Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees and Another v Local Government Association of Queensland (Incorporated) [1997] QIRC 52 (1997) 154 QGIG 799

7 March, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 799 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 46 application for re-opening Federated Engme Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees AND The Australian Workers' Union of Employees, Queensland AND Local Government Association of Queensland (Incorporated) (No. B1700 olf995) LOCAL GOVERNMENT EMPLOYEES' (EXCLUDING BRISBANE CITY COUNCIL) AW ARD - STATE COMMISSIONERS EDWARDS, DE.\.fPSEY, BECHLY 20 February 1997 Reopening Arbitrated Matter Evidence Directions - Claims Employees Disadvantaged Party Wise in Hindsight Application ro Re-open Refused Specific Clauses Could Disadvantage Parties to Confer on Disputed Clauses Commission to Arbitrate Disputed Clauses in the Public Interest if No Agreement. DECISION This decision deals with an application by Pederated Engine Drivers' and Firemens' Ass(x:iation of Australasia Queensland Branch. Union of Employees (FEDFA) filed on 28 September 1995 to re-open under s. 46 of the lndusrriul Relations Act 1990 applications:- R37-3 of 1989; R37-4 of I 989; B324 of 1990; Rl72-3 of 1989; and B 147 of 1992. The application and submissions relate to the Local Government Employees' (Excluding Bri:,banc City Council) Award State, particularly clauses 4.1 (Hours of Work), 4.3 (Overtime), 4.4 (Meal Rreaks) and 5 3 (Sick Leave). These clauses are set out below:- "4.lHours of Work (I) Work Cycles (a) The ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases:- (i) 38 hours within a work cycle not exceeding seven consecutive days; or (ii) 76 hours within a work cycle not exceeding fourteen consecutive days; or (iii) 114 hours within a work cycle not exceeding twenty-one consecutive days; or (iv) 152 hours within a work cycle not exceeding twenty-eight consecutive days. (b) The work cycle or work cycles and the arrangement of ordimuy hours within work cycles shall be detemlined by the Council after consultation with the employees concerned. Without limiting the opt10ns for arrangement of ordinary hours examples of the way ordinary hours may be arranged are as follows:- (i) hy employees working less than eight ordinary hours each day; or 22534 __ 1.DOC -- 1 of 5 -- 800 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 March, 1997 (ii) by employees work111g less than eight ordinary hours 011 one or more days each work cycle; or (iii) by fixing one or more work days on which ali employees will be off during a pai1icular work cyde: or (iv) by rostering employees off on various days of the week dunng a particular work cycle. so that each employee has one work day off during that cycle. (c) The method of implementing the 38 hour week may be altered by a Council after giving seven days notice or such shorter period as may be mutually agreed upon between Council and the majority of employees concerned. Prior to an alteration of the method of implement mg the 38 hour week, the Council shall consult with the employee-. concerned. (d) Notwithstanding any other provision in this clause. where the arrangement of ordinary hours of work provides for a rostered day off, the Local Authority and the majmity of employees concerned. may agree to accrue up to a maximum of five rostered days off Where ~uch agreement has been reached, the accrued rostered days off shall be taken within twelve calendar months of the date on which the first rostered day off was accrued Consent to accrue rostered days off shall not he unreasonably withheld by either party. (c) Different arrangements of work cycles and ordinary hours within work cycles may apply to 111div1dual employees. groups or sections of employees 111 a Local Authority. (2) A.rrarzKement of Hours Subject to subcbuse {3) the ordinary hours of work may be worked on any five consecutive days in the week, Monday ro Sunday inclusive -;uhject to the following:- (aJ (i) ordinary hours worked on a Saturday shall be paid for at the rate of time and a-half for the first three hours and double time thereafter; (it) ordinary hours worked on a Sunday shall be paid for at the rate of doubie time. (b) Any arrangement of hours which includes a Saturday or Sunday as urdinaJv hours shall be subject to agreement between the Counctl and the "majonty ot employe~s concerned. (c) (d) Where any arrangement of hours includes a Saturday or Sunday as ordinary hours, the relevant industrial organization or industrial orga11i~1ions shall be notified in writing within fourteen days of commencement ol such aITangement. In camps. maintenance patrol operations or where special circumstances exist. it mav be mutually agreed between the Council and the rnaJority of ernph;yees concerned that the ordinary hours in any of the work cycles prescnbed in subclause ( I l may be worked on consecutive days In such cases. Saturdays and Sundays falling within the period of work shall not be subject to tht: additional payment~ prescribed by provision (a) of this subclause. ( 3 J Span <If Hours (a) Subject 10 provisions (d) to (k) of thi, subclause in which the following span of hours shall not apply. the ordinary hours of work shall be worked continuously, except for meal breaks and re\t pauses. between 6.00 a.m. and 6.00 p.m. The spread of hour\ prescribed herein mav be altered a, to all or a section of employees prov1(kd there 1s agreement· between the Council and the majority of employees concemecl: Provided that where special ;::trcuim,tances such as tidal or flood water~. traffic flows or climatic condit10ns necessitate work outside the ~pan of hcurs on a particular job or project such work may be done outside the span of hours without payment of overtime. The maximum number of ordmary daily hours shall not be exceeded. This provision shall not be utilised until the Council has discussed the change of hours with the employees concerned. (b) The ordinary hours of work prescribed herein shall not exceed lO hours on any day: Provided that where the ordinary working hours are to exceed eight on any day. the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned: Provided further that where any arrangement of ordinary hours exceeds eight on any day, the relevant industrial organization or industrial organizations shall be notified in writing within 14 days of commencement of work under such arrangement. /c) Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks to maximise available working time. Preparation for work and cleaning up of the employee's person shall be in the employee's time. (d) By-Lmvs Compliance Employees The ordinary hours of work of employees directly engaged on the enforcement or monitoring observance of Council By-laws shall be determined by Council after consultat1on with the employees concerned. Where broken shifts are worked, there shall not be more than 16 hours between the starting and finishing time on any one day. (c) Sanitary and Garbaxe Workers The ordinary hours of sanitary and garbage workers may he worked between ihe hours of 4.00 a.m. and 4.00 p.m. (f) Street Sweepers and/or Cleaners, Operators of Street Sweeping and FlushinK Machines. Sewer Cleaners Under,;round. I'ump Attendants The starting and finishing times of these employees shall be determined by the employer ba1,ed on the requirements of the work. Where such employees are required to work their ordinary hours before 6.00 a.m. or after 6.00 p,m. an additional amount of 25% of the ordinary time hourly rate shall be paid for all hours worked before 6.00 a.m or after 6.00 p.m. (g) Water and Sewerage Treatment Plants The ordinary hours of \'.Ork of employees at treatment plants shall be determined by the Council after consultation with the employees concerned. (h) Muwr Bus Drfrers The starting and finishing times of motor bus drivers and depot attendants engaged in Council bus services shall be as determined by the Council and contained in a roster displayed in a prominent place in the depot Except in the case of unforeseen circumstances, (such as the illness or absence of another dnver). or where the ernployee/s concerned agree, the roster shall not be changed unless six days' notice of <;uch change is given by the Council (i) Hospitality A< tivities The ordinary hours of work for employees engaged in hospitality activiiies (i c. cooking and/or serving of food and preparation and/or serving of d1inks 01 hevernges) may be worked between the hours of 6.00 a.m. and 1.00 a.m. (j) Carerukers (i) The ordinary hours of caretakers shall be dett:nnined by the Council afte~ consultation with the employees involved; (ii) Cai etakers provided with quarters shall not be deemed to be workmg because they open and dose the premises of which they are in charge; (iii) Caretakers shall unlock and open premises before and after their ordinary working hours without extra remuneration Provided that where premhes are required to be kept open until l 0.30 p.rn.. the time occupied after 10.30 p rn. closing and locking shall be paid for at overtime rates. ( k) S11.1mmmx Pools - The ordinary hours of work of all employees employed at swimming pools shall be detennined by the Council after consultation with the employees concerned. Except in the case of managers, caretakers or persons rn charge, such hours may be worked on the basis of a split ~hift within a ,pread of 12 hours from the stat1i11g tune each day with not more than two breaks other than meal breaks or rest pauses. 7 March, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 801 4.3 Olertime ( l) All aulhorised t11ne worked out~ide or in excess of the ordmary hour, fixed in accordance with clause 4.1, on any one day. shall be deemed to be ove1t1me E.l{ccpt as hereinafter provided, overtime shall be paid for at one and a- half times the ordinary rate for the first three hours and double time thereafter (2) Ovet1ime worked on Satu1day shail be paid for at the rate of time and a-half for the first three hour, and double time thereafte, with a minimum payment of three hours at overtime rntes, An employee shall not be entitled to a minimu111 payment in respect of each separate period of overtune: Provided that in the case of an employee required to remain on call and who i., paid the allowance pre:-cnbed by dau~e 3.5( 15) a minimum payment of one and a-half hoU1:-. shall apply No minimum payment shall apply where the overtime is continuous with an employee's ordinary hours of work. (]) Overtime worked on a Sunday shall be paid for at the rate of double time with a minimum payment of three hours at overtime rates. An employee shall not be entitled to a minimum payment in respect of each separate penod of overtime. Provided that in the case of an employee required to remam on call and who is paid the allowance prescribed by clause 3.5( 15) a min1111um payment of one and a half hours shall apply. No minimum payment shall apply where the overtime is continuous with an employee's ordinmy hours of work (4) Shift Workers All autho,i'>ed overtime performed by shift workers shall be paid for at the rate of double tnne. (5) Rostered Day O(l An t:mployee required to work on the rostered day off shail be paid at the rate of time and a-half for the first three hours and double time thereafter with a minimum payment of three hours. An employee shall not be entilled to a minimum payment in-respect of each separate period of overtime. (6) All work done during the normal meal break shall be paid for in accordance with clause 4.4. (7) In the case of an owner driver working ove111me, ovenirne rates shall be paid on the wage of the driver and the use of the truck shall be paid m accordance with the lme rate m; set out in Schedule 1 of thi, A ward. (8) (a) An employee recalled to work overtime on one of their ordinary working days shall receive a minimum payment of four hours at the prevailing ovet1imc rate. An employee shall not be t:ntltled to a minimum payment in respect of each call-oUi on tile sm11e day Provided that in li,~u of the four hours' minimum payment ment10ned above, where the employee was notified of the need to return to perform work prior to the completwn of the ordinary hours on the day in question or where the employee is required to remain on call and is paid the allowance prescribed by clause 3 5( 15 ), a minimum payment of two hour~ at the prevailing overtime rate shall be payable. . Employees recalled to work ovenime may be required to perform add1tzonal work of a breakdown or emergent nature which arises during the couri;e of the work which wa~ the subject of the recall. (9) (a) An employee who works so much overtitm: between the termination of his or her ordinary work on one day and the commencement of his or her ordinary work on the next day that he or she ha~ not at least IO consecutive hour~ off duty between those times shall, subject to this subclause, be released after completion of such overtime until he or she has had IO consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instructions of his or her employer such an employee resumes or contmues work without having had such l O consecutive hours off duty, he or she shall be paid double rates until he or she is released from duty for such period and he or she shall then be emitled to he absent until he or she has had 10 consecutive hours off duty without los,s of pay for ordinary working time occurring during such absence. (h) The prov1s10ns of this sulx:lause shall apply in the case of shift workers who rotate from om: shift to another as tf eight hours were sub~tituted for ten hours when overtime is worked. (i) for the purpose <)f changing shift roster,. (ii) where a shift worker does not report for duty: (iii) where a shift is worked by arrangement between the employees thcmsel ve~. 4.4 Meal Breaks i l) Employees shall be entitled to a mt:al break of not less than 30 rmnutes and not more than one hour. Sub1ect to the provisions of subclause (4) of this clause. the time allowed fo1 such meal break shall commence not later than six hours alier the ordinary starting time each day. The duration of a mt:al break having ocen determined as the recognised meal break in accordance with thi:-- subclau,e may only be altered by mutual agreement to a proposed change or hy giving of one week's notice ro the employee concerned. (2) Shift workers shall be allowed 30 minutes for crib without loss of pay to be taken in such a manner as to not interfere with the continuitv of work. I 3) Except as pwvided for in subdause ( 4) of thi<; clause, all work done during the recognised meal break shall be paid f01 at double time. Such payment will continue until a meal break is taken. (4) Continuity of Work dunnx Meal Breaks (a) Where the efficiency of Council may be increased through a JOb being completed or W{ 1 rk being continued for up to 30 minutes into the normal meal break, the meal break may be delayed up to a maximum of 30 minutes, without penalty. The normal meal break shall be taken on the completion of the job or when 30 minntc~ ha\ elapsed. (b) Where work requires, the Council and the employee:-. may agree to reduce the normal meal break duration to one-half an hour, taken within the normal starting and ceasing time of the meal break: Provided that employee~ who nonnally have a one hour or 45 minute meal break shall finish work thirty minute;; or fifteen minutes earlier re~pectivel y. (5) (a) Meal Breaks d:iTinJ; lhertune Ernrloyt·.es required to continue work after th::: normal cea'>ing time shail be entitled to a thirty minute crih break after two hours work where work i, to continue beyond two hours: h (b) Overtime worked in the circumstances specified in this subclause s all not be regarded as overtime for the purposes of subclause ( 9) hereof where the actual time worked i\ less than two hours on such recall or on each of such recalls. Pronded that where such overtime continues beyond 6.00 p.m., a thirty minute crib break ~hall be provided after one hour where work is to continue beyond one hour. k) Thi, subclause shall not apply in cases where it is customary for an employee to return to his or her employer·, prenuses to pcrfonn a spc~ific Job outside his or her ordinary worki~g h~urs. or where the overtime 1s continuous (subject to a reasonable meal break) with the completion or commencemcm of ordinary working time. After each further period of four hours overtime on the ~ame day, the employee shall be allowed forty-five minutes for crib where work i~ to contmuc beyond four hours. No deduction of pay shall be made in resp,.~ct of such crib break. 22"\34_1 DOC -- 2 of 5 -- 802 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 March, 1997 (b) In ail other circumstances, an employee shall be entitled to a crib break of thirty minutes after five hours of overtime where the employee is required to work beyond the fifth hour. A further crib break of forty-five minutes shall be provided after each additional period of four hours where the employee is required to work beyond this period. No deduction of pay shall be made for such crib breaks 5.3 Sick Leave (I) Every employee (other than a casual employee) shall become entitled to not less than 60.8 hours sick leave for each completed year of employment with an employer. For any complete.d period of employment of less than one year with an employer. an employee shall become entitled to 7 .6 hours sick leave for each six weeks of such pcnod. (2) C•m·ers/011 of Accn,ed Lea re All leave accumulated or accrued on the basis of a 40 hour week shall be converted on the basis of a 38 hour week and rates of pay applicable to such leave shall be calculated on the basis of a 38 hour divisor. Consequently credits will be convened a, follows -- If in Wecb x 38 hours: ll in Days x 7 .6 hours: If m Hours x 7 .6 divided by 8. Leave Debits Leave debits will be equivalent to the ordinary hours employees would have worked had they not been on paid leave. Such leave will therefore be paid and debited on the basis of hours actually taken. /3) (a) EYery employee absent from work through illness on the production of a certificate from a duly qualified medical pract1ttoner specifying the nature of the illness of the employee and the period or approximate period during which the employee will be unable to work, or of other evidence of illness Lo the satisfaction of his or her employer, and subject to his or her having promptly notified his or her employer of his or her illness and of the approximate period aforesaid shall, subject as herein provided. be entitled to payment in full for all time he or she is so ab~cnt from work Provided that it shall not be necessary for an employee to pr(Xlll<:c such cc1tiiicate if his or her absence from work on account of illnc:-s docs not exceed two days. (b) In cases where an employee's record of aacndancc at work detenorates to a point where it can be deemed to be unsatisfactory, that Council may introduce a system whereby the employee will be required to produce satisfactory evidence. which may include a doctor's certificate before payment of any sick leave 1s made. (41 (a) Sick leave shall be cumulative, but unless the employer and employee otherwise agree, no employee shall be entitled to receive, and no employer shall be bound to make, payment for more than 494 hours absence from work through illness 111 any one year. (b) The continuity of employment ot an employee with an employer for sick leave accumulation purposes shall be deemed to be not broken by any of the following: ( i l absence from work on leave granted by the employer; (1i) the employee having been d1'>missed or stood down by the employer, or the employee havmg himself temunated his or her employment with the emplover, for any penod not exceeding three months: Provided that the employee shall have been re-employed by that employer. The period during which the employment of the employee w1th the employer :,hall have been interrupted or determined in any of the circumstances mentioned in paragraph (a) hereof shall not be taken into account in calculating the period of employment of the employee with the employer. (5) Where the arrangement of ordmary working hours provides for an employee to be off on one or more days m a work cycle, sick leave shall not be payable where the employee 1s sick on such day or days off." With respect to each of the clauses the argument by the applicants is that their respective members are disadvantaged as the provisions contained in the previous Local Authorities (Excluding Brisbane) and Main Roads Etc A ward State are superior. The provisions of the old award are as fo!lows:- ·'Clause 3A (Hours of Work Employee~ of Local Authorities) (I) Subject to ciausc 38 (Jmpicmcmation ot 38 Hour Week), and subject to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week, Monday to Friday, to be worked on one of the following bases:- (i) 38 hours within a work cycle not exceeding seven consecutive days: or (ii) 76 hours withrn a work cycle not exceeding fourteen consecutive days: or (iii) 114 hours within a work cycle not exceeding twenty-one consecutive days: or (iv) 152 hours within a work cycle not exceeding twenty~ight consecutive days. (2) Subject to subclauses (3) and (4), the ordinary hours of work prescnbcd herein shall be worked continuously except for meal breaks and rest pauses, between 6.00 a.m. and 6.00 p.m. The spread of hours prescribed herem may be altered as to all or a section of employees provided there is agreement between the Local Authority and the majority of employees concemt'.d: Provided turthcr that work done outside the hour~ of 6.00 a.m. to 6.00 p.m. shall be paid at overtime rates and will be deemed to be pan of the ordinary hours of work for the purposes of this subelausc. (3) The span of hours set out Ill subelausc (2'! of this clause shall not apply to: (1) Street sweepers and/or cleaners including operators of street sweeping and flushing machines, mechanical brooms etc .. (i1) Sewer cleaners underground. The st,1rting and finishing times of thcst'. employee~ shall be determined by the employer based on the requirements of the work. (4) Sarntary and Garbage Workers Etc.. The ordinary hours of sarntary and garbage workers may be worked between the hours of 4.00 a.m. and 3.30 p.rn. (5) The ordinary starting and finishing times of variou~ groups of employees or individual employees, may be staggered. provided that there is agreement between the Local Authority and the majonty of employees concerned. (6) The ordinary hours of work prescribed herein shall not exceed 10 hours on any day: Provided that where the ordinary working hours arc to exceed eight on any day, the arrangement of hours shall be subject to the agreement of the Local Authority and the m;:ijority of employees concerned: Provided further that where any arrangement of ordinary hours exceeds eight on any day, the Chief Industrial Inspector and the relevant Onion or t.:nions shall be notiticd in writmg within 14 days of commencement of work under such arrangement. (7) Employee.,; arc required to observe the nominated siarting and finishing times for the workday, including designated breaks to maxirnise available working time. Preparation for work and cleaning up of the employees person shall be in the employees time. Clause 4 (Overtime) (I) All overtime worked shall be recorded on the day following the day that such ovci1imc is worked. and payment for any overtime worked shall be claimed, adjusted and made at the next ensuing date of payment of such employee. 7 March, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 803 21.ti All time worked by :rny employee outside or in exec,;~ ol the ordinary workmg hours ol such employee as fo.ed by clause 3 shall be dee111edu·,c111rne and except as hereinafter provided ,hali be paid for at the rate ;.)f time and ,1 haif tor the firsi three h\>llfs and dnuhle time thereafter (h J Ovcrtm1c· commencing on ~aturday shall be paid for at the rate of wnc and a half for the first three hour\ and double 11me thereafter wJth a m1111mum payment as for three hours at the overtime ralc (CJ Overtime worked on Sunday ~hall be paid fo1 at 1he rate of double 11111..: with a m1111mum payment ,l~ tor three hours at the overtime rate. (d) Where employees (other than employee-. of Local Authoritic~s) arc called out bct\vcen midnight and 6.00 a.m. or in the case of Local Authori!v cmployee:,,. a1<: calbJ DUI hetwcen m1dmght and ."i.00 am, they ~hall be pai~I ut double t1111c loi~ aH !Im.: so WOI ked up to ordinal y Slarting time M,mday to l·nday and up IO I.OU a.m. Saturday with a mmirnu111 ol four hours. (3) !\o (r,,:11imc shall be allowed for any time worked by an ernpluyee of ::i tramway depar1mcnt hy reason of floods. breakdown,, urgent shop repa;rs. or by rea:-.<•n of the llllll arnvc1l 1>r laie anival of the relieving -.hiti men. . ! 4 l AU work done by drivers of sanitary cans after IO. am. Saturday until the ordmary '-tartmg lime on Monday shall be paid for at double rates (5) All work done during the recognised meal period ,hall be paul tor at the rate of ~Jubic tnne. such payment to continue until a meal pc;.iod has commenced. ;')tKh meal penod ,hall be of the pre:-cribed duration. (6) In the cast: of owner-driver!; working overtime, overtime rate:,, ,hall be paid on the _wage of the driver and the u:-,e of the truck ,hall be paid for at or.Jmary rate~ tor the whole of the time ll is lI1 use. (7) Employees, other than those )JVing in rnmps. called upon to work ove11n11e for more than one hour after the ordinary ceasing time shall he paid by the employer th,; sum \lf $6.20 as meal money in addition to oveitimc payment for time W,)rked (8) Anycmployee recalled to work alter the ordinary ceasing time ~hall receive a m1mmurn payment of four hours at the prevailing over1ime rates. Overtirn,: worked in the circumstances specified in this suhdau.s.e shall ~ot Ix: it:garded as overtm1e for the purposes of suhclame (9) hereof where the actual time worked is less than two hours on ~uch recall or 011 each l)f such recalls .. (9) An employee who works so much overtime bctw,~~~n the termination ot his 01 dmary work. on one day and the commencement of his ordinary work on the 110.t day that ne has not at least 10 consecutive hows off duty between those turn'.,; shall, subject to th1~ suhclause be released ,dier completion of such ovett1me until he has had IO con~ecuti ve hours off duty without los-" of pay for urrhnary workmg time occurring during such absence. If on the mstructm11, of his employer such an employees re:,,urne:,, or continues work without havrng had such 10 consecutive hours off duty, he sha!I be paid douhk rate" 1111111 he 1~ released from duty for such period and he shall then be entJtlcd to be ah,-ent until he has had l () consecu1i ve hours off dutv without In.,~ of pay for ordinary working time occuJTing during such absenc~. The pwvisions of this subdause ,hall apply in the case of ~hilt worker,; to rotate from one shift to another as if eight hours wew sub-;tituted for ten hours whe11 ovenime is worked (i) For the purpose of changing shift roster\. or (iiJ Where a shift worker docs not report for dwy; or (iii) ~her,: a shift is worked by arrangement between the employee~ lnemsclvc, , ( lO)An_v employee who 1s required to continul: working for more than tc houi after the ordrnary ceasing time shall be allowed thirtv : 30 J minuv·s or cnb after the f .• h ·k ·I I I' - , , ~ c _ • 1r~, our wor ~cl, a so ony-hve <45) minute~ for each ,urther foU1 (4" h k d I- . . . d . ,; ours wor e or wh1cn nn eduction of pay shall be made , , Where an employee is required to remain on call 011 any Sunday or statutory holiday. he shall be paid for such Sunday or statutory holiday a ~um equal to his pay for. a working day of eight hours: Provided that if any employee wh1bt on call 1s required to perform any other work for which rates of pay arc fixed hy this award, he shall be paid for the time so worked at the o.vert1me rntc herein prescribed in lieu of the above rate and the sum :b,~v~mentiont:d shall be reduced by an amount bearing the sa 111 e proportion ,o ~uch ~um as theume worked at overtm1e rates bears to the period of ei~ht hours: Provided lurther, 1f the lllne worked by the empioyee at over1 1;11 e rates 1s eight hour~ or more, then the employee shall be entitled to receive only the amount earned by him at overtime. Clause 7 A (Sid Leave Employees of Local Authorities) , ( 1) In respect of employment on or atter I July 1990 every employee ~hall become entitled to not less than 60.8 hours sick leave for each completed year of his employment with an employer. Moreover for any completed penod of employment of le~, than one year alter l ,July 1990 an employee shall become entitled to 7 Ji huJJTs sick leave lor cacn six wech of such period: .Conversion nf Accrue~.! leave: All accumulated or accrued leave up to and mcluchng 1 July 1990, shall be uedited on the basis of a 38 hour week ,tnd rates.of pay applicable to such leave shall be calculated on the basis of a 38 hour d1v1sor Con-.equt:ntly credits will be converted as follow~·-- lf in weeks x. 38 hours If in day~ x 7 .6 hours If in hours No. of hours x 7.6 divided by 8 Leave debit;. Leave debits on or after I July 1990 will be equivalent to the ord1~ary hours employees would have worked had they not been on paid lcm•e: Such leave will therefore be pmd and debited on the basi~ of hours actually taken. , (2) E_vcry employee absent from work through illness on the production ot a ccrt.ihcate from a duly qualified medical practitioner specifying the nature of the illness of the employee and the penod or approximate ix'.riod dunng which the employet'. will be unable to work, or of other evidence of d!nc~: to the satisfaction of h.is employer, and sub.1ect to his having promptly n,>t1hcd h.1s employe1 of his illness and of the approximate peiiod afo,esaid shall, suhJect as here111 provided, be entitled to payment in full for all time he is ~o absent from work . Provid~d. it ,hall not be necessary for an cmpioyce to produce such <:ert1ficate 1t his absence from work on account of illncs~ docs not cxce.ed two day:- /3) Sick leave shall be cumulative, but unless the employer and employee otherw1~e agn:t. no employee shall be entitled to receive, and 110 employer shall be bound to make, payment for more than 494 hours; ab..,ence from work through !line,.., in any one year. ( 4) ( a) The contmui;y of employment of an employee with an employer fm sick leave accumulation purposes shall be deemed tu he not broken by any of the followmg:- ( i) Absence from work on leave granted by the employer: (ii) The employt:e having been dismissed or stood down by the cmploye1, or the employee havmg himself terminated his employment with the employer, for any period not ex<:<:~:ding three months· Provided that the employee shall have been re~mployed by that employer (h) The period during which the employment of the emplovee with the employer shall have been interrupted or determined in ;my of the circumstances mentll>ned Ill paragraph (a) hereof shall not he taken into acct'unt in calculating the penod of employment of the employu: with the employer .( 11 i An employee requ. tred to remain on call during anv chv or night outside • · d. . ' ' · - · . ' rm or 111,IJ'y workmg hour~. ,hall be paid $5 for each dav and/or ntght, during whid1 he remams on call. '' ,(5) Where th~ arnmgemcnt of ordinary working hours provides for an employee to be oft on one or more days in a work cycle, sick leave ~hall not be payable where the employee 1s ,ick on such day or days off" 165662-- 62 22514_!DOC -- 3 of 5 -- 804 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 March, 1997 The decision of 1hi, full Rench was released on 6 April 1993 and enabled the gr;mting of an Award entitled Local Government Employees' (Excluding Brisbane City Council) Award State. The di1ec1ion of the hearing and the minds of the Full Bench together with lho~e of the parlle~ were redirected towards the final -,tages of the hearings as a result of the stated policy of the Local Government Association of Queen~land (lncoroorated) (LGA) which provided !inn guidelines for the contents ot any new i~du~trial in!-trument In its decision of 3 I May 1993 the Full Bench stated a, follows:- " In preparing the contents of the draft award the parties are rerrnnded of the importance of ensuring that the transitional arrangements are m accordance with the stated policy of the LGA that no employee wrll he disadvantaged by the creation of this award In the further a~phcation of the new award the Commission will hear m mind this poltcy. The Full Rench in determining the content of the nc:w Award based ib dclitx,1arions on the ,tatt~<l policy of the LGA a, representative of ail local authorities to be covered by the Award The Award content, as prepared by tlie partie,, hut ,ubjcct to amemlmcnts approvc:d by the Commission, was to be in accorda11ce with the deci,ion arid direction" i~sued hy the Comm1s;;1on. The advocate for the FEDFA obviously ha, placed com,iderable 1diancc on that principle in this application for re-opening In support of this application, Mr Coogan for the FEDFA, outlined that the purpose of the re-opening is to: (a) allow the applicant an opportunity to demonstrate to the Comn11ss1on that the applicant and other unions were iknied an oppo11u111ty to respond to a subm1sswn presented to the Full Bench by the L(,A, subsequent to the release of the ongmal dec1s1on; (b) to explain to the Commission how the Full Bench was misled by the LGA in arriving at its original decision; and (c) to highlight to the Commissi011 clear anomalies which have been created a~ a rc.,,uh of the implementation and subsequent operation of the decision and which have ;.eriously di~advantaged members Mr Coogan fun her stated that it is the view of his union that the terms of s. 46 of the Act provides the Commi~sion with the necessary jurisdiction and di!>crctionary power to re-open proceedings. The union acknowledge~ that the purpose of a jurisdiction to re-open proceedings is not to provide a party wise in hindsight and enli!)_htened by failure an opportunity to see if tt can retrieve its position Mr Coogan indicated that his union has ce11ain views of the contents of the draft document subrrntted bv the LGA He accepted that the document forwarded to the Commission o~ 20 May 1996 by the LGA was provided to his union. Furthennore, the document prepared by hi~ union was forwarded to the LGA. lie submitted that his union was confused by the interpretation of the decision and the content of the material submitted b)' the parties. 'nie A WU adopted and ... upported the ,ubmissions of the FED FA Mr Longland, for the LGA. opposed the application and argued that it wa~ a 111at1er pf public interest that there be finality tu p10n~eding~ winch had inu·oduced an award that had been determined on the merits of the matter Evidence in support of the LGA of Quecn~land position was given by Mr D. Swan, Council Service Advisor. It was Mr Long land's argument that at the hearing on 3 l May I 99 .1 all material facts and circumstances were provided to the parties. The unions chose not to prepare comparative documents about existing clau<es and the LGA s draft or the FEDFA s diaft or any draft. He submitted that the Commiss1on was, at all t11ncs, cognisant of the importance of that material and during thc>se proceedings had questioned the parties at some length about that material. Mr Longiand further argued that there could have hecn no misapprehen~ion as to the facts hecau,e both the Commission and the Unions had pos:-.ess1on of the relevant docurnt~nt, for an extended pennd The uncontested swolll evidence wa:-, that the LGA drnft document wa~ hand delivered to the FEDFA by the LGA Mr Longland also outlined the chronology in which the documentation was prepared The chronology included:-- Process to establish new Award began in 1990 with the LGA filing an application on 20 September 1990 seeking the granting of a single award to apply to Local Government Employees not suhject tn an Aw:ird of the AIRC. In a deci~ion dated 24 March 1992 the Full Bench of !he Commission declined to grant a single award but di,ected the parties to co111inue discussions on reducing the number of awards, with the ultimate aim of creating a single award. A number of conferences were held before Commissioner Edwards subsequent to this decision. On 6 July 1992 Commissioner Edwards asked the LGA to prepare a further draft award in order to facilitate further discu;;s 1ons This draft award was provided to the respondent unions on 17 July 1992 This draft award was tabled at a subsequent conterence before Commissioner Edwards Al that confcrencl'. the LGA stated the draft was for discussion purposes only and did not represent the final LGA position. It was further stated that foilowing discussions on the draft the LGA's position on certain issues may change. Thi-, draft award was the; suhjcct of extem,ive dh,:us.~ions between the LGA and the ,e~pondent unions, and the i.,sues of overtime, meal brcab and sick leave were all specifically discm~d. The FEDFA responded to the LGA on 23 July 1992. A letter was sent to the FEDFA setting out the LGA's comments on this document Further revisions were made to certain areas of the draft award and were forwarded to the respondent unions on 23 September 1992. The matter then pr(x:eeded to arbitration and the LGA amended its application so that it included the items of the draft award presented to the unions on 17 July 1992 and a small number of changes to that draft which had resulted from discussions with the respondent union~ 111 furthe1 arbitration proceedings held in November 1992 Exhibit 26 was the subject of detailed submis!',ions by all parties including the FEDFA On 6 )';ovember \ 992, before the Full Bench of the Commission, Mr Coogan on behalf of FEDFA made specific submi\sions ons the proposed overtime clause, including the limitation on minimum payments. The Full Rench issued a decision on 6 April 1993. Following the release of this decision meetings took place, at which the FEDFA were represented, to discuss wage transaction arrangements and the content ot the new Award. A further document was provided to the Commission under cover of a letter dated I I May 1993 and was used as the basis for ongoing discussions at fmther meetings. Between l O Ma)' and 14 May 199.'.\ the LGA wa, involved in further discussions with Mr Coogan of the FEDFA in relation Lo the contents of the Award A\ a result of these discussions the LGA agreed to make some funher changes. On 20 Mav 1993 the LGA wrote to the Commission setting out their final position in relation to the contents of the Award. This was one of the re{Juirernents of the Commission decision dated 6 April 1993. In this correspondence the LGA included information in support of the major provisions that it was seeking to have included in the A ward as well as comments on the propose<! ove111me prov1s1ons and brief comments on the meal break provision. The FEDFA presented its own draft Award to the Commission. On 28 May J993 the Full Bench directed that the matter be relistc<l for 31 May 1993. A letter was sent to each party by the Commission stating that the parties would be required to further clarify a number of issues on that occasion. Funher proceedings took place before the Full Bench on 3 l May I 993. This was some days after the FEDF A had been provided with a copy of the LGA's final draft and the LGA had been provided with a copy of the FEDF A· s final draft. 7 March, 1997 QUEEI\SLAND GOVERNMENT INDUSTRIAL GAZETTE 805 Jmmcdiatdy pr,iceding the making of the new award by the Conurnssion the partic, were unable to reach agreement un virtually any i-;sues. In the cin:umstances th-: Commission gave c,~rtain directions to the parties and guidel111es for the parties to follow in the preparation of the contents of a new award and what should be omitted from their respective propo.,ab Comrrn,sioner Edwards chaired \ubsequent discussions between the panies The parties were unable to agree on award content and Commi~,ioner Edward, directed each pany to submit draft awards for consideration This process wa.-.: foliowed The Commission subsequently adopted the pattern proposed by the LGA but modified as determined by the Commission Implicit in the adoption of the draft provided by the LGA was acceptance that the draft h,1cl been prepared in accordance with the Commission's directions, particularly as to the undertaki;ig of ·'no disadvantage" as stated by the LGA. The final terms of the new award appear tu have been accepted by all pmiies as reflecting the determination of the Commis.~ion until implementation was attempted by some local authorities. The attempted implementation by the Toowoomba City Council (D83 of 1996) highlighted certain implcrncntat1on difficullic\ It wa~ following this matter that the umons party to thi~ matter sought a reopening to revisit the matters now in dispute. During the course of the proceedings now before us M, Longland highlighted the well travelled argument that a reopening cannot be founded upon a party hccommg wise in hindsight He made extensive reference to previous cases 10 support his contention. We note the followmg references: E/ec1ricity Supply Industry Employee's Award State (1990) QGIG 13 October 1990, pages 350--351, Cemrnr lndustn Award State (1993) ()GIG 23 July 1993, pages 497-498,' Pharmaceutical Empiovecs' Award - Public Hwpitols State ( 1989) QGIG 6 January I 990, page 9. Clerks' Award ffote/s and registered Clubs -- Slate (1995) QGIG 27 January 1995, pages 217-218, Nurses Award Public lluspital., State ( 1988) QGIG 12 march I 988, pages 200 to 203, Autodesk Inc and Another v Dyason and others (No 2) High Court of Australia 111 ALK 385, pages 385-409, Re Harrison and OtherY; tx parte Reid and Other.1 Industrial relations Court of Australia 62 IR pages 280-286, United FirefiRhters' Union of Austra!za. Union of Em1Jloyee.1, Qut'ens!and and Queensland Fire Sen'tcr Senior Offi£er.1 Assocwtion. Umon of Emp!oyrn. (1995) (JG !G J7 fcbrnary I 995 pages 437 443. It 1, clearly established law that a ground for re-opening a matter prc~·iously tfoterrnined cannot be a party becoming wi"e in hindsight of the effect of 1hr'. determination We therefore reject the application now before us. 111 order to address these contentions we have determined on our own motion to address the issues. We do so under Part 11 Prevention And Settlement Of Industrial Disputes or the Act. - Howe\er, in their arguments the unions have reforred us to specific; clauses previously referred lo and having exammed the existing clauses against those which existed prior to the new award we arc sati,fied that employees could be di,-advantaged. That circumstance is not within the spirit of our ongmal dcte1111ination. However, havmg said that employees could be disadvantaged doe.~ not necessarily mean that emplovee~ are or have hcen or will be disadvantaged. , d On the tj11estion of disadvantuge it is a matte1 for the applicants to emonstratc their claims and to do so beyond the Toowoomba City Council dispute given that the Commission received a notification of a dispute ~tween the parties and addressed the issue to the satisfaction of the. parties. 11 this regard w,i need evidence to clearly demonstrate that an md1v1dual or number nf local authorities have sought to take advantage to the detriment of employee~ by imposing current award provisions. · In order to effectively address the contentions of the parties we have taken. mto our consideration the prov1s1ons of Part 13 of the Industrial Relurwns Act 1990 Prevention And Settlement Of lndmtrial Disputes. Action on indu.-,trial dispute on notification or in the public interest. Section 3 i 9 provides a, f(J!lows :- "319.(l)An Industrial Commi~sioner is not to take action under tltis section unless (a) notification of an industrial dispute has oc.:n received by the Industrial Registrar under subsection (2) or (8); or (b) the Commis.,ioner is of the opinion that taking such action is in the public interest." ~ In this matter this Full Bench is of the opinion that taking the action we propose is in the public interest. In the matter hefore us we a;e satisfied that Local Government employers have a public responsibility and arc rtXJUired to provide a service to their constituents If as a result of a di,pute between the Local Authonty as employer and its employees the services expected by the public to be delivered by Local Authorities is impaired by the cxistt::nce of an industrial dispute we are of a view that it is our (full Hench/ responsibility in the public interest to determine the issues that are central to the application before us. Section 319(2) is set out a, follows:- "(2) If an industrial dispute exists between- (a) an industrial organisation of employers, ,1r employer, of the one part; and (b) an industrial organisation of employe.es, or employee. of the other part: and remains unresolved alter the parties have genuinely attempted to achieve a settlement thereof, each party to the dispute is to forthwith give notification of the existence of the dispute- (c) to the Industrial Registrar, if the dispute exists within the area of the City of Hri,hane; or (d) the Industrial Registrar or the nearest Industrial Magistrate, if the dispute exists outside the City of Bri~bane." Taking into con~ideration these provisions we are satisfied that the application hefore us is a clear indication that an industrial dispute exists between the parties and that their past efforts at conciliation have proved to be unsuccessful and the prospect of agreement being reached between the panie, is in our view remote to say the least. Having expressed those view\ we are of a belief that the provisions of the Act are such that every 11pportumty should be given to the partie, to conciliate and where possible reach agreement. In this regard we propose to give conc1hation another chance but only in so tar as clause-,; 4 1. 4.3, 4.4 and 5.3 of the Local Government Employees' (Excluding Brisbane City Council) Award State arc concerned. In the event that the parties cannot agree it is our det.:rmination that pursuant to the provisions of s. 319{ I )(b) that we will determme the provisions to be contained in those clauses after hearing the arguments and contentions of the pa11ies beanng in mind the decision we made in cuse Nos R37-3 and R37-4 of 1989, R172-3 of 1989, R324 of !990 and B147 of 1992. . In the event that agreement between the parties is not forthcoming we dlfect that the following matters be arbitrated in the public interest:-- clau:,,i.:s 4.1 (Hours of Work). 4.3 (Overtime), 4 4 (Meal Breaks) and 5.3 (Sick Leave). We further direct that the parties to the arbitration (if necessary) be the Federated Engine Drivers' and Firemens' Association of Australasia Queensland Hranch, Cnion of Employees, The Australian Workers' Union of Employees, Queensland. the. Automotive, Metals, Engineering, Printing and Kmdred Industncs Indw,tnal Union of Employees, Queensland, The Electrical Trades Union of Employees of Australta. Queensland Branch. the Transport Workers' Union of Australia, Union of Employees (Queensland Hranch) and the I ,ixal Government Association ol Queensiand ( Incorporated). 22534_LDOC -- 4 of 5 -- 806 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETIE TI1t: Commi,~ioo orders accor<liHgly. K.L. EDWARDS, Commissioner. H. DEMPSEY, Commissioner. R.E BECI IL Y, Commissioner. Appecirwic es. - Mr J. Coogan on behalf of the Federated Engine Drivers' and Fircmens' Association of Australasia Queensland Branch. Union of Employee, Ms Y I)' Ath on hehalf ,)f The Australian Workers' Union nf E111ploye..-~. Queensland. Mr J. Spreckley on behalf of the Automotive, Metals. Engine~ring. Primrng and Kind1ed lndust1ie~ lndu-.uiai Union of E111ployccs. Queenslaml. Mi R. Neil on behalt of The Electrical Trades Union of Employee~ of Australia, Queensland Branch Ms D. Whyte on behalf of the 1 ran,po11 Workers· Union of Australia. Union of Employees (Queensland Branch). Mr. A Longland of Frechill Hollingdale and Page on behalf of the Local Government Association of Queensland (Incorporated). Opcrati vc Date: N/ A Decision Re opening Reieased: 2 l February 1997 ########################################################## 7 March, 1997 -- 5 of 5 --