Department of Corrective Services v The Queensland Public Sector Union of Employees [2004] QIRC 62 (2004) 175 QGIG 1223

16 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1223 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 173 – terminating agreement after its nominal expiry date Department of Corrective Services AND The Queensland Public Sector Union of Employees (No.CAX1 of 2004) VICE PRESIDENT LINNANE COMMISSIONER EDWARDS COMMISSIONER BLADES 1 April 2004 Application for approval to terminate a certified agreement – application made after the nominal expiry date of the certified agreement – public interest consideration – parties agree to the termination – potential to create confusion if certified agreement not terminated – employees will not suffer any disadvantage if certified agreement terminated – termination to take effect immediately after a determination in B1380 comes into operation – Industrial Relations Act 1999 s. 173. DECISION [1] This is an application by the Department of Corrective Services (DCS) for approval of the termination of the Department of Corrective Services Certified Agreement 2000 (CA647 of 2000) (the 2000 Certified Agreement). The 2000 Certified Agreement nominally expired on 30 June 2002. The application to terminate the 2000 Certified Agreement is made pursuant to s. 173 of the Industrial Relations Act 1999 (the Act) given that the application is made after the nominal expiry date of the agreement. The 2000 Certified Agreement has application to the DCS and the Queensland Public Sector Union of Employees (QPSU). [2] In or about April 2003 the DCS and the QPSU commenced negotiations for a replacement agreement. Those negotiations were unsuccessful and on 29 August 2003 the matter was referred under s. 149 of the Act for arbitration (B1380 of 2003). In the negotiations both prior to, and subsequent to, 29 August 2003 the parties reached agreement on a number of matters: see Exhibit A to the Affidavit of Peter Neville Rule filed in support of this application. The issues for Determination in B1380 of 2003 concerned salary progression and rostering. [3] This application was filed on 15 January 2004 and is contingent upon the Commission making a Determination in B1380 of 2003. This Full Bench has also released a decision in B1380 of 2003 on 1 April 2004. The Determination of the Commission in B1380 of 2003 has an operative date of 1 April 2004. [4] Section 173 of the Act provides as follows: “173 Terminating agreement after its nominal expiry date (1) After a certified agreement’s nominal expiry date, the following persons may apply to the commission to terminate a certified agreement – (a) the employer; -- 1 of 2 -- 1224 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 April, 2004 (b) a valid majority of the relevant employees; (c) an employee organisation that is bound by the agreement and that has at least 1 member who is a relevant employee. (2) If the agreement does not provide for the way it may be terminated after the agreement’s nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention. (3) The commission must approve the termination if, and only if, satisfied – (a) for an agreement that provides that it may be terminated if certain conditions are met – the conditions have been met; or (b) for an agreement that does not provide for the way it may be terminated – it is in the public interest to terminate the agreement. (4) The termination takes effect when the commission’s approval takes affect.”. [5] The 2000 Certified Agreement did not provide for the way in which it may be terminated after the agreement’s nominal expiry date had passed. The DCS, pursuant to s. 173(3) of the Act, gave the appropriate notice to the QPSU on or about 27 November 2003. [6] Section 173(3) of the Act provides that the Commission must approve the termination if, and only if, satisfied that it is in the public interest to terminate the agreement. [7] Public Interest: The issues going to public interest include: • Exhibit A to the Affidavit of Peter Neville Rule filed 15 January 2004 in support of this application sets out the terms and conditions agreed to by the parties in B1380 of 2003. One of the agreed terms is that any determination made under B1380 of 2003 would operate to the exclusion of the 2000 Certified Agreement. The agreement of the parties has thus made the terms and conditions contained in the 2000 Certified Agreement redundant. The Full Bench in its Determination in B1380 of 2003 has agreed to include the matters contained in that document in its determination so the determination will operate to the exclusion of the 2000 Certified Agreement. It is not in the public interest to maintain redundant certified agreements: see Spotless Services – North Goonyella Coal Mines Catering CA (2000) 169 QGIG 187 and Wide Bay Brickworks Certified Agreement (2003) 173 QGIG 148; • To continue to have the 2000 Certified Agreement exist has the potential to create confusion amongst the employees of the DCS in that, by its continued existence, it may be seen to have some operation e.g. (i) an inconsistency would arise between the Determination provision on use of casual employees on weekends and the provisions of the 2000 Certified Agreement. Under the 2000 Certified Agreement the parties have behaved as if that agreement continued a limitation on the use of casual employees on weekends; (ii) an inconsistency would also arise between the Determination provision whereby annual leave loading will be paid when annual leave is taken and the provisions of the Queensland Corrective Services Commission Enterprise Bargaining Agreement – Certified Agreement 1997 (1997 Certified Agreement). The 1997 Certified Agreement contained a practice of payment of annual leave loading in December and the practice continued on the basis of successive rolling over by each replacement certified agreement. The DCS and the QPSU have agreed that the Determination will operate to the exclusion of the 1997 Certified Agreement. • The employees of DCS will not suffer disadvantage if the 2000 Certified Agreement is terminated as the Determination contains terms and conditions which, as a whole, are better than those of the 2000 Certified Agreement e.g. the Determination contains three wage increases of 3.5% per annum; • The Determination now contains those conditions or entitlements from earlier certified agreements which the parties have agreed will continue to operate e.g. the continuation of the aggregated shift allowance in lieu of weekend penalties and night shifts for specified employees which was introduced by the 1997 Certified Agreement and increased in the 2000 Certified Agreement. Similarly the 38 hour week and the 12 hour shifts have continued from the 1997 Certified Agreement to the Determination. [8] In all of the circumstances the Full Bench is of the view that it is in the public interest to approve the termination of the Department of Corrective Services Certified Agreement 2000 (CA647 of 2000) and we so terminate CA647 of 2000. The termination of CA647 of 2000 will take effect immediately after the Determination made in B1380 comes into operation. Order accordingly. D.M. LINNANE, Vice President. K.L. EDWARDS, Commissioner. B.J. BLADES, Commissioner. Hearing Details: 2004 2, 3 February 10, 13 February (Written Submissions received) Appearances: Ms D. Priestley of the Department of Industrial Relations, with her Mr M. Anderson, for the Department of Corrective Services. Mr B. Watson, with him Mr G. Murray, for the Queensland Public Sector Union of Employees. Released: 1 April 2004. -- 2 of 2 --