Department of Employment, Vocational Education, Training and Industrial Relations v The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees and Others [1993] QIRC 432 (1993) 144 QGIG 663

662 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (26 November, 199 3 26 November, 1993 ] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 663 ########### ### ############### ############## ######### QUEE NS LAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 105 - application for resci ss ion and new award Department of Em pl oyment, Vocational Education, T ra ining and Industrial Re l at ions ANO The Federated M iscellaneous Work ers Union of Aust ral i a, Queensland Branch, Union of Emp l oyees and Others (Nos. R/3-1 of 1991 and R6-3 of 1993) EMPLOYEES OF QUEENSLAND GOVERNMENT DEPARTM ENTS (OTHER THAN PUBLI C SERVANTS) AWARD COMMISSIONER SWAN 16 November 1993 Application for Resc is sion and New Awa rd - Prel im inary Issue - 38 Hour Week -· Award and numerous Industri al Agreements - Appl ication Granted in Part - Crown Employees - T ransla ti on of Cl ass ification and Remuneration Structures - Specia l Case - Hours of Duty - Flexibility - Retrospecti ve Paymen t - Pre liminary Point - Interim Award - Decision from Bench - Refused - Matter Reserved - Movement wi th Cl assification Leve ls - Penalty Rates - Spec ial Conditions - Award Modernisation Cl ause - Cl eaners - Direction of employer for part-time employees to become full-time - Non-Absorbable Allowan ces - leave Credited as Serv ice - Application Granted in Full with Amendments. REASONS FOR DECISION A decision concerning applicatio ns R13-1 of 1991 and R6-3 of 1993 was delivered from the Bench on Friday 12 November 1993. It was stated at that time that detailed reasons for such a decision would be forthcoming during the following week. Such reasons are as follows:- The applications before the Commission have their genesis in a registered Industrial Agreement entitled "Publ ic Sector - St ructural Efficiency Implementa ti on - Industrial Agreement" (N o. A69 of 1990 - 135 QGIC 399- 406) made between Queensland Government Departments (excluding the Railways Departmen t), Public Hospitals and the Aust ra l ian Council of Trade Unions - Queensland Branch and Others. Such Agreement detailed particulars concerning th e Structural Efficiency Process to be underta ken in areas of Crown employment and spec ified a p rocess of Award amalgamation to be pursued. The above mentioned In du st rial Agreement was amended in Sep tember 1991 (No. 2R 58-1 of 1989, 139 QGIG 231- 233) to read :- " Award Amalgamation 3. The parties to this Agreement se ek to purs ue a phased ra tionalisation approach to achieving a reduction in the number of Awards for the Queensland Government. Only where there is cl ear evidence that conditions of empl oyment di ffer substantially across Public Sector em ployment w ill separate Awards be maintained. Pending th e development of comprehensive classifications, the parti es agree to examine the groupings, fo rm ing Appendix 11, as an aid to the Award Ama lgamation pr ocess .". As a manife sta ti on of the intent of th is Agreement, the appli ca ti ons now before the Commi ss ion seek the amalgamation of some number of Awards and Industrial Agree ments coveri ng th ose employees traditionall y referred to as "Crown Em ployees". The proposals would see all em ployees covered by such inst ru ments trans lated to public sector class ification an d remuneration structures. This i s in accordance wi th cla use 2 of the aforementioned Ind ustrial Agreement wh ich states as follows:- -- 1 of 5 -- 664 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [26 November, 1993 "Classification and Remuneration System 2. The provisions of the Classification and Remuneration System granted by the Full Bench of the Industrial Relations Commission on 3 July 1991 in Case No. R6-3 of 1990 (Public Service (Remuneration) Interim Award - State) will continue to be implemented where applicable.". The wage rates applicable in the proposed Award warrant consideration as a "special case" before this Commission. With the concurrence of the parties and upon consultation with Chief Commissioner Hall, this matter was determined as appropriate to proceed before a single Commissioner. The advocate for the Crown detailed the cost impact of such an Award being granted. Also, throughout the course of the proceedings, the Crown detailed to the Commission the benefits which would accrue to the Crown by way of stated productivity and efficiency gains. These are as follows:- "The principal benefits to be derived from the Crown application are:- modernising the hours of duty and providing management with greater flexibility in determining working hours, by allowing ordinary hours to be worked on any five days out of seven with appropriate penalty rates; enabling management to ensure that working patterns and arrangements enhance flexibility, efficiency and services delivery, by working up to 10 hours per day at ordinary rates between the hours of 6.00 a.m. and 6.00 p.m.; providing administrative efficiency in servicing only one award; establishing through the adoption of the Public Sector Classification and Remuneration System, appropriate relativities between different categories of workers within the award; skill-related career paths which, associated with performance planning and review, for a small number of employees will provide an incentive for employees to continue to participate in skills acquisition; arrangements designed to eliminate impediments to multi-skilling; standards across the pub I ic sector to provide consistency and minimise anomalies and inequities; a suitable framework within which public sector wide positions can be accurately valued and monitored; simplified administration through fewer classifications; flexibility to utilise employees' skills within levels; a reduction in payments for higher duties; wage equity for employees of Government by providing a common classification and remuneration system; fair wage rates to lower paid employees, including many women (for example, 6,500 teacher aides); elimination of costs under the Services Incremental Payment Scheme.". The pursuit by the parties towards finalisation of this process of amalgamation has taken a considerable period of time. The Commission understands that such a lengthy course has been fraught with frustration and concern on the part of al I parties. None more so, however, than for employees who will be affected by the granting of such an application. I say this for the following reasons:- For public service employees, the process first mooted in 1990, has been completed (specifically in terms of remuneration and classification structures) some time ago. The particular group of employees affected by this application, being those at the lower end of the pay scale within Crown employment, have observed other employees receiving enhanced wage rates over this period. It is appreciated that the task of amalgamating a wide ranging group of Awards and Industrial Agreements has not been easy and the parties are to be commended on their diligence, commitment and forbearance shown through this lengthy process. 38 Hour Week While it was the common goal of the parties to create this Award, there were a number of issues which remained outstanding between them. These included, amongst others, the question of a 38 hour week for one Award and a number of Industrial Agreements in the groupings to be amalgamated. During the course of negotiations, full agreement was reached between the parties on al I hours questions. That particular component of the application was forwarded to Chief Commissioner Hall for his consideration. A separate decision of a Full Bench of this Commission was delivered approving those claims concurrently with this decision. Retrospective Payment In a preliminary application made to the Commission, prior to the finalisation of this matter, the Unions involved sought a decision from the Bench that an "agreement" that existed between the Crown and the Unions be implemented. The specifics of such an "agreement" is dealt with in a separate decision of the Commission delivered on 29 October 1993. At the time of delivery of such decision, the Commission indicated that it would be incorporated into the body of this final determination. The decision reads as follows:- "On 12 October 1993, I determined that I would receive submissions from the parties on the question of whether an interim award should be issued dealing with an appropriate operative date for the proposed new Award (Employees of Queensland Government Departments (Other Than Public Servants) Award) concerning the public sector classifications and remuneration structure. It was understood that a determination on this point would be separate from the Commission's decision relating to the operative date and the content of the new Award as a whole. The issue of an operative date had often been raised throughout the hearings before the Commission. Reference had been made to an understanding which had been reached between the parties during the somewhat lengthy progress of these applications. I was not satisfied that I had received a substantive response from the Crown on this point and had requested them to make further submissions. Having been requested to consider the option outlined earlier by the Unions, my decision to follow the course of action requested was based upon the fact that both parties were in agreement that this should occur. I have fully considered the submissions from the parties and state as follows:- The initial understanding reached between the parties occurred around June 1991 when it was agreed that there would be a restructuring of Awards applicable in the public sector to include identical classification and remuneration structures. Such restructuring has occurred in both the Public Service Award - State and the Regional Health Authorities Employees' Award - State. For those employees traditionally referred to as "Crown Employees", it was understood that an operative date for remuneration to be paid would be determined subject to the Commission and the parties being satisfied that suitable progress had been made regarding the negotiation of other conditions of employment. The point in contention between the parties is at what stage of the negotiations, if at all, has suitable progress been reached. The Unions say that occurred in August 1992. They say this because at that point in time the Crown's advocate was forwarding the draft agreed to, at that stage, to relevant Government departments for their views on cost implications and their approval of the proposed Award. Presumably after such approval was granted, the submissions were to go to State Cabinet for their ultimate approval for the making of such Award. As it transpired, Cabinet made a decision in April 1993 but in so doing set further conditions to be satisfied by the Unions. In their submissions, the Unions alert the Commission to a number of issues separate to the specific claim in question which, if their application were successful in whole, would need to be considered in conjunction with the Commission reaching a determination on this claim. Opposing the application, the Crown contend that suitable progress had not been reached between the parties as claimed by the Unions. The Crown's submission is that the understanding as existed between the parties was that for the agreement to be implemented there needed to be acceptance collectively between the parties and the Commission that suitable progress had in fact been made. 26 November, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 665 They state _that Cabinet did not approve the process to proceed with the making of the new Award until April 1993 and at such time preconditions were set which needed to be m_et by the Unions. Such requirements caused the partI_e_s to continue negotiating the issues and, as yet, spec1f1c matters remain unresolved. I should state that the difficulty of agreeing to the Crown's latter preconditions was not shared by all the Unions. Notwithstanding this limb of their argument, the Crow_n also submit that two pertinent factors need to be . c_ons1dered by the Commission in reaching its dec1s1on and these are the cost factor of acceding to the request of the Unions and administrative difficulties which would arise were the claim to be granted. The above represents a general synopsis of the submissions put to the Commission. However all matters raised in submissions, whilst not detailed in this decision, have been considered. I h_ave determined not to accept the claim made by the Unions for the following reasons:- ! have had carriage o_f this matter for some time though not for the entire _period of the claim. Notwithstanding that, I have considered the relevant material in detail. The Unions have worked collectively on their claim as would be expected In an application of this nature. What has occurred, however, is that separate Unions encountered problems peculiar to their own areas and these remain to be dealt with by the Commission in the near future. I accept that a lar~e degree of planning and effort has gone mto the c_la1m by both parties. However, the Commission believes that the areas which remain in c_ont_e_ntion between. the parties are sufficiently s1gn1f1cant as to permit the Commission to form a view that_ the understanding which existed between the parties has not been dishonoured. I might add that the general picture with regard to this application has . changed to some degree on each occasion the parties have come before the Commission. There Is _no blame attributabl_e to any specific party, rather, this comment applies in varying degrees to all parties. The Commission still has before it a range of matters of some importance yet to be determined and in the case of some, further clarification is required. I would also add that as Cabinet has the ultimate say with regard to matters such _as th_1s from the Crown's perspective, their degree of sat1sfact1on or otherwise with the progress of this proposed Award must also be attributed due weight. I have also taken into account the very real question of the monetary and administrative impost of granting retrospective payments. Generally, I would be most reluctant to grant increases in wage rates without s1multa_neously approvin~ conditions which enhanced flex1bil1ty and product1v1ty and for which such wage increases were agreed to. These factors are of such s1gn1f1cance that they cannot be lightly considered. I have some degree of sympathy for the position the Unions find themselves in, however. I accept that there was a_ degree of expectation concerning an early determ1nat1on on remuneration and classification structures on the part of employees who expect to be covered by the proposed Award in whichever form it takes. I also accept that there has been genuine views formed with regard to the understanding which has been reached between the parties and that Unions would have 1mp_arted their understanding of such to their members In a clear manner. There were, unfortunately, no iron clad guarantees that such a course of events as Is claimed would necessarily follow. The qualifications affecting all were that a similar view needed to_be adopted by the Commission and the other party. This has not occurred. From my perspective, it has been unfortunate that such a degree of expectation should have been raised in the first place and, to some dewee, I believe such an approach was industrially naive. With the . best of intentions, satisfying such an understanding to the . sat1sfact1on of all parties, was always going to be d1ff1cult to achieve. It may well have been more prudent to have considered the possible ramifications of such undertakings early in the piece. Th_1s would have ensured that certainty, rather than antIcIpat1on or speculation, prevailed during the course of the negotiations. For the reasons I have outlined, I reject the application on this particular point. The Commission is still to hear from_ some of the parties on specific matters on a future hearing_ date: I am aware of the concerns of all of the parties In this matter to reach finalisation of the claim and 11 would be my intention to deliver a decision o~ the application as soon as possible after the completion of the hearing. If circumstances are appropriate, given the time of the year. and the concerns which I have already expressed, It might be that the Commission delivers its decision after full consideration of the matter, with detailed reasons to follow. On the specific point in contention in this appl1cat1on, I Order Accordingly.". "Matters Reserved" List Clause 3.3(9)A(ii) "Movement within Classification Levels (a) (b) Except in the. case of an employee who is paid the prescribed basic wage on attaining the age of twenty- one (21) years or In the case of a promotion, or transfer and promotion from one classification level to another an increase shall not be made to the wage of any employee until ... In the case of payment of wage increments to part-time employees, the parties agree to reserve this matter and it shall be finalised within 12 months of the date of creation of this Award.". In light of such agreement, this matter will be held in abeyance. Penalty Rates The Commission does not have before it any claims with regard to penalty rates. Penalty rates applicable to all Awards and Industrial Agreements are contained in a Schedule to the Award. The rates differ accord1_ng to the instrument in question, however, the Crown stated that It did not intend pursuing this issue during the Structural Efficiency process. Matters to be Arbitrated The following list of matters are to be arbitrated:- (1) Special Conditions (Clause 7.1 of Crown's application) This provision (as per the Crown's application) seeks to per_m_It certain groupings of employees who have been recIpIents of various Public Service conditions to retain such conditions upon implementation of the Award. However, these conditions would not extend to new employees working in the same position, subsequent to the making of the Award. (2) Award Modernisation Clauses (Clause 6.1 of Crown's application) The clause relates to a claim by the Crown to eliminate demarcation between occupational groups within the same remuneration stream and classification level upon the satisfaction of certain criteria. ' The Crown's claim was objected to by The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees specifically as it related to demarcation issues between Teacher Aides and Cleaners in Schools. -- 2 of 5 -- 666 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [26 November, 1993 (3) Cleaners - Whether the Employer can direct a part- time employee to become a full-time employee (Schedule E, S(b) of the Crown's application) This disagreement centres upon the Crown's request to have the capacity to direct that part-time cleaners work as full-time cleaners as required. (4) Non-absorbable Allowances (Schedule E, S(b) of the Crown's application) The Crown claim that non-adjustable non-absorbable allowances shall be for all purposes of the Award including shift penalties and annual leave loading. (5) Leave Credited as Service To be determined by the Commission. Determination of the Commission Re: (1) Special Conditions (Clause 7.1 of Crown's application) Many of the Awards and Industrial Agreements before the Commission for amalgamation contain provisions whi_ch refer. to certain Regulations contained within the Public Service Management and Employment_ Regulation 1988. Examples of such provisions include Travell1_ng Allowance; Transfer _Expenses; Locality Allowance; Motor Vehicle Allowance; Recreation Leave (excluding casuals); Leave for Study and Examination Purposes (excluding casuals), etc. In most cases, these provisions have formed part of the Award conditions for Crown employees for many years. It has been put to the Commission that these conditions have been inserted into these instruments as a result of consent appl1cat1ons between the parties over the years. Other allowances contained in the Awards and Industrial Agreements are either spec1f1c to the instrument in question or relate to the provisions contained in another primary Award. It is the claim of the Crown that provisions which directly refer to Regulations within the Public Service Management and Employment Act 1988 should remain for existing employees but not be applicable to new employees performing similar work subsequent to the creation of this Award. Considerable debate ensued between the Crown and the State Public Services Federation Queensland Union of Employees (SPSFQ) over the provisions contained within the Public Service Award - State as it related to Part VI "Miscellaneous Employees". Many of the provisions containing allowances and conditions refer to public service conditions as being applicable. In the case of travelling allowance, one provision outlined under the heading of "Chauffeurs" makes reference to Travelling Expenses which do not relate _back to any public service conditions, but rather contain their own prescript10n and under the sub-heading (in Part VI) "Inspectors, Foremen, Overseers, &c. Department of Main Roads, Queensland Water Resources Commission and Premier's Department" daily travelling allowances are set at the rate applicable under public service regulations. There are no other references to Travelling Allowances in Part VI of the Award (Public Service Award - State) but, if one peruses Part IV, the "Overtime and Allowances" section of the Award, the following provision is found:- "Daily Travelling Allowances 39. Daily travelling allowances at the rates and on the conditions set out in Regulation 79 of the Regulations made under the Public Service Act 1922-1978 existing at the date of this Award, and any amendments thereto, shall be payable to employees or classes of employees to whom such allowances have been paid prior to the making of this Award. Provided that where an officer's absence from headquarters on duty does not extend overnight an allowance for lunch shall be paid to such officer only when that officer incurs the expense of having lunch at a place where the lunch is obtained. In such case the amount of the allowance shall be the amount prescribed therefore by Public Service Regulation 79(4).". The SPSFQ argued that the use of the wording "employees or classes of employees" extended this provision to Crown employees. The Crown submitted that the later use of the word "officer" meant that the provision only applied to public servants per se. Because of this apparent confusion in the wording_ of this provision and since the Crown claimed that such confusion was the result' of bad drafting of the provision, the Commission sought to ascertain what, as a matter of fact, had been occurring over the years in terms of the employers' interpretation of the clause. The response from the Crown, for example, in the case of the Transport Department was that payment of public service rates was paid to all employees. Si_milarly, locality allowance had been paid to specific employees in accordance with Part IV of the Public Service Award - State. In the same Department, however, there was no policy position regarding store persons. It seems from the information put to me that these persons did not engage in travel so the question of a policy position was academic. It became apparent to the Commission, during the course of hearings, that many varying approaches were being adopted by Departments with regard to the payment of allowances and the awarding of certain conditions. In the case of some employees, (Part VI Employees under the Public Service Award - State) the employer's decision, over many years, had been to adopt the provisions as detailed in Part IV of the Award. The entrenchment of these practices, over such a period of time, is a matter to which I have given considerable attention. The rationale behind the Crown's claim concerning special public service conditions was "the promotion of equity". The Crown submitted that it was aware of the 1991 State Wage Case decision regarding "negative cost c_utting" and stat_ed that _"no present employee will suffer a reduction in ordmary time earnings and the application also ensures that no exIstIng employee will have a reduction in their other conditions of employment excepting those employees gaining the benefits of reduced working hours". It was also stated by the Crown that not all Crown employees were recipients of such public. service conditions. In fact the submissions were that these cond1t1ons only applied to a sm;II group of Crown employees; some 500 out of an approximate total of 15,000 employees. The Crown was opposed to the claim of the Unions that the Commission "arbitrate conditions of employment which in some instances are superior to those conditions contained in the Queensland Industrial Relations Act 1990". Various decisions of the Queensland Industrial Relations Commission were cited (1972, 81 QGIG 891-893; 1973, 84 QGIG 1230-1231) where the Commission refused applications to insert public service allowances into Awards. The reasons for refusal were varied as were the specific circumstances of each case. In general, the reasons for refusal related to a retentio_n of "general standards" of the Commission rather than the merit_ of individual allowances; the fact that some allowances In question had not been initially arbitrated by the Commission; a recognition by the Commission that anomalies can exist when employees work alongside each other (i.e. public servants and Crown employees), for the same employer, receiving different allowances. In the matter of the Teachers' Award - Non-Governmental Schools (1986, 122 QGIG 145-149) a Full Bench of the Queensland Industrial Relations Commission refused to insert into an Award an allowance linked to a public service Regulation in lieu of a currently existing allowance, of less monetary value. _In its decision, the Commission presented a number of reasons In its rejection of the claim including insufficient information concerning the rationale behind the setting of the public service Regulation rate; compulsory transfer factors applicable to public servants; considerations of "isolation and climatic conditions" and that, on the merits of the case, the increase in allowance was not warranted. The distinguishing feature in the application at hand is that these public service conditions have applied to the employees in question for a considerable period of time. What is being requested by the Unions is that these provisions remain as part of the Award as opposed to the argument that employees, who had either never received the allowances or who had received 26 November, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 667 allowances at a much lesser rate, be granted public service allowance rates (as is the case in the matters cited by the Crown). While the Commission is aware of the retention of "general standards'.' guidelines which had been mentioned by the Comm1ss1on in the aforementioned decision (1973, 84 QGIG 1230-1231 ), the situation at hand is a distinctly different situation from those referred to by the Crown. While there may be some similarity in some of the issues contained in those previously mentioned matters and the case at hand, the pivotal distinction goes to the factual situation of the Awards and Industrial Agreements in question. They currently contain provisions which have been part of those instruments for a long period of time. In summarising its submissions, the advocate for the Crown drew the Commission's attention to the fact that the Public Service Management and Employment Act 1988 has application only to "officers" of the public service. The distinction was drawn between "officers" per se and "employees" of the Crown. Reference was then made to the manner by which such "employees" may be appointed to positions with the Crown's service. In all, there appears to have been in existence a variety of conditions and practices applying to Crown employees. The manner in which such procedures were utilised appear to have varied widely. An example, as cited earlier, would be the Department of Transport where a general policy existed whereby public service travelling allowances were paid to all employees. It was claimed, however, that the Crown, were it successful in its application, would ensure, using the above example, that the Chief Executive of the Department of Transport could determine what constituted "reasonable transport, accommodation, fares and meals costs to the employees and compensate accordingly". The Crown claimed that, for new employees who would not be recipients of public service conditions, Departmental Chief Executive discretion for the granting of allowances would operate in lieu of the current provisions contained in the Awards and Industrial Agreements, the subject of this application. It was put to the Commission that, in many instances, where discretion was required, public service allowances were paid. In the case of locality allowance, however, such a scenario was not an option. It was proposed by the Crown that in lieu of locality allowances, various divisional district parity provisions currently in the Award would apply, at a considerably reduced monetary amount. The submissions detailed do not contain each and every part of the claim made by the Crown, but all submissions made have been carefully considered by the Commission. In their response, the Unions (specifically the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees; the State Public Services Federation Queensland Union of Employees; and The Australian Workers' Union of Employees, Queensland) opposed the claims made by the Crown in this regard. At the outset, it was claimed that the Unions, who had been negotiating with the Crown for the creation of this Award for some period of time, were only advised during 1993 that such public service provisions were proposed by the Crown to be removed from the Awards and Industrial Agreements in question. The primary objections of the Unions went to the following grounds:- First Award Principles; the historical and legal nexus of the condition_s; inconsistencies regarding departmental practices; the public interest and the possibility of the creation of further anomalies were current Award and Industrial Agreement provisions removed as part of the amalgamation process of these instruments. On the question of First Award Principles, reference was made to the general principle of retaining existing rates and cond1t1ons for employees being covered by a new Award. An extensive historical perspective of relevant conditions contained within Award and Industrial Agreement provisions the subject of this application was put to the Commission. An example of such perspective was the commentary from the Public Service Award - State (as at 8 August 1987) where the following reference is made:- "The provisions of the Public Service Act 1922-1978 and the regulations made thereunder shall continue to apply to the employees or classes of employees to which this Award applies where such Act and Regulations are applicable, save insofar as the conditions of employment and the remuneration to be received by such employees or classes of employees affected by the provisions of this Award.". The submissions were made for the purpose of highlighting the nexus between conditions applicable to the Awards and Industrial Agreements under question and a forerunner to current Regulations, the Public Service Act 1922-1978 and Regulations thereto. Reference was also made to the extensive period of time over which such conditions existed in the subject Awards and Industrial Agreements. Coupled with the historical account of the provisions in question, advocates for Unions also pointed out anomalies which might occur were the Crown's application granted. (p. 147-149 transcript) It was submitted that the Awards and Industrial Agreements contained public service conditions which were, in the main, existent at discrete workplace environments. As such, it was submitted that the continuation of existing allowances and provisions would not create administrative difficulties. The Commission made enquires of the Crown concerning the degree to which such public service allowances were paid to Crown employees and the manner by which such payments were paid. In general, the response from the Crown was as follows:- Locality Allowance was utilised primarily by employees in the following areas:- Public Service Award - State Part VI, clause 61 (Store persons, etc. Administrative Services Department, TAFE- TEQ, Department of lands, Department of Primary Industries, Department of Transport) Employees of TAFE-TEQ. Travelling Allowance was utilised primarily by employees covered by:- Cost Clerks and Timekeepers' Award - State Government (Department of Transport) and Public Service Award - State, Inspectors, Transport Division, Department of Transport - Industrial Agreement. Motor Vehicle Allowance was utilised primarily by employees covered by:-- * Civilian Testing Officers - Queensland Department of Transport - Industrial Agreement. To a lesser degree, Transfer Expenses applied to some Crown employees as well as Five Weeks Recreation Leave; Short Leave of Absence. Meal Allowance in the areas of employees covered by the:- Public Service Award - State, Inspector, Transport Division, Department of Transport Industrial Agreement; Public Service Award - State Part VI, clause 61 (Store persons, etc. Administrative Services Department, TAFE- TEQ, Department of Lands, Department of Primary Industries, Department of Tran sport) Employees of Administrative Services Department; Public Service Award - State Part VI, clause 61 (Store persons etc. Administrative Services Department, TAFE- TEQ, Department of Lands, Department of Primary Industries, Department of Tran sport) Employees of TAFE-TEQ. Leave for Study and Examination Purposes has been infrequently utilised. From the information supplied by the Crown, the above represents an overall picture of the degree to which such provisions were accessed by employees. The manner in which such allowances were paid would appear to need attention by the Crown. -- 3 of 5 -- 668 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [26 November, 1993 The Commission sought further information from the Crown as to its intention as an employer to pursue Enterprise Bargaining with its employees through their appropriate employee organisations. The response from the Crown was that certain discrete operational units of Crown employment would be considered under the Enterprise Bargaining Principle. Of interest to this application was the fact that many of the areas mentioned for future Enterprise Bargaining considerations by the Crown would include persons covered by the proposed Award (e.g. the operational areas of the Department of Education; the whole of the TAFE-TEQ organisation; areas of the Department of Transport). More specifically, classiiications within this proposed Award which would be affected by the Enterprise Bargaining process would include Store persons (T AFE); Cleaners (Department of Education); Teacher Aides (Department of Education); Police Liaison Officers (Queensland Police Service) and Cost Clerks and Timekeepers (Department of Tran sport). I have determined to continue conditions of employment pertaining to public service Regulations (for existing and new employees performing the same duties) which are contained in the Awards and Industrial Agreements to be amalgamated into the proposed Award for the following reasons. The claims in question do no more than seek to have existing Award and Industrial Agreement conditions continued under an amalgamated Award. In the case of Part VI employees (Public Service Award - State) those employees identified as receiving public service conditions detailed not only in Part VI but also in Part IV of the Award (as per Exhibit 35) should continue to receive such conditions as would new employees performing the same duties. Previous decisions of the Commission which have been put to the Bench in this matter, whilst not binding in regard to my determination, relate to factually different situations (as has been stated earlier in this decision). The circumstances of this case are unique. To accept the Crown's submission would lead to a situation (in the case of locality allowances, for example) where employees, performing the same work, living in the same locati_on and enjoying identical Crown employment status would receive considerably different remuneration. Such a situation has the potential, in my view, to create disharmony and discontentment. This would not represent a sound industrial relations outcome. Further, in situations where one employee was entitled to receive public service conditions and others in similar circumstances were dependant upon the Chief Executive's discretion as to appropriate rates, the potential for anomalies to occur throughout the system generally is increased. Despite concerns on the question of equity which I have already expressed, the general principle of reducing Award conditions deserves comment. The public service provisions which have formed part of the Awards and Industrial Agreements in question have existed for many years. It may well be that such provisions have largely been inserted into such instruments by consent. This, however, does not diminish their strength in any way. They are as enforceable as are any other Award provisions which may have been inserted into an Award by arbitration. There would need to exist a sound and strong reason before the Commission would begin to consider their removal from such instruments. In this case, this has not occurred. The Crown submitted that the proposition they were pursuing of not extending public service conditions to new employees had been implemented in the Regional Health Authorities Employees' Award - State. The SPSFQ, for the purpose of clarification, made submissions on their view concerning the aforementioned Award provisions. They stated that there were ongoing negotiations between the Health Department and Unions concerning not only preserving existing public service conditions for current and new employees, but extending such conditions to all employees covered by the Regional Health Authorities Employees' Award - State. The discussions, I understand, were not on an ad hoe basis, but formed part of an understanding reached between the parties during the course of implementation of that Award. Comments made show that these negotiations are currently being conducted. Contemporary industrial relations focuses more on direct negotiations occurring between employees and employers with resultant benefits for both parties. While I accept that this has occurred in this instance, I would encourage a process which saw the parties pursue, through enterprise bargaining (as is being specifically mooted for employees in operational areas which are the subject of this application) changes which best suit the needs of the enterprise in question together with the specific needs of employees. Issues such as the applicability of locality allowances, for example, may require a more detailed analysis by both employer and employee. The Commission had no information betore It which would enable an informed view on the topic to be adopted. While this issue was included in the general submission by the Crown on public service conditions, it is my view _that a much more substantive review would be required betore a determination could be made, at any level, on this issue. Having considered all submissions made on this component of the claim, I would determine that a continuation of the applicable public service clauses be retained for the identified employees in question in an appendix to the Award. For the purposes of clarification, given that this particular issue has been of a complex nature, I would put simply the decision I have made on this point. In the Awards and Industrial Agreements where specific reference has been made to public service Regulations, these will be retained for existing and new employees engaged in work of the same nature. In those areas where there may not be specific reference to public service Regulations, but where it is clear and unambiguous that the employer has interpreted an Award in such a way as to directly link an entitlement to a public service Regulation (and only in such cases which have been identified in Crown Exhibit No. 35) should such an entitlement continue. This latter scenario should not be seen as extending such provisions beyond the limits which I have set. I see no difficulty in maintaining current wording as exists in Awards and Industrial Agreements to which such provisions apply. There would need, however, to be some amendments made regarding the appropriate Act from which such Regulations are derived, together with appropriate modernised phraseology _where applicable. Special mention would need to be made In the attachment to the Award for those Part VI employees which I have identified. The granting of such provisions by the Commission in no way affects the power of the empowering body to determine or vary the applicable rate or condition under the Regulation, but if such a rate or condition is varied, these provisions ensure that employees covered by the proposed Award receive the benefit of the variation. Re: (2) Award Modernisation Clauses (Clause 6.1 of Crown's application) I have determined that the clause as proposed by the Crown should stand. Such a clause seeks to ensure that efficiency and productivity improvements occur as a result of eliminating demarcation between occupational groups within the same remuneration stream and classification level. This would occur upon certain conditions being met. These include appropriate training and qualifications for employees; disputes being dealt with in accordance with the Grievance Procedures/Settlement of Disputes clause contained in the Award; and certain understandings concerning job redesign processes which are scheduled to be completed by 30 June 1994. Specific concerns have been raised by The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (FMWU). These relate to employees who work as cleaners and teacher aides who are to be translated into the same classification structure in the Award. The concern of The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees is that proposed interchangeability of duties may adversely affect teacher aides. Whilst both groups of employees perform important jobs, it was claimed that each job was distinctly separate from the other. The apprehension of FMWU went to possible anticipated results whereby one group of employees may be disadvantaged through the job redesign process. The Union would prefer to see a situation where employees agreed to such changes. I have acknowledged such concerns in my decision from the Bench. However, while the clause as proposed by the Crown stands for the purpose of the Award, in this decision I state the following:- ! would direct the parties to report to the Commission during June 1994 (a specific date will be set closer to that time and the parties will be notified accordingly) on the following points:- general utilisation of the Award Modernisation clause as it applies to the groups in question; 26 November, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 669 information concerning the workability or otherwise of such a clause in this specific area; any other concerns of either party in relation to the provision. . I reiterate the views I had expressed during my initial dec1s1on from the Bench. The Union could seek to review the provisions formally if there are sound reasons for believing that employees are being unduly _disadvantaged by such a provision. I should state that such a provIsIon requires a certain period of time in which to be implemented properly; and time is also needed for employees to become familiar with somewhat changed roles. ~e: (3) Cleaners - Whether the Employer can direct a part-time employee to become a full-time employee (Schedule E 5(b) of the Crown's application) ' I have rejected this claim by the Crown for the following reasons:- The Crown submitted that i_n order "to enhance the efficiency and effectiveness of cleaning operations particularly in the Department of Education" part-time cleaners could become full-time employees at the direction of the employer. Reference was made to facilative arrangements which resulted from the introduction of the 38 hour week for cleaners in 1991. Further reference was made to an Industrial Agreement which currently exists between the Department of Education and the Queensland Teachers Union of Employees which provides for voluntary and involuntary return to tull-time teaching. Further, the Crown submitted that The Federated Miscellaneous Workers Union of Australia Queensland Branch, Union of Employees and the Crown had negotiated a max1mIsatIon of. hours po_licy for cleaners whereby there was mutual recognition that It was desirable to maximise the hours of existing employees at specific locations. In the Crown's sub_missions, occasions arise at 1 articular workplaces where It would be more beneficia for an employer to be able to direct 30 hour per week part-time employees to work full-time. Reference was made by the Crown to a condition of empl_oymen_t which exists within the Department of A_dmin1strat1ve Services whereby the employer, upon the g1vIng of one week's notice, can direct a part-time employee to work full-time. Be that as it m_ay, a provision is proposed in this Award by the _F_MWU which permits an employee to take up a full-time posItIon, but only of their own volition. I acknowledge that. there are agreements in place between certain parties which permit the transition from part-time employment to full-time employment and I have considered the situation where employees, as a condition of employment, are aware from the outset that they may be required to alter their status upon the giving of one week's notice by _the employer. They_ are totally different questions, however, trom seeking arb1trat1on by the Commission to alter con_ditions for exiting employees where, on an "as needs" baSIS, the employer can direct employees to depart from one contractual arrangement to another. The earlier arrangements are consensual employment arrangements· the proposed clause differs markedly. ' I am aware_ of the fact that the position of cleaners employed 1n Schools Is to _be considered as part of the overall focus on Enterprise Bargaining_. As such, this particular issue may well form part of those d1scuss1ons and due consideration would then presumably be given to issues which may genuinely affect this large g_roup of female employees in conjunction with that I perceive to be real productivity and efficiency concerns expressed by the employer. Re: (4) Non-absorbable Allowances Given_ the decision . I h_ave made concerning the abovement1oned question, this particular claim becomes detune!. Re: (5) Leave Credited as Service This provision, it is claimed by the Crown, has never been an Award provision for employees covered under this Award. It is therefore distingui_shable from other public service provisions which I have determined to retain. As such, I reject this claim of the Unions. Translation Committee All parties were in agreement that a Translation Committee should be established to al_locate new or previously award-free employees to the appropriate streams and classification and remuneration structure, amongst other things. The Commission would fully encourage the formation of such a Committee. Rescinded Awards Attachment A contains the list of Awards and Industrial Agreements which were rescinded upon the granting of the new Award. Conclusion The Award, as amended, was approved by the Commission on 12 November 1993. The operative date for the implementation of the Award was 12 November 1993. I am cons_cious of the fact that the final Award document will not be f1nal1sed until some days after the implementation of the Award, however, I have been acutely aware of the extensive time period taken to finalise this Award. For reasons which are incorporated in this decision I have been concerned that the group of employees covered 'by this Award have been "on hold" as it were while their public service counterparts have been receiving enhanced wage rates. Once issues were clarified between the parties and it was clear that in some areas the Commission was required to arbitrate, it has simply been a matter of ensuring that an outcome was torthcom_1ng as soon as possible. This was, from my viewpoint, in the best interests of all parties concerned. The amendments that are required to the document, as a result of my decision, are not complex and I would anticipate a speedy release of the Award. I commend all parties for the effort which has been extended in bringing this matter to finalisation. I Order Accordingly. D.A. SWAN, Commissioner. Appearances:- Mr M. Hawkins, Department of Employment, Vocational Education, Training and Industrial Relations. Mr M. Vining, for The Australian Workers' Union of Employees Queensland. ' Ms P. Rogers, for The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees. Mr G. Rennie, for the State Public Services Federation Queensland Union of Employees. Mr _H. Lawrence, for the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Mr N. Shepherd, for the Merchant Service Guild of Australia Queensland Branch, Union of Employees. ' Mr A. Reid, for the Australian Institute of Marine and Power Engineers' Union of Employees, Queensland District. ATTACHMENT A Award. for Certain Employees of the Department of Primary Industries employed at Regional Experimental Stations Research Stations, and Animal Health Stations. ' Award for Employees in the Intellectual Handicap Service - Department of Health (Part "B"). Civilian Testing Officers - Queensland-Department of Transport - Industrial Agreement. Domestic and General Staff Award - Halls of Residence - State Government. -- 4 of 5 -- 67 0 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (26 November, 1993 Domest ic Employees - Stat e M igratt on Ho stel, Brisbane - Industrial Agreemen t. Employees Employed on M otor Ve ssels Owned a~d Operated by the Fishe ries Research Branch, Department of Primary Industries - Indus tr ial Agreement. Employees on Survey Launches - Department of Harbours and Marine - Industrial Agreement. Farm Su pervisors (Depart men t of Primary Industri es) Award Cost Clerks and Timekeepers' Award - State Government Gardeners - D1v1s1on of Institutional Gardens, Department of Health, Chermside - Ind ustrial Agreement Gr aded Foremen (Department of Work s) Awa rd - State Herd Recorders' Award - Department of Pr imary Industri es Hydrograph1c Survey Emp loyees - Department of H arbours and Marine - Industri al Agreement Pol i ce Trac k ers' - Industrial Agreement Public Serv ice Award - Sta te - Inspectors, Transport D ivision, Department of Transport - Industrial Agreement. Queen slan d Government Hydrau lic Laboratory, Deagon Department of Harb ours and Marine - Ind ustri al Agreement Secur ity Employees' Award - State Government Shark Net Makers and/or Repai rers - Department of Harbours and Marine - Industrial Agreement T each er Aides , Department of Edu cation Award - State Technical Operators - Department of Admin is tration Serv ices (Queensland Cultural Centre) - Industrial Agreement Operative Date: 12 November 1993 Decision - Rescission and New Award Released : 16 November 1993 ##l#######l## ########### ###l##### # #!t# ############# ## 26 November, 1993] QUEENSLAND GOVERNMENT INDUSTRlAL GAZETTE 671 I -- 5 of 5 --