Bond University Stall Service Pty Ltd v The Bond University General Start Association [1994] QIRC 246 (1994) 146 QGIG 267

- 266 QUEENSLAND GOVERNMENT JNDUSTRlAL GAZETTE l27 May. 1994 27 May. 19941 QUEE SLAND GOVERN MENT INDUS TRI AL GAZETT E 267 #################################################### QUI I NSLAND INDUSTRIAL R[ I ATIONS COMMl'iSION l11 dustr1a l Relatiom Act 1990 s 1J 1 - c1p1,l1catron ror ne,,. award Bond Univer\1ty Stall Service Pty Ltd Ai'<O 1he Bond Umv P1,1ty General Sta rt A,sociauon ('\O. 881 ol 1993) (I ll[F INDUSTRIAL COMMISSIONLR HALi ( O11. l'v\ lC.SIO ER flSHlR (O1' 1MISSIONER UTT[ R 17 May 1994 \\ age f 1,atoon Principles Stand,11d Hours Pnnc,ple - Hours I r,s than 38 per v.eek - • ( .ishing-in Por1,on oi Annual Lec1ve - Arb1traw< I Matter - Rrrerence w Case I aw - Appilciltron Granted DECISION Th,s applic.it,on deals with thl' mak ing ot a new award tor gt-nera! Ohr non-,K c1dem1c l ,taft .it Bond Un1\.ers1t). Two mattt•r, were referred to this Ful Bench for determ1na11on the,e being the Insert1on oi the 37.5 hour week ,ind the ab,lu~ to ·cash in" an element 01 recreallon leave rhr appl1c,11 1on was supported by the C.eneral Stall Associatwn on bch.ih of grneral st.111 at Bond Umver\lty Ms Ralston ,, ho spoke on behalf or the unions stated that thPre w,1, no oppos1t1on to the Insrruon ol the 37 5 hour \H'e"- clc1u..e but that thr un·ons , .. ere opposed to the proposed aw.ird clause which provided ror the cash,ng In 01 recreatt0n leave Hou,~ of Wort-. 5ubc. .iu,e (I l oi the proposed c1.iuse states:- "(1) 1 he ordinary hours of work for permc1nent full-tome employers shall not be more than 37.5 hours per "erk exclud,ng meal breaks. to be worked between 7.30 am and 6 10 pm, Monday to rriday • \.-\r longland tor Bond Un1vers,ty adv1\ed that the nseruon oi J;" 5 hour\ per "er1' "ould maintain the ~tJtus quo It had been in the (unreg1stert>cl) agrePment sInt e its 1ncrpt1on I te stated that thl• provision ot 37.5 hours per v,,eek was 1n place since 1986 "hen general qau commenced to be emplo\cd at bond Uni\ ersit) J\lr I ongland referred the Comnms1on 10 an e,tr.ict from th<' dec1~1on 1n thr Jui) 1991 State Wage case which stated·- • In ordrr to real1sucally deaI '"th cena,n rare and excep11onal circumstances, we therefore propose to make a s1m1lar reservation to ,l F-ull Bench ot this Comm,s<1on by "ay 01 the Special Ca<e procedure Such appl1ca11ons should be based on genuine consent and should only be approved when a Full Bench 1s sat,stird that rare and rxcept1onal circumstances exist and approval ,s not contrary to public intere~t. . In tha1 dec 1s1on the Comrmss1on abo stated·- ' I his Principle 1s very specific in relatton to any reduction 1n standard weel-.ly hours below 38, however, trom t1me to time consrnt app hc ations .ire made, including 1n relauon to t•mployees who h,we for a lengthy prriod been l eg1t 1matel y worl-.ing less than 38 hours per weel.. 1or the same Employer under some other Award or approved lndustn.il Agreement, or where ex1stIn g employees in the industry in questoon .ire already working less than 38 hours •. The etrcumstances in this ca se Is that 3 7. 5 hours per wrek h.ive been worked by stafl since start commenced 10 be employed al Bond University. fh ,s meets the special orwmstances referred to in the 1991 State Wage decision The Comm1ss1on theretore .ipproves the 1nsemon oi the clau se .is sought in the award. Cas/11ng In of d Proportion of Annual le,JH• The μroposed clause states:- , 5 I (6) At the r<'quest oi the employee, a proportion ol accrued annual leave in exc ess ol tour w!'rl.s may be taken in money 1n lieu ot leave Only 'lO "lo of the ,JCcrued t'nlltlement may be pa id out in this m.inner, the remainder to be tal-.en as le,we.". Mr I ongland for the applicant relied on the de<1s1on of the •ull Bench in Ham ilton lsl.ind Employees - Industrial Agreement (IA 53 0 1 1993) as to the 1urisd1c1ton ol the Commission to approve the appl1cat1on. The C'omm1ss1on found in that case that s 152(1) allowed th!' Commission to make a de1erm1nat,on which w as .it vanan,e to the spec1fc provisions dc•tailed in s 15 2. Ms Ralst on conceded that the Comm1ss,on h ad power to m,1ke an award containing the clause wh ich 1s sought by the applicant. In the circumstances we do not address 1he po,nt The ~ubm1ss1ons by Mr Longla nd went to the following matters.- th at the appl1cat1on 11wli had been negotiated consensually bv the parties at Bond Univers,1y, that tht' requesl for this d.iuse in the agr!'ement had been at the request of the C.eneral Stati Association who had n egotiated on that point very wongly; and that th e s11uation at Bond Umvrrs,ty was unique and that the prospect of ilow on enects "as not a cons1deratton. Mr I ongland also reterred the Commission to dec1~1ons go,ng to the entitlement 01 employees 10 have consent arrangements made into an award where the arrangements don't oifend the Wage Principles or where there are no other inh1b111ng factors (Don Smallgoods Company Pty Ltd v robald, Smallgoods Ltmt1rd Australia and Others Print No )8234, Queen v Moore ,ind Others fx Pane Co-Operative Bulk Handling L1m1ted 14 1 ALR 221, and Abbot Point Bull-. coal Pty Ltd dec1s1on Print K2897J Mr Sciacca lor the General Sta lt AssocIauon reterred to the uniqueness of Bond lJmversuy being a private tertiary 1nstttut1on and the intent of the general s1aff to have a p.ic1<age ol cond111ons negotiated ncludrd in the award. He stated 1hat the prartIce 01 being able to taf..e money 1n lieu of rave at the employee's request had been ,n practi ce since 1989 but \\as lorm.:ilised In terms ot the common la,,. agreement n 1992 Ms Ralston rl•lerred to the predecessor provisions and to the t langer Inquiry Rep0r1 and Second Read ng Spef'ch ior 1he ,ntroduct1on of the 1990 Act and stat ed that whilst capacity was given to the Comm1ss1on under the 1990 Act that d,screuon was only to be exercised "here spec1 l1call} requested in special circumstances. Reterence was made by Ms Ralston to the differences between 1h1s matter and the Hamilton Island matter \\ here there was no opposition and the workforce v.as v e,,ed as I11nerant on a <elf-contained island with high cost 1mplicat10ns ractors tor replacement sta ll -- 1 of 2 -- 268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [27 May, I 994 The Commission was referred to a decision under the Greenmeadow Court Employees' Award (136 QGIG 57) in which the Commission refused the application notwithstanding agreemen t between the parties. Ms Ralston drew the Commissi on 's attent ion to a decision in New South Wales regarding Crown Emplo yees (Non- Commissioned Pol ice Officers) Award (Matter Nos 1364 and 1433 of 1989). She maintained that Bond University was no t unique and that a decision in terms of the application through arbitration co uld estab li sh precedent value. It was not, she said, j ustifiable in the public interest and co uld signal the go ahead for similar provisi o ns to be sought in a large range of awards and agreements. Conclusions Sect ion 152(1) of the Act reads as fol lows:- " (1) Except as is otherwise determined by the Industri al Commission, every award, industri al agreement or certified ag reement must make provision to the effect of the provisions of thi s section.". The Commission agrees with the statement in the Hamilton Island de cision:- "W hether the Commiss io n should 'otherwise determine' i s, in our view, a decision which has to be made in each individual case depending on the particular circumstances and meri ts o the particular case.". The si tuation in this case is the provision sought to be included in the award h as been the practice since 1989 and is fu lly supported by the General Staff Association on behalf of all general staff and ag reed by Bond University. It would be inappropri ate for this Commission to ta ke away an existing right as the result of the making of a new award when the parti es request that it be con tinued, th ose appearing expressed the view it is permissible under the Act, and does not affect employees other than those in the enterprise, and can on ly be exercised at the request of the emp loy ee concerned. In addition, it was stressed to the Commission that the provision sought was part of an overall package that h ad been negotiated. The Commiss io n is prepared to approve the provision in the particular circumstances of the case having regard to a combi nation of all facto rs referred to i n this decision. In so do i ng, we stress that it should not be considered to be a precedent ior other applications seeking a simi lar provision where th e ci rc umstances are not iden tical. We have not considered the Hamilton Is land case previously mentioned as a precedent for the m ak ing of th is d ec ision. The Commission approves the provision in the form sought because it ha s been in that io rm since inception. However, the Commission has some re servations with the word ing as it could result in an employee continually cashing in annual leave beyond the accrual of 40 days and not tak ing annual leave. It is not the inten tio n of the Commission that this should occur and indeed the Commission strongly counsels against th is occurring as it woul d negate the purpose for granting oi annual leave and be to the detriment oi the employees concerned. The date of operation on the matters referred to us shall be 23 May 199 4. The Commissi on orders according ly . D.R. HAL L, Chiei Industri al Commissioner G .K. FIS H ER, Commi ssio ner B. J. NUTTER, Commissioner Appearances: Mr A . long land, w ith him Ms M. Mc Cracken and Mr K, Watson, for Bond Universi ty Staff Se rvices Pt y Ltd. (BU ); Mr J. Lawson, with h im M r S. Sciacca, for Bond University Gener al Staff Association. (GSA); Ms D . Ra lston for the Australian Council of Trade Unions, Q u eens land Branch. (ACTU (Q )); Ms ). Banney for the State Public Services Federati on Queensl and Un io n of Emp loyees. (SPSF); Ms A. Pedley for the Australian Municipa l, Adm inist ra tive, Clerical and Services Un ion, Central and Southern Queensl and Clerical and Administrative Branch, U n io n of Employe es. (FCU}; M r I. Buckley for The Australian Services Industri al Union of Employees (Queensland Local Government, Energy, Ports, Information Technol ogy., Soci al and Communi ty Servi ces Branch). (AESDA); Operative Date: 23 May 1994 Decision - Hours and Annual Leave Re le ased: 19 May 1994 #################################################### 27 May, 1994] QUEENSLAND GOVERNMENT IN DUSTRIAL GAZETTE 269 -- 2 of 2 --