Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Queensland Confederation of Industry Limited, Union of Employers and Others [1993] QIRC 20 (1993) 142 QGIG 325

324 QU EENSLAND GOVERNMENT INDUS TR IAL GAZETTE [ 12 March, 1993 12 March, 1993) QUEENSLAND GOVERNMENT I ND U ST R IA L GAZETTE 325 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lnd11slrial Relations Ac/ 1990 s. I 0. 12 - appl ication for variati,)n Federated Engine Drivers' and Fi remens' Association of Australasia Queensland Branch, Union of Employees AND Queensland Confoderation of Industry Limited, l lni on of Employer.; and O t hers (No. R 172-3 of /989) ENG I NE DRI VE RS' AWA RD- STA TE CHIEF I NDUSTRIAL COMMISSIONER LEDLIE 26 February l 993 Wage Fiirn tion Princ i ples - Rcstrucluring - Application of Award Clause - Industrial Agreements - Civi l Contra cting Rates of Wages - Arbitrated Matter - New Applica ti on o f Award Cl au se Gran ted - Civil Contracting Wage rates Refused. DECISION Currently this Award has a lengthy Application clause, devel oped over a long per iod of time and not easily read. It is co n ceded that thi s Award ha.s a lim i ted contin uing purpose in that:- [. essen t ially al l employees previously working un der that Award and empl oyed within any factory o r manufacturing or sim i lar premises have had th eir coverage rem oved to the Engineering Award - Stale, Appendix H - Eng i ne Drivers; and 2. employees engaged in earthmoving pl ant and equipmen t have had their cov era ge removed to the Civi l Construc ti on, Operations and Maintenanc e General Award - State. to the e:-.1ent of its prescribed area of oper.1tion. Further, proceed ings have been continuing before a Full Benc h of the Commission to detem1inc whether industry award coverage should result in respect of Joint Boards a nd Loca l Authorit ies within the meaning of the Local Government Ac1 1936-/986 and if so, the nature of that coverage. Decisio n had been reserved on that matter. Aside from the foregoing, the purpo ses for which the instant Aw ard is perceived by the applicants to have continuing r elevance is in relation to a numb er of areas identified in a draft order seek ing to vary clause 2 (Applicat ion of Award). It is intended th at the award have a life only until 31 December 1993 from which date it is ex pected to be obsolete and subject to rescission. 1l1e areas identified in the draft order included a number of industrial Agreements claimed 10 have so me refe re nce back 10 the Award . The applicati on also seeks to apply the minimum rates adjustment process in respect of c lassification s which wou ld be seen to be relevant in thi s Award for the duration of its ex istence. In addition to the p ositions already com m ented upon the situation as to the various areas of proposed coverage seem to be as follows:- [. The Cr own as to employees of the Queensland Forest Service is to be i ncluded by agreement t ogether with a Sched ule 4 outl i ning c lassificat ions and wage rates. It was intended t hat these have interim operation pending the finalisation of an award being created t o encompass certain Crown employees . The in clusion and the proposed Schedule are both approved. 2. Emplo y ees of Joint Boards an d Local Authorities wi thin th e meaning of the Local Government Ac/ 1936 - /99/ are the s ubject of fu ll bench proceedings from which the question of th ei r award cove rage will be detennined. It would be inappropriate to deal with this question other than to ensure th:,t .: xisting award cover is protected pending the outcome of that matter. This seems unnecessary as clause 2 of the aw a rd wa~ varied from I January I 992 to so provide when Contractors and Sub Contractors to such Counci ls were removed to the C iv il Construction Award . The proposal for the applicant is to set aside existing classifications and rates in clause I 5(3) and ( 4) in favour of adopting those now applicable under the Civil Constru cti on Etc. Award. Whilst there are distinct s im ilarities in the nature of the class ifications it does n ot follow that the latter should be adopted ahead of a Fu ll Bench decision on the grounds that Cou ncil employees operate similar or the same equipmen t and also p erforn, some construction work. Any reconsiderat ion of classifications and wages which incorporates Mini mum Rates Adjustments should be consisten t with restructuring th e award . The existing rates wi ll be retained pending the decision referenced. 3. Employees of Aboriginal Councils within the meaning of the Comm11nily Services (A borigines) Ac/ 1984- 1990 and o f Island Councils within the meaning of the C ommunity Service s (Torres Strait) Act 1984 - /986 arc in a similar position to those relat ing to Jo int Boards and Local Councils. For the reasons also exp ressed it is inappropriate to adopt t he propositi on of Civil Cons truc t ion dnssificat i ons and rates . 4. Consoliated Rutile (Sand Mining Operations) a rc sought by the appli c ant 10 be induded on the premise that they are already bound by the awa rd. Th is is rej ec ted by the Company whose representative pointed ou t that the Award docs not app ly in respect to " . engine drivers in .metalliferous min es in the South ern Division". The Company is pursuing award restructuring with all unions on the Island with a d ispute also having been found under the federal jurisdiction arising from an A WU log . Both of th ose matter.; seem suspende d al present. There is also in existence a l\·1i ning Engine Drivers' Award - Southern Division wh ich has not been the subject of attention in re cen t years . It was conceded to be incapable of ctwering t he work under discussio n as it makes no provision for the types of clll$Sifications in use in the mineral sands indu stry . I was given to understand during the proceedings that the 1'·1ining Engine Drivers' Award - Southern Division was no longer in exist ence it being c laim ed tha t it had been rescinded. Enquiries reveal that th is is not so with the result that the Stale Award before me clearly excludes metalliferous mining in favour of a Mining Engin• Drivers' Aw ard - Southern Division which does not cover the work in question . I am aware that in conj unction with ot her unions . informal agreements have operated at this establishment for many years. 7 -- 1 of 2 -- 326 QUEENSLAND GO VERNMENT INDUSTRIAL GAZETTE [12 March, 1993 In those circumstances, and in isolation from the award restructuri ng process in the particular industry it is inappropriate to impose separate award coverage for one cate gory of employees. 5. Employees engaged in th e Bui Iding Construction In dustry are proposed to be covered when engaged on work other than as defined in the Civil Construction, Operations and Maint enance General A ward - State . Little was put before me on this matter excepting that this Award. at present, con t in ues to apply to building c onstructi on sites. The question was not argued for it seemed to be accepted that work in th e bui lding co nstru ction industry was not envisaged as being under the Civil Construction Award. If this was intended I am not sure that it has been achiev ed. It can be seen that:- (i) (i i) (iii) (iv) TI1e title of the Award " Civil Construction, Op erm io ns and Maintenance General Award - State" omiLs any reference to building construction, which i ndicates tha t building c onst ruction was not intended to be within th e Award. Clause 1.2 which sets out the <.'Ov.?rage of th e Award in a detaikd way inc l udes subclause (7) which reads :- "(7) All classes of engine drivers, crane dri vers and any other workers for whom rates of pay are prescribed in clause 3.3 e ngage d upon or assisting in work incidental t o th e use of earth moving machinery .". Clause 1.3 d e tails exemptions to the A ward including .1.3(1) which qualifies clause 1.2(7) above in that the award does nol apply to "employees or em plo yers who are engaged in work of maintenance servicing etc . co ver ed by clause 1.2(7) which would otherwise be covered by the Engineering Award - Stale". Clause 3. 1 (Definitions) does not directly dea l wi th any spe.:ific wording of clauses 1.2 (Award Cowrage) and 1.3 (Exemp tions) , though it does contain "for the purposes of this award" a definition of "Cons t ruction. recon stru ction. alteration! repair and/or mainknance w ork". It reads:- shall mean and include all work perfonne d on si te on construction, reconstruction. alterat io n. repair and/or m(1intenance of works covere d by the award in clud ing . " and thereallcr lists an array of civil project activities as to railways, wat er supply. ro adworks , whan•es, p ie rs , jetties and land reclama1i on. It then contains a proviso reading :- " Provided further that this definiti on shall exclude all building construction and maintenance work where it is done by emp l oyees of employers in th e Building Industry who ordinari ly eng.1g~ person s u nd er the Building Trades- men's (O th er than Plumbers) and Uui lders· Labo urers' Comtruction Award - State." Whilst bui lding construction work (not defined in the Civil Construction Award but with established definitions in other awards) does not rest comfo rtably with the categories of largely civil pr ojects referenced above . it can be see n that the exclusion is quite restrictive. It does n ot offer any exclusion to co ntrac tors or sub con tract ors t o emp loyers in the Building Industry (or to their emp loyees) unless those Contractors or Sub Contractors are " . Employers in the Building Indust ry who ordinari ly engage person s under th e Building Tradesmen's (Other than Plumbers) and Builders· Labourers' Construction Award - State. Though no information is before me in this proceeding I would haw thought that the employees in the bu ilding construction indu stry to which the instant c laim was directed are more likely to be emp loyees of (Non-Building) Con tractors and Suh Contractors than direct employees of a Build ing Indust ry employer. Wha t ever be the situation I am far from sat is fied that a remcdv to any outstanding pro blem is to generally ad o pt in this awa rd the provisions of the Civil Cons1ructi ,)n Etc. Award as prop os ed in item 2 of the drail order. In the form expressed abow lhe Bui lding Industry was exempted from the Civ il Co nstru c tion Award whi ch was effecti v ely made by consent. Building industry employers we re not represented in these proceedings nor from the transcri pt does it appear that th ey took part in the conferences ca lled. It is appropriate t hat the y be giv en t hat opportunity prior to any decision being made to adjust ra tes of this Award to the eKtent that th ey currently apply to employees in the Building Indus try who ordinari ly engage persons under the nam ed Building Industry. The parties shou ld confer. This matter can be relisted by request. The draft order cited numerous industrial agreements. Mo st of th ese provide for a small numb er of classifications and provide r ates which, historically at least , were in advance of those in the parent Award. In some in.st an ces th e wording of t he classifications varies from that used in that Award. To the extent that the employer parties to these Agreements operate factories and similar e stabl ishments within the confines of perimeter fenci ng, the existing classifications in those Industrial Agreements seem to be quite outdated having r egard to the develop- ments which have occurred by which Appendi x H - Engine Drivers has become part of the Eng i nee ring Award - State . The continued relev ance of the classifications in those Industri al Agreements may be open to question, though th e re is no difficulty in retaining th em in thei r current fonn in those Industrial Agreements. Appendix H referenced provides an ave.nue for modemising th e c lassificat ions and rates of such Agreements, or altematively would apply if an Agree- ment lap sed. If in any instanc e the Agreemen t class ifications are not reflected in Appendix H. t hat would not appl y. In those circumstanc~s I do n ot see that recourse should be had to the wage ra tes of the Civil const ruction, Operations and Mai n tenance General Aw ard -- State, if I correc tly read that as the i nten t ion and purpose of item 2 of the draft order. Uncertainty would preva il if parties were a.~ a r esult required to dctem1 i ne an appr opriate classification and wage rate from a menu containing the Indu strial Agreemen t i tself, App endix l·I and then in some instance s. separately t he Civ il Construction Etc. Award. A more appropr iate course is to assess each Agree m e nt and detem1ine its fate either by lapsi ng or variation with certainty in t he outcom.:. The several agreements listed w ill be mentioned in the Application Clause to highlight their existence. Class ifications and rat es of wages contained in 1ho se Agreements will co ntinue to appl y. In almost all c ases the ge neral te nn s of th e Award continue to have app lication . At page 92 of the transcript Mr Coogan clarified that the purpose of the draft order was to ensure that as to th ese Industrial Agr eeme nts the genera l terms of the Award would con tinue lo apply t hrough existing class ifications and wage rates as set out in the ind ividual industrial agreements would continue to operate . I have doubts that this purp ose was clearly r eflect ed in th e drall order. though I agree s uch a r es ult is poss ible. Some di scussions a lso occurred as to the coverage wi t hin this Award of CSR as to its New Fann Sugar Refinery. Currently the Award contains a small sec t io n r ela ting to th at act i vity tho ugh it was put that only one o f the classifications named therein remains cu rrent, nam e ly Engine Driver (Boiler Station). I was made aware that the employer is se.ekin g coverage relat ing to the entity rather th an under various awards. It was e vident tha1 the d iscussion s had not e"1 ended t() an y conclusion . As that sec tion of th e Aw ard does not arise in the draft order pr oposed it is u nnecessary to further deal with it here. It is available to any parties to pursue the matter. As a co nsequen ce of the foregoing a draft variation order is iss ued for co nsiderati on prior to finalisation. In rdation to th e draft submitted earl ier for the applicants it will, as - Item (i) incorporate th e C rown as to the Qu eenslan d Forest Service. ind uding an Appendix ; (ii) and (iii) re t ain , for the pre sent at least . th e existi ng award coverage a.~ to Joi nt Board. Loca l Authorities and Aboriginal Councils. and worded to reflect that used in the va riation which operated from I January J 992 by which Contracto rs and Sub Contract o rs th er eto w ere r emove d to the Civ il Construction Etc. Award: (iv) not i nclude Consolidated R.ut ile Ltd (S and Min i ng Operat ions): (v} include employees engaged m the building industry. ("D1ough t he p osition as to classifications and the adJustrnent of rates remains lo be detcm1 i ned) 12 March, 1993] QU EENSLAND GOVERNMENT IN DU STRIAL GAZETT E Item 2 Specify that parties to the various industrial agree ments listed from (i) thro u gh to (ix) are bound by t he Engine Drivers' Award - St ale e x cept as is otherwise provided by th ose Agree m ents . Item 3 Record th e int ention of the parties to have the Award rescinded from 31 Dec ember 1993. Item 4 Subclau ses (3) and (4) of clause 15 (Wages) w ill not be r emoved in favour of classification an d rates set out in the Civil Construction, Ope r ations and ma i nte n ance Genera l Award - State. The adjustment or otherwise of class ifications and r ates should be considered ha ving regard to outcomes in respect of - • a decision affecting Local Authority and Aboriginal Councils; the further r elisting :is to the build i ng industry: or • any other basis se en to be warranted. An operative date or dat es for t he variation should be determined upon settlement of t he order. Order acco r dingly. L.N . LEDLIE, Chief Industr ial Commissioner. Appearances:- Mr J. Coogan for the Federa te d Engine Drive rs' and Firemens' Assoc iation o f Australasia Queensland Branch, Un ion of Employees. Mr R. Veltmeyer for The Amalgamated Meta l Work ers' U nion of Employees Queensland. (AMWU) Mr D. D 'A rcy witb him Messrs . J. Ludwig and K. Goding for The Australian Workers' U nion of Employees. Queensland. (A WU) Ms K . Ingles for The Veh ic le Builders Employees ' F ederation of Australia. Queensland Branch, Union of Employees. (VBEU) Mr B. P:umenter for th e Crown. f\lr G. Power for the Queensland Confederation of Industry Limited, Unio n of E mployers. (QC!) Mr K. Armst rong for the Local Govemm ent Association of Queensland (Incorporat ed). Ms C. Wrighton for the Metal Trades Industry Association of Aust ralia, Queensland Branch , Union of Employers. (MTIA) Mr J. Ha rdy w i th him Mr G. Anderson for the Aust r alian Mine s and Metal Associated Inco rp orated on behalf of Consolidated Rutile limited. Mr G. Amold for the Mea t and Allied Trades Federatio n of Australia (Q ueensland Division) Union of Employers. Mr S. Beach for Mount Isa Mines Limited. Operative Date : Decision - Application of Award. Rel eased : I March 1993 7 327 l ! -- 2 of 2 --