QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Making of a Modern Award - Queensland Local Government Industry Award - State 2014 (No. 3) [2015] QIRC 105 | ||
PARTIES: | Local Government Association of Queensland Ltd Queensland Services, Industrial Union of Employees The Australian Workers' Union of Employees, Queensland Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland The Electrical Trades Union of Employees, Queensland Plumbers & Gasfitters Employees' Union Queensland, Union of Employees Transport Workers' Union of Australia, Union of Employees (Queensland Branch) Queensland Nurses' Union of Employees The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees Queensland Independent Education Union of Employees United Voice, Industrial Union of Employees, Queensland Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland | ||
CASE NOS: | MA/2014/3, MA/2014/13, MA/2014/30, MA/2014/43, MA/2014/51, MA/2014/77, MA/2014/115, MA/2014/118, MA/2014/121, MA/2014/124, MA/2014/129 | MA/2014/5, MA/2014/18, MA/2014/39, MA/2014/49, MA/2014/52, MA/2014/79, MA/2014/116, MA/2014/119, MA/2014/122, MA/2014/125, | MA/2014/6, MA/2014/28, MA/2014/40, MA/2014/50 MA/2014/64, MA/2014/114, MA/2014/117, MA/2014/120, MA/2014/123, MA/2014/127 |
PROCEEDING: | Amending a Modern Award | ||
DELIVERED ON: | 29 May 2015 | ||
HEARING DATE: | 31 March 2015 | ||
MEMBERS: | Vice President Linnane Deputy President O'Connor Industrial Commissioner Neate | ||
ORDER: | 1.The Queensland Local Government Industry Award - State 2014 be amended in accordance with Schedule 1 to this decision (operative from 1 October 2014) and Schedule 2 to this decision (operative from midnight on 31 December 2016). 2.Each Indigenous Council covered by the Award is to act as directed in paragraph [37] of the decision. | ||
CATCHWORDS: | INDUSTRIAL LAW - Harmonisation of classification and wage rate structure in Indigenous Councils with classification and wage rate structure in non-Indigenous Councils - Award amended to accommodate harmonisation process. | ||
CASES: | Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149. Re: Making of a Modern Award - Queensland Local Government Industry Award - State 2014 (No. 2) [2015] QIRC 036. | ||
APPEARANCES: | Mr S. Blaney of the Local Government Association Queensland Ltd. Mr N. Henderson of the Queensland Services, Industrial Union of Employees. Ms R. Huskie of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland. | ||
Decision
[1] In our decision of 26 September 2014 this Full Bench stated the following at paragraph [147]:
"The Full Bench notes that the transitional arrangements in Schedule 1 to the Exposure Draft may have the result that, after two years, the rates of pay will be similar, if not the same, for the employees of Indigenous Councils as for comparable employees of non-Indigenous Councils. That outcome will only be assured if the classification levels for employees of Indigenous Councils are aligned with those of their counterparts in non-Indigenous Councils. Accordingly, we will direct the AMOD Team to review the classifications of employees in the Administrative, technical, community service, supervisory and managerial (Indigenous Councils) group and to prepare a proposal before 30 November 2014 to ensure that such harmonisation of wage levels will be achieved by two years after the modern award commences to operate."
[2] The matter was then referred to the AMOD Team. In a Memorandum from Deputy President Bloomfield dated 28 November 2014 the Full Bench was advised that it was "not possible to directly translate the Indigenous Councils' classification and wages structure into that applying to the non-Indigenous Councils" as there were simply too many differences between the respective classification structures to develop a translation arrangement.
[3] In response to that advice the Full Bench issued a decision on 4 March 2015 in Re: Making of a Modern Award - Queensland Local Government Industry Award - State 2014 (No. 2).[1] In that decision the Full Bench provided the parties to the Award with a proposal to harmonise the wage levels of those employees classified in the Administrative, technical, community service, supervisory and managerial (Indigenous Councils) group and the Clerical group into the structure of the Administrative, technical, community service, supervisory and managerial group in the Queensland Local Government Industry Award - State 2014 (Award). In delivering that decision the Full Bench gave the parties to the Award an opportunity to provide written submissions and address us on our proposal.
[4] Those organisations who provided written submissions were the Local Government Association of Queensland (LGAQ), the Queensland Services, Industrial Union of Employees (QSU) and the Construction, Forestry, Mining and Energy Industrial Union of Employees (CFMEU). All three organisations addressed the Full Bench at the hearing on 31 March 2015.
LGAQ Submission
[5] The LGAQ accepted and supported the Full Bench's proposal to remove reference to those provisions/entitlements based on whether a Council is, or is not, of indigenous origin. In so doing the LGAQ supported the ceasing of the operation of the Administrative, technical, community service, supervisory and managerial (Indigenous Councils) group from 31 December 2016, and the subsequent reclassification of those employees under the Administrative, technical, community service, supervisory and managerial (other than Indigenous Councils) group of the Award.
[6] The LGAQ, however, opposed the removal of the Clerical group from the Award unless broader classification reform was also considered. In so doing the LGAQ submitted that the Clerical Employees' Award - State 2012 applied "far more broadly within the 'Local Government Industry'" as now defined within the Award.
[7] It was further submitted that the clear intention of the definition of "local government industry" was to capture within coverage of the Award various employers who are not themselves local governments. Rather, they are employers that are, by legal definition, corporations which are owned or controlled by Queensland local governments and which have been declared (via reciprocal provisions pursuant to Queensland and Federal legislation) not to be covered by the Fair Work Act 2009 i.e. not covered by federal modern awards.
[8] At the hearing before the Full Bench in September 2014, the LGAQ was not able to identify these organisations or their previous Award coverage with any degree of particularity. Therefore the award arrangements of these organisations were not dealt with by the Full Bench in that proceeding.
[9] The LGAQ submitted that it has undertaken preliminary surveys of these corporate entities and confirmed that they employ a significant number of clerical/administrative staff. Apparently these organisations, prior to the introduction of the Award, did not apply local government specific awards to their callings but rather applied awards such as the Clerical Employees Award - State 2012. Thus these organisations did not perceive themselves as being part of the Local Government industry prior to September 2014.
[10] Further, the LGAQ submitted that some Councils have negotiated enterprise agreements which have utilised the Clerical group in the Award for new staff e.g. the Moreton Bay Regional Council. The LGAQ is concerned about the implications for these employers should the Clerical group be removed from the Award.
[11] The Clerical group remained in the Award because the Full Bench allowed for the introduction of the harmonisation of the classification structures and wages rates of those applying in the Indigenous Councils with those applying in non-Indigenous Councils. The Clerical group was never meant to cover any employees other than those employed by a small number of Indigenous Councils and then only for the period up until 31 December 2016.
[12] The Full Bench made it very clear at the commencement of this hearing that amendments would be made to the Award that would ensure that any reference in the Award to the Clerical group would only have application to those employees of Indigenous Councils who were employed pursuant to the provisions of the Clerical Employees Award - State 2012 at the time of the hearing into the making of the Award i.e. September 2014. If, subsequent to the making of the Award, some non-Indigenous Councils have utilised the clerical rates as a basis for the employment of any person then they will need to reconsider their position. Non-Indigenous Councils are not able to use the clerical rates in the Award and cannot utilise any reference to the Clerical group in the Award to underpin any certified agreement.
[13] The amendments to clarify that the Clerical group pertains to Indigenous Councils only will be operative as and from 1 October 2014.
[14] In the course of the present proceedings the Full Bench made it clear that it was only dealing with the harmonisation of classification structures and wage rates of employees of Indigenous Councils into the Award which is to occur by 1 January 2017. This was not an opportunity for the LGAQ to again argue for a classification structure different to that determined by the Full Bench in its decision of 26 September 2014: see Re: Making of a modern award - Queensland Local Government Industry Award - State 2014.[2]
[15] The LGAQ further submitted that, if the Full Bench were to remove the Clerical group from the Award that it should accommodate lower level clerical employees translating from the Administration, technical, community service, supervisory and managerial (Indigenous Councils) and the Clerical group to the Administrative, technical, community service, supervisory and managerial (other than Indigenous Councils) group. We are not prepared to revisit our decision in Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149[3] in terms of the classification structure.
[16] The Full Bench considered the LGAQ's submission in relation to the classification structure in the Award when determining the content of the Award in its decision of 26 September 2014. The Full Bench made it clear at this hearing that the classification structure was not a matter for further argument.
[17] In its written submission of thirty-seven (37) pages, the LGAQ provided thirty-two (32) pages on a new classification structure. There was no submission on the harmonisation of the classification structures despite the statement in our decision of 4 March 2015 i.e.
"That any party wishing to address the Full Bench on the issue of the harmonisation of the classification structure for employees classified in the Indigenous Councils group and the Clerical group of the Queensland Local Government Industry Award - State 2014 file in the Industrial Registry and serve on the other parties a written submission by 4.00 pm on 27 March 2015."
[18] The LGAQ was advised, during the course of the hearing, that if they were able to identify those organisations in Queensland that fall into the categories about which it expressed concern, then an application to amend the Award and/or an application for a new modern award may be appropriate. Those organisations would include employers that are, by legal definition, corporations which are owned or controlled by Queensland local governments and which have been declared (via reciprocal provisions pursuant to Queensland and Federal legislation) not to be covered by the Fair Work Act 2009.
[19] At the time of writing this decision no application has been made by the LGAQ seeking a new modern award or an amendment to the Award in this regard.
QSU Submission
[20] The QSU submitted that the continued inclusion of the Indigenous Councils group and the Clerical group in the Award would result in employers choosing to reduce wages by moving employees from the "other than Indigenous Councils group". The QSU also explained that the Clerical group structure only ever applied to approximately 100 employees which was insignificant when compared to the approximately 19,000 employees classified in accordance with the "other than Indigenous Councils" group. The QSU further submitted that the removal of any reference to the "Clerical group" from the Award would provide certainty and clarity.
[21] In this regard the QSU referred the Full Bench to the Moreton Bay Regional Council certified agreement and expressed concern that other non-Indigenous Councils would adopt a similar practice. This, it was argued, had a disproportionate effect on women workers who were clustered in less senior clerical positions.
[22] The decision of the Full Bench, to amend the Award to ensure that the Clerical group's structure and wages apply only to the Indigenous Councils, should deal with the QSU's concern in this regard.
[23] Translation to New Structure by 31 December 2016: The proposal from the QSU for harmonisation was as follows:
[24] Insofar as the harmonisation of the Clerical group, the QSU submitted the following:
CFMEU Submission
[25] The CFMEU expressed concern that the harmonisation may result in employees of Indigenous Councils being worse off in transitioning to a classification in the new structure. The CFMEU submitted that no employee of an Indigenous Council should be worse off in any harmonisation. In this regard the CFMEU submitted that paragraph [3] (iv) of our decision dated 4 March 2015 be amended so that the words "in order that the employee is to receive a wage rate not less than that determined under paragraph (iii) above from 1 January 2017" be replaced with the words "in order that the employee is to receive a wage rate not less than the pre-harmonised (or pre-transitional) rate".
[26] In this regard we note that Clause 2(d) of the Award will be amended and will apply to the harmonisation of the classification and wage structures. The new Clause 2(d) will be as follows:
"Neither the making of this Award nor the harmonisation of wage rates from 1 January 2017 of employees employed by Indigenous Councils is intended to result in the reduction of the existing wage or salary level of any employee covered by the Award."
[27] The CFMEU further objected to the deletion of Clause 15.1(a)(i) if the practical effect of the deletion is that people working for Indigenous Councils would then be required to work a 38 hour week. The CFMEU submitted people covered by Clause 15.1(a)(i) of the Award should continue to work a 36.25 hour week for no loss of entitlement.
[28] We note that with the deletion of clause 15.1(a)(i) of the Award on 31 December 2016 there will also be an amendment to clause 15.1(a)(ii) to remove the words "(other than Indigenous Councils)". Thus those working for Indigenous Councils in the Administrative, technical, community service, supervisory and managerial group of the General stream will continue to work a 36.25 hour week.
Conclusion
[29] Clerical Group: As was mentioned at the hearing of this matter on 31 March 2015, Councils, other than Indigenous Councils, are not able to use the Clerical group in the Award. If non-Indigenous Councils are operating enterprises other than local government they will need to make application for either an amendment to the Award or a new award to cover these particular enterprises. The Award does not apply to these enterprises.
[30] The Clerical group applies to Indigenous Councils only and it has application until 31 December 2016 only. If non-Indigenous Councils are utilising the Clerical group structure then, unless they are an Indigenous Council, they must employ persons under some other Group in the Award, excluding the Clerical group. The LGAQ were advised on 31 March 2015 that if Councils were involved in enterprises other than the running of a local government they would need to make application for either an amendment to the Award or a new award to cover such employees. Alternatively, those Councils must employ persons pursuant to the Award.
[31] To avoid any doubt, we direct that as and from 1 October 2014, the Clerical group in the Award will apply only to the Indigenous Councils that were bound by the Clerical Employees' Award - State 2012 prior to 30 September 2014. Further, the Clerical group will only have application until 31 December 2016.
[32] Should any non-Indigenous Council have, since the decision of the Full Bench on 26 September 2014, sought certification of an enterprise agreement wherein it has utilised the Clerical group as a basis for employment in such an enterprise, then the Councils will need to reassess those arrangements and advise the Industrial Registry immediately if their certified agreement does not now meet the no disadvantage test.
[33] We again urge the LGAQ to consider making an application either for an amendment to the Award or for a modern award where local governments are involved in enterprises which are not performing those functions normally undertaken by a local government in Queensland. At the time of the hearing in relation to the making of the Award in September 2014, the LGAQ was unable to identify these enterprises. On 31 March 2015, the Full Bench made it clear that such an application would need to be made, to ensure award coverage for employees of these enterprises. No application has been made by the LGAQ.
[34] The Clerical stream applies to Indigenous Councils only and the stream will not be in the Award post 31 December 2016. Amendments to the Award, as reflected in the Schedules attached to this decision, will be made to ensure that the Clerical group applies only to Indigenous Councils.
[35] Translation to New Structure by 31 December 2016: The Full Bench has not been persuaded by the QSU of the benefits of their proposal for harmonisation over that proposed by the Full Bench in its decision of 4 March 2015. We thus confirm our provisional view in respect of the translation of the Indigenous Council's classification and wages structure into that applying to the non-Indigenous Councils.
[36] In this regard we order that the Queensland Local Government Industry Award - State 2014 be amended to provide as follows:
[37] We further order that:
[38] A number of consequential variations to the Award will also need to be made to give full effect to the decision to remove reference to the Indigenous Councils group and the Clerical group from the General stream in the Award. Whilst certain examples of these consequential variations were provided in our decision of 4 March 2015 all such variations are to be found in Schedules 1 and 2 to this decision.
[39] Some typographical and numbering issues have also been identified in the Award and these amendments are also contained in Schedule 1 and Schedule 2 to this decision.
[40] Order accordingly.
Schedule 1
This matter coming on for hearing before a Full Bench of the Commission on 31 March 2015, the Commission orders that the Queensland Local Government Industry Award – State 2014 be amended as follows as and from 1 October 2014:
"(c) Indigenous Councils - Notwithstanding anything else in this Award:
Schedule 2
This matter coming on for hearing before a Full Bench of the Commission on 31 March 2015, the Commission orders that the Queensland local Government Industry Award – State 2014 be amended as follows as and from midnight on 31 December 2016:
"Neither the making of this Award nor the harmonisation of wage rates from 1 January 2017 of employees employed by Indigenous Councils is intended to result in the reduction of the existing wage or salary level of any employee covered by the Award."
