Elite Chemicals Pty Ltd v The Australian Workers’ Union of Employees, Queensland [2004] QIRC 137 (2004) 176 QGIG 652

652 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 148 – request for help with certified agreement Elite Chemicals Pty Ltd AND The Australian Workers’ Union of Employees, Queensland (No. B123 of 2003) IONICS AUSTRALASIA PTY LTD – CERTIFIED AGREEMENT 2004 COMMISSIONER THOMPSON 29 July 2004 Arbitration – Witness evidence – Clauses to be included in final agreement – 38 hour week – Reduction in wages – Three (3) year agreement – 18.75% increase in wages. DECISION Background This matter first came to the attention of the Commission on 24 January 2003 when Employer Services, on behalf of Elite Chemicals (Elite) notified of an Industrial Dispute between Elite and The Australian Workers’ Union of Employees, Queensland (AWU). The notification was pursuant to s. 229(2) of the Industrial Relations Act 1999 (Act) and sought the assistance of the Commission in the prevention of possible industrial action. The notification was dealt with in D19 of 2003, by Commissioner Asbury. The matter first came before the Commission as constituted on 11 February 2003 following a request by Elite pursuant to s. 148 of the Act for help to make a certified agreement with the AWU. On 4 August 2003, correspondence was forwarded to the Industrial Registrar from the AWU in which it was stated that a final position regarding the terms and conditions of a proposed certified agreement applicable to operators (only) had been presented to Elite. The second paragraph of the 4 August 2003 correspondence stated: “The AWU is currently awaiting a final position form Elite Chemical Pty Ltd, but in the interim it had been agreed between the AWU and the representative of Elite Chemicals Pty Ltd that a formal approach be made to the Commission to have this matter brought back on such that it may be progressed to arbitration pursuant to s. 149 of the Act.”. The Commission subsequently held a further conference on 15 August 2003 to assist the parties in taking negotiations forward, however, it had become evident to all parties at the 15 August 2003 conference that an agreement would not be forthcoming. A joint position was put to the Commission for the exercising of powers under s. 149 of the Act which, in effect, required the Commission to arbitrate on the outstanding matters. The matter was canvassed at page 10, line 22 of transcript between Mr Ben Swan (AWU) and Mr Lindsay Olsson (Employer Services) and the Commission: “Swan: Yes, Commissioner. A couple of procedural aspects to that. In previous discussions between Mr Olsson and myself, it was agreed that there would be no objection to your continuing to hear this matter in accordance with section 149, having been the conciliator under section 148. Commissioner: That was the question that I would have raised. Swan: Yes. My understanding is that there’s no objection to that course being taken, and in terms of the jurisdictional aspects then, the Commission is capable of proceeding. One of the requirements under section 149 is that the parties agree to the conciliator arbitrating. I take that as the case. We’ve certainly heard nothing to the contrary at this stage. Commissioner: I might get Mr Olsson just for the record to indicate whether that is or isn’t the case. Olsson: Commissioner, I concur with Mr Swan’s statements and I’ve got instructions from my client that we’re more than happy for yourself to conduct a 149 hearing in relation to this matter being involved in the conciliation, and it is agreed between the two parties that it will go to arbitration and we’re happy for yourself to conduct those hearings. Commissioner: I think just for the record, in relation to my involvement up to date, it hasn’t been as such where one has been trying to settle from my perspective, for example a quantum amount between the two parties or looking at particular issues. I think what we’ve done to date is simply identify the issues that weren’t resolved and work through – a number of matters were resolved and the ones that weren’t were not subject to any input from myself that’s likely to, in my view at least, to influence any decision that I might make into the future.”. The Commission issued a directions order requiring the parties to provide affidavits and other materials to be relied upon in the course of the arbitration. Agreement was reached between the parties that Elite would present their evidence first with the AWU to follow. Inspections At the request of the parties, the Commission conducted a detailed inspection of the site at 1873 Lytton Road, Lytton on the morning of the hearing proper. The parties worked cooperatively to provide the Commission with the basis of the company’s operations and the duties performed by the operators subject to the proposed agreement. -- 1 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 653 The inspections, in the view of the Commission, were most beneficial and provided valuable assistance in the proceedings, as well as in the deliberations phase. Elite Evidence supportive of the case advanced by Elite was given by Mr Peter Vallance, Mr Kevin Harvey, Mr Paul Bracegirdle and Mr David Eaton. Vallance Mr Vallance, the Managing Director of Elite, having held that position since 1995, gave evidence of being involved in discussions to negotiate a “fresh certified agreement” with the AWU and employees of Elite. He informed the Commission of the company background, the type of product produced, and the market share enjoyed in Australia. In terms of overall staff members, the company had grown from 4 in 1977 to 90 in 2003. In respect of previous wage increases, they have historically been around 2 to 3% per annum in the pre-1990’s and around 4% per annum up to 2001. For the company to remain a sustainable force in the market place, they were unable to agree to the level of increases sought by the operators. It was important, according to the witness, that salaries be fair and equitable, in line with the size of the company. The impact of the claim upon the company which, from Elite’s perspective, would deliver a 30% increase over three years, and would place serious pressure on Elite’s ability to compete in the limited markets and potentially affect job security for a number of employees. Mr Vallance gave evidence to the Commission of a confidential financial nature relating to the business, with such evidence being suppressed under s. 679 of the Act. His evidence-in-chief covered an area of comparison between Elite and various competitors. On the issue of the hour’s arrangement for operators and the proposed wage increase, at page 34, line 40 of transcript, Mr Vallance stated: “Yes, from our point of view this seems to be the main area of confusion as far as these percentage rates are concerned. Our current agreement clearly states it’s a 40 hour agreement, but we find from time to time that the operators appear to be muddying the water a little bit by getting 38 hours confused with 40 hours. We are fully committed to a 38 hour week from the new agreement. However the current agreement as it stands right now is based on 48 hours, and I think this confusion between 38 and 40 hours all the time is actually what causes these variations of percentage. My overall picture is that I look at what an operator at a PO5 level for instance would take home on an annual basis, and at 2004 with an increase in bonus would be approximately $51,400. the AWU’s document is based on a number of $67,554. Now that we consider to be an increase of 31 per cent, plus there’s another couple of 4.1 per cents added on the subsequent years after that. So all up over three years we estimate that to be almost 40 per cent.”. Cross-examination of the witness by Ms Yvette D’Ath covered issues including: • Duties of operators • Comparison of wages and duties between Elite and competitors • Industrial agreements for staff other than operators • Bonus payments to operators • Hours of work • Overseas work offered to operators. Harvey Employed by Elite since 1984, Mr Harvey now holds the position of Plant Manager, having previously worked as a Plant Operator and Supervisor. His evidence went to the operations of the plant and the work performed by the operators. On the issue of production, he detailed the various changes and additions to the plant from 1988 until the present, including maintenance processes. In respect of the impact of the changes upon the duties of the operators, it was stated by Mr Harvey at paragraph 11 of his affidavit: “During this period of time at Elite, the workload has changed with new duties being introduced as old duties have been taken away. Various upgrades to the site were incorporated during the years which ultimately made every ones job easier. Things such as the following: a) Concrete site encapsulation b) Improved lighting c) Better materials of construction d) Better tank farm and plant monitoring through SCADA system e) Improved electrolysis equipment resulting in less maintenance f) More maintenance staff.”. In concluding his evidence, Mr Harvey referred to Appendix 1 of his affidavit which compared the duties performed by employees at a number of listed plants to those carried out by the Elite operators, voicing the view that the Elite situation was that the duties were “substantially less than those duties performed by employees at these listed plants”. A follow on to that was Mr Harvey’s opinion that the remuneration of the Elite operators should be paid at a lesser level. -- 2 of 20 -- 654 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 Bracegirdle Mr Bracegirdle, the Financial Controller at Elite gave evidence relating to the financial impact the various certified agreement proposals would have upon the company. The procedure undertaken by the witness was supported by various graphs (attached to his affidavit) and dissected the company’s business unit’s individual sale performances and projected forecasts. Information pertaining to shareholders’ returns and the reinvestment in capital formed part of his evidence. In assessing the full financial impact of the claim put by the AWU, it was costed as an additional $232,000 about the rates set in the 1998 certified agreement. He gave evidence of the “flow on effect” to other Elite employees of such increases if they were to go across the board. In providing an outline of the total cost of the AWU proposal, he stated at paragraph 8 of his affidavit: “The financial effects are compounded even further during the 2005 and 2006 years with the AWU proposal for increases of 30% in 2004, 4.5% in 2005 and 4.5% in 2005 in excess of commercially sustainable levels for a company the size of Elite Chemicals. The AWU proposal has added costs of $567,000 above the Elite offer and $850,000 additional costs compared to the continuation of the existing 1998 CA rates of 2%. I believe the Elite Chemical proposal of 6.8% of which does not include the 2% of which will be paid to employees as from 1 January 2004 as per the existing 1998 CA plus 4% and 2% a total increase of 14.8% over the three-year period to be a fair and equitable increase that can be sustained by the company.”. Matters raised in cross-examination included: • Payment of 2% per annum bonus to operators (page 99, line 32 of transcript): “Commissioner: Yes, but that wasn’t the question. The question was that they – as a result of them receiving the bonus in a – as opposed to the two percent being paid as a wage increase they’re being disadvantaged? Bracegirdle: Yes, they certainly – they would have received more if that was – if that two percent bonus was factored back into their base hourly rate.”. • Comparison documents – AWU – Elite proposals • Hours of work • Shareholder returns • “Flow on” to other staff (page 110, line 42 of transcript): “D’Ath: Why would you presume that the other 77 Elite chemical employees would be seeking the same monetary increases? Bracegirdle: I believe by offering what we – by accepting the AWU proposal we would set a precent for all other staff. D’Ath: Hasn’t the chloromat employees been operating under either certified or non-certified agreement since 1992? Bracegirdle: To the best of my knowledge – I’ve been with the company since 1988 and they have been under a certified agreement since then. D’Ath: So consequently the company made a choice long ago to have different working arrangements for the two groups of employees at Elite. Bracegirdle: Yes.”. • Elite’s market share. Eaton The final witness relied upon by Elite was Mr Eaton, whose role is that of Operations Manager. As was the case with Mr Harvey, he also commenced work as an Operator, arriving in his present position by way of a series of promotions. Mr Eaton’s evidence initially related to the history of negotiations between the parties in attempting to reach agreement on a replacement certified agreement. From the commencement of the negotiations in 28 September 2001, through until 15 January 2002, no fewer than four (4) draft agreements were tabled by the company and, subsequently rejected by the employees. It was the rejection of the fourth draft, which contained wage increase offers of 5% per annum over a three (3) year period, that signalled the involvement of the AWU in the process. The AWU forwarded correspondence to Elite on 22 March 2002 advising of their intentions to negotiate a new agreement, followed up by the serving of a log of claims in early May 2002. A final offer, in terms of increases to salary, was made by the company which was set out at paragraph 9(a) and (b) of the witness’s affidavit of evidence: “a) Salary – Company has offered an 8.8% increase on hour rates from 2003 rates and has offered an additional 4.0% increase on hourly rates for year 2 of CA and an additional 2.0% increase on hourly rates for year 3 of CA. b) Elite has continued to pay a 2% increase in hourly rate per annum and a 2% annual bonus per annum since expiry of current 1998 CA in 2001.”. Additionally, a range of other issues, many of which were agreed or conceded to, appeared in the same clause. It was Mr Eaton’s evidence that Elite had held discussions in good faith and tried to reach agreement with the AWU and the employees of Elite to terms that they were way in excess of the Food and Drug Store Employees’ Award – Southern Division (Eastern District) 2003. -- 3 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 655 Mr Eaton went into detail in respect of the matters that remained outstanding and gave a company perspective of what would be a position (on each of the items) that would be acceptable to the company. Various appendices were attached to his affidavit, and at paragraph 11 of his affidavit, he made specific reference to Appendix 8: “In Appendix 8, is a summary of the meetings that have taken place between all parties in attempting to reach a fresh certified agreement with the employees of Elite Chemicals and the AWU. As one can see the company have in all circumstances been the instigators of discussions and meetings between the parties and have on all occasions acted in good faith and could not be held responsible for the delays in reaching a fresh certified agreement with Elite’s employees and the AWU.”. An affidavit in reply from Mr Eaton was tendered in evidence and covered a range of matters emanating from the affidavit of Mr Stipis. Such matters included: • Employment duties at Elite • General Plant Operators duties • Miscellaneous peripheral tasks • EB history • Current negotiations • Matters for arbitration • Comparisons to other companies • Employees value recognised • Overseas training/plant commissioning. Mr Eaton was subjected to extensive cross-examination across a broad spectrum of his evidence, including such matters as: • Elite’s rejection of various drafts • Wage offers – including total cost to the company\ • Hours of work 40/38 hour week • Redundancies • Training provided to Operators • Public holiday arrangements • Rosters • Shiftwork – ACTU guidelines • Leave – including sick, annual and long service • General duties of the Operators • Shift loading (page 219, line 10 of transcript): “D’Ath: It is my correct understanding from the evidence that the 24.75 percentage offer, the move from 33 and a third to 24.75, was, in the company’s vie, because of the shift form 40 back to 38 hours a week? Eaton: Um – – D’Ath: That’s why you reduced that loading? Eaton: No. That was because the 33 and a third included a lot of other payments other than only sick leave. It was an over – an award exemption payment. D’Ath: Well, you stated in your evidence yesterday – we went through the exercise by identifying what that 33 and a third per cent absorbed, and there was nothing additional that’s been paid back to the employees as a consequence of the removal of that 33 and a third – is that correct – other than a movement to a 38 hour week? Eaton: There’s been substantial increases in hourly rate, and other concessions made that we spoke about yesterday also.”. • Offer of Australian Workplace Agreements (AWA’s). AWU The AWU relied solely upon evidence given Mr Michael Stipis, having withdrawn an affidavit provided by Mr Scott Ailey. Stipis In evidence, Mr Stipis stated that he held a Bachelor of Science from Sydney University and had been employed by Elite for almost eight (8) years currently in the position of Level 5 Operator. He gave a list of duties that were performed by all operators and also identified testing procedures that were performed at three (3) hourly intervals whilst on shift. A feature of his evidence was the historical information relating to the industrial coverage of the operators including circumstances prior to the first certified agreement in 1999. An exemption rate was introduced in 1992 which was 33 1/3% above the rate contained in the Award. At paragraph 8 of his affidavit, he stated: “The 33 1/3% shift loading was ‘defined as covering (a) shift penalties, (b) to move from 38 to 40 hours and (c) meal allowances and other minor penalties. This ‘definition’ is far too vague and there has been no precise definition of these ‘other minor penalties’ documented in any succeeding Agreements, since it was introduced in 1992”. In 1999, the Operators were offered a non-union agreement which he claimed was accepted for the following reasons identified in paragraph 9 of his affidavit: -- 4 of 20 -- 656 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 “a. They agreed to specific minimum manning levels for the plants b. We were assured that the 2% wage increase offer was the going rate in the Commission and they were offering a bonus scheme for each year, which was calculated on efficiencies and downtime and 2% was the maximum bonus that could be achieved. c. That the company agreed to reassess the productivity of C2 once fully operational at the next EBA (which has not been addressed.”. In the period from 1 January 1999 and 31 December 2003, Operators’ salary moved only at the rate of 2%, compared with average increases of between 3% and 3.5% per annum. Current negotiations for the (proposed) new agreement began in October 2001 and had continued in one form or another until the matter was referred to the Commission. Mr Stipis gave evidence that a “fourth and final offer” was made by the company on 9 January 2002 which included a profit share component and increases of 6.5%, 4.5% and 4.5% which was conditional on the acceptance of three (3) terms. Those being: • no third parties to the agreement e.g. unions, advocates etc. • removal of any reference to any awards • acceptance must be by 15 January 2002. In November 2003, the company forwarded correspondence to each employee which identified firstly the second anniversary on the attempt to reach a new EBA and secondly offering the opportunity to enter into individual contracts through the medium of Australian Workplace Agreements (AWA’s). In terms of the current situation, there were, according to the evidence, a number of matters identified that were to be subject to arbitration. Each of the matters were covered extensively in the witness’ affidavit, with much emphasis placed upon the base rate, length of agreement, date of operation, shift allowance (penalty), 10 minute change over (paid), payment of an amount relating to installation of new plant, the multiplicity of tasks and overseas work. Additionally, the company’s intention to move from a 40 to 38 hour week was of concern in that the take home pay would be significantly reduced. Mr Stipis gave extensive evidence in respect of the duties performed by the operators and the time associated with each of the tasks. In Mr Stipis’ affidavit in reply, he took exception to evidence provided to the Commission by each of the respondent’s witnesses, including such issues as: • Valance • capital expenditure • company’s assessment of wage increase being sought • Bracegirdle • misleading evidence on wage increase • labour costs • Harvey • staffing levels • maintenance requirements • operators duties • general • shutdowns • Eaton • shift allowance • training • sick leave and public holidays • new plant • 38 v 40 hour week • rostered overtime. Cross-examination Cross-examination of the witness by Mr Olsson was extensive, covering a range of topics, including: • operator – qualifications • operator – duties • workplace health and safety representative • 1999 Agreement (page 304, line 58 of transcript): “Olsson: Mr Stipis, you were one of the employees covered by the 1999 agreement, weren’t you? Stipis: Yes. Olsson: And obviously yourself or the employees were happy at the time of the agreement which was put to you because it was signed and certified by the Commission, wasn’t it? Stipis: We weren’t happy about it. We’re just sick of the delay.”. -- 5 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 657 • company offer • adherence to the 1999 Agreement by Elite • bonus paid to operators • expenditure on plant • Union claim (page 352, line 10 of transcript): “Olsson: But there has been a change, hasn’t there, from what you’ve said in your affidavit in relation to the catch-up being the claim for 10, five and five. You now agree that that’s not the case and that what you are seeking is between 20 and 25 percent for year 1, 4.1 percent for year 2 and 4.1 percent for year 3? Stipis: Yeah, I think where – where the difference is because going from converting back to a 38 hour week, four hours overtime instead of – and that’s where I believe that the increase has come from.”. • relevance of the Award to operators • wage increase sought by the employees • negotiations between the parties • rejection of the Elite offer • average tenure of operators • sick and annual leave • shift loading • shift change payment • comparison of skills between Elite operators and opposition firms • overseas work related trips by operators • upgrade of plant • evidence of Mr Bracegirdle – wage predictions • impact of a 25% increase (in the first year) on the company • annual leave – hours entitlement • shutdown duties • operators duties • reduction of weekly hours from 42 to 38 hours. Submissions Elite Written submissions were filed by Mr Olsson on 2 June 2004 which went to a range of matters including: • Agreement by the parties for a single Commissioner to determine the matter by arbitration • Regard of the Commission to sections 3 and 320 of the Act and State Wage Principles • Opposition to proposals Re: sick leave, bereavement leave, first aid, union encouragement and ACTU Guidelines for Shiftwork, all of which seek to establish new standards, significantly in excess of the Food and Drug Stores Employees’ Award – Southern Division (Eastern District) 2003 and the Act • Wage increases • AWU – seeking between 24.1% and 29.1% increase to hourly rate over a two year period • Elite – offer of 6.8% (not including 2% paid from 1 January 2004) plus 4% and 2% totalling 12.8% over a three year period • Elite offer to lift sick leave increase from 64 to 84 hours per annum • Union encouragement provision sought exceeds the Act and the model clause • Length of agreement should be three years which gives certainty to both parties and prevents premature loss of time associated with negotiating an agreement -- 6 of 20 -- 658 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 • Reduction of hours from 42 to 38 per week will allow for the employment of two additional employees. 12 hour shifts would continue to be worked • Acknowledgement that employees would receive less gross wages for working the 38 hour week, however they would have “more worker friendly hours of work” • Average wage – calculation • Definition of a week’s pay • Flaws in the AWU argument in making a comparison between the wages and conditions of Elite employees and those employed in similar industries in both Sydney and Melbourne • Shift work allowance – the offer of 124.75% is more than a reasonable offer when compared to a range of 12 to 15% which is commonly found in Awards and Agreements • Shift change over – the claim for 10 minutes at double time is disputed • Annual leave – offer is for payment at the hourly rate as defined in clause 3.3.1 including shift allowance and a loading of 17.5%. In conclusion, at paragraph 8 on page 19 of the submission, Mr Olsson stated: “It is respectfully submitted that having further regard to Mr Stipis affidavit and supplementary affidavit and evidence given before the Commission, I say that as given in evidence by Mr Vallance, Mr Harvey, Mr Bracegirdle and Mr Eaton, I submit they were very credible and evidence was given in a clear concise and unequivocal manner and weight should be given to the Applicant of which refuted the majority of evidence given by Mr Stipis, as opposed to Respondent, Mr Stipis who’s evidence was evasive, contradictory and unclear as being the most credible evidence given throughout these proceedings.”. AWU Written submissions filed by the Union on 22 June 2004 were extensive, comprising of 53 pages, in addition to including two attachments relating Wageline information in respect of the Food and Drug Store Employees’ Award – Southern Division (Eastern District) 2003 and wage trends in enterprise agreements. In the outline of submissions the Union focussed on the powers of the Commission and on the failure of Elite to provide substantive evidence as to why their position on each of the matters in contention should be adopted by the Commission. The document then went on to the individual matters to be determined in the course of the arbitration: • Date of operation: It was acknowledged that the passage of time had eroded the Union’s original position for an agreement that expired in December 2004 and it was now argued that a two year agreement should apply. • Annualised wages: Highlighted the differences between the parties in particular the status of the operators as weekly rather than fortnightly employees that would, in effect, have the definition of a weeks’ pay as “‘Weeks’ pay’ is the total annualised salary divided by 52 as prescribed in clause 3.3.”. The Commission should consider inserting definitions of “Average Wage” and “Weeks’ Pay” to ensure that no ambiguity exists in the life of the Agreement. • Wage Rates: Union accepted that operators would be required to work less hours than under their last certified agreement as a consequence of the arbitrary decision of the company to implement a 38 hour week. The Union contested the right of the company to impose the change of hours which had remained constant for the past decade. It was further argued that the company’s decision could have a devastating financial effect on the operators. A comparison was provided between the Award and the current agreement rates which purported to the operators receiving less than the Award. A table relating to percentage increases granted by the Queensland Industrial Relations Commission between 1999 and 2003 in State Wage Cases: • 1999 – 2.6% • 2000 – 3.1% • 2001 – 3.0% • 2002 – 3.5% • 2003 – 3.2%. Operators in this period had only received 2% per annum as an increase. Five pages of the summary were dedicated to what was termed “Competitors Rates”. The AWU argued that an initial increase should fall between 8.7% and 18.6%. The submission went to the Annualised Wage and the Financial Sustainability of the AWU claims. • Shift Penalties: The submission went to the differing positions of the parties with the company offer being 124.75% whilst the operators sought 131.25%. • Annual leave: In comparing the positions of each of the parties, it was agreed that the period of leave for operators should be five weeks (190 hours) per year. Differences existed in respect of method of payment and period of accrual. -- 7 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 659 • Termination prior to full year of employment • Sick leave • Bereavement leave Note: In respect of sick and bereavement leave, the submission identified differences in the method of payment. • Wage increases: Both parties supported a similar increase of 4.0% (company and 4.1% (Union), effective 12 months from the commencement of an agreement with the difference being the company wanted 2% of the increase to be taken into account for the upgrading of the plant. • Other General Conditions • Joint Consultative Committee • Sick leave arrangements: Payout of sick leave for retrenched employees • Additional duties for plant operators • Shift change over • Supervisors • First Aid • Union Encouragement • Compliance with ACTU – Guidelines for Shift work • Agreed clauses. In conclusion, the AWU went to a range of issues covered by the submission and the sections of the Act that must be taken into consideration by the Commission when determining the application. It was refuted that the “flow on effects” of the arbitrated outcome would have potential impact on employers throughout the State, with the Union arguing that applications progressed under s. 149 stand on their own merits and must be sustained accordingly. In terms of whether the parties had bargained in good faith, the Union questioned the bona fides of the company, in particular the fourth offer which was made on the basis of the employees removing all references to the Award and not have a Union involved. Finally, at page 53 it stated: “In conclusion, the AWU submits that all of the claims of the Union are genuine and reasonable, are sustainable by the Company and have no adverse effects on the community or economy generally. The AWU relies on the evidence before the Commission and the submissions made herein, in support of its claims. For all of these reasons the AWU’s claims should be granted in full.”. Elite – Submissions in reply A written submission in reply was provided on behalf of the company which went to some 31 pages and addressed all of the matters subject to the arbitration of the Commission. Page 8 of the submission went to the offer made by the company and further acknowledged that the move from 40 hours to 38 hours per week would lead to a reduction in wages for the operators: “The Elite 2004 offer as in exhibit 13, though offers an hourly rate increase for a PO5 operator from presently $21.10 to $22.50 an hour or 6.6% increase plus additional public holiday pre payment, sick leave hours and 17.5% annual leave loading provisions, on top of the other concession of which have been made by the Applicant as in Mr Eaton’s affidavit, exhibit 5, pp 3-5.”. On page 11 of the submissions, the Respondent further goes on to say that a reduction in hours will lead to a reduction in wages when moving from 40 hour to 38 hours and we do not dispute the change from 40 to 38 is a 5% reduction in wages, but this is offset by the 6.6% base rate increase. The 2 hours overtime disappears due to the addition of two new staff to provide for greater flexibility for training and annual leave as requested by the Respondent’s members throughout discussions in reaching a new certified agreement. The submission challenged some of the material relied upon in the AWU submission in that the material in question had not been “submitted in evidence” during the course of the proceedings therefore denying the company the opportunity to challenge. Decision The application before the Commission required the arbitration of a number of matters unable to be agreed between the parties in respect of a proposed certified agreement which intends to provide the industrial coverage for a limited group of employees in the classification of Plant Operators as distinct from a greater number of employees, employed by the respondent in a range of other classifications. In the course of the AWU submission, significant attention was drawn to the inadequacies of the Agreement entered into between the company and the operators in 1999 and which continues to remain in operation up to the present time. An examination of the Agreement, which was freely entered into by the operators, would appear to give some substance to the submissions of the AWU, however it is not reasonable to expect the Commission to “right all the wrongs” of the past in determining an outcome in this matter. The Commission is more concerned with making a determination that provides for each of the parties some surety for the employment arrangements hereon and to put in place wages and conditions that appropriately remunerate the operators for the performance of their duties and are sustainable, financially, for the Company. -- 8 of 20 -- 660 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 In the determination of this matter, the Commission was required to consider an extensive array of material put during the course of the proceedings through evidence, exhibits and submissions. The Commission also has an obligation to take into account the provisions of s. 149(5) of the Act: “(5) In considering the matters at issue, the commission must consider at least the following – (a) the merits of the case; (b) the likely effects of the commission’s proposed determination, and any matters agreed before arbitration, on employees and employers who will be bound by the proposed determination; (c) the public interest, and to that end the commission must consider – (i) the objects of this Act; and (ii) the likely effects of the commission’s determination on the community, economy, industry generally and on the particular enterprise or industry concerned; (d) the extent to which the negotiating parties have negotiated in good faith.”. At the conclusion of the hearing, the Commission was provided with two (2) documents, prepared conjointly by the parties, which were identified as: • Agreed points of the proposed Certified Agreement • The matters for arbitration between the parties. Those documents were admitted into the proceedings as exhibits 15 and 16 respectively. It was the content of exhibit 16 to which the determination of the Commission was directed, identifying the following clauses requiring arbitration: • Clause 1.3 – Date of Operation • Clause 1.6.2 – Joint Consultative Committee (JCC) • Clause 2.2.13 – Sick Leave arrangements • Clause 3.1(d), 3.1(e), 3.1.6(c)(3) – Definitions, wages and allowances • Clause 3.3 – Wage Rates • Clause 3.4.1 and 3.4.2 – Wage Increases • Clause 3.7 – Shift penalties • Clause 4.1.1(g) Shift change over and (h) JCC – Rosters • Clause 5.1.1 – Annual Leave loading • Clause 5.1.2 • Clause 5.3.1 – Sick Leave • Clause 5.6 – Bereavement Leave • Clause 6.3 – Supervisors • Clause 6.4 – First Aid • Clause 6.11 – Union Encouragement • Clause 6.14 – Compliance with ACTU Guidelines for Shift Work Matters Arbitrated Clause 1.3 Date of Operation Ionics Australasia Pty Ltd Position Clause 1.3 Date of Operation This Agreement shall take effect and have the force of law as from the date of certification by the Commission and shall remain in force for a period of three (3) years from that date. The operation of this Agreement may be reviewed after eighteen (18) months. A new agreement, to replace this Agreement, shall be negotiated between the Company, the AWU and employees three months prior to the expiry of this Agreement. AWU Position Clause 1.3 Date of Operation This Agreement shall take effect and have the force of law as from the date of certification by the Commission and shall remain in force for a period of two years. The operation of this Agreement may be reviewed after twelve (12) months, or when subject to the amendments outlined in Clause 6.1. A new agreement, to replace this Agreement, shall be negotiated between the Company, the AWU and employees three months prior to the expiry of this Agreement. -- 9 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 661 The Act provides for an agreement to remain in force for a maximum of three years from the date of certification. The parties have reached common ground in respect of the operation of the Agreement being reviewed during its period of operation, albeit that the Company identified an 18 month time frame as opposed to a 12 month period put forward by the Union. The Commission accepts that the further agreed position that a replacement agreement shall be negotiated between the parties three months prior to the expiry of the Agreement is more than reasonable in the circumstances. In terms of the period for which the Agreement remains in force, the Commission is of the view that when account is taken of the resources and cost involved in having this matter processed, that it would be appropriate for the Agreement to have a longer life than the two years put forward by the Union. A considerable number of agreements certified by the Commission, of recent times, emanating form both the public and private sectors, have, by agreement, nominated a period of operation of three years and the Commission finds, in relation to this clause, that such a time period, as outlined in the company’s position, would be of benefit in providing time for each party to adjust to the new terms and also allow for the opportunity of the restoration of a more workable relationship. Accordingly, the Agreement will contain the company’s draft clause as follows: “Clause 1.3 Date of Operation This Agreement shall take effect and have the force of law as from the date of certification by the Commission and shall remain in force for a period of three (3) years from that date. The operation of this Agreement may be reviewed after eighteen (18) months. A new Agreement, to replace this Agreement, shall be negotiated between the Company, the AWU and employees three month prior to the expiry of this agreement.”. Clause 1.6.2 Joint Consultative Committee Ionics Australasia Pty Ltd Position Clause 1.6.2 It is the objective of the Joint Consultative Committee (JCC) to implement workplace practices so as to provide for more flexible working arrangements, which improve the efficiency and productivity of the company, enhance skills and job satisfaction and assist positively in ensuring that the Company becomes a more efficient enterprise. Areas where this and subsequent Agreements may assist are: • Improvements in job design • Positive attitude and morale development • Better co-operation among all levels within the organisation • Reduction in waste • Fine-tuning and adherence to maintenance procedures • Reduction of downtime • Reduction in absenteeism • Personal development and training • Continual quality improvement • Reliable and accurate data systems • Better and flexible planning • Total customer satisfaction • Improved working conditions • Improvements in health and safety awareness and compliance • Coordination of training and training requirements • Trial of alternative rosters – taking into account family life-style implications, Workplace Health & Safety issues and costs to the company. AWU Position Clause 1.6.2 It is the objective of the Joint Consultative Committee (JCC) to implement workplace practices so as to provide for more flexible working arrangements, which improve the efficiency and productivity of the company, enhance skills and job satisfaction, and assist positively in ensuring that the Company becomes a more efficient enterprise. Areas where this and subsequent Agreements may assist are: • Improvements in job design • Positive attitude and morale development • Better co-operation among all levels within the organisation • Reduction in waste • Fine-tuning and adherence to maintenance procedures • Reduction of downtime • Reduction in absenteeism • Personal development and training • Continual quality improvement • Reliable and accurate data systems • Better and flexible planning • Total customer satisfaction • Improved working conditions • Improvements in Health and Safety awareness and compliance • Coordination of training and training requirements • Trial of alternative rosters – taking into account family life-style implications, Workplace Health & Safety issues with no extra financial costs to the company or financial loss to the employee -- 10 of 20 -- 662 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 This item has almost total agreement with the exception of the last dot points and, in particular, the trial of alternative rosters. The Union has argued that the unilateral decision of the company to go to a 38 hour week (which came about following a request by the Commission, from the bench, seeking clarification on future hours of work) that the JCC should have the opportunity to consider both the “financial costs” to the company and “financial loss” to the employees. The Union position would provide a fairness to the process that, if lacking, has the potential to disadvantage each of the parties during the life of the Agreement if such roster changes are to be considered. Accordingly, the clause offered by the Union is to be inserted in the Agreement: “Clause 1.6.2 It is the objective of the Joint Consultative Committee (JCC) to implement workplace practices so as to provide for more flexible working arrangements, which improve the efficiency and productivity of the company, enhance skills and job satisfaction, and assist positively in ensuring that the Company becomes a more efficient enterprise. Areas where this and subsequent agreements may assist are: • Improvements in job design • Positive attitude and morale development • Better co-operation among all levels within the organisation • Reduction in waste • Fine-tuning and adherence to maintenance procedures • Reduction of downtime • Reduction in absenteeism • Personal development and training • Continual quality improvement • Reliable and accurate data systems • Better and flexible planning • Total customer satisfaction • Improved working conditions • Improvements in Health and Safety awareness and compliance • Coordination of training and training requirements • Trial of alternative rosters – taking into account family life-style implications, Workplace Health & Safety issues with no extra financial costs to the company or financial loss to the employee.”. Clause 2.2.13 Sick leave arrangements Ionics Australasia Pty Ltd Position No Clause 2.2.13 in Ionics Australasia Pty Ltd document and no agreement with AWU. AWU Position Clause 2.2.13 Sick Leave Arrangements All retrenched employees shall receive the value of all unused sick leave accrued during the course of their employment with the Company. The company opposed the clause in its entirety and provided evidence that there is little likelihood of retrenchments during the life of the Agreement. Additionally, the company submitted that the introduction of the clause was financially irresponsible and economically unsustainable and, in terms of the Award, and the Act, and not within the bounds of the Commission’s powers. The Union’s arguments raised a number of relevant points that would give cause for this matter to be considered by the parties at a later day. The Commission rejects the Union claim to insert the clause, however believes that it should be placed on a reserved list and subject to consideration when the next Agreement is negotiated by the parties. Clauses 3.1(d) and 3.1(e) Definitions, wages and allowances Ionics Australasia Pty Ltd Position Clause 3.1 (d) “Average Wage” is based on total annual salary (excluding overtime that is not rostered) divided by 26. AWU Position Clause 3.1 (d) “Average Wage” is based on total annual salary (excluding overtime that is not rostered) divided by 26 as prescribed in Clause 3.3. Ionics Australasia Pty Ltd Position No Clause 3.1 (e) in Ionics Australasia Pty Ltd document and no agreement with AWU. AWU Position Clause 3.1 (e) Definition of a Week’s Pay -- 11 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 663 “Weeks’ pay” is the total annualised salary divided by 52, as prescribed in clause 3.3. The relevance of these two clauses to which the Commission now gives its attention relies, to some extent, on the outcome of the competing claims in clause 3.3. The company has, in clause 3.1(d), the same clause, with the exception of any reference to clause 3.3 as that proposed by the AWU. It is the position of the company that the AWU claim, in respect of clause 3.3, allows for the inclusion of a number of provisions such as public holiday loading which unfairly “loads up” the rate of the operators pay. The Commission will address clause 3.3 later in this decision, however in respect of these clauses, the Commission finds that the clause, as proposed by the company in respect of clause 3.1(d) should be inserted into the Agreement: “Clause 3.1 (d) “Average Wage” is based on total annual salary (excluding overtime that is not rostered) divided by 26.”. The claim in respect of 3.1(e) is rejected on the basis that it is, in some respects, contradictory to what the parties had in common in 3.1(d) and, in the view of the Commission, not relevant. Clause 3.1.6(c)(3) Ionics Australasia Pty Ltd Position Clause 3.1.6(c)(3) Additional duties requested of Plant Operator V, beyond those listed above and not normally associated with Plant Operator V duties, may be undertaken on a voluntary basis. Additional remuneration, if any, for the type or nature of work to be performed will be negotiated between the employee concerned, the Company and the AWU. AWU Position Clause 3.1.6(c)(3) In addition to the general duties of a Level V operator, annual bonus payments for extra duties/projects will be arranged in consultation with the J.C.C. These will be subject to annual review and renegotiation, between management and the individual operators. There are, differing views in how remuneration (if any) should be catered for if operators are required to undertake duties over and above those regarded as normal duties. The proposal of the company is in the view of the Commission the most reasonable in that it would allow for the work to be undertaken on a voluntary basis with any additional remuneration being negotiated between the employee concerned, the company, and the Union. Accordingly, the company clause should be inserted into the Agreement: “Clause 3.1.6(c)(3) Additional duties requested of Plant Operator V, beyond those listed above and not normally associated with Plant Operator V duties, may be undertaken on a voluntary basis. Additional remuneration, if any, for the type or nature of work to be performed will be negotiated between the employee concerned, the Company and the AWU.”. Clause 3.3 Wage Rates Ionics Australasia Pty Ltd Position Clause 3.3 Wage Rates Clause 3.3.1 The hourly rates of pay to the following categories of senior employees shall be as shown below: Trainee $13.7763 per hour Plant Operator I $14.2684 per hour Plant Operator II $15.5487 per hour x 124.75% $19.3970 Plant Operator III $16.5162 per hour x 124.75% $20.6039 Plant Operator IV $17.3455 per hour x 124.75% $21.6385 Plant Operator V $18.0365 per hour x 124.75% $22.5005 These rates are payable for the purpose of Sick Leave, Annual Leave and Long Service Leave. It does not apply to Notice (unless worked), Redundancy or Severance Pay. AWU Position Clause 3.3 Wage Rates 3.3.1.1 The weekly rate for employees engaged as operators shall be as prescribed below. These rates are annualised rates (excluding Trainee and Plant Operator I) which are inclusive of shift loading, public holiday loading, rostered overtime and annual leave loading. These rates are payable for all the purposes of the Agreement. Rates are calculated in accordance with the attached table. -- 12 of 20 -- 664 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 3.3.1.2 If during the life of this Agreement rosters are altered to include rostered overtime, the annualised rates will need to be recalculated to take into account such overtime. Weekly Rate of Pay $ Trainee 523.50 Plant Operator 542.20 Annualised Weekly Rate $ Plant Operator II 917.28 Plant Operator III 980.82 Plant Operator IV 1,044.37 Plant Operator V 1,107.91 This clause is undoubtedly the “big ticket” item in respect of all the matters arbitrated by the Commission in this application. The company, through the evidence of Mr Bracegirdle, identified the current level of remuneration being paid to the operators as: 2004 Actual as per 1998 EBA 2003 Hourly Rate as per 1998 EBA increases No of Operators Hourly Rate % Hourly Rate Increase from 2003 EBA 40 hrs normal + 2 hrs DT (44 hrs Paid) PO 5 $20.68 5 $21.10 2.00% $50,378.82 PO 4 $19.84 3 $20.24 2.00% $48,326.58 PO 3 $18.89 3 $19.27 2.00% $46,020.36 PO 2 $17.78 2 $18.43 2.00% $43,308.18 Total 13 Annual working hours 25,662 The figures provided as their position reflect “across the board” increase of 6.8% which, with the addition of the shift allowance, would have the hourly rates being at the following on the commencement of the Agreement: Trainee $13.7763 per hour Plant Operator I $14.2684 per hour Plant Operator II $15.5487 per hour x 124.75% $19.3970 Plant Operator III $16.5162 per hour x 124.75% $20.6039 Plant Operator IV $17.3455 per hour x 124.75% $21.6385 Plant Operator V $18.0365 per hour x 124.75% $22.5005. On the other hand the AWU has proposed an entirely new wage structure inclusive of a range of allowances. The AWU claim was regarded by the company as excessive with the submission from Mr Olsson at page 13, clause VII stating the totality of the claim: “As with the Respondent’s [AWU] claim of which is seeking 20% to 25% wage shift penalties increase in the first year and 4.1% in wages the second year.”. The AWU relied upon a plethora of material which went to increases from a wide spectrum of industries, achieved over recent years. Additionally the rates paid by interstate competitors were offered as a supporting argument for the AWU wage structure proposal. The AWU addressed the unilateral decision of the company to alter the ordinary working hours of the operators 40 to 38 per week. At page 11 of the AWU submission some interesting comments were made in respect of the 38 hour week implementation: “The AWU submits that the Company’s move from a 42 hour week to a 38 week, should equally not result in a decrease. The final implications on operators as a consequence of the company’s arbitrary decision to employment a 38 hour week is significant. Such reduction should not be arbitrarily imposed on employees whose working conditions have remained the same for the past decade. The reduction in the disposable income could have devastating effects on an individual’s financial commitments and consequently social and family commitments.”. Whist the Commission can understand that the AWU was frustrated at the way in which the 38 hour week came about, the accompanying reasons of the company that went to the employment of two additional operators and an increase in leisure time are well known and established arguments advanced by Unions going back to when the 38 hour week cases were first run in the Commission. In a summary (at page 22) of the AWU submission relation to the wage rates it was stated: “The AWU’s claim is above the average wage increase normally associated with enterprise agreements, however the AWU submits that the submissions stated above justify the need for the operator’s wages to move by an initial increase of between 8.7% and 18.6%. In providing the Commission with a detailed analysis of the disadvantage suffered by the operators over the past years, the reliance of this data should not be interpreted as an attempt to seek compensation for or in anyway re-opening the previous arrangements on site. The purpose of the analysis is to provide factual data that these employees require a reasonable wage increase to bring them closer to community standards.”. The Commission, having considered the merits of each party’s proposals acknowledges that the operators have received wage increases since 1999 of a lessor level than received across the board by Queensland employees however it must be remembered that for each of those years, the operators received a 2% bonus per year (which did not go to the all purpose rate). -- 13 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 665 The Commission is not prepared to introduce the wage structure as presented by the AWU as such initial increases sought would not meet community standards and, in the view of the Commission, not be in the public interest. Accordingly, the following wages rates will apply, as at the certification of the agreement, which includes the 126.5% shift penalty, in addition to an “across the board” increase in the vicinity of 6.8%: Trainee $13.7763 per hour Plant Operator I $14.2684 per hour Plant Operator II $15.5487 per hour x 126.5% $19.66 Plant Operator III $16.5162 per hour x 126.5% $20.89 Plant Operator IV $17.3455 per hour x 126.5% $21.94 Plant Operator V $18.0365 per hour x 126.5% $22.81. These rates are payable for the purpose of sick leave, annual leave and long service leave. It does not apply to notice (unless worked), redundancy or severance pay. Clause 3.4 Wage Increases Ionics Australasia Pty Ltd Position Clause 3.4 Wage Increases 3.4.1 A 4.0% wage increase shall apply 12 months from the date of certification for all categories listed in clause 3.3.1 above, this 4% wage increase takes into account that 2% of the 4% wage increase is for the operation of the upgraded plant 3, provided that this additional equipment is operated without the need for additional staff. 3.4.2 A further wage increase of 2.0% shall apply twelve months thereafter, for all categories listed in clause 3.3.1 above. AWU Position Clause 3.4 Wage Increases 3.4.1 The wage rates and allowances as specified in clause 3.3 shall apply, effective from the commencement of this Agreement. 3.4.2 A 4.1% wage increase shall apply (as per clause 3.3), effective 12 months after the commencement of the Agreement. In terms of determining an appropriate level of wage increase, the Commission notes that the company offered 12.8% over a 3 year period whilst the Union sought substantially more by way of a new structure. The company, in evidence, went to proposed changes to the operator’s responsibilities and duties, with the commissioning of a new plant in late 2004. The Commission, in formulating the wage increases for the life of the Agreement, has decided that a 2% increase will be awarded six (6) months from the date of certification of the Agreement to compensate for the additional duties associated with the operations of a new plant. Accordingly, the wage increases for the Agreement will be as follows: Six months (6) on from certification – 2.0% Commencement of year 2 – 4.1% Commencement of year 3 – 4.1%. Note: That on certification of the agreement, the wages for the plant operators increased by, on average 6.8% as reflected in the rates at clause 3.3. Clause 3.7 Shift Penalties Ionics Australasia Pty Ltd Position Clause 3.7 Shift Penalties Plant Operator classifications II, III, IV and V shall be paid 124.75% of the hourly rate applicable to their classification while engaged on shift work (as per Clause 3.3) AWU Position Clause 3.7 Shift Penalties Plant Operator classifications II, III, IV and V shall be paid 131.25% of the hourly rate applicable to their classification while engaged on shift work (as per Clause 3.3). The operators are continuous shift workers required to work shifts of 12 hours’ duration. The company has offered a 24.75% loading to compensate for the disadvantages associated with such work. -- 14 of 20 -- 666 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 The AWU best summed up their claim at page 28 of the submission: “No other explanation was given by the Company has to how it came to the figure of 24.75%. In contrast, Mr Stipis stated in his Affidavit that the loading proposed by the operators was developed by calculating over an 8 week shift rotation, the rate which an operator would get if such shift was paid in accordance with the relevant Award. That figure was then approximately halved to come up with the figure in the AWU’s draft agreement, being 31.25%.”. The Union, in submissions, went to the company position in respect of going to a 38 hour week. The offer put by the company is not, in the circumstances, an unreasonable one, nor is the AWU position in seeking an amount 6.5% higher. In the view of the Commission, a rate between those of the parties would be an equitable outcome, so as such the Commission determines an amount 26.5% should apply with the new clause to read: “Plant Operator classifications II, III, IV and V shall be paid 126.50% of the hourly rate applicable to their classification while engaged on shift work (as per clause 3.3).”. Clause 4.1.1(g) Shift Change Over and (h) JCC – Rosters Ionics Australasia Pty Ltd Position No clause 4.1.1 (g) or (h) in Ionics Australasia Pty Ltd document and no agreement with AWU. AWU Position as per final document 16 July 2003 Clause 4.1.1 (g) Shift changeover – A ten (10) minute paid shift changeover period will be provided to ensure that the handing over of equipment from one shift to another is completed in a safe and efficient manner. This changeover must occur in the relevant work area and should be used to communicate: (i) the current and required operating conditions of all plant and equipment; (ii) any additional work, monitoring or information required, (iii) any further information or instructions as required from time to time. (h) Issues regarding the working of rosters by employees may be raised through the forum of the Joint Consultative Committee. The Joint Consultative Committee shall give appropriate consideration to any suggestions made regarding the trial of alternative rosters and, in doing so, shall consider relevant workplace health and safety issues and family/lifestyle implications for employees. Earlier in this decision the Commission made mention of the benefits of having conducted inspections at the work site prior to the taking of evidence. In respect of this claim, the Commission was appraised of the methods relied upon at present for operators to pass on to the next shift matters relating to operational and safety needs. This practice has operated effectively now for a considerable period of time and would, in the view of the Commission, unreasonable to interfere with such arrangement. Accordingly, the Union claim, in respect of 4.1.1(g) is rejected. In respect of 4.1.1(h), that has been effectively dealt with earlier at clause 1.6.2 – Joint Consultative Committee in which the Union’s position was accepted by the Commission. Clause 5.1.1 Annual Leave Loading Ionics Australasia Pty Ltd Position Clause 5.1.1 Annual Leave Loading Annual Leave for Chloromat shift workers shall be paid at the hourly rate as defined in clause 3.3.1 plus 17 1/2% loading and shall be 5 weeks (190 Hours) per year. Also as outlined in the Company’s Policy documents, Annual Leave may be accrued to a total of 8 weeks’ leave before they will be required to reduce this accrual to 4 weeks of Annual Leave. AWU Position Clause 5.1.1 Annual Leave Loading Annual Leave for employees engaged as Trainees and Plant Operator I shall be paid at the hourly rate as defined in clause 3.3.1 plus 17 1/2% loading and shall be 4 weeks (152 Hours) per year. Annual Leave for Chloromat shift workers shall be calculated at the averaged weekly rate (defined as “Weeks’ Pay” in clause 3.1) and shall be 5 weeks (190 Hours) per year. Also as outlined in the Company’s Policy documents, Annual Leave may be accrued to a total of 12 weeks leave before they will be required to reduce this accrual to 8 weeks of Annual Leave. -- 15 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 667 In examining the differences between the parties in respect of this issue, it would appear that the payment of leave on offer by the company for operators, whilst rejected by the AWU, would appear to be an acceptable position for Trainees and Plant Operator 1 classifications. The other contentious point is the period allowed for leave to be accrued. In respect of the accrual of leave, the 12 weeks sought by the Union would seem to be excessive and would place the operators outside company policy which applies to the staff across the board. Going back then to the leave itself, the Commission cannot, in good conscience, accept the clause proposed by the AWU and is of the view that such an arrangement would place an unfair burden upon the company. Accordingly, the position put forward by the company is inserted into the agreement: “Clause 5.1.1 Annual Leave Loading Annual Leave for Chloromat shift workers shall be paid at the hourly rate as defined in clause 3.3.1 plus 17 1/2% loading and shall be 5 weeks (190 Hours) per year. Also as outlined in the Company’s Policy documents, Annual Leave may be accrued to a total of 8 week’s leave before they will be required to reduce this accrual to 4 weeks of Annual Leave.”. Clause 5.1.2 Ionics Australasia Pty Ltd Position Clause 5.1.2 If the employment of an employee is terminated before the expiration of a full year of employment such employee shall be paid in addition to all other amounts due to him/her pro rata payment in lieu of annual leave equal to 1/12th of the employee’s ordinary time earnings for that year. AWU Position Clause 5.1.2 If the employment of an employee is terminated before the expiration of a full year of employment such employee shall be paid (as per the calculation in 5.1.1) at the averaged weekly rate (including rostered overtime that is part of their normal shift hours) and shall be the pro rata payment in lieu of annual leave equal to 1/12th of the employee’s ordinary time earnings for that year. The Commission, having rejected the AWU argument in respect of clause 5.1.1 in respect of the average weekly wage, finds that the company clause should be inserted in the agreement: “Clause 5.1.2 If the employment of an employee is terminated before the expiration of a full year of employment such employee shall be paid in addition to all other amounts due to him/her pro rata payment in lieu of annual leave equal to 1/12th of the employee’s ordinary time earnings for that year.”. Clause 5.3.1 Sick Leave Ionics Australasia Pty Ltd Position Clause 5.3.1 Sick Leave Full-time employees working on a rotating twelve-hour shift basis shall accrue a total of 84 hours’ sick leave in any one year. All other full-time employees will accrue sick leave as per the Award. Time absent due to sickness will be paid in lots of one hour until the annual provision per employee expires. AWU Position Clause 5.3.1 Sick Leave Full-time employees working on a rotating twelve-hour shift basis shall accrue a total of 84 hours’ sick leave (paid at the projected roster rate) in any one year. All other full-time employees will accrue a sick leave as per the Award. Time absent due to sickness will be paid in lots of one hour until the annual provision per employee expires. The difference between the parties continues to be the method of payment, that being the Union’s claim for payment to be at the projected roster rate. The Commission, having earlier decided that the hourly rate be the method upon which entitlements are met, can only but reject the Union’s position in favour of the company’s proposal. Accordingly, the clause to be inserted into the agreement will be: “Clause 5.3.1 Sick Leave Full-time employees working on a rotating twelve-hour shift basis shall accrue a total of 84 hours’ sick leave in any one year. All other full-time employees will accrue a sick leave as per the Award. Time absent due to sickness will be paid in lots of one hour until the annual provision per employee expires.”. -- 16 of 20 -- 668 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 Clause 5.6 Bereavement Leave Ionics Australasia Pty Ltd Position Clause 5.6 Bereavement Leave An employee shall on the death within Australia of a wife, husband, mother, father, mother-in-law, father-in-law, brother, sister, child or stepchild, be entitled on notice to leave up to and including the day of the funeral of such relation, and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death shall be furnished by the employee to the satisfaction of their Employer. For the purpose of this clause the words “wife” and “husband” shall include a person who lives with the employee as a de facto wife or husband. Provided an employee shall be entitled to a maximum of 2 days’ leave without loss of pay on each occasion and on the production of satisfactory evidence of the death outside of Australia of an employee’s husband, wife, father or mother and where such employee travels outside of Australia to attend the funeral. Notwithstanding the above, bereavement leave will only be granted by the Company if the employee concerned would normally be working on the days in which bereavement leave is sought. This clause shall have no operation while the period of leave under it coincides with any other period of leave. AWU Position Clause 5.6 Bereavement Leave An employee shall on the death within Australia of a wife, husband, mother, father, mother-in-law, father-in-law, brother, sister, child or stepchild, be entitled on notice to leave up to and including the day of the funeral of such relation, and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in 2 ordinary days of work (and paid at the projected roster rate). Proof of such death shall be furnished by the employee to the satisfaction of their Employer. For the purpose of this clause the words “wife” and “husband” shall include a person who lives with the employee as a de facto wife or husband. Provided an employee shall be entitled to a maximum of 2 days’ leave without loss of pay on each occasion and on the production of satisfactory evidence of the death outside of Australia of an employee’s husband, wife, father or mother and where such employee travels outside of Australia to attend the funeral. Notwithstanding the above, bereavement leave will only be granted by the Company if the employee concerned would normally be working on the days in which bereavement leave is sought. This clause shall have no operation while the period of leave under it coincides with any other period of leave. In terms of consistency for reasons previously stated the position of the company is to be inserted into the agreement: “Clause 5.6 Bereavement Leave An employee shall on the death within Australia of a wife, husband, mother, father, mother-in-law, father-in-law, brother, sister, child or stepchild, be entitled on notice to leave up to and including the day of the funeral of such relation, and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death shall be furnished by the employee to the satisfaction of their Employer. For the purpose of this clause the words “wife” and “husband” shall include a person who lives with the employee as a de facto wife or husband. Provided an employee shall be entitled to a maximum of 2 days’ leave without loss of pay on each occasion and on the production of satisfactory evidence of the death outside of Australia of an employee’s husband, wife, father or mother and where such employee travels outside of Australia to attend the funeral. Notwithstanding the above, bereavement leave will only be granted by the Company if the employee concerned would normally be working on the days in which bereavement leave is sought. This clause shall have no operation while the period of leave under it coincides with any other period of leave.”. Clause 6.3 Supervisors Ionics Australasia Pty Ltd Position Clause 6.3 Supervisors Supervisors shall continue to be permitted to perform plant duties during the absence of Operators on any meal or crib break or rest pause, Joint Consultation Committee meetings, other meetings attended by Operators, Operator training period, Operator non-attendance at the workplace on account of any leave or holiday with or without pay. Supervisors will not be utilised to work what would otherwise be rostered overtime of Operators. AWU Position Clause 6.3 Supervisors Supervisors shall be permitted to perform plant duties during the absence of Operators due to any meal or crib break, Joint Consultation Committee meetings, or other meetings attended by Operators, and during in-house Operator training periods. The use of Supervisors for coverage of Plant -- 17 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 669 Operators for 12 hour shifts due to sickness, Workers Compensation or any leave with or without pay will only occur if all available operators are unavailable for coverage. Supervisors performing such coverage will perform all the duties that are required of Plant Operators. The parties are not “poles apart” in respect of this particular clause, and the Commission is drawn to the position of the Union which is summarised at page 42 of the submission: “The AWU submits that its proposal is reasonable in the circumstances and creates no additional burden on the Company as it simply reflects the current practices. For these reasons the AWU’s proposal should be accepted.”. Accordingly, the clause proposed by the Union should be inserted into the agreement: “Clause 6.3 Supervisors Supervisors shall be permitted to perform plant duties during the absence of Operators due to any meal or crib break, Joint Consultation Committee meetings, or other meetings attended by Operators, and during in house Operator training periods. The use of Supervisors for coverage of Plant Operators for 12 hour shifts due to sickness, Workers Compensation or any leave with or without pay will only occur if all available operators are unavailable for coverage. Supervisors performing such coverage will perform all the duties that are required of Plant Operators.”. Clause 6.4 First Aid Ionics Australasia Pty Ltd Position Clause 6.4 First Aid Fees for First Aid certificate courses will be paid by the Company for those willing to attend and maintain such courses. Courses are to be performed in Company time. Whenever possible at least one Operator per shift should have a First Aid Certificate. AWU Position Clause 6.4 First Aid The Company will continue to meet the cost of accredited First Aid training for any employee during the life of this agreement, including costs associated with refresher courses. The company will also provide for paid training outside of normal working hours. The parties are at odds simply in respect of the provision of training outside of normal working hours, which has been sought by the Union. The Commission accepts the arguments by the AWU that employees can be potentially dis-advantaged if for one reason or another they miss the scheduled training when the course is offered each year. However, such dis-advantages are not sufficient to interfere with the proposal put forward by the company and therefore that clause, as offered by the company, will be inserted into the agreement: “Clause 6.4 First Aid Fees for First Aid certificate courses will be paid by the Company for those willing to attend and maintain such courses. Courses are to be performed in Company time. Whenever possible at least one Operator per shift should have a First Aid Certificate.”. Clause 6.11 Union Encouragement Ionics Australasia Pty Ltd Position Clause 6.11 Union Encouragement This clause gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union. 6.11.1 Documentation to be provided by employer At the point of engagement, an employer to whom this Agreement applies shall provide employees with a document indicating that a Statement of Policy on Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Agreement. 6.11.2 Union delegates (a) Union delegates and job representatives have a role to play within a workplace. (b) The employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their duties. AWU Position Clause 6.11 Union Encouragement -- 18 of 20 -- 670 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 (1) The employer shall encourage and facilitate all employees covered by this Agreement to become and remain financial members of the relevant Union. The employer shall encourage employees to become or remain Union members by: (a) advising employees at point of engagement of the place at which their Agreement is displayed at the workplace, in accordance with the Act and to make them aware of the union encouragement provision therein; (b) providing to employees at point of engagement, an application for membership of the relevant Union/s. The application forms are to be made available by the relevant Union/s; (c) upon authorisation from the employee/s, deducting Union membership dues, as levied by the Union in accordance with its rules, from the pay of employees who are members of the relevant Union/s. Such monies collected shall be forwarded to the relevant Union/s. For the purpose of clause 6.11 and this Agreement, the relevant Union/s shall be those Unions that have the eligibility to enrol members within at least one of the callings provided for in this Agreement. Those Unions are: The Australian Workers’ Union of Employees, Queensland. (2) Union Delegates In establishing an appropriate relationship between the employer and the Union and as part of encouraging employees to join and remain members of the Union the following shall apply: (a) A person elected or appointed as a Union Delegate shall, upon notification to their Employer, be recognised as the accredited representative of the Union. (b) A Union delegate shall have the right to discuss work related matters which are of concern to any employee or to convey information relating to the workplace to employees provided that the Union delegate does not unduly interfere with the work in progress. (c) A Union delegate shall be allowed a reasonable period of time during working hours to consult with an authorised official of the Union provided that this does not unduly interfere with the work in progress. (d) The Employer shall provide the Union delegate with access to a telephone (where practicable) to contact the Union official to progress enquiries on behalf of a member on work related matters. (e) The Union delegate shall be provided with suitable facilities to enable the Union delegate to attend to Union duties. (f) The Union delegate shall have the right to place notices on noticeboards at the employer’s premises. Provided that such notices are authorised by the Union and deal with legitimate Union matters. (g) The Employer shall advise new employees as to who the Union delegate/s are on site and allow the Union delegate adequate time during any induction session to discuss the role of the union. If induction sessions are not held, where practicable, the employer shall introduce the new employee to the Union Delegate. The Commission must place on record, in the first instance, that the provisions sought by the AWU are within the bounds of reasonableness and such provisions would exist in practice in a range of various workplaces across the State of Queensland. However, for a single Commissioner to consider union encouragement provisions it would be improper for any such consideration to go beyond that of the Full Bench of the Commission in the matter (reported at 156 QGIG 221) and, accordingly, the clause advanced by the company should be inserted into the agreement: “Clause 6.11 Union Encouragement Clause 6.11 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union. 6.11.1 Documentation to be provided by employer At the point of engagement, an employer to whom this Agreement applies shall provide employees with a document indicating that a Statement of Policy on Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Agreement. 6.11.2 Union delegates (a) Union delegates and job representatives have a role to play within a workplace. (b) The employer shall not unnecessarily hinder accredited union delegates and/or job representatives in the reasonable and responsible performance of their duties.”. Clause 6.14 Compliance with ACTU Guidelines for Shift Work Ionics Australasia Pty Ltd Position No clause 6.14 in Ionics Australasia Pty Ltd document and no agreement with AWU. -- 19 of 20 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 671 AWU Position Clause 6.14 Compliance With ACTU Guidelines for Shift Work The company agrees to be guided by the “ACTU’s Guidelines for Shift Work” as per the Addendum “ACTU Guidelines for Shift Work”. The company offered no alternative clause in respect of this matter and simply refused to concede to the position advanced by the Union. The Union proposal has merit and particularly when the employment conditions of the operators are taken into consideration. It must surely be to the advantage of all parties to have a position where well researched and documented guidelines for persons working shift work can be utilised to benefit those employees. The Union proposal was supported by submissions that, at page 47, stated: “By placing such clause in the agreement, does not in any way bind the company to each and every term within the ACTU’s Guideline. The Union has been particular in ensuring that the wording is broad and merely states that the company be guided by the ACTU’s guidelines for shift work.”. The Commission is prepared to support the following clause being inserted into the agreement as follows: “Clause 6.14 Guidelines for Shift Work The parties agree to be guided by recognised and accepted guidelines for shift work. The guidelines shall include, but not be exclusive of, the ‘ACTU Guidelines for Shift Work’.”. Conclusion This arbitration has been a long drawn out matter requiring each of the parties to utilise significant resources. The Commission acknowledges, on record, the professional level of the conduct of the application by each of the advocates. In terms of the overall percentage increase to the employees over the life of the agreement (with the inclusion of a 1.75% increase on the shift allowance originally offered by the company) will amount to some 18.75%. Whilst the increases granted in this decision may seem excessive (on the surface) for a three (3) year Agreement, the Commission has, in it’s considerations, taken into account the reduction in the “take-home pay” of the operators following the decision of the company to move to a 38 hour week operation”. The parties are directed to confer (as soon as practicable) to prepare a draft Determination that can be formally considered by the Commission. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2003 11 February 14 March 15 August 30 October 2004 2 (including Inspections), 3 and 4 February 1, 2, 5 and 30 March 21 April 7 May 2 and 22 June (Written Submissions) 20 July (Written Submissions) Appearances: Mr L. Olsson, of Employer Services, for Elite Chemicals. Mr B. Swan (in the first instance) and Ms Y. D’Ath, of The Australian Workers’ Union of Employees, Queensland. Released: 29 July 2004 -- 20 of 20 --