and overtime provisions in conformity with that being proposed for the pending Public Service Award - State and a night shift arrangement which specifically caters for the employees in question (to be attached to the pending Public Service Award - State). The employees wish to either retain the scheme presently in existence or. as an alternative. work under proposals they have formulated. A further submission of the employees is that. were shift work to be determined as appropriate by the Commission. the night shift arrangement should be dealt with by way of enterprise bargaining at the agency level. The submissions of the Cro\\11 as they examined the following issues - ... loss of income for employees upon the cessation of the FFS arrangement: - ... compensation for such loss: ... claims of fatigue being associated with shift work arrangements; and ... lack of flexibility in proposed shift work arrangements and disruption of employees' lifestyle. were most persuasive . Considerable debate ensued between the parties during this hearing as to the correct quantification of loss which might occur to employees if the FFS scheme ceased and shift work and overtime arrangements were introduced. Not all employees utilised the FFS scheme. but for those who did the payments over and above their Award rate of pay ranged from approximately $500 pa. to $30.000 pa. The average figure appeared to be around $ I 5.000 pa. There is no doubting that this amount of money was a substantial addition to an employee's ordinary wage. Evidence suggested that those employees at the higher end of the current ITS payment scale would not receive similar amounts of money under the proposed Crown scheme. but for emplo) ees earning roughly the average amount in FFS payments. there was a possibility that they may not be adversely affected monetarily by the Crown's proposals. Rega, .:ss of how employees received this extra remuneration. the reality of the situation is duly recognised by the Commission . However. one needs to compare this with projected figures which would apply under a shift work arrangement. l accept that it is l 6 September, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 281 d1 fncult to be accurate in assessing such a proposal because of a range of variables \\ hich impact upon this type of process. ln accepting that a fonn of shift work needs to be introduced. l am satisfied that an equitable arrangement can exist which, under the ,pccial circumstances of this case. ensures that. as best as it can. the financial concerns of most employees can be adequately addressed. The FFS pa) men ls being made to employees for a lengthy period of time were ncv er detennincd by way of arbitration. That they were 1wt detennined generally ehcwhere is not in question. Whilst ddjustment to rates paid may have had some linkage \\ ith general ,\ ward movements. arrangements were made between the parties inckpcndcnt of the Industrial Relations Commission. Consequently. the quantum paid to individual cmployces, together with the \Hirking conditions as they related to pcrfonning these extra duties, have never been subject to scrutiny by the Commission. What must be home in mind in this debate is that the work pcrforn1cd under the !TS arrangement \\ as work pcrfonned outside of the 'nonna!' \\orking week of these employees. While it was work which needed to be done. it was not compulsor) for emplo) ecs to perform the \\ ork (c,ccpt at Cairns where my understanding is that, at some stage, the \\ork was not voluntary because of a shortage of personnel). The attraction to employees. of course. \\as the extra and substantial remuneration. In the Crown's submissions, it represented the cguivaicnt of overtime which is not deemed to be an entitlement of any employee. The Cnmn attests to ensuring that emplo)ees full) understood that such payments might not continue indefinite!) and thi, factor \\as commonly discussed and understood amongst employees. l accept that statement as being factually correct. specifically as it relates to commentary made O\Cr more recent years. l have some difficulty in accepting the Union's submissions as the) go to questi(•n·, of compensation for employees upon the cessation of the ITS arrangements. Some employees never received ITS pay mcnts: others received amounts which appeared to vary from : car to year presumably dependent upon whether the employee \\ isi!cd to pcrforn1 the \\ ork or not (given that generally it wasn't comp11bory) and the payments ne\cr fonned part of an Award entitlement as such. Also. some degree of uncertainty prc\ails as it goc, lo accurately comparing \\hat was received by employees under the FFS scheme as opposed to what might be received under a shifl \,ork arrangement. Apart from these considerations. l ha\'C vie\,·ed the pciymcnts as being an 'extra' emolument in the general category or overtime rather than an entitlement or a pern1ancnt feature. As such. l do not support the request for compensation to be con,idcred hv the cmplovcr ·\n argument was put to the Commission by the Union that the 1-TS arrangement forn1cd part of the common law contract of employ mcnt between the parties and as such "it is inequitable for the Commission to vary the Public Service Award - State in such a way as to invalidate the contract of employment by introducing a proposed ,hift work arrangement'". To support this contention. a number of authorities were cited bv the Union. Thc,e submissions have been duly considered by ~he Commission. however. the Commission. exercising its general arbitral p(mers can effect the being proposed and would only do so being satisfied that eqult) and fairness have prevailed. l"hc hours being worked by these employees ( outside of their nom1a! working week) are. in some instances. staggering. Earlier commentary and evidence attests to this. I appreciate the fact that most employees attempt to earn as much income as is possible to cater for their needs. However. acceptable standards must be adhered to as they pertain to what would be tenned "reasonable \vorki;1g conditions'" The arrangements which existed under the FFS ,cheme fell outside of this standard. I have little difficult) in accepting the subm1ss1ons of the Crovrn as they go to querying occupational health and safety requirements. However. it 1s equal!) that a responsible employer would hme allowed this type to continue in the manna in which it did for so long. Regarding flexibility and lifestyle questions raised by employees, I acknowledge that many employees may not enjoy the same amount of time with their families under a shift-v,ork arrangement as they experienced under the FFS arrangement. This proposition must be weighed, however. against the long hours being worked b) emplo) ces. Common sense would suggest that a more regulated working life \\Ould be, in the long tern1, more beneficial to employees from a general health and safety perspective. The situation called for a reasonable balance to exist between working hours and leisure time and m) view is that shift-work arrangements would cater for this need much more satisfactorily than the ad hoe arrangement which had existed for many years. Over-riding this whole proposition is the knowledge that the hours being worked by some emplo)ees fall far outside what is seen to be acceptable \\orking conditions. I have given considerable thought to the array of propositions put to the Commission by the linion and by the employer for resolving this issue. I have detern1ined that shift-work arrangements should be introduced in place of the FFS scheme. I have given detailed consideration to \\hcther a significant clement of this proposal should be left to enterprise bargaining. Under different circumstances. I may have been inclined towards this proposition. My hesitancy now is that the debate between the parties has been on- going for some ) cars and both have been unable to agree on a satisfactory process. This does not augur well for the future settlement of the dispute. As well. l have accepted the submissions or the Crown in that a solution must be found as expeditiously as possible to this particular problem. On balance. I do not believe that this proposition would resolve the issue - rather. it ,vould merely postpone the problem until another time. Therefore. I accept the proposition as put by the Crov-m (detailed in Attachment A to this decision). Of consideration also has been my understanding. generally. that employees earning approximately the average earning from the current FFS arrangements arguably ma) not be disadvantaged by the scheme proposed by the Crown. ln light of this decision and given that a detern1ination by the Full Bench hearing the Public Service Award·· State matter has not issued. I propose to com enc a conference between the Commission and the parties for the purpose or discussing the implementation of this scheme. lf agreement 1s not capable of being reached between the parties on this process, then the Commbsion will hear the parties fom1ally on the point and a separate decision will issue. lt is hoped that this will nPt be necessary. The Registry will notify the parties \\ith regard to the conference . l order accordingly. D.A. SWAN. Commissioner. Appearances Ms M. McGinity, with her Mr R. Gillespie and Mr W. Ives. for the Department of Primary Industries Mr A. Scott. \Vith him Mr D. Young. for the State Public Services Federation ()ueensland Union of Employees Operative Date: NIA Decision - Cessation of fee for service pa)mcnts. Released: 6 September 1994 ATTACH.\1E'.\T A Shiftnork Proposals A two shift operation be introduced with the possibility of 1mplemcntmg a 3 shift operation at a later date. -- 2 of 3 -- 282 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE ( 16 September, 1994 2. Agreement that for the first 4 months a 5 day shift Monday to Friday be implemented with a 7 day shift being implemented after that time. 3 Aircraft arriving outside normal shift hours Monday to Friday are to be cleared on an overtime basis. 4. All aircraft arrivals on Saturday and Sunday are to be serviced on overti me for 4 months. Overtime on weekends is to be at I I/2 for 3 hours on Saturday and double time thereafter and double time on Sunday with a minimum of 2 hours in each case. 5. 3 officers 10 be rostered per shift including one shift supervisor. 6. I back up officer will be on call. 7. Hrs (0500- 1215 and 12 00-19 15 in Brisbane] - (0230-0945 in Caims and Day Shift 0800- 1600]. 8. Brisbane - Mon , \\led, Fri early flights: 0405 - staff on early shift to start early (i.e. overtime prior to 5.00 am shift ). Staff on pm shift to service late aircraft (i.e. overtime after 7. 15 pm finish). All other OT done by staff on a rostered OT basis. 9. Shift supervisors to ask for expressions of interest. IO Staff for shift Brisbane - ask for expression of interest. Caims - all inspectors 10 participate except Regional and Senior. 11. Airport operations will require an additional 2 staff to service a 5 day sh ift operation in Brisbane and 2 staff in Cairns. An additional 6 in Brisbane and 5 in Cairns will be required to service a 7 day shift. 12 . Some transfers may be required. 13. Training for new staff will need to be completed. 14 . Full implementation of 7 d ay shift operations at both airports after initial 4 month period. ####################################################### 16 September, 1994) QUEENSLAND GOVERNMENT fNDUSTR IAL GAZETTE 283 -- 3 of 3 --