Attorney-General for the State of Queensland v The Australian Workers' Union of Employees, Queensland [1994] ICQ 34 (1995) 148 QGIG 34

34 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6Janu ary, 1995 11######## # ##### ### ## ### ##### ############### #### # ####### QUEENSLAND IN DUSTRIAL COU RT Industrial Rela1ions Ac/ I 990 s. 118(2) - appeal fr om decision of ind ustrial commiss io11 Attorney-General for the Staie of Quee ns land AND The Australian W orkers' Un ion of Employees. Queens land (f'.:o . C I 9 of I 994) JUSTICE MAC KENZ IE. PRESIDENT 15 December 1994 Appeal - Decision of Industria l Comm iss ion - Addi ti ona l Payments - Site and Disabil ity Allowances - Listed Disabilities - Special and Compelling circumstances - A ppea l Allowed. JUDGMENT 111 December 1993. The A ustral ian Workers' Union o f Employees. Queens land (the "A WU") so ught to obta in add itional paymcms of allowances in respect of a number of sites by amendmen t of Schedu le 5 of the Civil Construction. Operations and Ma in tenance General Awa rd - State. Schedule 5 is headed "Additiona l Payments - Site and Disab il ity Allowances". At the time v.11en the matter was consid ered there were only two provisions made. one in respect of construction workers at Weipa and the other in res pect of worke rs on the J inda lce Over- the-l lor izon Radar Project, in respect of which faci li ties and infrastructure were being constr ucted near Longreach and Stonehenge. The present appeal is co ncerned on ly with ll1e Men imac Treatment Plant. all other claims having bee.n refused . The reason for granting the allowance was t he exist ence o f an offe nsive odour at the site. A num ber of other aspects of the conditions at the si te were considered by the Commissioner but rejected by him as j ust i ly ing a si te allowance. The starting point of considerat io n or the decision is cl.3.5( I) of the Award. It provides as follows:- "3.5( I) Si1e Allowances - The Employer shall not be compe lled to pay a Site Allowance on any site un less application has been made to the Queens land Industrial Re la ti ons Comm iss ion and the Comm iss ion being satis fied that s pecia l and compe ll ing circums1ances exist wh ich were no t contemp lated within exist ing Award provisions including the Cons truction Etc. Allowance in cl ause 3.5( 16). has varied the Award accordingly . .. .". Clause 3.5(16) presc ri bes an additional payment of $15.60 per week to compe nsa te for "listed disabili ties". The te rm " listed di sa bili ties" is defined in cl 3.1 (32) in the fo ll ow ing 1c n ns: - "(32) 'Listed Disabilities' in res pect of construc ti on, re co nstruction, alteration. repair and/o r maintenance work shall include:- ( a) climatic cond iti ons where working in the open on all types o r work: (b) the phys ical disadva ntages of having to climb stairs or ladde rs: ( c) dust blowing in the wind on cons truc ti on si tes: (d) sloppy or muddy cond itions: ( e) dirty co ndi tions: (f) dr ippin gs from newly-poured concrete: (g) the disability of worki ng on all types of scaffo ld ot her than a single plan k or bos un 's cha ir: (h) the lack of usua l ameniti es associated with factory work: and ( i) all other present d isabili ties not speci fi cally compensated or al lowed for by any ot her provis ion o f this Awa rd.". It is clear, and corres pondence exhibited to the Affidavit of Mr Wink ler confinns that the intent ion was that except where "s pecia l and compe lli ng" circumstances existed the general a llowance in cl.3.5( I 6) was 10 compensate for d isabilities suffered by an employee in respec t o f cons truc ti on. reconstruction, al terat ion. repair and/ or mainten ance work . The award refers specifically to employees engaged in sewage treatmen t plant and wa ter tr ea tment plants. They are not to receive payment p ursuant to cl.3.5(16). On the oth er hand employees eng a ged in live sewer work or cleani ng septic tan ks were to be paid at the rate of time and a-half. I do not der ive particu lar ass istance from these provis ions in resolv in g the ma tter. A n umber of grounds of appeal were taken. I will start by considering the ground alleging an error o f law in that the Commissioner refused or failed to observe the definit ion of "li sted disabi li ties" in cl.3.1 of the award . The subm ission was tha t the d isab ili ty for which an additional paymen t of $60.00 per week was awarded was already compe nsated by su bparagraph (i) of the definition. It was common grou nd that the awa rd was one which covered construct ion of se werage plan ts, amongst o the r things. The Commissioner in his decis ion sa id the following:- " ln r elat ion to the Merrimac Treatment Plant. the evidence reveals that an odour was presen t on the si te. Such odour cou ld come from a num be r of sources and the Commission docs not propose to d etenn ine from where or from wha t location the odou r is der ived. The Co mm ission has not experienced such on any o ther si tes during inspections. It was of such a nature that it cou ld not be a disa bil ity of a type normally e nco ulllered by a cons truc tion worker. I ac k nowled ge that it may be an od our wh ich employees under other awards may encou nter for which they may be recom pensed. 13y listing a num ber of d isab ilities the Civ il Co nst ruction, Operations and Ma intenance General Awa rd • State provides a trend which gives an indication of the con text withi n wh ich the all encompass ing item ( i) of subclause (32) sho uld be read. Th e speci fie typi;:s in items (a) to (h) of ~ubc lause (32) are read i ly identilied and accord ing ly provi de the reader wi th an indicat ion of the types o f disabi li ty one wou ld iden tify on construc ti on sites. It is obvious that it was the intentio n o f per sons draft ing the awa rd to g ive an in dication or trend in the context of a family of dis abilities. In 128 QGIG 3 63-36 4 the Presiden t sta ted:- 'Whether a particul ar word or combination of words connotes a spe cific occupat ion. vocation. craft or busi ness 1357 1 I.DOC 6 Ja nu a ry , 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 35 with suffic ien t c.la rity to sa tis(y the purposes o f the Act will depen d, among other things , on the con tex t in which it appears . For example in the con text of the pa rticular industry a desc ription suc h as ·· brewery em pl oyee.. may be so spec ific as 10 sa tisfy those cr iteria but in other con tex ts a comparable use of words may lac k those qualities.'. i\s such none or the disab ili ti es listed in items ( a) to (h) of subclausc (32) could be classified in the field o f odours . Furthermore. one could not suggest that the nature of the odour ex pe ri enced by the Commission at Me rrimac cou ld have hcen contem pl ated when the award was dra ft ed. Accordingly. the all encompassing item ( i) of su bclause (32) must be rea d in the context of it ems (a ) to (h) of subclause (32).". The difficulty wi th the passage is that it is erroneous in my v iew to restrict the s cope o f paragraph (ii in the way that Lhc Com missioner has do ne It s peaks of "all other present disabi lities" wh ich impl ies it is intended to exclude a residu,11 ca tegory of disab ilities likely to be encountered by em ployees perfonning work covered by the award unless those disabil ities are specifi ca ll y compensated or allowed for by the new award. The passage quoted does imp ly that the nature of the odour exper ie nced by th e Comm issi oner whe n he visited the site could no t have been contemplated when the award was d rafted. However, that view was expressed in a context where due regard h ad not been given 10 the genera li ty of the residual category o f cl.3.1(32)(i). Ha vi ng regard 10 the unduly restricted view taken of cl.3.1(32) the fi nding that s pecia l and compe lling circum stances ex ist wh ich were not contemplated within the exist ing award provi sions cannot st and. It is inevitable that the kind of work perfon ned at the Merri mac si te will he. perfo,med in an environmen t whe re there arc fo ul odou rs . Given that it was common ground that the award is intended 10 app ly to construc ti on work in suc h places, it is d iffi cult lo see t hat the perfonnancc o f work in su ch cond itions was not con templated wi thin exist ing awa rd provisions. The mere exis tence of odours wou ld not bring the ma tter v. ithin the s cope or cl.3.5(1 ). They wou ld need to he particularly no iso me to j ustify the payment o f an allowance under Lh e Award as properly cons trued. Desp ite the ap plication of a test which was too gene rous t0 the respondent. the matter rema ins one which is pecu liarly within the province of the Commissione r who heard the e vidence and conducted the inspection . It must be remitted to the Comm ission for the purpose of deciding whether according to the proper appl ication or Lil e award provisions "s pecial an d compelling c ircumstances" exist which were not co111e mpla1ed wit hi n the ex isting award prov isions. In the absence of somet hi ng that goes fa r beyond w hat was in the contempla ti on of those who fo nn ulatcd the award so that the circum~tanccs are not only spt:cial but also compe lli ng. the test will 1101 he satisfied. The orders are that the appeal is allowed. ·111c further co nsidera tion of the matt er is rem itted to the Commiss io n with a direction that it proceed according to law. It is unnecessary to disc uss ot her gro unds of appeal in view or this ou tcome. It on ly remai ns lo be said that when the mailer is further consid ered by the C orrn niss ion , it wi ll be open to par1i es to put such submissions as they wish on mailers then in issue. Dated th is fifteenth day of December. 1994. K G. W. MACKENZIE. Presiden t. Appearances - Mr .1. Murdoch (instr ucted by the Crown So lic itor) li> r Lhc Attorney- General for the State of Queens land. Mr A. I Ierbert (instructed by Messrs C.A. Sciacca & Associates) for the 111c Aus tr alian Workers· Un ion o f Employees, Quee nsland. Operative Date: NIA Judgmcn t - Attorney-Genera l of Queensland and AWU Released: 15 Decemba 1994 ####////#//########//######//#//#######////#####//#////## ####11#### 13571 _1. DOC -- 1 of 1 --