Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Queensland Ambulance Service and Another [1994] QIRC 227 (1994) 146 QGIG 183

182 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [20 May, 1994 20 May, 1994] QUEEN SLAND GOVERNMENT INDUSTRIAL GAZETTE 183 ### #### ## ########### ##### # ########################## QUEENSLAND INDUST RI AL RELA TIO NS COMMISSION Industrial Relations Act 1990 s. 13 1 - application for vari at ion s. 46 - reference to Full Bench Australian l iquor, Hospitality and Miscellaneous Workers Union, Que en sland Branch, Union of Employees AND Queensl an d Ambulance Service an d Another (No. 8644 of 1993) AMBULAN CE SERVICE EMPLOYEES' AWARD - STATE (No. 8724 of 1993) QU EEN SLAND AMB ULANCE TRANSPORT BRIGADE - CLERKS ' AWARD - STATE CH IEF INDUSTRIAL COMM ISS IONER HALL COMMISSIONERS FISH ER, BECH LY 10 May 1994 Safety Ne t Increase - Concept of Paid Rates Award Disc ussed - Matter Referred for Report Back. Message Takers - Award To Become Obsolete - Status Not Determined - Safety N et Increase Granted. DECISION On 1 Feb ruary 1994 a Fu ll Bench of 1hi s Comm iss ion elected to fol l ow the decision of The Australi an Industrial Relations Commission in the 1993 National Wage Ca se and to make an $8 per week safety net adjustment avail ab le to lower pai d workers under Q uee nsland awards and industrial agreements. The Full Bench adopted also the mechanism upon which the Au stra l ian Commission had resolved in an attempt to ensure that the increase flowed to lower pa id wo rkers and to no other persons. T he Full Bench did no t decide that the mechani sm was to domin ate and control the decision that a safe ty net increase should be available to lower paid wo rkers. That was and is a matter of some mo men t. At p. 3 1 7 the Commi ss ion described the device adopted for steering the increase to th ose workers only who are l ower paid:- "Where possible the sa fety ne t adjustment sha ll be applied to the supplementary payment element of the total wage rate. Consistent wi th the basis of the class ificat ion ra te and the minimum rates adjustment process, acceptance of the need to absorb and absorption of the safety ne t ad j ustment to the extent of any equival en t amount in rates of pay - whether overaward, award, industrial ag ree ment or certified agree m en t - in excess of the min imum rate s (classification rate and supplementary paym en t) presc ri bed in accordance with the Octo ber 1989 Sta te Wage Case decision, i s a prerequisi te to the adjustm ent being applied to -- 1 of 2 -- 18 4 QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE f20 May, 1994 any award. Any excess amount prescribed in an award as the result of the imp lementation of the minimum rates adiustmen t determined in accordance with the October 1989 State Wage Case decision will not be taken into account in the absorption of the adjustment available under th is principle. Excess amounts with a different or igin are to be taken into account in the absorption of the $8 adjustment available under this decision. The increase will be processed on an award by award basis.". Such a mechan is m cannot be applied where the ra te of payment for which an award provides has not been broken down into the components classifica ti on rate, supplementary payment and excess payments and the rate of payment is known to contain an excess amount of uncertain quantum. Such awards are not unusual. Commonly they have arisen from a decision by the parties to fold existing overaward payments in to the award. Applied in a rigorous and mechanical way the device which we have described would exclude all those employed under such awards from the safety net increases. To avoid that outcome the Fu ll Bench express ly declared the sa fety net increase lo be available to low wage earners engaged under pa id rates awards. To give the reason for the declaration Is to explain i ts meaning. The m ea ning of the expression "paid rates awards' is not to be ascertained by debating definitions. In the con text, th e question whether an award is a 'paid rates award' is to be determined as a ques ti on of fac t. The relevant enqui ry is whether the award contains an amount wh ich would be characterised as an excess payment if the award were notionally converted to a minimum ra tes award. Sav e where a negative answer ma y confidently be given to that enqui ry , the safety net incr ease may be accessed only on compliance w i th the princ i pl es relating to paid rate s awar ds established by the State Wage Case of February 1994. We accept that in many cases determination of th e question whether an award is a paid ra tes award will r eq uire the parties to travel th e whole of the route required to access the safety net inc rease under a paid r ates award. We do not accept th at it w i ll be necessary to take that path i n all cases. There will, for example, be cases in which an analysis of the history and current ci rcum stances of the award w i l l show that overaward payments were not folded in, that the pa rticipan ts in the award making process sought to establish minimum rates, and that the reason that employees are paid the award rate and no more i s because they are pa id the lowest amount permissible under the law. Whe ther that approach is appropriate in the case of the Ambulance Se rvice Employees' Award - State, where the money amounts see m to have been derived from awards made in other jurisdictions, the h1sto1y of which may or may not be known to the parti es to these proceedings, we are no t presently in a position to decide. To avoid unnecessary del ay we refer the matter back to Commissioner Fisher lo enqui re i nto and report back on the question whether the award should be characterised as a paid rates award. On receipt of the report we shall meet again m order to assess whether, on Commissioner Fisher's find i ngs of fact, the conclusion that the award is no t a pa id rates award, is properly open. In relation to the Queensland Ambulance Transport Brigade - Clerks' Award - Sta le, the Commi ssion i s aware that only a small number of employees (approximately eight ful l-time and four ca suals) remain covered by this Award . The emplo yees are engaged in the capacity of message takers and are paid in accordance with the Admi ni strat i ve Assistants Grade 1 Sca l e which provi des a sca le of sa laries ra ngi ng from $746.10 In the first year of adult service to $843.20 per fortn i gh t in the eighth vear of adult se rvi ce . The Commi ss i on is also aware from its own knowledge that wage increases granted to these employees have been granted by way of award variation and have not been derived from any other source. This group of employees has li mi ted tenure as they have been progressively phased out and thei r role assumed by Communication Operators. It is anticipated that by June 1994, no mes sage takers w il l remai n employed as such. The Award w ill thus become obsolete. In I ight of the particular circumstances of th is case where there is only a small number of empl oyees performi ng humble, but essent i al work, and the employees have short term employment remaining, we find it unnecessary to determine the status of the award. We are of the view that the $8 Safety Net Adjustment should be awarded lo employees covered by th is Award w ith such amount being paid in addition to the ir r ates prescribed by the Award . Such increases are to take effect from 16 May 1994. D .R . HALL, Chief Industrial Commi ss ioner. G.K. FISHER , Commissioner. R. E. BECHL Y, Commissioner. Appearances:- Mr D. O'Br ien, for the Austra li an Munic i pa l, Admin i st rative, Clerical and Services Union, Central and Southern Queensland Clerical and Adm inistrative Branch, Union oi Employees and the Fede rated Clerks' Unio n of Australia, North Queensland Branch. Unio n of Employees. Mr J. Martin, with him Mr S. Crow , for the Australian liquor, Hospi tal ity and Miscellaneous Workers Union , Queensland Branch, Union of Employees. Mr W.J . Reedman, w i th him Mr I. Shakespeare, for the Crown and on behalf of the Commissioner for Queensland Ambulance Service. Operative Date: 16 May 1994 Decision - Paid Rates/Mi nimum Rates; $8 SNA Released: 1O May 1994 #################################################### 20 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 185 -- 2 of 2 --