CITATION: | Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2022] ICQ 6 |
PARTIES: | TOGETHER QUEENSLAND INDUSTRIAL UNION OF EMPLOYEES (appellant) v STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES) (respondent) |
FILE NO/S: | C/2020/11 |
PROCEEDING: | Appeal |
DELIVERED ON: | 24 February 2022 |
HEARING DATE: | 20 October 2020 |
MEMBER: | Davis J, President |
ORDER/S: |
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CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO THE INDUSTRIAL COURT – GENERALLY – where the appellant trade union bargained a certified agreement – where the certified agreement provided for the removal of qualification requirements for promotion to higher pay levels – where the certified agreement provided that State Wage Case increases would not apply – where it was agreed that the removal of State Wage Case increases was offset by easier progression to higher wage scales – where the certified agreement passed the “no disadvantage” test – where the parties overlooked a Ministerial direction granting State Wage Case increases beyond award levels in certified agreements – whether the directive operated to grant increases in wages beyond the wages set by the certified agreement Correctional Employees Award – State 2015 Fair Work Act 2009 |
CASES: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, followed |
COUNSEL: | M Amerena with C Massy for the appellant C Murdoch QC with E Shorten for the respondent |
SOLICITORS: | Maurice Blackburn for the appellant Crown Law for the respondent |
“1. A declaration that:
Employees engaged by the State of Queensland in Queensland Corrective Services pursuant to the CORRECTIONAL EMPLOYEES AWARD - STATE 2015 in classifications GS Level 1.1-1.7 inclusive are entitled to be paid the rates specified in the CORRECTIONAL EMPLOYEES AWARD - STATE 2015 for these classifications in lieu of the rates in Queensland Corrective Services - Correctional Employees’ Certified Agreement 2016.”
Background
“Background to the Application
[8] As part of its log of claims for the 2016 Agreement, the Applicant[2] sought a 2.5% headline wage increase per annum over 3 years and changes to the classification structure in the 2016 Agreement to remove educational barriers for officers. One of the key priorities for the Applicant’s members was the removal of the progression barriers within the classification structure that effectively reduced the achievable salary range of a base-grade correctional officer without an undergraduate degree.
[9] The proposed changes to the classification structure was a ‘big ticket item on the EB[3] shopping list’; had been a long running issue for corrective service officers; and was the subject of negotiations during the last four enterprise bargaining agreements.
[10] Although the Respondent[4] was able to agree to a headline wage increase of 2.5%, it could not, in addition, accept the changes to the classification structure as it would have exceeded the amount of funds available under the State wage policy. The Respondent was open to considering the changes to the classification structure, so long as it was within the ‘envelope’ of funding available, being approximately $30 million (pending ultimate government approval). In order to try to ‘fit’ the cost of the changes to the classification within the funding envelope, several financial models were developed which essentially involved inter alia limiting the headline pay increases for particular cohorts of employees.
The Proposal
[11] In May 2016 the Applicant proposed a ‘model’ that it wished to pursue as part of the 2016 Agreement.
[12] The proposal, at its core, involved the removal of educational barriers to allow employees to accelerate more quickly within the structure. The model pursued by the Applicant was as follows:
a. Custodial officers between classifications COl-1 to C0l‑7 being able to progress to C0l-7 with a Certificate III;
b. Custodial officers between C0l-8 to COI-9 being able to progress to C0l-9 with a Certificate N;
c. Trade Instructors being able to progress up to C02-4 with a Diploma;
d. Supervisors being able to progress up to C03-4 with a Diploma;
e. To offset the costs of the new classification structure, custodial officers in classifications C0l-1 to C0l-7 receive wage increases of 0.5% in Year 1 of the 2016 Agreement, 0.5% in Year 2 of the Agreement and 0% in Year 3 of the 2016 Agreement;
f. All other officers covered by the 2016 Agreement would receive 2.5% wage increases in each of the three years of the 2016 Agreement.
[13] Prior to the 2016 Agreement the classification structure was such that:
a. Custodial officers were not able to progress beyond GS1‑2 without a Certificate III;
b. Custodial officers were not able to progress beyond GS1‑4 without a Certificate IV;
c. Custodial officers were not able to progress beyond GS1‑7 without a Diploma;
d. Trade Instructors were not able to progress beyond GS2‑2; and
e. Supervisors were not able to progress beyond GS3-1.
[14] Ultimately, the proposal was accepted by the Respondent and formed part of the draft 2016 Agreement. However, during the negotiations the Respondent raised concerns with the Applicant about the potential impact of future State Wage Cases, namely, the potential for wage rates under the Award to increase and surpass the wage rates contained in the 2016 Agreement in respect of officers within classifications C0l-1 to C0l-7.
Impact of the State Wage Case
[15] The potential impact of the State Wage Case on wage rates in the 2016 Agreement was in the contemplation of the parties at the time of the negotiations. At the enterprise bargaining meeting held on 11 May 2016, the Respondent discussed a way in which the parties to the 2016 Agreement could be insulated from the findings of the State Wage Case.
[16] The parties agreed to deal with the potential impact of the State Wage Case on the wage rates in the 2016 Agreement by including the following clause:
1.7 No Further Claims
1.7.1 This agreement is in full and final settlement of all parties’ claims for its duration, it is a term of this agreement that no party will pursue any extra claims relating to wages or conditions of employment whether dealt with in this agreement or not.
1.7.2 Subject to sub-clause (1.7.3) herein, the following changes may be made to employees’ rights and entitlements during the life of this agreement:
a) Rulings and Statements of Policy issued by the Queensland Industrial Relations Commission that provide conditions that are not less favourable than current conditions;
b) Reclassifications.
1.7.3 The Queensland Industrial Relations Commission State Wage Increases awarded during 2016 and thereafter will not be in addition to the wage increases provided by this agreement.
1.7.4 Further, in recognition of the enhanced classification progression arrangements introduced as a result of this agreement, the parties have agreed that where the Queensland Industrial Relations Commission State wage case increases awarded during 2016 and thereafter increase the Award rates for classification level GS Level 1.1 to classification level GS Level 1.7 inclusive, to rates higher than the rates provided for by this Agreement, the rates within this agreement are to prevail and continue to prevail over the Award rates.
[17] The 2016 Agreement was certified by the Commission on 11 November 2016 under the Industrial Relations Act 1999 (‘IR Act 1999’). In doing so, Deputy President Bloomfield was satisfied that the requirements for certification under the IR Act 1999 had been complied with, in particular, there was no disadvantage to anyone who would be covered by the 2016 Agreement.
[18] From 1 September 2017, as a result of the State Wage Case, the Award rates for the employees under classification GS Level 1.1 exceeded those payable under the 2016 Agreement.
[19] From 1 September 2018, the effect of the State Wage Case was that the Award rates for the employees under classification GS Level·1.2 to 1.7 exceeded those payable under the 2016 Agreement.
[20] The issue, central to this matter, began to emerge on 2 October 2018 when the Minister for Education and Minister for Industrial Relations issued correspondence to public servants covered by a separate certified agreement stating inter alia that the effect of Directive 12/12 was that where there was a difference between the underlying award rate and the certified agreement rate, the higher award rate would be paid.
[21] On 31 January 2019, Mr Alex Scott, the Secretary of Together Queensland wrote to the Corrective Services Commissioner, Mr Peter Martin, initiating negotiations for the replacement of the 2016 Agreement. Mr Scott’s correspondence also raised some concerns about the legal status of the No Further Claims clause in the 2016 Agreement where he maintained the Minister had previously stated:
The no disadvantage provisions in the Public Services Directive 12/12 ... ensure that where there is a difference between the award rate and the agreement rate, the higher level will be paid.
[22] In response, Deputy Commissioner, Mr James Koulouris noted:
... a key initiative of the current Agreement has resulted in significant changes to the progression arrangements for staff in the classification levels GS1-1 to GS1-7. This initiative has resulted in many staff progressing to higher classification levels and receiving the higher rate of pay associated with those classification levels.
... both QCS and the Together Union were mindful to ensure that any increases to Award wages would not apply where these Award rates exceed the Agreement for classification levels GSl-1 through to GSl-7. This understanding is specifically enshrined in clause 1.7.4 of the Agreement.
[23] Negotiations for a replacement agreement have been underway since 2019. A resolution of this controversy is said by the Applicant to be necessary to aid those negotiations.”[5]
“2.1Wage Increases
2.1.1 The wage increases for classifications GS Level 1.1 to GS Level 1.7 inclusive provided for under this Agreement will be:
• 0.5% on 1 May 20 16;
• A further 0.5% on 1 May 20 17; and
• 0.00% on 1 May 20 18.
2.1.2 The wage increases for all other classifications provided for under this Agreement will be:
• 2.5% on 1 May 2016;
• A further 2.5% on 1 May 2017; and
• A further 2.5% on 1 May 2018.
2.1.3 The first wage increase to be paid under clause 2.1.1 will be based on the final rates payable under the Queensland Corrective Services - Correctional Employees’ Certified Agreement 2013.
2.1.4 The wages payable in accordance with clause 2.1 are set out in Appendix 1.
2.1.5 Subject to clause 1.7.4 above arbitrated wage adjustments under State Wage Cases are offset against rates of pay received by employees under this Agreement which are above the wage rates prescribed in the Award.”
“1. TITLE: State Wage Case and Certified Agreements
2. PURPOSE: This ruling provides that State Wage Cases do not increase the wages paid under certified agreements.
3. LEGISLATIVE
PROVISIONS: Sections 52 and 54 of the Public Service Act 2008. Section 687 of the Industrial Relations Act 1999.
4. APPLICATION: This directive applies to all public service employees who are covered by a certified agreement.
5. DEFINITIONS: award is as defined in the Industrial Relations Act 1999 (Qld)
certified agreement is as defined in the Industrial Relations Act 1999 (Qld)
State Wage Case means a Ruling or a Statement of Policy of the Queensland Industrial Relations Commission made under section 287 or 288 of the Industrial Relations Act 1999 (Qld) about the Queensland minimum wage
6. RULING: A State Wage Case does not increase the wages paid under a certified agreement.
However, where a State Wage Case has the effect that an award provides for wages which are greater than a certified agreement that applies to the employees covered by the award, the award wages prevail.
7. EFFECTIVE
DATE: This directive is to operate from 30 November 2012.
8. VARIATION: This directive can be varied by-
• the Minister responsible for industrial relations; or
• legislation.
9. INCONSISTENCY:
Sections 52 and 54 of the Public Service Act 2008 and sections 686 and 687 of the Industrial Relations Act 1999 apply when there is an inconsistency between an act, regulation or industrial instrument.
10. SUPERCEDES: None.
11. PREVIOUS
REFERENCES: None.”
“52 Relationship between directives and industrial instruments
directive includes—
54 Rulings by industrial relations Minister
non-executive employees means public service employees other than—
“[56] Consistent with the submission of the Respondent, we do not consider that the comparison is the simple ‘dollar for dollar’ exercise as contended by the Applicant. In comparing wages in the Award as against those in the 2016 Agreement, it is necessary to consider the full effect of the 2016 Agreement as it pertains to wages.
[57] The 2016 Agreement provides for enhanced progression through classifications, and the expedited access to higher wages for those covered by those classifications. For a fair comparison with the Award wages to be undertaken it is necessary to consider the wages paid to those employees over the life of the 2016 Agreement, as opposed to a ‘snapshot’ at a single point in time.
[58] We do not accept the Applicant’s argument that the wages provided for in the 2016 Agreement are less favourable than the wages provided for in the Directive. Rather, we accept that the wages of employees in classifications GS Level 1.1 to 1.7 include the value and additional wages these employees receive through the enhanced classification progression arrangements.
[59] The enhanced classification progression arrangements give employees in these classifications the capacity to benefit from a higher wage rate over the life of the 2016 Agreement, as they progressed through the classification structure to higher levels than they would otherwise would have achieved under the Award.
[60] In the circumstances, we consider Directive 12/12 is inconsistent with the 2016 Agreement and accordingly neither s52(3) of the PS Act or Directive 12/12 have application. It follows therefore that the Respondent is not required to pay the rates of pay as provided for by the Award.”[13]
The present appeal
What is the proper construction of the provisions of the Public Service Act 2008, the industrial instruments and the direction?
“19 Relationship of modern award with certified agreement
…
“199 No-disadvantage test
The commission must be satisfied the proposed bargaining instrument passes the no-disadvantage test under division 3.
210 When proposed bargaining instrument passes the no-disadvantage test
entitlements or protections means the entitlements or protections under—
“Clause 1121 omits and inserts a new section 52 (Relationship between directives and industrial instruments) to address the relationship between directives that deal with the same subject matter in whole or in part) as an industrial instrument.
At subsection (2) it provides that if a directive is inconsistent with an industrial instrument, the industrial instrument prevails to the extent of the inconsistency between the directive and the industrial instrument. Inconsistency between directives and instruments was previously contemplated in the legislation, including at section 687(2) of the Industrial Relations Act 1999 and is intended to have the same meaning in this provision, being substantive inconsistency for the cohort of employees contemplated by the directive or part thereof. Subsection (3) clarifies further the meaning of inconsistent, making it clear that where remuneration and conditions of employment are ‘at least as favourable’ as the remuneration and conditions of employment provided in the industrial instrument, they will not be considered inconsistent. Conditions of employment is wider than remuneration and includes rates of pay, hours or work or leave or other similar employee entitlements. It is not anticipated that reasonable employer administrative measures or processes or matters of managerial prerogative contemplated in a directive from time to time would be inconsistent with an industrial instrument.”
Conclusion and orders
[1] Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2020] QIRC 73.
[2] The Together Queensland Industrial Union of Employees; the present appellant.
[3] Enterprise Bargaining.
[4] The State as the Department of Queensland Corrective Services.
[5] Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2020] QIRC 73.
[6] Together Queensland, industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2020] QIRC 73, paragraphs [20]-[22], set out at paragraph [5] of these reasons.
[7] Public Service Act 2008, s 4 and Schedule 4, Dictionary; Industrial Relations Act 2016, s 6 and Schedule 5, Dictionary.
[8] Referred to in the Ministerial directive.
[9] As found by the Full Bench; Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2020] QIRC 73, paragraphs [18]-[19] set out at paragraph [5] of these reasons.
[10] Public Service Act 2008, s 52(3).
[11] Public Service Act 2008, s 52 and Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2020] QIRC 73 at [45].
[12] Public Service Act 2008, s 52(3).
[13] Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2020] QIRC 73 at [56]-[60].
[14] Industrial Relations Act 2016, s 557(1)(a).
[15] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 419-421 and Ex parte McLean (1930) 43 CLR 472 at 479.
[16] Although sometimes complications can arise; Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389.
[17] Email to the Court and the parties, 21 December 2020.
[18] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14], [35]-[40] and The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 at [32].
[19] Byrnes v Kendle (2011) 243 CLR 253 at [95]-[116].
[20] Certain Lloyd’s Underwaters v Cross & Ors (2012) 248 CLR 378.
[21] Industrial Relations Act 2016, s 7(1)(a), Public Service Act 2008, ss 3 and 9.
[22] Public Service Act 2008, ss 9, 13, 48, 49A, 54A, 197, 217, 293, 294 and Schedule 4, Dictionary.
[23] Public Service Act 2008, Schedule 4, Dictionary, definition of “award”, “industrial instrument”, “industrial matter”, “industrial registrar”, “industrial relations minister” and “IRC” meaning the Commission under the Industrial Relations Act 2016.
[24] Public Service Act 2008, s 4 and Schedule 4, Dictionary, definition of “industrial instrument”
[25] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420.
[26] Public Service Act 2008, s 52, Industrial Relations Act 2016, s 19.
[27] Industrial Relations Act 2016; ss 458-460.
[28] See, for example, Declaration of General Ruling (State Wage Case 2021) [2021] QIRC 293.
[29] Declaration of General Ruling (State Wage Case 2017) [2017] QIRC 081, Declaration of General Ruling (State Wage Case 2018) [2018] QIRC 113, Declaration of General Ruling (State Wage Case 2019) [2019] QIRC 169 and 170.
[30] Public Service Act 2008, s 4, Schedule 4, Dictionary, definition of “industrial instrument” as including “certified agreement” by reference to the definition of “industrial instrument” in the Industrial Relations Act 2016.
[31] Industrial Relations Act 2016, Chapter 4.
[32] Industrial Relations Act 2016, s 19.
[33] Emphasis added.
[34] Set out at paragraph [8] of the these reasons.
[35] See paragraphs [30]-[32] of these reasons.
[36] See paragraph 6 of the directive.
[37] The Directive, paragraph 6.
[38] The Directive, paragraph 6.
[39] The Industrial Relations Act 1999, which was the predecessor of the Industrial Relations Act 2016, and where both provided for collective bargaining.
[40] Emphasis added.
[41] Emphasis added.
[42] Public Service Act 2008, s 52(3).
[43] Public Service Act 2008, s 52.
[44] Public Service Act 2008, s 52.
