Blue Care v The Australian Workers’ Union of Employees, Queensland & Anor [2004] QIRC 15 (2004) 175 QGIG 583

########################################################################################################################### 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 COMMISSIONER FISHER 30 January 2004 Application for enterprise award – Amendments – Wage rates – Proposed award to be based on provisions of existing Certified Agreement – Industrial Relations Act 1999 – Sections 125, 126, and 129 – Case Law – Report of the Industrial Relations Taskforce – Flow-on of Certified Agreements not to be automatic – Test against Full Bench principles and public interest – Principle 9 Award Amendment to Give Effect to a Certified Agreement – November 1999 State Wage Case – Matter to be referred to Full Bench pursuant to s. 281(1) – Approval from Vice President pursuant to s. 281(2). DECISION Blue Care have filed an application for the making of a new enterprise award to rationalise the number of industrial instruments that apply to the workforce for which The Australian Workers’ Union of Employees, Queensland (AWU) and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) have coverage. The Commission heard submissions from the parties to the proposed award on 22 October 2003 and as a result of that hearing a number of minor or technical amendments were made. The Commission did not make any determination at that point as to whether a new award should be made, reserving for particular consideration certain issues relating to wages schedule. During the period the Commission had reserved its decision the Queensland Nurses’ Union of Employees (QNU) made an application to, in truth, be given the right to be heard in relation to the application made by Blue Care (2003) 174 QGIG 1137. As a result of that application the Commission made certain suggestions about amendments to the proposed award with the result that the application filed by Blue Care has not been finalised. It was my intention that this decision respond to the matters outstanding from the first hearing as well as the issues arising from the subsequent hearings. However, for reasons outlined below, the application is now to be dealt with in another manner. This application does not seek that just the wage rates from a certified agreement be included in a 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 the Commission must also consider whether it is appropriate to base the remainder of the Award on the provisions of the Certified Agreement. The Commission’s powers in relation to awards are found in Part 2 Chapter 5 of the Industrial Relations Act 1999. The Full Bench in Re: Margarine Manufacturing Award – Southern Division (2001) 168 QGIG 233 considered those powers and in particular, the interrelationship between s. 125, s. 126 and s. 129 of the Act. The Full Bench 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 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 -- 1 of 2 -- 584 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 February, 2004 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.”. I respectfully adopt that reasoning. When considering the application for the making of a new award I referred to Principle 9 Award Amendment to Give Effect to a Certified Agreement of the Statement of Principles and recalled that that Principle had been the subject of some debate before a Full Bench in a State Wage Case application a few years ago. That decision, in part, considered proposals to modify the Statement of Principles including the (then) Principle 10 Award Amendment to Give Effect to a Certified Agreement. In their decision on this matter the Full Bench said: “In a very high proportion of cases the matter would be referred to a Full Bench. We certainly envisage frequent reference to a Full Bench early in the lifespan of the principles. However, in the long term, we do not envisage applications to include in awards provisions based on certified agreements to be dealt with otherwise than by a Commission sitting alone.” [(1999) 162 QGIG 359]. Several applications have been made to flow on rates of pay from a certified agreement into an award and these have mostly been dealt with by Full Benches. In the matter before me, the application for a new award seeks to base the vast majority, if not all, of its provisions on a certified agreement. I am unaware of any other such application being made in this jurisdiction previously. Although a few years have elapsed since the comments of the Full Bench in the State Wage Case matter, the novelty of the application before me leads me to the view that it is a category of case that the Full Bench envisaged being referred. Regrettably, the comments of the abovementioned Full Benches were not drawn to my attention by any of the parties and have only belatedly come to my attention through my own research. Accordingly, in light of the remarks of the Full Bench in the November 1999 State Wage Case decision that early in the life of the principles applications to include in an award provisions that are based on a certified agreement would be referred to a Full Bench and the statement of the Full Bench in the Margarine Case that the flow on of agreements is not to be automatic, I am of the view that this application should be referred to a Full Bench. In this regard I have acted pursuant to s. 281(1) of the Act to have the application referred to a Full Bench. I have advised the Vice President of my view. Order accordingly. G.K. FISHER, Commissioner. Hearing Details 2003 22 October 5 November 10 December Released: 30 January 2004 Appearances: Mr G. Martin SC instructed by Mr S. Bennett of Blake Dawson Waldron and with him Mr O. Dwyer on behalf of the applicant. Ms Y. D’Ath for The Australian Workers’ Union of Employees, Queensland. Mr R. Reed (Barrister) (directly instructed) and with him Mr K. Crank for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr D. Staindl (Barrister) (directly instructed) and with him Ms L. Nadj for the Queensland Nurses’ Union of Employees. -- 2 of 2 --