CITATION: | Queensland Services, Industrial Union of Employees v Council of The City of Gold Coast [2024] ICQ 6 |
PARTIES: | QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES (appellant) v COUNCIL OF THE CITY OF GOLD COAST (respondent) |
FILE NO: | C/2023/27 |
PROCEEDING: | Appeal |
DELIVERED ON: | 11 March 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 February 2024 |
MEMBER: | Davis J, President |
ORDER: | Appeal dismissed |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – where the Union’s member was employed by the Council of the City of Gold Coast (the Council) – where the employment was governed by a certified agreement – where the certified agreement provided for employees to work 36.25 hours per week across a nine day fortnight – where the agreement provided that the Council may designate some positions as ten day a fortnight positions – where ten day a fortnight positions attract no rostered day off and 40.3 hours per week work with a 14% pay loading – where the Union’s member took parental leave – where the Union’s member held a ten day a fortnight position – where the Union’s member returned to the same position – where upon return to work the Union’s member worked part-time by agreement of the Council – where the Agreement provided a formula for the calculation of part-time remuneration – whether the calculation should be on the basis of the longer hours and 14% loading of a ten day per fortnight position |
LEGISLATION: | Industrial Relations Act 2016, s 88, s 557, s 565, Sch 5 |
CASES: | Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 cited Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 cited Ex parte McLean (1930) 43 CLR 472; [1930] HCA 12 cited Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29 followed Illawarra County Council v Federated Municipal & Shire Employees’ Union of Australia (1985) 11 IR 18 cited Qantas Airways Ltd v Christie (1998) 193 CLR 280; [1998] HCA 18 cited Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2023] QIRC 181 related R v A2 (2019) 269 CLR 507; [2019] HCA 35 followed Thomson v Orica Australia Pty Ltd (2002) 116 IR 186; [2002] FCA 939 cited |
REPRESENTATION: | N Henderson, Secretary of the Appellant M Osborne (solicitor), Norton Rose Fulbright for the Respondent |
Background
“Salary
On commencement your salary will be $105,135.76 per annum. This salary is commensurate with your employment on a ten day fortnight. Your classification will be Level 8, Incremental Step 1 as per the Queensland Local Government Officers Award.
Hours
Your working hours are based on 40.3 per week[2], working a ten day fortnight. Core business hours are from 6am to 6pm. Start and finish times are set to meet operational requirements, by mutual agreement.”
Based on annual salary without 14% loading
Based on annual salary plus 14% loading
“Where an employee, who is engaged to work a ten (10) day fortnight under clause 6.3 of the City of Gold Coast Certified Agreement 2019 (Agreement) requests to return to work after a period of primary carers leave on a part-time basis, do the provisions of clause 9.5.14 of the Agreement entitle the employee to be paid the salary equivalent to their ten (10) day fortnight position on a pro rata basis?”[3]
“a. at [62] when the Commission determined that the designation of the affected employee’s role as a 10 day fortnight did not set it aside from other provisions of the City of Gold Coast Agreement 2019 (the 2019 Agreement).
b. at [64] in finding that the position that the affected employee was entitled to return to under the provisions of clause 9.5.14 of the 2019 Agreement did not include all of the entitlements of the position including the designated rate of pay.
c. at [67] in finding that the provisions of Clause 6.3 of the 2019 Agreement applied, when the applicable provisions are contained in Clause 9.5.11 a iii.
d. in finding that the employee was a part time employee when the employee was an employee who had an entitlement to return to work in the position which they held immediately before proceeding on Primary Care Leave and the right to request a return to work on a part time basis in that position.”[5]
Proper construction of the 2019 Agreement
“1.8. Relationship to Modern Awards
“1.8.1 This Agreement shall be read and interpreted wholly in conjunction with the Modern Awards, provided that where there is any inconsistency, this Agreement shall prevail.
1.8.2 Further, where this Agreement is silent, the provisions of the relevant Modern Award, shall apply.”
“12. Classifications and minimum wage and salary levels
“88 Return to work after parental leave etc.
(a) parental leave; or
(b) special pregnancy-related leave or sick leave under section 85.
(a) the position held by the employee immediately before starting parental leave; or
(b) if the employee worked part-time because of the pregnancy before starting birth-related leave—the position held by the employee immediately before starting part-time work; or
(c) if the employee was transferred to a safe job under section 89 before starting birth-related leave—the position held by the employee immediately before the transfer.
…” (emphasis added)
“3.2 Part-time employment
3.2.1 The City acknowledges the importance of work arrangements that assist staff to balance their various work and life responsibilities. Employees may wish to seek flexible or part time work arrangements for a variety of reasons. Part-time work is an option that is currently available to City Employees where operational requirements permit. Within that limitation, the City is committed to providing Employees with access to flexible work options that enhance their work and life balance.
3.2.2 Part-time employment means employment for fewer than the normal weekly ordinary hours specified for a full-time Employee by the relevant Modern Award, and for which entitlements are paid on a pro-rata basis.
3.2.3 At the time of employment on a part-time basis, the City and the part-time Employee will agree in writing on a pattern of work relevant to the position, which will specify the number and the spread of ordinary weekly hours to be worked. The agreed pattern of work may be varied by mutual agreement. Any such agreed amendment to the Employee’s hours of work will be recorded in writing.
3.2.4 The ordinary hourly rate of pay for a part-time Employee will be calculated by dividing the annual salary (as specified in this Agreement for the Employee’s classification) by fifty-two (52) and then dividing the result by the normal weekly ordinary hours specified for a full-time Employee by the Modern Award relevant to the part-time Employee’s classification.
...”
“6.2 Nine-day fortnight provisions
6.2.1 In addition to the provisions contained within the relevant Modern Award, this clause only applies to Employees covered by the Queensland Local Government Industry (Stream A) Award – State 2017.
6.2.2 Hours of duty
a. Except in accordance with clause 6.1, the indicative ordinary hours of duty to be worked by employees working a nine-day fortnight arrangement may be as follows:
8.00am Commence work
10 minute Tea break to be taken mid-morning
45 minute Lunch break taken between noon and 2.00pm
4.40pm Finish work.
b. Notwithstanding the above, the ordinary hours of duty for Employees on this arrangement shall be in accordance with the Queensland Local Government Industry (Stream A) Award – State 2017, being an average of 36.25 hours per week or 7.25 hours per day, inclusive between the hours of 6.00am to 6.00pm. This spread of hours is available to ensure flexibility in relation to the start and finish times so that each Branch / Work Unit is able to set the Employees’ hours of work to meet their own operational requirements by mutual agreement in writing with the Employee.
c. The Parties acknowledge that the daily standard ordinary hours (as specified above) include an earlier finish time, in return for forgoing an afternoon tea break of ten (10) minutes. In other words, no afternoon tea break is taken so that the Employee’s finish time can be earlier.
6.2.3 Days off
a. Each Employee working the hours provided in clause 6.2 above shall be entitled to a rostered day off without reduction in pay each and every fortnight of employment. The day on which such rostered day off is to be taken, shall be determined by mutual agreement between the Supervisor / Manager or delegated person and the Employee.
b. Where a rostered day off falls on a day prescribed as a public holiday in clause 9.13 of this Agreement, an additional rostered day off in lieu shall be made available.
c. The Supervisor / Manager or delegated person shall prepare rosters in accordance with the above for each quarter. Such rosters shall be displayed on the City’s notice boards at least two (2) weeks before the commencement of each quarter.
d. Where special circumstances can be demonstrated an Employee may request and the Manager may approve the rostered day off each fortnight being on some other day. Flexible use of RDOs will be available in accordance with clause 6.4 of this Agreement. Where special circumstances exist, an Employee’s rostered day off may be postponed from its rostered date to some other day.
e. Employee’s employed pursuant to this clause, who supervise or support Employees who work a nine (9) day fortnight with a common rostered day off shall be entitled to have the same day off without reduction in pay as the Employees they supervise or support.
…”
“6.3 Ten-day Fortnight provisions
6.3.1 The conditions applicable in this clause apply to Employees within the classifications contained in the Queensland Local Government Industry (Stream A) Award - State 2017, and whose position is assessed, as requiring them to be present each working day. For the avoidance of any doubt, the provisions contained within this clause will override any provisions contained within any Local Area Agreement.
6.3.2 Certain positions within the classifications described above, may be required to be present over ten (10) days per fortnight (and therefore not able to enjoy an RDO arrangement) and are employed on a ten (10) day fortnight basis, with an additional loading paid. This arrangement is set out in this clause.
6.3.3 Hours of Duty – Ten Day Fortnight (14 per cent Loading)
a. Except as otherwise provided for in clause 6.1, the standard hours of work for Employees working under this arrangement shall be an average of 8.06 hours per day, 40.3 hours per week, worked over a ten (10) day fortnight. Employees working under this arrangement are not entitled to a RDO as per the nine (9) day fortnight arrangements.
b. To ensure the operational requirements of each Branch/Work Unit are met, start and finish times within the spread of hours can be negotiated at the workplace level by mutual agreement. Provided that the continuous hours worked before overtime is paid shall remain at 8.06 hours per day.
6.3.4 Remuneration
It is recognised by the Parties that the standard hours of work under the ten (10) day fortnight arrangement are in excess of the provisions as contained within the relevant Modern Award. Therefore, a premium payment of 14 per cent of the Employee’s base annual salary shall be paid to Employees working under this arrangement. This additional, all-purpose payment will form part of the employee’s base salary and is paid to compensate employees for working a ten (10) day fortnight without a Rostered Day Off.
6.3.5 Overtime
a. Hours worked in excess of those specified above in 6.3.3 Hours of Duty will be subject to the overtime provisions as contained within the relevant Modern Award.
b. Any additional time worked must be approved by the Branch Manager prior to being worked.
…
6.3.7 Removal from Ten (10) Day Fortnight Positions
Where a position is classified as a ten (10) day fortnight position in accordance with these arrangements, and subsequently it is determined by management that the position must revert to a nine (9) day fortnight, due to operational or structural requirements, the incumbent Employee will be given three (3) months’ notice before the change is affected [sic].
Clause 1.5 of LAA 2.23 contained in Part 2 of this Agreement will be read as requiring three (3) months’ notice before the change is effected in lieu of the six (6) month period stated. [sic]”
“9.5 Parental Leave
9.5.1 Subject to the terms of this clause Employees are entitled to Parental Leave and to work part-time in connection with the birth, adoption or surrogacy of a child.
9.5.2 The provisions of this clause apply to full-time, part-time and eligible casual Employees, but do not apply to other casual Employees.
…
9.5.11 Right to request
a. An Employee entitled to Primary Carers Leave pursuant to the provisions of clause 9.5.9 may request the City to allow the Employee:
i. to extend the period of simultaneous unpaid Primary Carer Leave provided for in clauses 9.5.9 up to a maximum of eight (8) weeks;
ii. to extend the period of unpaid Primary Carer Leave provided for in clause 9.5.9 by a further continuous period of leave not exceeding twelve (12) months;
iii. to return from a period of Primary Carer Leave on a part-time basis until the child reaches school age;
to assist the Employee in reconciling work and parental responsibilities.
b. The City shall consider the request having regard to the Employee’s circumstances and, provided the request is genuinely based on the Employee’s parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the City’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.
c. The Employee’s request and the City’s decision shall be in writing The Employee’s request and the City’s decision made under 9.5.11 must be recorded in writing.”
9.5.12 Request to return to work part-time
a. Where an Employee wishes to make a request under clause 9.5.11, such a request must be made as soon as possible but not less than seven (7) weeks prior to the date upon which the employee is due to return to work from Parental Leave.
…
9.5.14 Returning to work after a period of Primary Carer’s Leave
a. An Employee will notify of their intention to return to work after a period of Primary Carer’s Leave at least four (4) weeks prior to the expiration of the leave.
b. An Employee will be entitled to the position which they held immediately before proceeding on Primary Carer Leave. In the case of an Employee transferred to a safe job pursuant to clause 9.5.13, the Employee will be entitled to return to the position they held immediately before such transfer.
c. Where such position no longer exists but there are other positions available which the Employee is qualified for and is capable of performing, the Employee will be entitled to a position as nearly comparable in status and pay to that of their former position.
d. An eligible casual resource who is employed by a labour hire company who performs work for a client of the labour hire company will be entitled to the position which they held immediately before proceeding on Primary Carer Leave.
e. Where such a position is no longer available, but there are other positions available that the Employee is qualified for and is capable of performing, the City shall make all reasonable attempts to return the Employee to a position comparable in status and pay to that of the Employee’s former position
…
9.5.20 Parental Leave and other entitlements
An Employee may in lieu of or in conjunction with Parental Leave, access any Annual Leave or Long Service Leave entitlements which they have accrued subject to the total amount of leave not exceeding fifty-two (52) weeks or a longer period as agreed under clause 9.5.11. Employees applying for Parental Leave may also apply to take double the period of Long Service Leave at half pay (e.g. spread twelve (12) weeks Long Service Leave over a period of twenty-four (24) with the employee receiving salary at the half pay rate). This is providing that the total period away from work does not exceed fifty-two (52) weeks). The election of such an option must be made prior to the commencement of Parental Leave.”
“In my view, what the legislature sought to attain by the insertion of Pt XIVA was that an employee, on return from maternity leave, would take up again a discrete set of duties at the same level in the hierarchy of the employer’s organisation and at the same level of salary or wages as she had been so placed and had so received before proceeding on that leave.
If the discrete set of duties previously undertaken by her had disappeared on her return she was to be offered other duties carrying as close as possible the status and salary or wages of her pre-leave position.”[24] (emphasis added)
Appeal dismissed.
[1]Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2023] QIRC 181.
[2] Obviously a reference to 40.3 hours.
[3]Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2023] QIRC 181 at [11].
[4]Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2023] QIRC 181.
[5]The references are to paragraphs in the decision from which the appeal is brought.
[6]The circumstances in which leave can be granted is limited: Industrial Relations Act 2016 s 565.
[7]In Byrnes v Kendle (2011) 243 CLR 253, Crennan and Heydon JJ did not distinguish, in approach to construction between statutes, contracts and testamentary instruments.
[8]R v A2 (2019) 269 CLR 507 at [32]-[44] and [162]-[165].
[9]Industrial Relations Act 2016, Schedule 5 “industrial instrument”.
[10]Ex parte McLean (1930) 43 CLR 472 at 479 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 418-421.
[11]Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495 at [3].
[12]Clause 12(b) of Division 1 deals with pay cycles, etc.
[13]Clause 12.1 of Section 1 of Division 2 concerns “Minimum Wage levels”. Clause 12.1(a)(i) concerns classifications, and clause 12.1(a)(ii) concerns “Additional payments for senior officers and employees” who are those at Level 8.
[14]It appears at paragraph [29] of these reasons.
[15]It appears at paragraph [30] of these reasons.
[16]It appears at paragraph [31] of these reasons.
[17]Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 at [129]-[136]; and Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [72]-[73] and [104]-[107].
[18]Clause 9.
[19]Industrial Relations Act 2016, s 88.
[20]It appears at paragraph [32] of these reasons.
[21]40.3 hours per week.
[22]36.25 hours per week.
[23](1985) 11 IR 18.
[24]At page 20.
