Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees and Other v The Registered and Licensed Clubs Association of Queensland Union of Employers and Others [1993] QIRC 473 (1993) 144 QGIG 907

906 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ l 7 December, 1993 I 7 December, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 907 ##################### ## ############################# Q UEE NSLAND IND US TR IAL RELA TIONS COMMISSION Industrial Relations Act 1990 s. 13 1 - appli ca lion for var i at ion Austra l ian Mun icipal, Admini stra ti ve, Cl er i ca l and Se 1vices Union, Ce ntral an d Southern Queensland Cleri ca l and Administrative Bra nch, Union of Employees and Ot her (N os. R/37-3 of 1989 and B187 of 19 93 ) AND Queensland Hotels Association Uni on of Employers (Nos. R /9 -0 and 8436 of 1993) AN D The Reg istered and Licensed Clubs Assoc i ation of Queensland Un io n of Emp loyers an d Others CLE RK S' AWARD - HOTELS AND REGI STE RED CLUBS - STATE HOTELS, RE SOR TS AND CERTAIN OTHER LICENSED PREMISES AWARD - STATE (E XCLUD ING SOUTH-EAST QUEENS LAND} CO MMI SSIO NER BO UGO U RE 3 December 1993 App licatio ns to delermi ne penalty rate for ordinary time worked on Sun days and to i nse rt a classification structure for clerical empl oyees - Sunday rate b ased on circumstanc es of particu lar industry - No standa rd rate - If Sunday work is essen ti al or n ecessary and regular it is no t appropriate to deter Su nday wo rk by penalty rate - Sti ll ap propriate to compensate for interference with soc ial and famil y li fe - Rate of time an d one ha lf set for "Hotel Industry" - Cla ss ificat ion levels d ete rm ined ior front office and clerical employees based on need for integrated classi fi ca tion structure for "Hotel Industry" wi thout be in g bound by p as t nexus with other awards. DEC ISION I have before me 4 applications. Eac h party has fi led an appl i ca ti on to in se rt a clerical structure in th e Hotel s, Reso rts and Ce rta in Other Lice nsed Pre mises Award - Stale (the "Nort he rn Hotels Award ") and each party has fil ed an application in relation to cleri ca l em ployees in hotels in South -Eas t Queenslan d. In the la tter case the applications rela te to a cleri ca l structure and ra tes of pay for ordinary time work ed on a Su nday. In th e case of the latter application s, rescission of an ex i sting award is sought and the maki ng of a new award in lieu. Considerable di scuss ion h as ta ken place between the parti es over a l engthy period wit h th e r es ult that I was informed tha t, in relat ion to the 4 appli ca tions, t he only iss ues left for determination by me re lated to: - 1. Weekend penalty rates payable to clerks in So uth -E as t Qu eens land; and 2. An appropriate classification structure to be insert ed in both the "Northern Ho tels Award" and th e proposed clerica l award ior hotel employees in South-Eas t Quee ns l an d. I was informed that upon determination of these i ssues t he parties wou ld negoti ate further and hopefully submit agreed varia tions 10 me. Cl ea rly the pa rti es have had fruitful discussions an d I have every reas on to be confiden l that upon determi nation of the 2 i ssues aforementioned, the parties will be able to resolve all olher matters by ag ree ment. I wil l therefore restncl thi s decision to the 2 i ss u es aforemen ti oned. T he Queensland Hotels Association, Uni on of Employers (QHA) called t he following w itnesse s:- 1. Ruth SI NCLAIR, Pe rs onnel and Train in g Manage r at the Ho liday Inn Hotel, Cai rn s. 2. James Ben jamin CLIFTON, D irector of Human Reso urces at t he Radd i son Plaza Hotel, Ca i rns, but who looks afte r industrial rel ation ma tte rs for t he Rad dison Corporation Au stra l ia wide, wh ich invol ves 10 properti es. 3. Robert Frederick RING, employed at The Roya l Pines Resort as the Fron t Officer Manager. 4 . Des i ree Jan e FRE NCH, employed at the Beaufort H er i tage Hotel, Brisbane as the Personnel and Training Man ager. The Australian Munici pa l, Administra ti ve, Clerical and Services Uni on, Cen tra l and So uth ern Queensland Clerical an d Administrative Branch, Unio n of Employees (AS U) called the following wit ness: - Suzanne El izabeth GI RD LER, who is employed at the Colmslie Hotel, Brisbane and ha s b een so emp loyed for 17.5 years . T he Co lm sl ie Hotel is one of a group of 4 ho tels ope rat ed by the Mc Guire Fa mily and the wit ness' duti es extended to all hotels in the group. WEEKEND PENAL n' RA TES The i ss ue of weekend penalty rates in re l ation to the "No rth ern Hotel s Award" ha s already been determ ined by a Fu ll Benc h of this Commission. It is no w sough t to determine weekend penal ty rates inso fa r as the prop osed Clerical Hotels Award - South- Eas t Qu eens land is concerned. In th is latt er regard 1he QHA see ks identical weekend rates to th ose determined by the Fu ll Bench of this Commission for the "North ern Hotels Award", th at is time an d a-quarter for Saturday work and time and a-ha lf for Sunday work. On the other hand t he A SU see ks time and a-q uarter for Sa turday work an d time and three-quarters for Sunday wo rk, wh ic h are the sa me rates as det ermined by Commission er Car in h is decision of 6 May 1993 (Print K760 1) for the purposes o the Fede ra l Hotels, Resorts and Hospitality Industry Awa rd 1992, which Federal Award applies to employees other than clerks in Sou t h-Eastern Queensland. The Sa turday rate of time and one-quarter i s, in fa ct, a reduction from the time and a-half rate wh ich currently appl i es to t he relevant clerks in South-East Qu eensland. Th us if I foll ow th e Federal decision aforementioned, I will be incon sisten t with the decision oi the Fu ll Bench of this Commi ss ion in t he " Northern Hotels Awa rd " and i f I follow th e sa id Full Bench decision I will be inconsisten t wi th the sa id Federa l decision. The only iss ue i s whether the Sunday rate should be lime and one-half or time and three-quarter s. The question of weekend penalty rat es was dealt with at some length in a decision in the Miscell an eous Work ers ' Aw ard - Sta te Government (137 QC IG 299). In th at d ecis ion it was sa id by a majori ty of the Fu ll Ben ch (Commissioners Bougoure and Swan):- " In our view the ques ti on of the appropriate rate of pa y for ord in ary time work ed on a Sunday should be determined upon the in dividual c ircum stances of the particu la r industry under consideration. In many Awards the same ra te of pay w ill be adopted beca use circu msta nces are identical; but in our view th i s should not be seen as a standa rd .". In this case wh i lst penalty ra te s p aya ble to clerica l emp loyee s are under direct considerati on, the i ss ue must be determined in the con te xt of the Hotel and Resort Ind ust ry, which is th e ind us try in which such clerica l employees are wor king. In the decision in the M i sce ll an eous Workers' Award - State Government ( 13 7 QG IG 299) a di st inction w as drawn be1w ee n the elements of deterrence and compensation in assess ing weekend penalty rates an d, in part icul ar, Commissioners Bougoure an d Swan sa id:- -- 1 of 2 -- 908 QUEENSLAND GOVERNMENT JNDUSTRIAL GAZETTE f 17 December, 1993 "A fac tor which will gen era lly impact upon th e element of deterrence is how essential or necessary it is that work be regularl y perform ed in ordinary time on a Sunday, in pursuing efficiency and productivity in the particul ar industry concerned. It wo uld seem to us that some distinction should be made be tween a regular, as distinct from an occasional necess ity to work on a Su nday." . In the decision of 12 December 1991 in t he "N orthern Hotels Award" (139 QGIG 30 at page 4 1) the Full Bench (C hief Commissioner Led lie, Commi ss ioners Bougoure and Fis her) said:- "lt will be appa ren t from th e conclusi ons reach ed from the evidence wh ich was given earlier in this decision, that the hotel industry is a 7 day a week, year round opera ti on. SeNice is offered to customers rega rd less of the day of the week and li mi ted only by li cens ing laws, cos ts of providing the service and the nature of t he busine ss (e.g. tavern, re sort hotel, country pub). Nearly every class of em ployee is requ ired to work on a Saturday or Sunday or both. Like the situation confronting the Bench in the M iscellaneous Workers' Award - State Government, this Bench also conside rs that, in re lation to this particu lar seg m en t of the hospit al ity industry, Sunday work is essen ti al an d it is inappropr ia te to deter the employer. We therefore agree with the conclusion of Commissioners Bougoure and Swan that' ... the fac tor of deterrence should receive limi t ed, ii any, we ight in assessing t he appropria te pe nal ty rate .'.". In my v iew the industry involving ho tel s, resorts and licensed premises is one in wh ich there has, in recent years , been a significant re laxat ion of licensing laws, and an expansion of the community's demand for the usage of servi ces provided by such industry at weekends, including Su n days . Th ere is probably no indu st ry which has a greater public demand for i ts servi ces at weekends, including Sun d ays. Therefore it is clearly necessary to satisfy public demand tha t such industry provide a full r ange of servi ces during weekends on a regular b as is and it is not appropri ate tha t penalty rates contain any elem en t of deterrence in them. Of course work on Su nd ays does sti ll interfere with the soc i al and fam i ly life of employees an d for such disabil ity some compensation is appropri ate . As I have indicated, each industry h as to be assessed on its own part ic ular circumstances. In my view, the "Ho tel Industry" h as now reached the stage where its wide spr ead weekend operati ons an d the public demand for such servi ces places it in a po si tion where the level of weekend penalty rates for ordinary time work should, when compa red wi th other indu st ri es, be at a minimum level, wh ilst st ill recognising that so me compensat ion for the di sab ili ty involved should be paid. In his decision aforementioned, in the Hotels, Resorts an d Hospi tality Industry Award 1992, Commi ssioner Gay sa i d:- "The Sa tu rday r ate for ordinary time worked in th is Industry should be l oaded over the Monday to Fr iday rate but not pu ni tivel y so, ye t loaded at substantially less than the Sunday ordinary ti me rate. The Sun day ordinary time ra te should be l ess than the overtime rate and yet appreciab ly more th an th e Saturday rate.". In my view, it is appropri ate that the Sunday ordinary ti me rat e be appreciably more than the Monday to Friday ordinary time rate , however, with respect, I find it difficult to j ustify that, under current c ircums ta nces in t he case of this particul ar industry, tha t t he Sund ay rate should be 50% higher than the Sat urd ay rate. It seems to me that over more recen t years the distinction between Satu rd ays and Sundays in thi s industry has somewha t dimi ni shed. It seems to me that in assessi ng appropriate comp ensa ti on for Sunday work in this particular indu stry one shoul d have considerable regard to th e degree by which the Sun da y penally rate exceeds the Monday to Friday ra te. In that respect, I consider that for the purposes of th is industry, a loading of 50% i s appreciable an d does provide a fa ir and j ust level of compensation for Sunday work in circum stances in which the element of deterrence is not appropriate as I outlined ear lier in thi s decision . To provide di ffe ri ng Sun day penalty ra tes for cl er i ca l employees as distinct from o th er industry employees would not be appropri ate in my view, however, that i s unavoidable in rel at ion to South-East Queensl and at th is stage. Due to t he increased mobility of local perso ns an d touri sts, there is a demand for clerical employees 10 work 7 days per week as an integ ra l part of the "hotel industry". I therefore determine that the Sunday rate for ordinary time work shall be time and one- ha lf in conform ity wi th the Full Bench decision in th e "Northern Hote ls Award". CLERICA L AND FRONT OFFICE STRUCTU RE The classification st ructure of t he "Northern Hotels Award" was set before a Full Bench of this Commissi on determined the classi fication structure as set out in the Clerical Employees' Award - State . In estab lishing a classificat ion st ru cture for clerical empl oyees working in the "Hotels Industry", the ASU naturally des i re s to re ta in, as fa r as reasonably poss ibl e, the integrity of the classi ii cation structure established under the Cleri cal Em ploy ees ' Award - Sta te. In i ts submissi ons and material p resen ted to me the ASU has ge n era lly acted quite responsibly in endeavouring to in se rt cleri ca l employees into the estab lished "Northern Ho tels Award" class ifi ca ti on structure. In sp ea ki ng of clerical employees generally I include "front office" employees. In my view it must be clearly understood th at I am now d ea ling with th e "Hotel Industry" and I accept that the needs an d demands of such industry, so far as clerical empl oyees are concerned, are somewhat di ffe ren t to the needs and demands of other industri es where more convent io nal clerical functio ns are performed. For example, I accept evidence before me to the effect that wh il st an ability to type may often be re quir ed, the level of speed and accuracy is not so important as it may be in other industries. Furthermore, I accept t hat in t he "Hotel Industry" cleri ca l employe es gen era lly have to perform their duti es and handle clients withi n the context of the overall operati on cond ucted by the employer. C le rical employees in this industry cannot perform their duties in isolation from other pa rts of the overall operation. In my view many elements oi the cl assification st ructure es tabli shed under the Clerical Employees' Award - State will not be appropri ate for adoption in the "Hotels Industry". There has to be estab lished an integrat ed class ifi ca tion structure for all employees in the "Hotel Industry" w ithout being bound by any p as t nexus with other awa rd s. In relation to the classificati on st ructure, whi lst there is much agreement between the parties, there seems to be 2 areas of specific disagreement. Such disagreemen t invol ves fir st ly, insertion by the un ion of ce rt ain additional te rminology wh ich i s based upon the Cleri ca l Emp loyees' Award - State; an d secondly, a des i re by the union to insert additional classificati on levels and definitions to be attached to such levels and to use higher levels in some cases. In relation to the first area of d is agreement, it is re levant to compare the cl ass ification structure and defini tions in the "Nort he rn Ho tels Award" and the Cl er i ca l Em ployees' Award - State. In the case oi the first mentioned award, each l evel sets out relevant duti es , the performance in wh ich an employee of that · l evel might be eng aged, whereas in the case of the Cl er i ca l Em ployees' Award - State, an employee's level depends more on a ju dgment based on certain charac teri stics with only indicative typic al duti es and skil ls being outlined for each level. To n ow incorporate into the class ification structure of the "Northern Hotels Award" si gn ificant elements aforemen ti oned of the Cleri ca l Emp loyees' Award - State woul d be to c re ate a hybrid cl ass ification structure. In thi s respect I adopt the Q HA application with some modific ation. Secondly, th e ASU seeks a more ex tens i ve classification r ange for clerical employees and, in some cases, higher levels oi remuneration. Up to date I have re ferred gene ra lly to cleri ca l employees, however, both parties seek separate provi sions for Fro nt Offi ce empl oyees and clerical emp loyees. In the case of the AS U, it seeks provision for Front Office empl oyees Grades 1 to 4 plus 2 Sup eNisory level s, wh ilst t he Q HA seeks provision for Fron t Office emp loyees Gr ades 1 to 3 pl us one Su pervisory level. The parti es agree that the Fron t O ffice employees G_rade s 1 an d 2 sho uld be cl ass ifi ed at Level 2 an d 3 w 11h rel a11v 1t1es of 82% and 87.4%, respectively. The words "including the initial recruit" should be del ete d from the Grade 1 definition. . The ASU then_ s_eeks provision for an employ ee at level 4 with a 92.4% relat1v1ty wher eas the QHA appli ca t ion jumps to Leve l S at a 100% relativity. There is evi dence before me th at all class ification level s are not necessary how ever, I am concerned that th ere is such a si gn ificant ga p in the propos ed QHA st ru cture at what I consider to be a signifi ca nt level at which a significant number of peop le might be employed. I propose to make provision for Front OHice Grade 3 at class ification Level 4 with a 17 December, 1993) QUEENSLAND G OV ERNMENT INDUSTRIAL GAZETTE 909 92.4% relativity. Whi l st I find the definit ion propo sed by the ASU Is not . enurely adequate, In t he absence of some more definitive provision being agreed between the part ies, I w iil adopt i t. At the next level the parties are agreed th at the class ification shoul_d be Level 5 and the definition is agreed, excepting that the ad d1t1 on by the ASU should be deleted. Such employee will be known as "Front Office Grade 4" with a relativity of 100%. . _The applications of both part_i es provi de for a Supervisory pos,t,on at Level 6 wit h a relat,v ny of 105% whi l st t he AS U af)pl i ca tion ad ditionally provides for a Se ni or SupeNisor at Leve l 7 with a rela t1v11y of 110%. Th ere is some ev idence before me th at Supervi sory Front Office employees are likely to be sa laried employees. In my view thi s is even mo re likely in the case oi the Senior Leve l 7 posi ti on proposed by the ASU. I will include in the class 1f1c at1on structure only the posit ion of Front Office Su pervisor at Level 6 wit h a relativity of 105%. . I will now consider the class ification structure p ro posed for clerical employees as d ist inct from front office emp loyees. Aga in there seems to be 2 areas of con fl ict between the parties. Firstly, t he ASU seeks 10 insert additional te rm inology into the definitions and secondl y, the ASU see ks more levels an d, ,n some cases, higher leve ls. In relation to the defin itions, I generally accept the QHA proposal s, w ith some exceptions as in di cated. . Both parties se~k. to provi_de for a Clerical Emp loyee Grade 1, with t he ASU su bmitting t hat II should be a Leve l 2 position with an 82'3/o rel at1v1ty, wh il st th e QHA seeks a Level 1 position with a 78% re l at1v 1ty. In my_vi ew Level I with a rel ati vi ty of 78% is clea rly too low, particularly when one considers wh at was determined in the Clerical Emp loyees' Award - Sta te, and what I have adopted earlier in th is decision for Front Office Emp loyee Grade 1. I accept the ASU su bmission that the lowest cleri ca l posi tion sho~.ld be at Leve l 2, howeve r, the words "includ in g th e 1nit1a l _recru it should be deleted from th e ASU definit ion, but the def1n1tion should be _va ried to read , whe re appropriate, " bas ic cl erical and office duties" and the wo rd s "basic typing" should be inserted after the word "fil ing" . The lastmentioned finding disrupts most of the proposed structure of the QHA. . In re lation to the QHA application, I consider that Level 2 ,s too low for the proposed Clerical Employee Grade 2. Th is em pl oyee according to the definitions of both parties will be performing general clerica l and office duties and, in my view, suc h an employee j u st i fi es a Leve l 3 grading as proposed by the A5U. Both parties seek_incl~sion of a Clerical Emp loyee Grade 3 at Le ~_e l_4 wit h a re lat,v,ty 01 92.4%, however, the QHA sub mi ts a de(inition involving a higher level of sk ill. I accept the ASU de t1 n1t1 on. Th e ASU see ks ind usi on of a Clerical Employee Grade 4 at Leve_l 5 w ith_ a re l at 1v1 ty of 100%, whilst the QHA submi ssio n elim in ates this level altogether. I am satisfied that the structure should include a Cl er ical Empl oyee Grade 4 at Leve l 5 however I do not accept the detailed definition proposed by th e 'AS U. Th~ defm1t1on for Le ve l S should incl ude the advanc ed duties guid ance to other employees and allocation of work which i eliminated from th e QHA application in respect of Grade 3. The AS U seeks in cl us ion of a Clerical Emp l oyee Gr ad e S at Leve l 6 "".' ' th a rel~ t1 _v 1ty of 105% an d a Cl er ical Supervisor at Level _7 w,t~ a re l at_,vlly of 110%, whil st the QHA on ly seeks the indus,on ot a Clerical Supervisor at Level 6. In my view, i t is dewable that Leve ls 6 an d 7 be both in cl uded in thi s struc tu re for clerical emp loyee s. I accept the ASU definition for a Cleri ca l Employ ee Grade 5, subj ect to t he addition of wo rd s to t he effect that a Grade 5 employee ma y al so provide guid an ce to other employees, may check and allocate wo rk and may supervi se staff. The po~_iti_o_n of _C leri ca l Supervisor is sought by both parties, and the det1n11 1on Is agreed, however it sh all be a Leve l 7 position . w ith a re lati_vity of 110%. ' In my vi ew there is Jus t1 f1cat1on for the clerical st ream to te rminate a little high er than the Front Office posit io n s. . Having mad_e the "in pri nc iple" determ inations, wh ich the eartIes see k, I w1U now refer t he matter back to t he parties for hnal, sa t1on of va ~Ia t1 ons. . If any areas of d isa greemen t ari se between the parties,_ I wil l resume the hearing and make any necessary determinations. .. .on 7_O_cto~er 1993 a Fu ll Bench of th is Commi ss ion gave an ''! prin ciple . approval . to a 38 hour week subject to an operati ve date being determined by me. Whe n ag reed variations are recei ved, I w,11 rehst t hese matters to hear sub missions on the questio_n _of an operati ve date and make the necessary determinations. I order accordingly. R.W. BOUGOURE, Commissioner. Appearances:- Mr D. _O' B~ien and _Mr D. M apstone for the Austral ia n M unic ip al, Admin, st rauve, Clerical and Serv ices Union, Central an d Southern Queensland Clerical and Adm in istrati ve Bran ch, Union of Emp l oyees and the Federated Clerks' Un io n of A ustralia No rth Queensland Branch, Union of Employees (ASU). ' Mr N. Timo for The A ustrali an Workers' Union of Emp loyees, Queensland (AWU). Mr C. Barre tt for The Federated Liquor and All i ed Industries Emp loyees Union of Aust ra lia, Q uee nsland Branch Un ion of Emp loyees (FLAIEU). ' Mess rs. D. Jon es, S. Major and J. Patti for the Queensland Hote ls Association, Union of Emp loyers (QHA). Mr L. Mo loney, wi th him Ms J. H imst ed, and M s K. Payne, for the Queensland Mote ls' and Accommodation Association Inc. Ms P. Wilson for the Reg is tered and Licen sed Clubs Association of Queensland, Un ion of Employers. Mr A. Grant for th e Roya l Queensland Bow ls Association and on behal f of the Gail es Golf Club. M r S. Paw low sk i for the Queensland Confederation of In du stry Li mi ted , Un ion of Employe rs (QCll. Ope rat i ve Da te: NIA Decision - Sunday Penalty Rate and Clerical Clas sification Structu re Rel eased : 6 December 1993 #################################################### -- 2 of 2 --