Bond University Staff Service Pty Ltd v The Bond University General Staff Association [1994] QIRC 189 (1994) 145 QGIG 27

26 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (6 May, 1994 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 #################################################### QUEENSLAND I ND USTRI AL RELATIONS COMMISSION Industrial Relations Act 1990 s. 131 - applicaIion for new award Bond University Staff Serv ice Pty Ltd AND Th e Bon d University General Staff Associa ti on (No 887 or 1993) COMM ISSIONER NUHER 22 Apri l 1994 Wage Fixalion Pr inciples - Fi rst Awa rd Pr i ncip le - Standard Hours Principle - Fu ll Bench Referral - Unregistered Organisation - Industrial OrganisaIions - Part ies to an Award - Parties Bound - Salaries - Overtime - Time in Lieu - Pay ment for Public Holidays - Arbitrated Matter - Reference to Case l.aw - App lication for a New Award Granted. DECIS ION This i s an applicalion by Bond University Staff Services Pty Ltd (BU), a company incorporated in Queensland and the employer of general (n on-academic) staff at Bond University for an award to cover all emp loyees who are members or who are el igible to be members of The Bond Un iversity General Sta ff Association (GSA). The effect of 1he award wou ld be to cover all non academic employees at Bond University. The application was supported by the CSA but opposed in the form i t was submitted by the following unions:- • Fed erated Clerks' Union of Australia (Cen tral and Southern Queensland Branch) Union of Employees, subsequenily the Austral ian Municipal, Adminis1rati ve, Clerical and Services U nio n, CenIral and Sou1hern Queensland Cleric al and Administ ra tive Branch, Un ion of Employees (FCU); • State Public Services Federation Queensland Union of Employees (SPSF) ; • The Associat ion of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland, Un ion of Employees, subsequently The Auslralian Services Industrial Uni on of Employees (Queensland l ocal Government, Energy, Ports, Information Techno logy, Social and Community Services Branch); • The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees, subsequently the Australian Liquor, Hospitality and Miscellaneous Worke rs union, Queensland Branch, Union of Employees (FMWU). In addition the ACTU Queensland was granted leave to intervene in the proceedings to ass i st with regard to ensuring a co- ordinated and structured approach by the unions. Al an early stage in the proceedings the ACTU(Q) raised the question of a referral of two matters to a Full Bench. Firstly, the question of inserting 37.5 hours per w eek in the award in accordance w i th the Commission ·s Principles; and secondly the paying out of a componen t of annual leave in lieu of taking such leave having regard to Legislative provisions and previous Full Bench determinat io ns. These matters were referred to a Full Bench for determination. The Commission was also advised that, although some discussions had Iaken place at an early stage with the ACTU(Q) in relatio n 10 the conten t of the award, there were still a number of items to wh,ch the unio ns were opposed. 1 he ACTU(Q) was requested to advise Ihe applica nt by no later than 3 December 1993 of the matters which remained in contention. In addition the parties were encouraged to have fu rther meetings to ascertain whether any of the remaining areas in di spute could be settled -- 1 of 5 -- 28 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 May, 1994 Evidence was called by the applicant which went principally to the following matters:-- Tracey Stanly, Cullan Fgan & Dell (CED) ,. the establishment of the salary structure based upon the CED Points Factor Metnodology; • the setting of positions within the salary scales based on evaluation of all positions from questionnaires completed by all staff. Also a review and analysis of a significant number of benchmark positions; • the holding of meetings by CED with all staff to advise of the process and to answer any questions related to the matter; • the experience oi CED in both the private and public sector including other Universities in carrying out job evaluation and salary exercises; • the setting of the salary scales In accordance with Bond University's preferred oosition in the market. It was said that this was at a level which is higher overall than public Universities and therefore competitive and which provides greater recognition for performance; • the acceptance by both parties (BU and GSA) of_ the outcome of the CED exercise and the independence ot the exercise. Sally Pidcock, Director of Administration BU, also President of the GSA Mid 1991 - March 1992 • the financial independence of Bond University which was said to derive 85% of its total income from tuition as opposed to public funding in other Universities; • her role as a previous Pre-.ident of the GSA and the workings of that organisation at that time includir1g tlw consultative process between the Committee and members and the active parti< ipation by members; • a ballot which expressed overwhelming support by general staff !o be represented by the GSA in preference to unions; • negotiation between the GSA and BU in respect of a ~edundancy agreement; • aim of the GSA committee to register the Agreement between BU and GSA in the lnciustria: Relatiors Comm1ss1on; Margarita McCracken, Human Resources Manager • details concerned with the !fond University Genera Staff Associcition (BUGSA) which existed at BU until early 1991, was abolished and subsequently succeeded by the GSA in the latter half of 1991 • advice that the Chairman and Vice Chancel'or addressed staft reg;:irding representation and indicated that they would support whatever decision staff made; • advised result of ballot by GSA voting in favour of the agreemen: and representation by the GSA as against representation by unions; • the role of the mediator and the access to stafi both of the mediator and to all reasonable costs for industrial advice and representation witn payment by BU; • the availability of cNtain reports to all members of general staff; • how general staff employees became members of the CSA (or its predecessor BUGSA). Dr Oi;wrw Fverett, Professor of Law & President of the BU Academic Staff Association the differences between BU and Public Universities. She referenced productivity benefits, continual appraisal and the necessity to obtai~ grants as well as emphasis on teaching priority a•,d exec lcncc, and marketing: • advice on the Academic Staff Association, the relationship with the GSA and meetings between the two associations on matters of mutual interest; • information in resoect to the mediation conflict resolution) process and wage incentive process (Annual Review); and • advice as to why an invitation to unions to talk to academic staff had been withdrawn. In addition affidavits were tendered as follows:- • N. K. Wran Mr Wran is a member of the Governing Council. His affidavit werit to the aims, aspirations and style of operation of Bond University which differentiated it from public Universities. • R. H. Matthews former Justice of the Supreme Court and President of the Industrial Court who provided information on his period as mediator at Bond University. 11 Philip Lader ex Vice Chancellor and President of Bond University regarding the funding, the aims and aspIrat1ons and commitment of staff at Bond University. Evidence called by the GSA went to the following matters:- Lyne/te Cox Marketing Co-Ordinator • the activity by the GSA during her term as Secretary; • the formation of the GSA following the demise of BUCSA and events leading up to that; • the reporting process between the GSA Committee and its members to ensure proper dissemination of information and consultation with members; • the readily available access to BU c!n matters effecting tne staff in general or a particular staft member. and the negotIatIom which took place on various issues including redundancy; • the consensus expressed at a meeting of CSA members to have an award; • the agreement by B U to pay for reasonable costs for industrial advice obtained by the GSA; • advice that no approaches had been made directly asking her to join a ur:ion. Nickie Purden, President of the CSA • advised that GSA wanted the agreement recognised to give it more strength. He was aware of the differences between the agreement and the award application; • affirmed that both BU and the CSA had agreed to abide by the CED outcome and submitted that the determination would advantage CSA members; • indicated that to the best of his knowledge at no time had BU not met costs by the GSA of obtaining legal or industrial advice; 11 acknowledged a request was made to attend a meeting with the TLC but the GSA subseqL;ently decided to proceed witnout un:on involvement; 11 provicied information in respect to meeting procedures and voting of the GS.A as well as membership eligibility; • referred to differences between BUCSA and the GSA stating that the GSA was more professional and had a higher profile; and • stated that since 1991 ballot the GSA had negotiated two agreements with BU and that no requests were made by members for unions to be involved. Evidence given on behalf of the FCL contained the following:- 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 David 1'v1apsto11e Industrial Officer that as a union organiser In 7990 and 1991 he had been active at BU and that the ,CU had a number of members; • identified a number of exhibits (between February and August 1991). ,n the form of corre-,pondence between the FCU and BU In which the FCU were raising industrial issues and award coverage; • questioned the alleged impartial approach by BU on the non implementation ot a ballot rcsu't by general staft on which a majority of votes supported union involvement; • acknowledged that informal discussions had taken place with BU rega~ding single union award coverage; and • referred to certain under payments by BU wh:ch were only rectified after being raised by the union. Membership and Constitution of the CSA During these proceedings one of the issues canvassed was the eligibility ana procedures for acceotance into membership of the GSA It appears that the offer of employment by BU includes information on the GSA but does not include actual compulsory membership or an application for membership form. From evidence given it appears that general staff appointed at BU automatically gain membership of the GSA (and in the past of BUGSA the previous staff association; with term1nat1on of such membership occurring on ceasing employment with BU for failing to comply with the rules, acting in a manner prejudicial to the Association or having membership in arrears. The facts are that membership fees are not compulsory or imposed on members and no rnerniier ha-, had mernber-,hip terminated ior lwhaving improperly. In addition no employee has sought not to be a member nor has any employee sought to resign from the GSA although it rnust be said that employees did not complete application forms to join the GSA. I am satisfied on the information available to me that all genera'. staff at BU consider themselves to be and are members of the GSA. They have all received voting papers for elections, attended meetings and received information from the GSA. Indeed, the procedure for obtaining membership for the purpose of voting is via a print out of general staff from the payroll computer sys.tem at BU. Elections are held vearly and in recent years have been well conle<,ted. The evidence is that the committee meets regularly, has regular meetings with members and disseminates information on a regular basis through the tnternal EMAIL system, mailings or facP to face contact. fhe matters raised by the Unions concerning the GSA's adhe1·ence to its constitution are more about formalities and technical matters rather than ones of substance arid should not, in my view, ahect tne determinat,on. It is suggested that it is desirable to ensure proper processes are in place both in terms of the constitution and admi:tance into and resignation from membership and that other n1 atters in whi< h the practices are not in harmony with the constitution should be clant1ed as part ot the present review of the constitution. Possible Disbandment of the CSA Argument, was advanced by the unions to the effect that the GSA might at some future time suffer the same fate as BUGSA leaving the .. general staff without industrial representation. It was suggested tor this reason it would be undesirab.e to make arI award between BU and such an association. -rhe ev\dence suggests this is hignly unlikely in the toreseeable , tuture. The evidence is that there are regular meetings m th_e_ committee, regular meetings of staff, good dIssemInat1on, ot 1nformat1on,. wed contested e ections, the ability to_ obtain protess1onal 111dustnal and legal advice, a good rapport w1tri BU and no membership fees. In addition, the GSA (having regard to its present constitution) is now stated in legislation to be the entity to. be recogrnsed by the employer to represent staff ir, matters relatrng to conditions of employment and the sett:ement of d1spc.Jtes for general staff. Undoubtedly if a vacuum occurred with disbandment of the GSA (as unlikely as that may seem to be) either a further Association would be formed or the vacuum filled by registered unions. The question as to what would or could possibly happen under circumstances not apparent now at some indeterminate date in the future is not a matter to which I should have great regard. The decision, in my view, must be made having regard to all the circumstances as they now are or appear to be. Should an Award be Made( The position of the unions as stated by Ms Ralston was that the matter of whether to make an award or not was left for the Commissions' determination. However in saying this a number ot matters were referred to including commonality with other Universities, the HE Award, salary and conditions applicable to staff in other Universities, role of the GSA and the need for recognition of the registered urnons. Currently a number of employees at BU would have some of their conditions of employment regulated by "common rule" awards of the Commission whilst the remaining employees would be award free. It is claimed that the common rule awards arc not appropriate for the situation at BU. The evidence provided was that the application by BU had the full support of the GSA and therefore the support of all general staff at B U (al I general staff being members of the GSA). The Commission was also informed that the proposed award would replace an agreement between BU and the GSA which had been agreed to over time following extensive negotiations. Submi.,siom by the unions questioned the need to have an awa~d when an agreement in the same terms existed. Witnesses for BU and the GSA provided evidence to the effect the employeec, wanted their agreement registered in c,ome way. It was said that there was a general consensus of members in support ot an award and a belief that an award would have more strength than an unregistered agreement. I he unions questioned the appropriateness of making an award for general staff at BU whilst non academic staff at other Universities were covered by the HE Award. However, it was argued by the advocate for BU that BU was unique being a pnvate university and required different treatment to Public Universities. This was refuted by the unions. Without making _a judgment on the above, the fact is that a subc,tant1al number ot employees at BU are award free, they are not covered by the HE Award, they have not been roped into the HE Award and they seek award coverage in this Commission. It wa?, submitted that the HE Awa'.d could accommodate general statt at BU. It Is not the role ot this Cornm1ss1on to determine whether the HE Award should apply or could accommodate general staff at BU. That is a matter for the Australian Industrial Relations Commission 1f an application is made. However, it would be unfair to deny general staff at BU an award solely on the basis that a Federai Award exists for non academic staff in other Universities. . The applicant submitted that the focus of industrial relations will radically change from JO March 1994 with the focus being the_ regulation of lndustria: Relations at an enterprise level. Reterence was made to the new object in s. 3(1)(aa) which provides:- "(aa) to encourage and assist the making of agreements, between the parties involved in industrial relations, to decide matters about the relationship between employers and employees, particularly at the enterprise or workplace level; and. " Reference was also made to various sections of the Act supporting arrangements on an enterprise basis. The applicant submitted that the only means by which the general. statf at BU can uti ! isc the advantages of enterprise bargaming pursuant to legislation, is through the use of ari enterprise flexibility agreement. Such an agreement cannot be approved or implemented unless general staff at BU are covered by an award. -- 2 of 5 -- 30 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE f6 May, 1994 The focus or industrial Relations on an enrerpri~e basis gained impetus with the National Wage Case decision on 30 October 1991 followed by the s,ate Wage Case decision in Queensland dated 30 January 1992 which dealt with consent enterμrise bargaining awards and agreements providing principles with regard to Fnterpr se Rargaining. This wa~ enhanced by Legislative amendments a'. the end of 1992 (both l\.ational!y and in Quee'lsland) prov1d1ng ;or Certified Agreements and the more recent amendments operative from the end of March 1994 placing further ernphasis on arrangements at an enterprise level. The GSA wa11t recognition of their agreement through an award. I his 1s 'lot opposed by the employer who in fact f: led the application. The award will aflord the cmpioyccs with the μrotection of having matters i'lcluded in the award not arbitrar,ly taken away by trw er·1ployer. I 'le approacn by BU and the GSA in seeking an enterprise award is co11s1stent with the tocus and trend by lndustr•al Tribunals and the subsequent intent of the legislature as expressed in 1992-1994. I he Quest;on of Having an Award Between Bond University and the CS/\. Submissions were rnade by the unions that an award should not be made between BU and the GSA hut between RU and the unions. Evidence was provided by D. Mapstone that the FCU had been active at BU dur,ng his time as an organiser between April 1990 a11c1 September 1991 and that his union had between 20 anc 10 rnernbers during that period. He referred to a range of ;etters between the FCU and BU between February 1991 and August 1991. Mr Mapstone referred to a ballot of general staff in April 1991 which voted 111 tavour of having access to the Higher Fducation General and Salaried Staff (Interim) Award 1989 (HE Award) and which called on BU to e·,ter into negotiations with the unions for an inter:m agreement until the c1ward was introduced. This ballot was not acted upon by BU although a request was maGe by the rcu fm this to occur. He aci<now!edgcd that a further ballot occurred in August 1991 which strong y supported the establishment of a new General Staff Association and for that Association to ncgot ate with BU on a new Industrial Agreement for general staff In reply to a question from the GSA Mr Mapstone informed the Comm1ss;on that his union had no members at BU at the oresent time but indicated that the loss of membership was as a ;Psu!t of retrenchments which took place in 1991. Whilst \:\, Mapstone expressed the view that BU may havE> intimated that they would preier to dedl with the C~A rather than ~he unions, the evidence available to me was that the Vice Chancellor (Prof Ladn) <ind the Chairman (Mi Nosworthy) indicated to a ·11eeting of general staff that they would suppon the oreference by staff 'or representation whether it be via a Stafi Association or the unions. It was also acknowleogcd that there had been no restriction on entry by union officials at l3U nor had 1mped1ment, t1een put in acc:es~ to employee~. BU and the GS/, put the view that staff had expressed a preference 1n August 1991 to be represented bv the GSA. They hdd also supported an agreement that was subsequently negotiated between the GSA ;rnrl RU to be formalised into a S:ate award. It was said by 7hc GSA that notwithstanding the activity by the FCU 0:1 campus between April and August 1991 they failed to convince emp,oyee<, to s,1pport union involvement and that on- campus involvement by unions ceased in 1991. There is no evidence before me of any union membership at BU. It was put oy the GSA that the Commission should not redress tr,e non activity by re:using to make an award or by not recognizing the GSA in the award The unions stated that they "1ad not abandoned employees at BU but had been concentrating activity on the Federal award tor ~eneral ~taff at other Universities which could be used as a basis tor BU. BU put the view tha: the evidence demonstrated the general staff had rejected the unions and embraced the GSA. It would be inappropriare, it was said, for the urions and not the GSA to be recognised 1n the award when they played no part ;n the development of the agreemen: which was to form the basis of the award. Reference was made to the following extract by Mr Justice ."v~unro of the Au-,tralian lndu~tiial Relations Commission:- "ln the circumstances it would be inappropriate to apply the exerc se of the Commission's jurisdiction 1n relation to this dispute for the indirect purpose of encouraging the employees to reverse their decisions about the FCU. Up to this point no employee has chosen to join the FCU. The absence of FCu membership at the plant should not be reversible if the employees take an opportunity to consider, without pressure, the merits of membership and of the service<, available through the FCU. (Print )2049).". and also a statement by the Full Bench of the Australian Industrial Relations Commission which described a union which had been ,·ejected bv employees in favour of their own staff association as "an unwarranted intruder". (35 IR 290). Mr Langland stated that there is no provision in the Queensland !ndustnal Relations Act 7990 or elsewhere which requires that an award must only involve a registered industrial organisation and that indeed, awards have been made in this Commission which have involved other parties. He referred the Comm;ssion to Metway Bank Support Staff (Interim) Award - State (1990) 135 QGIG 791 and Coach Trans decision and Power Brewing Co Ltd v fLAIEU (1991) 137 QGIG 569. The Queensland Industrial Relations Act I 990 provides, in part, in s. 31 (General Jurisdiction of the Comm1ss1on):~- "31.(1) jurisdiction is conferred on the Industrial Commission to hear and determine {a) a! I questions of law or fact brought before it or that it considers expedient to hear and determine for the purpme of regulating any calling or callings; (b) all questions arising out of an industrial matter or involving the determination of the rights and duties of any person in respect of an industrial matter; (c) a:1 questions that it considers expedient to hear and determine in respect of an industrial matter; (d) any industrial dispute, as to which an Industrial Commissioner ha~ held a conference under this Act at which no agreement has been reached, and which a Commissioner has thereupon referred to the Commission; (e) ail appeals duly rnade to it tmder any provisior1 of this Act; (f) all matters commit1ed to the Commission by this, or any othPr, Act. 12) Without limiting the generality of the Jurisdiction conferred by subsection (1 )1 the Industrial Commission has jurisdiction - 1a) on reference by an industrial organisation, an employer, or 20 employees (not being members of an industrial organisation of employees and not covered by an award) in any calling, or by the Minister, or of its own motion, to regulate the conditions of any ca;ling by an award;" The application before the Commission is lodged by the en1ployer and fully supported by the GSA (an unregistered organisation) representing more than 20 employees at BU Section 33 (Commission· s Jurisdiction re Awards) provides that ''without limiting the powers of the Industrial Commission, the C.ommi~sion may, in iespect of any industrial matter or matters, make an award.". Reading the sections together the Commission can make an award on the application by an employer or an organisation (whether ri>gistered or not) repre<;enting 20 or 'nore employees. It would be anomalous if the award could not be be:ween those bodies and indeed there is no restriction on this occurring. Support for this contention can be gathered from decisions quoted by Mr Longland (referred to earlier). 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE In the instant case the agreement which has been reached is sought to be n~ade into an award. The agreement is between RU and the GSA and I propose to have this 1nd;_cated _in the_ award. It ,snot ap;mJpriate triat the award should indicate that.it 1s between BU and the unicns wlwn they played no part 1n having the claim come forward or the maJor matters 1r1 the award. I am not prepared to delete references to the GSA which appear in the award. Parties to the Award Mr Longland for BU. drew attention of the Commission to the Bond Unive,s1tv Act ot 1987 and the Bond University Act Anienciment Act of 1989. In particular he referred to ~ection 11 of the latter Act wh•ch provides: ~ 11 13. Cenera! Staff Association. (1) 1\n association of members of the general staff that (a) has a constitution that includes in the objects of the association the following objects:- (i) to enl1ance, promote and defend the cor,,dit1ons of employment of general staff; '.11) to negotiate on behalf of general staff with the employer in relation to the co;1ditions of employment o; general staff; (iii) to develop in conjunction with the employer a procedure of settlement of industrial disputes between the generai staff and the employer; (iv) (v) and (b) if at any time the~e be more than one such association that satisfies paragraph (a), is the first such association formed after the employer begins to employ genera! staff, shall iJf' the General Staff ,A.ssociation within Bond Univnsity (2) The employer shall recognise the General Staff Association as the appropriate entity to represent general staff 1n relation to the objects referred to in par·ag··aph (a) of subsection (1) (3). Mr Longland submit1ed that in having regard to tlu~ wordc; ''the'' and "shall 11 that RU must deal with the GSA and that indus,rial matters or conditions of service that the unions wished to raise wi,h the employer must be raised through the GSA whilst sucn orga11isation cont1m;ed in existence. A further i~~ue raised wc1s whether the unions could be partie~ to any award made by the Convnission between BU and the GSA. Reference was made by the unions to the lnduqrial RPlations Act 1990 ir: which the defi11ition of 11 partyn includes any person bour1d by an award, agreement or permit. Section l 06 (Persons bound by award) states an award is binding on - 11 (cJ all parties to the industrial cause in wh eh the award is made who appear or are represented therein before the Commission; (d) all parties who have been summoned to appear befwe the Commission as parlies to the industrial cause in which the award is made, whether or not they appear or are represented therein, unless the Commission i., of the opinion that they were improperly summoned as parties; (e) al 1 industrial organisations concerned with the calling or callings to whicr. the award applies; (f) all members of industrial organisations bo,md by the award; (g) all employers and emp:oyees ,n a locality in which the award applies, who are engaged in the calling or callmgs to which the award applies; (h) if the award purports to apply to any particular employer or Pmployers only,. or named estc1b:ishments or operations of any particular employer or employers only, all employees of that employer or those employers or, as the case may be, all employees of that employer or those employers in the named establishments or operations. 11 It was conceded by Mr Lo11gland in the following statement that the unions could be parties to any award made - "COMMISSION CR: If they're parties to the award. MR LONGLAND: Th~y clearly, in my submission, are. Clearly, because they re named 1n the directions order. Section 106 says that they arc persons bound. The definition of parties is persons bound. We don't deny they are parties to the award, and that\ clearly why we have removed the references, or amended the award, to parties. If the unions have a recruitment drwe at Bond and tney're allowed in there, section 369 is not inconsistent with the l3ond un 1versity Act.". and further 11 ln the conclusion O' my submission I'll be saying that it's not such a big step to make this awar·d ,n the sense tf,at the uniom are still pdrties lf thP employees at Bond are desirous of having u11ion membership they're got complete access to it. Nothing ,n this award prevents this.". These matters are mentioned because they were put before me in sul.Hnissiom. However I do not find it necessary to determine the issue for the purpose of this decision.(:.e. Determining whether an award should be made) A further matter raised by the unions was whether the GSA could be compromised in relation !heir activities because of the funding arrangements whereby BU met the reasonable costs of the running of the GSA and the orovis1on of lndustria! Relations services. This was strongly denied by the GSA and there is no evidencp before me to suggest this has occurred. irldeed, the evidence betore me 1nc1cates that BU had mE>t all requests of the CSA and that the CSA was entitled to engage an Industrial re,ations Consultant of its choice and had access to legal advice as nece<,sary at the cost d RU. The mak,ng of an aw,mi including such a clause would mean that such an arrangement could not be arbitrarily be taker; away and ensure independence fm tht> GSA as any dispute on the rirovision of services could be dealt with by the Industrial Relations Commission. Contents of the Award l he Wage Principies of the Commission provide inter alia that 11 in the making of a l:rst Award, the long established Principles shall aoply i.e. prirna facie the main consideration 1s the existing rates and conditions. 11 • The subrniss:on by BU and the GSA was that the amended application was a package of conditions negotiated by those bodies and should not be interfered with. l hey 1·eflect the pre'.:ient conditions applying under the agreement. Certain minor ~mendments had been made to the original apol1cat1on by BU toliowing discussions with the unions in an endeavour, according to the BU advocate, to accommodate some concerns expressed by the union<, but no amendments were of a subst,mtive nature. The union dealt individually with a number of clauses in the agreement which they claimed to be substandard and ! will deal separately with most of those items. • Deletion of GSA wherever it appears iri the Award. have already dealt with this matter earlier and for the reasons given ! do not propose to vary the proposed award. • Termination, Change and Redundancy The proposed award provides inter alia that the employer must not within three month from the day redundancv takes place, fill the same position of employment of which staff was made redundant. -- 3 of 5 -- 32 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE f6 May, 1994 The unions cairned that more favourable condi:ions applied in the 11 [ Award for staft at other Universities in that 12 months apolied in iieu ~t the 3 months at BU. Blj indicated that 3 months wa~ :-,alistactory having regard to the tund1ng d1rfercnces between Public Universilie:-. \substantially public funding) and BU (funding from tuition fees) In addition there were certain other benefits for persons made redundant who were undertaki:1g courses at BU. The clause complained about does not appear in general TCR provisions of awards of this Commission and otters some additional protection to employees. It is not unreasonable that the clause is different to that applying to Public Universities having regard to the different funding arrangement:-,. Furthermore, there are some benefits in the '·Bond" clause with regard to tuition remission upon redundancy. • Mediation and Grievance Handling Procedure The proposed award provides for the appointment of an_ independent Mediator to assist BU, the GSA and genera stati members to maintain a harmonious relationship and assist n the resolution of disputes on industrial matters by conciliation or mediation. At the request of any party or having rega1·d to the nature of the dispute the Mediator may noiify the parties _that it is undesirable to conciliate or mediate prior to arbitration and in such instance shall refer the dispute to the Industrial Relations Commission. The Grievance Procedures provide for appropriate meetings between the GSA and BU within a "reasonable time" but 1f not settled must be referred to the Mediator who is to attempt to resolve the issue by conciliation or mediation. Should the matter then remain unresolved, fHJ or the GSA may, subject to the provisions of the Industrial Relations Act 7990 request the Mediator to resolve the matter by arbitration with the parties accepting that decision. Alternatively, if the parties do not proceed this way and the matter remains unrPsolved, the matter ~hal I be referred by the Mediator to the Industrial Relatiors Commission. It was argued by Mr 13uckley for the unions that there had been no need in maJor awards of the Comm1ss1on, such as those covering Railway Workers and Electricity Workers, to interpose a Mediator between the direct parties involved and the Industrial Relations Commission. In add1t1on, he submitted that such J clause was not consistent wit"l s. 148(6) of tne Act (Grievance and Dispute Settling Procedure) or s. 187(1) {Action on industrial dispute on notification or in public ii1terest). It was further s11hmitted that the non appointment of a Mediator for a period in the past had not caused anv diffculty and only one matter had been referred to the Industrial Relationc; Commission. It was said that BU was not a "hotbed of industrial disputation" warranting the appointment of a Mediator. RU and the GS.A supported the inclusion of the Mediator in the manner proposed in thf' clausec, in the award. An exhibit was tendered ind eating the occasions when a Mediator had successfuLy resolved issues in the past. The Commission wac; advised that Medi.1tors previously appointed had extensive industrial knowledge. In rPgard a~ to whether the proposed '1 Disputes" clause is consistent with s 148(6) of the Act, that clause oetails requ,rements which mLst be expressed in the appropridle clause in the award; however, It does not limit additional c!auses to suit special circumstances or special wishes of the parties a: a workplace. Whilst Mr Buckley has rightly pointed out that there is no ~imilar provision in other awards of the Commission, that does not mean thdt ,t ~huuld not be put in the proposed award if the main participants support its incldsion arid it doe~ no, offend the provIsIons or the Act. Indeed, it may assist with resolving the matte··s "in nouse" obviating the need for referral to the Commission. Section 187 provided inter alia that where a dispute unresolved Pach μarty is to lorthwith give notification of the existence of the (fr;pute to the lndu~tria! Registrar etc.. l he proposed award provision pr·ov:des for referral by the Mediator who is in terms of the Act not a party to the dispute The awMd will be varied to provide for referral by the employer, the employee or their representative. • Salary Classifications T. Stanlev from CEO stated that the salary scales proposed by CEO were set at a level which was higher overall than those a Public Universities, were competitive in the market place, and provided for recognition for performance. Employees were allocated to the salary ~cales on the basis of the application of the CEO points factor methodology to ead, position, after completion of an evaluation of each position based on a questionnaire completed by the emoloyee in the position. Both BU and the general staff through the GSA had agreed to accept the outcomes of the CEO process although some right of appeal exists where an employee was dissatisfied with the determination. Ms Banney (SPSFQ) made subm,ssions to the effect thdt the classification descriptors in the Schedule to the award were inconsistent and confusing in relation to the cassification :-,lructure· that the structure did not resemble a skills based clas~ific;tion :-,[ructure, and that there was no relationship to the 100% equivalent to tradesperson or percentage relationship to other classifications. The view was put that the jointly developed classification structure between unions and other higher education institutions was more appropriate. Advice was also given that at certain point~ the BL structure compared unfavourably with the leve!s at other lJ n iversities. 13U and the GSA submitted that the salary descriptors were indicative only and was not the basis for allocating positions to classifications. This was carried out individually using the CEO points methodology. In addition it was stated that overall, staff were advantaged, there was opportunity for increases based on performance and that both BU and the GSA were in ravour of the proposal. In considering this question I must place considerable weight on the present situat:on. l he employees are currently award free and the employer and employees have reached agreement on a proposed salary structure which is embodied in ,m unregistered agrPement. Thi:-, is sought to be made into an award. In addition it is recognised 7hat rhe ba~is of classifying positions Is the CEO points system and that the Schedule is only indicative ot the type of duties, skills and responsibilities at the various leveis. Also the Schedule was placed In the award at the request of the GSA and is acceptable to them in tl,at form. The use of t"le CEO :-,ystern is not unique. It is applied to the Public Service in Queensland as weli dS to uther Public and Private organisations in this country. I have formed the view that the level of salaries overall taking into account the basis of assessment of those salaries and the opportunity to obtain increases based on performance do not compare unfavourably with salaries in re:ateci areas or private industry. • Superannuation The standard in the award meets the requirements of the Full Bench policy decision of 29 September 1989. • Hours of Work The ordinary hours of work sought for full time employees was 37.5 per week (the ex:sting hours oeing worked). This was referred to a full Bench of the Comrn,ssion by way of a Special Ca<,e having regard to the Commission's Principles. The hours of work clause also sought a provision that, by agreement with the employee concerned and on ratification by the GSA, the ordinary hours may be worked on any days and within a spread of hours no greater that 12.5 per day. Ms Pedley stated that the union objected on the basis that the working of a 12.5 hour day could be detrimentdl to the health of the emp•oyee and that without safeguards to protect the employee should not be included in the award. An exhibit was tendered on the ACTU Code of Conduct on 12 hour shifts and reference was made to applications before the Commission on working 10 hours per day. It was also indicated that the consent of the emp!ovee did not alter the circumstances. The applicant stressed that' safeguards existed in that both the employee's 6 May, 1994) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 33 In determining this matter I have had regard to the fact that the employee must agree and additionally the reguirement to have the coment of the GSA. The work of most ol the general staff cannot be said to be work of a continuous analytical nature requInng intense concentration nor can it be said to be heavy manual work where health implications might more likely apply. In add1ton It may give the opportunity to work reqwred hours over 3 days and that could provide significant benef;ts to some employees, particularly where family responsibilities are involved. Having regard to the above factors I am prepdred to dpprove the clause. Shoulo problems arise with regard to the implementation of the clause, the parties can ask the Commission for assistance. • Overtime and 1 ime Off in Lieu The award provides that overtime rates si1all apply to employees with a saldry rdnge to $34680, between $34681 and $44595 employees shall have access to equivalent time in lieu (time for time bas,s) and over $44595 there shall be no entitlements to payment or time in lieu. -~~s Banney sought that the cut off point for overtime payment be increased to $44595 and that employees over this salary level have access to time in lieu. It was indicated that in other Queensland Universitie:-. employees at the level for which overt,me payment is being sought have an award entitlement for overtime. In addit 1 on, at higher levels, there is access to time off in lieu (TOIL) It was submitted by Ms 8anney that having regard to the conditions applicable to equiva!ent level positions at Public Universities there should be fair and open access to paid overtime and TOIL at BU. It was also put that a level of $34681 could hardly be regdrded d a rnandgernent type salary. Submissions were also put in reply to a BU witness regarding the area of recruitment for BU employees. In relation to the situation where an employee was not able to take TOIL w1thm the four week period provided in the award, the unions were seeking a payout tor overtime worked. Submissions were made that TOIL should be entitled to accrue on the basis of applying the penalty rate which applies to overtime payment (time and a half for time worked et,.) Mr Langland for BU stated that 84 of the 119 employees came \v1th1n the Cdtegory ot those who would receive overtirne payment whilst 17 came within the TOIL category. He stated that the pay policy was determined as a whole on both Private Industry ar1d Public Universities and considering conditiom as <l whole stall were not disadvantaged. Mr I ongl.md put the view th;ir tew people in private industry on the relevant salary levels would receive overtime payment. Reference was also made to the recruItmem pol1c1es as well as the agreement of staff to the "package" ot conditions. It ,s not unusual for awards of this Commission to have cut off points for overtime (Clerical Fmployees Award - State, Retail Industry Interim Award S~ate) or for TOIL (Public Service Award State) where employees are above basic award leve;s. Two other 'actors are of major relevance. Firstly, the provision is one agreed between the parties. Secondly,_ it is a condition which presently applies and. in terms ot the First Award Principle would be the basis of a first award provision. I do not ,find that insertion of the vovision would ot1end the Principles ot the Commission. If the provision is toun~_to be implemented in a harsh manner (e.g. staff above the cut ott level are worked unreasonab:e hours without pdyment) the matter car1 be referred back to the Commission for appropriate action. Payment for Public Holidays , r he proposed award clause provides that employees to a ~alary level ot $34680 receive payment at double time and a half tor working O'l such days whilst employees above that level had access to time in lieu. Similar arguments were put as per overtime payment but for similar reasons I am prepared to approve the clause sought. Right o: E:ntry . The ,u'lio·1s, sul.m1:tted that d "right of entry" ciausP for union ottic1als snould ne rncluded In the award and pointed out that a number ot awards hdve such a provision. 147815-3 B U argued that right of access is provided under the Industrial Relations Act 1990 and that there is no need to duplicate such a provision in the award. The position is that s. 369 of the Act provides a right of entry to an authorised industrial officer of an industrial organisation to any place where a person carries on a calling that the industrial organisation is registered to cover. It is not necessary to include such a provision in the award in view of the Act prescription unless special circ.umstances apply. In the present case there are no such circumstances. On the information available to me both from the evidence of BlJ and f-CU witnesses, officers of unions have not been denied the right of entry at BU. • Other Matters Other matters which were raised have bPen considered in making this determination to approve the (final) amended application submitted by BU on 21 March 1994. Summary As I have indicated in the course of the decision a primary comideration is that in making fir:-.1 award<o the Commission should have regard to the existing rates and conditions. Also the application before me is_ one which has been agreed to by BU and the GSA on behalf of all general staff (non academic) employees. The award is a "package" of salaries and conditions, sorne of which are more favourable, and in some respects less favourable than those applying in Public Universities and some other areas. I am satisfied that on the whole the "package" is not less favourable than. elsewhere, and has been designed to suit the particular requirements ot the employees and employer for the enterprise concerned. Certain minor amendments were made to the initial applicatio~ to meet concerns expressed by the unions although a r1urnber ot matter:-. referred to in thi~ decic,ion were not agreed. The awar9 will provide coverage of all general staff at BU and provide tormal recognition ot the agreement that has ben negotiated as well ensuring that the conditions cannot arbitrarilv be taken away. , . The making of this enterprise award which replaces coverage ot certdIn employees previously under general rule awards of this Commission is consistent with the direction in which Industrial Relations is proceeding in Australia and consistent with the Principles of the Commission and the intention of certain legislative amendments. The award will be approved in accordance with the amended application by BU submitted on 21 March 1994 subject to the variation referred to herein in respect to matters for referral by the Mediator to the Industrial Relations Commission and subject to any changes which may occur as a result of the decision by the Full Bench on the referred matters. The operative date shall be the same date of operdtion as determined by the Full Bench on the referred matters. The award is a paid rates award and a statement to that effect will be included in the award. The Commission orders accordingly. B.J. NLJTTFR, Commi,;sioner. Appearances: Mr A. Longiand, with him Ms M. Mc Cracken and Mr K. Watson, for Bond University Staff Services Pty Ltd. (BU); Mr J. I awson for Rond LJn,versity General Staff Association. (GSA); Ms D. Ralston tor the Australian Council of Trade Unions Queensland Branch. (ACTU(Q)); 1 Ms J. Banney for the State PubLc Services Federation Queensland Union of Employee:-.. (SPSF); ~-\s R Young and Ms A. Pedley for the Australian Municipal Admin1strat1ve, Clerical and Serv:ces Union, Central and Souther~ Queensland Clerical and Administrative Branch, Lnion of Employees (FCU); -- 4 of 5 -- 34 QUEENSLAND GOVERNMENT IND USTRIA L GAZETTE Mr I. Buckley for Th e Austral i an Se rvices Industrial Union of Employees (Queensland Local Government, Energy, Ports, In format ion Technology, Social and Community Servi ces Branch). (AESDA); Ms P. Rogers for the Australian Liquor, Hospitality and Miscellaneous Wor kers Union , Queensland Branch, Un ion of Em plo yees . (FMWU). Operative Da te: N/A Decision - App lication for New Award Released: 22 Apri l 1994 ############################ ## #################### # [6 May , 1994 6May ,J994] QUEENSLAND GOVERNMENT INDUST RI AL GAZETTE 35 -- 5 of 5 --