1843
The Queensland Government
Industrial Gazette
PUBLISHED BY AUTHORITY
PP 451207100086
Vol. 172
ISSN 0155-9362
Annual Subscription $358.00 (GST inclusive)
THURSDAY, 24 APRIL, 2003
No. 16
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999
Industrial Relations (Tribunals) Rules 2000
NOTICE
The following Agreements have been certified by the Commission:
No/s
Title
Date certified
Cancelling
CA62/03
Paroo Shire Council State - Certified Agreement 2002
3/3/03
CA580/99
CA73/03
Toowong Private Hospital - Nursing and Allied Health EmployeesNo 4 Certified Agreement 2003
14/3/03
CA431/01
CA74/03
Southport Diagnostic Imaging Pty Ltd - Certified Agreement 2002
20/3/03
CA90/03
Arthur Gorrie Correctional Centre - Correctional Officers – Certified
Agreement 2003
1/4/03
CA56/03
Utility Services Corporation Ltd - trading as Utility Asset
Management - Certified Agreement 2002/2005
2/4/03
CA88/03
Mundubbera Shire Council - Certified Agreement 2002
2/4/03
CA89/03
Boulia Shire Council - Certified Agreement
2/4/03
CA571/00
CA92/03
Clerical Staff Employed by the Queensland Nurses Union 2002 –
Certified Agreement
2/4/03
CA596/00
CA93/03
Crow's Nest Shire Council - Certified Agreement 2003
2/4/03
CA698/00
CA94/03
Quilpie Shire Council - Certified Agreement 2002
2/4/03
CA695/00
CA86/03
Mater Hospital Townsville - AWU Certified Agreement 2003
3/4/03
CA127/01
CA87/03
Darling Downs Foods Engineering Services Department – Certified
Agreement 2003
4/4/03
CA61/01
The following Agreement has been amended by the Commission:
No/s
Title
CA476/02
Crowd Control Industry - LHMU - Certified Agreement
E. EWALD
Date amended
1/4/03
CA94/00
1844
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
24 April, 2003
Industrial Registrar
INDUSTRIAL COURT OF QUEENSLAND
WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate
WorkCover Queensland AND Andrew Howard (No. C12 of 2003)
PRESIDENT HALL
3 April 2003
DECISION
The substantial issue between the parties is whether the respondent was a worker within the meaning of the legislative scheme at ss. 12 and 13 of the
WorkCover Queensland Act 1996 in the form which those sections took prior to the commencement of the Workcover Queensland Amendment Act 1999.
(The terms of ss. 12 and 13 in the form which they then took are set forth in the decision in Jones and Lockie v. WorkCover Queensland (2001) 166
QGIG 279 at 280. In those circumstances, I do not republish the provisions here.)
Allowing for concessions made by the parties and findings made by the Industrial Magistrate which are not now challenged, the question whether the
respondent was a “worker” is to be answered on the basis of the following propositions of fact and of law:
(a) The respondent was engaged by Top Roofs Pty Ltd under a contract of service and, at common law, was an employee not an independent contractor.
(b) The respondent was a PAYE taxpayer.
(c) Top Roofs Pty Ltd did not make PAYE deductions from the respondent’s earnings.
(d) Top Roofs Pty Ltd made PPS deductions from the respondent’s earnings.
The respondent did not consent to the deduction of PPS payments rather than PAYE payments from his earnings.
In those circumstances the Industrial Magistrate held that the respondent was a “worker”. It seems to me that His Worship was obliged to do so by the
decision of this Court in Jones and Lockie v. WorkCover Queensland (2001) 166 QGIG 279. It is contended by the appellant that the observations of the
Court on the proper construction of ss. 12 and 13 were unnecessary to that decision. In a sense that is correct. The appellants were the dependents of a
Mr Peter Barnes who was killed in an industrial accident a few days after commencing work and before the completion of the first pay period. It was the
contention of the respondent that if Mr Barnes had completed the first pay period PAYE deductions would not have been made from his earnings. The
respondent failed on the facts. That was sufficient to conclude the matter. However, the construction of ss. 12 and 13 was fully argued, and it was an
alternative basis of the decision that an employer’s omission to make PAYE deductions without the consent or acquiescence of the employee did not
remove the employee from the definition of “worker”. It is then contended, in reliance upon the decision of Thomas J in Michalak v. Murlise Pty Ltd
(1995) 125 FLR 305 and Bailey J in Groote Eylandt Mining Co Ltd v. Thompson (2002) 166 FLR 121 upon a similar definition in the Work Health Act
(1986) (NT) that the decision should be reconsidered. There may be some argument about the extent of the similarity. In any event, the decision in Jones
and Lockie v. WorkCover Queensland (2001) 166 QGIG 279 was heavily based upon the reference to the explanatory note and to the (relevant)
Minister’s Second Reading Speech. The decision of Thomas J in Michalak v. Murlise Pty Ltd (1995) 125 FLR 305 was also significantly influenced by
the (relevant) Second Reading Speech. The speeches are quite different. It is not for this Court to become involved in the debate about whether it was
appropriate to abandon the rule that primacy should be given to the natural and grammatical meaning of the words used in a statute. It is sufficient to
note that it is an inevitable consequence of paying due and proper regard to extrinsic materials that on occasion similar statutory language will be
differently construed. I am not persuaded that the earlier decision of the Court was incorrect.
The conclusion that the Industrial Magistrate was correct in holding that the respondent was a “worker” makes it unnecessary to deal with the other issues
raised on the appeal. It may, however, be useful to say something about the limitation period. As is not infrequently the case the Industrial Magistrate’s
decision was delivered orally in Court and reduced to writing some time later. By s. 507 of the WorkCover Queensland Act 1996 an Industrial Magistrate
dealing with an appeal under Division 1 of Part 3 must give the decision in open Court and give a written copy of the decision to each party. One’s
immediate reaction is that the limitation period would not run until both steps have been completed. However, by s. 346(1)(a) of the Industrial Relations
Act 1999, if a decision is given at a hearing the limitation period commences to run upon the announcement of the decision. In the circumstances of the
case it is unnecessary to delve fully into the relationship between Division 1 of Part 3 of the WorkCover Queensland Act 1996 and Division 5 of Chapter
9 of the Industrial Relations Act 1999. It may, however, be prudent for would be appellants to proceed on the pessimistic view that time runs from the
announcement of the decision.
I dismiss the appeal. I reserve the question of costs.
Dated 3 April 2003.
D.R. HALL, President.
Released: 3 April 2003
Appearances:
Mr A. A. J. Horneman-Wren, directly instructed, for the appellant.
Mr J. B. Rolls, instructed by Walsh Halligan Douglas Lawyers, for the respondent.
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INDUSTRIAL COURT OF QUEENSLAND
WorkCover Queensland Act 1996 – S. 509 – appeal against decision of industrial magistrate
BP Refinery (Bulwer Island) Ltd (Appellant) AND Christopher Alan Bloor (First Respondent)
AND WorkCover Queensland (Second Respondent) (No. C10 of 2003)
PRESIDENT HALL
7 April 2003
DECISION
On 16 March 2000 Christopher Alan Bloor applied for compensation under the WorkCover Queensland Act 1996. On 18 August 2000 WorkCover
rejected the claim. On 2 October 2000 Mr Bloor sought statutory review of the rejection. On 27 February 2001 the Statutory Review Unit overturned
WorkCover’s decision and accepted Mr Bloor’s claim. On 27 March 2001 BP Refinery (Bulwer Island) Ltd, which corporation was at all material times
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1845
Mr Bloor’s employer, filed an appeal to the Industrial Magistrate’s Court. In or about late May 2001 Ms Moroney, a review officer of the Review Unit
Q-Comp, informed Mr Bloor of his right to seek leave to be heard in the appeal. A first direction’s hearing in the Industrial Magistrate’s Court occurred
on 17 July 2001. Mr Bloor was present, observed the proceedings without participating in them, and ought (as a reasonable man) to be treated as having
heard the directions issued orally in the Court. On 18 July 2001 the member of the bar who had been instructed to appear for Q-Comp spoke to Mr Bloor
and informed him –
(i)
that he represented Q-Comp’s interests, which might or might not coincide with the interests of Mr Bloor;
(ii) that he could not and would not take instructions or directions from Mr Bloor;
(iii) that Q-Comp had conduct of the matter not Mr Bloor, and that Mr Bloor should consider retaining his own solicitors to look after his interests.
On 23 October 2001 Q-Comp’s barrister (in the presence of Ms Moroney) confirmed that advice to Mr Bloor. On 19 July 2002 Q-Comp contacted Mr
Bloor and advised him that Q-Comp intended to concede the appeal and that the effect of the concession would be that Q-Comp’s decision would be set
aside. On 6 August 2002 BP Refinery (Bulwer Island) Ltd and WorkCover signed a consent order disposing of the appeal. The matter was listed for
mention in the Magistrates Court on 7 August 2002 in order that a consent order might be made. On the mention the solicitors representing Mr Bloor
appeared and made an oral application for an adjournment in order that Mr Bloor might make application for leave to be heard. The application for an
adjournment was granted. On 20 September 2002 Mr Bloor’s application for leave to be heard came before the Industrial Magistrate. (The application
seems (initially) to have been made pursuant to s. 498(2) which, of course, had no application to the pre 1 July 2001 injury. It is common ground that the
power to grant Mr Bloor leave to be heard (not to be a party) arose under s. 320 of the Industrial Relations Act 1999).
The Industrial Magistrate granted Mr Bloor’s application and issued the following directions:
“1. The respondents disclose to Christopher Alan Bloor within 21 days all information and documents pertaining to Christopher Alan Bloor’s claim
in reliance of which the review decision dated 27 February 2001 was made including but not limited to the documents which constitute –
(a) the explanations and examples referred to in the last paragraph on page 3 of the decision;
(b) the detailed information provided by Mr Bloor referred to in the last paragraph on page 5 of the decision; and
(c) the medical reports referred to in the decision.
2. That Christopher Alan Bloor by his legal representatives inspect the documents produced under order 1 within 14 days of access being made
available by the respondents;
3. That Christopher Alan Bloor file a statement of issues by 3 January 2003;
4. The respondents each file a reply to the statements of issues by 7 February 2003;
5. The parties confer to agree on matters that can be agreed upon by 12 February 2003;
6. There be a further mention of this matter on 19 February;
7. There be liberty to the parties to apply;
8.
Costs to be reserved.”.
The directions issued by the Industrial Magistrate are not the subject of direct attack. However, it is said that they demonstrate that the Industrial
Magistrate fundamentally misunderstood the nature of the proceedings before the Court and dealt with Mr Bloor’s application as the Industrial
Magistrate’s Court should deal with an application to be heard made at the commencement of a trial on the merits, whereas because of the settlement the
Industrial Magistrate’s Court was concerned only with whether the compromise had been “bona fide and truly made”. It seems to me, with respect, that
the Industrial Magistrate made no such error. The decision of the Statutory Review Unit had affected Mr Bloor’s entitlement to benefits under the
WorkCover Queensland Act 1996. Assuming (without deciding) that s. 24AA of the Acts Interpretation Act 1954 arms the Statutory Review Unit with
power to revoke a decision of the Unit, in the absence of fraud or misrepresentation it might not be rescinded or varied by Q-Comp without the consent of
Mr Bloor and of BP Refinery (Bulwer Island) Ltd, compare Campbell E, Revocation and Variation of Administrative Decisions (1996) 22 Monash
University Law Review 30 at 53 adopted by Chesterman J in Firearms Distributors Pty Ltd v. Carson (Director Administration Division, Queensland
Police Service) [2000] QSC 159 at para [40]. The decision of the Statutory Review Unit might of course be set aside by a decision of the Industrial
Magistrate, see s. 506 (previously s. 515) of the WorkCover Queensland Act 1996. That is a why a consent order is being sought. But the Industrial
Magistrate had an independent judgment to make in determining to set aside the decision of the Statutory Review Unit. A Court will not genuflect to a
compromise “bona fide and truly made” if the compromise is not within the power of the parties, compare Dixon v. Evans (1872) LR5HL 606 at 618 to
619 per Lord Westbury. Here, the Industrial Magistrate has done no more than allow Mr Bloor to be heard upon the question whether Her Worship
should give effect to the compromise. While some of the documents to be provided to Mr Bloor are documents which would inevitably relate to the
matters in issue on a trial on the merits, they are also documents which relate to the question whether the Industrial Magistrate’s Court should give effect
to the compromise.
It is then contended that Mr Bloor has no pecuniary interest directly affected by the outcome of the appeal. With respect, the decision of the Statutory
Review Unit gave Mr Bloor an entitlement to compensation. If the Industrial Magistrate gives effect to the compromise that entitlement will be taken
away from him.
It is contended that Mr Bloor has been tardy. I enthusiastically embrace the proposition that the power to grant leave to be heard pursuant to s. 320 is
entirely discretionary. Delay by the applicant causing prejudice to the parties to the appeal, or (perhaps) to other litigants in the Court by delaying Court
processes, will always be a material consideration. But the Industrial Magistrate recognised that. Her Worship accepted as an explanation for Mr Bloor’s
delay that, until advised about the compromise, he was prepared to take the chance that in defending its decision Q-Comp would defend his interests.
Notwithstanding that Her Worship recognised that allowing Mr Bloor to be heard might involve the consequence that proceedings could become
“repetitious and wieldy (sic)” the Industrial Magistrate was prepared to act on the explanation. Others might not have done so. However, the Industrial
Magistrate was involved in a quintessential exercise of discretion. Her Worship has referred to the relevant factors and to no factors which are not
relevant. There is no palpable injustice in the decision. The criticisms really go to weighing and the use of measuring casts. A case for interference with
the exercise of a discretion which is vested in the Industrial Magistrates Court and not in this Court, has not been made out.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
24 April, 2003
The (now) appellant entertains some apprehension that the proceedings in the Industrial Magistrates Court will become proceedings in which Mr Bloor
(yet again) seeks to ventilate his grievances against the appellant and its servants and agents. The short answer is that s. 320 arms the Industrial
Magistrate with ample power to impose conditions upon the grant of leave to be heard or indeed to vacate the order that Mr Bloor be granted leave to be
heard, if it be necessary to do so to avoid vexation. I hasten to add that because a substantial issue is whether Mr Bloor’s injury was a result of reasonable
management action reasonably taken there may well be some overlap between matters truly relevant to the proceedings and Mr Bloor’s previous
grievances.
I dismiss the appeal. I remit the matter to the Industrial Magistrate to be heard and determined according to law. Given that the application to appeal
does not challenge the directions I decline to vary the directions. Doubtless the directions particularly about discovery and inspection need be a matter of
vigorous debate when the matter is mentioned.
I reserve the question of costs.
Dated 7 April 2003.
D.R. HALL, President.
Released: 7 April 2003
Appearances:
Mr A. Herbert, instructed by Freehills, Solicitors, for the appellant.
Ms J. Ryrie, instructed by MacGillivrays Solicitors, for the first respondent.
Mr P. Major, directly instructed, for the second respondent.
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INDUSTRIAL COURT OF QUEENSLAND
Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate
Brambles Australia Limited AND Clive John Newman (No. C1 of 2003) No. 2
PRESIDENT HALL
11 April 2003
DECISION
By a decision of 6 March 2003 now reported at 172 QGIG 1321 the Court dismissed an appeal by Brambles Australia Limited against a decision of the
Industrial Magistrate at Maroochydore finding Brambles Australia Limited guilty of a failure to identify a risk which caused a death, and guilty of failing
to provide a system of work that was safe and without risk to workplace health and safety. The issue of costs was reserved. Both parties have now made
fulsome written submissions upon the question of costs. It is common ground that it is the effect of s. 335 of the Industrial Relations Act 1999 that the
Court has power to award costs only if it be shown that the appeal was made “vexatiously or without reasonable cause”. It is conceded by the respondent
to the appeal that the appeal was not made vexatiously.
The case advanced by the respondent is that the appeal was made without reasonable cause because the appeal had no objective prospect of success. Two
points should be made about the submission. One, the Court has the great advantage of hindsight. The Court now knows that the appeal was
unsuccessful and is called upon to make an assessment of the merits of the appeal after having had the benefit of a full argument. That was not the
situation of the appellant and its advisers in determining to prosecute the appeal. I accept the respondent’s submission that the argument pressed by the
appellant was inconsistent with certain of the authorities, but the reports do not disclose the skill and vigour with which the arguments had been put in the
earlier cases. I can understand why the appellant might have been hopeful that the authorities would be reconsidered. Two, in assessing the
reasonableness of the decision to institute an appeal, regard must be had to the nature of the proceedings. The proceedings here were penal proceedings.
The appellant, being a body corporate, was not exposed to the risk of a custodial sentence. But the appellant had been convicted. That was a serious
matter for the appellant and for its officers. Appellants seeking to shed the stigma of a conviction should, I think, be allowed some measure of latitude.
Whilst the appellant’s case was a weak one, I am a long way from being convinced that the appeal was made without reasonable cause. I dismiss the
application for costs.
Dated 11 April 2003.
D.R. HALL, President.
Released: 11 April 2003
Appearances:
Mr D. Williams, of Minter Ellison Solicitors, for the appellant.
Ms J. Cameron, of Division of Workplace Health and Safety Legal and
Prosecution Services, for the respondent.
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INDUSTRIAL COURT OF QUEENSLAND
Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate
Francis Michael Fahey AND Daniel Peter Keating (No. C87 of 2002)
PRESIDENT HALL
14 April 2003
DECISION
By a decision of 19 December 2002 now reported 172 QGIG 78 I reserved all questions of costs both in the Industrial Magistrates Court and on the
appeal pending receipt of written submissions from the parties. I have now had the advantage of written submissions and a (brief) oral argument.
As to the costs of the appeal, there is no power to make an order for costs in favour of an appellant. Section 335 of the Industrial Relations Act 1999 does
vest power to make an order in favour of a respondent, but only where the appeal has been brought “vexatiously or without reasonable cause”. There is
no suggestion that the appellant, who was partially successful on the appeal, acted “vexatiously or without reasonable cause” in bringing the appeal. In
those circumstances, the power to award costs in favour of the respondent does not arise.
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The matter of costs in the Industrial Magistrates Court is a more difficult matter. Before the Industrial Magistrate the respondent (complainant below)
succeeded on all three counts. With the benefit of hindsight, it now appears that the respondent should have succeeded on two counts only. Whilst in
ordinary circumstances the proper exercise of the discretion at s. 157 of the Justices Act 1886 would be to allow a partially successful complainant part of
his costs, see Durant v. Gardner (2000) 21 QLD Lawyer Reports 113, it would also ordinarily be a proper exercise of the discretion at s. 158 (as
controlled by s. 158A) to allow the partially successful defendant part of his costs, see Latoudis v. Casey (1990) 170 CLR 534 and Commissioner of
Taxation v. MacPherson [2000] 1 QdR 496. This being a case in which it is extraordinarily difficult to tease out the costs attributable to each of the
counts, it seems to me that the proper approach is the robust approach of ordering that each party pay his own costs. I set aside the costs order made by
the Industrial Magistrate. I order that each party bear his own costs of the proceedings in the Industrial Magistrates Court.
Dated 14 April 2003.
D.R. HALL, President.
Appearances:
Mr S. Keim, instructed by Justin Crosby Solicitors, for the appellant.
Mr T. Carmody SC, instructed by WorkCover Compliance Unit, for the
respondent.
Released: 14 April 2003
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 287(5) – application for exclusion from general ruling
Amended General Ruling in Relation to a Queensland Minimum Wage
Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers
AND The Australian Workers’ Union of Employees, Queensland (No. B389 of 2003)
FRUIT AND VEGETABLE GROWING INDUSTRY AWARD – STATE 2002
PRESIDENT HALL
VICE PRESIDENT LINNANE
COMMISSIONER EDWARDS
9 April 2003
DECISION
On 5 March 2003 the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI), being authorised to
represent the Queensland Fruit and Vegetable Growers, applied for a deferral of the General Ruling about a Queensland Minimum Wage for all
employees in its application to employers bound by the Fruit and Vegetable Growing Industry Award – State located in Queensland drought declared
areas and Individual Droughted Properties (IDPs), and additional areas and IDPs declared before June 30 2003 (inclusive) for a period of 12 months after
the drought declared classification is removed by the Department of Primary Industries. The case triggered by that application acquired the file No. B389
of 2003. On the same day QCCI, once again being authorised to represent the Queensland Fruit and Vegetable Growers, applied for amendment of the
Fruit and Vegetable Growing Industry Award – State 2002 by deletion of the existing clause 5.1.1 and the insertion of the new clause 5.1.1 as follows:
“5.1.1 The minimum rates of payable to adult employees in the Southern Division, Eastern District shall be:
Classification
Adult Employee
Level 1 – on commencement
Level 2 – after 6 months
Award rate per week
$
407.60
431.40”.
(A further application to amend the provisions of the Award relating to piecework was, by consent, withdrawn in the course of oral submissions.) The
case triggered by that application acquired the file No. B388 of 2003. It is convenient to commence with No. B389 of 2003.
It must be said at the outset that the format of the exclusion sought by QCCI is unusual. Put aside the issue whether the formulation of the exclusion
would cause the General Ruling, in its application to the class of employees to be described, to be a General Ruling which did not meet the requirements
of s. 287(4), it would be exceptional for the Queensland Industrial Relations Commission to surrender control over proceedings in the Commission and
control over its own orders by fixing a date of operation by way of the effluxion of time from a decision taken by other entities on principles which the
Commission cannot influence and the basis of facts which the Commission cannot vet. The application is exceptional also in that it is based on the
(undisputed) circumstance that the Queensland fruit and vegetable growing industry is ravaged by a drought of extraordinary severity. Applications for
exemption from a general ruling have traditionally been based upon incapacity to pay. So also have attempts to avoid the flow-on on a case by case basis
of wage increases articulated by way of a declaration of policy. In this case, there is no evidence that any particular group of growers (or indeed any
grower) has no capacity to pay. Indeed, it should be noted that the criteria delineating the class to be given the benefit of the exclusion are not criteria
upon which various forms of Government assistance are made available to those engaged in agriculture. They are but steps along the way. This case is
all about drought and its (adverse) impact upon those who grow fruit and vegetables for a living. The evidence lacks the precision and rigour which one
might expect in an incapacity to pay case.
Novelty is not a defence in itself. However, the minimum wage is intended to be the rock bottom minimum wage for adult employees within the Award
sector and in the Award free sector. Persons in receipt of the wage are the poorest paid persons in the Queensland workforce. Annual safety net
increases have been allowed in the field sector of the sugar industry in the face of evidence very much stronger than the evidence which we have heard in
this case, and in circumstances in which the class of employees about whom the case was fought are (currently) earning over $90 per week more than the
amount which would be earned by workers employed under the Fruit and Vegetable Growing Industry Award – State if the application for exclusion is
rejected. The actual amounts of money that the employees will receive if the application for exclusion is rejected is small. The increase looks large when
expressed as a percentage because the existing base rate is so low. One may acknowledge that many employees are casuals and that the sum paid will be
inflated by the casual loading. But the increase will still be extraordinarily modest.
We accept that the consequence of the decision is that employers will, in the 2002-2003 financial year, pay a State wage increase and a further increase to
bring wages up to the level of the minimum wage. Put aside the illusory prospect that there will be a financial year within which there is no State wage
increase, that will happen in whichever year is chosen as the financial year within which wages are to be increased to the level of the minimum wage.
B:\GAZETTES\INDUSTRIAL\2003\APRIL\24-04-03\QGIG_240403.DOC
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
24 April, 2003
We have considered, but have rejected, the option of flowing the increase by instalments over a period of years. (Relief which was not sought). The
level of the minimum wage has caused us to reject that option.
We dismiss the application which founded case No. B389 of 2003.
We are conscious that they are awards of the Commission which, at times, have permitted engagement of employees at a (reduced) introductory rate in
order to allow “training”. In an era in which the Training and Employment Act 2000 seeks to promote the acquisition of regulated and recognised
training qualifications, we can see no merit in revisiting the past and introducing such wage classification into an award which has not previously been
the subject of such an application. Further, it would be unconscionable (as is proposed) to require employees in the fruit and vegetable growing sector to
work through an introductory training period every time that they change employer and/or product. It was for those reasons on 8 April 2003 that we
dismissed the application which founded case No. B388 of 2003 from the Bench.
Dated 9 April 2003.
D.R. HALL, President.
D.M. LINNANE, Vice President.
K.L. EDWARDS, Commissioner.
Released: 9 April 2003
Appearances:
Ms S. Lindsay, of Queensland Chamber of Commerce and Industry Limited,
Industrial Organisation of Employers, for the applicant.
Mr. J. Sharpe, of The Australian Workers’ Union of Employees, Queensland,
for the respondent.
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 287(5) – application for exclusion from general ruling
Amended General Ruling in Relation to a Queensland Minimum Wage
Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers AND The Australian Workers’ Union of
Employees, Queensland (No. B389 of 2003)
FRUIT AND VEGETABLE GROWING INDUSTRY AWARD – STATE 2002
PRESIDENT HALL
VICE PRESIDENT LINNANE
COMMISSIONER EDWARDS
9 April 2003
ORDER
This matter coming on for hearing before the Full Bench of the Commission at Brisbane on 8 April 2003, this Commission orders as follows as from 9
April 2003:
The application be dismissed.
Dated 9 April 2003.
D.R. HALL, President.
D.M. LINNANE, Vice President.
K.L. EDWARDS, Commissioner.
Released: 9 April 2003
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 287(5) – application for exclusion from general ruling
Amended General Ruling in Relation to a Queensland Minimum Wage
FAST FOOD INDUSTRY AWARD – SOUTH-EASTERN DIVISION (No. B199 of 2003)
FAST FOOD INDUSTRY AWARD – STATE (EXCLUDING SOUTH-EAST QUEENSLAND) (No. B200 of 2003)
ORDER
PRESIDENT HALL
VICE PRESIDENT LINNANE
COMMISSIONER EDWARDS
7 April 2003
This matter coming on for hearing before the Full Bench of the Queensland Industrial Relations Commission at Brisbane on 7 April 2003, the
Commission orders that:
The Fast Food Industry Award – South-Eastern Division and the Fast Food Industry Award – State (Excluding South-East Queensland) be excluded
from the operation of the Amended General Ruling in relation to a Queensland Minimum Wage for all employees made 21 March 2003.
Dated 7 April 2003.
D.R. HALL, President.
D.M. LINNANE, Vice President.
K.L. EDWARDS, Commissioner.
Released: 7 April 2003
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1849
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 149 – Arbitration if conciliation unsuccessful
Education Queensland AND Queensland Teachers Union of Employees and Another (No. B521 of 2003)
DEPUTY PRESIDENT SWAN
COMMISSIONER BECHLY
COMMISSIONER THOMPSON
2 April 2003
REPORT ON DECISION (as edited)
In giving their decision from the Bench on 25 March 2003, the Full Bench stated:
“Because of the nature of the application made, we state that we have considered all of the submissions made but are not in a position, because of the
urgency of the issue, to specifically respond to each issue in this decision.
The application is made pursuant to s. 149 of the Industrial Relations Act 1999. We propose to grant the application with some minor modification
and with some provisos attached.
Section 149(1)(b) states as follows:
‘the commission considers it is not likely that further conciliation will result in the matter being settled within a reasonable time, considering,
among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate; or.’.
Section 149(2)(a) reads as follows:
‘the commission has the arbitration powers that it would have under section 23030 if that section applied to certified agreement negotiations
instead of industrial disputes; and.’.
Section 230(4)(d) reads as follows:
‘make another order or exercise another power the commission considers appropriate for the prevention or prompt settlement of the dispute.’.
Relying upon those sections the Order is granted.
We briefly detail the reasons behind the making of this decision:
1. Apart from the private negotiations between the parties, there has been significant involvement by the Commission to assist the parties to resolve
the matter. This course has proven to be unsuccessful.
2.
With regard to the question of possible disruption to the school system, we would note that three parties are involved in this dispute – teachers,
employers and students. At this point in time we have been told that some 12,000 students have been affected by this industrial action. This is
not an insignificant factor for consideration. That this has occurred over a very short period of time is noted.
3.
This action is noted as being simply that of non-protected action.
4.
With regard to the question of possible exertion of pressure on the Full Bench, we state that, were industrial action to continue, it has long been
the practice within this jurisdiction and others that whilst a matter is formally before the Commission, industrial action ceases.
5.
It is not our intention to depart from the aforementioned practice. This is not a question of Law but a question of practice. This is but one of the
considerations we have taken into account in making this decision.
6.
Regarding the allegation that the negotiation period has been too short, the parties have had a reasonable amount of time and considerable
assistance from the Commission in reaching a resolution and have been notably unable to do so.
This Order is to be effective from 4.00 p.m on 26 March 2003. This will ensure that the parties have adequate time to advise all relevant parties
to ensure that there is compliance with this Order.
7.
8.
We are conscious of the concerns expressed by the Queensland Teachers Union of Employees as it goes to a range of questions (e.g. the health
and safety of teachers and students) and would state that in addressing those concerns it should be understood that these matters can and should
be appropriately addressed by reference to the Grievance Dispute Procedures in the Award. The Orders sought are in relation to the current
Enterprise Bargaining campaign and are not intended to constrain the Union in the ordinary course of representing its members in circumstances
of the like described.
9.
We reiterate that the Order as sought is granted effective from 4.00 p.m. 26 March 2003.
10. The Order will remain in force until the conclusion of arbitration.
11. The Applicant is directed to draft the appropriate Order for signature by the Full Bench. Such Order is to be presented to the Registrar of the
Queensland Industrial Relations Commission no later than 9.15 a.m. on 26 March 2003.
We order accordingly.”.
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1850
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
24 April, 2003
Dated 2 April 2003.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Appearances:
Ms J. Carberry for the State of Queensland.
Mr P. Whitehouse for Education Queensland.
Mr K. Bates and Mr G. Moloney and with them Ms K. Ruttiman for the Queensland
Teachers Union of Employees.
Mr M. Thomas, with him Mr B. Watson for Queensland Public Sector Union of Employees.
Released: 2 April 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 148 – application for assistance in negotiating by conciliation
The Australian Workers’ Union of Employees, Queensland AND
Sun Metals Corporation Pty Ltd (Nos. B1776 and B1794 of 2002)
SUN METALS ZINC REFINERY CERTIFIED AGREEMENT 2002
COMMISSIONER BECHLY
2 April 2003
Determination – Certified Agreement – Wage rates increased – Equivalent to AWA offers
DECISION
This is a matter arising under s. 149 of the Industrial Relations Act 1999concerning Sun Metals Corporation Pty Ltd and the three Unions involved in an
attempt to negotiate a Certified Agreement, those being The Australian Workers’ Union of Employees, Queensland (AWU), the Automotive, Metals,
Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU), and The Electrical Trades Union of Employees of
Australia, Queensland (ETU).
An earlier decision, reported at QGIG Vol. 172 No. 12 at 1347 summarizes some of the history of this matter.
Section 149(4) requires that the Commission limit its consideration to the matters at issue during negotiations for the proposed Agreement. In these
proceedings the matter at issue between the parties are taken as the disparity between the commencing salary offered in negotiations for the Certified
Agreement as against the salaries offered to employees in Australian Workplace Agreements and salary increases and methods of assessing such
increases during the life of the Agreements.
By way of explanation, during the negotiations on the proposed Certified Agreements the final proposition put to the vote proposed certain base wage
rates followed by set increases in the following two years. The AWA’s offered to employees during the process of negotiations for the Certified
Agreement contained salaries which, in all cases except one, exceeded the third year final salaries offered in the Certified Agreement. These AWA
salaries were capable of being further increased during the life of the AWA by amounts which depended upon an individual performance management
system.
The following table illustrates the two proposals:
Classification
Year 1
Day work mechanical .......................................... $42,121
Day work electrical.............................................. $43,383
Shift work electrical............................................. $51,111
Refinery worker 2A ............................................. $46,883
Refinery worker 2B ............................................. $48,899
Refinery worker 3 ................................................ $52,586
Trade qualified refinery worker 2B ..................... $51,111
Trade qualified refinery worker 3........................ $54,799
Certified Agreement
Year 2
$42,662
$43,995
$51,876
$47,543
$49,609
$53,388
$51,876
$55,656
AWA
Year 3
$43,729
$45,054
$53,173
$53,173
$50,849
$54,723
$53,173
$57,047
$45,136
$45,598
$56,914
$56,914
$53,042
$56,914
$53,042
$56,914
Except for the salaries and the methods of adjustment the terms of the Certified Agreement and the AWA’s are, to all intents and purposes, identical.
There are some differences in the layout of the contents but the outcome is effectively the same.
The Unions propose that the Commission should determine that the Certified Agreement starting year one rates should be increased to the levels
contained in the AWA’s and that further yearly adjustments of 2.5% should be prescribed, these being the yearly increases contained in the proposed
Certified Agreement.
Sun Metals argue that no change should be made by the Commission to the rates contained in the proposed Certified Agreement. It proposes that the
premium provided in the AWA rates is a payment for the trust placed in the company by employees who signed the AWA’s.
The trust referred to relates to the application of the performance management system, with review of personal achievement by supervisors. There is
some basis for the premium paid for trust. There is no system currently in place which enables personal performance to be measured and valued. There
are, of course, many such systems used by industry world wide with beneficial effects both to employees and their employers. Sun Metals is in the
process of adapting and implementing such a system. On its evidence there has been improvement in certain productivity criteria already, although the
statistics said to be supportive of this were challenged by the Unions.
The prospect of implementation of a performance management system linked to future wage adjustments was raised by Sun Metals during negotiations
for the proposed Certified Agreement but rejected by the Unions. Whether it was rejected on philosophical grounds or because Sun Metals was not able
to offer, at that point, a clear process of linkage of wage increases to specified productivity improvement is not clear. Sun Metals made the decision to
proceed with the AWA’s containing productivity linked wage increases because a significant proportion of employees had raised the issue of individual
performance measurement themselves and had questioned why standard increases should be applied when individual employees provided differing
performance standards.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1851
At the time of hearing this matter there were 176 employees eligible to be covered by a Certified Agreement or AWA. Of these, 165 have accepted the
offer of AWA’s, that is 94% of the present workforce. The remaining employees consist of one refinery worker, two maintenance electricians and seven
mechanical maintenance employees.
There is a generally held belief, at least by employers, that productivity based wage increases are far more beneficial for the development of improved
output by whatever measure (attendance, lost time injury, quality, etc.) than automatic increases unrelated to any measurements. The acceptance by such
a large proportion of the workforce of AWA’s where no method of linkage of wage increases to productivity standards has yet been established would
seem to be remarkable, except of course that the AWA rates exceeded the final rates proposed in the Certified Agreement. Regardless as to whether
individual performance in the ensuring three years is such as to secure a further increase, those who sign AWA’s are infinitely better off. This would
seem to be the case even if individual performance declines.
This gives the appearance of purchase of employees’ loyalty towards productivity improvements at the expense of the viability of the Certified
Agreement proposed.
Sun Metals evidence is that the decision to offer AWA’s was based on the request received from some employees about individual work agreements and
the decision to negotiate a Certified Agreement was made so as to provide employees with the ability to choose the form of employment arrangement that
governed their work. In reality, from a monetary perspective, there was only one choice available.
That being the case it is, in all the circumstances of this matter, reasonably simple to reach an equitable outcome.
The reality is that employees who sign an AWA do not have to achieve any productivity improvement levels during the life of the agreement to maintain
the salary levels offered. Why should not then the remaining eleven employees be placed in the same position. The only basis provided by the company
for distinction between the two groups is that those who have voluntarily entered AWA’s will strive to improve their salaries through productivity
improvements.
There is a belief evidenced by the company that those who do not voluntarily enter AWA’s will not fully participate individually in improvement
measures. There is no guarantee that those who have entered AWA’s will do so either. The “Buy In” price was too attractive to resist. On the other
hand the prospect of further wage increases based on individual performance may have the same attraction to the remaining employees as it is said to
have for those now covered by AWA’s.
The solution to the impasse between the parties is to provide salaries in the Certified Agreement that are identical to those provided in the AWA’s. What
goes with that of course is that the condition upon which salary adjustments during the life of the Certified Agreement become the same for all
employees. These conditions are in the process of determination by the company and, on the evidence, are being developed through the application of
relatively common performance management criteria. This outcome will have negligible effect upon the company particularly if further increases are
obtained by the eleven employees concerned through the process of productivity improvement.
There should be no distinction between the “productivity terms” for the employees covered by the AWA’s or the Certified Agreement. The Certified
Agreement should be amended so that any terms relating to productivity measurement or performance management contained in the AWA’s or other
attendance expectations are imported into the Certified Agreement in replacement of any of the similar contents of the Certified Agreement. The claim
for yearly increases of 2.5% for the remaining employees is rejected. Whilst I have some reservations about the rationale given for the wage increase
offered in the proposed Certified Agreement, I have been informed that the base rates offered in the Certified Agreement were some 10% to 20% greater
than those previously prevailing. It would seem that the eventual package offered in the Certified Agreement was a beneficial one. To determine that
further fixed increases should apply on top of the now to be applied wage rates taken from the AWA’s would be inappropriate.
Notwithstanding what I have said above about individual employees’ approach to productivity based increases there is a legitimate expectation from Sun
Metals that individuals will act in a manner which supports the basis upon which the AWA rates have been set and improve their individual productivity
performance. The productivity measurement plan proposed presupposes that wage increases are attainable provided that there is individual and overall
improvement in productivity. All employees contributing through individual improved productivity should be able to achieve wage increases through the
life of the Agreement.
It has been taken that those who have signed AWA’s have committed themselves to improved individual productivity. There are similar expectations of
employees emanating from the proposed Certified Agreement.
Where there is no or inadequate productivity performance of course the usual performance counselling procedures would be available to the parties.
The life of this determination is to be three years with a nominal expiry date of 7 April 2006.
The company is directed to provide to the Unions the relevant amendments to the Certified Agreement to accord with this decision. If there are issues
between the parties about those amendments which they cannot resolve amongst themselves such issues should be referred back to the Commission.
R.E. BECHLY, Commissioner.
Hearing Details:
2003
5, 18 and 19 March
Released: 2 April 2003
Appearances:
Mr B. Swan of The Australian Workers’ Union of Employees, Queensland with him Mr R.
Stockham.
Mr R. Neill of The Electrical Trades Union of Employees of Australia, Queensland.
Mr E. Moorehead of the Automotive, Metals, Engineering, Printing and Kindred Industries
Industrial Union of Employees, Queensland.
Mr M. Procter of Minter Ellison with him Mr. R. O’Connell on behalf of Sun Metals Pty Ltd.
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 278 – application for unpaid wages
Barbara O’Reilly AND Coco’s Trading Pty Ltd (No. W5 of 2003)
COMMISSIONER THOMPSON
3 April 2003
Unpaid wages – Arbitrated matter – Witness evidence – Certified agreement – Retail Industry Interim Award – State – Application granted in part.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
24 April, 2003
DECISION
Background
An application was filed on 17 January 2003 by Ms Barbara O’Reilly (the applicant) in which she sought payment in the total sum of $3646.78 (being for
wages $3376.65 and superannuation $270.14) from Coco’s trading Pty Ltd (the respondent) resulting from an underpayment whilst an employee of the
respondent company.
An amended application was filed with the Industrial Registrar which contained additional information, however did not alter the monetary amount of the
claim.
Applicant
The evidence provided to the Commission was that of the applicant only.
Ms O’Reilly had commenced employment with the respondent company on 6 August 2001 on a casual basis and, on or around 12 September 2001, was
offered full-time employment.
Whilst employed as a casual, her rate of pay was $14.6190 per hour, which then went to $11.979 per hour plus 8% superannuation on becoming full-time.
In December 2001, the applicant was transferred from the Logan store to the Annerley store and, at that time, was paid out her accrued annual leave of
34.46 hours.
On 26 January 2002, the applicant was advised that her hours were to be reduced and her employment status became that of a permanent part-time
employee.
In March 2002, the applicant’s hours were increased to 32 hours per week.
At paragraphs 76 and 77 of her affidavit of evidence, Ms O’Reilly stated:
“76. I believe, Coco’s acted in a manner that amounts to my unfair dismissal and to my being underpaid during my period of employment.
77. I assert I was underpaid during my employment at Coco’s Trading as the Retail Industry Interim Award relevantly provides the rate of pay for a
casual shop assistant, prior to 31 August 2001, as $15.07 per hour and after 1 September 2001, as $15.48 per hour. Further it provides for a
full-time 1st level supervisor, after 1 September 2001, as $12.69 per hour. Exhibited hereto and marked with the letter ‘D’ is a true copy of a
summary of amount claimed and spreadsheets evidencing time rostered, actual hours worked [and] hours paid correct entitlements.”.
Included with the applicant’s affidavit of evidence were the following attachments:
•
Offer of employment contract dated 16 August 2001 (casual position)
•
Introduction to new staff advice
•
Offer of employment contract dated 12 September 2001 (full-time position)
•
Workplace health and safety considerations
•
Pay advice for week ending 11 December 2001
•
Summary of amount claimed
•
Seven (7) pages of schedules identifying payments to applicant and monies claimed
Mr J. Wright, on behalf of the respondent, raised a number of matters in cross-examination, including:
•
Companies bound by the certified agreement (CA)
•
CA excluded the payment of overtime and penalties
•
Rates of pay (page 23, line 37 of transcript):
“Wright:
Just one very brief question. When you said to the Commission you weren’t paid rates of pay according to the award, can I just clarify
that was that you weren’t paid the penalty – the weekend penalties according to the award, that’s where the - - ?
O’Reilly:
Well, just – just your minimum, your hourly rate of pay was less than – I was getting paid less than what the award was.
Wright:
In what regard, sorry?
O’Reilly:
Wright:
Well, I was being paid 14.61 per hour when I started casual when the award was 15.07.
Do you have any evidence that the award rate was that at the time? It’s just different to the information I’ve been provided?
O’Reilly:
I don’t have any evidence on me as such, no.
Wright:
Thank you. That’s a technical matter anyway.”.
Respondent
The evidence on behalf of the respondent was given by Ms Rachael Duncan who, in her affidavit, offered a description of her position within the Coco’s
group of companies as “the person with the day to day conduct of the accounting affairs of Coco’s Trading Pty Ltd”.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1853
Her evidence went to the nature of the business and then to circumstances of the certification of the Coco’s Fresh Food Markets Certified Agreement and
of the companies party to the agreement.
In respect of the stores at which Ms O’Reilly was employed (Logan and Annerley), evidence was given in respect of the various company structures and
entities that had operated the two (2) stores, going back prior to the commencement of the applicant’s employment.
From 1 July 2000, both the Logan and Annerley stores were operated by Coco’s Trading Pty Ltd.
At paragraphs 7 and 10 of her affidavit of evidence, Ms Duncan stated the following in relation to staff arrangements as a result of Coco’s trading Pty Ltd
becoming the employer:
“7. None of the employees of the Logan store were terminated as a result of this process, but rather their employment was transferred to the
successor employer. . .
10. None of the employees of the Annerley store were terminated as a result of this process, but rather their employment was transferred to the
successor employer.”.
Ms B. Stevenson, for the applicant, raised the issues of the corporate structure in cross-examination (page 29, line 40 of transcript):
“Stevenson: In your paragraph 6 where you say that – about the corporate structure, are there documents to support that and have you seen them?
Duncan:
I haven’t seen the documents, no.
Stevenson: So how is it that you are aware of what happened, the events you describe?
Duncan:
Like I said to the gentleman, I was actually the accountant at the time and the day to day running of the business. . .”.
Final Submissions
Applicant
Ms Stevenson, in her final submissions, raised the following:
•
Applicant seeks an order for underpayment of wages, superannuation, annual leave and loading totalling $3646.78
•
Applicant employed under terms of Coco’s Fresh Food Market Certified Agreement, however employing company (Coco’s Trading Pty Ltd) not a
party to the CA, therefore the Retail Industry Interim Award – State (the Award) should apply
•
Evidence of Ms Duncan entirely hearsay
•
Applicant’s solicitors had repeatedly (without success) sought documentary evidence from the respondent relating to transfer of staff from Ignoble
Proprietary Limited to Coco’ Trading Pty Ltd
•
No dispute between the parties that the applicant would have been paid $22062.26 under the Award and received $18415.47 under the CA
•
If Coco’s Trading Pty Ltd found to be a party to the CA – clause 6 of the agreement states:
“At no time shall the rates of wages payable under this agreement be less than the minimum rates of pay specified in the Retail Industry Interim
Award.”.
•
Respondent relying on a narrow interpretation of the words “minimum rates of pay” to pay only the ordinary time rates
•
Applicant submits that “Plural rates” means ordinary rates plus overtime and penalties
•
Decision of Blades C to refuse certification of a new certified agreement in 2001 (page 34, line 28 of transcript):
“This is supported by Commissioner Bechly’s [Blades] decision in Coco’s Trading Pty Ltd and Shop, Distributive and Allied Employees’
Association Union of Employees decided in 2001 and cited in the application. Commissioner Bechly [Blades] declined to certify a more favourable
agreement that was intended to replace the one referred to today. It failed the no disadvantage test.
Commissioner Bechly [Blades] said that an award sets the standard and is binding on all to whom it applies. It prevails over a contact of service
where there is an inconsistency in that contract less favourable to the employee.
He concluded that he would not object to the agreement if a clause were inserted providing for an accounting exercise to be conducted at six monthly
intervals and any employee shown to have been disadvantaged by weekend work without penalty rates be reimbursed so as not to receive less than
the award.”.
•
Applicant has been paid less than what she would have received under the Award and therefore clause 6 of the CA should be applied.
Respondent
Mr Wright provided to the Commission a written outline of submissions which contained the following:
•
The three (3) arguments supporting the applicant’s claim for the underpayment of wages
•
Did the CA apply to the applicant’s employment
•
Applicant’s assertion that the respondent is not an express party to the agreement in correct, however clause 2.1 of the CA relevantly provides:
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24 April, 2003
“this certified agreement shall be binding upon Jaunt Pty Ltd, . . . Ignoble Pty Ltd . . . and other such employers that may from time to time
become concurrent with this Agreement . . .”.
•
Definition of concurrent:
“‘Concurrent’ means, according to the Russell English Dictionary, ‘acting in union or in conjunction’. In the context of clause 2.1 of the Certified
Agreement, it means, in the respondent’s submission, that the Certified Agreement binds such employers, not listed as parties to the agreement,
which may from time to time carry on the business which the Certified Agreement governs, namely the business of Coco’s Fresh Food Markets.”.
•
Evidence of Ms Duncan explained company structure
•
Section 167 of the Act – successor employers bound
•
Authority regarding successor – Australian Industrial Relations Commission; Ex Parte Australian Transport Officers Federation (1990) 171
CLR 216, High Court, Mason CJ, Gaudron and McHugh JJ.
•
Correct construction of clause 6 of the CA
•
No merit in applicant’s argument
•
Conclusion:
“The applicant should be awarded either $137.73 or $214.59, depending on the Commission’s determination as to how the applicant’s supervisor’s
allowance is to be addressed.”.
Decision
The success, or otherwise, of the application to these proceedings rested on whether the applicant’s employment fell within the provision of the CA or
that of the Award.
Evidence before the Commission relating to changes to the company structure, whilst “scant” in respect of detail (documentation), that evidence given by
Ms Duncan, the company accountant, is accepted that, on the balance of probabilities, with the knowledge that Ms Duncan has of the financial operations
of the respondent’s business (including the opening of bank accounts in the changed company names) the entity of the applicant’s employer was Coco’s
Trading Pty Ltd.
In the application filed by the applicant that, in fact, is acknowledged with the same business name being offered as the respondent.
On whether Coco’s Trading was a party to the CA, the Commission accepts the argument advanced by the respondent that clause 2.1 of the agreement
allows for “other employers that may from time to time become concurrent with the Agreement” to become a party to the CA.
The evidence before the Commission is that Coco’s Trading Pty Ltd does come within that provision of the CA and is therefore, for all intents and
purposes, a party to the CA.
On the CA itself, it was certified in 1996 and, whilst having a term of three and a-half (3.5) years, has continued to operate since, despite an attempt in
2001 to have the CA terminated.
In respect of that application, Bechly C, in refusing to terminate the CA, stated in a decision, Shop, Distributive and Allied Employees Association
(Queensland Branch) Union of Employees v Coco’s Fresh Food Markets (No. CA566 of 1996) released on 14 June 2001:
“In the face of the lack of evidentiary material I am not disposed to grant the application at the present time but will relist the matter within the next
six weeks to ascertain what developments there have been with respect to a new agreement and, if necessary, to hear evidence as to the disadvantage
now said to be experience by employees.”.
On 13 September 2001, Blades C, in Coco’s Fresh Food Markets and Shop, Distributive and Allied Employees Association (Queensland Branch) Union
of Employees (No. CA367 of 2001) refused certification of a new CA that would have replaced the CA subject to these proceedings.
In his decision, Blades C made the following two (2) points:
“In all the circumstances, I am unable to come to a conclusion that the no-disadvantage test has been met. There is insufficient evidence to satisfy
me that the result would not be a reduction in the employees’ entitlements or protections. To the contrary, what appears to be the case is that there
may well be a reduction, at lease for some employees.”
And, in conclusion, stated:
“however, having said all of that, it would seem to me to be appropriate to indicate that should the employers be prepared to include in the
Agreement a clause that an accounting exercise be conducted after six monthly intervals and that any employee shown to have been disadvantaged
by weekend work without penalty rates be reimbursed so as to receive not less than the Award would have provided for, I would see no objections to
the Agreement.”.
There is currently a proposed new certified agreement before Vice-President Linnane in an adjourned application for certification (CA527 of 2002).
On the question raised by the applicant that the provision at clause 6 of the CA:
“Provided that at no time shall the rates of wages payable under this Agreement be less than the minimum rates of pay specified in the Retail
Industry Interim Award – State.”
was sufficient to include payments made under the Award in respect of penalty rates for weekend work, this proposition is rejected in that there was a
specific exclusion of such rates in the certified agreement and, in the view of the Commission, the provision was included for the benefit of the
classifications and rates of pay in clause 6 only.
Whilst a certified agreement must, at the time of certification, pass the no-disadvantage test contained within the Act, it is possible that the conditions
provided in the CA may fall below those provided for by the relevant award, although this is, for the most, an unlikely occurrence.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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At Division 4 “Effect of certified agreement” s. 165(1), it states:
“Certified agreement’s effect on awards, agreements or orders
165.(1) While a certified agreements operates, it prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made
under section 137.”.
On this basis, the Commission, whilst accepting the evidence of the applicant that whilst employed by the respondent, the remuneration received under
the CA was less than would have been the relevant industrial instrument, the Commission is powerless to grant the orders sought in the application.
Finding
The Commission orders that the applicant be paid the amount of $214.59 being monies under paid whilst in the employ of the respondent.
I order accordingly.
J.M. THOMPSON, Commissioner.
Hearing Details
Appearances:
Ms B. Stevenson, of Ace Solicitors, for the Applicant.
Mr J. Wright, of Colwell Wright Solicitors, for the Respondent.
2003
Released: 3 April 2003
19 February
31 March
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 74 – application for reinstatement
Anthony Cox AND DFS Australia Pty Limited (No. B1937 of 2002)
COMMISSIONER THOMPSON
3 April 2003
Application for reinstatement – Witness evidence –Termination harsh and unreasonable – Reinstatement or re-employment impracticable – Nominal
amount of compensation awarded – Application granted.
DECISION
Background
An application for reinstatement by Mr Anthony Cox (applicant) was filed on 4 December 2002 in which he alleged that his employment had been
terminated unfairly and for an invalid reason by DFS Australia Pty Ltd (DFS) (respondent).
Applicant
The applicant was self represented in the proceedings, relying upon his own evidence and that of one further witness, Ms Cheryl Matthews.
In evidence, the applicant stated that he had been “aggressively headhunted” by the respondent, commencing employment on 28 April 1999 and ceasing
upon termination on 16 November 2002.
During the course of his employment, his services were utilised across a number of areas, with his appointment to a position in the Electronics
Department in September 1999 heralding a move from casual to full-time employment.
About half-way through his period of employment, his evidence was that he began experiencing unnecessary problems with his wages and other general
conditions of employment which, he believed, coincided with a “push” from management to convert full-time wages staff to salaried positions.
On 1 September 2001, the award rate of pay was increased, and when DFS failed to pass on the increase, he took it upon himself to raise the matter with
management, a move, in his mind, that placed him off-side with his superiors.
In October 2001, due to a downturn in business, staff with accrued annual leave in excess of twenty (20) working days were directed to take such leave.
The applicant raised, with the manager, the need to take at least two (2) weeks’ leave in May 2002, as his wife was expecting their first child at that time,
and further leave in September 2002, when his wife would be undergoing a knee re-construction.
His evidence was that his leave was, at that time, approved by management.
When his manager changed in January 2002, he raised the subject of his previous leave approval and was advised that this would cause “no problem”
provided he kept the company informed of the dates in question.
He was approached by his manager on 7 May 2002 and told to go to the human resources office and to take a witness with him to the meeting.
His evidence was that the meeting was such a farce that, from then onwards, he started to seek advice from the Department of Industrial Relations, which
included information that he would be within his rights to tape-record future meetings.
The reason for tape-recording future meetings was due to concerns that managers would misrepresent what had been discussed by the parties.
On page 4 of his affidavit of evidence, in relation to the tape-recording of meetings, he stated his reasoning “. . . to protect everyone concerned and
especially in cases where I was not allowed, or able to get a witness of my choice.”.
By the end of May 2002, he had informed his superiors that the date of his wife’s knee operation was to be around 29 October 2002 and that he would
require one month’s leave.
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Between May and September 2002, the applicant claimed that he continued to remind his superiors of his forthcoming leave without any adverse
feedback.
A memo was circulated to all staff on 3 September 2002 where it was stated that the preferred position of the respondent would be that, unless special
circumstances existed or leave had been previously approved, leave should not be taken in October, November or December.
Shortly after, the applicant was advised that his wife’s operation would be performed on 15 October 2002 and he submitted his annual leave form. About
ten (10) days later, he was told that his leave would not be approved.
This refusal, in the words of the applicant, led to a “completely unnecessary series of events, which can only be described as games, which to me were
extremely serious and stressful and only served to exacerbate the whole situation for all those concerned.”.
Leave was eventually taken by the applicant, however he was required to meet on three (3) occasions, following his return, with Ms Vikki Picton and Ms
Kimberly Neil and it was at these meetings that the applicant tape-recorded, or attempted to record, the meetings.
The applicant claimed that at the meeting of 12 November 2002, Ms Picton raised no concerns with his tape-recording of the meeting, however at the 13
November 2002 meeting he was asked not to record to which the applicant “reserved his right to record” and was subsequently suspended.
A further meeting was held on 16 November 2002 at which the applicant was accompanied by Ms Matthews, his external witness.
It was claimed by the applicant that he had his employment terminated for failing to turn off his tape-recorder at the commencement of the meeting.
In the final paragraph of his affidavit, the applicant stated:
“I wish to make it perfectly clear that at no time was I told or directed in any shape or form, to turn off the recorder. If I had been told to, despite
being within my rights, I would have turned it off. I was never told to turn it off. It was only ever a request, I was always given an option. I was
NEVER told that my actions would result in termination. It was only ever hinted that there MAY be a possibility, not that it was a fact in any shape
or form. My actions did NOT contravene any State Legislation or Common Law and certainly do NOT contravene any DFS policies. Therefore I
was unfairly dismissed.”.
Cross-examination
In cross-examination, Mr Matthew Smith, for the respondent, put a number of matters to the applicant, including:
•
May 2002 – meeting with Ms Picton regarding customer complaint
•
Advise on legality of tape-recording meetings
•
Leave regarding wife’s operation (page 16, line 20 of transcript):
“Smith:
At the time of your wife’s operation. Right. Now, there was a bit toing and froing in terms of being provided in one week increments at
first instance and then two weeks in a block, but ultimately DFS did grant you the leave, didn’t they?
Cox:
Yes, that’s correct.”.
•
Contact with Ms Nicole Azuolay – 3 November 2002 – returning to work on half day shifts
•
Contact with Mr Ralph Roberts seeking approval for leave – misrepresentation
•
12 November 2002 meeting – concealing tape recorder
•
13 November 2002 meeting – regarding tape recording (page 25, line 40 of transcript):
“Smith:
And, Vikki, on several occasions advised you that it isn’t DFS’s normal practice to tape-record these conversations and she asked you not
to?
Cox:
That’s basically correct, yes.
Smith:
Right. And she also indicated to you that she thought it was a fair and reasonable request?
Cox:
Yes, she used that phrase. Yes.
Smith:
Cox:
But you still hadn’t turned the tape-recorder off; had you?
No, sir.
Smith:
Right. And it was your intention to keep taping, because it’s your legal right?
Cox:
I hadn’t been afforded a witness, so, yeah, I – I intended to keep recording.
Commissioner:
Cox:
•
When Ms Picton talked to you about the tape-recorder, did she direct you not to use it, or did she request you not to use it?
Never directed in any shape or form, sir.”.
Suspended from duty between 13 to 16 November 2002 (page 29, line 30 of transcript):
“Smith:
Now, you’d been suspended on full pay for this period between these meetings, hadn’t you?
Cox:
Yes, sir.
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Smith:
And I assume, being a sensible man, you would have realised that DFS Galleria took great exception to the practice of tape recording
these meetings?
Cox:
Well, yeah, I guess so.”.
Direction to turn off tape recorder at 16 November 2002 meeting:
“Smith:
So it’s effectively being warned three times, isn’t it. Or I should say, that’s effectively being directed three times, isn’t it, to turn off the
tape-recorder?
Cox:
Again, maybe you accuse me of playing on words but to me I wasn’t directed three times to turn off the tape player. That was the original
question and that’s the one I answered to.
Smith:
Now the whole time obviously the tape-recorder was continuing to run?
Cox:
Mmm, I guess that’s correct.
Smith:
And your argument against DFS was, again, ‘It’s my legal right to record’, that’s right, isn’t it?
Cox:
Yes.”.
The evidence of Ms Matthews related to her attendance at the meeting on 16 November 2002 where she was to act as a witness (for the applicant).
On the commencement of the meeting, she was advised by Ms Picton that her role was to be that of an observer only.
Her evidence was that when the applicant had produced a tape-recorder at the meeting, an exchange occurred between Ms Picton and Mr Cox at which
the legal right to record the meeting was put forward by the applicant.
Ms Picton then warned Mr Cox that his failure to turn off the tape-recorder could be seen as misconduct and shortly thereafter terminated the applicant’s
employment effective immediately.
In finalising her evidence, at page 2 of her affidavit, Ms Matthews stated:
“In my opinion I felt this to be a hostile environment. I would also add that at no time did Anthony refuse to turn the tape off.”.
On the exchange between Ms Picton and the applicant, at page 41, line 55 of the transcript, in cross-examination, it was stated:
“Smith:
Well, when Vikki said to him that it could be seen as misconduct and he then could be terminated, that would have made it pretty clear
where it was heading?
Matthews: Yeah, but I don’t think enough time was given for Anthony for a right of reply. But that’s my opinion.
Smith:
You mean he wasn’t given enough opportunity to argue his case?
Matthews: No, I don’t believe so. I think that’s true.”.
Respondent
Evidence was given supportive of the respondent’s position by Mr Roberts, Ms Azoulay and Ms Picton.
Mr Roberts, who is employed as an administration manager by DFS gave evidence of a discussion with the applicant over the issue relating to the
applicant leaving work to go home to look after his wife.
Attached to his affidavit was a diary note dated 4 November 2002 in which Mr Roberts noted that the applicant did not seek authorisation from him
regarding his early departure from work on that day.
In evidence, Ms Azoulay, a supervisor at the Gold Coast store of DFS, provided information on exchanges with the applicant over his intention to take
leave to care for his wife after her operation.
It was not within her authority to approve the leave and the applicant was advised to contact Ms Picton.
On 3 November 2003, the day before the applicant was to return to work, he contacted her by phone and requested that he be allowed to return to work
on a half day basis or be granted further leave.
The applicant was advised that a decision on his request would have to be made by Ms Picton and, following a meeting between Ms Picton and herself, it
was decided that, due to insufficient staff numbers to cover the gap, the request was refused.
The applicant was advised of the decision upon commencing work on 4 November 2002 that his request had been rejected.
On 6 November 2002, the applicant did not attend work as rostered and phoned the witness later in the day to advise that he would be taking family leave
for the remainder of the week.
At paragraph 13 of her affidavit, she stated “At no stage did I tell Mr Cox that I approved his taking of the leave.”.
In cross-examination, the applicant raised concerns with the affidavit of Ms Azoulay at page 56, line 30 of transcript:
“Cox:
Ms Azoulay, I must bring up the point again. I suggest to you that you coerced into making this statement. A lot of detail has
deliberately been left out to paint a very different picture from the truth, wouldn’t you agree with that?
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Azoulay:
No.
Cox:
I put it to you that this has been severely edited, hasn’t it?
Azoulay:
No.”.
24 April, 2003
The final witness for the respondent, Ms Picton, the human resources manager for the Gold Coast branch of DFS, gave evidence relating to a number of
encounters involving the applicant, herself and others.
First, she went to a meeting held on 6 May 2002 which was a counselling session with the applicant at which a tape-recorder was produced by the
applicant and his intention to record the session was made known. Ms Picton did not object to the use of the tape-recorder and was subsequently
provided with a copy of the tape.
Her evidence then went to the leave arrangements of the applicant at the time that an operation was to be performed on his wife’s knee.
Despite the leave being sought in October 2002, which is, for the company, part of the busiest period of the year, leave was granted to the applicant
between 15 to 20 October 2002.
Following a request for two (2) periods of further leave, taking the applicant’s absence from duties through until 3 November 2002, the respondent, on
compassionate grounds, granted the leave sought.
On 4 November 2002, Ms Azoulay advised her that the applicant was seeking to return to work on a half day basis, a request that she was not prepared to
grant.
Later that day, the applicant contacted the duty manager (Mr Roberts) and sought approval to leave early without giving details of the earlier refusal of
his request to be able to work half days.
The following day the applicant contacted another duty manager (Mr Gary Lush) and advised that he was taking sick leave for the day and would be
having the remainder of the week off as compassionate leave.
Upon the applicant’s return to work on 11 November 2002, a meeting was arranged in which an explanation of the applicant’s conduct the previous week
was requested.
A short time after the commencement of the meeting, Ms Picton heard a clicking sound coming from the direction of the applicant’s shirt, where it was
discovered that the applicant had been tape-recording the meeting without having first raised with those present at the meeting his intention to do so. A
request by Ms Picton for a copy of the tape was declined.
A further meeting was scheduled for 13 November 2002 where the applicant again produced a tape-recorder and, despite requests to turn off the taperecorder, he continue to record, insisting that he had a legal right to do so.
Ms Picton’s evidence was that, at the conclusion of the meeting, the applicant was suspended on full pay pending further investigations of a range of
issues.
Contact was made with Mr Cox on 15 November 2002 requesting his attendance at a meeting to be held on 16 November 2002.
The meeting was attended by the applicant, Ms Kimberly Neil, Ms Matthews and the witness where, at the outset, the applicant informed the meeting that
Ms Matthews was to be his external witness.
At paragraphs 36 and 37 of her affidavit of evidence, Ms Picton provided detail of what then occurred:
“36. Mr Cox then produced a tape recorded and pressed the record button. I asked Mr Cox not to tape record the conversation. Again, although
Mr Cox did not expressly refuse to turn off the tape recorder he continued to argue that he was entitle to tape record the conversation. Mr Cox
did not at any stage turn off the tape recorder despite my direct requests that he do so.
37.
On the basis of Mr Cox’s refusal to comply with a lawful direction I terminated his employment.”.
Ms Picton was subject to a lengthy cross-examination process touching on matters including:
•
Availability of the award in the workplace
•
6 May 2002 meeting
•
Tape-recording of meetings
•
Applicant’s leave arrangements
•
Role of Ms Azoulay
•
Compassionate v Family leave
•
Non-existence of company policy regarding tape-recording meetings
•
12 November 2002 meeting
•
16 November 2002 meeting
•
Documentation prepared on 15 November 2002 indicating that the applicant’s employment would be terminated at the 16 November 2002 meeting
•
Advice on how to respond to the applicant’s use of a tape-recorder at the 16 November 2002 meeting
24 April, 2003
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1859
The Commission raised with the witness the nature of her comments regarding the request to the applicant to cease tape-recording at the 16
November 2002 meeting (page 106, line 4 of transcript):
“Commissioner:
Paragraph 36 of your statement, you say, and I quote ‘I asked Mr Cox not to tape-record the conversation’. The word I want you
to focus on is, ‘I asked’. Then you go to 37 and you say, ‘On the basis of his refusal to comply with a lawful direction, I
terminated his employment’. What was the lawful direction you gave him?
Picton:
Asking him not to record the conversation. We feel it’s a fair and reasonable request that you do not record the conversation.
Commissioner:
I understand that. I’m just – what I am trying to clarify is that you didn’t say to him, ‘I direct you not to record this conversation’;
did you?
Picton:
No, he was asked.
Commissioner:
You asked?
Picton:
Correct.”.
Submissions
Each party provided to the Commission both written and oral submissions.
Applicant
The applicant’s submissions focused on a number of matters including:
•
Acknowledgement of the applicant’s work ethic and performance
•
Evidence of
•
Cheryl Matthews
•
Ralph Roberts
•
Nicole Azoulay
•
Vikki Picton
•
Industrial aspects of the case
•
Not paid correct wage rates
•
Award not on display in the workplace
•
Termination certificate not provided
•
Tape-recording of meetings (page 3 of submissions):
“I’ve stated the moral reasons for deciding to tape the meetings. The legal support I have to submit is firstly a copy of the privacy act that clearly
states that taping a conversation is not illegal if you are party to the conversation. Secondly, I submit the relevant extract of an Industrial Relations
Commission Queensland case [McLauchlan v Australia Meat Holdings Pty Ltd (U No. 40587 of 1997)] of the 24th of March 1998 where
Commissioner Bacon explains in almost half a page shy, and I quote, ‘On the point of taping such conferences, it is a practice that this member of the
Commission wholeheartedly supports’.”.
•
Remedy
•
Reinstatement to previous position
•
Compensation for loss of wages
•
If reinstatement not awarded – four (4) months wages
Respondent
Mr Smith, in his outline of submissions, addressed the following areas:
•
Legitimacy of the request not to tape-record the meetings
•
Significance of “Document 2”
•
•
“‘There cannot be a criticism of an employer because he makes a preliminary determination to dismiss and takes advice in that regard, provided
he has not shut his mind to any proffered explanation or further submission’.
•
Use of a pre-prepared termination letter is a legitimate practice.
•
There is no presumption due to the existence of a pre-prepared termination letter that the employee has been denied an opportunity to respond to
adverse allegations.”.
Was the request a direction?
•
“The suggestion that the request made by the employer was anything less than a ‘direction’ to the employee is inconsistent with the
circumstances surrounding the dismissal.
•
The employee was requested numerous times to turn off the tape recorder.”.
•
The employee was warned that his conduct may be construed as misconduct.
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•
The employee was suspended with pay to consider his position for several days prior to the final meeting.
•
The employee was further warned on two more occasions and advised that his conduct may be construed as misconduct.
•
The employee, despite the above, by his actions refused to turn off the tape recorder.”.
•
Legal rights regarding tape-recording meetings
•
Reinstatement – impracticable
•
If finding in favour of the applicant (page 129, line 50 of transcript):
24 April, 2003
“I would submit that Mr Cox’s conduct both with respect to what occurred with his lies surrounding the leave incident, his conduct with respect to
the tape-recording in any case, which I would submit is just provocative and silly for a grown man to do, if he is to be awarded any amount of
compensation at all it should be a nominal amount.”.
•
Authorities
• Donald Spelicken v Darling Downs Foods (No. B1404 of 2002) Blades C
• Alexander Marken v The Smith’s Snackfood Company (No. B243 of 1997) Bougoure C.
Conclusion
The applicant had been employed since April 1999 and, whilst his evidence was that the employment relationship had been reasonable apart from the
intention of the respondent to change the status of full-time wage employees to that of salaried staff, the fact that the applicant commenced tape-recording
meetings with management from 7 March 2002 leaves little doubt that the trust between the parties had, from the applicant’s perspective, started to
“show some cracks”.
There was a requirement for the applicant to access leave in and around October 2002 due to family circumstances and, whilst I accept the evidence of
the applicant that due to changes in management, he experienced a number of difficulties having the leave formally approved when he did subsequently
provide a specific date, leave was approved.
Whilst on that leave, he was granted two (2) further periods of leave, even though the time in question was, for the respondent, their busiest period of
trading.
On his return to work on 4 November 2002, having sought to work a half-day arrangement and having that request refused, the applicant then engaged in
what can only be regarded as “questionable behaviour” first, in terms of contacting Mr Roberts, then the taking of a day sick leave on 6 November 2002,
followed by his decision to take the remainder of the week off on family leave.
His actions were taken with the full knowledge of the demands of the respondent’s business and without any consideration for the difficulties that his
absence would cause, the employer and his work colleagues.
On his return to work, the company, quite appropriately, scheduled a meeting to discuss the applicant’s behaviour which, on reflection, seemed to be over
taken by argument that arose over the applicant’s use of a tape-recorder at the meetings.
There was uncontested evidence that, at various times during the months leading up to the applicant’s termination, he tape-recorded meetings with
management in an open manner without objection by the respondent.
The Commission accepts the evidence of Ms Picton that on one occasion the applicant had attempted to “covertly” tape record a meeting without
advising of his intention.
The evidence is quite clear that the respondent’s view on the tape-recording of the meetings by the applicant had changed to one of opposition by the time
of the meeting of 13 November 2002.
The applicant continued to argue his legal right and, in particular, the need to tape-record the meetings due to not having an external witness present at
the meetings.
Between the applicant’s suspension on full pay on 13 November 2002 and the meeting of 16 November 2002, the respondent obtained, as is their right,
industrial advice in relation to dealing with the applicant’s behaviour in and around his unauthorised absence from work on 6 November 2002.
That advice (Identification item 2) contained reference to the termination of the applicant based on four (4) grounds:
“1)
2)
3)
4)
Violation of company rules, policies & procedures.
Dishonesty.
Unauthorised absence from work area during scheduled work hour.
Insubordination – failure to obey a lawful command.”.
The applicant, in these proceedings, argued that the company had predetermined his termination prior to the meeting on 16 November 2002 by the
preparation of the advice.
In the view of the Commission, the applicant may have had the basis of a reasonable argument had that advice been the reason given for the termination,
however, the disagreement at the commencement of the 16 November 2002 meeting over the tape-recording of the meeting was, on the evidence, the
clear and precise event that led to the applicant’s termination and, as such, the advice obtained became void in the circumstances.
Finding
The applicant’s employment was terminated by Ms Picton on 16 November 2002 for what she described as his “refusal to comply with a lawful
direction” being his failure to desist from the tape-recording of a meeting between the parties.
On the evidence before the Commission, in particular that of Ms Picton, repeated requests were made to the applicant to cease tape-recording, but there
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1861
was not, on the evidence, a lawful direction given, nor was the applicant advised that his continued use of the tape-recorder may have led to his
termination.
Putting aside whether the applicant had a legal right or not to tape-record the meeting, the actions of the respondent in terminating the applicant in the
manner in which they did was, in my view, both harsh and unreasonable.
In fact, on the evidence before the Commission, had the meeting proceeded (even if tape-recorded), the respondent had grounds upon which the
termination of the applicant may well have been justified.
Remedy
The primary remedy under the Act is that reinstatement or re-employment should be the first option considered by the Commission and, in this matter,
was actively sought by the applicant.
On the other hand, Mr Smith submitted in the strongest terms that the conduct and the behaviour of the applicant had been such that the employment
relationship had broken down to the extent that reinstatement or re-employment would be impracticable.
I have accepted the arguments advanced by Mr Smith and, as such, I am not prepared to order the reinstatement or re-employment of the applicant.
In considering the issue of compensation, it is necessary to take into account the conduct of the parties in the events leading up to the termination and, in
the case of the applicant, his circumstances since the dismissal.
The applicant advanced a claim for four (4) months wages, whilst Mr Smith stated that if any amount was to be awarded, then it should only be that of a
nominal amount.
As stated earlier in the decision, the Commission is of the view that the applicant’s conduct in taking leave from 6 November 2002, in the manner in
which he did, may have presented the respondent with reasonable cause to terminate the employment.
On that basis, I am inclined to accept the submission of Mr Smith and, as such, award a nominal amount of compensation, being $1500 (gross) to be paid
to the applicant twenty-one days after the release of this decision. The appropriate income tax is to be deducted from that amount.
I order accordingly.
J.M. THOMPSON, Commissioner.
Hearing Details
Appearances:
Mr A. Cox, Applicant.
Mr M. Smith, Barrister, for the Respondent.
2003
Released: 3 April 2003
6 and 20 March
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 74 – application for re-instatement
Kenneth Keirnan AND Nambour Security Services Pty Ltd (No. B960 of 2002)
COMMISSIONER BROWN
4 April 2003
DECISION
This decision relates to an application lodged on 17 June 2002 by Kenneth Kiernan (the applicant) for reinstatement to his former position of casual
Security Guard with Nambour Security Services Pty Ltd (the respondent).
The respondent was at all times aware of his obligations with respect to this matter.
He engaged legal representation (Butler McDermott & Egan Solicitors) to represent him.
The respondent participated in a conciliation conference, a call-over (directions hearing) and subsequently advised the Commission in writing on 19
March 2003 of his decision to cease to be represented by Steven Brough of Butler McDermott & Eagan Solicitors.
At all times the respondent’s address for service and contact details were known to the Industrial Registry and remained unchanged.
Moreover, my Associate made several attempts to contact the respondent when the deadline for the provision of witness statements had passed.
The contact included direct telephone conversations with a receptionist of the respondent and several phone messages left with her requesting the
respondent make contact. The respondent did not respond.
It is the view of the Commission that the respondent has been given every opportunity to participate fully in these proceedings and has chosen not to.
In the circumstances I believed that to delay this matter further would not have in all likelihood brought about any change. Therefore considering the
extra costs that would be involved for both the Commission and the applicant if the matter were to be re-scheduled, I did not believe that it would have
been in the public interest to delay this matter and determined to hear the matter ex-parte.
The applicant submitted that he was employed on a regular and systematic basis from June 1996 until his termination on 3 June 2002.
He further contended that for the last 3 years of his employment he worked in accordance with a set roster which required 76 hours per fortnight on
mobile patrols and 36.5 hours per fortnight on a static post at a location known as the “Big Top”.
He stated that he had very little in the way of absences during his employment with the respondent and that at no time was he warned or counselled by
the respondent regarding his conduct, capacity or performance.
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24 April, 2003
He claimed that his employment was terminated by the respondent immediately following a conversation between the applicant and the respondent
wherein the applicant raised the issue of underpayment of wages.
The applicant’s evidence was that the respondent answered his wage enquiry by saying:
“I’m not going to sack you. I am not going to give you a separation certificate. You just will not receive any more hours.”.
The applicant was dressed in uniform and had presented for work. The respondent had prevented, by his actions, the applicant from working.
The applicant performed no further work for the respondent.
Further evidence of the applicant was that he was an employee who paid PAYE income tax and but for the decision of the respondent not to further
employ him had a reasonable expectation of further employment with the respondent.
The applicant worked on a regular and systematic basis in accordance with a roster for a period well in excess of one year and was not required to contact
the respondent for roster instructions.
I accept the evidence of the applicant and find as follows:
•
•
•
The applicant was not an excluded employee;
The applicant was an employee; and
A termination occurred at the hands of the respondent.
There is no evidence of any discussion or consultation between the parties to suggest that the operational requirements of the respondent’s business
caused the termination.
I find that the dismissal did not relate to operational requirements pursuant to s. 77(b)(i) of the Industrial Relations Act 1999 (the Act).
I accept the evidence of the applicant, especially in the absence to any challenge to it, that the applicant’s conduct, capacity or performance did not cause
the dismissal (s. 77(b)(ii) of the Act).
In any event if there were problems associated with the conduct, capacity or performance, the applicant’s unchallenged evidence was that he was never
warned or given an opportunity to respond to any allegations (s. 77(c)(i) and (ii) of the Act).
Pursuant to s. 73(1) of the Act I find the dismissal to have been all of harsh, unjust and unreasonable.
Regarding remedy, I accept the submissions of the applicant that given the passage of time, the break down in the working relationship and the size of the
workplace, reinstatement would be impracticable.
On the evidence and submissions the applicant actively, and to some extent successfully, sought to mitigate his losses.
Exhibit 2 set out inter alia the set roster worked by the applicant for the 3 years prior to his termination. I accept that, on the balance of probabilities, this
roster would have continued for the next six months but for his termination.
Exhibit 2 also set out the amounts earned by the applicant subsequent to his termination. His evidence, which I accept, is that $9,000 of this amount was
earned in the six months following his termination.
Submissions for the applicant were that the Commission should award an amount calculated by applying the conditions of the Security Services
(Contractors) Award – State to the hours in the roster and projecting the calculations for 26 weeks. It was further submitted that this should result in a
figure of $24,000 less the $9,000 earned, being awarded. This, according to the applicant, was a conservative figure given that the applicant regularly
worked on special assignments (Nambour Show etc) and the amounts earned from these assignments have not been included in the calculations.
In the absence of any competing submission, I am prepared to grant the order sought.
I order that Nambour Security Services Pty Ltd pay to Kenneth Keirnan the amount of $15,000, taxed according to law, within 22 days of the date of
release of this decision.
The applicant made brief submissions seeking an award for costs.
Section 335 of the Act allows the Commission to order a party to an application to pay costs incurred by the other party only if satisfied, for an
application for reinstatement (s. 335(1)(b) of the Act), the party caused costs to be incurred by the other party because of an unreasonable act or omission
connected with the conduct of the application.
In the view of the Commission, the respondent in failing to either comply with the directions for the lodgement of material or attend the hearing has both
acted unreasonably and committed an act of omission.
The question for the Commission is whether these actions caused costs to be incurred.
I think not.
It is the view of the Commission that the actions of the respondent, which frankly border on contempt, have, in fact, saved the applicant some costs.
The failure on the part of the respondent to provide witness statements meant that the applicant was not pressed to respond by way of the preparation of
further statements and further, the failure of the respondent to attend the hearing has, in fact, shortened the process from its planned 2 day duration to one
half day.
If anything the disrespectful actions of the respondent saved the applicant money.
Costs are not awarded.
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
D.K. BROWN, Commissioner.
1863
Appearances:
Mr S. Alexander of Carroll, Alexander & Associates, for the applicant.
Hearing Details
Released: 4 April 2003
2003
31 March 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 331(b) – application to dismiss
Mealmont Pty Ltd trading as PRD Nationwide Palm Beach AND Elaine O’Brien
(No. B23 of 2003)
Mealmont Pty Ltd trading as PRD Nationwide Palm Beach AND Stephen Gunning
(No. B24 of 2003)
COMMISSIONER FISHER
8 April 2003
Application to dismiss – Section 331(b) Industrial Relations Act 1999 – Reinstatement and lost wages offered – Application to dismiss in the public
interest – Preliminary point – Barrister seeks leave to appear – Objection to legal representation – Leave granted – Section 319(2)(b) – Special
circumstances found to exist for legal representation – Background – Reinstatement not sought by either applicant in original Applications for
Reinstatement – Commission conference unsuccessful – Allegations of dishonesty – Offers of reinstatement found genuine – Motivation of original
applicants found questionable – Commission unable to order any more than already offered – Questionable use of public funds should the matter proceed
to hearing – Applications dismissed in the public interest.
DECISION
Mealmont Pty Ltd trading as PRD Nationwide Palm Beach has made two applications for orders under s. 331(b) of the Industrial Relations Act 1999 (the
Act) that the Commission dismiss the cause in Applications B1825 and B1826 of 2002. Case No. B1825 of 2002 is an application for reinstatement filed
by Elaine O’Brien against PRD Nationwide Palm Beach. Case No. B1826 of 2002 is an application for reinstatement filed by Stephen Gunning against
PRD Nationwide Palm Beach. Ms O’Brien and Mr Gunning are partners in life as well as partners in work.
The applications by Mealmont Pty Ltd, which are presently before the Commission, have been made as it has offered reinstatement and the payment of
lost wages to the two applicants in the reinstatement proceedings. Ms O’Brien and Mr Gunning have rejected the offers. Mealmont Pty Ltd has applied
for orders that Case Nos. B1825 and 1826 of 2002 be dismissed on public interest grounds.
Legal Representation
At the commencement of proceedings, Mr Watson, appearing for Mealmont Pty Ltd sought leave to appear, under s. 319 (2)(b)(iii) of the Act. Mr
Watson argued that although these proceedings were brought under s. 331 of the Act, a section that is not specifically mentioned in s. 319(2)(b), the
proceedings nonetheless related to a matter under Chapter 3 Dismissals. Mr Watson also argued that as matters of law would be involved, there were
special circumstances that made it desirable for Mealmont Pty Ltd to be legally represented.
Mr Bryce objected to Mr Watson’s appearance on the grounds that s. 319(2)(b)(iii) of the Act had not been satisfied. While making an eloquent plea for
the return of a primarily lay tribunal and practitioners, Mr Bryce advanced his objection on the basis that the matters to be determined were more matters
of fact than of law. He argued that Mr Siebenhausen, who appeared with Mr Watson, was a very experienced practitioner who was capable of running
the case for Mealmont Pty Ltd. Mr Bryce disputed Mr Watson’s claim that special circumstances existed.
In giving a decision from the Bench on this preliminary point, the Commission accepted Mr Watson’s arguments and granted leave for him to appear.
The Commission informed the parties that the reasons for that decision would appear in this written decision.
It is the case that the applications that commenced the present proceeding are not brought under any of the specific provisions mentioned in s.
319(2)(b)(iii) of the Act. They are however integrally connected to proceedings brought under Chapter 3 of the Act. Their purpose is to have the
Commission dismiss or refrain from hearing the Chapter 3 applications. In my view these proceedings “relate to a matter under Chapter 3” and thus
come within the provisions of s. 319(2)(b)(iii) of the Act.
These proceedings do not just involve matters of fact but raise considerations of points of law. Indeed resolving the conflict over the legal issues is
fundamental to the proceedings. Some of the points of law have not been fully ventilated in previous cases. Accordingly the Commission believes that it
would benefit from legal representation.
In all of the circumstances the Commission believes that special circumstances exist that make it desirable for a party to be legally represented.
Background
Ms O’Brien and Mr Gunning were employed by Mealmont Pty Ltd as Real Estate Salespersons until their dismissals on 30 October 2002. After their
dismissals Ms O’Brien and Mr Gunning consulted Mr Bryce, an industrial advocate. Ms O’Brien and Mr Gunning then decided to each lodge an
application for reinstatement.
Schedule 1 of the application for reinstatement form contains seven parts that need to be completed by an applicant. Part 1 is headed “Decision sought”
and provides:
“1. Decision sought
The applicant seeks the following orders:
(A)
That the applicant be reinstated in [his][her] former position (or as nearly as is possible) without prejudice to the applicant’s former conditions
of employment.
(B)
That the respondent pay remuneration lost between the date the dismissal took effect ……../………/…… and the date of reinstatement.
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(C)
That the respondent pay the employee the amount of compensation the Commission considers appropriate.
(D)
(other orders sought)
(E)
Such further or other order as the Commission considers appropriate.”.
24 April, 2003
In her application Ms O’Brien has not marked (A), that is, reinstatement. Point (B) is circled and the date of dismissal (30/10/02) inserted. The word
“reinstatement” is crossed out at (B) and the word “decision” printed instead. Points (C) and (E) are also been circled. Point (D) is not circled but
following the words (other Orders sought) there is inserted in printing “Public retraction of the termination and the reasons therefore…”.
Mr Gunning’s application is in almost identical terms, the only difference being that (D) is circled as well.
During the cross-examination of Daniel Fritz, a Director of Mealmont Pty Ltd, Mr Bryce said that it was on his advice that point (A), which deals with
reinstatement, was not marked as reinstatement was not being sought by either of his clients (transcript p. 18).
The applications for reinstatement were filed on 13 November 2002. After being served with the two applications, Mr Fritz sought advice on how to
respond to them from Bruce Seibenhausen of Lilydeen Pty Ltd trading as Bruce Seibenhausen and Associates. As Vice-President of the Queensland Real
Estate Industrial Organisation of Employers, Mr Fritz knew Mr Seibenhausen due to his position of Secretary/Treasurer of that organisation.
After consulting Mr Seibenhausen, Mr Fritz instructed him to write to Mr Bryce offering reinstatement to both Ms O’Brien and Mr Gunning. In
accordance with those instructions Mr Seibenhausen wrote to Mr Bryce on 25 November 2002 with a “Without Prejudice” offer of reinstatement for Ms
O’Brien. It should be noted that reinstatement to her former position was offered with effect from 1 December 2002, however, an earlier date was
possible in the event she accepted the position. The reinstatement was to be on the same terms and conditions as she previously enjoyed and her
continuity of service was to be maintained. In terms of the payment of lost wages, the following offer was made:
“Ms O’Brien will be reimbursed for loss of income for the month during which she was not employed, on terms to be subject to negotiation between
her and my client, but to be no higher an amount than her average monthly earnings over the preceding 12 month period.”.
On 27 November 2002 Mr Siebenhausen wrote in similar terms to Mr Bryce about the offer of reinstatement for Mr Gunning. (There are some errors in
the letter as it was a “cut and paste” of the letter regarding Ms O’Brien however, these are not material). The major point of difference was that the offer
was made “subject to Mr Gunning agreeing to undertake training in workplace interpersonal relationships since there is evidence that his manner of
dealing with other staff members has been the cause of considerable discomfort to those others.”.
Mr Bryce responded to Mr Siebenhausen’s correspondence with a letter dated 29 November 2002. It was not sent on a “Without Prejudice” basis. In his
letter Mr Bryce deals with three other matters (payment of commission, superannuation and unauthorised removal of monies) before turning to point 4
“Unfair Dismissals”. Under this heading, Mr Bryce said that his clients have considered the reinstatement proposal and have instructed him to respond in
the following terms, which summarised are as follows:
(1) his clients doubt that a relationship based on trust can be re-established;
(2) the dismissal has impacted on the capacity of his clients to earn an income and due to the nature of the real estate industry a period of three
months would be the time required to re-establish themselves;
(3) a retraction of the references to dishonesty in the terminations; and
(4) withdrawal of the need for Mr Gunning to undertake workplace interpersonal relationship training.
Mr Bryce then said in his letter, “Despite the above I am instructed to propose the following:” and then proceeded to list eight points including at point (i)
that “Both my clients be reinstated from a date in the immediate future of their own choosing.” The remaining points covered the payment of lost wages;
compensation for the period of re-establishment in the industry; retraction of the terminations, the grounds therefore and an apology and that Mr Fritz
undertake training in various matters. The penultimate paragraph reads:
“My clients retain their doubts over the viability of re-establishing a positive relationship with your client, however propose the aforegoing as a
genuine attempt to resolve the present litigation. For their part they will re-enter the relationship with the best of intentions.”.
Mr Siebenhausen responded by letter dated 2 December 2002. After addressing the first three matters raised in Mr Bryce’s letter of 29 November 2002,
Mr Seibenhausen said, that acting on instructions from his client, Ms O’Brien’s and Mr Gunning’s response on the matter of the dismissal was “not
acceptable. However my client is prepared to honour the offers made in my letter of 27 November 2002.”.
The conference between the parties required by s. 75 of the Act was held before the Commission on 6 December 2002. Despite conciliation being
unsuccessful, the parties continued to correspond. By letter dated 11 December 2002, Mr Bryce wrote to Mr Siebenhausen setting out the terms upon
which his clients were prepared to settle their applications for reinstatement filed in the Commission. In this letter reinstatement was abandoned. Mr
Bryce said that:
“In proposing these terms of settlement I acknowledge your client’s offers of reinstatement under certain conditions. I remind you that my clients
were prepared to accept re-instatement also under nominated conditions. This was rejected by your client. The failure of the parties to agree on reinstatement terms now indicates this is no longer a viable remedy for my clients’ unfair dismissals.”.
Attached to Mr Bryce’s letter was a draft letter dealing with the matter of the retraction of the dishonesty reference.
Mr Siebenhausen replied by letter of 13 December 2002. After dealing with several other matters, Mr Seibenhausen again, on instructions from his
client, offered reinstatement to both Ms O’Brien and Mr Gunning. These offers were not substantially different to the offer made on 25 November 2002
to Ms O’Brien and on 27 November 2002 to Mr Gunning. In the letter Mr Seibenhausen put Mr Bryce’s clients on notice that in the event of their refusal
of the offers action may be taken by his client under s. 331 of the Act to dismiss the cause and to recover costs.
Although Mr Bryce did not respond in writing, he verbally advised Mr Seibenhausen that the offers were being rejected. As the matter had not been
resolved the applicants sought certificates pursuant to s. 75(3) of the Act and Mealmont Pty Ltd decided to proceed to file applications for orders under s.
331 of the Act.
The “Application for Reinstatement”
The form issued pursuant to s. 74 of the Act and s. 123 of the Industrial Relations (Tribunals) Rules 2000, Form 2, is titled “Application of
Reinstatement”. This form is the first dedicated form to be issued for reinstatement applications. Previously, the general application form was used. It is
perhaps as a consequence of the stage of the development of the form that it is a relatively complex document. The title of the form and the statement on
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page 2 of the pro forma in bold type that the applicant “appl(ies) for reinstatement to my former position”, give clear guidance about the purpose of the
form. Where it becomes muddy is in Part 1 “Decision sought” of Schedule 1. Here the types of remedies that may be sought are listed. These are shown
above. In my view this list provides little guidance to an applicant as to the provisions of the Act. Although reinstatement is listed before any other
remedy, there is nothing in this part of the form to clearly show that reinstatement must be sought first and then only if the Commission finds
reinstatement to be impracticable will compensation be considered. To list compensation immediately following the orders for reinstatement and the
payment of lost wages suggests that it can be sought in addition, rather than as an alternative, to reinstatement.
The information about the primacy of re-instatement as a remedy is contained in the information kit that is available to applicants from the Registry and
the Commission’s web site. The Commission accepts that this information may not be read by all applicants. It reflects the provisions of the Act. The
construction of Chapter 3 Part 2 of the Act is such that reinstatement is the primary remedy that the Commission may award and must be initially sought
by an applicant. Only when the Commission decides that reinstatement is impracticable can the remedy of compensation be considered. There is no
avenue for merely seeking compensation.
That reinstatement must be sought in the first instance raises issues about the practical realities of applications for reinstatement. Once a dismissal has
occurred the parties to the prior employment relationship are often disinclined to restore it. Few applicants, at least at the stage of the conciliation
conference conducted pursuant to s. 75 of the Act genuinely seek reinstatement (or re-employment). Even fewer employers offer reinstatement or reemployment. In reality, settlement discussions at conciliation conferences move quickly from any consideration of re-instatement and inevitably centre
on compensation. It could well be argued that this approach is inconsistent with the central tenet of the Unfair Dismissal Part of the Act.
That Part 1 of Schedule 1 of the Application for Reinstatement form may mislead unrepresented applicants about the available remedies can be readily
acknowledged. But that is not the case here. Mr Bryce said in his cross-examination of Mr Fritz that his clients had consulted him prior to lodging their
applications for reinstatement. He further said that his clients had discussed with him the practicability of reinstatement. He also said that as a result of
these discussions his clients decided not to seek reinstatement.
In his evidence Mr Gunning attempted to say that was not his and Ms O’Brien’s true position, that they were always seeking reinstatement. Neither Mr
Bryce’s comments nor the forms support this position. While all other orders in Part 1 of Schedule 1 are marked in some way, (A), the order for
reinstatement, is unmarked. Any reasonable person reading the applications could not conclude that reinstatement was being sought by either Ms
O’Brien or Mr Gunning.
Added to this is the clear position put by Mr Bryce to Mr Fritz in cross-examination. This Commission is entitled to believe that this position was put on
instructions from Ms O’Brien and Mr Gunning. (see R v Robinson [1977] Qd R 387 @ 393-394). In my view there is very real doubt that the
applications have been validly made. As this point was not pressed by Mealmont Pty Ltd the Commission does not find it necessary to determine the
point. However, if the applications have not been validly made then the respondent would have been entitled to seek to have them dismissed on that
basis.
The Allegation of Dishonesty
This matter consumed a disproportionate amount of time during the hearing and submissions. The nature of s. 331 proceedings does not allow the
Commission to make findings on the substantive matter which led to the s. 74 applications, that is, whether the dismissals were harsh, unjust or
unreasonable.
Both Ms O’Brien and Mr Gunning provided detailed Statements of Material Facts which were in substantially similar terms. Parts of these statements
were put by Mr Bryce to Mr Fritz in cross-examination who largely refuted the claims made by Ms O’Brien and Mr Gunning. I wish to make it clear that
I am making no findings nor drawing any inferences from this about the fairness or otherwise of the dismissals.
It seems that on 30 October 2002 Mr Fritz believed that Mr Gunning deliberately misled him about certain things. Mr Fritz seems to have described this
as Mr Gunning acting dishonestly. While reference is made to this dishonesty in a termination notice, reference to it is not made in the letter of
termination.
It seems that the matter of dishonesty relates only to Mr Gunning, but because of Mr Gunning’s and Ms O’Brien’s relationship, the failure of Mr Fritz to
adequately address this issue has been a major contributing factor to both Ms O’Brien and Mr Gunning refusing the offers of reinstatement. Without a
retraction, they believe employment relationships based on trust cannot be re-established. In addition, it is their position that the failure to retract this
allegation will prevent Mr Gunning from securing alternative employment in fields in which he is qualified, namely the police service or security
industry.
Trust is certainly an essential ingredient in any employment relationship. Where an employment relationship has been broken by an employer dismissing
an employee in circumstances where the employee does not believe the dismissal to be justified, any attempt to restore that relationship will inevitably be
met with suspicion. That such mistrust might exist is not necessarily a fatal impediment to the restoration of the relationship. A range of factors will be
bear on the question of whether the employment relationship can be restored. If it becomes a matter for the Commission to determine then the question
turns on whether reinstatement is the appropriate remedy and if that is impracticable what the form of the remedy should be. In Auto Logistics Pty Ltd
trading as Pacific Auto Auctions v Kovacs (1997) 155 QGIG 320, de Jersey P considered the meaning of the word impracticable. He said “That word
does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely
inconvenient or difficult. As the dictionaries confirm, the word means practically impossible. See Liddle v Lembke (1994) 127 ALR 342, 360 and
especially 367-8.”.
Although Ms O’Brien and Mr Gunning might be partners in work as well as partners in life, the issue about dishonesty pertained only to Mr Gunning.
While I accept that Ms O’Brien was affronted by this allegation being made against her partner, this personal view is not a legitimate basis upon she is
able to refuse reinstatement.
A retraction by Mr Fritz would have helped to “clear the air” between Mr Gunning and himself. I also consider that from Mr Gunning’s and Ms
O’Brien’s perspective, a retraction might well have assisted them in believing that employment relationships based on trust could be re-established.
Ultimately however, reinstatement with no loss of wages and continuity of service preserved, is a public acknowledgement that the employer erred in
dismissing an employee. The fact that it was voluntarily offered and offered prior to the Commission conference being held might also be able to be
construed as an admission.
While it is clear that Mr Gunning was upset by the allegations, it is hardly in the same category as the types of misconduct listed in s. 83 of the Act, viz,
theft, assault and fraud. Moreover, it is not included in the letter of termination. In my view the allegation gained a prominence in the minds of Ms
O’Brien and Mr Gunning that it did not deserve and became a significant impediment to accepting reinstatement. For the reasons given this was not
warranted.
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24 April, 2003
The Offers of Reinstatement
In his evidence Mr Fritz stated that the offers of reinstatement to Ms O’Brien and Mr Gunning were genuine and they stood. In cross-examination Mr
Bryce pursued the line that Mr Fritz did not resile from the dismissals being fair and reasonable and would not retract the allegation of dishonesty. Mr
Fritz, in responding to questions, said that at the time he believed the dismissals to have been fair and reasonable given the events of 30 October 2002.
He would also not retract the charge of dishonesty, indicating that he believed and remained of the view that Mr Gunning had acted dishonestly on the
day. However, after seeking advice on receiving the applications, Mr Fritz believed that reinstatement was the appropriate course to take.
As something of an aside I remark that it is somewhat surprising that Mr Fritz maintained his offers of reinstatement given all that has transpired between
the parties. However, Mr Fritz’s evidence that the offers were genuine and they remained open was not shaken. I accept that evidence. It is the case that
Mr Fritz would not resile from his view about his actions on 30 October 2002. He is entitled to that view as much as Ms O’Brien and Mr Gunning are
entitled to their belief that his actions were unfair. The fact that after seeking advice Mr Fritz offered reinstatement does not mean that he should resile
from his view. The only conclusion that can reasonably be drawn is that once the formal applications had been filed, Mr Fritz decided that the
Commission may not share his view and decided to act to remedy the situation.
I also am of the view that Mr Fritz’s offers of reinstatement were not made in order to make these applications to dismiss Ms O’Brien’s and Mr
Gunning’s applications for reinstatement. There was nothing in his evidence to suggest that his offers were a sham or a ruse. The first time that
applications under s. 331 of the Act were raised was in Mr Siebenhausen’s letter of 13 December 2002, when reinstatement was offered for the third time.
Section 78 of the Act empowers the Commission to award reinstatement (or re-employment) when an employee is found to have been unfairly dismissed.
Reinstatement is the primary remedy under the Act for an unfair dismissal. Section 79 of the Act empowers the Commission to award compensation, “If
and only if the Commission finds reinstatement to be impracticable.”.
The policy position underpinning these provisions is that employees should be restored to their former employment when they are found to be unfairly
dismissed. An employee should not suffer the loss of their income and entitlements as a result of an unfair decision on the part of their former employer.
In Auto Logistics de Jersey P considered the meaning of s. 297 of the Industrial Relations Act 1990 that is in substantially similar terms to s. 79 of the
present Act. It too provided the requirement that the Commission had to make a finding that reinstatement was impracticable before considering an
award of compensation. In short de Jersey P said that the Commission’s jurisdiction to award compensation depended on a finding that reinstatement
was impracticable.
Is the Commission able to reach a finding that reinstatement is impracticable without a hearing on the merits?
Ms O’Brien and Mr Gunning may have believed that reinstatement was impracticable when they filed their applications for “reinstatement”. This view
did not continue as evidenced by Mr Bryce’s letter of 29 November 2002 when a counter offer of reinstatement on certain conditions was made. The
nature of some of the terms of the counter offer raises questions about the genuineness of that offer. Despite that, considered on its face, it is clear that
Ms O’Brien and Mr Gunning were prepared to accept that reinstatement was practicable. It was only when Mr Fritz did not meet their terms and
maintained his own that Ms O’Brien and Mr Gunning reverted to their original positions, that is, that reinstatement was impracticable.
What more could Ms O’Brien and Mr Gunning achieve if their “applications for reinstatement” proceeded to a hearing? Certainly they would receive a
finding on whether their dismissals were harsh, unjust or unreasonable. They may or may not receive a finding on the alleged matter of dishonesty. The
offers that Mr Fritz made (with the exception of the condition to undertake training) were the outcomes Ms O’Brien and Mr Gunning would receive in
the event the Commission found their dismissals to be unfair and considered reinstatement to be practicable. Given their willingness to entertain
reinstatement and make offers of reinstatement of their own, it is likely that the Commission would find reinstatement to be practicable particularly
bearing in mind the focus of the Act. The dishonesty matter has been presented as the significant argument against their reinstatement. My views on that
matter are expressed earlier. Suffice to say that I do not believe that argument to have much foundation and certainly not sufficiently compelling for a
view to be reached at this stage that reinstatement would be impracticable or, in the words of de Jersey P, to be practically impossible.
Rejection of the offers of reinstatement together with the payment of lost wages and provision for continuity of service raises questions about Ms
O’Brien’s and Mr Gunning’s motivation in continuing to pursue these matters when there is nothing more the Commission could order beyond that which
has previously been offered. In all of the circumstances I consider it to be a questionable use of public funds if these matters were permitted to proceed to
a hearing. In my view the public interest would not be served. Accordingly, I dismiss applications B1825 of 2002 and B1826 of 2002 pursuant to s.
331(b)(ii) of the Act on the grounds that it is not necessary or desirable in the public interest for there to be further proceedings in relation to these
matters.
Order accordingly.
G.K. Fisher, Commissioner.
Hearing Details:
2003
7 and 20 February
Appearances:
Mr K. Watson (Barrister) instructed by Mr B. Siebenhausen and with him Mr. D.
Fritz for the applicant.
Mr R. Bryce and with him Ms O’Brien and Mr Gunning for the respondents.
Released: 8 April 2003
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 156 – application for approval of certified agreement
WorkCover Queensland AND The Queensland Public Sector Union of Employees and Another
(No. CA52 of 2003)
WORKCOVER QUEENSLAND – CERTIFIED AGREEMENT 2003
COMMISSIONER EDWARDS
8 April 2003
Application for approval of certified agreement – Intervention – Callings – Legal status – Intervention refused – Agreement certified.
DECISION
On 12 February 2003 an application for certification of the WorkCover Queensland – Certified Agreement 2003 was filed with the Industrial Registrar.
The Agreement was negotiated by WorkCover Queensland with The Queensland Public Sector Union of Employees (QPSU).
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The application was listed for hearing on 27 February 2003. Prior to the hearing the Industrial Registrar received correspondence dated 27 February 2003
from the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch,
Union of Employees (AMACS) advising their intention to intervene for the purposes of becoming bound to the Agreement.
As a result of the application by AMACS the Commission directed the two Unions to have discussions and report back at a hearing on 5 March 2003.
The matter was relisted on 5 March 2003 at which time the Commission was informed that all avenues of discussion had been exhausted and no
agreement between the QPSU and AMACS was reached. The submissions received at the hearing lacked detail in certain areas, but especially in regard
to the legal status of WorkCover. The Commission adjourned to enable more comprehensive submissions to be prepared. The matter was relisted for 13
March 2003. On 13 March a further adjournment was granted until 18 March 2003. The final hearing was held on 21 March 2003. At this hearing the
Commission refused the application by AMACS and certified the agreement as filed with a date of operation of 21 March 2003. This decision without
reasons was given as the salary rates were applicable as at the date of certification.
WorkCover Queensland was established by the WorkCover Queensland Act 1996. Upon enactment the State Public Service Federation of Queensland
(now the QPSU) made application to the Commission to amend its callings. As a result the callings were amended to provide for a calling “Employees of
WorkCover Queensland”. At this time AMACS and the QPSU entered into an unregistered agreement.
Since 1997 the industrial instruments applicable to the Unions, employees and respondent are as follows:
•
the first Agreement was the WorkCover Queensland Enterprise Development Certified Agreement 1997;
•
the second Agreement was the WorkCover Queensland “Agreement 2000” Certified Agreement; and
•
the WorkCover Queensland Award – State.
AMACS was not a party to these instruments.
The callings of AMACS are:
“Persons, male and female, employed either wholly or partially in the pursuit or vocation of writing, engrossing, typing, and/or calculating, whether
by ordinary means or by means of any process or machine calculated to achieve a like result; and/or invoicing, billing, changing, checking, or
otherwise dealing with the records, writing, correspondence, books, and accounts of any person, firm, company, association, or local authority,
employed in trading, receiving, or recording, or in any other clerical capacity whatsoever; and switchboard attendants; superintendents, inspectors,
canvassers and/or collectors employed by life insurance companies and/or fire and accident companies operating in the State of Queensland funeral
benefit canvassers and/or collectors.”. (the Commission has highlighted the above words)
In considering the callings of AMACS the Commission expressed concern about the legal entity, WorkCover Queensland in regard to the definition of
“firm, company, association”. It was the submission of Mr Hunter that WorkCover Queensland is a body corporate pursuant to section 331 of the
WorkCover Act. The Australian Securities and Investments Commission record its status as a “non–registered organisation”. It is not a “company” for
the purposes of the Corporations Act 2001, since it is not registered under that Act.
The Acts Interpretation Act 1954 (Old) defines “person” to include an individual or a corporation. “Corporation” is defined to include a body corporate.
As WorkCover Queensland is not a company, the callings of AMACS do not provide coverage for the employees.
Furthermore, WorkCover Queensland indicated as follows:
•
•
•
•
WorkCover Queensland does not wish AMACS to be included in the Application Clause of the Agreement;
the history of WorkCover Queensland has been that AMACS did not have a presence;
AMACS had no input into the negotiations for the Agreement; and
there is a relatively low level of AMACS membership within WorkCover Queensland employees.
It was on this basis that the Commission arrived at the decision and certified the Agreement to operate as from 21 March 2003.
Dated 8 April 2003.
K.L. EDWARDS, Commissioner.
Hearing Details
2003
27 February
5, 13, 18 and 21 March
17 and 20 March (Written
Submissions received)
Mr P. Hunter and Mr R. Miller on behalf of WorkCover Queensland.
Mr W. Reedman on behalf of the Department of Industrial Relations.
Mr B. Watson and Mr M. Thomas on behalf of The Queensland Public Sector Union
of Employees.
Ms K. Parkin on behalf of the Australian Municipal, Administrative, Clerical and
Services Union, Central and Southern Queensland Clerical and Administrative
Branch, Union of Employees.
Released: 8 April 2003
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 74 – application for reinstatement
Martin Christopher Shiel AND La Bamba Bar & Café (No. B1408 of 2002)
COMMISSIONER EDWARDS
8 April 2003
Reinstatement – Termination of Employment – Dismissal – Non-Compliance with Directions Order – Application Dismissed.
DECISION
On 2 September 2002 Mr M.C. Shiel (the applicant) filed an application in pursuance of the provisions of the Industrial Relations Act 1999.
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On 10 October 2002 the applicant advised the Registrar the matter was not settled and requested a listing at the next call-over.
The matter was listed for 25 October 2002. There was no appearance by either party.
The matter was again listed on 3 December 2002. A Directions Order was issued by the Industrial Registrar on 4 December 2002. By letter of 4
December 2002 the Acting Deputy Industrial Registrar advised the parties as follows:
“Please find enclosed a Directions Order in relation to the above matter.
Your attention is drawn to the contents of the Directions Order as it sets out various requirements of the parties, the time frames to meet those
requirements and particulars regarding the hearing of the application for an extension of time.
Please ensure that these directions are complied with as required.”.
On 11 February 2003 Mr J. O’Donnell, agent for the applicant was requested to file a Notice of Appointment of Agent.
As no documentation was received in accordance with the Directions Order, the Commission listed the matter for hearing on 12 February 2003. At the
hearing the applicant conducted his own case. The respondent was not represented but the current owner of La Bamba Bar & Café, Mr R. Stewart
appeared. The Commission granted the applicant 21 days to file a submission with the Registrar in regard to the proposal by the Commission to invoke
clause 9 of the Directions Order which states:
“NON-COMPLIANCE. It is necessary that parties comply with these directions.
If the Applicant does not comply, the matter may be DISMISSED under the provisions of Rule 42(2)(a).
In the event that the Respondent does not comply, the Respondent may be LIMITED at the hearing to the material filed in compliance with
this Further Directions Order.”.
On 14 March 2003 a Statutory Declaration was received from the applicant which states:
“. . the reason I was unable to lodge the necessary paperwork was that as my last teleconference approached I was unable to contact my arbitration
counsellor, James O’Donnell. I was relying upon him to guide me through the submission.
I am currently trying to obtain the services of another counsellor and I wish to proceed with the matter.
I apologise for any inconvenience this may have caused.”.
Rule 42(2)(a) states:
“Failure to comply with directions order
(2) The court, commission or registrar may do any of the following –
(a) dismiss the proceeding; . . .”.
In view of the lapse of time and the fact that there was no compliance with the Directions Order, the Commission dismisses the application.
The Commission orders accordingly.
Dated 8 April 2003.
K.L. EDWARDS, Commissioner.
Appearances:
Mr M.C. Shiel on his own behalf.
There was no appearance by the respondent.
Mr R. Stewart, the current owner appeared on behalf of La Bamba Bar & Café.
Hearing Details
2003
12 February
14 March (Written Submissions Received)
Released: 8 April 2003
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 74 – application for reinstatement
Heather May Biggs AND Matilda’s Diner Castletown (No. B593 of 2002)
COMMISSIONER EDWARDS
8 April 2003
Reinstatement – Termination of Employment – Dismissal – Non-Compliance with Directions Order – Submissions Received – Matter Relisted.
DECISION
By application filed on 8 April 2002 Heather May Biggs (the applicant) applied for reinstatement to her former position with Matilda’s Diner Castletown
(the respondent).
The matter was listed for call-over on 3 December 2002. A Directions Order was issued on 4 December 2002.
On 7 February 2003 the respondent forwarded correspondence advising they were unable to locate the applicant and sought the application be dismissed.
Following receipt of this correspondence and as there was non-compliance with the Directions Order, the Commission listed the matter for mention on 12
February 2003 at which time the Commission requested the applicant or her agent to forward submissions in relation to item 9 of the Directions Order
within 21 days.
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On 5 March 2003 the Commission received a submission from Mr O’Donnell on behalf of the applicant.
In view of the contents of the submission from Mr O’Donnell, the Commission will relist the matter for mention at the Townsville District Court, 31
Walker Street, Townsville at 1.00 p.m. on Tuesday 22 April 2003.
Dated 8 April 2003.
K.L. EDWARDS, Commissioner.
Appearances:
Ms H.M. Biggs on her own behalf.
Mr D.Wharton on behalf of the respondent.
Hearing Details
2003
12 February
Released: 8 April 2003
5 March (Written Submissions received)
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 331(b) – dismiss or refrain from hearing
Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers AND The Electrical Trades
Union of Employees of Australia, Queensland Branch (No. B1417 of 2002)
COMMISSIONER ASBURY
8 April 2003
REPORT ON DECISION (as edited)
Overview
This is an application by the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI), under s. 231 of the
Industrial Relations Act 1999 (the Act) for the Commission to dismiss or refrain from hearing the application in W110 of 2002. That application made
by the Electrical Trades Union of Employees of Australia, Queensland Branch (ETU), seeks an order for payment of unpaid wages against Sherrin Hire
Pty Ltd, said to be owing to Mr Neil Weir.
The application in W110 of 2002 contends that Mr Weir was employed pursuant to a contractual arrangement between Sherrin Hire Pty Ltd and Energex,
which required that Sherrin Hire Pty Ltd pay for work performed on Energex contracts, rates of pay and allowances, which in aggregate were no less than
those applicable to supply industry employees.
In support of the application, the ETU relies on s. 55 of the Property Law Act 1974 (Qld) which provides as follows:
“Contracts for the Benefit of Third Parties
55(1) A promisor, who for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit
of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.”.
In Case No. B1417 of 2002, QCCI initially contended that there was no contract in effect between Sherrin Hire Pty Ltd and Energex at the time of Mr
Weir’s employment and that Sherrin Hire Pty Ltd was not then or now a party to the certified agreement setting rates of pay and allowances for supply
industry employees. When B1417 of 2002 was initially heard, QCCI sought to amend the application to argue a further ground upon which it was
contended that W110 of 2002 should be dismissed under s. 231 of the Act. Essentially, that further ground was that the application of the Property Law
Act 1974 (Qld) is restricted to issues related to or involving land. For the Property Law Act 1974 (Qld) to apply to wages, it was contended, that the term
“wages” would be required to be referenced back to land. There was no such reference in the Property Law Act 1974 (Qld).
QCCI also contended that even if the Commission was satisfied that the Property Law Act 1974 (Qld) could apply to a contract for the payment of wages,
the contract between Sherrin Hire Pty Ltd and Energex was not a contract for the benefit of a third party. Section 55 of the Property Law Act 1974 (Qld)
required “valuable consideration” to pass between Energex and Sherrin Hire Pty Ltd in return for a promise by Sherrin Hire Pty Ltd to do something for
the benefit of Mr Weir. That section did not contemplate the situation in this case which was that consideration had passed from Sherrin Hire Pty Ltd to
Mr Weir. In this regard, it was also contended that Mr Weir was not a beneficiary of the promise made by Sherrin Hire Pty Ltd or at least not in any
direct or significant way. In all of the circumstances, the Property Law Act 1974 (Qld) has no application to the contract between Energex and Sherrin
Hire Pty Ltd and as such, the ETU and Mr Weir have no standing to progress a claim pursuant to that contract.
Decision
In giving her decision from the Bench on 23 December 2002, Commissioner Asbury stated:
“In relation to the argument that the provisions of the Property Law Act 1974 (Qld) are restricted to land, or that wages must be referenced to some
definition of land under the Property Law Act 1974 (Qld) before it can have application in the case in question, I am not prepared to accept that
argument for the following reasons:
In my view the provisions of the Property Law Act 1974 (Qld), on a plain reading, make it clear that the Act is not restricted to contracts having a
connection to land.
It is nowhere stated in the Act that it only applies to registered land. The long title of the Act makes it clear in my view that there are other matters
that the Property Law Act 1974 (Qld) can go to.
In particular, the Act applies to contracts generally, not to contracts that are restricted to land. That is clear also from the heading for Part 2 Division
2 which states that it deals with general rules effecting contracts. The heading of Part 2 is ‘Deeds, Covenants, Instruments and Contract’.
Division 3, in comparison, is specifically headed ‘Sales of Lands’.
Furthermore, s. 55.5 of the Property Law Act 1974 (Qld) clearly refers to a situation where the duty in question relates to land. If the Act could only
apply to interests in land, then this provision would not be necessary and would be redundant.
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Moreover the interpretative provisions of section 55, that is section 55.6, define a promise to include:
‘A promise whether made by deed or in writing or subject to this Act orally, or partly in writing and partly orally.’
Under the provisions of the Property Law Act 1974 (Qld) an interest in land cannot be created or disposed of by parole and a contract relating to sale
or disposition of land must be in writing.
Therefore, this definition cannot refer only to promises or contracts conveying an interest in land.
The argument that even if s. 5 can apply, the contract between Energex and Sherrin is not a contract for the benefit of a third party and therefore is
not a contract to which s. 55 does apply, in my view, is one which would be best determined after hearing all of the evidence and after making a
determination about what the nature of the contract was and whether Mr Weir was a beneficiary or not or indeed whether it was necessary that he be
a beneficiary or not.
For example, s. 55 may not require the contract between parties A and B to be a contract for the benefit of C. Secondly, the issue of valuable
consideration may not relate to the consideration between Sherrin and its employees. It may relate to consideration passing between Energex and
Sherrin in return for a promise by Sherrin to pay certain rates of pay to its employees.
The benefit under the contract may be that there is a promise to pay certain rates. The argument advanced by the ETU, is in my view open, and it
can only be properly determined after fully considering all of the evidence about the contract and the nature of it and the question of whether there
was indeed a contract formed that is capable of being enforced, is one, again, that depends on how the evidence falls.
I am not prepared to grant the application to dismiss or refrain from hearing the substantive matter and I intend to proceed to hear the substantive
matter as soon as possible in the new year.
I would like to try to set some dates because I think this matter has gone on for a considerable period. So I’d like, if possible, to set some dates in the
new year. As I understand it, all of the materials in W110 of 2002 are in and it is simply a matter of proceeding and dealing with the merits of that
application, and in my view the second part of the argument, to dismiss or refrain from hearing, is one that raises issues which can only be
determined after fully considering all of the evidence and the merits of the application and that’s the manner in which I propose to deal with it.
I dismiss the application by QCCI in B1417 of 2002 that I refrain from hearing or dismiss the application in W110 of 2002 in relation to the first
ground advanced by QCCI at the hearing on 23 December 2002, and I intend to hear and determine W110 of 2002 as early as possible in the new
year.
I Order accordingly.”.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Appearances:
Mr J. Dwyer of the Queensland Chamber of Commerce and Industry Limited,
Industrial Organisation of Employers on behalf on Sherrin Hire Pty Ltd.
Ms K. Inglis for the Electrical Trades Union of Employees of Australia,
Queensland Branch.
Hearing Details
2002
26 September
4 November
5 and 23 December
Released: 8 April 2003
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 230 – action on industrial dispute
The Australian Workers’ Union of Employees, Queensland AND Mount Isa Mines Limited
(No. B1567 of 2002)
MINING AREA – MOUNT ISA MINES LIMITED – CERTIFIED AGREEMENT 1996
COMMISSIONER ASBURY
8 April 2003
Certified Agreement – Dispute in relation to interpretation of provision of Mining Area – Mount Isa Mines – Certified Agreement 1996 – Implementation
of new rosters – Principles applicable to construction of Certified Agreements – Extrinsic material as an aid to the construction of Certified Agreements –
Case law – Finding that The Australian Workers’ Union of Employees, Queensland did not negotiate away its right to refuse the implementation of new
rosters – Refusal to introduce new rosters not to be unreasonably withheld – Finding that Certified Agreement does not preclude Mount Isa Mines
Limited reaching agreement directly with employees in relation to new rosters – Finding that agreement of The Australian Workers’ Union of
Employees, Queensland is required before new rosters implemented – No order issued in relation to compliance with terms of Certified Agreement made.
DECISION
Background
In 1996 The Australian Workers’ Union of Employees, Queensland (AWU) and Mount Isa Mines Limited (MIM) entered into a certified agreement
entitled Mining Area – Mount Isa Mines Limited – Certified Agreement 1996 (the Certified Agreement). The Certified Agreement was made under the
then Industrial Relations Act 1990. Clause 1.4 provides that the Certified Agreement will operate from 1 August 1996 and remain in force until 31
August 2000. The parties have not terminated the agreement or sought certification of a replacement.
Although it was not in issue between the parties, I note for completeness that the Certified Agreement remains in operation by virtue of the transitional
provisions in subsequent legislation. Clause 5.6 of the Certified Agreement deals with the introduction of new rosters and provides that they must satisfy
Health and Safety, employee needs and business needs. The clause also provides that agreement to introduce new rosters shall not be unreasonably
withheld.
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Over a period of time, a number of disputes have occurred variously between MIM, the AWU and its members, in relation to the application of clause 5.6
of the Certified Agreement. These disputes have been notified to the Commission and dealt with by a number of Commission members, as well as the
Commission as presently constituted.
The Central issue in the Disputes
The central issue in the disputes has been that MIM, in reliance upon clause 5.6 of the Certified Agreement, has utilised a practice of reaching agreement
directly with employees, or calling for volunteers, to work particular rosters. MIM is of the view that it is entitled under clause 5.6 of the Certified
Agreement to go directly to employees with proposed rosters; conduct discussions with employees about the matters in clause 5.6 and then to implement
those rosters by agreement with employees who will be affected. MIM also contends that it is permitted under clause 5.6 to reach agreement with
employees working a particular roster in one area, to move into another area and continue to work that roster. In such circumstances, the roster is not a
new roster for the purposes of clause 5.6. While MIM is prepared to consult the AWU about rosters, it is of the view that the agreement of the AWU is
not required prior to the implementation of new rosters or the extension of existing rosters into areas where they have not previously been worked.
The AWU on the other hand, has maintained that the actions of MIM constitute a breach of the Certified Agreement. Essentially the AWU contends that
at the point the Certified Agreement was negotiated, a finite number of new rosters were agreed for implementation in specific areas of MIM’s
operations. MIM is not permitted to implement new rosters (i.e. rosters other than those agreed for certain areas as part of the negotiations for the
Certified Agreement) or to extend existing rosters into areas where they have not previously been worked, without having sought and obtained the
agreement of the AWU. In both situations the AWU contends that the rosters are “new rosters” for the purposes of clause 5.6.
The Current Applications before the Commission
The AWU brought an application, B1567 of 2002 seeking an order from the Commission to compel compliance with the Certified Agreement, to the
effect that MIM be ordered to refrain from implementing new rosters without seeking and reaching agreement with the AWU. The Orders were sought
under s. 230 of the Industrial Relations Act 1999, with reference to s. 277 – Power to grant injunctions.
On 18 October 2002, the AWU applied for an interim injunction, seeking to restrain MIM from engaging in the conduct complained of, pending the
hearing and determination of B1567 of 2002. The application for an interim injunction was dismissed, principally because MIM agreed that it would
observe a Protocol developed during proceedings relating to D399 of 2002, with respect to moving employees working existing rosters into areas where
those rosters had not been worked before or implementing new rosters, pending the final determination of B1567 of 2002.
A preliminary hearing in relation to the substantive application in B1567 of 2002 was conducted before another member of the Commission on 28
October 2002. With the agreement of the AWU and MIM the matter was reallocated to the Commission as presently constituted.
The substantive application was heard on 11 and 12 December 2002. Prior to the hearing of the substantive application, an application was filed by MIM
seeking an amendment to the Certified Agreement pursuant to s. 169(6) of the Act. Effectively the amendment sought by MIM was that new rosters
could be implemented with the agreement of employees who would work them. MIM said that the application for amendment was to enable final relief
to be perfected, in the event that the Commission accepted its interpretation and application of clause 5.6 of the Certified Agreement. MIM’s application
was forwarded to the Commission directly rather than being filed with the Industrial Registrar. With the agreement of both parties the application was
taken to be filed and the Commission waived any procedural failings in this regard pursuant to Rule 14 of the Industrial Relations (Tribunals) Rules
2000. MIM’s application was heard concurrently with the AWU application in B1567 of 2002.
The Case for the AWU
The AWU’s case is that the Certified Agreement was made between the AWU in its capacity as party principal, and MIM. Employees are not party to
the Certified Agreement. The circumstances where terms and conditions of employment and other matters covered by the Certified Agreement may be
varied by agreement between MIM and employees are clearly stipulated in the Certified Agreement. Where there is no clear stipulation, the parties who
must agree are MIM and the AWU, in its capacity as party principal.
All of the rosters to be worked at MIM’s operations were agreed by the Union and its members as part of the negotiations for the Certified Agreement.
Thus, when employees voted to approve the Certified Agreement, they voted for a particular roster under which they would work, and which would be
used to calculate their annualised salary under the Certified Agreement. The rosters had been developed by the Unions party to the Certified Agreement,
MIM and employees, as part of an extensive process, facilitated by an external consultant with expertise in rostering and roster development.
The AWU had “ticked off” on every roster as part of the negotiations for the Certified Agreement. Rosters that were not agreed as part of the
negotiations for the Certified Agreement, or subsequently implemented pursuant to clause 5.6 of the Certified Agreement, were new rosters for the
purposes of that clause. Further, a roster that might have been agreed to be worked in a particular area, related only to that area, and became a new roster
when MIM sought to extend it to another area. This was the case notwithstanding the fact that the same employees might continue to work the roster
either in the area where it had not been previously worked, or by transferring periodically from one area to another while continuing to work the same
roster.
In order to implement new rosters, MIM was required to seek the agreement of the AWU and to undertake the same process as it had gone through with
respect to rosters implemented under the auspices of the Certified Agreement. In this regard, MIM must demonstrate to the AWU and to its members
that the three requirements set out in clause 5.6 – viz. Health and Safety, employee needs and business needs – are satisfied. It was also contended that
if employees did not agree to work proposed new rosters, then those rosters, by definition, did not meet employee needs. As a result, the issue of the
reasonableness of any refusal to implement the rosters on the part of the AWU could not arise because the roster was unable to be implemented unless it
met employee needs. Conversely, if employees agreed to a new roster, the AWU may still withhold its agreement, and thereby veto the implementation
of the new roster.
This was said to be a legitimate role for the AWU as a party principal, in its overall representative role. In withholding agreement to a new roster in the
face of agreement by employees who it is proposed will work the roster, the AWU might have legitimate concerns about issues which will impact on
employees other than those who are to work the roster, such as potential erosion of pay and conditions or occupational health and safety issues.
The AWU submitted that the Commission should uphold its interpretation of clause 5.6 of the Certified Agreement, and find that there was no ambiguity.
In the event that the Commission was against the AWU on the point of ambiguity, then the Commission ought to add or take away words to put the
clause as close to the form as the Commission believed was the true intent of the parties at the time, having regard to the principles of interpretation of
true intent which are set out in the various decisions on the subject.
Evidence for the AWU was given by Benjamin Charles Swan, Industrial Advocate and Roy Francis Harris, Organiser. Mr Swan is the AWU advocate
responsible for metalliferous mining, including the activities undertaken by MIM. Mr Harris was one of the AWU representatives on the Joint Steering
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Committee (JSC), set up to negotiate and make certified agreements for the underground mining area, the metallurgical plants area and the services area
of MIM’s operation in Mount Isa, and was closely involved in that process.
Mr Swan initially said under cross-examination that the AWU was seeking through this case, to put a stop to all rosters being worked at MIM’s
operations, where they did not meet the description of a roster agreed by the AWU in the Certified Agreement. This included rosters which had been in
place for lengthy periods of time, such as that being worked at MIM’s George Fisher Mine. In light of this evidence, the AWU was requested by the
Commission to advise its position with respect to whether, if its interpretation of the Certified Agreement was determined by the Commission to be
correct, it would seek to take action against MIM for rosters implemented prior to the Commission’s decision. On 13 December 2002, the AWU
forwarded a letter to the Commission under the signature of Mr W.P. Ludwig containing an undertaking not to pursue any legal action against MIM with
respect to the past introduction of rosters that may be found to have been implemented in contravention of the certified agreement, and stating that the
AWU was only seeking to restrain such conduct on the part of MIM in the future.
The Case for MIM
The case for MIM is that the matter before the Commission in B1567 of 2002 involves a narrow issue and a broader issue. The narrow issue was the
particular arrangement applicable to nine employees who had been working a roster consistent with the decision of Bechly C in D256 of 2001: 168 QGIG
325. In the view of MIM, clause 5.6 of the Certified Agreement represented no impediment to the arrangements currently in place with respect to those
nine employees. The broad issue was the contention of the AWU that it had an over-riding veto with respect to roster changes.
If the AWU’s interpretation of clause 5.6 of the Certified Agreement was accepted, then the operation of that clause was exactly the same as the Award
provision dealing with hours of work at the point the Certified Agreement had been negotiated. If that was the case, the question arose of why had the
parties bothered to rework the Award clause and include it in the Certified Agreement? The obvious answer was that they had done so in order to bring
about a change. The change that had been brought about was the removal of the Award requirement for the AWU to agree to new rosters, and the
implementation of an arrangement where the employer and the employees could agree to “do their own thing” with respect to rosters.
The manifest intention of the Certified Agreement was to provide for flexibility and ongoing change adjusted to business needs. It would be inconsistent
with that intent to construe the Certified Agreement as locking rosters in stone and providing the AWU with an absolute veto right in relation to rosters
which were not agreed at the time the Certified Agreement was approved.
In this regard, reference was made to provisions of the Certified Agreement which state that annual salaries were indicative. Further, it is clear from
material distributed to employees as part of the process of explaining the terms of the Certified Agreement to them, that there was an agreed formula to
calculate salaries, which would be used for other permutations and combinations of hours and rosters. The Certified Agreement also made provision for
salary preservation in the event that an employee changed position or roster.
Clause 5.1 of the Certified Agreement which provided that various work arrangements were agreed and would be utilised as necessary, suggested
strongly that it was erroneous to regard the hours that employees were working back in 1996 when they voted to approve the Certified Agreement, as
being sacrosanct. The parties had clearly intended that hours and arrangements would change as dictated by business needs.
MIM contended that a new roster arises when a roster is introduced for the first time in a particular area or for a particular employee or group of
employees. MIM contended that a new roster also arises when a roster that has been worked by an employee or group is changed or when changes such
as starting times of shifts were implemented. The agreement referred to in clause 5.6 of the Certified Agreement, was agreement on the part of
employees.
Evidence for MIM was given by Mr Robin Gordon Franklin, Corporate Industrial Relations and Group Employee Relations Manager from 8 February
1993 to 18 July 1997; Mr James Anthony Simpson, General Manager – Lead Zinc Mining; Mr Simon David Beach, formerly employed by MIM as
Manager – Employee Services and Community Relations in Mount Isa from August 1998 to August 2002 and Employee Relations Manager from
February 1995 to June 1997 and Mr Anthony Raymond McPaul, Operations General Manager.
The Issues for Determination
The issues for determination in this case are as follows:
1.
What is the proper construction of clause 5.6 of the Certified Agreement.
2.
In the event that the construction of clause 5.6 of the Certified Agreement contended for by the AWU is accepted, should Orders be issued to compel
compliance by MIM with the terms of the Certified Agreement.
3.
Should the Certified Agreement be amended as provided in s. 169(6)(a) to remove an ambiguity.
Principles Applicable to the Construction of Certified Agreements
The principles applicable to the construction of industrial instruments including certified agreements are well established. One of the clearer and more
straightforward statements of those principles is found in the decision of the Full Industrial Court of South Australia in AITCO Pty Ltd v FLAIEU (SA
Branch) (1988) AILR ¶382 at 336 where it was held that:
“It should be remembered that we are here construing not an award of the Commission but an industrial agreement which results from consensus
between the parties. In construing such a document, we must, by viewing the matter broadly and giving heed to every part of the agreement,
endeavour to give it a meaning which is consistent with the general intention of the parties to be gleaned from the document as a whole …”.
and at 387:
“We emphasise that we are not here concerned with the merits of whether a provision of the nature set forth in the agreement is industrially desirable
or whether it is within the Commission’s wage fixing principles, but simply the correct interpretation of the particular clause.”.
With respect to the interpretation of Awards, Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184 said that it was trite that narrow or pedantic
approaches were misplaced, and that the search for meaning intended by the framers must be undertaken bearing in mind that they were likely of a
practical bent of mind, more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and the
industrial relations environment, than with legal niceties or jargon. Madgwick J also stated in that case that a court was not free to give effect to some
anteriorly derived notion of what would be fair or just, regardless of what has been written in an award.
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A more flexible approach to the interpretation of industrial instruments in comparison with commercial contracts, was also apparent from the decisions of
the Federal Court in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 and PKIU v Davies Bros Ltd (1986) 18 IR 444. In Queensland Police Union of
Employees v Commissioner of Police (2000) 164 QGIG 16, Hall P held that to apply the principles of construction of awards to certified agreements,
rather than those applicable to commercial contracts, seemed to be entirely appropriate.
Use of Extrinsic Materials as an Aid to Construction
In this case both parties have put extrinsic material into evidence, and sought to rely on that material in support of the contending constructions of the
Certified Agreement. This material included:
•
•
•
•
•
The Mount Isa Mines Limited Award;
Explanatory material provided to employees in relation to the approval of the Certified Agreement;
Presentations to committees involved in the negotiation of the Certified Agreement;
Minutes of meetings conducted by consultative committees as part of the negotiation of the Certified Agreement; and
The statutory declarations executed on behalf of parties to the Certified Agreement, and relied upon to achieve certification.
Hall P in Queensland Police Union of Employees v Commissioner of Police (2000) 164 QGIG 16 and AWU v James Hardie Australia Pty Ltd (2001) 167
QGIG 280 approved a generous approach to the question of whether extrinsic material may be considered, to the effect that extrinsic material may be
allowed in to expose an ambiguity as well as to resolve it. This was in line with the decision of Burchett J in Short v F W Hercus Pty Ltd (1993) 40 FCR
411 at 518-520 who held that the context and history of an expression may be an important guide to its meaning.
It has also been held that in construing an industrial instrument, the Commission should generally err on the side of finding an ambiguity in
circumstances where there are rival contentions advanced, and arguable cases can be made out for more than one contention. This approach was adopted
by Fisher C in The Bacon Factory’s Union of Employees, Qld v Hans Continental Smallgoods Pty Ltd (2002) 169 QGIG 199, citing the decision of a Full
Bench of the Australian Industrial Relations Commission in Public Transport Corporation of Victoria v Australian Rail, Tram and Bus Industry Union
and Others (Print M2454), where the decision of Grey J in PKIU v Davies Bros Limited (1986) 18 IR 444 dealing with applications to vary agreements
for the purpose of removing ambiguity, was applied.
In my view, this is a case where both the contentions of the AWU and MIM with respect to the construction of clause 5.6 of the Certified Agreement are
arguable. Accordingly, on the test established in PKIU v Davies Bros Limited the clause is prima facie ambiguous, and extrinsic material is receivable
for the purpose of its construction.
Further, the application by the AWU in B1567 of 2002 has been met with an application by MIM for an amendment to the Certified Agreement pursuant
to s. 169(6)(a) of the Act. That section provides that the Commission may amend a certified agreement upon application by a person bound by the
certified agreement, for the purpose of removing ambiguity. In MIM’s contention, there is an ambiguity with respect to clause 5.6 of the Certified
Agreement. It is contended for the AWU on the other hand, that there is no ambiguity, but that resort should be had to extrinsic material in any event to
determine this point.
It is also the case that the AWU application in B1567 of 2002 arose out of an earlier dispute notification in D399 of 2002, and that dispute remains, at
least in the view of the AWU, unresolved. In order to resolve that dispute and to determine B1567 of 2002, the Commission is required to interpret the
Certified Agreement. In my view, it would be inconsistent with the wide powers that the Commission has to deal with industrial disputes, to take a
narrow approach to the question of whether extrinsic material can be considered by the Commission in interpreting a certified agreement. This is
particularly so when the interpretation of the agreement is part of the resolution of a dispute, and does not arise from an application for interpretation per
se.
Further, much of the extrinsic material to which the parties seek to make reference, relates to matters which the Commission was required by the Act to
consider, in deciding whether to certify the Agreement. As such, this extrinsic material in the context of interpreting the Certified Agreement stands in a
different light to extrinsic material which may relate to a commercial contract.
For all of these reasons, the extrinsic material put before the Commission by the parties in this case as an aid to the construction of the Certified
Agreement is receivable, and in reaching a decision in this case I have given consideration to that material.
The manner in which such extrinsic material may be used is well established. In AWU v James Hardie Australia Pty Ltd, Hall P cited the following
passage from the decision of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352:
“It is here that the difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective
background facts which were known to both parties and the subject matter of the contract. To the extent which they have this tendency they are
admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they
are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They
are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties
being inadmissible in aid of construction though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual
intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to
the objective framework of facts within which the contract came into existence, and to the parties’ presumed intentions in this setting. We do not
take into account the actual intention of the parties and for the very good reason that investigation of those matters would not only be time
consuming but would be unrewarding as it would tend to give too much weight to those factors at the expense of the actual language of the written
contract.”.
Thus in AWU v James Hardie Australia Pty Ltd material that went to the actual intentions, aspirations and expectations of the parties was held by Hall P
to be receivable for the purpose of showing what the parties were negotiating about, i.e. the objective framework of facts in which the agreement came
into existence, rather than for the purpose of showing those actual intentions, aspirations and expectations.
The Construction of the Certified Agreement
I have considered all of the evidence and material put before me by the parties and in my view, the following matters are relevant to the determination of
this matter.
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The Award
Prior to the approval of the Certified Agreement, the Mount Isa Mines Limited Award (the Award) applied exclusively to all persons for whom rates of
wages were prescribed therein, employed by MIM. With respect to hours of work for shift workers, the Award provided inter alia as follows at clause
11:
“ … (3) Ordinary Hours Per Day or Shift – (a) All Employees – Where the ordinary working hours are to exceed eight (8) on any day, the ordinary
working hours prescribed herein shall not exceed ten (10) hours for day workers or twelve (12) hours for shift workers on any day, provided that in
any arrangement of working hours exceeding eight (8) on any day, the arrangement shall be subject to the mutual agreement of the Employer, Local
Industrial Organization (sic) Representative(s) and the majority of employees in the Section(s) so affected.
Furthermore, where the arrangement of ordinary working hours exceeds ten (10) on any day the relevant Industrial Organization(s) shall be notified
in writing within fourteen days of commencement of work under such arrangement.
…
(4) Shift Work – General – (a) Where required, shiftwork shall be performed in two shifts or three shifts within a period of twenty-four hours as
mutually agreed between the Employer, Local Industrial Organization (sic) Representative(s) and the employee(s) concerned.
(b) Non-Rotating Shift Work – Notwithstanding subclause 4(a) herein, non-rotating afternoon or night shifts can be worked provided that such nonrotating shifts shall be worked for five successive working afternoons or nights. In addition to normal shift allowances prescribed for afternoon and
night shifts, an additional amount of 22.5 cents per hours shall be paid for each such afternoon or night shift worked.
(c) Change Over – “Change Over” shall mean a periodical alteration or rotation of shifts by which the employees engaged on shift work shall, by
mutual arrangement with their Employer, change from day shift to afternoon, or night shift, and the shift work employees engaged on night shift
change to day or afternoon shift.
…
(5) Continuous Shift Workers – (a) Persons employed on work where operations are continuous may be required to work on a roster system covering
the seven days of the week.
The ordinary working hours shall not exceed eight (8) hours on any one day or more than six (6) days in any seven (7) day period except as mutually
agreed between the Employer, Local Industrial Organization (sic) Representatives and the employees in the section(s) so affected.
…
(6) Transfer Between Day Work and Shift Work – (a) Any day worker may be called upon to do shift work and work thereafter the usual hours for
shift workers in the area concerned, and any shift worker may be transferred to day work and work thereafter the usual hours for day workers in the
area concerned.
…
(8) Hours of Shift Work Underground Mines – Where it is mutually agreed that a night shift commences earlier than midnight on Sunday the work
between the time of starting the ordinary night shift and midnight shall not be deemed to be work on Sunday. Payment for the whole shift shall be at
ordinary time plus the appropriate shift penalty, i.e., as if the whole shift was worked on Monday.
Save and except those employees currently being paid a Sunday penalty who desire to continue to work their current shift work hours.
…
(11) Crib Time, Meal Time and Rest Pauses – Extended Work Periods – In any arrangement where the ordinary hours of work exceed eight (8) per
day or shift, the timing of the taking of crib times, meal times and rest pauses may be rearranged by mutual agreement between the Employer and the
employee(s) concerned.”.
The Award provisions dealing with hours of work were inserted into the Award as a result of the decision of Bougoure C in R173-2A, R183-2 and R1832A (1991) 137 QGIG 10. It is clear from that decision that the AWU opposed the insertion into the Award of the hours of work provisions set out above.
Bougoure C detailed the opposition of the AWU to the working of twelve hour shifts, the working of any five out of seven days and the working of more
than ten hours per day, and went on to insert the provision into the Award notwithstanding the opposition of the AWU and its members, stating that:
“In each case the proposed provision only becomes operative with the consent of the employees. It is clearly a facilitative provision which cannot be
imposed by the employer. ((1991) 137 QGIG 10 at 11).”.
Bougoure C also noted that MIM had strongly opposed the AWU submission that the application for Award Restructuring increases could succeed
without the inclusion of the hours of work clause, noting that the “flexible hours” clause was a substantial and significant part of the restructuring
proposals, and without the clause there was little if anything of substance in those proposals. That decision was Appendix BCS 1 to the affidavit of Mr
Swan dated 25 November 2002 – Exhibit A2.
The provisions of the Award indicate that some matters must be the subject of agreement between MIM, the AWU and employees, while other matters
may be agreed directly between MIM and the relevant employees. It is clear from the terms of the Award that at least prior to the certification of the
Agreement in 1996, rosters were required to be agreed by the relevant “Local Industrial Organization (sic) Representative”, either the AWU or the
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, in accordance with clause 14(11) –
Preference, and the employees affected. In cross-examining MIM’s witnesses, Mr Herbert squarely put the proposition that it was unlikely that the AWU
abrogated its right to veto rosters as an outcome of enterprise bargaining negotiations. None of the witnesses challenged the proposition that at least
under the Award provisions, the AWU did have a right to veto rosters. MIM’s contention was that the veto right was bargained away as part of the
negotiation of the Certified Agreement.
It is also clear from the terms of the Award that the AWU was not required to exercise its veto right in a reasonable manner or to consider the business
needs of MIM in deciding to agree or not to agree with proposed rosters. The evidence of Mr Franklin and Mr Beach clearly establishes that by at least
1996, in the view of MIM’s management the Award was prescriptive and unsuitable as a framework within which to establish flexible work
arrangements. Accordingly, MIM set about a major change process of which the Certified Agreement was a significant element.
Certified Agreement Negotiations Relating to Rosters and Hours of Work
Rosters and working hours were clearly an important part of the negotiations for the Certified Agreement as evidenced by the amount of material dealing
with these matters. The evidence discloses the following in relation to rosters and hours of work in the context of the negotiations for the Certified
Agreement:
•
•
New rosters were developed by representatives of MIM, the employees and the Unions, with the assistance of a consulting firm – Coleman
Consulting.
Underpinning the development of new rosters were the “Coleman Principles” involving three overlapping and equally important factors – employee
needs, business needs and occupational health and safety, represented by a diagram showing three concentric circles.
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•
•
•
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There were a finite number of rosters, 100 in total, agreed as part of the negotiations for the Certified Agreement.
Those rosters were retained by the AWU in its Mount Isa Office and constituted Appendix BSC 7 to the Affidavit of Mr Swan dated 25 November
2002 – Exhibit A2.
Out of 100 rosters kept on the AWU’s files, 48 are 40 hour per week rosters; 39 are 42 hour per week rosters and 13 provide for hours in excess of 42
hours per week. Of the rosters providing hours in excess of 42 per week, Mr Swan’s evidence was that:
- One was a 44.5 hour per week roster including day and night shifts;
- Three were between 43 and 44 hour per week rosters which are notionally called shift work, but which involve day and afternoon shifts but no
night shifts;
- Six were between 43 and 44 hour per week rosters that are day work only; and
- Three were 48 hour per week rosters providing for day work only.
There was no evidence of any rosters being worked at MIM’s operations during the period immediately before or after the commencement of the
Certified Agreement other than those tendered by Mr Swan.
A formula to establish annualised salaries which would be payable for working various rosters was developed by another consultant, Mr John
Scoble.
It was agreed that the “Scoble Formula” would form the basis for setting salaries payable for work under rosters agreed to during the negotiations for
the Certified Agreement.
Before voting to approve the Certified Agreement, each employee was provided with an information kit containing: the roster that he or she would be
working under the new agreed arrangements; details of the annualised salary which would be paid for working that particular roster; a copy of the
then proposed Certified Agreement and other material explaining and supporting that Agreement.
A sample of the employee information kit provided to each employee was tendered from the bar table by Mr Murdoch, and was admitted and marked as
Exhibit R4. No objection was taken to the information kit being tendered in this manner. The employee information contains the following statement
with respect to rosters:
“How Did We Go About It?
The JSC with the agreement of your Area Committee appointed well known international consultants, Coleman Consulting Group, to advise it on the
appropriate roster options for each Mining Area Operation. A very thorough process has been followed including:
• Coleman conducted a detailed survey across the Mount Isa Lease to get as much employee input as possible;
• Coleman then assisted individual departments to develop roster options that met:
o business needs
o employee preferences, and
o health and safety requirements.
Coleman’s suggestions have been discussed widely in each department and refined; and
All roster options have been costed by pay benchmarking consultant, John Scoble, for each job grade.
What’s The Result?
Each Department now has produced the proposed roster options. Over the next week or so final decisions will be made and new rosters and new
salaries implemented immediately the new Area Agreement is ratified. A review of new rosters will be made after six months with a view to
improving them if required.”.
Mr Beach in his evidence outlined the various consultative committees which were established to implement changes in MIM’s operations. Those
operations had been divided into three work areas: metallurgical plants area; mining area and services area. Agreements were to be established for each
area. The Certified Agreement subject of these proceedings was the agreement established for the mining area. At the top of the committee structure, a
Joint Steering Committee (JSC) was established comprising members from MIM’s management, its workforce and Union representatives. Mr Beach had
been a member of the JSC. Mr Bob Boscacci and Mr Roy Harris were the AWU State Officials who sat on that Committee.
On 11 and 12 April Mr Beach delivered a report to the JSC on the drafting of the Area Agreements. Mr Beach’s report was delivered by way of a
“powerpoint” presentation. That presentation was appended to Mr Beach’s witness statement (Exhibit R6) as Attachment 2 to SBD2, and included the
following item:
“
•
•
Agreement on new roster
Role of the AMEPKU and AWU.”.
The minutes of the JSC meeting of 11 and 12 April prepared by Mr Beach (Attachment SDB1 to Exhibit R6) contain the following item:
“There was agreement that in regard to any future modification of rosters, union preconsent would not be required, it being sufficient to supply to
unions a copy of the notice of change.”.
Mr Beach was adamant in his evidence that this item in the minutes reflected the agreed position of the parties with respect to the operation and effect of
clause 5.6 of the Certified Agreement. That position was that MIM could introduce new rosters, provided that MIM reasonably satisfied employees’
needs, health and safety and business needs. The “agreement” which cannot be unreasonably withheld is that of the employees affected by the new roster
and not the AWU. Mr Beach’s evidence was supported by Mr Franklin who said that it was seen as axiomatic at the time that if the needs of employees
to be affected by any proposed roster change were reasonably satisfied, and this could be done by procuring their reasonable agreement, then the AWU’s
preconsent to rosters would not be required.
This approach, according to Mr Franklin, conformed with the move away from prescriptive work arrangements with Unions having a right of veto, to
arrangements which permitted the exercise of management prerogative with appropriate checks and balances. This had stopped short of granting Unions
a right of veto. Notwithstanding this, the role of Unions in rostering was not abrogated. That role was the representation of employees who considered
they had been unfairly dealt with by any rostering arrangements/changes through the dispute resolution procedure, known as the Fair Treatment System.
To the best of Mr Franklin’s recollection, the Unions at the time of the negotiation of the Certified Agreement had not disputed the fact that management
should be able to implement and change rosters to meet business needs, employee needs and health and safety, without the Unions’ consent. Mr Franklin
also said that the statement of Mr Beach, which he had read, and the minutes of the JSC meeting of 11 and 12 April 1996 attached to that statement,
recorded the agreed position of MIM and the Unions with respect to rostering and future changes to rostering.
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Under cross-examination Mr Franklin said that a range of rosters had been developed at the time the Certified Agreement was negotiated, and that there
had been discussion between employees and their direct managers and superintendents about the most appropriate roster for each work area. While the
details of rosters and the salaries that employees would be paid for working them were put to employees, these had not been cast in stone.
Mr Franklin said that the AWU had never ever said at any point in time, that they wanted to have a veto over rosters being changed. Mr Franklin also
said that he had never discussed with AWU officials the prospect that after the Agreement had been certified that it would be used by MIM to unilaterally
introduce new rosters of 48 or 52 hours per week, cancelling the 42 hours per week roster that had been agreed to by the AWU. Mr Franklin said at page
126 of the transcript that:
“The understanding was that there wouldn’t be any unreasonable or any veto because there wouldn’t have been any need to because we’d been
through the whole process, we’d set up all that committee structure … and the issue of flexibility was always paramount and the issue of being able
to do things without going through all the hoops that used to go on up at Isa were always paramount in people’s minds given the backdrop of 94/95.”.
In response to a question from Mr Herbert as to whether the AWU handed over to the company the right to implement a brand new roster without the
AWU’s agreement, Mr Franklin said (also at page 126 of the transcript) that:
“I assumed anyway, rightly or wrongly, there was an understanding between particularly the AWU and ourselves that we would need to be flexible
and we would introduce rosters that met the criteria set down by Coleman and never ever can I recall that that AWU objected to that.”.
Mr Franklin said that the idea was that if the rosters fitted the Coleman criteria and the employees themselves were prepared to work them, then the
AWU would not object. At page 129 of the transcript Mr Franklin said that: “there was a general perception that MIM would start off with a certain set
of rosters and generally the AWU accepted that things would change, and they just wouldn't unnecessarily withhold agreement.”. Mr Franklin
maintained that it had been his understanding that every time MIM wanted to develop a new area or set up a new roster, there was no requirement for
negotiations with or agreement of the AWU as the roster would have been developed consistent with the agreed Coleman principles. If employees
objected to any proposed new roster, they could take their objection up with their Union and have it dealt with under the Fair Treatment System. Mr
Franklin also said that he could not recall volunteers being called for a roster.
Mr Harris, giving evidence on behalf of the AWU was equally adamant that his understanding of the negotiated position with respect to rosters was that
MIM would be able to modify existing rosters that were agreed to within the Certified Agreement, without first having to obtain the consent of the AWU.
Mr Harris said that he took this to mean that within the boundaries of the overall hours of work for an existing roster, and with the agreement of the
majority of MIM employees to be affected by the modifications, MIM could modify matters such as the starting and finishing times of shifts; the times to
be taken for crib breaks or the flow of night and day shifts in a cycle.
Mr Harris said that the AWU never agreed to give MIM the unilateral right to introduce completely new rosters of indeterminate hours and conditions
which may well be substantially in excess of those agreed between the AWU and MIM during the Certified Agreement negotiations. Mr Harris said that
there was no discussion to his knowledge, which suggested that the AWU was to be completely removed from any role, other than as a spectator, if MIM
decided to introduce an entirely new kind of roster, which had never been the subject of previous agreement or any discussion or balloting under the
Certified Agreement. Mr Harris went on to say that such a step would have left AWU members open to potential exploitation and the possibility of
unfair pressure from the employer, without proper union protection.
Material Filed in the Commission in Support of the Certified Agreement
When the Certified Agreement was filed in the Commission, it was accompanied by an affidavit sworn by Mr Stephen Bywater, General Manager –
Mining of MIM. The affidavit went to the various requirements of the then Industrial Relations Act 1990, with respect to certification of agreements. A
section of the affidavit set out the main changes affected by the Agreement and included the following statement:
“Part 5: Hours of Work
New rosters have been agreed, some of which have incorporated an additional 26 hours per quarter which may be required to be worked.
This part also addresses the matters of breaks between shifts, meal breaks and notice to change shifts.”.
While the affidavit makes some general statements about the Certified Agreement being a means to implement best practice and related outcomes, there
are no other specific statements about hours of work or rostering. Mr Bywater’s affidavit was Attachment BSC 3 to the witness statement of Mr Swan,
dated 25 November 2003 – Exhibit A2.
Submissions in Support of Certification
On 17 September 1996, a hearing into the certification of the Agreement was held before Bloomfield C. In submissions the advocate for MIM, at page 3
of the transcript referred to the affidavit of Mr Bywater and stated that it addressed all the statutory requirements for certification of the Agreement and
identified some of the important areas for change. At page 6 of the transcript the following submission was made with respect to hours of work
provisions in the Certified Agreement:
“The new rosters which have been implemented will address the issues in terms of hours of work and what was traditionally overtime.”.
The transcript of the hearing on 17 September 1996 was Attachment BSC 4 to the witness statement of Mr Swan, dated 25 November 2003 – Exhibit A2.
The Certified Agreement
The Agreement was certified by Bloomfield C on 17 September 1996. Part 5 of the Certified Agreement dealing with “Hours of Work”, in which the
clause subject of these proceedings appears, contains the following provisions:
“PART 5 – HOURS OF WORK
5.1 Objective
An extensive review of rosters and hours or work has been carried out with the following objectives:
-
To have work planned and carried out in accordance with the business needs;
To minimise, and where possible, eliminate unrostered hours by best practice management; and
To encourage job and maintenance planning to minimise or eliminate unscheduled stoppages and avoid the need for call-ins.
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5.2 Hours of Work
(a) General
In recognition of the need to arrange and schedule work to achieve maximum efficiency of operations, various work arrangements are
agreed to be utilised as necessary.
Based on business needs, certain positions have had a specified number of unrostered hours added to their hours. These are referred to as
“Additional Hours.”. Where an employee has had Additional Hours build in to their annualised salary, the hours of work has been dealt
with separately below.
(b) Rostered Hours Only
Rosters have been designed with the intention of removing the necessity for individuals to work unrostered hours. It should be noted that
Managers are personally accountable for ensuring that employees do not work excessive unrostered hours.
It is possible however, that owing to unforseen circumstances or emergencies, it may be necessary for individuals to occasionally work
some unrostered hours and arrangements have been made to recognise this:
(i) Where an individual is normally required to work rostered hours only and they are subsequently requested to work outside their normal
hours then time off in lieu will be approved by the Departmental Manager on the recommendation of the Superintendent on an
equivalent time basis. Hours accumulated in this way should be used in the next quarter or taken in conjunction with the next annual
leave as mutually agreed.
(ii) Where an employee is called-in owing to an emergency or operational requirements, then a minimum of two hours will be recognised.
Any time worked beyond two hours on a call-in will be recognised on an equivalent time basis. All such hours accumulated shall be
taken off on a equivalent time off in lieu basis as outlined in (i) above.
(iii) The General Manager shall be provided with a report each pay identifying the occasions where employees, who do not have Additional
Hours built into their salary, are directed to work unrostered hours to determine if there is an ongoing regular requirement necessitating
a change of roster or some other change. This report shall be available to the Mining Area Committee.
(c) Rostered Hours with Additional Hours
Where an employee’s salary includes a specified number of unrostered hours in addition to their rostered hours:
(i) Employees are expected to work such reasonable time as is necessary to perform their role to relevant satisfactory standards.
Each employee’s salary takes into account all of the requirements of the employee’s role, including the requirement to work Additional
Hours from time to time.
(ii) The hours to be worked by each employee are dependent on operational requirements. Employees are expected to be available to work
a reasonable number of unrostered hours if called on to do so. This may be necessary to replace absent team members, complete jobs,
attend call-ins, meet production and/or process requirements. Managers are personally accountable for ensuring that employees do not
work excessive unrostered hours.
(iii) Where an individual’s hours of work include provision for Additional Hours, if that individual is directed to work more than the
predetermined number of unrostered hours in any consecutive 13 week period owing to emergency of operational requirements, time in
lieu will be approved by the Departmental Manager on the recommendation of the Superintendent on an equivalent time basis. Hours
accumulated in this way must be used in the next quarter or taken in conjunction with the next annual leave as mutually agreed.
(iv) Where an employee is called-in owing to an emergency or operational requirements, a minimum of two hours will be recognised and
offset against any additional hours in that 13 week period. Any time worked beyond two hours on a call-in will be recognised on an
equivalent basis.
5.3 Reasonable Rest Breaks Between Shifts
(a) It is the intention of the parties that employees have a minimum of 10 hours break between shifts to enable an appropriate rest period prior
to the start of the next shift.
(b) While there may be occasions where it is not possible to provide a 10 hour break, every effort will be made to minimise such occurrences.
(c) Where a 10 hour break is not provided no additional payments shall be made however the unrostered hours worked will be counted on an
equivalent time basis if it results in the employee working longer hours than normally required on that shift.
(d) To ensure that the reasonable rest breaks between shifts are being provided the General Manager will, each pay, receive a report of
employees who have worked without a 10 hour break.
5.4 Timing for Meal Breaks
Meal breaks shall be taken at a mutually agreed time. As a guide, it is expected that meal breaks will be taken around the middle of the shift.
5.5 Notice to Change Shifts
While as much notice as possible will be provided to employees where a shift change is required, the practice shall be to provide a minimum of
12 hours’ notice. Where, due to an emergency or operational requirements, it is not possible to give the minimum of 12 hours’ notice such lesser
notice period, as mutually agreed with the employee(s), shall be provided.
5.6 Introduction of New Rosters
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New rosters must satisfy Health and Safety, employee needs and business needs. Agreement to introduce new rosters shall not be unreasonably
withheld.
5.7 Payout of Flexible Credits
Employees who have any flexible credits due will be paid out their entitlement at the rate applicable immediately prior to this Agreement.”.
Some of the provisions clearly provide that matters may be implemented by agreement between MIM and the employees concerned and provide no role
at all in such agreement for the AWU. These matters are set out in clauses 5.2(b), 5.2(c), 5.3, 5.4 and 5.5. Clause 5.6 on the other hand, makes no
specific reference to the parties who are required to agree to the introduction of new rosters.
Clause 3.4 of the Certified Agreement which deals with annualised salaries for various categories of employees working various rosters, including seven
day continuous shift workers in mining operations; underground maintenance day workers; seven day continuous shift workers in underground
maintenance; surface day workers and maintenance day workers in ore handling is also relevant. Each of the tables in clause 3.4 setting out salaries for
various categories of employees states that the “following are indicative … salaries” and the paid hours encompassed within the salaries are also specified
on a weekly basis. Variously those paid hours are either 40 or 42 per week. It is clear from clause 3.2 that the new provisions for annualised salaries
provide for the implementation of two remuneration systems in the mining area: an all inclusive annualised salary approach and an annualised base salary
plus a production component. There is no reference to an agreed formula by which salaries have been calculated, or will be calculated in the future.
MIM’s witnesses were cross-examined with respect to whether the “Scoble Formula” for setting salaries also adjusted leave entitlements, and said that
they were not aware that the formula did this. However, it is reasonably clear from the provisions of Part 6 of the Certified Agreement, that leave
entitlements post certification of the Agreement, were automatically adjusted by being expressed in weeks and that employees on leave were entitled to
be absent for shifts they would otherwise be rostered on during the period of leave, without loss of salary. I do not determine this point, but simply note
that prima facie the Certified Agreement does provide for adjustment of leave entitlements when employees are working extended rosters.
Clause 1.3 of the Certified Agreement provides that its coverage is in respect of employees at MIM covered by the Award who are employed in the
mining area. The parties to the Certified Agreement are said in clause 1.4 to be MIM, the AWU and the Automotive, Metals, Engineering, Printing and
Kindred Industries Industrial Union of Employees, Queensland (AMEPKU). Clause 1.4 also notes the respective representational rights of the AWU and
the AMEPKU under an Order of the Commission.
Conclusions
The Agreement between MIM and the AWU on Rosters and Hours of Work
The evidence clearly discloses that the most significant feature of the hours of work arrangements under the Certified Agreement was that new rosters
were agreed. The AWU agreed to those rosters as a party principal to the Certified Agreement after an extensive process of consultation with members.
There is uncontested evidence from AWU witnesses that there were a finite number of rosters agreed, and that each employee was informed of the roster
that he or she would be working upon implementation of the Certified Agreement.
The Certified Agreement clearly indicates that rosters were agreed as does the explanatory material provided to employees in connection with their
approval of the Certified Agreement and the statutory declaration for the purposes of achieving certification of the Agreement. During certification
proceedings, the AWU acted in its capacity as party principal to the Certified Agreement to indicate to the Commission that the requirements of the Act,
including approval by the necessary majority of employees had been met.
The agreement to work new rosters was a significant change from the hours of work provisions in the Award. While the Award provided for extended
working days of up to twelve hours, it limited ordinary working hours to an average of 40 per week and required the payment of overtime rates and the
application of overtime provisions for hours in excess of an average of 40 per week. The Certified Agreement provided an annualised salary for rostered
hours in excess of 40, and also for a remuneration component for hours in addition to those for which an employee was rostered, to be incorporated into
that annualised salary.
The explanatory material distributed to employees indicated that the rosters agreed to as part of the negotiations for the Certified Agreement would be
reviewed in six months. While I accept that there is nothing in the Certified Agreement or explanatory material to indicate that the rosters were set in
stone for the life of the Agreement, equally there is nothing to suggest that they would be altered other than in the manner in which they had originally
been agreed – that is, with the agreement of MIM, the AWU (and/or the AMEPKU where that Union had coverage of relevant employees) and relevant
employees.
When clause 3.4 of the Certified Agreement is considered, it is clear that the term “indicative” refers to salaries and not to rosters. Given that there were
a range of rosters agreed at the time the Agreement was negotiated, and that the most common variation was a roster providing for an average of 42 hours
per week, it is not surprising that indicative salaries for such a roster were included in clause 3.4. It should also be remembered that all employees had
been provided with individualised details of the salary which would be paid for the particular roster they would be working. Clause 3.4 of the Certified
Agreement deals only with salaries, and cannot provide any basis for derogating from the provisions of Part 5 of the Agreement which deals with hours
of work including rosters.
The use of the term “indicative” in that clause, when read in the overall context of the Certified Agreement, does not in my view establish a process for
implementing new rosters by agreement directly between MIM and employees. That rosters providing for an average of 42 hours per week were the
most common permutation is also apparent from the Report prepared for MIM by the Coleman Group addressing shift work and fatigue management.
All of the rosters set out in that Report provide for an average of 42 hours per week. The Report was Appendix JS3 to the Affidavit of Mr Simpson,
Exhibit R2.
It is axiomatic that in the negotiations for the Certified Agreement, new rosters were agreed by employees. It would be highly improbable for a situation
to arise whereby MIM and the AWU agreed to a new roster in the face of opposition by employees and then sought to impose that roster on employees.
This is particularly the case given that the rosters were agreed as part of the process of negotiating the Certified Agreement, which required the agreement
of a majority of employees and the AWU to achieve certification. What the evidence shows is that the AWU as a party principal to the Certified
Agreement agreed to the implementation of new rosters and other matters contained in the Certified Agreement, and in that capacity balloted its members
and then informed the Commission that a valid majority of them had approved the terms of that Agreement.
What is a new Roster for the Purposes of Clause 5.6 of the Certified Agreement
In relation to the question of what constitutes a new roster for the purposes of clause 5.6, my view is as follows. Any of the changes dealt with in
5.2(b)(i); 5(b)(ii); 5.2(c); 5.3; 5.4 and 5.5 will not result in a new roster. Such changes are simply modifications to existing rosters. A roster which an
employee is already working is not a new roster. I do not accept that rosters are geographically confined to particular areas. Rosters relate to employees
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working them. If MIM proposes that an employee or group of employees work a roster, which that employee or group of employees is not working at
that time, the result is that a new roster has been proposed and the provisions of clause 5.6 are enlivened.
What Agreement is required to be reached to Implement a New Roster
The central issue in this case is how the rosters agreed as part of the negotiations for the Certified Agreement might be altered in the future. A related
issue is what degree of alteration is necessary to create a new roster in terms of clause 5.6 of the Certified Agreement. Under the Award as it operated
prior to the certification of the Agreement, the AWU had the right to withhold consent to rosters. The AWU also had the right to withhold consent to
some matters which could be described as changes or modifications to existing rosters. The AWU was under no obligation to be reasonable in
withholding its consent.
At best, the evidence of MIM’s witnesses establishes that the AWU agreed that when new rosters were being considered, business needs, employee needs
and occupational health and safety would be given equal weight, and that agreement to implement new rosters would not be unreasonably withheld. I am
unable to accept that the AWU gave up its right under the Award to withhold agreement to new rosters. Rather, the manner in which the AWU might
exercise that right was altered.
I am also of the view that the AWU agreed to a process or framework under which new rosters would be considered. This is apparent from responses of
Mr Franklin to questions put during cross-examination, which essentially indicate that MIM’s understanding was there would have been no need for the
AWU to veto rosters because of the process and structure which had been followed and would continue to be followed in implementing them.
It is quite another thing to say that the AWU agreed that it would never veto rosters and would bargain away the right to veto rosters in future if it
believed the criteria had not been met in particular circumstances. For the AWU to have given up a right it had under the Award, would have been a
significant concession. Other than the subjective views of Mr Franklin and Mr Beach about exactly what the AWU agreed to, there is no objective
evidence of such a concession having been made. The affidavit in support of the Certified Agreement makes no mention of this concession and neither
was it highlighted at the hearing into the certification of the Agreement.
I can accept that MIM representatives during the negotiations for the Certified Agreement intended or desired to achieve a result whereby new rosters
could be implemented by agreement directly between MIM and its employees, without the need for the “preconsent” of the AWU. However, on an
objective analysis of the facts surrounding the negotiations and the outcome as reflected in the Certified Agreement and supporting materials, such an
agreement was not reached. What was reached was agreement on a process by which new rosters might be implemented.
In my view the evidence clearly establishes that the critical aspect of the Certified Agreement was agreement by the AWU on behalf of its members to
the working of extended rosters, which provided for hours of work, beyond those contained in the Award. Further, clause 5.6 of the Certified Agreement
lays down an agreed process or framework by which new rosters might be considered and implemented. The clause requires the AWU to be reasonable
and to commit to balancing health and safety, employee needs and business needs in that consideration.
Against the background in which the Certified Agreement was negotiated, there is no ambiguity in the terms of clause 5.6. The AWU is a party principal
to the Certified Agreement. Where the Certified Agreement enables a particular matter to be implemented directly by agreement between MIM and its
employees, with no input from the AWU, this fact is clearly indicated in the specific terms of the relevant clause. It is apparent from the provisions of
Part 5 of the Certified Agreement that some changes to rosters can be implemented by agreement between MIM and employees concerned, with no input
from the AWU, for example changes with respect to matters such as the time of taking meal breaks (clause 5.4) or notice of shift changes (clause 5.5).
These changes do not create a new roster, but rather modify existing rosters. These provisions can be contrasted with clause 5.6, which requires that the
AWU agree to new rosters.
This distinction between clause 5.6 and the other provisions of Part 5 of the Certified Agreement is reflected in the minutes of the JSC meeting of 11 and
12 April. In my view, these provisions reflect the fact that there is a difference between modification of rosters and the implementation of new rosters.
The term “modification of rosters” was included in the minutes of that JSC meeting by an experienced industrial relations practitioner, Mr Beach. Quite
simply, the term “modification” connotes a change within existing parameters while a new roster involves a change to the parameters themselves. The
term “modification” covers matters alluded to by Mr Harris in his evidence such as the starting and finishing times of shifts; the times to be taken for crib
breaks and the flow of night and day shifts in a cycle. All of these matters are capable under the terms of the Certified Agreement of being changed by
agreement made directly between the MIM and relevant employees.
The correct interpretation of clause 5.6 of the Certified Agreement is that the AWU must agree to the introduction of new rosters, or alternatively be
determined to be unreasonably withholding agreement to the implementation of new rosters under the processes laid down in the Certified Agreement for
dispute resolution. I am also of the view that a new roster cannot be implemented unless and until, the AWU has agreed to the new roster, or is found to
be unreasonably withholding agreement.
The manner in which the reasonableness of the refusal to implement rosters may be challenged is under the provisions of clause 4.2 “Best Practice
Approach to Resolving Differences” of the Certified Agreement. The final step in the process laid down in clause 4.2 is that unresolved matters may be
referred to the Commission. In some circumstances the grievance procedure may not be the appropriate vehicle to challenge the reasonableness of a
refusal to implement new rosters. For example, where employees are prepared to work new rosters and the AWU withholds agreement, it may be more
appropriate to challenge the reasonableness of the refusal by notifying a dispute to the Commission under the relevant provisions of the Act and seeking
conciliation and then arbitration. However, it is not open to MIM to decide that a refusal on the part of the AWU to implement a new roster is
unreasonable and to simply proceed to implement the roster nonetheless, by reaching agreement directly with the employees who are to work under it.
I am also of the view that there is nothing in the Certified Agreement that prevents MIM from going directly to employees and seeking to reach
agreement with them on the implementation of new rosters. However, having reached agreement with employees, for the reasons outlined above, MIM is
not permitted to proceed to implement new rosters without seeking and reaching agreement with the AWU in this regard.
In reaching this conclusion, I am unable to accept all of the AWU’s contentions in relation to the construction of clause 5.6. In particular, I do not accept
that if employees do not agree to a proposed roster then the roster is not able to be implemented because it does not meet employee needs, and that the
issue of whether the refusal to agree to the roster is unreasonable does not arise. Such an interpretation would be at odds with the objective framework of
facts within which the Certified Agreement came into existence and the express terms of the agreement itself. It would also be at odds with the
fundamental rules of statutory interpretation, particularly those to the effect that every part of an agreement is to be given a meaning which is consistent
with the general intention of the parties, gleaned from the document as a whole.
In my view, the three matters which new rosters must satisfy – health and safety, employee needs and business needs – have equal weight. Further, the
development of new rosters requires a balance between these three factors and consideration of how they interact. This much is apparent from the fact
that during negotiations they were diagrammatically represented by three overlapping circles. I am also of the view that if the first sentence in clause 5.6
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of the Certified Agreement was interpreted in the manner contended for by the AWU, then the second sentence would have no work to do. That is, the
reasonableness of the refusal to work new rosters would rarely if ever be an issue, where employees formed the view that the roster did not meet their
needs. The second sentence of the clause is a proviso to the first sentence and introduces the requirements of reasonableness into the consideration of
health and safety, employee needs and business needs. Thus, for example, where MIM proposes a roster and employees and/or the AWU contend that it
does not meet one of the three factors, and refuse to implement it, the reasonableness of that view may be challenged by MIM, in the manner outlined
above.
Appropriate Remedy
The AWU has sought an Order from the Commission that MIM be restrained from implementing new rosters without seeking and reaching agreement
with the AWU. The making of such an order is discretionary, and in this case I have determined that I will not exercise that discretion for the following
reasons:
•
•
•
•
•
•
The actions of MIM in relation to the implementation of new rosters have been based on a genuinely held view that such actions are permissible
under the terms of the Certified Agreement;
MIM’s interpretation was arguable;
The roster subject of D399 of 2002 is not a new roster, having been implemented pursuant to a decision of Bechly C in D256 of 2001 in Re:
Mining Area – Mount Isa Mines Limited – Certified Agreement 1996 (2001) 168 QGIG 325;
The decision of Bechly C, which was not subject of an appeal, was that a refusal on the part of employees to work a particular roster was
unreasonable and I respectfully agree with that decision;
That decision related to the employees working a particular roster and was not in my view confined to a geographical area;
Even if I am wrong on this point, in the circumstances outlined in the evidence of MIM’s witnesses about the need for the nine employees in
question to retain their roster outside the R62 lead mine, which was essentially unchallenged, it is highly likely that I would find the withholding
of agreement by the AWU to that proposal to be unreasonable.
I am also of the view that to issue an Order in the circumstances of this case would be overkill. MIM is a significant party in the Queensland Industrial
Relations system. Subject to both parties exercising rights of appeal in relation to this decision, it is my expectation that there will be compliance with it.
This is also a case similar to that considered by the President in Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v
Brisbane City Council (2003) 172 QGIG 1093 at 1094, where it was noted that the Award in question was a single employer Award applying to a
discrete and limited area of employment and that once decided, the point at issue would be clear to all parties.
I am not prepared to amend the Certified Agreement as in my view there is no ambiguity. I am also of the view that it would be inappropriate to amend
an Agreement in 2003, which expired on 1 August 2000, particularly when I am told that the parties are to commence negotiations for a replacement in
the near future.
I would add that I have not found the witnesses for MIM to be untruthful. Rather, I have found that their genuinely held views about what was agreed in
relation to the negotiations on rosters and hours of work do not accord with an objective view of the terms of the Certified Agreement and the factual
situation in which it was negotiated. I am also of the view that the evidence in this case demonstrates that the relationship between MIM and the AWU at
the time the Certified Agreement was made, has deteriorated, and that this deterioration has lead to the disputation which has been before the
Commission.
I am hopeful that once the issue of the interpretation of clause 5.6 is finally determined, MIM and the AWU will focus on the issues in clause 5.6 and the
appropriate balancing of those issues with respect to the implementation of new rosters, rather than the preliminary issue of what entity is required to
agree to such rosters. In my view, it is entirely inappropriate that a company which plays a major role in both the Queensland and national economies,
should be unduly hampered in its endeavours to respond rapidly to requirements to change hours of work and rosters, particularly in times when it is
facing highly volatile and depressed markets for its products. Such inflexibility would be counter productive to both employee needs and business needs.
Finally, I would indicate that I accept that MIM has a strong commitment to meeting the health, safety and other needs of its employees. There is no
evidence upon which I could reasonably be satisfied that MIM, its managers or agents, have coerced employees in relation to working new rosters.
I.C. ASBURY, Commissioner.
Appearances:
Mr A. Herbert, of Counsel with him Mr B. Swan for the Australia Workers’
Union of Employees, Queensland.
Mr J. Murdoch, SC instructed by Mr D. O’Brien of Allens Arthur Robinson
Solicitors, for the Respondent.
Hearing Details
2002
10 and 18 October
5, 11 and 12 December
Released: 8 April 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 156 – Certifying and Agreement
The Educang Limited AND Queensland Independent Education Union of Employees (No. CA71 of 2003)
THE EDUCANG – CERTIFIED AGREEMENT 2002
COMMISSIONER BECHLY
10 April 2003
DECISION
Certification of Agreement – Union requested to be bound – Granted
This is an application to certify an Agreement made directly with employees. It follows upon a similar agreement number CA634 of 1999 approved on
25 February 2000. The Queensland Independent Education Union of Employees sought to be bound by that agreement and seek to be bound by the
present Agreement. The Union has some sixteen members out of 152 eligible to vote.
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The process adopted in arriving at an Agreement was similar on each occasion. A group known as the Staff Benefits Committee, Educang Ltd met and
formulated an Agreement for consideration of employees. The committee is comprised of both employer and employee representatives. No details are
available as to how the employee representatives are appointed and whether it is a standing or an ad hoc committee. On each occasion that the
Agreement was formulated by the committee it ran into difficulties. In 1999 amendments were required during the hearing. It appears that those
amendments followed an interest being taken in the matter by the Union. In the present matter, the proposal put by the committee was rejected at ballot.
It appears that this followed an interest being taken in the matter by the Union. The proposal was resubmitted to ballot following some beneficial
amendments and was approved by a majority of employees.
The applicants adopted the following procedure:
• Sometime prior to Thursday 24 October 2002 the committee deliberated about a new Agreement.
• On Thursday 24 October Educang informed employees in writing that it proposed to make an Agreement.
• On Thursday 7 November 2002 Educang circulated a proposed Agreement and at the same time, advised employees that they may ask relevant
employee organisations to represent them in negotiations and, also, that no earlier than fourteen days from 7 November a secret ballot would be
held.
• On Friday 8 November a briefing was provided to all relevant employees on the content of the proposal.
• On 15 November a meeting was held between Educang and the Union to discuss the content of the proposal.
• On Monday 25 November a ballot rejected the Agreement.
• On Wednesday 27 November the Committee met to review the Agreement and concerns of employees. A revised proposal was issued on the
same day.
• On 6 December a further secret ballot was held which approved the new proposal.
Section 151 of the Industrial Relations Act 1999 (the Act) requires that the procedures set on in s. 144 (2) and (3) of the Act as to a period of fourteen
days’ notice, explanations to employees and opportunity for involvement of a relevant employee organisations are to apply to amendments to a proposed
Agreement unless such amendments are for a clerical reason or does not adversely affect a relevant employee’s interests. On examination of the
proposed amendments it is clear that they do not adversely affect an employee’s interests.
While the Union stated at the outset that it did not oppose the approval of the Agreement it did query the process adopted by the employer concerning the
proposed Agreement. It appears that attempts to enter into negotiations in September were rebuffed by Educang and no access provided to the Union
until the 7 November advice to employees that an Agreement was proposed and that the Union may be invited to participated in discussion. By that time
the Committee had been considering whether to enter into a new Agreement and formulating a proposal for several months. The Union was effectively
given about seventeen days to consider the content of the document in consultation with its members and make representations on their behalf.
In other than the current circumstances I would consider that to be an extremely limited time frame to be given to the Union to adequately represent its
members interests. The current circumstances that I refer to relate to the non-opposition by the Union to the proposed certification of the amended
document. It seems that the amendments followed consultation by the Union with its members. The Agreement is in similar terms to that which it
replaces other than reasonable increases to salaries and other non-controversial amendments. This fact may suitably explain the minimum time frames
within which the agreement was said to have been negotiated.
The Union has sought, pursuant to s. 166 (2) of the Act to be bound by the Agreement. The Commission must decide that an agreement binds the Union
if, before certification, the Union gives notice that it wishes to be bound and satisfies the Commission that at least one member who is to be covered by
the Agreement asks the Union to give notice that it whishes to be bound. I am satisfied that those requirements have been met.
This requirement can best be achieved by including the Queensland Independent Education Union of Employees be bound by the Agreement at clause
1.3 “Coverage”.
I order that the Queensland Independent Education Union of Employees be included as an Organisation bound by the Agreement at clause 1.3
“Coverage”.
R.E. BECHLY, Commissioner.
Appearances:
Mr J. Jones of Jones Ross on behalf of the applicant.
Mr J. Spriggs with him Mr J. Roussato of The Queensland Independent
Education Union of Employees.
Hearing Details
2003
11 March
Released: 10 April 2003
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QUEENSLAND INDUSTRIAL REGISTRAR
Industrial Relations Act 1999 – s. 482 – arrangement for conduct of elections
Queensland Nurses’ Union of Employees (No. Q10 of 2003)
DEPUTY REGISTRAR SCOTT-HOLLAND
3 April 2003
Conduct of Election – Branch Elections – Further New Branches – Electoral Commission to Conduct Election.
DECISION
On 2 April 2003, after its Council Meeting, the Queensland Nurses’ Union of Employees lodged in the Registry under section 481 of the Industrial
Relations Act 1999, further information as prescribed in section 36(1) of the Industrial Relations Regulation 2000 and supporting material in relation to
its request for the conduct of an election by the Electoral Commission for each of the new branches of the Industrial Organisation as listed on Schedule
“A” for the following positions:
Office
Number
Branch President 1
Branch Vice President ..................................................................................................................................... 1
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Branch Secretary 1
Branch Assistant Secretary .............................................................................................................................. 1
Branch Delegate to the Committee of Regional Delegates................................................. }
As Listed
Branch Alternate Delegate to the Committee of Regional Delegates................................. }
on Schedule “A”
Conduct of Elections
On 31 March 2003, Registrar Ewald issued a decision authorising the conduct of an election in Case No Q7 of 2003 for a number of new Branches to be
advertised in the Industrial Organisation’s journal. At its Council Meeting on 2 April 2003, the Queensland Nurses’ Union of Employees approved
further new Branches to be called at the same time.
I have considered the request, the Act and Rules, and I am satisfied that an election is required to be held under the rules for each of the above positions
of Office for each of the new Branches listed on Schedule “A” for the Industrial Organisation.
Under section 482 of the Industrial Relations Act 1999, I am making arrangements for the conduct of the election by the Electoral Commission of
Queensland.
Dated 3 April 2003.
P. SCOTT-HOLLAND,
Deputy Industrial Registrar.
Schedule “A”
Branches
Number of Delegates
Number of Alternate
Delegates
Blue Care Southport............................................................................................................. 1.......................................................1
Cairns Private....................................................................................................................... 2.......................................................2
Cape York ............................................................................................................................ 1.......................................................1
Community Child Health Nurses ........................................................................................ 2.......................................................2
Logan Beaudesert Community Nurses................................................................................ 1.......................................................1
St Andrews Ipswich ............................................................................................................. 2.......................................................2
Sunshine Coast Community Nurses .................................................................................... 1.......................................................1
Released: 3 April 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL REGISTRAR
Industrial Relations Act 1999 s. 482– arrangement for conduct of elections
The University of Queensland Academic Staff Association (Union of Employees) (No. Q11 of 2003)
REGISTRAR EWALD
7 April 2003
Conduct of Election – Prescribed Information – Timing of Election – Exercise of Discretion – Late Filing Allowed – Electoral Commission to Conduct
Election.
DECISION
On 7 April 2003 The University of Queensland Academic Staff Association (Union of Employees) lodged in the Registry under section 481 of the
Industrial Relations Act 1999, the information as prescribed in section 36 of the Industrial Relations Regulation 2000 in relation to the conduct of an
election by the Electoral Commission of Queensland for the following positions of office:
Office
Number of
Positions
President ............................................................................................................................................. 1
Vice-President .................................................................................................................................... 1
Secretary ............................................................................................................................................. 1
Treasurer ............................................................................................................................................. 1
Executive Committee Members ......................................................................................................... 11
Timing of Election
Rule 3.4(d) prescribes that nominations shall be delivered to the Returning Officer not later than 14 clear days after the Annual General Meeting but no
time for the calling of nominations is prescribed by the Rules and Rule 3.5 provides for the Annual General Meeting to be held “during each academic
year at such time as the executive committee shall determine but not later than the thirtieth day of June”.
The Annual General Meeting for this year has been set for 4 June 2003 with the closing date for nominations on 20 June 2003. Therefore taking into
account the indefinable time frame for the opening of nominations for the purpose of lodgment of the prescribed information (i.e. 2 months prior to the
calling of nominations) I find that the prescribed information was not filed within the time frame prescribed by the Act.
Notwithstanding I am prepared to exercise my discretion and extend the prescribed time for filing of such information to 8 April 2003.
Conduct of Elections
I am satisfied that an election for the above named positions is required to be held under the Rules of the Industrial Organisation. The Organisation’s
Rules are affected by s. 458 of the Industrial Relations Act 1999. By virtue of this section the Organisation’s Rules are taken to contain the Model
Election Rules.
Under section 482 of the Industrial Relations Act 1999, I am making arrangements for the conduct of the election of the above named positions by the
Electoral Commission of Queensland.
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Dated 7 April 2003.
E. EWALD,
Industrial Registrar.
Released: 7 April 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 130 – award review
BAKERS AND PASTRYCOOKS CARTERS’ AWARD – SOUTHERN DIVISION
(No. AR74 of 2002)
DEPUTY PRESIDENT SWAN
COMMISSIONERS EDWARDS AND BECHLY
13 March 2003
AWARD REVIEW
After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the
following Award be made, as from 12 May 2003.
BAKING INDUSTRY CARTERS’ AWARD – SOUTHERN DIVISION 2003
PART 1 – APPLICATION AND OPERATION
1.1
Title
This Award is known as the Baking Industry Carters’ Award – Southern Division 2003
1.2
Arrangement
Subject Matter
Clause No.
PART 1 – APPLICATION AND OPERATION
Title ............................................................................................................................................................................................................................1.1
Arrangement ..............................................................................................................................................................................................................1.2
Application of Award ................................................................................................................................................................................................1.3
Date of operation .......................................................................................................................................................................................................1.4
Parties bound..............................................................................................................................................................................................................1.5
Definitions..................................................................................................................................................................................................................1.6
PART 2 – FLEXIBILITY
Enterprise flexibility ..................................................................................................................................................................................................2.1
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
Grievance and dispute settling procedures ................................................................................................................................................................3.1
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
Employment categories .............................................................................................................................................................................................4.1
Part-time employment ...............................................................................................................................................................................................4.2
Casual employment....................................................................................................................................................................................................4.3
Shortage of money or goods ......................................................................................................................................................................................4.4
Incidental and peripheral tasks ..................................................................................................................................................................................4.5
Anti-discrimination....................................................................................................................................................................................................4.6
Termination of employment ......................................................................................................................................................................................4.7
Introduction of changes .............................................................................................................................................................................................4.8
Redundancy................................................................................................................................................................................................................4.9
Continuity of service – transfer of calling.................................................................................................................................................................4.10
PART 5 – WAGES AND WAGE RELATED MATTERS
Wages.........................................................................................................................................................................................................................5.1
Allowances.................................................................................................................................................................................................................5.2
Two or more classes of work.....................................................................................................................................................................................5.3
Pay day.......................................................................................................................................................................................................................5.4
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK
Hours of work ............................................................................................................................................................................................................6.1
Starting and ceasing times .........................................................................................................................................................................................6.2
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Subject Matter
24 April, 2003
Clause No.
Overtime ....................................................................................................................................................................................................................6.3
Meal break .................................................................................................................................................................................................................6.4
Rest pauses.................................................................................................................................................................................................................6.5
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
Annual leave ..............................................................................................................................................................................................................7.1
Picnic day...................................................................................................................................................................................................................7.2
Sick leave ...................................................................................................................................................................................................................7.3
Long service leave .....................................................................................................................................................................................................7.4
Bereavement leave.....................................................................................................................................................................................................7.5
Family leave...............................................................................................................................................................................................................7.6
Public holidays...........................................................................................................................................................................................................7.7
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
No provisions inserted in this Award relevant to this Part.
PART 9 – TRAINING AND RELATED MATTERS
Training......................................................................................................................................................................................................................9.1
Training rates .............................................................................................................................................................................................................9.2
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
Wet weather and protective clothing .........................................................................................................................................................................10.1
Uniforms ....................................................................................................................................................................................................................10.2
Meals and housing .....................................................................................................................................................................................................10.3
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Right of entry .............................................................................................................................................................................................................11.1
Time and wages record ..............................................................................................................................................................................................11.2
Union encouragement ................................................................................................................................................................................................11.3
Notice board...............................................................................................................................................................................................................11.4
Award to be posted ...................................................................................................................................................................................................11.5
2nd tier Agreements
1.3
Schedule 1
Application of Award
This Award shall apply to all persons employed in the callings of Bakers’ Carters and to all other employees hereinafter defined for whom classifications
and rates of pay are prescribed in clause 5.1 within the Southern Division of the State as hereinafter defined.
As to the employers named in Schedule 1 the provisions of the Award are modified in accordance with the requirements of the individual Orders listed in
such Schedule.
1.4
Date of operation
This Award takes effect from 12 May 2003.
1.5
Parties bound
This Award is legally binding upon the employees as prescribed by clause 1.3 and their employers, and the Transport Workers’ Union of Australia,
Union of Employees (Queensland Branch) and its members.
1.6
Definitions
1.6.1
1.6.2
The “Act” means the Industrial Relations Act 1999 as amended or replaced from time to time.
“Adult” shall mean any employee 20 years of age and over.
1.6.3
“Bakers’ Carter” includes all drivers of motor or other mechanically propelled vehicles used by a bread, pastry or pie manufacturer for the
delivery of such merchandise to retail or wholesale buyers, and including
1.6.4
“Bakers Carter’s Assistant” shall mean an employee who assists a baker’s carter in any capacity with their work.
1.6.5
“Bulk Carter” shall mean an employee of a bread manufacturer who is employed as a driver of vehicles whose carrying capacity is registered at
no less than 3 tonnes carrying bulk supplies of bread and allied products from the place of manufacture to the employer’s bulk depots.
1.6.6
“Commission” means the Queensland Industrial Relations Commission.
1.6.7
“Eastern District of the Southern Division” means and includes that portion of the Southern Division along or east of a line commencing at the
junction of the Southern border of the State with 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of
south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due north to 22
degrees of south latitude; and then by that parallel of latitude due east to the sea-coast.
1.6.8
“Junior” shall mean any employee under 20 years of age.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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1.6.9
“Relieving Carter” shall mean an employee of a bread, pastry or pie manufacturer who is employed to replace other drivers in their absence from
duty, and who shall perform other duties connected with bread delivery and merchandising as required.
1.6.10
“Southern Division of the State” means and includes all that part of the State south of a line commencing at the junction of the sea-coast with 22
degrees of south latitude; then by that parallel of latitude due west to 147 degrees of each longitude; then by that meridian of longitude south to
22 degrees 30 minutes of south latitude; then by that parallel of latitude west to the western border of the State.
1.6.11
“Supervisor” shall mean an employee in charge of the working of the rounds and who generally supervises the work of other employees.
1.6.12
“Western District of the Southern Division” means and includes the remainder of the Southern Division.
1.6.13
“Union” means the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch).
PART 2 – FLEXIBILITY
2.1
Enterprise flexibility
2.1.1
As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible
working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage
consultative mechanisms across the workplace.
2.1.2
The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of
matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions.
2.1.3
Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being
submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given.
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
3.1
Grievance and dispute settling procedures
The matters to be dealt with in this procedure shall include all grievances or disputes between an employee and an employer in respect to any industrial
matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to a single employee or to any number of
employees.
3.1.1
In the event of an employee having a grievance or dispute the employee shall in the first instance attempt to resolve the matter with the
immediate Supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns
alleged actions of the immediate Supervisor the employee/s may bypass this level in the procedure.
3.1.2
If the grievance or dispute is not resolved under clause 3.1.1, the employee or the employee’s representative may refer the matter to the next
higher level of management for discussion. Such discussion should, if possible, take place within 24 hours after the request by the employee or
the employee’s representative.
3.1.3
If the grievance involves allegations of unlawful discrimination by a Supervisor the employee may commence the grievance resolution process
by reporting the allegations to the next level of management beyond that of the Supervisor concerned. If there is no level of management
beyond that involved in the allegation the employee may proceed directly to the process outlined at clause 3.1.5.
3.1.4
If the grievance or dispute is still unresolved after discussions mentioned in clause 3.1.2, the matter shall, in the case of a member of a Union, be
reported to the relevant officer of that Union and the senior management of the employer or the employer’s nominated industrial representative.
An employee who is not a member of the Union may report the grievance or dispute to senior management or the nominated industrial
representative. This should occur as soon as it is evident that discussions under clause 3.1.2 will not result in resolution of the dispute.
3.1.5
If, after discussion between the parties, or their nominees mentioned in clause 3.1.4, the dispute remains unresolved after the parties have
genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Commission in
accordance with the provisions of the Act.
3.1.6
Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.
3.1.7
The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.
3.1.8
All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by the Commission with a
view to the prompt settlement of the dispute.
3.1.9
Any Order or Decision of the Commission (subject to the parties’ right of appeal under the Act) will be final and binding on all parties to the
dispute.
3.1.10
Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of
such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are
unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
4.1
Employment categories
4.1.1
Employees (other than casual employees) covered by this Award shall be advised in writing of their employment category upon appointment.
Employment categories are:
(a) Full-time;
(b) Part-time (as prescribed in clause 4.2); and
(c) Casual (as prescribed in clause 4.3).
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4.2
Part-time employment
4.2.1
A part-time employee is an employee who:
24 April, 2003
(a) is employed for a minimum of 3 hours per week and for less than 40 ordinary hours per week; and
(b) has reasonably predictable hours of work; and
(c) receives, on a proportionate basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
4.2.2
At the time of engagement, the employer and the employee are to agree in writing on the number of ordinary hours per week and the normal
rostering arrangements.
4.2.3
The agreed number of ordinary hours per week may only be varied by mutual agreement. Any such agreed variation to the number of weekly
hours of work will be recorded in writing.
4.2.4
A part-time employee must be given at least 2 days’ notice of change in the employees rostered starting time, or a lesser amount by mutual
agreement.
4.2.5
An employer is required to roster a part-time employee for a minimum of 3 consecutive hours on any day or shift.
4.2.6
Overtime is payable to part-time employees who work beyond their normal starting and ceasing times or beyond ordinary working hours
4.2.7
A part-time employee must be paid for ordinary hours worked at the rate of 1/40th of the weekly rate prescribed in clause 5.1 for the class of
work performed.
4.2.8
Where a public holiday falls on a day upon which a part-time employee is normally engaged, that employee shall be paid their ordinary time rate
of pay for the number of hours normally worked on that day.
4.2.9
All other provisions of this Award relevant to full-time employees shall apply to part-time employees.
4.3
Casual employment
4.3.1
A casual employee means any person engaged for not more than 3 consecutive days.
4.3.2
A casual employee shall be entitled to payment at the rate of 23% in addition to the appropriate hourly rate ascertained by dividing the
appropriate weekly rate by the number of ordinary weekly hours.
4.3.3
A casual employee shall be notified at the end of the day if their services are not required next day; failing such notice the employee shall be
paid one day’s pay.
4.3.4
If a casual employee is employed for not more than 4 hours on any one day, the employee shall be paid the casual rates for the actual time
worked with a minimum of 2 hours.
4.3.5
A casual hand shall have the same starting and finishing times as a weekly hand in accordance with clause 6.2, and shall not, on any one day,
work a greater number of hours than a full-time employee works on that day in accordance with clause 6.2.
4.4
Shortage of money or goods
4.4.1
An employee shall not be required to make good any shortage of money or goods unless they are notified of such shortage within 48 hours after
the day on which it is said to have occurred and the employee has been given an opportunity of checking same. Saturdays, Sundays, and
holidays are not to be reckoned in the said period of 48 hours.
4.4.2
Any amounts over in money or goods shall be credited to the employee and shall be available to meet subsequent shortages.
4.5
Incidental and peripheral tasks
4.5.1
An employer may direct an employee to carry out such duties as are reasonably within the limits of the employee’s skill, competence and
training.
4.5.2
An employer may direct an employee to carry out such duties and use such tools and equipment as may be provided that the employee has been
properly trained in the use of such tools and equipment (where relevant).
4.5.3
Any direction issued by an employer pursuant to clauses 4.5.1 and 4.5.2 shall be consistent with the employer’s responsibilities to provide a safe
and healthy working environment.
4.6
Anti-discrimination
4.6.1
It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the
Industrial Relations Act 1999 as amended from time to time, which includes:
(a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political
belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of any of the
above attributes;
(b) sexual harassment; and
(c) racial and religious vilification.
4.6.2
Accordingly, in fulfilling their obligations under the grievance and dispute settling procedure in clause 3.1, the parties to this Award must take
reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.
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4.6.3
Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been
involved in a complaint of unlawful discrimination or harassment.
4.6.4
Nothing in clause 4.6 is to be taken to affect:
(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991;
(b) an employee, employer or registered organization, pursuing matters of discrimination, including by application to the Human Rights and
Equal Opportunity Commission/Anti-Discrimination Commission Queensland.
4.7
Termination of employment
4.7.1
Statement of employment
The employer shall, in the event of termination of employment, provide upon request to an employee who has been terminated a written statement
specifying the period of employment and the classification or type of work performed by the employee.
4.7.2
Termination by employer
(a) In order to terminate the employment of an employee the employer shall give the following notice:
Period of Continuous Service
Period of Notice
not more than 1 year.............................................................................................. 1 week
more than 1 year, but not more than 3 years..........................................................2 weeks
more than 3 years, but not more than 5 years ........................................................3 weeks
more than 5 years ...................................................................................................4 weeks
(b) In addition to the notice in clause 4.7.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years’
continuous service, shall be entitled to an additional week’s notice.
(c) Payment in lieu of notice shall be made if the appropriate notice is not given:
Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
(d) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used.
(e) The period of notice in clause 4.7.2 shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal, or
in the case of casual employees, or employees engaged for a specific period of time or for a specific task or tasks.
4.7.3
Notice of termination by employee
To terminate the contract of employment a full-time or part-time employee must give at least one week’s notice or forfeit a maximum of one week’s pay
in lieu thereof.
4.7.4
Annual leave shall not be used to provide the notice prescribed in clauses 4.7.2 and 4.7.3, unless otherwise mutually agreed.
4.8
Introduction of changes
4.8.1
Employer’s duty to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology
that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed
changes and their Union.
(b) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employer’s workforce
or in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of employees to other work or locations and the restructuring of jobs:
Provided that where this Award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to
have significant effect.
4.8.2
Employer’s duty to discuss change
(a) The employer shall discuss with the employees affected and their Union, inter alia, the introduction of the changes referred to, the effects
the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.
(b) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes
referred to in clause 4.8.1.
(c)
For the purpose of such discussion, the employer shall provide in writing to the employees concerned and their Union, all relevant
information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other
matters likely to affect employees:
Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the
employer’s interests.
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4.9
Redundancy
4.9.1
Discussions before terminations
24 April, 2003
(a) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by
anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the
employer shall hold discussions with the employees directly affected and, where relevant, their Union.
(b) The discussions shall take place as soon as it is practicable after the employer has made a definite decision which will invoke clause 4.9.1,
and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to avert
or mitigate the adverse effects of any terminations of the employees concerned.
(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their Union,
all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of
employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be
carried out:
Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the
employer’s interests.
4.9.2
Transfer to lower paid duties
Where an employee is transferred to other duties for reasons set out in clause 4.9.1, the employee shall be entitled to the same period of notice of transfer
as the employee would have been entitled to, pursuant to clause 4.7.2, if their employment had been terminated, and the employer may, at the employer’s
option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time
rate of pay for the number of weeks of notice still owing.
4.9.3
Transmission of business
(a) Where a business is, whether before or after the date of this Award, transmitted from an employer (the “transmittor”) to another employer
(the “transmittee”), and an employee who at the time of such transmission was an employee of the transmittor of the business becomes an
employee of the transmittee:
(i) The continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
(ii) The period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the
employee with the transmittee.
(b) “Business” includes trade, process, business or occupation and includes part of any such business and “transmission” includes transfer,
conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding meaning.
4.9.4
Time off during notice period
(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.9.1, the employee shall be allowed up
to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment,
the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not
receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
4.9.5
Notice to Centrelink
Where a decision has been made to terminate employees in the circumstances outlined in clause 4.9.1 the employer shall notify Centrelink thereof as
soon as possible giving relevant information including a written statement of the reasons for the terminations, the number and categories of the
employees likely to be affected and the period over which the terminations are intended to be carried out.
4.9.6
Severance pay
In addition to the period of notice prescribed for ordinary termination in clause 4.7.2, and subject to further order of the Commission, an employee whose
employment is terminated for reasons set out in clause 4.9.1 shall be entitled to the following amounts of severance pay:
Period of Continuous Service
Severance Pay
1 year or less ...........................................................................................................nil
1 year and up to the completion of 2 years .....................................................4 weeks’ pay
2 years and up to the completion of 3 years....................................................6 weeks’ pay
3 years and up to the completion of 4 years....................................................7 weeks’ pay
4 years and over...............................................................................................8 weeks’ pay
“Weeks’ pay” means the ordinary time rate of pay for the employee concerned.
4.9.7
Superannuation benefits
Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, such employee shall
only receive under clause 4.9.6 the difference between the severance pay specified in that clause and the amount of the superannuation benefit such
employee receives which is attributable to employer contributions only. If this superannuation benefit is greater than the amount due under clause 4.9.6
then the employee shall receive no payment under that clause.
24 April, 2003
4.9.8
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Employee leaving during notice
An employee whose employment is terminated for reasons set out in clause 4.9.1 may terminate such employment during the period of notice specified in
clause 4.7.2, and, if so, shall be entitled to the same benefits and payments under clause 4.9 had such employee remained with the employer until the
expiry of such notice:
Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.
4.9.9
Alternative employment
An employer, in a particular case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains
acceptable alternative employment for an employee.
4.9.10
Employees with less than one year’s service
Clause 4.9 shall not apply to employees with less than one year’s continuous service and the general obligation on employers should be no more than to
give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to
facilitate the obtaining by the employees of suitable alternative employment.
4.9.11
Employees exempted
Clause 4.9 shall not apply:
(a) where employment is terminated as a consequence of misconduct on the part of the employee;
(b) to employees engaged for a specific period of time or for a specific task or tasks; or
(c) to casual employees.
4.9.12
Employers exempted
Subject to an order of the Commission, in a particular redundancy case, clause 4.9 shall not apply to employers who employ less than 15 people.
4.9.13
Incapacity to pay
An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription varied on the basis
of the employer’s incapacity to pay.
4.10
Continuity of service – transfer of calling
In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act, as amended from
time to time.
PART 5 – WAGES AND WAGE RELATED MATTERS
5.1
Wages
5.1.1
The following classifications will be applied to employees engaged principally in the transport of baking industry products:
Bakers Carter and Bulk Carter
Grade 1
86%
Motor drivers’ assistant
Grade 2
90%
Driving a vehicle not exceeding 4.5 tonne G.V.M. (Gross Vehicle Mass) and drivers of sedans, station wagons, motor cycles, other vehicles not
mentioned elsewhere in clause 5.1.1 which do not have a G.V.M. stated in a certificate of registration.
Grade 3
92%
Driving a 2 axle rigid vehicle or any other rigid vehicle exceeding 4.5 tonnes G.V.M., but not exceeding 13.9 tonnes G.V.M.
Grade 4
94%
Driving a rigid vehicle exceeding 13.9 tonnes G.V.M.
Grade 5
96%
Driving a rigid vehicle with 4 or more axles and a G.V.M. exceeding 13.9 tonnes. Driving a rigid vehicle and heavy trailer combination with 3
axles and a G.C.M. of 22.4 tonnes or less. Driving an articulated vehicle with 3 axles and a G.C.M. of 22.4 tonnes or less.
Grade 6
98%
Driving a rigid truck and heavy trailer combination or an articulated vehicle with more than 3 axles and a G.C.M. greater than 22.4 tonnes.
Grade 7
100%
Driving a double articulated vehicle up to and including 53.4 tonnes G.C.M. – including B-Doubles.
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Grade 8 Supervisor (bulk transport employees only)
Award rate per week
$
Grade 1 ..................................................................................................................................................................................... 465.20
Grade 2 ..................................................................................................................................................................................... 480.50
Grade 3 ..................................................................................................................................................................................... 488.20
Grade 4 ..................................................................................................................................................................................... 499.70
Grade 5 ..................................................................................................................................................................................... 507.30
Grade 6 ..................................................................................................................................................................................... 515.00
Grade 7 ..................................................................................................................................................................................... 524.70
Grade 8 ..................................................................................................................................................................................... 524.70
5.1.2
Foreman drivers
The minimum weekly wage to be paid to the following classes of employees of pastrycooks and caterers (including pie carters) shall be:
Award rate per week
$
Level 1..................................................................................................................................................................................... 488.20
Level 2..................................................................................................................................................................................... 499.70
Level 3..................................................................................................................................................................................... 507.30
Level 4..................................................................................................................................................................................... 515.00
Level 5..................................................................................................................................................................................... 524.70
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 or 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
5.1.3
Juniors
The wage rates for such Juniors shall be calculated as follows:
Percentage of Bakers Carters
Assistants’ rate – clause 5.1.1
(Calculated to nearest 5 cents)
%
Under 18 years of age....................................................................................................................................................................... 55
Under 19 years of age....................................................................................................................................................................... 65
Under 20 years of age....................................................................................................................................................................... 80
and thereafter the Adult wage.
5.2
Allowances
5.2.1
Handling money – Employees who are required to handle money shall be paid the following rates in addition to the rates set out in this Award:
Per week
$
Up to $20.00............................................................................................................................................................................... 1.00
Over $20.00 but not exceeding $200 ......................................................................................................................................... 2.40
Over $200 but not exceeding $600 ............................................................................................................................................ 4.00
Over $600 but not exceeding $1,000 ......................................................................................................................................... 5.90
Over $1,000 but not exceeding $1,200...................................................................................................................................... 7.90
Over $1,200 but not exceeding $1,600...................................................................................................................................... 9.10
Over $1,600 but not exceeding $2,000.................................................................................................................................... 10.40
Over $2,000.............................................................................................................................................................................. 11.90
Bulk Carters required to commence their ordinary hours of work on any day between the hours of 4.01 p.m. and 4.00 a.m. on the succeeding
day, shall be paid allowance equal to 100% of the Commission standard afternoon and night shift allowance, per occasion, in addition to their
ordinary wage rates.
5.2.2
Supervisors – allowances, early starts
Supervisors shall be paid the following percentages of Commission standard afternoon and night shift allowance in addition to their ordinary wage rates,
for commencing their ordinary hours of work per occasion between:
Percentage
%
12.01 a.m. and 4.00 a.m..............................................................................................................................................................40
10.01 a.m. and 12.00 midnight ...................................................................................................................................................60
8.01 p.m. and 10.00 p.m. ............................................................................................................................................................80
4.01 p.m. and 8.00 p.m. ............................................................................................................................................................100
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5.2.3
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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Western allowance
All Adult employees in the Western District of the Southern Division shall be paid $1.05 per week above the rates set out in clause 5.1.1 and 5.1.2. All
Juniors employed in the said Western District shall be paid 53 cents per week above the rates set out in clause 5.1.3, and all casual employees employed
in the said Western District shall be paid 3.333 cents an hour above the rate set out in clause 4.3.
5.2.4
Vehicle accommodation
Employees providing accommodation for a vehicle shall be paid 99c per week by way of allowance in addition to the rates prescribed above.
5.3
Two or more classes of work
An employee who is required to perform work on any day for which a higher rate of pay is prescribed in clause 5.1 shall be paid as follows:
(a) If more than 4 hours on any day the higher rate for the whole of such day.
(b) If 4 hour or less then payment of the higher rate for 4 hours.
5.4
Pay day
Wages will be paid at the option of the employer, either by cash or electronic fund transfer into an account nominated by the employee into a bank,
building society or credit union.
If wages are paid in cash, they will be paid in the employer’s time and any employee who is not paid within 15 minutes from the time specified, will be
deemed to be working during the time the employee is kept waiting:
Provided that clause 5.4 will not apply under circumstances beyond the control of the employer.
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK
6.1
Hours of work
6.1.1
The ordinary working hours for employees shall not exceed 40 in any one week.
6.1.2
Relieving carters, bakers’ carters and assistants
The ordinary working hours for Relieving Carters, Baker’s Carters and Bakers Carters’ Assistants shall be worked as follows:
(a) In the local authority areas of the cities of the Gold Coast, Bundaberg, Gympie and Gladstone, the town of Hervey Bay, the coastal
townships for Caloundra to Noosa in the area known as the Sunshine Coast and the townships of Boonah, Nambour, Cooroy and Yeppoon –
Not exceeding 8 hours per day between the hours of 2.00 a.m. and 4.00 p.m. on Mondays, Tuesdays, Wednesdays, Fridays, and Saturdays:
Provided that, upon notifying the Union in writing an employer may elect to adopt the ordinary hours of work prescribed in clause 6.1.2(b)
and, in which case, such hours shall continue to be adhered to thereafter.
(b) Elsewhere:
Not exceeding 8 hours per day between the hours of 2.00 a.m. and 4.00 p.m. Mondays to Fridays, inclusive.
(c) Loading vehicles – Notwithstanding the provisions of clauses 6.1.2(a) and 6.1.2(b), Bakers Carters’ Assistants engaged in loading bread into
bread delivery vehicles may be required to commence their ordinary hours of work not more than 2 hours earlier than the commencing
times as prescribed by clauses 6.1.2(a) and (b), in which event an “early start allowance” equal to 20% of the Commission standard
afternoon and night shift allowance, shall be paid in addition to all other amounts due to such employees.
6.1.3
Bulk Carters – supervisors
The ordinary working hours of Bulk Carters and Supervisors shall not exceed 8 hours per day, to be worked as follows:
(a) In the areas mentioned in clause 6.1.2(a) on Mondays, Tuesdays, Wednesdays, Fridays, and Saturdays; and
(b) Elsewhere, on Mondays to Fridays, inclusive.
6.1.4
Double deliveries
Notwithstanding the provisions of clauses 6.1.2(a) and (b), employers who, in respect to their employees, are subject to the provisions of clauses 6.1.2(a)
and (b), may arrange with any employee or employees to work at ordinary rates for not more than 10 hours on any day on which more than one day’s
supply of bread is to be delivered:
Provided that the remaining provisions of clause 6.1 shall continue to apply:
Provided further that for each week during which an employee is required to work in accordance with clause 6.1.4, such employee shall be paid an
allowance calculated at the rate of 6% of a Bakers Carter’s base weekly rate, in addition to all other amounts payable to the employee.
6.1.5
Pastrycooks’ carters
The ordinary working hours for employees of pastrycooks and caterers shall be worked between the hours of 6.00 a.m. and 6.00 p.m. on 5 days of the
week, and between the hours of 6.00 a.m. and 12 noon on the day of the weekly half holiday, and shall not exceed 8 hours on any one day and 4 hours on
the day of the weekly half-holiday.
In any week in which a holiday occurs the working hours shall be reduced by 8, except where such holiday falls on the day of the weekly half holiday,
when the ordinary working hours shall be reduced by 4:
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Provided that in accordance with Industrial Agreement No. A67 of 1948 the ordinary weekly hours of employees of David Webster and Sons Pty. Ltd.,
may be worked on Mondays to Fridays between the hours of 8.30 a.m. and 5 p.m. with one-half hour each day for a meal:
Provided further that in the case of employees of pastrycooks and caterers, the existing customs as to the weekly half-holiday or weekly whole holiday
shall continue; the same to be mutually arranged between employers and employees. The day on which such weekly half holiday or weekly whole
holiday is taken shall not be altered except upon the employer giving the particular employee one month’s notice:
Provided further that the weekly half holiday of employees of pastrycooks and caterers in the Factories and Shops District of Rockhampton shall be
observed on Saturday in each week from 1 p.m.
6.1.6
Pie carters – Drivers of pie carts exclusively so employed may be worked between the hours of 8.00 a.m. and 12 midnight on 5 days of the week
and 7.00 a.m. and 12 noon on one day in each week, such day to be mutually arranged between the employer and employee.
6.2
Starting and ceasing times
6.2.1
The employer shall fix regular starting times for each employee for each day of the week:
Provided that where an employer desires to vary or change the regular starting times of an employee or employees, the employer may do so on
giving 2 days’ notice of such variation of change to the particular employee or employees concerned.
6.2.2
The employee’s time shall be counted as from the time of entering the yard or depot to the time of leaving the yard or depot on completion of
work and shall be reckoned continuously except for a meal break of not less than one half hour nor more than one hour.
6.3
Overtime
6.3.1
All time worked by employees before the fixed starting time or after the fixed ceasing time, or in excess of the daily or weekly hours set out in
clause 6.1, shall be deemed overtime.
6.3.2
Except hereinafter provided, overtime shall be paid for at the rate of time and a-half for the first 3 hours on any one day and double time
thereafter.
6.3.3
All overtime worked on Sundays shall be paid for at the rate of double time. When an employee who is directed to do so reports for overtime
work on a Sunday the employee shall be paid for at least 4 hours or until their normal starting time, whichever is the earlier, at the rate of double
time.
6.3.4
Subject to clause 6.3.3, full-time and part-time employees required to work on their day off shall be paid a minimum of 4 hours at the rate of
time and a-half.
6.3.5
Rest period after overtime
(a) An employee who works so much overtime between the termination of that employee’s ordinary work on one day and the commencement
of the employee’s ordinary work on the next day that the employee has not at least 10 consecutive hours off duty between those times shall,
subject to clause 6.3.5, be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss
of pay for ordinary working time occurring during such absence.
(b) If on the instructions of the employer such an employee resumes or continues work without having had such 10 consecutive hours off duty,
the employee shall be paid double rates until released from duty for such period. The employee shall then be entitled to be absent until the
employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
6.3.6
For the purpose of clause 6.3, where the rate of wages is a weekly one “double time” shall mean one day’s wages in addition to the prescribed
weekly rate, or pro rata if there is more or less than a day.
6.3.7
The employer may require an employee to work reasonable overtime provided that wherever practical an employer shall share the overtime
amongst the employees qualified to perform the work.
6.4
Meal break
6.4.1
All employees shall be allowed a break of not less than one-half hour or more than one hour for a meal between the fourth and sixth hour from
the time of commencement of work.
6.4.2
Where an employee is required to work for more than 2 hours on any day beyond their ordinary finishing time, the employee shall be allowed a
break of one-half hour for a meal and shall be paid the sum of $7.50 extra as meal money in addition to overtime rates. If the employee works
more than 4 hours’ overtime, the employee shall be allowed another break of half an hour and a further allowance of $7.50 for a meal.
6.4.3
Subject to clause 6.4.4, meal breaks shall not be regarded as time worked.
6.4.4
All work performed at the direction of the employer during any meal break shall be paid for at the rate of double time.
6.5
Rest pauses
6.5.1
A full-time employee will be entitled to a rest pause of 10 minutes’ duration in the employer’s time in the first and second half of their daily
work. No deduction of pay will be made for each rest pause so taken.
6.5.2
A casual employee and part-time employee engaged continuously for a period of 4 hours will be entitled to a rest pause of 10 minutes’ duration
in the employer’s time. A casual employee who is engaged for a period of more than 4 hours, but not exceeding 8 hours, will be entitled to a rest
pause of 10 minutes’ duration in the employer’s time in the first and second half of the engagement.
6.5.3
Rest pauses will be taken at such times as will not interfere with continuity of work where continuity is necessary.
6.5.4
Where there is agreement between the employer and the majority of employees concerned the rest pauses may be combined into one 20 minute
rest pause to be taken in the first part of the ordinary working day, with such 20 minute rest pause and the meal break arranged in such a way
that the ordinary working day is broken up into 3 approximately equal working periods.
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PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
7.1
Annual leave
7.1.1
Every employee (other than a casual employee) shall at the end of each year of their employment be entitled to not less than 4 weeks’ annual
leave on full pay.
7.1.2
Such annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave and (subject to clause 7.1.6)
shall be paid for by the employer in advance:
(a) In the case of any and every employee in receipt immediately prior to that leave of ordinary wages at a rate in excess of the ordinary rate
payable, at that excess rate; and
(b) In every other case, at the ordinary time rate of pay payable under clause 5.1 to the employee concerned immediately prior to that leave.
7.1.3
If the employment of any employee is terminated at the expiration of a full year of employment, the employer shall be deemed to have given the
leave to the employee from the date of the termination of the employment and shall immediately pay to the employee, in addition to all other
amounts due to them, their pay, calculated in accordance with clause 7.1.6, for any untaken annual leave and also their ordinary time rate of pay
for any public holiday occurring during such period of untaken annual leave.
7.1.4
If the employment of any employee is terminated before the expiration of a full year of employment, such employee shall be paid, in addition to
all other amounts due, an amount equal to 1/12th of their pay for the period of their employment, calculated in accordance with clause 7.1.6.
7.1.5
Unless the employee shall otherwise agree, the employer shall give the employee at least 14 days’ notice of the date from which such
employee’s annual leave shall be taken.
7.1.6
Calculation of annual leave pay
In respect to annual leave entitlements to which clause 7.1 applies, annual leave pay (including any proportionate payments) shall be calculated
as follows:
(a) All employees – Subject to the provisions of clause 7.1.6(b), in no case shall the payment by an employer to an employee be less than the
sum of the following amounts:
(i) The employee’s ordinary wage rate as prescribed in clause 5.1 for the period of the annual leave (excluding weekend penalty rates); and
(ii) A further amount calculated at the rate of 17.5% of the amount referred to in clause 7.1.6(a)(i).
(b) Clause 7.1.6(a) does not apply to:
(i) any period or periods of annual leave exceeding 4 weeks; and
(ii) employers (and their employees) who are already paying (or receiving) an annual leave bonus, loading or other annual leave payment
which is not less favourable to employees.
7.1.7
Annual leave shall be taken within 3 months after completion of 12 months’ service and the employer shall give not less than 2 week’s notice to
the employee to take such leave.
7.2
Picnic day
Employees within the Local Authority Areas of Brisbane, Toowoomba, and Rockhampton subject to this Award, except caterers and pie vendors’ carters,
shall have a holiday for the purpose of holding their annual picnic, and such holiday shall be the second Wednesday of October in each year, and no work
shall be done by these employees on that day.
Provided that this day may be substituted for another day by agreement in writing between the Baking Industry Association of Queensland – Union of
Employers and the Union having due regard to the day observed as picnic day by the majority of employees in any establishment.
7.3
Sick leave
7.3.1
Entitlement
(a) Every employee, except casuals, is entitled to 8 days’ sick leave for each completed year of their employment with their employer.
(b) This entitlement will accrue at the rate of one day’s sick leave after each 6 weeks of employment to a maximum of 8 days in any one year.
(c) Part-time employees accrue sick leave on a proportional basis.
(d) Payment for sick leave will be made based on the ordinary number of hours that would have been worked by the employee if the employee
were not absent on sick leave.
(e) Sick leave may be taken for part of a day.
(f) 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 13 weeks’ absence from work through illness in any one year.
7.3.2
Employee must give notice
The payment of sick leave is subject to the employee promptly advising the employer of the employee’s absence and its expected duration.
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Evidence supporting a claim
An employee may be required to provide evidence of the illness to the employer’s satisfaction. When the employee’s absence is for more than 2 days the
employee is required to give their employer a doctor’s certificate or other reasonably acceptable evidence about the nature and approximate duration of
the illness.
7.3.4
Accumulated sick leave
An employee’s accumulated sick leave entitlements are preserved when:
(a) The employee is absent from work on unpaid leave granted by the employer;
(b) The employer or employee terminates the employee’s employment and the employee is re-employed within 3 months; or
(c) The employee’s employment is terminated because of illness or injury and the employee is re-employed by the same employer without
having been employed in the interim.
The employees accumulates sick leave entitlements whilst absent from work on paid leave granted by the employer.
7.3.5
Workers’ compensation
Where an employee is in receipt of workers’ compensation, the employee is not entitled to payment of sick leave.
7.4
Long service leave
All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2,
Part 3, sections 42–58 of the Act as amended from time to time.
7.5
Bereavement leave
7.5.1
Full-time and part-time employees
Full-time and part-time employees shall, on the death of a member of their immediate family or household in Australia, be entitled to paid bereavement
leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of
hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to the satisfaction of the employer.
7.5.2
Long-term casual employees
(a) A long-term casual employee is entitled to at least 2 days unpaid bereavement leave on the death of a member of the person’s immediate
family or household in Australia.
(b) A “long-term casual employee” is a casual employee engaged by a particular employer, on a regular and systematic basis, for several
periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under clause 7.5.2.
7.5.3
“Immediate family” includes:
(a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and
(b) A child or an Adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent,
grandparent, grandchild or sibling of the employee or spouse of the employee.
7.5.4
Unpaid leave
An employee with the consent of the employer, may apply for unpaid leave when a member of the employee’s immediate family or household in
Australia dies and the period of bereavement leave entitlement provided above is insufficient.
7.6
Family leave
The provisions of the Family Leave Award apply to and are deemed to form part of this Award.
7.6.1
It is to be noted that:
(a) part-time work can be performed by agreement in the circumstances specified in the Family Leave Award;
(b) a copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act.
7.6.2
The Family Leave Award also provides for the terms and conditions of leave associated with:
(a) Maternity leave
(b) Parental leave
(c) Adoption leave
(d) Special responsibility leave for the care and support of the employee’s immediate family or household.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
7.7
Public holidays
7.7.1
All work done by any employee on:
–
–
–
–
–
–
–
–
–
–
1895
the 1st January;
the 26th January;
Good Friday;
Easter Saturday (the day after Good Friday);
Easter Monday;
the 25th April (Anzac Day);
The Birthday of the Sovereign;
Christmas Day;
Boxing Day; or
any day appointed under the Holidays Act 1983, to be kept in place of any such holiday
will be paid for at the rate of double time and a-half with a minimum of 4 hours.
7.7.2
Labour Day
All employees covered by this Award are entitled to be paid a full day’s wage for Labour Day (the first Monday in May or other day appointed under the
Holidays Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any employee
concerned actually works on Labour Day, such employee will be paid a full day’s wage for that day and in addition a payment for the time actually
worked by the employee at one and a-half times the ordinary time rate of pay prescribed for such work with a minimum of 4 hours.
7.7.3
Annual show
All work done by employees in a district specified from time to time by the Minister by notification published in the Industrial Gazette on the day
appointed under the Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal
city or town, as specified in such notification of such district will be paid for at the rate of double time and a-half with a minimum of 4 hours.
In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an
ordinary working day that is to be treated as a show holiday for all purposes.
7.7.4
Double time and a-half
For the purposes of clause 7.7 “double time and a-half” means one and a-half day’s wages in addition to the employee’s ordinary time rate of pay or pro
rata if there is more or less than a day.
7.7.5
Stand down
Any employee, with 2 weeks or more of continuous service, whose employment has been terminated by the employer or who has been stood down by the
employer during the month of December, and who is re-employed in January of the following year, shall be entitled to payment at the ordinary rate
payable to that employee when they were dismissed or stood down, for any one or more of the following holidays, namely, Christmas Day, Boxing Day
and New Year’s Day.
7.7.6
Where an employee who has been in the employment of an employer for at least 8 weeks, is discharged or dismissed from their employment,
other than on account of dishonesty, drunkenness or disobedience, within 14 days of Good Friday, is subsequently re-employed within 14 days
of Good Friday, by the same employer, the employee shall be entitled to be paid for Good Friday, Easter Saturday (if Easter Saturday would
otherwise be a normal working day) and Easter Monday at ordinary rates.
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
NOTE: No provisions inserted in this Award relevant to this Part.
PART 9 – TRAINING AND RELATED MATTERS
9.1
Training
9.1.1
The parties to this Award recognise that in order to increase the efficiency and productivity of the enterprise and also the national and
international competitiveness of the industries covered by this Award, a greater commitment to training and skill development is required.
Accordingly, the parties commit themselves to:
(a) developing a more highly skilled and flexible workforce;
(b) providing employees with career opportunities through appropriate training to acquire additional skills; and
(c) removing barriers to the use of skills acquired.
9.2
Training rates
No deduction shall be made from wages when an employee is learning the round.
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
10.1
Wet weather and protective clothing
10.1.1
Employees required to work in the rain shall be paid an allowance of $1.31 per week to provide themselves with protective clothing.
10.1.2
The employer shall supply overalls and rubber gloves to employees required to wash and clean a vehicle.
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24 April, 2003
Uniforms
When employees are directed by the employer to wear a distinctive type of clothing and/or uniform in connection with their work then such distinctive
clothing and/or uniform shall be supplied by the employer free of cost to the employee.
10.3
Meals and housing
The employer shall not make any deduction from wages for meals or housing supplied to an employee.
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Preamble
Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are
advised to refer to sections 366, 372 and 373 of the Act as amended from time to time.
11.1
Right of entry
11.1.1
Authorised industrial officer
(a) An “Authorised industrial officer” is any Union official holding a current authority issued by the Industrial Registrar.
(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union.
11.1.2
Entry procedure
(a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as:
(i) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and
(ii) shows their authorisation upon request.
(b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent.
(c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry.
(d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a
trespasser.
11.1.3
Inspection of records
(a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act.
(b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee:
(i)
is ineligible to become a member of the Union; or
(ii)
is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or
(iii)
has made a written request to the employer that they do not want their record inspected.
(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer.
(d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by
an authorised industrial officer.
11.1.4
Discussions with employees
An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the Union:
(a) matters under the Act during working or non-working time; and
(b) any other matter with a member or employee eligible to become a member of the Union, during non-working time.
11.1.5
Conduct
An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry.
11.2
Time and wages record
11.2.1
An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period
for each employee, including apprentices and trainees:
(a) the employee’s award classification;
(b) the employer’s full name;
(c) the name of the award under which the employee is working;
(d) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and
details of work breaks including meal breaks;
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1897
(e) a weekly, daily or hourly wage rate – details of the wage rate for each week, day, or hour at which the employee is paid;
(f) the gross and net wages paid to the employee;
(g) details of any deductions made from the wages; and
(h) contributions made by the employer to a superannuation fund.
11.2.2
The time and wages record must also contain:
(a) the employee’s full name and address;
(b) the employee’s date of birth;
(c) details of sick leave credited or approved, and sick leave payments to the employee;
(d) the date when the employee became an employee of the employer;
(e) if appropriate, the date when the employee ceased employment with the employer; and
(f) if a casual employee’s entitlement to long service leave is worked out under section 47 of the Act – the total hours, other than overtime,
worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.
11.2.3
The employer must keep the record for 6 years.
11.2.4
Such records shall be open to inspection during the employer’s business hours by an inspector of the Department of Industrial Relations, in
accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act.
11.3
Union encouragement
Clause 11.3 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of
Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of an organisation of
employees that has the right to represent the industrial interests of the employees concerned.
11.3.1
Documentation to be provided by employer
At the point of engagement, an employer to whom this Award applies shall provide employees with a document indicating that a Statement of Policy on
Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by
each employee.
The document provided by the employer shall also identify the existence of a Union encouragement clause in this Award.
11.3.2
Union delegates
Union delegates and job representatives have a role to play within a workplace. The existence of accredited Union delegates and/or job representatives is
encouraged.
The employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their
duties.
11.3.3
Deduction of union fees
Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of Union fees for employees
who signify in writing to their employer, their desire to have such membership fees deducted from their wages.
11.4
Notice board
Each employer shall provide a notice board at the premises that may be used for the display of authorised Union notices.
11.5
Award to be posted
The employer must display a copy of this Award in a conspicuous place at the workplace where employees can easily read it.
SCHEDULE 1 – List of employers with 2nd tier Orders which to varying degrees modify the provisions of this Award
Name
Case No.
Tip Top Bakeries, Queensland
B810/88
Date of Order
14.10.88
Dated 13 March 2003.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Operative Date: 12 May 2003
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 130 – award review
FORESTRY EMPLOYEES’ AWARD – DEPARTMENT OF PRIMARY INDUSTRIES AND
THE DEPARTMENT OF NATURAL RESOURCES.
(No. AR47 of 2002)
DEPUTY PRESIDENT SWAN
COMMISSIONERS EDWARDS AND BECHLY
13 March 2003
AWARD REVIEW
After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the
following Award be made, as from 12 May 2003.
FORESTRY EMPLOYEES’ AWARD – DEPARTMENT OF PRIMARY INDUSTRIES 2003
PART 1 – APPLICATION AND OPERATION
1.1
Title
This Award is known as the Forestry Employees’ Award – Department of Primary Industries 2003.
1.2
Arrangement
Subject Matter
Clause No.
PART 1 – APPLICATION AND OPERATION
Title ...........................................................................................................................................................................................................................1.1
Arrangement .............................................................................................................................................................................................................1.2
Application of award ................................................................................................................................................................................................1.3
Date of operation ......................................................................................................................................................................................................1.4
Definitions.................................................................................................................................................................................................................1.5
Parties bound.............................................................................................................................................................................................................1.6
Area of operation ......................................................................................................................................................................................................1.7
PART 2 – FLEXIBILITY
Enterprise flexibility .................................................................................................................................................................................................2.1
Procedures to implement facilitative award provisions ...........................................................................................................................................2.2
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
Prevention and settlement of disputes ......................................................................................................................................................................3.1
Employee grievance procedures...............................................................................................................................................................................3.2
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
Contract of employment ...........................................................................................................................................................................................4.1
Part-time employment ..............................................................................................................................................................................................4.2
Casual employees .....................................................................................................................................................................................................4.3
Specified term Employees ........................................................................................................................................................................................4.4
Labour flexibility / incidental and peripheral tasks..................................................................................................................................................4.5
Anti-discrimination...................................................................................................................................................................................................4.6
Termination of employment .....................................................................................................................................................................................4.7
Introduction of change and redundancy ...................................................................................................................................................................4.8
Continuity of service – transfer of calling................................................................................................................................................................4.9
PART 5 – WAGES AND WAGE RELATED MATTERS
Classification definitions ..........................................................................................................................................................................................5.1
Wage rates.................................................................................................................................................................................................................5.2
Higher duties payment ..............................................................................................................................................................................................5.3
Payment of wages .....................................................................................................................................................................................................5.4
Allowances................................................................................................................................................................................................................5.5
Superannuation .........................................................................................................................................................................................................5.6
Method of determining rate of pay for public holidays and time lost through wet weather or sickness.......................................................................... 5.7
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK
Hours of work ...........................................................................................................................................................................................................6.1
Implementation of the 38 hour week .................................................................................................................................................................................... 6.2
38 Hour week – Procedures for discussions.............................................................................................................................................................6.3
Meal breaks...............................................................................................................................................................................................................6.4
Rest pauses................................................................................................................................................................................................................6.5
Overtime ...................................................................................................................................................................................................................6.6
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
Subject Matter
1899
Clause No.
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
Annual leave .............................................................................................................................................................................................................7.1
Sick leave ..................................................................................................................................................................................................................7.2
Long service leave ....................................................................................................................................................................................................7.3
Family leave..............................................................................................................................................................................................................7.4
Bereavement leave....................................................................................................................................................................................................7.5
Public holidays..........................................................................................................................................................................................................7.6
Special leave .............................................................................................................................................................................................................7.7
Jury service ...............................................................................................................................................................................................................7.8
Industrial relations education leave ..........................................................................................................................................................................7.9
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
Travelling expenses ..................................................................................................................................................................................................8.1
Travelling time..........................................................................................................................................................................................................8.2
Work away from headquarters .................................................................................................................................................................................8.3
PART 9 – TRAINING AND RELATED MATTERS
Training, learning and development.........................................................................................................................................................................9.1
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
Workplace health and safety...................................................................................................................................................................................10.1
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Right of entry ..........................................................................................................................................................................................................11.1
Time and wages record ...........................................................................................................................................................................................11.2
Award posting.........................................................................................................................................................................................................11.3
Union encouragement .............................................................................................................................................................................................11.4
Union delegates.......................................................................................................................................................................................................11.5
Leave reserved list ..................................................................................................................................................................................................11.6
1.3
Application of Award
1.3.1
This Award applies to those employees of the Director–General, Department of Primary Industries whose rates of pay are fixed by this Award
and to the Director–General, Department of Primary Industries as the employer in relation to such employees.
1.3.2
This Award does not apply to:
(a) Employees engaged under the Public Service Award – State
(b) Employees engaged under the Forest Resources Industry Award – State
(c) Employees engaged under the Engineering Award – State
(d) Employees specifically covered by any other Award, Industrial or Enterprise Agreement of the Commission.
1.4
Date of operation
This Award takes effect from 12 May 2003.
1.5 Definitions
1.5.1
The “Act” means the Industrial Relations Act 1999 as amended or replaced from time to time.
1.5.2
“Commission” means the Queensland Industrial Relations Commission.
1.5.3
“Union” means The Australian Workers’ Union of Employees, Queensland or the Federated Engine Drivers’ and Firemen’s Association of Australasia,
Queensland Branch, Union of Employees.
1.6
Parties bound
This Award is legally binding upon the employees as described in clause 1.3.1 and their employer, and upon the Unions and their Unions members.
1.7
Area of operation
For the purposes of this Award, the Divisions and Districts are as follows –
1.7.1
Divisions
(a) Northern Division – That portion of the State along or north of a line commencing at the junction of the sea–coast with the 21st parallel of south
latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due south to 22 degrees 30
minutes of south latitude; then by that parallel of latitude due west to the western border of the State.
(b) Mackay Division – That portion of the State within the following boundaries. Commencing at the junction of the sea–coast with the 21st parallel
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of south latitude; then by that parallel of latitude due west to 147 degrees of each longitude; then by that meridian of longitude due south to 22
degrees of south latitude; then by that parallel of latitude due east to the east–coast, then by the sea–coast northerly to the point of commencement.
(c) Southern Division – That portion of the State not included in the Northern or Mackay Division.
1.7.2
Districts
(a) Northern Division –
(i) Eastern District – That portion of the Northern Division along or east of 144 degrees 30 minutes of east longitude.
(ii) Western District – The remainder of the Northern division.
(b) Southern Division –
(i) Eastern District – That portion of the Southern division along or east of a line commencing at the junction of the southern border of the State
with 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of south latitude; then by that parallel of latitude
due west to 147 degrees of east longitude; then by that meridian of longitude due north to the southern boundary of the Mackay Division.
(ii) Western District – The remainder of the Southern Division.
PART 2 – ENTERPRISE FLEXIBILITY
2.1
Enterprise flexibility
2.1.1
As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible
working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage
consultative mechanisms across the workplace.
2.1.2
The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of
matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions.
2.1.3
Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being
submitted to the Commission in accordance with the requirements of Chapter 6 of the Act and is to have no force or effect until approval is
given.
2.2
Procedures to implement facilitative award provisions
Wherever facilitative provisions appear in this Award which allow for determination of the conditions of employment by agreement between the
employer and the Union or the employer and the majority of employees affected, the following procedures will apply:
(a) Facilitative Award provisions can be negotiated between management and employees who are directly affected by such proposals or
between management and the Union depending upon the particular Award provisions.
(b) Employees may be represented by their local Union delegate/s and will have the right to be represented by their local Union official/s.
(c) Facilitative Award provisions can only be implemented by agreement.
(d) In determining the outcome from facilitative provisions, neither party should unreasonably withhold agreement.
(e) Agreement is defined as obtaining consent of greater than 50% of employees directly affected or of the Union depending upon the particular
Award provisions.
(f) Where a provision refers to agreement by the majority of employees affected, all employees directly affected will be consulted as a group.
Should the consultation process identify employees with specific concerns which relate to either equity or occupational health and safety
issues such concerns may be catered for on an individual basis subject to operational requirements.
(g) Any agreement reached must be documented, and will incorporate a review period.
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
3.1
Prevention and settlement of disputes
3.1.1
The objectives of this procedure are the avoidance and resolution of any disputes over matters covered by this Award, by measures based on the
provision of information and explanation, consultation, co–operation and negotiation.
3.1.2
Subject to legislation, while the dispute procedure is being followed, normal work is to continue except in the case of a genuine safety issue.
The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed. No party will be prejudiced as
to the final settlement by the continuation of work.
3.1.3
There is a requirement for management to provide relevant information and explanation and consult with the appropriate employee
representatives.
3.1.4
In the event of any disagreement between the parties as to the interpretation or implementation of this Award, the following procedures will
apply:
(a) The matter is to be discussed by the employee’s Union representative and/or the employee/s concerned (where appropriate) and the
immediate supervisor in the first instance. The discussion should take place within 24 hours and the procedure should not extend beyond 7
days;
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(b) If the matter is not resolved as per clause 3.1.4(a), it will be referred by the Union representative and/or the employee/s to the appropriate
management representative who will arrange a conference of the parties to discuss the matter. This process should not extend beyond 7
days;
(c) If the matter remains unresolved it may be referred to the chief executive officer or nominee for discussion and appropriate action. This
process should not exceed 14 days;
(d) If the matter is not resolved then it may be referred by either party to the Commission for conciliation.
3.1.5
Nothing contained in this procedure will prevent Unions or the Queensland Government from intervening in respect of matters in dispute, should
such action be considered conducive to achieving resolution.
3.2
Employee grievance procedures
3.2.1
The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion; to reduce the
level of disputation; and to promote efficiency, effectiveness and equity in the workplace.
3.2.2
This procedure applies to all industrial matters within the meaning of the Act.
3.2.3
Stage 1: In the first instance the employee will inform such employee’s immediate supervisor of the existence of the grievance and they will
attempt to solve the grievance. It is recognised that an employee may exercise the right to consult such employee’s Union representative during
the course of Stage 1.
3.2.4
Stage 2: If the grievance remains unresolved, the employee will refer the grievance to the next in line management (“the manager”). The
manager will consult with the parties. The employee may exercise the right to consult or be represented by such employee’s Union
representative during the course of Stage 2.
3.2.5
Stage 3: If the grievance is still unresolved, the manager will advise the chief executive and the aggrieved employee may submit the matter in
writing to the chief executive of the organisation if such employee wishes to pursue the matter further. If desired by either party, the matter will
also be notified to the Union.
The chief executive will ensure that:
(a) The aggrieved employee or such employee’s Union representative has the opportunity to present all aspects of the grievance;
(b) The grievance will be investigated in a thorough, fair and impartial manner.
The chief executive may appoint another person to investigate the grievance. The chief executive may consult with the Union in appointing an
investigating employee. The appointed person will be other than the employee’s supervisor or manager.
If the matter is notified to the Union, the investigating employee will consult with the Union during the course of the investigation. The chief
executive will advise the employee initiating the grievance, such employee’s Union representative and any other employee directly concerned of
the determinations made as a result of the investigation of the grievance.
The chief executive may delegate such chief executive’s grievance resolution powers under clause 3.2 to a nominated representative.
3.2.6
The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise:
Stage 1 Discussions should take place between the employee and such employee’s supervisor within 24 hours and the procedure will not extend
beyond 7 days.
Stage 2 Not to exceed 7 days.
Stage 3 Not to exceed 14 days.
3.2.7
If the grievance is not settled the matter will be referred to the Public Service Commissioner or the Commission by the employee or the Union,
as appropriate, in accordance with the respective jurisdictions of the tribunals.
3.2.8
Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue.
The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party will be
prejudiced as to the final settlement by the continuation of work.
3.2.9
Where the grievance involves allegations of sexual harassment, an employee may commence the procedure at Stage 3.
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
4.1
Contract of employment
At the point of engagement of each employee, the employer is to specify whether the engagement is on a full-time, part-time, specified term or casual basis and
whether any other conditions such as probation apply.
4.2
Part-time employment
4.2.1
An employer may employ part-time employees in any classification in this Award.
4.2.2
A part-time employee is one who:
(a) Has been engaged to work regular hours each week in accordance with clause 4.1; and
(b) Works ordinary daily working hours continuously inclusive or exclusive of meal times according to operational requirements; and
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(c) Is employed to work not less than 17 hours per week and not more than 32 ordinary hours per week; and
(d) Receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
4.2.3
At the time of engagement, the employer and the employee will agree on the number of ordinary hours to be worked per week. The agreed
number of ordinary hours per week may only be amended by mutual agreement.
4.2.4
All time worked outside of the ordinary hours of work as mutually arranged in accordance with clause 4.2.3 will be overtime and paid at the relevant
rates prescribed in the Award.
4.2.5
The spread of ordinary working hours for a part-time employee are the same as those prescribed for a full-time employee under this Award.
4.2.6
The public holiday provisions of the Award will apply to:
(a) Part-time employees with payment only to be made for hours actually worked; and
(b) A part-time employee who usually works on a day of the week on which a public holiday falls and who is not required to work on that day will be
paid for the hours which would otherwise have been worked on that day.
4.2.7
All other provisions of the Award relevant to full-time employees will apply to part-time employees.
4.3
Casual employees
4.3.1
Definition
A casual employee is an employee, other than a part-time employee, who is engaged by the hour to work less than the ordinary weekly working hours of a fulltime employee.
4.3.2
Rate of Pay
A casual employee is paid 23% in addition to the ordinary hourly Award rate of pay for the class of work upon which the employee is engaged.
(a) Each daily engagement stands alone and a minimum payment of 2 hours’ work is to be made in respect to each engagement; and
(b) A casual employee is entitled to the provisions of overtime, weekend penalty rates, payment for work performed on public holidays, meal breaks,
rest pauses and payment of any applicable Award allowances.
(c) Except in accordance with clauses 4.3.2(a) and 4.3.2 (b), a casual employee is not entitled to any other Award payment.
4.4
Specified term employees
A specified term employee may be either:
(a) A full-time or part-time employee (other than a casual) who is employed for a specified period of time or for a specified task or tasks; and
(b) Is entitled to the same Award provisions as a full-time employee, excluding the provisions of clause 4.7.
4.5
Labour flexibility/incidental and peripheral tasks
4.5.1
The employer may direct an employee to carry out such duties as are within the limits of the employee’s skill and competency, consistent with
the classification structure of this Award, provided that such duties are not designed to promote de-skilling.
4.5.2
All directions issued by the employer are to be consistent with the employer’s responsibilities to provide a safe and healthy working
environment, in accordance with the Workplace Health and Safety Act and Regulations 1999.
4.5.3
The parties to this Award are committed to co-operating positively to increasing the efficiency, productivity, and competitiveness of the
employer, and to enhance the career opportunities and job security of its employees.
4.5.4
The parties agree in principle that the Award skill level definitions and agreed classification structures will be more suitable for the needs of the
employer, generally more broadly based, more truly reflective of the different skill levels of the tasks now performed, and which will incorporate
the ability for an employee to perform a wider range of duties where appropriate, e.g. plant operating. This ability is limited to the extent of their
training, accreditation and licensing requirements.
4.6
Anti–discrimination
4.6.1
It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the
Industrial Relations Act 1999 as amended from time to time, which includes:
(a) Discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion,
political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of
the above attributes.
(b) Sexual harassment; and,
(c) Racial and religious vilification.
4.6.2
Accordingly in fulfilling their obligations under the prevention and settlement of disputes clause 3.1, the parties to this Award must take
reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.
4.6.3
Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been
involved in a complaint of unlawful discrimination or harassment.
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Nothing in clause 4.6 is to be taken to affect:
(a) Any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti–Discrimination Act 1991;
(b) An employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and
Equal Opportunity Commission/Anti-Discrimination Commission Queensland.
4.7
Termination of employment
4.7.1
Statement of employment
The employer will, in the event of termination of employment, provide upon request to the employee who has been terminated a written statement specifying the
period of employment and the classification or type of work performed by the employee.
4.7.2
Termination by employer
(a) In order to terminate the employment of an employee, the employer is to give the following notice:
Period of Continuous Service
Period of Notice
not more than 1 year...............................................................................................1 week
more than 1 year, but not more than 3 years..........................................................2 weeks
more than 3 years, but not more than 5 years ........................................................3 weeks
more than 5 years ...................................................................................................4 weeks
(b) In addition to the notice in clause 4.7.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years’
continuous service, shall be entitled to an additional week’s notice.
(c) Payment in lieu of notice is to be made if the appropriate notice is not given:
Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
(d) The period of notice in clause 4.7.2 does not apply to casual employees or specified term employees, nor in the case of dismissal for misconduct or
other grounds that justify instant dismissal.
(e) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned is to be used.
4.7.3
Notice of termination by employee
One week’s notice of termination is required to be given by the employee to the employer.
If an employee fails to give notice the employer has the right to withhold monies due to the employee up to a maximum amount equal to the ordinary time rate
for the period of notice.
4.7.4
No notice is required to be given by the employer or the employee to terminate the hourly contract of employment of a casual employee.
4.7.5
An employee whose employment is terminated according to clause 4.7.1 is entitled to salary and all other monies due up to the time of such
termination.
4.7.6
The employer is not to offset notice of termination against any period of annual leave or part thereof.
4.8
Introduction of change and redundancy
Except as provided for in clause 4.7 the employer will observe the terms and conditions of the Termination of Employment, Introduction of Changes and
Redundancy Model Clause contained in the decision of the Full Bench of the Commission incorporated in the transcript of proceedings of 7 November 2001, in
matters following the State Wage Case of B882 of 1999 and B888 of 1999, in relation to Principle 12 Award Review (Case B1733 of 1999).
The provisions of the clause relating to redundancy will not apply to the extent that the provisions of the redundancy arrangements are contained in a
Directive issued by the Public Service Commissioner pursuant to section 34 of the Public Service Act 1996.
4.9
Continuity of Service – transfer of calling
In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67–71 of the Act as amended from time to
time.
PART 5 – WAGES AND WAGE RELATED MATTERS
5.1
Classification definitions
The following classification standards apply in the Award.
5.1.1
Forestry employee level 1 – 87.5%
(a) General features of the role
At this level employees will have limited or no prior experience in forestry related activities. This level is used to assess the employees’ skill level
and physical capacity to perform the relevant work. The employee remains at this level for up to a maximum period of 3 months and undertakes
induction training and competency assessment and works under direct supervision.
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The training provided familiarises the employee with the organisational work environment, Workplace Health and Safety regulations and practices,
Award and employment conditions and management expectations of the role. The employee will be exposed to a broad range of forestry
techniques of a basic nature.
(b) Knowledge and skill level
The skill level is introductory or of a basic nature involving manual tasks which are fully prescribed and are usually performed in response to
standardised instructions or requests. There is only limited scope for interpretation.
No formal qualifications are required.
The minimum level of interpersonal skills required to enable effective communications with other staff and possibly the public, involves
demonstrating the use of common language and literacy skills. These skills are required when undertaking work involving the comprehension of
written and oral instructions.
(c) Work and skill range
The type of work typically performed by employees involves manual handling and use of hand held tools. The routines, methods and procedures
to be followed, in carrying out this work, are at a level consistent with skills acquired. Direct guidance is provided if problems arise.
Employees will be required to work in a range of areas including; but not limited to:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
Appointment to Level 2 is determined by the success of the employee in meeting the necessary competencies of Level One. Subject to attaining
the necessary competencies of Level One, progression to Level 2will occur within a period of 3 months.
5.1.2
Forestry employee level 2 – 90%
(a) General features of the role
Upon appointment to this level an employee is expected to undertake a range of general duties, at a basic level, relevant to the workplace. Work
routines, methods and procedures are clearly established and there is limited scope for deviation.
Training, both on and off the job, is a dominant feature of this level.
Work may initially be performed under close supervision, however, this supervision will reduce as experience increases. The employee may work
either individually or in a team environment and will be responsible for assuring the quality of own work performed.
Employees at this level will be required to assist other employees at this or other levels to the extent of their experience or training.
(b) Knowledge and skill level
The necessary knowledge is of a basic level for a range of repetitive tasks governed by established procedures, specific guidelines and standardised
instructions. Employees will undertake a range of functions requiring the practical application of acquired skills, including driving light motor
vehicles, motorcycles and operating small mechanically driven items of equipment and applying field related chemicals.
Supervisory skills are not required.
No formal qualifications are required at this level. Technical skills, not requiring trade or equivalent qualifications may need to be acquired in
order to safely and effectively operate basic machinery to perform routine and standard functions.
The minimum level of interpersonal skills required is to enable effective communications at a basic level with other staff and with the public. This
involves demonstrating the use of common language and literacy skills. These skills are required when undertaking work involving the
comprehension of written and oral instructions.
(c) Work and skill range
The type of work typically performed by employees will require skills in manual handling, use of hand held equipment that is either manually
operated, power operated or compressor driven, the application of chemicals and general field activities. The specific needs are reflected in the
Workplace statements that are represented in such areas as:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
In addition to demonstrating Level 2 competencies, employees accessing Level 3 need to have met the necessary Level 3 competency levels. The
Level 3 employee is expected to perform work at a higher level of proficiency than Level 2. Progression is determined on the basis of
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confirmation of required competencies, the employee’s willingness to assume additional or wider duties, and the business needs of the
organisation.
5.1.3
Forestry employee level 3 – 92.5%
(a) General features of the role
An employee appointed to this level is expected to demonstrate a reasonable standard of proficiency in applying established techniques within a
particular discipline. The employee will need to have an understanding of the agency’s function coupled with detailed knowledge of the work
units operations, practices and procedures to perform competently.
The employee will work under direct supervision either individually or in a team environment and will be responsible for assuring the quality of
own work performed. Work will be defined but there is some scope for the exercising of initiative in the application of established work practices
and procedures. Problems encountered can generally be solved by reference to supervisors or documented methods and instructions.
Employees at this level will be required to assist other workers at this or other levels to the extent of their experience or training.
(b) Knowledge and skill level
Skills required and used in Level 3 are of a basic level and build on the competencies developed in Level 2 and are an extension of Level 2 skills in
both breadth and complexity. Employees at this level may be required to drive trucks up to 2 tonne carrying capacity and operate small motorised
items of plant and equipment. Knowledge and skills attained through on the job training will provide employees with the necessary expertise to
effectively carry out or participate in specialised activities (e.g. road construction, mechanised planting, research projects).
Supervisory skills are not required.
The interpersonal skills required are of a level that allows effective communication with other staff or public. In addition the ability to interpret
data and convey information accurately and concisely may be expected.
(c) Work and skill range
The type of work typically performed by employees is of a specialised nature where knowledge and skills attained through on the job training can
be utilised. The specific needs are reflected in the workplace statements that are represented in such areas as:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
In addition to demonstrating a Level 3 competency level, employees accessing Level 4 need to have successfully obtained the necessary Level 4
competencies. The Level 4 employee is expected to perform a range of work at a higher level of proficiency than Level 3. Progression is
determined on the basis of confirmation of required competencies, the employee’s willingness to assume responsibilities at Level 4, and the
business needs of the organisation.
5.1.4
Forestry employee level 4 – 97.5%
(a) General features of the role
An employee appointed to this level is expected to have a good knowledge and understanding of a variety of specialised Agency work activities or
possess specialist skills needed to operate or drive items of heavy plant and equipment.
At this level employees may be required to undertake nominated activities of a specialised nature and be responsible for assuring the quality and
efficiency of work performed. High levels of initiative in accomplishing objectives using established work practices and procedures may be
required.
An employee at this level will work either independently or under supervision for those aspects of work which involve new or sophisticated
techniques or relate to areas outside this level normal span of activity.
No formal qualifications are required.
Employees at this level will be required to assist other employees at this or other levels to the extent of their experience or training.
Limited supervision of a work unit or function and the requirement to provide on-the-job training is a feature of this level.
(b) Knowledge and skill level
Skills required and used in Level 4 build on the competencies developed in Level 3 and are an extension of Level 3 skills in complexity.
Knowledge and skills are obtained through on–the–job training or structured training provided internally or externally by accredited trainers.
Employees at this level may also be required to hold the necessary licences/certificates to drive or operate heavy plant and equipment, e.g. trucks
from 2 tonne to 10 tonne carrying capacity, mobile cranes with a lifting capacity up to 7 tonnes and forklifts. Employees at this level may be
required to obtain a Certificate for the mixing of field related chemicals.
A feature of this level is the employees skill and ability to interpret guideline material and documented procedures and apply a judgement in the
determination of a solution.
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(c) Work and skill range
The type of work typically performed by employees is of a specialised nature where knowledge and skills attained through on the job training can
be utilised. The specific needs are reflected in the workplace statements that are represented in such areas as:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
In addition to demonstrating a Level 4 competency level, employees accessing Level 5 need to have successfully undertaken structured training in
defined areas such as leadership, small team supervision and work planning that develop Level 4 competencies to a post trade qualification
equivalent. The Level 5 employee is expected to perform a range of work at a higher level of proficiency than Level 4. Progression is determined
on the basis of confirmation of required competencies at a Level 5 standard, the business needs of the organisation and the employee’s willingness
to assume additional or wider duties.
5.1.5
Forestry employee level 4A – 100%
(a) General features of the role
An employee appointed to this level is expected to have a thorough understanding of specialised Agency work activities or possess specialist skills
needed to operate or drive large items of heavy plant and equipment including:
●
●
●
●
●
●
●
●
A pneumatic tyred tractor with powered attachments from 37 to 112Kw brake power.
A crawler tractor with powered attachments up to 18,000 kilograms shipping weight.
A grader with engine capacity up to 35 kilowatts.
A front end loader with bucket capacity up to 35 kilowatts.
A front end loader with bucket capacity up to 2.25 cubic metres.
A backhoe.
A mobile crane with a lifting capacity over 7 tonnes.
A road roller up to 20 tonne.
At this level employees may be required to undertake nominated activities of a more specialised nature than expected at Level 4. Employees will
be responsible for assuring the quality and efficiency of work performed. The levels of initiative expected in accomplishing objectives, using
established work practices and procedures, will be higher than expected of a Level 4 employee.
An employee at this level will work independently with specific guidance provided when new technology is introduced.
The qualifications required at this level are those of a Trade Certificate or those necessary to operate the items of heavy plant and equipment
specified in the Award classification standard for Level 4A employees.
Employees at this level will be required to assist other employees at this or other levels to the extent of their experience and training.
Limited supervision of a work unit or function to a higher degree than that required of a Level 4 employee is expected at this level.
(b) Knowledge and skill level
Skills required and used in Level 4A are acquired either by attaining a Trade Certificate or by building on the competencies developed in Level 4
and are an extension of Level 4 skills in complexity. Specialised knowledge and skills are attained through on the job training or structured
training provided internally or externally by accredited trainers.
A feature of this level is the employees skill and ability to interpret guideline material and documented procedures and apply a judgement in the
determination of a solution. The skill and ability required is of a higher degree that that expected of a Level 4 employee.
Furthermore, employees may be required to obtain a restricted licence to facilitate the application of field related chemicals by power operated
equipment.
(c) Work and skill range
The type of work typically performed by employees is of a specialised nature where knowledge and skills attained through on the job training can
be utilised. The specific needs are reflected in the workplace statements (position descriptions) that are represented in such areas as:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
In addition to demonstrating Level 4A competencies, employees accessing Level 5 need to have successfully undertaken structured training in
defined areas such as leadership, small team supervision and work planning that develops Level 4A competencies to a post trade qualification
equivalent.
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The Level 5 employee is expected to perform a range of work at a higher level of proficiency than Level 4A. Progression is determined on the
basis of confirmation of required competencies of a Level 5 standard, the business needs of the organisation and the employee’s willingness to
assume additional or wider duties.
5.1.6
Forestry employee level 5 – 105%
(a) General features of the role
An employee appointed to this level is expected to perform a range of activities that are amended and may include supervising skilled and non–
skilled staff. The employee would be required to supervise and co–ordinate staff and to provide guidance and assistance to achieve specific
outputs.
Employees at this level may be required to display a degree of initiative to complete work program and accomplish objectives. This may involve
limited decision making within the appointees level of skill and training and interpreting plans and sketches to enable the completion of roadworks
and earthworks by items of plant including:
●
●
●
●
A pneumatic tyred tractor with powered attachments over 112Kw brake power
A crawler tractor with powered attachments over 18,000 kilograms shipping weight
A grader with engine capacity over 35 kilowatts and,
A front end loader with bucket capacity over 2.25 cubic metres.
Supervision of work teams would include the provision of on-the-job training and assisting in assessment of employees undertaking a structured
training program. In addition to providing supervision, Level 5 employees receive general guidance and advice as to operational requirements and
deadlines to achieve results in line with Agency operating goals.
Employees at this level will be required to assist other employees at this or other levels to the extent of their experience and training.
(b) Knowledge and skill level
Specialised knowledge of Agency related conventional methods and techniques is obtained through on–the–job training or structured training
provided internally or externally by accredited providers. A good knowledge of procedures relating to the application of general field techniques is
essential so that on-the-job training administered by this level employee is effective.
Communication and interpersonal skills are of a level that allows employees to communicate effectively and have the ability to handle conflict
situations.
Employees at this level may be required to drive trucks with a carrying capacity over 10 tonne and specialised Agency fire tankers.
(c) Work and skill range
The type of work typically performed by employees is of a specialised nature where knowledge and skills attained through on-the-job training can
be utilised. The specific needs are reflected in the workplace statements that are represented in such areas as:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
In addition to demonstrating a Level 5 competency level, employees accessing Level 6 are expected to successfully meet the necessary Level 6
competency levels and are required to perform a range of work at a higher level than Level 5. Progression is determined on the basis of
confirmation of required competencies, the business needs of the organisation, and the employee’s willingness to assume additional or wider
duties.
5.1.7
Forestry employee level 6 – 110%
(a) General features of the role
Appointment to this level is in accordance with the Agency’s needs as determined by advertising from time to time.
An employee appointed to this level is expected to undertake a range of work that is more specialised than Level 5 as a result of organisational
requirements and additional training.
Employees at this level have specialised knowledge and skills and may be required to operate in a field, office or laboratory environment.
Operations may vary from the supervision of a number of multi-disciplined work teams performing a diversity of duties on a number of sites to
managing a wide range of office and stores functions. The provision of specialist advice or technical skill to enable the achievement of project
goals is a major feature of roles at this level.
Responsibilities at this level will reflect the size and complexity of agency operations and will normally entail input into the allocation of resources
within constraints imposed by management.
Employees at this level will work under general guidance with some degree of discretion permitted within the boundaries of broad guidelines to
achieve organisational goals. On-the-job training, monitoring of work flows and the provision of assistance in developing local strategic plans are
an integral part of the role. Assessment and review of the standard of work performed by subordinate staff is also a requirement of this level.
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Ability to provide guidance and assistance in conflict situations and communicate effectively with members of the public and professional,
technical and general operations staff is an important requirement of this level. This includes detecting and rectifying problems requiring
knowledge of a specialised area.
Knowledge and awareness of Agency operations, as well as a detailed knowledge of major activities of various work units, will be required.
Employees of this level will be required to assist other employees at this and other levels to the extent of their experience and training.
Employees at this level exercise discretion and decision making within the level of training and skills.
(b) Knowledge and skill level
A knowledge of the standards and procedures for the various complex Agency activities will be required, with appointees to this level responsible
for their own work as well as diverse work units.
Proven ability to prepare records and reports that convey information accurately and concisely is a requirement of this level. General office and
stock control skill may also be required.
Input will be required into the preparation and implementation of plans used in Agency work including recreation, research and works programs.
There is also a requirement to interpret legislation, regulations and other guidance material relating to the operations and functions of work unit
areas.
In addition, communication and interpersonal skills at this level are of an intermediate nature which requires an ability to handle conflict situations
and the ability to ensure the attainment of Agency goals through the allocation of resources.
Employees at this level may be required to operate small specialised items of mechanical/electronic equipment.
(c) Work and skill range
The type of work typically performed by employees is of a specialised nature where knowledge and skills attained through on-the-job training,
short courses or structured training provided internally or externally by Higher Education institutions can be utilised. The specific needs are
reflected in the workplace statements that are represented in such areas as:
●
●
●
●
●
●
●
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
(d) Progression
In addition to demonstrating a Level 6 competency level, employees accessing Level 7 are expected to successfully meet the necessary Level 7
competency levels and are required to perform a range of work at a higher level than Level 6. Progression is determined on the basis of
confirmation of required competencies, the business needs of the organisation, and the employee’s willingness to assume additional or wider
duties.
5.1.8
Forestry employee level 7 – 115%
(a) General features of the role
Appointment to this level is in accordance with the Agencies needs as determined by advertising from time to time. An employee appointed to this
level is expected to perform a range of work that is more specialised, accountable and responsible than Level 6 as a result of organisational
requirements and additional training.
Employees at this level have advanced specialist knowledge and skills and may be required to operate in a field or laboratory environment. This
may involve the supervision of a number of multi-disciplined work teams performing a diversity of duties on a number of sites. The provision of
specialist advice or technical skills to enable the achievement of project goals is an essential feature of roles at this level.
Employees at this level may also be required to train and assess operators of major items of plant and equipment and instruct operators in the
effective servicing of equipment. They may also be required to obtain the necessary accreditation to enable them to issue “Certificates of
Competency” to Agency plant operators.
Responsibilities at this level will reflect the size and complexity of agency operations and will normally entail significant input into the allocation
of resources within constraints imposed by management.
Employees at this level will receive limited direction with a significant degree of discretion permitted within the boundaries of broad guidelines to
achieve organisational goals. On-the-job training, monitoring of work flows and the provision of assistance in developing local strategic plans are
an essential part of the role. Assessment and review of the standard of work performed by subordinate staff is also a requirement of this level.
Demonstrated ability to provide guidance and assistance in conflict situations and an ability to communicate effectively with members of the
public and professional, technical and general operations staff is an essential requirement of this level. This involves detecting and rectifying
problems requiring knowledge of a specialised area.
Knowledge and awareness of agency operations, as well as a detailed knowledge of major activities of various work units, will be required.
Employees of this level will be required to assist other employees at this and other levels to the extent of their experience and training.
Employees at this level exercise discretion and decision making within their level of training and skills.
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(b) Knowledge and skill level
Demonstrated knowledge of the standards and procedures for the various complex agency activities is vital, with appointees to this level
responsible for their own work as well as diverse work units.
A demonstrated knowledge of modern agricultural and earthmoving equipment operations and repair is necessary to ensure quality servicing and
operating of major plant items.
A proven ability to prepare records and reports that convey information accurately and concisely is an essential requirement of this level.
Input will be required into the preparation and implementation of plans used in agency projects including recreation, research and work programs.
There is also a requirement to interpret legislation, regulations and other guidance material relating to operations and functions of work unit areas.
In addition, communication and interpersonal skills at this level are of an advanced nature which requires demonstrated ability to handle conflict
situations and the ability to ensure the attainment of project goals through the allocation of resources.
Employees at this level may be required to secure a license to apply chemicals in a field situation or operate small specialised items of
mechanical/electronic equipment.
(c) Work and skill range
The type of work typically performed by employees is of a specialised nature where knowledge and skills attained through on the job training,
short courses or structural training provided internally or externally by Higher Education institutions can be utilised. The specific needs are
reflected in the workplace statements that are represented in such areas as:
●
●
●
●
●
●
●
5.1.9
General Field Operations
Research
Office
Nursery
Road Construction and Maintenance
Workshop
Surveys.
Progression arrangements
Progression through the classification structure is based on the organisation’s business needs and the employee’s skill development. This is reflected in
the following situations:
(a) An employee is appointed to a vacancy in an existing role at a higher level.
(b) An employee is appointed to a vacancy in a higher level when a new role is created.
(c) Additional employees are appointed to perform in existing roles of a higher level due to business needs.
5.2
Wage rates
5.2.1
An employee’s Award rate of pay in the Southern Division, Eastern District for each Wage Level is set out below and is to be paid for all
purposes of the Award.
Forestry Employee
Level 1
Level 2
Level 3
Level 4
Level 4A
Level 5
Level 6
Level 7
Equivalent
FW Pay Scale
FW11
FW21
FW22
FW31
FW32
FW33
FW41
FW42
Relativity
%
Total Minimum
Rate Per Week
$
87.5
90
92.5
97.5
100
105
110
115
471.10
481.50
491.90
512.80
525.20
546.10
566.90
585.80
(a) 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. 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 Principles or under the current Statement of Principles, excepting those resulting from enterprise
agreements, are not to be used to offset arbitrated wage adjustments.
(b) Overaward Payment – ‘Overaward’ payment is defined as the amount which an employee would receive in excess of the minimum Award wage
as prescribed in this Award for the classification in which such employee is engaged which applied immediately prior to the date of operation of
this amendment.
This definition excludes overtime, penalty rates, expense related allowances, industry allowances, disability allowances, vacation allowances,
special rates or allowances, responsibility allowances, or any other ancillary payments of a like nature described by this Award.
(c) The percentage relativities column relates to percentages applying before the application of the arbitrated safety net adjustment made in accordance
with the February 1994 Review of Wage Fixing Principles.
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Divisional and district parities
In addition to the rates of wages set out in this Award the following amounts will be paid to employees, employed in the following Divisions and
Districts:
Per Day
$
Northern Division, Eastern District
Northern Division, Western District
Mackay Division
Southern Division, Western District
5.3
0.21
0.65
0.18
0.21
Higher duties payment
Employees temporarily called upon to perform all, or a substantial part of a position at a higher level within Levels FE2 to FE5, will, subject to
certification by the employee’s supervisor, attract a pay rate applicable to the higher level. Employees must have undertaken work at the higher level for
a minimum of one working day.
Employees temporarily called upon to perform all, or a substantial part of a position at a higher level within Levels FE6 or FE7, will, subject to
certification by the employee’s supervisor, attract a pay rate applicable to the higher level. Employees must have undertaken work at the higher level for
a minimum of 3 working days.
5.4
Payment of wages
5.4.1
Wages may be paid either weekly or fortnightly and may at the discretion of the employer be paid by electronic funds transfer.
5.4.2
Key principles
(a) Payment is determined by the skill level of the role, not the tasks undertaken. Therefore, payment does not automatically vary when particular
tasks or new tasks are performed. Employees will on occasion perform work of a similar nature and because of the different skill levels required,
attract different classification rates. This principle adheres to the concepts of competency based remuneration and payment for skills required.
(b) An employee’s work role will be outlined in a position description. The position descriptions will be graded against the generic role and skill
standards as specified in the classification structure.
(c) All employees will be attached to position descriptions. This will be either on an individual or group basis, dependent on the nature of the role and
the business needs.
5.4.3
Appointment process
Employees are attached to position descriptions through an appointment selection process when vacancies occur or new roles are created. Employees are
selected in accordance with the provisions outlined in the Public Service Act 1996. Competency assessment will form part of an agreed skill evaluation
process when appointments are being determined.
5.4.4
Classification process
Where work is restructured to meet business needs or operations expanded into new areas, position descriptions will be created and graded according to
the Award classification standards. The position descriptions will detail the role context and the specific competencies required of employees at the
Divisional or Unit level of the organisation.
5.5
Allowances
5.5.1
Disability allowance
All employees working in the open and thereby being subject to adverse conditions such as working in isolated and undeveloped locations, exposure to
heat, cold, wind, wetness, dust, mud, dirty conditions, and lack of amenities are to be paid an allowance at the rate of $19.80 per week which will be
treated as part of the ordinary weekly wage for the purposes of this Award.
5.5.2
Special allowance
In addition to the wage rates prescribed in this Award all employees will be paid a special allowance of $20.80 per week which is to be treated as part of
the ordinary weekly wage for the purposes of this Award.
Such allowance recognises factors specific to the forestry industry including working in burnt-off areas, climbing trees, working from ladders, handling
and distributing fertilisers, working in water, operating of and planting from planting machines, and stacking burnt logs.
5.5.3
First-aid allowance
An employee holding a current certificate in first-aid issued by the Queensland Ambulance Service or equivalent qualification who is appointed in
writing by the employer to perform first-aid duties will be paid an allowance of $10.70 per week in addition to the ordinary rate of pay.
This allowance is only payable where the employee is appointed for 3 days or more in any week.
5.5.4
Employees using their own vehicle
Employees required to use their own vehicle in the course of their employment are to be paid an allowance at the rate of 50.0 cents per kilometre for the
actual distance travelled.
5.5.5
Live sewer work
(a) Employees who on any day are required to remove or release blockages in septic lines and/or toilet connections will be paid for not less than 4
hours at the rate of time and a-half.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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(b) Clause 5.5. 1 Disability allowance do not apply to employees engaged on live sewer work.
5.5.6
Wet conditions
(a) All time lost through wet weather will be paid for, provided employees turn up at work and hold themselves in readiness. The supervising officer,
under whose direction the employees are working, is to decide whether or not it is too wet to work.
When employees are prevented by wet weather from following their usual avocation, unless the employees are willing to perform during
such wet weather any work the employer may direct them to do they will not be entitled to payment for such time lost.
(b) Work in the rain – Where practicable suitable water proof clothing will be supplied by the employer to the employees who are required to work in
the rain.
Despite the above provisions, if in the performance of work the employee gets their clothes wet, the employee will be paid double time for
all work performed, and such payment will continue until the employee is able to change into dry clothing or until that person ceases work,
whichever is the earlier.
5.5.7
Camp allowance/accommodation
(a) Where for the performance of their work it is necessary for an employee to live in a camp provided by the employer either because there are
no reasonable transport facilities to enable the employee to travel to and from home each day or because the employee is directed by the
employer to live in such camp. The employee will be paid a camping allowance of $13.80 for each day (including Saturday and Sunday)
that the employee lives in camp.
(b) When an employee lives in a camp during the week and returns home for a week-end or part of a week-end but is not absent from the job for
any of the ordinary working hours, the employee will be paid camping allowance for 5 days.
An employee who returns home or is otherwise absent from camp for not more than 2 nights during such week and is not absent from the
job will nevertheless be deemed to live in camp during the week and will be entitled to the allowance for 5 days.
(c) The camp will be provided free of charge by the employer, with accommodation of a standard which is in accordance with the Camp
Allowance/Accommodation provisions outlined in the Civil Construction, Operations and Maintenance General Award – State 2003.
(d) Camp allowance in accordance with clause 5.5.7 will not be payable to those employees occupying barracks as their permanent place of
residence.
(e) Where employees claim payment of camp allowance, the following provisions will apply:
(i)
The employee will provide the employer with the address of the employee’s usual place of residence.
(ii)
Documentary proof of address such as electoral roll registration, Local Authority rates notice, or driver’s licence may be accepted by the
employer as proof of the employee’s usual place of residence.
(iii) The employer will have the right to make the final determination as to the payment of camp allowance in cases where an employee, claiming
a separate place of residence, may not be genuine.
(iv) Any dispute arising out of the application of clause 5.5.7 will be dealt with in accordance with clause 3.2.
5.6
Superannuation
All permanent and temporary employees are required to contribute to the State Government superannuation fund (Q Super). Eligible casual employees will have
a superannuation account opened for them with Q Super and they will receive the superannuation guarantee level of employer contributions at the rate of 9% as
from 1 July 2002.
5.7
Method of determining rate of pay for public holidays and time lost through wet weather or sickness
When one of the holidays outlined in clause 7.6 (Public holidays) of this Award falls on an employee’s rostered ordinary work day, the rate of pay due to
such employee for such holiday will be determined by the level of the position in which the employee was performing on the working day immediately
before such public holiday, subject to clause 5.3. Therefore, if an employee engaged at Level 4 was performing a role at Level 5 in accordance with
clause 5.3 on the working day before such holiday, the employee is to be paid for the holiday at Level 5 wage rate.
The rate of pay for an employee losing time through wet weather or sickness will be determined on the same principle.
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, AND WEEKEND WORK
6.1
Hours of work
6.1.1
Subject to clause 6.2 (Implementation of the 38 Hour Week), and subject to the exceptions hereinafter provided, the ordinary hours of work will
be an average of 38 hours per week, to be worked on one of the following basis –
(a) 38 hours within a cycle not exceeding 7 consecutive days; or
(b) 76 hours within a work cycle not exceeding 14 consecutive days; or
(c) 114 hours within a work cycle not exceeding 21 consecutive days; or
(d) 152 hours within a work cycle not exceeding 28 consecutive days.
6.1.2
The ordinary hours of work exclusive of meal times will not exceed 10 hours per day Monday to Sunday inclusive. Where the ordinary working
hours are to exceed 8 on any day, the arrangement of hours will be subject to the agreement of the employer and the majority of employees
concerned.
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6.1.3
Except where otherwise provided, the daily spread of hours for employees will be worked between 6.00 a.m. and 6.00 p.m.. The daily spread of
hours for employees engaged on work associated with visitor management and/or custodial duties will be 12 midnight to 12 midnight.
6.1.4
The ordinary starting and finishing times of various groups of employees or individual employees may be staggered provided that there is
agreement between the employer and the majority of employees concerned.
6.1.5
Starting and finishing times may be altered to cater for the needs of the industry, including geographic, safety, climatic or traffic conditions by the
employer with the agreement of the majority of employees concerned. Any such altered starting and finishing time will not invoke any penalty
payment that would not be payable if the Award spread of hours were observed, provided that work is performed only during daylight hours.
6.1.6
Employees are required to observe the nominated staring and finishing times for the work day, including designated breaks to maximise available
working time. Preparation for starting and finishing work, including personal clean up, will be in the employee’s time.
6.1.7
Each employee will be allowed 2 whole consecutive days off in each week: In lieu of 2 whole days off in each week an employee may be
allowed in each fortnightly period either one day off in one week and 3 consecutive days off in the other week or 4 consecutive days off:
Provided further that 2 consecutive days off, one at the end of the week and one at the beginning of the following week may be counted as meeting the
requirements of clause 6.1.7.
6.1.8
All ordinary hours of duty between midnight on Friday and midnight Saturday shall be paid for at one and a-half times the ordinary rate and between
Saturday and midnight Sunday shall be paid for at the rate of time and three-quarters.
6.2
Implementation of the 38 hour week
6.2.1
The 38 hour week will be implemented on one of the following basis, most suitable to each location, after consultation with, and giving
reasonable consideration to the wishes of the employees concerned:
(a) By employees working less than 8 ordinary hours each day; or
(b) By employees working less than 8 ordinary hours on one or more days each work cycle; or
(c) Be fixing one or more work days on which all employees will be off during a particular work cycle; or
(d) By rostering employees off on various days of the week during a particular work cycle, so that each employee has one work day off during that
cycle.
6.2.2
Subject to clause 6.1.2 employees may agree that the ordinary hours of work are to exceed 8 on any day, thus enabling more than one work day
to be taken off during a particular work cycle.
6.2.3
Despite any other provision in clause 6.2, where the arrangement of ordinary hours of work provides for a rostered day off, the employer and the
majority of employees concerned, may agree to accrue up to a maximum of 5 rostered days off. Where such agreement has been reached, the
accrued rostered days off will be taken within 12 calendar months of the date on which the first rostered day off was accrued. Consent to accrue
rostered days off will not unreasonably withheld by either party.
6.2.4
Different methods of implementation of the 38 hour week may apply to individual employees, groups or section of employees in each location
concerned.
6.3
38 Hour week – Procedures for discussions
6.3.1
The employer and all employees concerned in each establishment will consult over the most appropriate means of implementing and working a
38 hour week.
6.3.2
The objective of such consultation will be to reach agreement on the method of implementing and working the 38 hour week in accordance with
clause 6.3.
6.3.3
The outcome of such consultation will be recorded in writing.
6.3.4
Despite the consultative procedures outlined above, and regardless of any lack of agreement by employees, the employer will have the right to
make the final determination as to the method by which the 38 hour week is implemented or worked from time to time.
6.3.5
After implementation of the 38 hour week, upon giving 7 days’ notice or such shorter period as may be mutually agreed upon, the method of
working the 38 hour week may be altered, from time to time, following negotiations between the employer and employees concerned, utilising
the provisions of clause 6.3, including clause 6.3.4.
6.4
Meal breaks
6.4.1
All employees will be allowed a minimum of 30 minutes and a maximum of one hour for a meal break to be taken between the 4th and 6th hours
from commencement of ordinary duty each day.
6.4.2
Any employee who is required to work during the ordinary meal times prescribed by this Award will be paid at the rate of double time until a
meal break is taken.
6.4.3
Any employee who is required to commence work more than 2 hours before the ordinary commencing time will be allowed 30 minutes for
breakfast in the employer’s time provided the employee resumes work at the end of such half hour.
6.4.4
Any employee who is required to work for more than 2 hours after the ordinary ceasing time or for more than one hour’s overtime continuing
beyond 6.00 p.m., will be allowed in the employer’s time one half hour for a meal after the expiration of the said 2 hours or one hour if after 6.00
p.m., and 45 minutes in the employer’s time after each further 4 hours worked. Where an employee lives in camp, the employer will arrange for
the transport of the employee’s food from the camp to the place of employment as far as is practicable.
6.4.5
Any employee required to work overtime on a Saturday or Sunday or their equivalent beyond the 1/5th hour of such overtime, will be entitled to
an unpaid meal break of 30 minutes.
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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Should the employee be required to continue such overtime beyond 9 hours such employee will be entitled to a further break of 30 minutes for which
no deduction of pay will be made.
After each further 4 hours of overtime the employee will be entitled to a 45 minute break for which no deduction of pay will be made, provided that
such employee is required to continue working thereafter.
6.4.6
An employee, having left the work depot, after the completion of ordinary hours and then recalled to duty to perform overtime is entitled to a paid meal
break of 30 minutes after 4 hours overtime worked. After each further 4 hours overtime worked the employee will be entitled to a further break of 45
minutes for which no deduction of pay will be made, provided that such employee is required to continue working thereafter.
6.4.7
Each employee will be provided with a reasonable meal by the employer at the times mentioned in clauses 6.4.3, 6.4.4, 6.4.5 and 6.4.6 or will be
paid the sum of $7.50 in lieu of each meal.
Clause 6.4.7 will not apply to employees in respect to those times where the employee’s food is transported by the employer from the camp to the place
of employment.
The payment of the meal allowance referred to in clause 6.4.7 will not be payable to employees living in camp.
Where employees have provided themselves with meals because of receipt of notice to work overtime, they will, in the event of the work not being
done or ceasing before the respective meal times, be paid an allowance of $7.50 for each meal so provided.
6.5
Rest pauses
6.5.1
Where practicable every employee will be entitled to a rest pause of 10 minutes’ duration in the employer’s time in the first and second half of
the working day. Such rest pauses will be taken at such times as will not interfere with continuity of work where continuity is necessary.
The employer may determine that the rest pauses may be combined into one 20 minute rest pause, to be taken in the first part of the ordinary working
day, with such 20 minutes rest pause and the meal break arranged in such a way that the ordinary working day is broken up into 3 approximately equal
working periods.
6.5.2
Except in times of emergency, the employer will provide boiling water for employees to enable them to make tea in the lunch hour and during
morning and afternoon smokos, or in lieu thereof, the employer will provide to each employee a thermos flask which will remain the property of
the employer.
6.6
Overtime
6.6.1
Except as otherwise provided all authorised overtime worked outside or in excess of ordinary hours on any day, will be deemed to be overtime
and will be paid for at the rate of time and a-half for the first 3 hours and double time thereafter.
6.6.2
All overtime worked on a Saturday or its equivalent will be paid for at the rate of time and a-half for the first 3 hours and double time thereafter.
6.6.3
All overtime worked on a Sunday or its equivalent will be paid for at the rate of double time.
6.6.4
A minimum payment of 3 hours work will apply to all overtime worked on a Saturday or its equivalent or a Sunday or its equivalent. Such
minimum payment will not apply where such overtime is performed immediately preceding and/or following ordinary hours of work.
6.6.5
An employee directed to work on a rostered day off, will be paid at the rate of time and a-half for the first 3 hours and double time thereafter
with a minimum of 3 hours work or payment thereof.
6.6.6
Overtime will be calculated to the nearest quarter of an hour in the total amount of time in respect to which overtime is claimed by an employee.
6.6.7
Call back or recall to duty
Where an employee is recalled to perform duty after completing the normal or prescribed hours or after completion of the rostered shift and having left
the job site will be paid for a minimum of 4 hours work at the appropriate overtime rate for each time the employee is so recalled.
Except in the case of unforeseen circumstances the employee will not be required to work the full 4 hours if the job for which the employee has been
recalled is completed within a shorter period; however should the employee be called out again within that 4 hour period, no further minimum payment
will apply to that work which will be separately paid for at appropriate overtime rates.
Clause 6.6.7 will not apply in cases where it is customary for an employee to return to the job site out of hours to perform a specific task where standard
overtime rates would apply.
Overtime worked in the circumstances specified in clause 6.6.7 will not be regarded as overtime for the purpose of clause 6.6.8 where actual work is
less than 2 hours on such recall or on each of such recalls.
Where an employee is called out between midnight and 6.00 a.m., payment at the rate of double time will be made.
Clause 6.6.7 will not apply where the overtime is continuous (subject to prescribed meal breaks) with the completion or commencement of ordinary
working hours, or where the overtime is continuous with a period during which an employee is required to remain in camp or report to a depot for the
protection of departmental property or on fire standby duty.
6.6.8
Rest period after performing overtime duty
An employee who works so much overtime between the termination of ordinary work on one day and the commencement of ordinary work on the next
day, that 10 consecutive hours off duty between those hours has not occurred will be released after completion of such overtime until 10 consecutive
hours off duty occur without loss of pay for ordinary working time occurring during such absence. If on the instructions of the employer, such an
employee resumes or continues work without having had 10 consecutive hours off duty, the employee will be paid double rates for such period until
released from duty and will then be entitled to be absent until 10 consecutive hours off duty has occurred without loss of pay for ordinary working time
occurring during such absence.
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An employee who works so much overtime that at least 10 consecutive hours off duty has not occurred during the 15 hours immediately preceding the
ordinary commencing time on a Monday or its equivalent will be released after the completion of such overtime until 10 consecutive hours off duty
occur without loss of pay for ordinary working time occurring during such absence.
Clause 6.6.8 will not apply to an employee required to work overtime which commences within the period of 10 hours immediately preceding the
ordinary commencing time on Monday or its equivalent and where the period of overtime worked is less than 5 hours.
Clause 6.6.8 will not apply to employees who reside or remain on or about their place of work and are required to perform duties on an intermittent
basis.
6.6.9
Fire detention duty
The following conditions will apply to fire detention/standby duty which means duty whereby employees are required to remain in camp or report to a
depot for the protection of departmental property. Such employees will be required to perform work as directed unless excused from such work.
(a) Any employee who is required to report to a depot outside ordinary rostered hours on a rostered day off, Saturday or its equivalent, Sunday or its
equivalent, public holiday or on a Friday or its equivalent after the cessation of ordinary duty for the protection of Departmental property or on fire
standby duty and who actually performs such duty will be paid in accordance with clauses 6.6.1, 6.6.2, 6.6.3 and 6.6.5.
The minimum payment for such time worked on a rostered day off, Saturday or its equivalent, Sunday or its equivalent, or public holiday will
equate with 8 hours ordinary pay.
(b) Where an employee is notified that such employee is required to report to a depot on a rostered day off, Saturday or its equivalent, Sunday or its
equivalent, or public holiday for the protection of Departmental property or on fire standby duty and:
(i) Who is not notified of cancellation of such duty prior to leaving the depot the day before but is notified of such cancellation prior to leaving
the employee’s place of residence to attend for such duty will be paid a sum equal to 2 hours pay at the ordinary rate; or
(ii) Who attends at the depot for such duty but is notified of the cancellation of the duty before the notified time of commencement will be paid a
sum equal to 4 hours pay at the ordinary rate.
(c) Any employee instructed to remain in camp overnight on a rostered day off, Saturday or its equivalent, Sunday or its equivalent, public holiday, or
after ordinary ceasing time on a Friday or its equivalent for the protection of Departmental property or on fire standby duty and who actually
performs such duty will, in addition to the payments prescribed in clause 6.6.9, be paid for each such day as follows:
Friday or its equivalent
3 hours at the ordinary rate
Rostered day off
4 hours at the ordinary rate
Saturday or its equivalent
4 hours at the ordinary rate
Sunday or its equivalent
4 hours at the ordinary rate
Public holiday
4 hours at the ordinary rate
Where an employee has remained in camp overnight and detention duty is cancelled at any time prior to the notified time of commencement of
duty on a rostered day off, Saturday or its equivalent, Sunday or its equivalent or public holiday, the employee will be paid an additional amount
equal to 2 hours pay at the ordinary rate.
6.6.10
Overtime worked before a rostered day off
An employee who works so much overtime that 10 consecutive hours off duty have not occurred immediately prior to the commencement of the employees
scheduled rostered day off is entitled to have the rostered day off substituted for another day. Such substituted day may be taken at a time mutually convenient to
the employer and the employee. In these circumstances the provisions of clause 6.6.8 are to apply.
6.6.11
For the purposes clause 6.6
(a) “Friday or its equivalent” means the last day of rostered ordinary hours prior to whole days off as prescribed by clause 6.1.7.
(b) “Monday or its equivalent” means the 1st day of rostered ordinary hours immediately after whole days off as prescribed by clause 6.1.7.
(c) “rostered day off” means the rostered day off on a day of the week which normally forms part of the employee’s ordinary hours.
(d) “Saturday or its equivalent” means the 1st and 3rd whole day off in each fortnightly period as prescribed by clause 6.1.7.
(e) “Sunday or its equivalent” means the 2nd and 4th whole day off in each fortnightly period as prescribed by clause 6.1.7.
(f) “Commencement of a rostered day off” means the time at which the employee would normally commence work on an ordinary day.
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
7.1
Annual leave
7.1.1
(a) All full-time employees will accumulate 12.667 hours annual leave for each completed month of employment. The taking of accumulated
annual leave will be on a basis mutually agreed to between the employer and the employee, however where mutual agreement is not
reached, one month’s notice will be given by the employer requiring an employee to commence annual leave.
(b) Employees will have their annual leave entitlement debited by the number of ordinary working hours between Christmas Day and New Year’s
Day inclusive when not required to work due to a compulsory closure of Government establishments over the Christmas/New Year period.
(c) Rostered day off arising from the implementation of the 38 hour week – An employee will not derive any additional benefit for rostered days off
falling within a period of annual leave.
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(d) Annual leave will be exclusive of any public holiday which may occur during the period of that annual leave and (subject to clause 7.1.2) will be
paid for by the employer in advance.
When taking annual leave employees are to be paid at the rate they are paid immediately prior to taking annual leave. If that rate is in
excess of the amount prescribed in this Award, the employee is to be paid at the higher rate.
(e) If the employment of any employee is terminated such employee is presumed to have taken from the date of termination of employment the
balance of any accrued leave and will be paid in addition to all other sums due ordinary pay for the period of leave plus leave loading in accordance
with clause 7.1.2 and for all public holidays that would occur during that period. Any period of employment of less than a month will be paid on a
pro rata basis.
7.1.2
In respect to annual leave entitlements annual leave pay (including any proportionate payments) will be calculated as follows –
(a) All employees – Subject to clause 7.1.2(b), in no case will the payment to an employee be less than the sum of the following amounts –
(i) The employee’s ordinary wage rate as prescribed by the Award for the period of such leave (excluding weekend penalty rates).
(ii) A further amount calculated at the rate of 17.5% of the amounts referred to in clause 7.1.2(a)(i).
(b) Clause 7.1.2(a) will not apply to any period or periods of leave exceeding 152 hours per annum.
7.1.3
Except as otherwise provided, it will not be lawful for the employer to give or for any employee to receive payment in lieu of annual leave.
7.2
Sick leave
7.2.1
Entitlement
(a) Sick leave (leave of absence on account of illness) on full pay will accumulate at the rate of 10 working days for each completed year of
service and a proportionate amount for an incomplete year of service.
(b) Leave may be taken for part of a day;
(c) Entitlement to sick leave is conditional on the employee promptly notifying the employer of the employee’s absence and of its expected
duration.
(d) An application for sick leave of more than 3 days is to be supported by a medical certificate or any other evidence that is acceptable to the
employer.
The entitlements for sick leave are prescribed under Directive 8/01 Sick Leave, as issued and amended by the Minister for Industrial Relations
under section 34 of the Public Service Act 1996.
7.2.2
Absenteeism control measures
(a) Sick leave is unlike annual or long service leave in that it is conditional upon an employee being ill or injured to the point of being unfit for duty.
It is an insurance to protect the employees and their families against hardship should they be unable to continue in their normal occupation and
should be only so utilised.
(b) This procedure is designed to curtail sick leave abuse by employees who are absent from work and who are not genuinely unfit for duty and is to
operate notwithstanding the provisions of clause 7.2.
(c) At the end of each 3 monthly period or such other period as presently applies the employer will review the sick leave records with a view to
establishing a list of employees whose record of attendance gives cause for reasonable concern.
(d) Any employee with an unsatisfactory record will be interviewed by the employer in the presence of the Union representative if the employee so
requests. If the discussion with respect to the absences does not provide satisfactory reason for the absences, then a letter of warning is to be sent to
the employee.
(e) If no improvement is observed in the next period, the employee is to be again interviewed (as in clause 7.2.2(d)), and if the interview results in
unsatisfactory reasons being given, then a second letter of warning is to be sent to the employee, also indicating proof of illness or a certificate may
be required for any absence.
(f) If the above action still results in unsatisfactory attendance at work then a final warning is to be given and if this is disregarded then good grounds
will have been established for termination of employment.
(g) The above procedure does not operate to withdraw the employers’ right to take termination action or other disciplinary action against any
employee if that employee has been found guilty of filling out a false sick leave application form and claiming sick leave pay when that person was
not genuinely on sick leave. That is a matter relating to fraudulent misrepresentation which may justify instant dismissal.
7.3
Long service leave
Employees who complete 10 years’ continuous service are entitled to long service leave at the rate of 1.3 weeks on full pay for each year of continuous
service and a proportionate amount for an incomplete year of service.
After 7 years’ continuous service employees are entitled to a proportionate payment (calculated on a pro rata basis for 7 years continuous service) in
specified circumstances relating to the termination of employment and parental leave.
The entitlements to long service leave are prescribed under Directive 1/01 Long Service Leave, as issued and amended by the Minister for Industrial
Relations under section 34 of the Public Service Act 1996.
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Family leave
The provisions of the Family Leave Award – Queensland Public Sector (including special responsibility leave) apply.
The entitlements to family leave include:
•
•
•
•
•
Maternity leave;
Spousal leave;
Pre-natal leave;
Pre-adoption leave; and
Adoption leave.
The entitlements for Family Leave are prescribed under Directive 3/01 Parental Leave, as issued and amended by the Minister for Industrial Relations
under section 34 of the Public Service Act 1996.
7.5
Bereavement leave
Employees are granted bereavement leave on full salary on the death of a member of the employee’s immediate family or household:
(a) ‘Immediate family’ includes:
•
•
•
•
The employee’s spouse;
A child, ex-nuptial child, step-child, adopted-child, ex-foster child of the employee;
Parent, grandparent, grandchild, sister or brother of the employee and of the employee’s spouse;
Step-father, step-mother, half-brother, half-sister, step-brother and step-sister of the employee.
(b) ‘Spouse’ of an employee includes:
•
•
A former spouse; and
A de facto spouse, including a spouse of the same sex as the employee.
The entitlements for bereavement leave are prescribed under Directive 3/02 Bereavement Leave, as issued and amended by the Minister for Industrial
Relations under section 34 of the Public Service Act 1996.
7.6
Public holidays
7.6.1
An employee who would ordinarily be required to work on a day on which a public holiday falls is entitled to full pay for the time the employee
would ordinarily have been required to perform work on that day.
7.6.2
All work done by any employee on:
– the 1st January;
– the 26th January;
– Good Friday;
– Easter Saturday (the day after Good Friday);
– Easter Monday;
– the 25th April (Anzac Day);
– The Birthday of the Sovereign;
– Christmas Day;
– Boxing Day; or
– any day appointed under the Holidays Act 1983, to be kept in place of any such holiday
7.6.1
will be paid for at the rate of double time and a-half with a minimum of 4 hours.
All work done by any employee on Good Friday, Christmas Day, the twenty–fifty day of April (Anzac Day), the first day of January, the
twenty–sixth day of January, Easter Saturday (the day after Good Friday), Easter Monday, the Birthday of the Sovereign, and Boxing Day, or
any day appointed under The Holidays Act 1983 – 1990 to be kept in place of any such holiday, will be paid for at the rate of double time and a
half with a minimum of four hours.
Employees may at their option receive time off equivalent to the number of hours worked with a minimum of half a working day in lieu of monetary
compensation together with payment at half the ordinary rate for the time so worked with a minimum of 4 hours. Such time off in lieu will be taken
with annual leave or be taken within 28 days of the day on which the employee worked.
7.6.3
Labour Day
All employees covered by this Award will be entitled to be paid a full day’s wage for Labour Day (the first Monday in May or other day appointed under
The Holiday Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any employee
concerned actually works on Labour Day, such employee will be paid for the time actually worked at one and a half times the ordinary rate prescribed for
such work with a minimum of 4 hours.
Work performed on Labour Day outside the ordinary starting and finishing times will be paid for at double the overtime rate prescribed for an ordinary working
day.
7.6.4
Annual show
All work done by employees in a district specified from time to time by the Minister by notification published in the Gazette on the day appointed under
The Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal city or town, as
specified in such notification, of such district will be paid for at the rate of double time and a half with a minimum of 4 hours.
Employees may at their option receive time off equivalent to the number of hours worked with a minimum of half a working day in lieu of monetary
compensation together with payment at half the ordinary rate for the time so worked with a minimum of 4 hours. Provided further that such time off in lieu will
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be taken with annual leave or be taken within 28 days of the day on which the employee worked.
In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an
ordinary working day that is to be treated as a show holiday for all purposes.
When no holiday is gazetted for any City or Shire in accordance with this clause, a day off as agreed between the employer and the majority of employees
affected will be allowed.
No employee will be entitled to receive payment in accordance with clause 7.6.4 for work performed on such a day on more than one occasion in each
calendar year.
7.6.5
Double time and a-half
For the purposes of clause 7.6, where the rate of wage is a weekly rate, “double time and a half” it will mean one and one half day’s wages in addition to
the prescribed weekly rate, or pro rata if there is more or less than a day.
7.6.6
Stand down
Any employee, with 2 weeks or more of continuous service, whose employment has been terminated by the employer or who has been stood down by the
employer during the month of December, and who is re-employed in January of the following year, shall be entitled to payment at the ordinary rate
payable to that employee when they were dismissed or stood down, for any one or more of the following holidays, namely, Christmas Day, Boxing Day
and New Year’s Day.
7.6.7
An employee, other than a casual employee who is dismissed or stood down by the employer during December and is re–employed before the
end of January next following, if the employee was employed for a continuous period of two weeks at least immediately before being so
dismissed or stood down, is entitled to receive, and the employer is bound to pay, payment at the ordinary rate of wages payable to the employee
immediately before the dismissal or stand–down for such of the holidays – Christmas Day, Boxing Day, and New Year’s Day – as occur during
the period between the dismissal or stand–down and the re–employment as aforesaid.
7.6.7
Substitution
Where mutual agreement exists between the employer and the employee, and subject to statutory limitations, other ordinary working days may be
substituted for the public holidays specified in this clause.
Where an employee is subsequently required to work on such substituted day, the employee will be paid the rate applicable for the holiday that has been
substituted.
7.6.8
All employees (other than a casual) if rostered off on any public holiday will be paid an additional day’s wage or by agreement between the
employer and employee will be granted another day off in lieu, at a time to be mutually arranged between the employer and the employee
concerned or an extra day to be taken with annual leave, for each such day on which the employee is rostered off.
For the purpose of clause 7.6.8 “rostered off” will mean rostered off on a day of the week which normally forms part of the employee’s ordinary hours.
The terms “additional day’s wage”, “another day off” or “extra day” will mean:
•
For full–time employees, 7.6 hours at ordinary rates;
•
For part–time employees, the number of ordinary hours normally worked on the same day of the week on which the holiday falls.
7.6.9
All employees will be entitled to payment at ordinary rates for rostered ordinary hours to be worked on a public holiday referred to in clause
7.6.1 and 7.6.3 despite that work may not be required to be performed on such holiday.
7.6.10
Employees who do not work Monday to Friday of each week
Employees who do not ordinarily work Monday to Friday of each week are entitled to public holidays as follows:
(a) A full-time employee is entitled to either payment for each of the public holidays or a substituted day’s leave;
(b) A part-time employee is entitled to either payment for each public holiday or a substituted day’s leave provided that the part-time employee would
have been ordinarily rostered to work on that day had it not been a public holiday;
(c) Where a public holiday would have fallen on a Saturday or a Sunday but it is substituted for another day all employees who would ordinarily have
worked on such Saturday or Sunday but who are not rostered to work on such day are entitled to payment for the public holidays or a substituted
day’s leave;
(d) Where Christmas Day falls on a Saturday or Sunday and the public holiday is observed on another day an employee required to work on Christmas
Day (i.e. 25 December) will be paid at the rate of double time if it is a Saturday and double time and a-quarter if it is a Sunday;
(e) Nothing in clause 7.6.10 confers a right to any employee to payment for a public holiday as well as a substituted day in lieu.
7.7
Special leave
All employees (other than casuals) are entitled to the under mentioned provisions as set out in Ministerial Directive 10/01 “Special Leave” Attendance at
Courses Conducted by the Australian Trade Union Training Authority;
•
Officers Prevented from Performing Duties;
•
Reserve Forces Training;
•
Attendance at Counter Disaster Courses;
•
Attendance at Emergencies;
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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Pre–Retirement Seminars;
•
Election Leave.
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Jury service
All employees (other than casuals) will be entitled to special leave on full pay for the purpose of undertaking service as a juror in accordance with Ministerial
Directive 5/01 “Court Attendance and Jury Service” as issued and amended by the Minister for Industrial Relations from time to time.
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7.9
Industrial relations education leave
7.9.1
Industrial relations education leave is paid time off to acquire knowledge and competencies in industrial relations. Such knowledge and competencies
can allow employees to effectively participate in consultative structures, perform a representative role and further the effective operation of grievance
and dispute settlement procedures.
7.9.2
Employees may be granted up to 5 working days (or the equivalent hours) paid time off (non–cumulative) per calendar year, approved by the chief
executive (or delegated authority) of the agency, to attend industrial relations education sessions.
7.9.3
Additional leave, over and above 5 working days non-cumulative (or the equivalent hours) in any one calendar year may be granted where approved
structured employees’ training courses involve more than 5 working days (or the equivalent). Such leave will be subject to consultation between the
chief executive (or delegated authority) of the agency, the relevant Union and the employee.
7.9.4
Upon request and subject to approval by the chief executive (or delegated authority) of the agency, employees may be granted paid time off in special
circumstances to attend Management Committee Meetings, Union Conferences and ACTU Congress.
7.9.5
The granting of industrial relations education leave or any additional leave should not impact adversely on service delivery, work requirements or the
effectiveness and efficiency of the agency/work unit concerned. At the same time such leave will not be unreasonably refused.
7.9.6
At the discretion of the chief executive of the agency/public sector unit concerned, public sector employees may be granted special leave without pay to
undertake work with their Union.
PART 8 – TRANSFERS TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK.
8.1
Travelling expenses
Where employees are required to travel between their usual place of residence and a distant location, where they could not reasonably be expected to return to
their place of residence overnight, such employees are to be paid travelling time at ordinary rates up to a maximum of 8 hours per day for time spent in travelling
in excess of rostered ordinary hours.
8.2
Travelling time
8.2.1
Employees who are obliged to live in camp will be paid travelling time both ways when the distance from the camp to the work is over 1.6
kilometres, but so that no travelling time will be paid in respect of the first 1.6 kilometres going to work or returning to camp:
Provided that the following time allowances will apply: Walking 13 minutes to the kilometre; by vehicle other than motor vehicle 6 minutes to
the kilometre; by train or motor vehicle, 3 minutes to the kilometre. Travelling time as hereinbefore provided, outside of ordinary working
hours, will be paid for at overtime rates.
For the purpose of clause 8.2.1, camp sites will be established or declared in respect of each gang.
8.2.2
Employees other than those living in camp who are required to work more than 5 kilometres from the depot to which they usually report will be
transported by the employer from the depot to the job and return, and the actual time occupied in such travelling will be paid for at ordinary
rates.
8.3
Work away from headquarters
8.3.1
Where employees are required to work away from their designated headquarters at such a distance that they cannot reasonably return to their
place of residence overnight, the employer will either:
(a) Provide the employee with reasonable board and lodging; or
(b) Pay an allowance of $335.60 per week of 7 days but such allowance is not to be treated as wages. In the case of broken parts of the week occurring
whilst working away from headquarters, an allowance of $48.00 per day is payable. However if the employee satisfies the employer that the
employee has reasonably incurred a greater outlay than that prescribed reimbursement of the higher outlay will be made.
8.3.2
Where employees reside in Departmental barracks whilst working away from headquarters an allowance of $335.60 per week of 7 days is
payable, with absences of less than 7 days attracting an allowance of $48.00 per day for each full day of 24 hours.
For part of a day, the daily allowance will be broken into:
Breakfast – $8.70 where the employee has to leave headquarters before 7.00 a.m. and certifies that the expense of purchasing breakfast has been
incurred.
Lunch – $8.80 where the employee cannot reach headquarters before 1.30 p.m. and certifies that the expense of purchasing lunch has been
incurred.
Dinner – $16.70 where the employee cannot reach headquarters before 6.30 p.m. and certifies that the expense of purchasing dinner was
necessary and subsequently incurred.
Bed – $13.80 where the employee supplies own linen.
8.3.3
Where an employee is required to be absent overnight to undertake relieving duties in a salaried position (e.g. Forest Ranger or Forester) at a
centre other than the employee’s designated headquarters, travelling allowances as prescribed in 8.3.1 are to apply. However, where expenditure
for meals and accommodation exceed the above rates, reimbursement may be made for the cost of reasonable and necessary actual expenses
incurred, with such receipts as required by the employer.
8.3.4
Where an employee is required to undertake relieving duties in a salaried position and is required to travel away from the relieving centre,
payment for travelling allowances will be made in accordance with the relevant government Directive.
8.3.5
The work away from headquarters provisions do not apply to those employees permanently engaged on firebreak/road construction and
maintenance for periods totalling more than 3 months per calendar year. In these circumstances the provisions of clause 5.5.7 (Camp
allowance/accommodation) will apply.
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PART 9 – TRAINING AND RELATED MATTERS
9.1
Training, learning and development
The parties to this Award recognise that in order to increase efficiency and productivity a greater commitment to training and development is required.
Accordingly, the parties commit themselves to developing a more highly skilled and flexible workforce and providing employees with career
opportunities through appropriate training to acquire additional skills for performance of their duties.
Within the Department a consultative mechanism and procedures involving representatives of management, employees and the relevant Union will be
established as determined by the employer having regard to the size, structure and needs of the Department.
Following consultation the employer will develop a training and development strategy consistent with:
•
The current and future needs of the Department;
•
The size, structure and nature of the operations of the Department;
•
The need to develop vocational skills relevant to the Department through courses conducted wherever possible by accredited educational institutions and
providers.
Learning and development may be both on-the-job or off-the-job and either internal or external to the organisation.
Learning and development provided should assist employees in obtaining knowledge and skills accredited by an Industry Training Council or other
similar body.
All such learning and development should be directed at enabling employees to enhance skills relevant to duties to be performed.
Employees will be expected to attend scheduled training and development activities.
Clause 9.1 will operate as an interim provision and will be subject to revision after 12 months operation.
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
10.1
Workplace health and safety
10.1.1
Responsibility
The employer will at all times make available on site a copy or copies of the Workplace Health and Safety Act 1995 and Regulations. Both the employer
and employees will co-operate to promote a safe and healthy work environment and adopt safe work practices in accordance with the said legislation.
10.1.2
Shelters
A suitable tarpaulin or tent fly will be supplied and erected by the employer at a place convenient to the job wherein employees may rest or eat their
midday meal or shelter from rain, so constructed as to prevent as far as possible, rain from entering therein.
10.1.3
Accident and sickness
If employees are injured seriously or fall seriously ill at their work, the employer will provide means of getting them to the nearest hospital free of cost to
the employee.
10.1.4
First-aid kits
First-aid kits in suitable and secure cases will be provided at central positions on the works so as to be at all times readily available for the use of
employees.
10.1.5
Water containers
Suitable water containers will be supplied by the employer to each gang together with a sufficient quantity of fresh and uncontaminated drinking water
for the use of employees.
10.1.6
Water bottles
Employees whilst fighting fire will be provided with water bottles which may be attached to the wearer’s belt.
10.1.7
Shelter on vehicles
All vehicles under the control of the employer, while engaged in carrying employees for duties relevant to their work will be equipped with adequate
protection from all conditions of weather, or the employer will supply and erect on the vehicle a suitable waterproof covering.
The minimum standard of passenger accommodation on such vehicles will be:
(a) Seating
(i) Sufficient seating to ensure that all employees carried may be seated;
(ii) All seats will have backs, and such seats and backs will be padded;
(iii) Seats will be securely anchored to the floor of the vehicle.
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(b) Covering
(i) Canopies or other covering will have reasonable window space, reasonable ventilation and be fitted with dust deflectors on the top rear of the
canopies to reduce the entry of dust or some other system that will be at least equally as effective in reducing the entry of dust;
(ii) The covering will be securely attached to the vehicle.
(c) Tools and equipment.
No tools or equipment will be carried in any vehicle transporting employees unless they be in a compartment properly separated from the passengers or
otherwise secured so as to prevent movement.
10.1.8
Protective equipment
Where necessary the employer will provide helmets, goggles, masks and earmuffs and such items of equipment will be worn by the employees.
Employees pruning trees will be supplied with suitable protective gloves.
The employer will provide suitable rubber gloves for the use of employees employed on such duties as disposing of camp garbage, servicing camp
sanitary, bathroom or lavatory accommodation, and cleaning gully traps.
10.3Protection from weather
The minimum standard of passenger accommodation on such vehicles will be –
(a) Seating
(i) Sufficient seating to ensure that all employees carried may be seated;
(ii) All seats will have backs, and such seats and backs will be padded;
(iii) Seats will be securely anchored to the floor of the vehicle.
(b) Covering
(i) Canopies or other covering will have reasonable window space, reasonable ventilation and be fitted with dust deflectors on the top rear of the
canopies to reduce the entry of dust or some other system that will be at least equally as effective in reducing the entry of dust;
(ii) The covering will be securely attached to the vehicle.
(c) Tools and Equipment.
No tools or equipment will be carried in any vehicle transporting employees unless they be in a compartment properly separated from the passengers or
otherwise secured so as to prevent movement.
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Preamble
Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are
advised to refer to sections 366, 372 and 373 of the Act as amended from time to time.
11.1
Right of entry
11.1.1
Authorised industrial officer
(a) An “Authorised industrial officer” is any Union official holding a current authority issued by the Industrial Registrar.
(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union.
11.1.2
Entry procedure
(a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as:
(i)
the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and
(ii) shows their authorisation upon request.
(b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent.
(c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry.
(d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a
trespasser.
11.1.3
Inspection of records
(a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act.
(b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee:
(i) is ineligible to become a member of the Union; or
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(ii) is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or
(iii) has made a written request to the employer that the employee does not want that employee’s record inspected.
(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer.
(d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by
an authorised industrial officer.
11.1.4
Discussions with employees
An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the Union:
(a) matters under the Act during working or non-working time; and
(b) any other matter with a member or employee eligible to become a member of the Union, during non-working time.
11.1.5
Conduct
An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry.
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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11.2
Time and wages record
11.2.1
An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period
for each employee, including apprentices and trainees:
(a) The employee’s Award classification;
(b) the employer’s full name;
(c) The name of the Award under which the employee is working;
(d) The number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and
details of work breaks including meal breaks;
(e) Specific to Award either:
(i)
A weekly, daily or hourly wage rate – details of the wage rate for each week, day, or hour at which the employee is paid; or
(ii)
Piecework rates – details of the piecework performed and the rate at which payment is made to the employee;
(f) The gross and net wages paid to the employee;
(g) Details of any deductions made from the wages; and
(h) Contributions made by the employer to a superannuation fund
11.2.2
The time and wages record must also contain:
(a)
The employee’s full name and address;
(b) The employee’s date of birth;
(c)
Details of sick leave credited or approved, and sick leave payments to the employee;
(d)
The date when the employee became an employee of the employer;
(e)
If appropriate, the date when the employee ceased employment with the employer;
(f) If a casual employee’s entitlement to long service leave is worked out under section 47 of the Act – the total hours, other than overtime,
worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.
11.2.3
The employer must keep the record for 6 years.
11.2.4
Such records shall be open to inspection during the employer’s business hours by an inspector of the Department of Industrial Relations, in
accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act.
11.2.5
Consistent with Ministerial Directive 12/01 Attendance – Recording, Reporting and Public Holidays, a Chief executive may specifically exempt
those employees who have been, or who are a class of office from a system for recording starting and finishing times, meal breaks and absences
from duty.
11.3
Award posting
A true copy of this Award is to be exhibited in a conspicuous and convenient place on the premises of the employer so that it is easily accessible to employees.
11.4
Union encouragement
11.4.1
The parties recognise the right of individuals to join a Union and will encourage that membership. However, it is also recognised that Union
membership remains at the discretion of individuals.
11.4.2
An application for Union membership and information on the relevant Union/s will be provided to all employees at the point of engagement.
11.4.3
Information on the relevant Union(s) will be included in induction materials.
11.4.4
Union representative(s) will be provided with the opportunity to discuss Union membership with new employees.
11.4.5
Where requested by public sector Unions, agencies and public sector units will provide payroll deduction facilities for Union subscriptions.
11.5
Union delegates
11.5.1
The parties acknowledge the constructive role democratically elected Union delegates undertake in the workplace in relation to Union activities
that support and assist members. That role will be formally recognised, accepted and supported.
11.5.2
Public sector employees will be given full access to Union delegates/officials during working hours to discuss any employment matter or seek
Union advice, provided that service delivery is not disrupted and work requirements are not unduly affected.
11.5.3
Provided that service delivery and work requirements are not unduly affected, delegates will be provided convenient access to facilities for the
purpose of undertaking Union activities. Such facilities include: telephones, computers, e–mail, photocopiers, facsimile machines, storage
facilities, meeting rooms and notice boards. It is expected that management and delegates will take a reasonable approach to the responsible use
of such facilities for information and communication purposes.
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11.5.4
Subject to the relevant employee’s written approval and any confidentiality provisions, delegates may request access to documents and policies
related to a member’s employment.
11.6
Leave reserved list
Leave is reserved for the parties to this Award to conduct further negotiations and/or seek arbitration of the following matters with the aim of modernising the
Award.
●
Finalisation of Classification Standards.
●
Position Description Grading Process.
●
Skill Evaluation Process.
Dated 13 March 2003.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Operative Date: 12 May 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 130 – award review
SADDLE, HARNESS, COLLAR MAKING, LEATHER WORKING TENT, TARPAULIN AND
CANVAS WORKING TRADES AWARD – STATE
(No. AR79 of 2002)
DEPUTY PRESIDENT SWAN
COMMISSIONERS EDWARDS AND BECHLY
13 March 2003
AWARD REVIEW
After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the
following Award be made, as from 12 May 2003.
SADDLERY, LEATHER, CANVAS AND PLASTIC MATERIAL WORKERS' AWARD – STATE 2003
PART 1 - APPLICATION AND OPERATION
1.1
Title
This Award is known as the Saddlery, Leather, Canvas and Plastic Material Workers’ Award – State 2003.
1.2
Application of Award
1.2.1
This Award is made in connection with the industry of employees engaged in or in connection with the manufacture, alteration, or repair of
saddles, saddle trees, harness, collars, and rugs for horses and other animals; bridles, fly-veils, and strappings, whips, whip thongs, machine
belting, respirators or gas masks of leather, canvas, fabric, or other like material, trunks, bags, portmanteaux, travel goods, suit or attache cases,
braces of all descriptions, belts, razor strops, watch straps, suspenders, sporting goods of canvas leather or like materials; travellers' sample cases
of all descriptions, musical, gramophone; covered wireless or radio cases surgical and spectacle cases of all descriptions, ladies' evening bags,
ladies' handbags, handbags of all descriptions, making up and/or fitting slide fasterners where made within the industry, wallets, purses, pouches,
folio or folio covers of all descriptions, leather or fabric gloves of all descriptions, leggings, hat leathers, leather coats, leather hats or caps, play
suits of leather or fabric, artificial limbs and appliances, surgical belts and surgical supports of leather, sails, tents, tarpaulins, rigging, flaps, nose
bags, water bags, weather cloths, dodgers, canvas, duck or calico bags of all descriptions, blinds of all descriptions inside and out, mast coats,
awnings, sail covers, canvas, duck, fabric or calico covers of all descriptions, all types of beach shelters from canvas, calico or like material,
covering of beach, bookmakers' and tractor umbrellas with canvas or like material, canvas or coir save-alls, slings of all descriptions, wind sails,
hose of all descriptions ( excluding rubber hose), covers for wings of aeroplanes, or component parts of aeroplanes of canvas, sail, duck, fabric
or other like material, parachute harness of leather, sail, duck, canvas, webbing or other like material, aeroplane hangar, sheds (Belman or
others), components of aeroplane hangars, sheds or houses of canvas, fabric or other material, mail bags, canvas ice cream containers and/or
shippers, fenders, cargo nets, ship's gear, lifejackets, covering of lifebuoys, marquees, skillions, binding and conveyor aprons, gaskets and
washers of leather, canvas or other like material, industrial spindle polishing mops where made within the industry, camp beds, deck chairs,
camp furniture rope or wire splicing, canvas boot coverings, and all classes of goods (other than boots, shoes, sandals and slippers) made from
leather, pelts, fabric, canvas, fibre of vulcanised fibre, webbing and/or all substitutes (including plastics) for leather, pelts, fabric, canvas, fibre or
vulcanised fibre, webbing, used in the industries, also designing, clicking, cutting by hand or machine and machining in all sections and
spraying.
1.2.2
This Award shall not apply to any persons who are covered by an Award of the Australian Industrial Relations Commission
1.3
Date of operation
This Award takes effect from 12 May 2003.
1.4
Parties bound
This Award is legally binding upon the employees as prescribed by clause 1.2 and their employers, and the Australian Liquor, Hospitality and
Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees and its members
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1925
1.5
Wages and conditions
1.5.1
Except where otherwise provided by this Award the wages and conditions of employees engaged in the industries listed in clause 1.2 in the State
of Queensland shall be identical with those prescribed by the Award of Australian Industrial Relations Commission known as the Saddlery,
Leather, Canvas And Plastic Material Workers' Award 1999, including variations thereto, for the time being in force in the State of Queensland.
1.6
Long service leave
All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2,
Part 3, sections 42-58 of the Industrial Relations Act 1999 as amended from time to time.
1.7
Union encouragement
Clause 1.7 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of
Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union.
1.7.1
Documentation to be provided by employer
At the point of engagement, an employer to whom this Award applies shall provide employees with a document indicating that a Statement of Policy on
union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by
each employee.
The document provided by the employer shall also identify the existence of a union encouragement clause in this Award.
1.7.2
Union delegates
Union delegates and job representatives have a role to play within a workplace. The existence of accredited union delegates and/or job representatives is
encouraged.
The employer shall not unnecessarily hinder accredited union delegates and/or job representatives in the reasonable and responsible performance of their
duties.
1.7.3
Deduction of union fees
Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of union fees for employees
who signify in writing to their employer, their desire to have such membership fees deducted from their wages.
Dated 13 March 2003.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Operative Date: 12 May 2003
###########################################################################################################################
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 130 – award review
SILO EMPLOYEES’ AWARD – NORTHERN DIVISION
(No. AR118 of 2002)
DEPUTY PRESIDENT SWAN
COMMISSIONERS EDWARDS AND BECHLY
13 March 2003
AWARD REVIEW
After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the
following Award be made, as from 12 May 2003.
SILO EMPLOYEES’ AWARD – NORTHERN DIVISION – 2003
PART 1 – APPLICATION AND OPERATION
1.1
Title
This Award is known as the Silo Employees’ Award – Northern Division – State 2003.
1.2
Arrangement
Subject Matter
Clause No.
PART 1 – APPLICATION AND OPERATION
Title ............................................................................................................................................................................................................................ 1.1
Arrangement .............................................................................................................................................................................................................. 1.2
Date of operation ....................................................................................................................................................................................................... 1.3
Coverage .................................................................................................................................................................................................................... 1.4
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Subject Matter
24 April, 2003
Clause No.
Definitions.................................................................................................................................................................................................................. 1.5
Area of operation ....................................................................................................................................................................................................... 1.6
Parties bound.............................................................................................................................................................................................................. 1.7
PART 2 – FLEXIBILITY
Enterprise flexibility .................................................................................................................................................................................................. 2.1
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
Consultative mechanisms and procedures in the workplace..................................................................................................................................... 3.1
Grievance and dispute settling procedure.................................................................................................................................................................. 3.2
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
Employment categories ............................................................................................................................................................................................. 4.1
Probationary period.................................................................................................................................................................................................... 4.2
Part-time employment ............................................................................................................................................................................................... 4.3
Casual employment.................................................................................................................................................................................................... 4.4
Proportion of juniors.................................................................................................................................................................................................. 4.5
Incidental or peripheral tasks..................................................................................................................................................................................... 4.6
Anti-discrimination.................................................................................................................................................................................................... 4.7
Termination of employment ...................................................................................................................................................................................... 4.8
Introduction of changes ............................................................................................................................................................................................. 4.9
Redundancy................................................................................................................................................................................................................ 4.10
Continuity of service – transfer of calling................................................................................................................................................................. 4.11
PART 5 – WAGES AND WAGE RELATED MATTERS
Definition of classifications....................................................................................................................................................................................... 5.1
Wage rates.................................................................................................................................................................................................................. 5.2
Allowances................................................................................................................................................................................................................. 5.3
Payment of wages ...................................................................................................................................................................................................... 5.4
Superannuation .......................................................................................................................................................................................................... 5.5
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK
Hours of work and shift work.................................................................................................................................................................................... 6.1
Meal breaks................................................................................................................................................................................................................ 6.2
Rest pauses................................................................................................................................................................................................................. 6.3
Overtime .................................................................................................................................................................................................................... 6.4
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
Annual leave .............................................................................................................................................................................................................. 7.1
Sick leave ................................................................................................................................................................................................................... 7.2
Bereavement leave..................................................................................................................................................................................................... 7.3
Long service leave ..................................................................................................................................................................................................... 7.4
Family leave............................................................................................................................................................................................................... 7.5
Public holidays........................................................................................................................................................................................................... 7.6
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
No provisions inserted in this Award relevant to this Part.
PART 9 – TRAINING AND RELATED MATTERS
Training...................................................................................................................................................................................................................... 9.1
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
Tools to be supplied................................................................................................................................................................................................... 10.1
First aid material ........................................................................................................................................................................................................ 10.2
Juniors’ work ............................................................................................................................................................................................................. 10.3
Accident or sickness .................................................................................................................................................................................................. 10.4
Boiling water.............................................................................................................................................................................................................. 10.5
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Right of entry ............................................................................................................................................................................................................. 11.1
Time and wages record .............................................................................................................................................................................................. 11.2
Trade union training leave ......................................................................................................................................................................................... 11.3
Posting of award ........................................................................................................................................................................................................ 11.4
Union encouragement ................................................................................................................................................................................................ 11.5
1.3
Date of operation
This Award takes effect from 12 May 2003.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1927
Coverage
This Award shall apply to all employees of the Atherton Tableland Maize Board engaged in silo work on the Atherton Tableland.
1.5
Definitions
1.5.1
The “Act” means the Industrial Relations Act 1999 as amended or replaced from time to time.
1.5.2
“Commission” means the Queensland Industrial Relations Commission.
1.5.3
“Union” means The Australian Workers’ Union of Employees, Queensland.
1.6
Area of operation
For the purpose of this Award, the Divisions and Districts shall be as follows:
1.6.1
Divisions
Northern Division – That portion of the State along or north of a line commencing at the junction of the sea-coast with the 21st parallel of south latitude;
then by that parallel latitude due west to 147 degrees of each longitude; then by the meridian of longitude due south to 22 degrees 30 minutes of south
latitude; then by that parallel of latitude due west to the western border of the State.
1.6.2
Districts
(a) Northern Division:
Eastern District – That portion of the Northern Division along or east of 144 degrees 30 minutes of east of longitude.
Western District – The remainder of the Northern Division.
1.7
Parties bound
This Award is legally binding upon the employees as prescribed by clause 1.4 and their employers, and the Union and its members.
PART 2 – FLEXIBILITY
2.1
Enterprise flexibility
2.1.1
As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible
working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage
consultative mechanisms across the workplace.
2.1.2
The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of
matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions.
2.1.3
Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being
submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given.
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE SETTLING PROCEDURES
3.1
Consultation
3.1.1
The parties to this Award are committed to co-operating positively to increase the efficiency, productivity and competitiveness of the industries
covered by this Award and to enhance the career opportunities and job security of employees in such industries.
3.1.2
At each plant or enterprise, an employer, the employees and their relevant Union commit themselves to establishing a consultative mechanism
and procedures appropriate to the size, structure and needs of that plant or enterprise. Measures raised by the employer, employees or Union or
Unions for consideration consistent with the objectives of clause 3.1.1 shall be processed through that consultative mechanism and procedures.
3.2
Grievance and dispute settling procedure
The matters to be dealt with in this procedure shall include all grievances or disputes between an employee and an employer in respect to any industrial
matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to a single employee or to any number of
employees.
3.2.1
In the event of an employee having a grievance or dispute the employee shall in the first instance attempt to resolve the matter with the
immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns
alleged actions of the immediate supervisor the employee(s) may bypass this level in the procedure.
3.2.2
If the grievance or dispute is not resolved under clause 3.2.1, the employee or the employee’s representative may refer the matter to the next
higher level of management for discussion. Such discussion should, if possible, take place within 24 hours after the request by the employee or
the employee’s representative.
3.2.3
If the grievance involves allegations of unlawful discrimination by a supervisor the employee may commence the grievance resolution process
by reporting the allegations to the next level of management beyond that of the supervisor concerned. If there is no level of management beyond
that involved in the allegation the employee may proceed directly to the process outlined at clause 3.2.5.
3.2.4
If the grievance or dispute is still unresolved after discussions mentioned in clause 3.2.2, the matter shall, in the case of a member of a Union, be
reported to the relevant officer of that Union and the senior management of the employer or the employer’s nominated industrial representative.
An employee who is not a member of the Union may report the grievance or dispute to senior management or the nominated industrial
representative. This should occur as soon as it is evident that discussions under clause 3.2.2 will not result in resolution of the dispute.
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3.2.5
If, after discussion between the parties, or their nominees mentioned in clause 3.2.4, the dispute remains unresolved after the parties have
genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Commission in
accordance with the provisions of the Act.
3.2.6
Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.
3.2.7
The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.
3.2.8
All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by the Commission with a
view to the prompt settlement of the dispute.
3.2.9
Any Order or Decision of the Commission (subject to the parties’ right of appeal under the Act) will be final and binding on all parties to the
dispute.
3.2.10
Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of
such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are
unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELTIONSHIP AND RELATED ARRANGEMENTS
4.1
Employment categories
4.1.1
Employees covered by this Award shall be advised in writing of their employment category upon appointment.
Employment categories are:
(a) full-time;
(b) part-time (as prescribed in clause 4.3); or
(c) casual (as prescribed in clause 4.4).
4.2
Probationary period
Upon completion of the probationary period the employer shall advise the employee that the probationary period has ended.
4.3
Part-time employment
4.3.1
The following provisions shall be applicable to part-time employees:
(a) The spread of ordinary working hours shall be the same as those prescribed for a full-time employee under the Award.
(b) A part-time employee shall be employed for a maximum number of hours per week equivalent to 4/5ths of the total ordinary full-time
working hours of a full-time employee.
(c) A part-time employee shall be paid at the same hourly rate as a full-time employee would be paid for performing duty in the same Award
classification. A part-time employee shall also be entitled to any allowances applicable based pro rata on the number of hours worked in
relation to the ordinary full-time hours applicable to the Award classification.
(d) The public holiday provisions of the Award shall apply, provided that payment shall only be made for hours actually worked:
Provided further that a part-time employee who usually works on a day of the week on which a public holiday falls, and who is not required
to work on that day, shall be paid for the hours which would otherwise have been worked on that day.
(e) Subject to the provisions contained herein, all other provisions of the Award applicable to full-time employees shall apply pro rata to a parttime employee.
4.4
Casual employment
4.4.1
The following conditions shall be applicable to Casual employees:
(a) A casual employee shall be paid 23% in addition to the ordinary award rates of pay for the class of work upon which such employee is
engaged. Each daily engagement shall stand alone, with a minimum payment as for 4 hours work made in respect to each engagement.
(b) Provided also that in addition to clause 4.4.1(a), a casual employee shall be further entitled to payment of any applicable Award allowances
based pro rata on the number of hours worked in relation to the ordinary hours of the Award classification.
(c) Except in accordance with clause 4.4.1(a) and (b) a casual employee shall not be entitled to any other Award provision.
4.5
Proportion of juniors
Not more than one junior may be employed to every 2 adults employed who are receiving not less than the minimum rates prescribed by this Award.
4.6
Incidental or peripheral tasks
4.6.1
An employer may direct an employee to carry out such duties as are reasonably within the limits of the employee’s skill, competence and
training consistent with the classification structure of this Award provided that such duties are not designed to promote de-skilling.
4.6.2
An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee
has been properly trained in the use of such tools and equipment (where relevant).
4.6.3
Any direction issued by an employer pursuant to clauses 4.6.1 and 4.6.2 shall be consistent with the employer’s responsibilities to provide a safe
and healthy working environment.
24 April, 2003
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1929
4.7
Anti-discrimination
4.7.1
It is the intention of the parties to this Award to prevent and eliminate discrimination as defined by the Anti-Discrimination Act 1991 and the
Industrial Relations Act 1999 which includes:
(a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political
belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of the above
attributes;
(b) sexual harassment; and
(c) racial and religious vilification.
4.7.2
Accordingly, in fulfilling their obligations under the grievance and disputes settling procedure in clause 3.1, the parties to this Award must take
reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.
4.7.3
Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been
involved in a complaint of unlawful discrimination or harassment.
4.7.4
Nothing in clause 4.7 is to be taken to affect:
(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; or
(b) an employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and
Equal Opportunity Commission/Anti-Discrimination Commission Queensland.
4.8
Termination of employment
4.8.1
Statement of employment
The employer shall, in the event of termination of employment, provide upon request to an employee who has been terminated a written statement
specifying the period of employment and the classification or type of work performed by the employee.
4.8.2
Termination by employer
(a) In order to terminate the employment of an employee the employer shall give the following notice:
Period of Continuous Service
Period of Notice
not more than 1 year.............................................................................................. 1 week
more than 1 year, but not more than 3 years..........................................................2 weeks
more than 3 years, but not more than 5 years ........................................................3 weeks
more than 5 years ...................................................................................................4 weeks
(b) In addition to the notice in clause 4.8.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years’
continuous service, shall be entitled to an additional week’s notice.
(c) Payment in lieu of notice shall be made if the appropriate notice is not given:
Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
(d) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used.
(e) The period of notice in clause 4.8.2(a) shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal,
or in the case of casual, or seasonal employees, or to employees on daily hire, or employees engaged for a specific period of time or for a
specific task or tasks.
4.8.3
Notice of termination by employee
The notice of termination required to be given by an employee shall be one week. If an employee fails to give notice the employer shall have the right to
withhold monies due to the employee with a maximum amount equal to the ordinary time rate for the period of notice.
4.9
Introduction of changes
4.9.1
Employer’s duty to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology
that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed
changes and their Union.
(b) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employers workforce or
in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining
or transfer of employees to other work or locations and the restructuring of jobs:
Provided that where this Award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to
have significant effect.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
24 April, 2003
Employer’s duty to discuss change
(a) The employer shall discuss with the employees affected and their Union, inter alia, the introduction of the changes referred to, the effects
the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.
(b) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes
referred to in clause 4.9.1.
(c) For the purpose of such discussion, the employer shall provide in writing to the employees concerned and their Union, all relevant
information about the changes including the nature of the changes proposed, the expected effects of the changes on employees, and any
other matters likely to affect employees:
Provided that any employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the
employer’s interests.
4.10
Redundancy
4.10.1
Discussions before terminations
(a) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by
anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the
employer shall hold discussions with the employees directly affected and where relevant, their Union.
(b) The discussions shall take place as soon as it is practicable after the employer has made a definite decision which will invoke clause 4.10.1,
and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to avert
or mitigate the adverse effects of any terminations of the employees concerned.
(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their Union,
all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of
employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be
carried out:
Provided that any employer shall not be required to disclose confidential information, the disclosure of which would be inimical to its
interests.
4.10.2
Transfer to lower paid duties
Where an employee is transferred to other duties for reasons set out in clause 4.10.1, the employee shall be entitled to the same period of notice of
transfer the employee would have been entitled to if the employee’s employment had been terminated, and the employer may, at the employer’s option,
make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rate of
pay for the number of weeks of notice still owing.
4.10.3
Transmission of business
(a) Where a business is, whether before or after the date of this Award, transmitted from an employer (the “transmittor”) to another employer
(the “transmittee”), and an employee who at the time of such transmission was an employee of the transmittor of the business, becomes an
employee of the transmittee:
(i)
the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
(ii)
the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of
the employee with the transmittee.
(b) In clause 4.10.3, “business” includes trade, process, business or occupation and includes part of any such business and “transmission”
includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding
meaning.
4.10.4
Time off during notice period
(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.10.1, the employee shall be allowed up
to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment,
the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not
receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
4.10.5
Notice to Centrelink
Where a decision has been made to terminate employees in the circumstances outlined in clause 4.10.1 the employer shall notify Centrelink thereof as
soon as possible giving relevant information including a written statement of the reasons for the terminations, the number and categories of the
employees likely to be affected and the period over which the terminations are intended to be carried out.
4.10.6
Severance pay
In addition to the period of notice prescribed for ordinary termination in clause 4.8.2, and subject to further order of the Commission, an employee whose
employment is terminated for reasons set out in clause 4.10.1 shall be entitled to the following amounts of severance pay:
Period of Continuous Service
Severance Pay
1 year or less ........................................................................................................nil
1 year and up to the completion of 2 years .....................................................4 weeks’ pay
2 years and up to the completion of 3 years....................................................6 weeks’ pay
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1931
3 years and up to the completion of 4 years....................................................7 weeks’ pay
4 years and over...............................................................................................8 weeks’ pay
“Weeks’ pay” means the ordinary time rate of pay for the employee concerned.
4.10.7
Superannuation benefits
Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, such employee shall
only receive under clause 4.10.6 the difference between the severance pay specified in that clause and the amount of the superannuation benefit such
employee receives which is attributable to employer contributions only. If this superannuation benefit is greater than the amount due under clause 4.10.6
then the employee shall receive no payment under that clause.
4.10.8
Employee leaving during notice
An employee whose employment is terminated for reasons set out in clause 4.10.1 may terminate such employment during the period of notice specified
in clause 4.8.2, and, if so, shall be entitled to the same benefits and payments under clause 4.10 had such employee remained with the employer until the
expiry of such notice:
Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.
4.10.9
Alternative employment
An employer, in a particular case, may make application to the Commission to have the general severance pay prescription amended if the employer
obtains acceptable alternative employment for an employee.
4.10.10 Employees with less than one year’s service
Clause 4.10 shall not apply to employees with less than one year’s continuous service and the general obligation on employers should be no more than to
give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to
facilitate the obtaining by the employees of suitable alternative employment.
4.10.11 Employees exempted
Clause 4.10 shall not apply:
(a) where employment is terminated as a consequence of misconduct on the part of the employee;
(b) to employees engaged for a specific period of time or for a specific task or tasks; or
(c) to casual employees.
4.10.12 Employers exempted
Subject to an order of the Commission, in a particular redundancy case, clause 4.10 shall not apply to employers who employ less than 15 people.
4.10.13 Incapacity to pay
An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription amended on the
basis of the employer’s incapacity to pay.
PART 5 – WAGES AND WAGE RELATED MATTERS
5.1
Definition of classifications
5.1.1
Silo employee level 1 (78%)
An employee at this level performs routine duties essentially of a manual nature to the level of the training for this level including induction. Employee
shall be classified under this grade for a maximum of 3 months.
(a) Skills/Duties:
(i)
Responsible for the quality of their own work subject to detailed direction;
(ii)
Works in a team environment and/or under direct supervision;
(iii)
Undertakes duties in a safe and responsible manner;
(iv)
Exercises discretion within their level of skills and training;
(v)
Possesses basic interpersonal and communication skills;
(vi)
Is in the process of or has gained basic forklift driving license.
(b) The following are indicative of the tasks which an employee at this level may perform:
(i)
use of material handling equipment;
(ii)
routine minor maintenance of equipment to ensure continuity of operation;
(iii)
basic VDU operation;
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(iv)
responsible for housekeeping and cleaning in own work environment;
(v)
tasks involved in the operation of the bagging plant including bag filling, bag sewing and pallet stacking;
(vi)
tasks involved in the operation of the bagging plant including bag filling, bag sewing and pallet stacking;
24 April, 2003
(vii) tasks involved in the operation of number 2 plant including cooler operation and adjustment, conveyor belt and bucket elevator
operation and silo shute operation;
(viii) assist level 2 employees in the operation of the second mixer producing horse feed, licks and feedlot mixes;
(ix)
5.1.2
moving rail wagons when grain/production ingredients are being unloaded.
Silo employee level 2 (85%)
An employee at this level performs work above and beyond the skills of an employee at level 1 to the level of their training for this level including
certification where relevant. An employee having successfully completed an agreed traineeship to this skill level shall fall within this classification.
(a) Skills/Duties:
(i)
Works under general supervision either individually or in a team environment;
(ii)
Understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality
deviation/faults;
(iii)
Possesses basic product and product coding knowledge;
(iv)
Undertakes duties in a safe and responsible manner.
(b) The following are indicative of the types of tasks a persons at this level may be required to perform in addition to those shown at level 1:
(i)
transfer of ingredients to mixing systems;
(ii)
filling one ton and half ton bags from mixers with the use of manual handling equipment;
(iii)
operate number 2 mixer utilising standard simple formulae including the operation of the grain roller mill associated with this mixer;
(iv)
assist stores in handling of product and or sock, including loading and unloading of all types of transport;
(v)
assist with grain milling;
(vi)
assist with loading of bulk delivery vehicles including weighing from simple formula for hopper operation;
(vii) use of manual handling equipment.
5.1.3
Silo employee level 3 (89%)
An employee at this level performs work above and beyond the skills of an employee at level 2 and to the level of their training for this level including
appropriate certification.
(a) Skills/Duties:
(i)
understands and is responsible for quality control standards of their own work;
(ii)
works in a team environment and/or under routine supervision;
(iii)
undertakes duties in a safe and responsible manner;
(iv)
exercises discretion within the employees level of skills and training;
(v)
possesses sound interpersonal and communication skills including telephone;
(vi)
able to understand detailed instructions and work from procedures;
(vii) may possess a limited boiler ticket;
(viii) may be undertaking training to obtain a C class boiler ticket and a stationary reciprocating steam engine ticket;
(ix)
may possess a C class driver’s licence;
(x)
possess and understanding of basic pest control procedures without formal qualifications;
(xi)
possess basic animal nutrition knowledge;
(xii) possess basic vdu/keyboard skills.
(b) The following are indicative of the tasks which an employee at this level may perform:
(i)
training as an operator of number one mixer or pellet press to include operation of all grain mills under supervision;
(ii)
manual handling machinery orgers and bucket elevators;
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1933
(iii)
training as an operator of number one plant (consisting of grain intake place, drying plant, and preliminary cooling and transferring
grain) under supervision;
(iv)
bulk truck loading and delivery;
(v)
operate public weighbridge;
(vi)
storekeeping including dispatch, receipt and transfer of goods, computer use and telephone customer service.
Silo employee level 4 (92%)
An employee at this level performs work above and beyond the skills of an employee at level 3 to the level of their training for this level including
certification where relevant.
(a) Skills/Duties:
(i)
able to understand detailed instructions and work from procedures;
(ii)
is able to co-ordinate work in a team environment under limited supervision;
(iii)
is responsible for own work without supervision;
(iv)
possess sound interpersonal and communication skills;
(v)
operates all mobile equipment including forklifts, hand trolleys, pallet trucks and overhead cranes;
(vi)
may possess 1C class boiler ticket;
(vii) may possess stationary reciprocating steam engine ticket.
5.1.5
Silo employee level 5 (100%)
–
–
Supervisors
Maintenance trade
An employee at this level performs work above and beyond the skills of an employee at level 4 to the level of their training for this level including trade
certification or tradespersons rights certificate where relevant.
(a) Skills/Duties:
5.2
(i)
exercises the skills attained through satisfactory completion of the training prescribed;
(ii)
provides trade guidance and assistance as part of a work team;
(iii)
assists in the provision of training in conjunction with supervisors and trainers;
(iv)
understands and implements quality control techniques;
(v)
provides supervision in a team environment.
Wage rates
Total Rate
Per Week
$
Level 1 ........................................................................................................................................................ 431.40
Level 2 ........................................................................................................................................................ 462.05
Level 3 ........................................................................................................................................................ 477.30
Level 4 ........................................................................................................................................................ 490.80
Level 5 ........................................................................................................................................................ 525.20
Silo employees classifications
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.
5.3
Allowances
5.3.1
Travelling time – recall to work
Employees required to work when called out after hours, shall be allowed not less than one hour’s wage for travelling time, and all additional fares to be paid
by the employer.
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Travelling time
Where during working hours an employee is shifted from one job to another or one silo to another, the cost of transportation or fares shall be borne by the
employer and time so occupied in travelling shall be paid for at ordinary rates.
5.3.3
Employees cleaning
When employees are engaged in cleaning boots, bins, elevators, the base of driers, and cyclone-room, they shall be paid at the rate of $9.3845 per hour whilst
so engaged.
5.4
Payment of wages
5.4.1
Except upon the termination of employment, all wages including overtime and allowances shall be paid weekly.
5.4.2
Payment of wages shall be made weekly at the discretion of the employer by one of the following means:
(a) Cash
(b) Cheque
5.4.3
Where an employee is paid in cash, payment for work performed during such a pay cycle shall not be held by the employer for a period in excess
of 2 days.
5.5
Superannuation
5.5.1
Application – In addition to the rates of pay prescribed by this Award, eligible employees, as defined herein, shall be entitled to occupational
superannuation benefits, subject to the provisions of this clause.
5.5.2
Contributions
(a) Amount – Every employer shall contribute on behalf of each eligible employee as from 4 September 1990 an amount calculated at 3% of
the employee’s ordinary time earnings, into an approved fund, as defined in this clause. Each such payment of contributions shall be
rounded off to the nearest 10 cents.
(b) Regular payment – The employer shall pay such contributions to the credit of each such employee at least once each calendar month or in
accordance with the requirements of the approved fund trust deed.
(c) Minimum level of earnings – No employer shall be required to pay superannuation contributions on behalf of any eligible employee whether
full-time, part-time, casual, adult or junior in respect of any week during which the employees’ ordinary time earnings, as defined in clause
5.5.3(d), do not exceed 35% of $309.00 (or such other sum as is determined from time to time in proceedings relating to the state wage or
safety net adjustments).
(d) Absences from work – Contributions shall continue to be paid on behalf of an eligible employee during any absence on paid leave such as
annual leave, long service leave, public holidays, sick leave and bereavement leave, but no employer shall be required to pay superannuation
contributions on behalf of any eligible employee during any unpaid absences except in the case of absence on workers’ compensation. In
the case of workers’ compensation the employer shall contribute in accordance with clause 5.5.2(a) whenever the employee is receiving by
way of workers’ compensation an amount of money no less than the Award rate of pay.
(e) Other contributions – Nothing in clause 5.5 shall preclude an employee from making contributions to a fund in accordance with the
provisions of clause 5.5.
(f) Cessation of contributions – An employer shall not be required to make any further contributions on behalf of an eligible employee for any
period after the end of the ordinary working day upon which the contract of employment ceases to exist.
(g) No other deductions – No additional amounts shall be paid by the employer for the establishment, administration, management or any other
charges in connection with the fund other than the remission of contributions as prescribed in clause 5.5.
5.5.3
Definitions
(a) “Approved fund” means a fund approved for the purposes of this Award by the Queensland Industrial Relations Commission as one to
which occupational superannuation contributions may be made by an employer on behalf of an employee, as required by this Award. Such
approved fund may be individually named or may be identified by naming a particular class or category.
(b) “Eligible employee” shall mean any employee who has been employed by the employer during 5 consecutive weeks and who has worked a
minimum of 50 hours during that period. After completion of the above qualifying period, superannuation contributions shall then be made
in accordance with clause 5.5.2 effective from the commencement of that qualifying period.
(c) “Fund” means a superannuation fund as defined in the Occupational Superannuation Standards Act 1987 and satisfying the superannuation
fund conditions in relation to a year of income, as specified in that Act and complying with the operating standards as prescribed by
Regulations made under that Act. In the case of a newly established fund, the term shall include a superannuation fund that has received a
notice of preliminary listing from the Insurance and Superannuation Commissioner.
(d) “Ordinary time earnings” shall mean the actual ordinary rate of pay the employee receives for ordinary hours of work including shift
loading and leading hand, in-charge or supervisory allowances where applicable. The term includes any overaward payment as well as
casual rates received for ordinary hours of work. Ordinary time earnings shall not include overtime, disability allowances, commission,
bonuses, lump sum payments made as a consequence of the termination of employment, annual leave loading, penalty rates for public
holiday work, fares and travelling time allowances or any other extraneous payments of a like nature.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
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For the purposes of this Award, an approved fund means
(a) Sunsuper.
(b) Any named fund as is agreed to between the relevant employer/Union parties to this Award and as recorded in an approved Industrial
Agreement.
(c) In the case of a minority group of employees of a particular employer, any Industry, Multi-Industry or other fund which has been approved in an
Award of, or an Agreement approved by, an Industrial Tribunal, whether State or Federal jurisdiction, and already has practical application to
the majority of Award employees of that employer.
(d) As to employees who belong to the religious fellowship known as the Brethren, who hold a Certificate issued pursuant to section 388 of the Act
and are employed by an employer who also belongs to that fellowship any fund nominated by the employer and approved by the Brethren.
(e) Any fund agreed between an employer and an employee who holds a Certificate issued pursuant to section 388 of the Act where
membership of a fund cited in an Award would be in conflict with the conscientious beliefs of that employee in terms of section 388.
(f) In relation to any particular employer, any other established fund to which that employer was already actually making regular and genuine
contributions in accordance with clause 5.5.2 on behalf of at least a significant number of that employer’s employees covered by this Award
as at 29 September 1989 and continues to make such contributions:
Provided that the making of a deposit, an initial or other contributions subsequent to 29 September 1989, but on a retrospective basis, in
respect of any period up to and including 29 September 1989, shall not under any circumstances bring a fund within the meaning of this
provision. The mere signing and submission of any nomination for membership documents to trustees of a fund prior to 29 September 1989
does not bring a fund within the meaning of this provision.
5.5.5
Challenge of a fund
(a) An eligible employee being a member or a potential member of a fund, as well as a Union whose registered list of callings incorporates any
of the classification/s of employees to whom this Award applies, may by notification of a dispute challenge a fund on the grounds that it
does not meet the requirements of clause 5.5.
(b) Notwithstanding that the Commission determines that a particular fund does not meet the requirements of this clause, the Commission may
in its discretion and subject to any recommendation, direction or order it may make, recognise any or all of the contributions previously
made to that fund as having met the requirements or part thereof of clause 5.5.2 up to and including the date of that determination.
(c) In the event of any dispute over whether any fund complies with the requirements of clause 5.5, the onus of proof shall rest upon the
employer.
5.5.6
Fund selection
(a) No employer shall be required to make or be prevented from making, at any one time, contributions into more than one approved fund.
Such fund, other than a fund referred to in clauses 5.5.4(c), (d), (e), (f) and (g), shall be determined by a majority decision of employees.
(b) Employees to whom these provisions apply who as at the date of this amendment are members of an established fund covered by clause
5.5.4(f) shall have the right by majority decision to choose to have the contributions specified in clause 5.5.2 of paid into a fund as provided
for elsewhere in clause 5.5.4 in lieu of the established fund to which clause 5.5.4(f) has application.
(c) The initial selection of a fund recognised in clause 5.5.4 shall not preclude a subsequent decision by the majority of employees in favour of
another fund recognised under that clause where the long term performance of the fund is clearly disappointing.
(d) Where this provision has been utilised and as a result another approved fund is determined, access to a further re-appraisal of the fund for
the purpose of favouring yet another fund shall not be available until a period of 3 years has elapsed after that utilisation of this provision:
Provided that the provisions of this clause do not preclude the making at any time of an Industrial Agreement within the terms of clause
5.5.4(b).
5.5.7
Enrolment
(a) Each employer to whom this clause applies shall as soon as practicable as to both current and future eligible employees:
(i)
notify each employee of their entitlement to occupational superannuation;
(ii)
consult as may be necessary to facilitate the selection by employees of an appropriate fund within the meaning of clause 5.5.4;
(iii)
take all reasonable steps to ensure that upon the determination of an appropriate fund each eligible employee, receives, completes,
signs and returns the necessary application forms provided by the employer to enable that employee to become a member of the fund;
and
(iv)
submit all completed application forms and any other relevant material to the trustees of the fund.
(b) Each employee upon becoming eligible to become a member of a fund determined in accordance with this clause shall:
(i)
complete and sign the necessary application forms to enable that employee to become a member of that fund; and
(ii)
return such forms to the employer within 28 days of receipt in order to be entitled to the benefit of the contributions prescribed in
clause 5.5.2.
(c) Where an employer has complied with the requirements of clause 5.5.7(a) and an eligible employee fails to complete, sign and return the
application form/s within 28 days of the receipt by them of that form/s, then that employer shall:
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(i)
Advise an eligible employee in writing of the non-receipt of the application form/s and further advise the eligible employee that
continuing failure to complete, sign and return such form/s within 14 days could jeopardise their entitlement to the Occupational
Superannuation benefit prescribed by clause 5.5.
(ii)
In the event that an eligible employee fails to complete, sign and return such application form/s within the specified period of 14 days
be under no obligation to make any occupational superannuation contributions in respect of such eligible employee excepting as from
any subsequent date from which completed and signed application form/s is received by the employer.
(iii)
In the event that an eligible employee fails to return a completed and signed application form/s within a period of 6 months from the
date of the original request by the employer, again advise that eligible employee in writing of the entitlement and that the receipt by
the employer of a completed and signed application form/s is a pre-requisite to the payment of any occupational superannuation
contributions.
(iv)
At the same time as advising the eligible employee pursuant to clause 5.5.7(c) (iii) hereof submit both to the Chief Industrial
Inspector, Brisbane and to the Secretary of a Union whose registered callings incorporate the classification of the eligible employee a
copy of each letter forwarded by them to the eligible employee pursuant to clause 5.5.7(c)(i) and 5.5.7(c)(iii).
(d) Where an employer fails to provide an eligible employee with an application form/s in accordance with clause 5.5.7(a)(iii) the employer
shall be obliged to make contributions as from the date of operation of this clause or from the date an employee became an “eligible
employee” if that occurs thereafter provided that an eligible employee completes, signs and returns to the employer an application form/s
within 28 days of being provided with the application form/s by the employer. Where an eligible employee fails to complete, sign and
return an application form/s within such period of 28 days the provisions of clause 5.5.7(c) shall apply.
5.5.8
Unpaid contributions
Subject to section 543 of the Act and to clause 5.5.5, where the discretion of the Commission has been exercised, should it be established that
the employer has failed to comply with the requirements of clause 5.5.2 in respect of any eligible employee such employer shall be liable to
make the appropriate contributions retrospectively to the date of eligibility of the employee, plus an amount equivalent to the rate of return those
contributions would have attracted in the relevant approved fund, or as necessary a fund to be determined by the Commission under clause 5.5.5,
had they been paid on the due dates.
The making of such contributions satisfies the requirements of clause 5.5 excepting that resort to clause 5.5.8 shall not limit any common law
action which may be available in relation to death, disablement or any similar cover existing within the terms of a relevant fund.
5.5.9
Exemptions
(a) An employer may apply to the Commission for exemption from all or any of the provisions of clause 5.5 in the following circumstances:
(i)
Incapacity to pay the costs associated with its implementation, or
(ii)
Any special or compelling circumstances peculiar to the business of the employer.
PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK
6.1
Hours of work and shift work
6.1.1
(a) Subject to 6.1.2, and subject to the exceptions hereinafter provided, 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 7 consecutive days; or
(ii)
76 hours within a work cycle not exceeding 14 consecutive days; or
(iii)
114 hours within a work cycle not exceeding 21 consecutive days; or
(iv)
152 hours within a work cycle not exceeding 28 consecutive days.
(b) Where shift work is required to be performed, the hours of work for the respective shifts shall be as follows:
(i)
Day shift – Commencing at 8.00 a.m. and ending at 4.00 p.m. Monday to Sunday inclusive.
(ii)
Afternoon shift – Commencing at 4.00 p.m. and ending at midnight Monday to Sunday inclusive.
(iii)
Night shift – Commencing at midnight on Sunday to Saturday and ending at 8.00 a.m. on the following days.
The working of broken shifts shall not be permitted.
(c) The ordinary hours of work prescribed herein shall be worked continuously, except for meal breaks and rest pauses between 6 a.m. and 6
p.m. Monday to Sunday inclusive. The spread of hours prescribed herein may be altered as to all or a section of employees provided there is
agreement between the employer and the majority of employees concerned:
Provided further that work done outside the hours of 6 a.m. to 6 p.m. shall be paid at overtime rates and will be deemed to be part of the
ordinary hours of work for the purposes of this clause.
(d) The ordinary hours of work prescribed herein shall not exceed 10 hours on any day:
Provided that where the ordinary working hours are to exceed 8 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 the arrangement of ordinary hours exceeds 8 on any one day, the Chief Industrial Inspector and the Union shall
be notified in writing within 14 days of commencement of work under such arrangement.
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1937
(e) 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.
(f) The ordinary starting and finishing times of various groups of employees or individual employees, may be staggered, provided that there is
agreement between the employer and the majority of employees concerned.
6.1.2
Working of a 38 hour week
(a) The 38 hour week shall be worked on one of the following bases, most suitable to the particular business, after consultation with, and giving
reasonable consideration to the wishes of the employees concerned:–
(i)
By employees working less than 8 ordinary hours each day; or
(ii)
By employees working less than 8 ordinary hours on one or more days each work cycle; or
(iii)
By fixing one or more work days on which all employees will be off during a particular work cycle; or
(iv)
By rostering employees off on various days of the week during a particular work cycle, so that each employee has one work day off
during that cycle.
(b) Employees may agree that the ordinary hours of work are to exceed 8 on any day, thus enabling more than one work day to be taken off
during a particular work cycle.
(c) Notwithstanding any other provision in this clause, where the arrangement of ordinary hours of work provides for a rostered day off, the
employer and the majority of employees concerned, may agree to accrue up to a maximum of 5 rostered days off. Where such agreement
has been reached, the accrued rostered days off shall be taken within 12 calendar months of the date on which the first rostered day off was
accrued. Consent to accrue rostered days off shall not be unreasonably withheld by either party.
(d) Different methods of implementation of the 38 hour week may apply to individual employees, groups or sections of employees in the
business concerned.
6.1.3
Procedures for enterprise level discussions
(a) The employer and all employees in each establishment shall consult over the most appropriate means of implementing and working a 38
hour week.
(b) The objective of such consultation shall be to reach agreement on the method of implementing and working the 38 hour week in accordance
with clause 6.1.
(c) The outcome of such consultation shall be recorded in writing.
(d) In cases where agreement cannot be reached as a result of consultation between the parties, either party may request the assistance or advice
of their relevant employee or employer organisation.
(e) Notwithstanding the consultative procedures outlined above, and notwithstanding any lack of agreement by employees, the employer shall
have the right to make the final determination as to the method by which the 38 hour week is implemented or worked from time to time.
(f) After implementation of the 38 hour week, upon giving 7 days’ notice or such shorter period as may be mutually agreed upon, the method of
working the 38 hour week may be altered, from time to time, following negotiations between the employer and employees concerned,
utilising the provisions of clause 6.1.
6.1.4
Emergencies
The employer shall have the right to change any roster in emergency circumstances arising from causes outside of the employer’s control which involve the
possibility of physical danger to employees or plant.
6.2
Meal breaks
6.2.1
Day work
(a) All employees shall be entitled to a meal break of not less than one half hour to be taken between the fourth and sixth hours from their
ordinary starting time each day.
(b) Except as hereinafter provided double time shall be paid for all work done during meal breaks and thereafter until a meal break is taken.
(c) Employees performing ordinary work in excess of 8 hours and up to 10 hours per day shall be entitled to a meal break of not less than one
half hour and not more than one hour to be taken at or about the fifth hour from the ordinary starting time each day.
(d) The duration of a meal break having been determined as the recognised meal break in accordance with clause 6.2.1 may be altered by either
the mutual agreement between the employer and the employees or by the employer in the case of a situation requiring continuity of the work
on the project or program.
Provided that:
(i)
the time of taking a scheduled meal break or rest break by one or more employees may be altered by an employer if it is necessary to
do so in order to meet a requirement for continuity of operations;
(ii) an employer may stagger the time of taking a meal and rest break to meet operational requirements.
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Shift work
Shift workers shall be allowed 30 minutes for crib without loss of pay to be taken in such a manner as not to interfere with the continuity of the work.
6.2.3
Overtime
Any employees who are required to continue work after their normal or rostered ceasing time shall be entitled to a 30 minute crib break after 2 hours.
6.2.4
Meal breaks during weekend overtime
Any employee required to work overtime on a Saturday or Sunday or their equivalent beyond the fifth hour of such overtime shall be entitled to an unpaid
meal break of 30 minutes.
Should an employee be required to continue such overtime beyond 9 hours, there shall be an entitlement to a further break of 30 minutes for which no
deduction of pay shall be made.
After each further 4 hours of overtime, an employee shall be entitled to a 45 minute break for which no deduction of pay shall be made, provided that they are
required to continue working thereafter.
6.3
Rest pauses
All employees shall be entitled to a rest pause of 10 minutes’ duration in the employer’s time in the first and second half of the daily work. Such rest
pauses shall be taken at such times as will not interfere with the continuity of work where continuity is necessary and may be taken in a manner which
results in both rest pauses being combined into one rest period of 20 minutes per day.
6.4
Overtime
6.4.1
All time worked before the ordinary starting time or after the ordinary ceasing time or outside the ordinary working hours or in excess of 38
hours per week shall be deemed to be overtime.
6.4.2
All overtime worked shall be recorded and payment for any overtime worked shall be subject to such recording be claimed, adjusted, and made
at the next ensuing date of payment of such employee.
6.4.3
Except as hereinafter provided all authorised work performed outside the normal starting and ceasing times as prescribed by roster established
pursuant to clause 4.1 shall be deemed to be overtime and shall be paid for at the rate of time and a-half for the first 3 hours and double time
thereafter: Provided that all authorised overtime performed on a Saturday or its equivalent shall be paid for a the rate of time and a-half for the
first 3 hours and double time thereafter with a minimum of 2 hours’ payment at overtime rates. Provided further that all authorised overtime
performed on a Sunday or its equivalent shall be paid for a the rate of double time with a minimum of 2 hours’ pay at overtime rates.
6.4.4
Shift work
All authorised overtime performed by shift workers shall be paid for at the rate of double time for all time worked.
6.4.5
Holidays
All time worked on the public holidays set out in clause 5.2 of this Award outside the ordinary working hours specified in this Award, prescribed by a roster or
usually worked on the day of the cycle on which the holiday is kept, shall be paid for at double the rate prescribed by this Award for overtime when worked
outside such working hours on an ordinary working day.
6.4.6
Call back or recall to duty
Where an employee is recalled to perform duty after completion of the normal or prescribed hours or after completion of the employee’s rostered shift and
having left the job site or on a rostered day off shall be paid for a minimum of 2 hours work at the appropriate overtime rate. Except in the case of unforeseen
circumstances the employee shall not be required to work the full 2 hours if the job for which the employee has been recalled is completed within a shorter
period.
Clause 6.4.6 shall not apply in cases where it is customary for an employee to return to the job site out of hours to perform a specific task where standard
overtime rates would apply.
Overtime worked in the circumstances specified in clause 6.4.6 shall not be regarded as overtime for the purposes of clause 6.4.5 where actual work is less
than 2 hours on such recall or on each of such recalls.
6.4.7
Rest period after performing overtime duty
An employee who works so much overtime between the termination of ordinary work on one day and the commencement of ordinary work on the next day
that the employee has not at least 10 consecutive hours off duty between these times shall, subject to this clause, be released after completion of such overtime
until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instructions
of their employer such an employee resumes or continues work without having had such 10 consecutive hours off duty, such employee shall be paid double
rates until such employee is released from such duty for such period and they shall then be entitled to be absent until such employee has had 10 consecutive
hours off duty without loss of pay for ordinary working time occurring during such absence.
The provisions of clause 6.4.7 shall apply in the case of shift workers who rotate from one shift to another as if 8 hours were substituted for 10 hours when
overtime is worked :
(a) for the purpose of changing shift rosters; and
(b) where a shift worker does not report for duty; and
(c) where a shift is worked by arrangement between the employees themselves.
6.4.8
Any employee called upon to work overtime for more than 2 hours after the ordinary ceasing time without receiving notice of such overtime on
the previous day shall be paid an allowance of $7.50 for a meal or shall be supplied by the employer with a reasonable meal in lieu of such
payment, in respect of each meal break allowed during such overtime as provided for in clause 6.2 (Meal Breaks) .
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Where employees have provided themselves with customary meals after receiving notice to work certain overtime employees shall be paid the
relevant meal allowance of $7.50 for each meal so provided in the event that the overtime work is not performed or ceases before the notified
time of conclusion of work which such time of conclusion would, but for the giving of prior notice, have involved payment of one or more meal
allowances.
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
7.1
Annual leave
7.1.1
Every employee (other than casuals) covered by this Award shall at the end of each year of employment, be entitled to an annual leave on full
pay as follows:
(a) All entitlements for annual leave, including accrued leave, shall be credited 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 division. Credits prior to the making of this Award will be converted as follows:
If in Weeks x 38 hours
If in Days x 7.6 hours
In Hours – No. of hours x 7.6 divided by 8
(b) Not less than 5 weeks if employed in shift work where 3 shifts per day are worked over a period of 7 days per week;
(c) Not less than 4 weeks in any other case.
7.1.2
Such annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave and (subject to clause 7.1.3)
shall be paid for by the employer in advance:
(a) In the case of any and every employee in receipt immediately prior to that leave of ordinary pay at the rate in excess of the ordinary rate
payable under this Award at that excess rate; and
(b) In every other case, at the ordinary rate payable to the employee concerned immediately prior to that leave under this Award.
7.1.3
If the employment of any employee is terminated at the expiration of a full year of employment, the employer shall be deemed to have given the
leave to the employees from the date of termination of employment and shall forthwith pay to the employee, in addition to all other amounts due,
pay calculated in accordance with clause 7.1.5 for 4 weeks and also ordinary pay for any public holiday occurring during such period of 4
weeks.
7.1.4
If the employment of any employee is terminated before the expiration of a full year of employment, such employee shall be paid, in addition to
all other amounts due, payment for pro rata annual leave in respect of every period of employment less than one year calculated in accordance
with clause 7.1.5.
One month’s notice (or such other period as may be agreed) of the commencement of annual leave shall be given by an employee to their
employer, or by the employer to the employee.
Except as hereinbefore provided, it shall not be lawful for the employer to give, or for any employee to receive, payment in lieu of annual leave.
7.1.5
Calculation of annual leave pay
In respect to annual leave entitlements to which this clause applies, annual leave pay (including any proportionate payments) shall be calculated
as follows:
(a) Shift workers – Subject to clause 7.1.5(c) the rate of wage to be paid to a shift worker shall be at the rate payable for work in ordinary time
according to the employee’s roster or projected roster, including Saturday, Sunday or public holiday shifts.
(b) All employees – Subject to the provisions of clause 7.1.5(c), in no case shall the payment by an employer to an employee be less than the
sum of the following amounts:
(i)
The employee’s ordinary wage rate as prescribed by this Award for the period of annual leave (excluding shift premiums and
weekend penalty rates);
(ii)
All purpose allowance;
(iii)
A further amount calculated at the rate of 17½ per cent of the amounts referred to in clauses 7.1.5(c)(i) and 7.1.5(c)(ii).
(c) Clause 7.1.5(c) does not apply to any period or periods of annual leave:
(i)
5 weeks in the case of employees employed in a calling where 3 shifts per day are worked over a period of 7 days per week; or
(ii)
4 weeks in any other case.
(iii)
Employers (and their employees) who are already paying (or receiving an annual holiday bonus loading or other annual holiday
payment which is not less favourable to employees.
(d) Annual leave, by agreement between the employer and the employee concerned may be given and taken in more than one period and may
be taken before the right thereto has accrued.
7.2
Sick leave
7.2.1
Entitlement
(a) Every employee, except casuals, and school-based apprentices and trainees, is entitled to 8 days’ sick leave for each completed year of their
employment with their employer.
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(b) This entitlement will accrue at the rate of one day’s sick leave after each 6 weeks of employment.
(c) Payment for sick leave will be made based on the ordinary number of hours that would have been worked if the employee were not absent
on sick leave.
(d) Sick leave may be taken for part of a day.
(e) 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 13 weeks’ absence from work through illness in any one year.
(f) Part-time employees accrue sick leave on a proportional basis.
7.2.2
Employee must give notice
The payment of sick leave is subject to the employee promptly advising their employer of their absence and its expected duration.
7.2.3
Evidence supporting a claim
When the employee’s absence is for more than 2 days the employee is required to give their employer a doctor’s certificate, or other evidence to the
employer’s satisfaction, about the nature and approximate duration of the illness.
7.2.4
Accumulated sick leave
An employee’s accumulated sick leave entitlements are preserved when:
(a) The employee is absent from work on unpaid leave granted by their employer;
(b) The employer or employee terminates the employee’s employment and the employee is re-employed within 3 months; or
(c) The employee’s employment is terminated because of illness or injury and the employee is re-employed by the same employer without
having been employed in the interim.
The employee accumulates sick leave entitlements whilst absent from work on paid leave granted by the employer.
7.2.5
Workers’ compensation
Where an employee is in receipt of workers’ compensation, the employee is not entitled to payment of sick leave.
7.3
Bereavement leave
7.3.1
Full-time and part-time employees
Full-time and part-time employees shall, on the death of a member of their immediate family or household in Australia, be entitled to paid bereavement
leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of
hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to the satisfaction of the employer.
7.3.2
Long-term casual employees
(a) A long-term casual employee is entitled to at least 2 days’ unpaid bereavement leave on the death of a member of the person’s immediate
family or household in Australia.
(b) A “long-term casual employee” is a casual employee engaged by a particular employer, on a regular and systematic basis, for several
periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under clause 7.3.2.
7.3.3
“Immediate family” includes:
(a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and
(b) A child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent,
grandparent, grandchild or sibling of the employee or spouse of the employee.
7.3.4
Unpaid leave
An employee with the consent of the employer, may apply for unpaid leave when a member of the employee’s immediate family or household in
Australia dies and the period of bereavement leave entitlement provided above is insufficient.
7.4
Long service leave
All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2,
Part 3, sections 42-58 of the Act as amended from time to time.
7.5
Family leave
The provisions of the Family Leave Award apply to and are deemed to form part of this Award.
7.5.1
It is to be noted that:
(a) part-time work can be performed by agreement in the circumstances specified in the Family Leave Award;
(b) a copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act.
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7.5.2
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1941
The Family Leave Award also provides for the terms and conditions of leave associated with:
(a) Maternity leave
(b) Parental leave
(c) Adoption leave
(d) Special responsibility leave for the care and support of the employee’s immediate family or household.
7.6
Public holidays
7.6.1
Subject to clause 7.6.7 all work done by any employee on:










the 1st January;
the 26th January;
Good Friday;
Easter Saturday (the day after Good Friday);
Easter Monday;
the 25th April (Anzac Day);
The Birthday of the Sovereign;
Christmas Day;
Boxing Day; or
any day appointed under the Holidays Act 1983, to be kept in place of any such holiday
will be paid for at the rate of double time and a-half with a minimum of 4 hours.
7.6.2
Labour day
All employees covered by this Award shall be entitled to be paid a full day’s wage for Labour Day (the first Monday in May or other day appointed under
the Holidays Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any employee
concerned actually works on Labour Day, such employee shall be paid a full day’s wage for that day and in addition a payment for the time actually
worked by them at one and a-half times the ordinary rate prescribed for such work with a minimum of 4 hours.
7.6.3
Annual show
All work done by employees in a district specified from time to time by the Minister by notification published in the Gazette on the day appointed under
the Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal city or town, as
specified in such notification, of such district shall be paid for at the rate of double time and a-half with a minimum of 4 hours.
7.6.4
Double time and one half
For the purpose of this clause, where the rate of wages if a full-time rate, “double time and a-half” shall mean one and one-half days’ wages in addition to
the prescribed full-time rate, or pro rata if there if more or less than a day.
When the ordinary work cycle provides for a rostered day off, the rostered day off shall not fall on a public holiday, but shall be on the ordinary working
day immediately before or immediately after the public holiday, or deferred and to be taken within 12 calendar months.
7.6.5
Substitution
Where there is agreement between the majority of employees concerned and the employer, and subject to public limitations, other ordinary working days
may be substituted for the public holidays specified in this clause:
Provided that, where an employee is subsequently required to work on such substituted day, the employee shall be paid the rate applicable for the holiday
that has been substituted.
7.6.6
Stand down
Any and every employee who, having been dismissed or stood down by their employer during the month of December in any year, shall be re-employed
by that employer at any time before the end of the month of January in the next succeeding year shall, if that employee shall have been employed by that
employer for a continuous period of 2 weeks or longer immediately prior to being so dismissed or stood down, be entitled to be paid and shall be paid by
their employer (at the ordinary rate payable to that employee when so dismissed or stood down) for any one or more of the following holidays, namely,
Christmas Day, Boxing Day, and the first day of January occurring during the period on and from the date of dismissal or standing down to and
including the date of re-employment as aforesaid.
Where works are closed down at the Easter period, payment shall be made for the following holidays at ordinary rates to employees who have been
employed for a period of not less than 3 months:
7.6.7
Good Friday and Easter Monday
The qualification of 3 months prior employment above provided shall not apply to deprive an employee of payment for Good Friday and Easter Monday,
where the period between Christmas and Easter is less than 3 months, if such employee has been continuously engaged between Christmas and Easter
and is re-engaged on reopening the works after Easter. Temporary breaks through wet weather shall not be deemed to break the continuity of
employment.
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
NOTE: No provisions inserted in this Award relevant to this Part.
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PART 9 – TRAINING AND RELATED MATTERS
9.1
Training
9.1.1
The parties to this Award recognise that in order to increase the efficiency and productivity of the enterprise and also the national and
international competitiveness of the industries covered by this award, a greater commitment to training and skill development is required.
Accordingly, the parties commit themselves to:
(a) developing a more highly skilled and flexible workforce;
(b) providing employees with career opportunities through appropriate training to acquire additional skills; and
(c) removing barriers to the use of skills acquired.
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
10.1
Tools to be supplied
All tools shall be supplied free by the employer to all employees provided for under the Award. All reasonable care shall be taken of the tools by the
employee, and the employee shall return them to a responsible officer when finished with.
10.2
First aid material
The employer shall keep on the premises a supply of first aid material.
10.3
Juniors’ work
Juniors shall not be called upon to sew and handle full bags of maize or to do work that is usually performed by an adult.
10.4
Accident or sickness
Employees who have commenced work and are unable to continue, through sickness or accident not caused by their own misconduct, shall be paid as for a
full shift.
An employee who has been injured on the job, and in consequence has been off duty, shall be re-employed on recovery:
Provided that application for re-employment shall be made within one month from the date of injury.
10.5
Boiling water
Boiling water shall be provided by the employer during the mid-day meal hour and during the rest pauses in the first and second half of the employee’s daily
work.
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Preamble
Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are
advised to refer to sections 366, 372 and 373 of the Act as amended from time to time.
11.1
Right of entry
11.1.1
Authorised Industrial Officer
(a) An “Authorised Industrial Officer” is any union official holding a current authority issued by the industrial registrar.
(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union.
11.1.2
Entry procedure
(a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as:
(i)
the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and
(ii)
shows the authorisation upon request.
(b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent.
(c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry.
(d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a
trespasser.
11.1.3
Inspection of records
(a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act.
(b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee:
(i)
is ineligible to become a member of the authorised industrial officer’s Union; or
(ii)
is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or
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(iii)
QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
1943
has made a written request to the employer that they do not want their record inspected.
(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer.
(d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by
an authorised industrial officer.
11.1.4
Discussions with employees
An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the authorised
industrial officer’s Union:
(a) matters under the Act during working or non-working time; and
(b) any other matter with a member or employee eligible to become a member of the authorised industrial officer’s Union, during non-working
time.
11.1.5
Conduct
An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry.
11.2
Time and wages record
11.2.1
An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period
for each employee, including apprentices and trainees:
(a) the employee’s award classification;
(b) the employer’s full name;
(c) the name of the Award under which the employee is working;
(d) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and
details of work breaks including meal breaks;
(e) a full-time, daily or hourly wage rate – details of the wage rate for each week, day, or hour at which the employee is paid;
(f) the gross and net wages paid to the employee;
(g) details of any deductions made from the wages; and
(h) contributions made by the employer to a superannuation fund.
11.2.2
The time and wages record must also contain:
(a) the employee’s full name and address;
(b) the employee’s date of birth;
(c) details of sick leave credited or approved, and sick leave payments to the employee;
(d) the date when the employee became an employee of the employer;
(e) if appropriate, the date when the employee ceased employment with the employer; and
(f) if a casual employee’s entitlement to long service leave is worked out under section 47 of the Act – the total hours, other than overtime,
worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.
11.2.3
The employer must keep the record for 6 years.
11.2.4
Such records shall be open to inspection during the employer’s business hours by an inspector of the Department of Industrial Relations, in
accordance with section 371 of the Act, or an Authorised Industrial Officer in accordance with sections 372 and 373 of the Act.
11.3
Trade union training authority leave
11.3.1
Upon written application by an employee to an employer such application being endorsed by the Union and giving to the employer at least one
month’s notice, such employee shall be granted up to 5 working day’s leave (non-cumulative) on ordinary pay each calendar year to attend
courses and seminars conducted by the Australian Trade Union Training Authority (TUTA).
For the purposes of these provisions “ordinary pay” shall mean at the ordinary full-time rate paid to the employee exclusive of any allowance for
travelling time and fares or shift work.
The granting of such leave shall be subject to the following conditions:
(a) An employee must have at least 12 months’ uninterrupted service with an employer prior to such leave being granted;
(b) This clause shall not apply to an employer with less than 10 full-time employees bound by this Award;
(c) The maximum number of employees of one and the same employer attending a TUTA course or seminar at the same time will be as
follows:
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QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE
Where the employer employs from
10 to 100 employees
2
Where the employer employs over
200 employees
4
24 April, 2003
Provided that where the employer has more than one place of employment in Queensland, then the formula above shall apply to the number of
employees employed in or from each individual place of employment.
(d) The granting of such leave shall be subject to the convenience of the employer and so that the operations of the employer will not be unduly
affected.
(e) The scope, content and grade of the course shall be such as to contribute to a better understanding of industrial relations within the
employer’s operations.
(f) In granting such paid leave, the employer is not responsible for any additional costs except the payment of extra remuneration where
relieving arrangements are instituted to cover the absence of the employee.
(g) Leave granted to attend TUTA courses will not incur additional payment if such course coincided with the employee’s day off in 38 hour
week working arrangements or with any other concessional leave.
(h) Such paid leave will not affect other leave granted to employees under this Award.
11.4
Award posting
A true copy of this Award shall be exhibited in a conspicuous and convenient place on the premises of the employer so as to be easily read by employees.
11.5
Union encouragement
Clause 11.5 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of
Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union.
11.5.1
Documentation to be provided by employer
At the point of engagement, an employer to whom this Award applies shall provide employees with a document indicating that a Statement of Policy on
Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by
each employee.
The document provided by the employer shall also identify the existence of a union encouragement clause in this Award.
11.5.2
Union delegates
Union delegates and job representatives have a role to play within a workplace. The existence of accredited union delegates and/or job representatives is
encouraged.
The employer shall not unnecessarily hinder accredited union delegates and/or job representatives in the reasonable and responsible performance of their
duties.
11.5.3
Deduction of union fees
Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of union fees for employees
who signify in writing to their employer, their desire to have such membership fees deducted from their wages.
Dated 13 March 2003.
By the Commission,
[L.S.] E. EWALD,
Industrial Registrar.
Operative Date 12 May 2003