AgForce Queensland Industrial Union of Employers v The Australian Workers’ Union of Employees, Queensland [2003] ICQ 50 (2003) 174 QGIG 825

7 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 825 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission AgForce Queensland Industrial Union of Employers AND The Australian Workers’ Union of Employees, Queensland (No. C80 of 2003) PRESIDENT HALL 27 October 2003 DECISION On 18 December 2002 a Full Bench of the Queensland Industrial Relations Commission made a General Ruling about a minimum wage for all employees. Formal parts omitted, the Order was in the following terms: “QUEENSLAND MINIMUM WAGE – GENERAL RULING (a) The minimum rate per week for all full-time employees in Queensland is $431.40 per week. (b) An employee is an employee as defined in s. 5 of the Industrial Relations Act 1999 who is not – (i) a disabled person or a person working in supported employment service, (ii) a person whose services are paid wholly by commission or percentage rewards, (iii) a piece rate worker, (iv) a volunteer, or (v) an apprentice or trainee registered under the Training and Employment Act 2000. -- 1 of 4 -- 826 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 November, 2003 (c) Award free employees who are engaged on a permanent part-time or casual basis shall be entitled to a minimum rate of the Queensland Minimum Wage divided by 40 for each hour or part thereof (including hours worked in excess of 40 per week). (d) This general ruling shall have no application to employees whose engagement is governed by an industrial instrument other than an award on 20 December 2002, during the currency of that industrial instrument. (e) The date of operation of this general ruling is the beginning of the first pay period commencing after 1 April 2003.”. The accompanying decision, now reported 172 QGIG 2, made plain that the date of operation had been delayed to enable any interested party to seek exemption pursuant to s. 287(5). On 26 March 2003 the appellant made application for amendment of the Station Hands’ Award – State pursuant to s. 287 of the Act. By paragraph 2 of the application the following decision was sought: “That the Station Hands’ award – State be excluded from the operation of the Declaration of General Ruling handed down by decision of a Full Bench of the Commission on 18 December 2002 in the matter of the Queensland Minimum Wage in Case No. B1106 of 2002.”. By Schedule 1 to the application the following amendments were sought to the Station Hands’ Award – State: “1. By deleting clause 3.1 (Guaranteed Minimum Wage) and inserting the Commission’s standard Queensland Minimum Wage clause resulting from the 18 December 2002 decision of the Full Bench of the Commission in lieu thereof. 2. By deleting sub-paragraph 3.4(5)(b) and inserting the following in lieu thereof:- ‘3.4(5)(b) The full value of “Keep” shall be included in the calculation of payment for employees working overtime, on Annual Leave or Long Service Leave, and in the calculation of the Queensland Minimum Wage as prescribed in clause 31. (sic) of this Award.’ ”. There is something to be said for the view that the application was a poorly pleaded attempt to seek an exemption under s. 287(5) and should, pursuant to s. 320(2)(a), have been treated as such. In fact, on 1 April 2003 the matter was allocated to a member of the Commission. By 1 April 2003 the Order of 18 December 2002 was operative and the Station Hands’ Award – State was taken to be amended to accord with the ruling, see s. 287(9)(a). The relief sought was relief which the Commission constituted by a Commissioner sitting alone might not grant. A Commissioner sitting alone has not the power to overrule the operation of s. 287(9)(a) on a General Ruling made by a Full Bench. By the first day of hearing the appellant was aware of its difficulty. When the matter was called the appellant sought leave, see r. 197 of the Industrial Relations (Tribunals) Rules 2000, to amend the application. Leave was not opposed and was granted. The amendments have yet to be reduced to writing but the effect of the amendments was to substitute a reference to s. 125 for the reference to s. 287 and to recast the proposed amendments to the Station Hands’ Award – State particularised at Schedule 1 as follows: (emphasis added) “1. By deleting clause 3.1 (Guaranteed Minimum Wage) and inserting the Commission’s standard Queensland Minimum Wage Clause resulting from the 18 December 2002 decision of the Full Bench of the Commission in lieu thereof. 2. By deleting sub-paragraph 3.4(5)(b) and inserting the following in lieu thereof:- ‘3.4(5)(b) The full value of “Keep” shall be included in the calculation of payment for employees working overtime, on Annual Leave or Long Service Leave, and in the calculation of the Queensland Minimum Wage as prescribed in clause 31. (sic) of this Award.’ ”. As pleaded, the amendments sought were beyond power. A Commissioner sitting alone has no power to amend a General Ruling made by a Full Bench after the General Ruling has been picked up by s. 287(9)(a). The Commissioner was alive to that point and dismissed the application on the ground that “. . . the Commission cannot alter the quantum of the QMW as declared by the Full Bench.”. That is sufficient to dispose of the matter. However, since the matter has been fully argued, it seems to me that I should deal with the appellant’s real case as if it had been properly formulated before the Commission and the Commission had been asked (as it was not) to exercise its powers at ss. 274(2)(b) and 320(2)(a) in order to pass through the pleadings and legal forms and grant the relief which was appropriate, irrespective of the relief sought by the appellant. In reliance upon Australian Mines and Metals Association (Incorporated) Queensland Branch v. The Australian Workers’ Union of Employees Queensland (2000) 164 QGIG 21 at 23 senior counsel for the appellant submits that the Commissioner sitting alone may make all necessary amendments to place a General Ruling into a particular award in an appropriate way. With respect, the passage is limited to the implementation of a Statement of Policy by a Commissioner sitting alone. It is the effect of s. 287(9)(a) that a Commissioner sitting alone has no such discretion about a General Ruling. However, I cannot think of any reason for doubting that a Commissioner may exercise the power at s. 284 to interpret an award, as amended by a General Ruling and the operation of s. 287(9)(a). Neither can I think of any reason for doubting that, having interpreted the Award, a Commissioner may amend the Award, to ensure that no future misunderstanding occurs. I turn then to the construction of the Station Hands’ Award – State. It is not in contention that one may place a money value on “keep”. Indeed, s. 5.2.5 of the Award, which deals with the situation of employees who are not provided with “keep” provides: “The following classes of employees shall be paid the respective amounts in addition to the rates of wages prescribed in clause 5.1 of this Award: (i) ‘Not Found’ Employees – $70.90 per week (ii) Employees provided with accommodation only – $57.70 per week (iii) Employees provided with meals/rations only – $13.20 per week.”. It has to follow that the value of “keep” is $70.90 per week. -- 2 of 4 -- 7 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 827 It is s. 5.1.1 which lies at the core of the controversy. Section 5.1.1 provides: (emphasis added) “Subject to the additional payments prescribed in Schedule 1 of this Award as to employers therein named, the following shall be the rates of wages with keep payable to the respectively designated classifications of employees engaged on station properties in the Southern Division, Eastern District: Award Rate Per Week $ Station Hand Level 1............................................................................................... 372.10 Station Hand Level 2............................................................................................... 384.30 Station Hand Level 3............................................................................................... 409.80 Book and Storekeeper ............................................................................................. 409.80 Cook ........................................................................................................................ 401.30 Cook’s Offsider....................................................................................................... 372.10 Domestic 19 years of age and over ......................................................................................... 358.80 Under 19 years of age Note: The weekly rate of pay with keep for a ‘Domestic – Under 19 years of age’ shall be calculated as follows: 65% of (Rate of pay for ‘Domestic – 19 years of age and over’ plus value of ‘keep’) less the value of ‘keep’. NOTE: The rates of pay in this award are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments.”. The contention of the appellant is that for each designation of employee, e.g. Station Hand Level 1, the subsection fixes a wage rate consisting of the money amount mentioned plus keep. Because “keep” has a known value of $70.90, the true minimum wage for each of the designations is the money amount plus $70.90, e.g. in the case of Station Hand Level 1 the true minimum wage is $443. That figure is in excess of the minimum wage fixed by the General Ruling, viz. $431.40. The contention of the respondent is that s. 5.1.1 fixes a minimum wage for every designation of employee named therein where the worker is engaged “with keep”. On that construction the minimum wage for a Station Hand Level 1 is $372.10. $372.10 is considerably less than the minimum wage of $431.40 fixed by the General Ruling. I am not satisfied that any other section of the Award assists in the construction of s. 5.1.1. Senior counsel for the appellant places reliance on s. 5.2.5(b) which provides: “The full value of ‘Keep’ shall be included in the calculation of payment for employees working overtime, on annual leave or long service leave.”. If it was a matter of arbitrating the inclusion of the value of keep in the “real” minimum wage of employees “with keep”, s. 5.2.5(b) would be a sound basis for an “equity” argument. But in an exercise about construction the provision is equivocal. If the appellant’s contention about s. 5.1.1 is correct, s. 5.2.5(b) would be unnecessary. Senior counsel for the appellant relies also on s. 10 of Schedule 2 which provides: “ ‘Without “Keep” Rate of Pay’ means the sum of the rate of pay prescribed by clause 5.2 (Wages) (sic) and the ‘not found’ allowance prescribed in clause 5.2.5.”. Once again, one has to wonder why Schedule 2, which is the Dictionary to the Award, does not define the rate of pay for workers engaged “with keep” if it is other than the express rate for each designation at s. 5.1.1. I accept the submission of senior counsel for the appellant that there are authorities which favoured the construction contended for, see e.g. 85 QGIG 5 and 89 QGIG 836. But the authorities related to earlier versions of the Award. I accept also that at least some earlier versions expressly adopted the appellant’s contention; see e.g. the Station Hands’ Award – State reprinted as at 19 January 1987: (emphasis added) “11(3) In this Award the value of keep for all purposes including the computing of payment for employees working overtime or on annual leave shall be deemed to be $24.30 per week. This value of ‘keep’ shall be increased by two cents per week for each ten cents per week increase in the weekly ‘without keep’ rate of pay of an adult General Station Hand employed in the Southern Division Eastern District. “11(4) Wage Adjustments. – In this Award for the purpose of calculating wage adjustments only:- (i) The sum of the value of ‘keep’ prescribed by this Award and the ‘with keep’ rate of wage for each classification prescribed by clause 11(1) hereof shall be known as the ‘without keep’ rate of pay for each classification. (ii) The ‘without keep’ rate of pay for each classification shall be considered the ordinary time rate for the purpose of calculation of wage movements and payment for employees working overtime or on annual leave or long service leave.” And further, “Guaranteed Minimum Wage – Adults 12(4) … Provided further that the monetary value of any allowance for board and/or lodging as permitted by this Award shall be taken into account in the calculation of the guaranteed minimum wage…”. -- 3 of 4 -- 828 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 November, 2003 But everything changed in November 1997. In its written submission the respondent summarises the events of 1997 as follows: “17. The final outcome of those proceedings, which is reported at 156 QGIG 701, reflected the claim made by the UGA with respect to the ‘keep’ allowance. That particular outcome occurred in circumstances where approximately 130 out of 190 claims were consented to between the AWU and the UGA. The matter of the UGA claim for a revised ‘keep’ allowance clause was not a matter ultimately arbitrated by the Commission, in the sense that the issue required the Commission to make a finding in the face of competing claims. 18. Additionally, the Guaranteed Minimum Wage clause in the Award was substantially remodified to exclude the following reference which appeared in the earlier cases cited by Agforce in these proceedings:- ‘Guaranteed Minimum Wage (1) … .. (4) … Provided further that the monetary value of any allowance for board and/or lodging as permitted by this Award shall be taken into account in the calculation of such guaranteed minimum wage, such allowance to be the amount fixed by clause ( ) of this Award’.”. Whilst I have some sympathy for the appellant, who in 1997 would have been extraordinarily prescient to have anticipated the enactment of s. 287(1)(c), reading the changes objectively it seems to me that the changes manifest an intention henceforth to treat “keep” as a non-pecuniary benefit where actually provided. Further, given the consensual nature of the changes and that the appellant initiated the material changes, it seems to me that the language should be construed contra proferentem. In my mind, properly construed, the Station Hands’ Award – State does not require the addition of the money value of keep to the rate of pay for workers engaged with keep in determining whether the minimum wage for such workers is below the minimum wage set by the General Ruling. I dismiss the appeal. Dated 27 October 2003. D.R. HALL, President. Released: 28 October 2003 Appearances: Mr J. Murdoch SC and with him Miss C. Arnold, instructed by Thynne and Macartney, for the appellant. Mr B. Swan for the respondent. -- 4 of 4 --