Blue Care v The Australian Workers’ Union of Employees, Queensland & Anor [2004] QIRC 33 (2004) 175 QGIG 987

12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 987 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application for enterprise award Blue Care AND The Australian Workers’ Union of Employees, Queensland and Another (No. B1452 of 2003) BLUE CARE ENTERPRISE AWARD – STATE 2003 DEPUTY PRESIDENT BLOOMFIELD COMMISSIONER FISHER COMMISSIONER ASBURY 27 February 2004 Application for enterprise award – Inclusion of provisions from existing certified agreement – Proposed coverage of award – Whether use of term “aged care facility” appropriate – s. 129 – Wage Fixation Principles – Parties directed to make several changes to proposed award – Matter re-listed for further submissions. DECISION This matter has had a long and tortuous history. The application for the making of the new Blue Care Enterprise Award – State 2003 was heard on 22 October 2003. The Commission constituted by Commissioner Fisher reserved her decision on the matter in light of certain issues that had been raised in connection with the wages schedule. On 27 October 2003 the Queensland Nurses’ Union of Employees (QNU) filed an application to intervene or be heard in relation to the making of the new enterprise award. That application was heard on 5 November 2003. On 18 November 2003 Commissioner Fisher issued a decision in relation to the QNU application. In that decision she determined she would re-list the matter to hear from the parties in relation to the proposed scope of the award – including exemptions – in light of comments she made about the uncertainty of the term “aged care facilities” and her suggestion that it would be desirable for the QNU coverage of personal care work in nursing homes to be expressly referenced in the exemption clause. -- 1 of 7 -- 988 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 Commissioner Fisher also decided that QNU had not made out a case that their rights and interests would be adversely affected if they were not given the right to be heard on their concern about the proposed definitions/indicative skills for Level 1, 2 and 3 employees. Further, Commissioner Fisher found that QNU had not made out a case to be heard in relation to what she described as three “Award Issues”. Commissioner Fisher’s decision was appealed by QNU and a Full Bench of the Commission, headed by the President, unanimously refused leave to Appeal in its decision given from the Bench on 17 February 2004. Prior to the appeal being heard Commissioner Fisher conducted a hearing on 10 December 2003 to allow all parties, and the QNU, to address her in relation to the issues identified in her decision of 18 November 2003. She subsequently reserved her decision in that matter and, for reasons detailed in her decision of 30 January 2004, felt compelled to refer the matter to this Full Bench for final determination in accordance with the provisions of the Industrial Relations Act 1999 (the Act) having regard to earlier pronouncements of the State Wage Case Bench in 1999 (162 QGIG 359) and a Full Bench in Re: Margarine Manufacturing Award – Southern Division (2001) 168 QGIG 233 (Margarine Case). When this Full Bench convened on 9 February 2004 we ruled we would pick this matter up at the point in time at which Commissioner Fisher referred the matter. We also ruled we would await the appeal determination in matter B1975 of 2003 before deciding how to approach the final determination of the matter. On 23 February 2004 after hearing further from the direct parties and QNU we ruled we would determine the matter “on the papers” and would not require further submissions, or input, from the parties, or QNU, unless we felt that was necessary. We also decided that the issue of the rights to be heard granted to the QNU by Commissioner Fisher would not be revisited. Our consideration of the matter has led us to reach the following decision. Should a new award be made? The award, which is sought to be made, is an enterprise award. It is designed to supersede five other awards, and part of a sixth, that presently have application to The Australian Workers’ Union of Employees, Queensland (AWU) and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) and to employees who are, or are eligible to be, members of those Unions (clause 1.6). The rationalisation of the number of industrial instruments that apply in a workplace would have obvious administrative and cost benefits to the employer in providing a common set of wages and conditions governing the employment of particular classes of employees. In this regard the application is also consistent with s. 265(5) of the Act. The proposed award is derived from the current enterprise agreement, The Uniting Church in Australia Property Trust (Q) Blue Care – Queensland Enterprise Bargaining Certified Agreement 3 – 2001 (the 2001 Certified Agreement). However, not all matters contained in that agreement are found in the proposed award. Although the award cannot be described as providing the total package of employment conditions, given that a new agreement is in the process of being finalised, it will provide current and relevant standards as they relate to employees of this employer who are to be covered by this award. It is intended that the enterprise award become the award upon which the no-disadvantage test would be applied when a new enterprise agreement is made. Given that the conditions contained in the proposed award are enterprise specific there is little, if any, prospect of flow-on to other employers. No conditions or wage rates are to be reduced in the event the award is made. The proposed Union parties consent to its making. In all of the circumstances the Commission believes that both the employer and the employees concerned would benefit from the making of a new enterprise award. However, because of comments that follow, we are not disposed at this time to formally grant the application for the making of an award. The applicant will be required as a result of this decision to make further amendments to its application and we will need to be addressed in relation to those and other matters. Accordingly, we defer any final determination on the application until all matters have been satisfactorily addressed. Submissions re: coverage issues The proposed award has the following Award Coverage and Exemption from scope of award clauses: “1.4 Award coverage This enterprise Award applies throughout the State of Queensland to all persons employed by Blue Care and who are engaged in the callings and classifications set out in this Award and who are employed in or in connection with the provision of accommodation for aged persons in an aged care facility, retirement village, garden settlement; other residential accommodation (including clients’ own residence); respire centre and short and long term respite and day respite care. The Award also applies where care is co-ordinated from such facilities or centres as described above. This Award applies to contractors and/or subcontractors to the said establishments and their employees performing work to which this Award is ordinarily applicable. 1.5 Exemption from scope of Award This enterprise Award does not apply to: (a) Persons who are in holy orders or volunteers; (b) Nursing employees; (c) The following categories of persons: Site facility managers, managers and assistant or relief managers thereto, employed in or in connection with the industries and/or operations associated with independent living units, serviced apartments and/or retirement villages.”. The amendment lodged as a consequence of Commissioner Fisher’s decision of 18 November 2003 was the inclusion of a new exemption at subclause (c) of clause 1.5 which provided that the award did not apply to “(T)he provision of personal care services in nursing homes” and a renumbering of subclause (c) as subclause (d). The parties also lodged further amendments, which had come to their notice during the intervening period but not as a consequence of the decision of 18 November 2003. Those amendments concerned the inclusion of reference to AQF levels and diversional therapy programs in relevant parts of the classification structure contained in the Schedule to the Award. We shall deal firstly with the submissions on the proposed amendment to the new clause 1.5(c) to the exemption clause. -- 2 of 7 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 989 Part of the concern identified in Commissioner Fisher’s decision of 18 November 2003 related to the acknowledgement by the parties to the proposed award that the QNU has coverage of personal care work in nursing homes. The Commission commented that it would seem desirable for this to be expressly referenced in the exemption clause. The amendment was proposed specifically in response to this. However, the parties to the proposed award did not see further amendments to the coverage or exemption clauses as necessary or desirable. One of the issues canvassed by the QNU during its submissions on its application for the right to be heard was the inclusion of the term “aged care facility” in clause 1.4 (Award coverage) and its meaning. At that time the QNU submitted that the inclusion of that term extended the scope of the Award for Accommodation and Care Services Employees for Aged Persons – South-Eastern Division (the ALHMWU Accommodation Award) and the Award for Accommodation and Care Services Employees for Aged Persons – State (Excluding South-East Queensland) (the AWU Accommodation Award). The QNU noted that the term “aged care facility” does not appear in either of those awards. Commissioner Fisher commented in her decision of 18 November 2003 that none of the parties had addressed these particular issues. At the hearing before Commissioner Fisher on 10 December 2003 Mr Martin SC (for Blue Care) pointed out that the term “aged care facility” is in fact defined in the proposed new award at clause 1.8.4 as follows: “1.8.4 ‘Aged Care Facility’ means any house, apartment or premises, licensed or unlicensed which is used or intended to be used for the reception, care and treatment of persons who on account of age, infirmity, chronic ill health or the effects of illness from which they are convalescent, require support and care and/or supervision. Aged Care Facility also incorporates short and long term respite, and day respite.”. He submitted that this definition should alleviate both the concern of the Commission identified in the decision of 18 November 2003 and that of the QNU. In his submissions, Mr Reed (for ALHMWU) said that the term “aged care facility” has existed in the application clauses of the Accommodation Awards for some time. Both awards provide in the last sentence of the first paragraph of the Application of Award clause that: “The Award also applies where care is co-ordinated from a hostel or aged care facility as outlined above.”. Mr Reed submitted that given the proposed award is attempting to cover a range of employees who perform specific types of work in a range of aged care facilities, the proposed definition of “aged care facility” in the proposed clause 1.4 is unexceptional. Mr Reed also pointed out that work might be provided in facilities where the places are not funded under the Aged Care Act 1997 (Aged Care Act). Further, the proposed award coverage clause is restricted to persons employed in or in connection with the accommodation for aged persons so that the reference to the types of facilities that might cater for persons other than aged persons should not be of concern. Mr Reed then took the Commission to the types of funding arrangements made under the Aged Care Act and the various definitions contained therein. He submitted that the Aged Care Act comprehended an extraordinarily broad range of aged care services as well as the manner in which care is provided. Mr Reed noted that the primary purpose of the Aged Care Act is to establish a regime whereby places are funded and that the present Accommodation Awards and the proposed new award go beyond that regime as they extend to a range of places where funding is not necessarily provided under that Act. In conclusion, Mr Reed submitted that the proposed new award does not extend the work into areas that might be exclusively the province of the QNU nor does it extend the coverage of those Awards that are intended to be replaced. Mr Reed also pointed out that the definition of “aged care facility” in the proposed new award is identical to that contained in the present Certified Agreement which is sought to be rolled up into the new award. Ms D’Ath (for AWU) supported the submissions made by Mr Martin SC and Mr Reed. In her submission, the proposed amendment to the exemption clause addressed the Commission’s concern about coverage of particular work and, in addition, further clarified the award coverage clause. In so doing, any basis for the QNU to be heard in relation to its objection would be removed. Mr Staindl took the Commission to the coverage clauses of the Accommodation Awards, the proposed new award and the Nurses’ Aged Care Award – State 2003 (the QNU Award). Having done so, Mr Staindl submitted that the QNU Award applies to employees in aged care residential facilities including nursing homes and stressed that the ALHMWU Accommodation Award does not apply to employees in nursing homes. Mr Staindl commented that although reference is made to “aged care facility” in the last line of the first paragraph of the ALHMWU Accommodation Award coverage clause, such facilities need to be referenced back to the body of that paragraph where nursing homes were not mentioned. Mr Staindl acknowledged that the Private Hospitals and Nursing Homes Industry Award – State 2003 (the AWU Nursing Homes Award), applies to nursing homes but did not contain any classification of personal care attendant, personal carer or personal care worker and, accordingly, had no application to employees performing this work. He submitted that the proposed new award will allow both the AWU and the ALHMWU to cover relevant employees in nursing homes and this has not been the case under existing industrial regulation. The submission seemed to be that without an adequate definition of personal care services the AWU and ALHMWU could extend their coverage into areas that are the right of the QNU. Mr Staindl said that should the coverage be extended it would also be contrary to a QNU/ALHMWU demarcation agreement. Consequently, he called for a definition of nursing home to be inserted into the proposed award. Mr Staindl rejected the submission made by Mr Reed that the proposed award does not extend the coverage of existing Awards. He said the term “hostel” had been replaced with the term “aged care facility” which had the effect of greatly extending the application clause of the proposed award compared to the Accommodation Awards. Further, the AWU Accommodation Award does not apply to nursing homes. Although the AWU has coverage of employees in nursing homes, through the AWU Nursing Homes Award, such coverage does not extend to personal care work. Mr Staindl also drew the Commission’s attention to the definition of “aged care facility” in clause 1.8.4 of the proposed new award above. He said the definition is almost identical to the definition of “Nursing Home” found in the AWU Nursing Homes Award with the exception that the former includes reference to short and long term respite. With respect to the proposed amendment to the exemption clause, Mr Staindl said that it was welcomed but lacked logic. This was because the QNU Award applies to aged care facilities which include nursing homes, hostels, retirement villages and aged respite centres. In response Mr Martin SC submitted that the QNU’s rights were protected by the proposed new award. Unless the terms in the award are to be read in a way which is different from that usually accepted within industry, then they need not be defined again. Mr Reed said that the submission made by Mr Staindl in respect of the ALHMWU confused industrial coverage of Unions with award coverage. An award cannot vest industrial coverage where a particular Union does not otherwise have such coverage. Without elaborating, he referred to an understanding that there is a form of personal care work performed by personal care attendants under the current Accommodation Awards. -- 3 of 7 -- 990 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 In response to Mr Staindl’s comment about the QNU/ALHMWU demarcation agreement Mr Reed submitted that there was no evidence that anything done in respect of the proposed award is in breach of the demarcation agreement. Moreover, the demarcation agreement has expired. Ms D’Ath confirmed the AWU’s coverage of work in nursing homes but noted that the proposed new award exempted nursing employees and personal care work performed in nursing homes from coverage. Conclusions re: coverage issues The intent of the proposed new amendment to clause 1.5 (Exemption from scope of Award) excluding the provision of personal care services in nursing homes is generally accepted. However, the exemption is not appropriate in its current form for several reasons. Firstly, the proposed coverage clause provides that “This enterprise Award applies … to all persons employed by Blue Care and who are engaged in the callings and classifications set out in this Award…”. Although Mr Staindl has taken issue with whether the award is being made in respect of callings, the coverage clause purports to regulate callings and this is consistent with s. 126 of the Act. Section 132(1) of the Act provides, inter alia, that the Commission may exempt from the application of an award an employee or class of employee in the calling to which the award applies. It is apparent from the way in which the proposed amendment (1.5(c)) is presently framed that the exemption does not apply to an employee or class of employee. In this case the class or classes of employee to be exempted from the coverage clause need to be specified in order to meet the requirements of s. 132 of the Act. In addition, the exemption of a specific class or classes of employee would be consistent with the remainder of the exemptions listed in that clause and also with the award coverage clause which provides that the award is to regulate callings and classifications of employees. The parties to the proposed new award have advised that the definition of “aged care facility” has appeared in the various Blue Care certified agreements that have been certified by the Commission. That may well be the case, however, its mere existence in certified agreements is not of itself persuasive the definition being included in the award. The requirements on the Commission for certifying an agreement are quite different to those when hearing an application for the making of a new award. When certifying an agreement the Commission is required to apply a number of tests and there are limited grounds for the Commission to interfere in the content of an agreement, for example, if it does not meet the no-disadvantage test. Even then the Commission is prevented from making changes that would make the agreement capable of being certified. That is a matter for the parties. However, when deciding to make an award the Commission is obliged to consider the requirements of Chapter 5 of the Act, Parts 1 to 3 inclusive. Section 126 of the Act gives the Commission the specific power to consider the content of awards as provided by that section. The Commission also has the power to make changes where it considers that certain provisions do not meet the requirements of the Act, irrespective of any relief claimed (s. 274(2)(b) of the Act). Despite Blue Care now drawing to the Commission’s attention the definition of “aged care facility” in clause 1.8 of the proposed award we are not satisfied that it is appropriate. The definition which is proposed, is, as Mr Staindl submitted, almost identical to the definition of “nursing home” that appears in the AWU Nursing Homes Award. Our research has shown that that definition has been in much the same form in the AWU Nursing Homes Award for at least 30 years. We do not accept that the definition of “nursing home” from one award can simply be transposed into another award without significant changes to the content and simply relabelled as “aged care facility”. While a nursing home is an aged care facility it does not follow that an aged care facility is a nursing home. Although the proposed new award contains the provision that Blue Care and its employees will not be covered by Part C of the AWU Nursing Homes Award, in our view, confusion is still likely to arise by having two definitions which are essentially the same in two awards in the same, or similar, industry describing different things. It follows that the proposed definition of “aged care facility” is unacceptable and will not be included in the definitions clause of the Award. The present Accommodation Awards do not presently apply to nursing homes. We accept Mr Reed’s submission that the term “aged care facility” where it appears in the last sentence of the first paragraph of the Application of Award clauses in the Accommodation Awards has been there for some time. However, it cannot be read to extend the coverage of those Awards to facilities that are not otherwise mentioned in the body of the paragraph. To that end we accept Mr Staindl’s submissions that the facilities concerned do not include nursing homes. Accordingly, we do not accept the inclusion of the term “aged care facility” in clause 1.4 (Award coverage). Our concerns about the use of that term are those outlined in Commissioner Fisher’s decision of 18 November 2003 and largely repeat issues raised by various Full Benches of this Commission dealing with similar matters in recent years. We are not prepared to approve the proposed award coverage clause with the inclusion of the term “aged care facility” in the body of the first paragraph. For that clause to be approved the term “aged care facility” must be replaced by “hostels”. In that way, the proposed coverage clause does not extend the coverage clauses of the Accommodation Awards upon which the coverage clause of this enterprise award appears to be modelled. We will, however, reluctantly accept the inclusion of the term “aged care facility” if it appears in the same way as it does in the coverage clause of the present Accommodation Awards, i.e., in the last sentence of the first paragraph, if that is what the direct parties propose. That will only be done only to ensure broad consistency with the Accommodation Awards. The change from “aged care facility” to hostels does not, we accept, accommodate the AWU’s coverage of certain classes of employees in nursing homes through its AWU Nursing Homes Award and the Diversional Therapists Award – State 2003 (Diversional Therapists Award). Accordingly, we consider that the term “nursing home” should be included in the Award Coverage clause and accompanied by a definition in the Definitions clause of “Nursing Home” as it appears in the AWU Nursing Homes Award. In our view the inclusion of the term nursing home in the award coverage clause will not extend the coverage of the ALHMWU or the AWU beyond that which they presently hold. Clause 1.3 of Schedule 1 (Classification Structure) makes it plain that the classification structure will have application to employees who are in a position at one of the employer’s worksites where constitutional coverage is by the AWU or the ALHMWU. Further, the AWU and the ALHMWU Accommodation Awards have contained the classification of Personal Care Attendant for the past five years without apparent objection from the QNU. These awards do not apply to nursing homes and while the AWU has coverage of certain classifications of employees in nursing homes, this does not extend to those employed in what is generally described as personal care work in that setting. We also note that the Diversional Therapists Award provides exemptions, some of which appear to have relevance to the present matter. Given that the proposed new award is intended to supersede other awards, including the Diversional Therapists Award, then in our view those (relevant) exemptions should also be specified. Finally, on the matter of coverage and exemptions, we note that clause 1.5 of the proposed new award is entitled “Exemption from Scope”. To be consistent with the preceding clause it should be renamed “Exemption from Coverage”. The exemption clause also refers to Part C of the AWU Nursing Homes Award. That Part no longer exists in the 2003-reviewed award. The parties are required to redraft the exemption clause to ensure that the appropriate clauses of the 2003-reviewed award are referenced. The parties are also required to consider whether an amendment to any of the superseded awards is necessary to exempt from their operation any classes of employee or employer covered by the proposed award. -- 4 of 7 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 991 Flow-on of certified agreement into the award As Commissioner Fisher pointed out in her decision of 30 January 2004, which led this matter to be referred to this Full Bench, it is not just the wage rates from a certified agreement that are proposed to be included in the new award. Although certain provisions of the certified agreement have been omitted, the proposed award is to be based on the Blue Care – AWU – ALHMWU Certified Agreement 2001. While the wage rates were the subject of particular submissions on 22 October 2003 the Commission must also consider whether it is appropriate to base the remainder of the award on the provisions of the certified agreement. The Full Bench in the Margarine Case (supra) considered the interrelationship between s. 125, s. 126 and s. 129 of the Act and said: “On a perusal of Part 2 Chapter 5 we consider the power to make, amend or repeal an award arises under s. 125. Section 126 then states the objectives which the Commission must achieve in exercising the otherwise discretionary powers to make, amend or repeal awards. Sections 127 and 128 then deal with nominated subjects with some particularity. Section 127 deals with dispute resolution procedures to be contained in each award. ... Section 128 deals with the issues about gender equity and junior rates.”. After setting out the provisions of s. 129 of the Act the Full Bench then said: “In the context, it seems to us that s. 129 confirms that in making, amending or repealing an award to provide fair and just employment conditions and to ensure that the award meets the benchmarks at s. 126, the Commission may not only have regard to the terms of certified agreements but may base the provisions of an award on a certified agreement (which in consequence of s. 32C of the Acts Interpretation Act 1954 – singular includes the plural – presumably extends to basing the provision on more that (sic) one certified agreement). However, having confirmed the scope of s. 125, s. 129 also imposes each of two limitations on the exercise of the power. The first limitation is that the Commission must be satisfied that the provisions are consistent with principles established by the Full Bench that apply for deciding wages and employment conditions. The second limitation is that the Commission must be satisfied that the provisions are not contrary to the public interest.”. The Full Bench went on to refer to passages from the Report of the Industrial Relations Taskforce and noted, in particular, the comment of the Taskforce that “It would not be expected that agreement conditions would be easily incorporated into awards in most circumstances.”. The Full Bench then said: “... the passages do make it abundantly clear that “Flow-on of Certified Agreements” is not to be automatic. There is to be a testing against the Full Bench “principles” and the public interest. The fact that a provision appears in a certified agreement (or in a large number of certified agreements – within an industry) may be material to the question whether the provision or a derivative should be included in an award, but is not determinative of whether it is “contrary to the public interest” to include the term. The presence of a provision in a certified agreement goes to the merit of an application to include the provision in an award. It is not the merit in including the provision in the Award.”. We respectfully adopt that reasoning. The Full Bench in the Margarine Case (supra) went on to note that the limitations at s. 129 are not without their difficulties essentially because there are no principles to guide a Full Bench in deciding wages and employment conditions. The Declaration of Policy – Statement of Principles which is reviewed from time to time by the Full Bench that hears the State Wage Case states that it guides single Commissioners sitting alone in processing applications to make, amend, or repeal awards. The Full Bench in the Margarine Case (supra) noted that in the absence of principles to guide a Full Bench, it arguably follows that s. 129(1) has no application where an issue about inclusion in an award of a provision based on a certified agreement arises before a Full Bench. While we accept that we are not bound to accept the provisions of the Wage Principles we consider that merit exists in having regard to them. In this regard we consider that the Principles relevant to the consideration of this application are Principle 7 (Work Value Changes), Principle 8 (Standard Hours) and Principle 9 (Award Amendment to Give Effect to a Certified Agreement). Principle 7 – Work Value Changes Submissions were made by Blue Care that the nature of work performed by persons undertaking personal care services had changed so as to constitute a significant addition to work requirements as to warrant the creation of a new classification structure for these employees. Some of these changes were briefly identified. Blue Care submitted that the requirements of the Work Value Principle of the Statement of Principles had been met. In his submissions on 5 November 2003 Mr Staindl took issue with this. Ultimately, it was not an issue about which the QNU was given the right to be heard. In any event, we accept the submissions of Blue Care. The Accommodation Awards provide a single classification of Personal Care Attendant whereas the classification structure in the certified agreement and the proposed award provide for two levels at which personal care work may be performed – at Level 2 and Level 3. Under the Accommodation Awards the rate for a Personal Care Attendant is equivalent to that of a Domestic and a Laundry Hand thereafter. Level 2 of the classification structure in the proposed award also lists indicative tasks for a Domestic and Laundry Hand. Level 3 of the classification structure lists the indicative task or skill as being “the provision of personal care services consistent with the qualification provided by an AQF Certificate III in Community Services (Aged Care Work)”. The classification structure presupposes that a higher level of skill is required to be performed at Level 3. It follows then that that level should attract a higher level of remuneration. We also note that the rates provided at Level 3 are broadly consistent with that of an Assistant Nurse Level 2.1 under the QNU Award. An Assistant Nurse who possesses a Certificate III in Aged Care and 12 calendar months experience is required to be appointed to this level. Principle 8 – Standard Hours The application for the new award provides for a 38 hour week. This is one of the provisions based on the certified agreement. The Accommodation Awards and the Motor Drivers Etc., Award – Southern Division (Motor Drivers Award) each make provision for a 40 hour week. The Diversional Therapists Award, the Nursing Homes Section of the AWU Nursing Homes Award and the Disability Support Workers Award – 2003 all provide for a 38 hour week. Although the desirability of having a common set of hours for employees in these sections of the workforce perhaps goes without saying, nonetheless the parties to the proposed award did not make submissions regarding the reduction of standard hours for those employees which, except for the certified agreement, would have their conditions governed by the Accommodation Awards and the Motor Drivers Award. No reference to Principle 8 was made. Notwithstanding this fact we have decided to approve the proposed 38 hour week. The certified agreement already contains such provision and it will involve no additional cost to the employer or benefit to employees so there is no issue about cost offsets. -- 5 of 7 -- 992 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 Principle 9 – Amendment to Give Effect to Certified Agreement In Australian Salaried Medical Officers Federation, Queensland Health and Others (2001) 166 QGIG 400, a Full Bench of this Commission, in considering an application to flow rates found in certified agreements into certain awards outlined in a number of principles referrable to Principle 9 (at that time Principle 10) that might be considered. These were: • the history of enterprise bargaining in the industry concerned; • whether the inclusion of the rates will act as a disincentive to future bargaining; • the attitude of the parties to the application; • the treatment of future State Wage Case increases; • the effect of the application on the current pay rates of employees; and • the method of expressing rates that have been set by relativities. We consider each of these elements in turn. 1. History of enterprise bargaining The parties advised that there is a history of enterprise bargaining between them. The 2001 Certified Agreement is the fourth such agreement entered into between them. 2. Disincentive to future bargaining The parties advised that the next round of enterprise bargaining was well advanced and it was anticipated that a new agreement would shortly be entered into. This agreement would provide for wage rates in excess of those provided by the new award. The Unions argued that inclusion of the actual wage rates in the award up to the State Wage Case increase of 1 September 2003 would keep faith with their respective memberships and would not provide a disincentive to bargaining as further increases were available if a new agreement was struck. Further, enterprise bargaining negotiations relate to matters other than just wage rates. 3. Attitude of the parties The parties to the proposed award consent to its making. 4. Treatment of future State Wage Case increases This was not addressed in submissions but the note to the wages clause indicates that the wage rates include all State Wage Case increases up to 1 September 2003. In such circumstances, and in the absence of any contrary intent expressed elsewhere in the proposed award, future State Wage Case increases would apply to the award rates. 5. Effect on current pay rates Schedule 2 of the proposed new award is the wages schedule. The wage rates that are provided in the schedule include the rates of pay provided by the Blue Care – AWU – ALHMWU – Certified Agreement 2001 plus the $17 per week increase payable under the 1 September 2003 Declaration of General Ruling. In effect the award rates proposed would be those actually received by employees to be covered by the award. Once a new agreement is made and certified by the Commission wage rates in excess of those provided by the award would be paid. 6. Method of expressing relativities In its submissions Blue Care advised of the relativities that have been struck for the various levels contained in the classification structure. We are satisfied that they are generally in accord with relativities for similarly classified/qualified employees under other awards of this Commission. Public interest considerations Section 129(2) of the Act provides that the Commission must be satisfied that the provisions of the award are not contrary to the public interest. As mentioned earlier the new award is based almost entirely on the provisions of the present certified agreement. The intention of this application is to flow- on the provisions of the certified agreement into the award and then to use it as the base for applying the no-disadvantage test in the future. Because of the nature of the application we consider that care must be exercised in considering the content of the application. Having said that we are conscious that the award is enterprise specific and thus are of the view that the prospect of flow-on of any of the terms is minimal. In relation to the specific terms of the award we note that it makes provision for paid maternity and paternity leave. Although these conditions are in excess of the Act and the Commission’s standards they are clearly beneficial provisions and have been agreed to by the employer. The inclusion of the provisions is not contrary to the public interest. We have considered the remainder of the award contents and are satisfied that there is nothing that offends the public interest. Conclusions re: s. 129 of the Act In terms of the wage rates to be included in Schedule 2, we will allow the parties to include in the proposed award the current rates paid, i.e., the certified agreement rate plus the most recent General Ruling of 1 September 2003. In reaching that position, we note that there is a history of enterprise bargaining negotiations and that another enterprise agreement, which provides for a 4% increase in wage rates in the first year, is in the process of being concluded. Our view may have been different. had this agreement not been imminent and had we not decided (below) that the operative date for the proposed new award await the certification of the new agreement. We record that it is desirous that there should always remain a gap between award rates and current enterprise bargaining rates so that there is no disincentive to bargaining. A similar observation was made by a Full Bench of the Commission in Re: Award for Medical Superintendents with the Right of Private Practice and Medical Officers with the Right of Private Practice – Public Hospitals, Queensland and Anor (2001) 166 QGIG 399. In that decision the Full Bench said: -- 6 of 7 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 993 “The applications seek to flow into the Awards, rates of pay which are currently found in certified agreements. Grant of the applications will not result in any employee being paid more than the employee is currently paid. The applications are supported by the Queensland Public Sector Union of Employees and are consented to by all employers bound by the Awards. There is evidence of a long history of enterprise bargaining and evidence that enterprise bargaining is continuing with such vigour that the rates to be inserted in the Awards will soon be outdated. We are satisfied that inclusion of the rates in each of the two Awards will not be a disincentive to enterprise bargaining.”. We endorse that observation. Overall we are satisfied that the award does not offend the Wage Principles and does not contain provisions that are contrary to the public interest. Accordingly, we consider that the application meets the requirements of the Act. Other content issues 1. Definition of Blue Care Mr Bennett who appeared for Blue Care on 22 October 2003 submitted in response to a question from the Commission that a definition was not required because Blue Care is a registered business name. Any person who wanted to ascertain what Blue Care was could search the business names register. The Commission is of the view that all users of the Award (many of whom would not have access to a business names register) should be easily able to identify to whom the Award applies and more particularly what are the legal entities. That is not able to be done as the award is currently written. The certified agreement defines Blue Care, the Uniting Church in Australia and Synod. The Commission considers that these terms should be included and defined in the definitions clause so that the legal entity employing persons covered by the proposed award is clearly identified. 2. Definitions of classifications The Commission notes that the definition of “Cook” is included in clause 1.8.12 (Definitions) whereas “Handyperson” is defined in the Classification Structure (Schedule 1). For the purposes of consistency the definitions should be either included in the Definitions clause or the Schedule. In making this comment we are conscious that this is how they appear in the certified agreement. 3. TCR provisions The Award as filed does not contain the Commission’s most recent policy in relation to Termination, Change and Redundancy. Should the award parties consent to the inclusion of theses standards then they should be incorporated into the further amended draft award to be submitted as a consequence of this decision. Termination of certified agreement Blue Care has advised that it is the parties’ intention that the termination of the 2001 Certified Agreement take effect on the certification of the new agreement. The parties have sought that the new award be made in advance of the certification of the new agreement so that the no-disadvantage test prescribed by s. 160 of the Act can be applied against this award. Section 165 of the Act provides, however, that while a certified agreement operates it prevails to the extent of any inconsistency over an award or industrial agreement. Although the nominal expiry date in the agreement has passed, s. 164 of the Act provides that an agreement continues to operate until it is replaced by another certified agreement or is terminated pursuant to s. 158, s. 171, s. 172 or s. 173 of the Act. The current certified agreement does not contain a “Relationship with Awards” clause. The effect of all of this is that the 2001 Certified Agreement will prevail over the enterprise award to the extent of any inconsistency. This could have unintended consequences, for example, with respect to wage rates. In light of the provisions of s. 165 of the Act, in light of the fact that further amendments are required to be made as a result of this decision and the unlikelihood that any award to be made will be made retrospective, it is desirable that the operative date await the certification of the new agreement. The parties are to file an amended draft award incorporating the changes required as a consequence of this decision by 4.00 p.m. on Friday, 12 March 2004. At the same time a copy should be provided to the QNU. We shall further list the matter at 2.15 p.m. on Friday, 19 March 2004 to hear from the parties, and the QNU within the constraints of Commissioner Fisher’s decision of 18 November 2003, about the proposed amendments and whether they satisfy our concerns and requirements. Order accordingly. A.L. BLOOMFIELD Deputy President G.K. FISHER, Commissioner I.C. ASBURY, Commissioner. Hearing Details: 2003 22 October 5 November 10 December Appearances: Mr G. Martin SC, instructed by Mr S. Bennett of Blake Dawson Waldron on behalf of the applicant. Mr C. Simpson and Ms T. Lane for The Australian Workers’ Union of Employees, Queensland. Mr R. Reed (Counsel), instructed by Mr J. Spreckley and Mr K. Crank for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr D. Staindl (Counsel), instructed by Mr M. Healy, Ms L. Nadj and Ms G. McCaul for the Queensland Nurses’ Union of Employees. Released: 27 February 2004 -- 7 of 7 --