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Re: Request Pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a Modern Award - Local Government[2015] QIRC 156

Re: Request Pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a Modern Award - Local Government[2015] QIRC 156

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2015] QIRC 156

PARTIES:

Local Government Association of Queensland 

Queensland Services Union, Industrial Union of Employees

Electrical Trades Union Of Employees, Queensland

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland

Queensland Independent Education Union of Employees

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland

The Australian Workers' Union of Employees, Queensland

United Voice, Industrial Union of Employees, Queensland

Queensland Nurses' Union of Employees

Plumbers and Gasfitters Employees' Union Queensland, Union of Employees

CASE NO:

MA/2014/3

MA/2014/5

MA/2014/6

MA/2014/13

MA/2014/16

MA/2014/18

MA/2014/28

MA/2014/30

MA/2014/39

MA/2014/40

MA/2014/43

MA/2014/49

MA/2014/50

MA/2014/51

MA/2014/52

MA/2014/64

MA/2014/77

MA/2014/79

PROCEEDING:

Determination of the number of modern awards in Local Government

DELIVERED ON:

20 August 2015

HEARING DATES:

7 August 2015

HEARD AT:

Brisbane

MEMBERS:

Deputy President O'Connor

Deputy President Kaufman

Industrial Commissioner Neate

CATCHWORDS:

AWARD MODERNISATION - request from Minister to Commission - Local Government as a priority industry/occupation - request to review and vary the Queensland Local Government Industry Award - State 2014 - Commission to consider an increase to the number of modern awards covering the local government industry - evidence in relation to operation of current award - factors relevant to whether there should be one award or three awards - one modern award to be made - Industrial Relations Act 1999 ss 140C, 140CA, 839, 840, 844

CASES:

Industrial Relations Act 1999 ss 140C, 140CA, 839, 840, 844

Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149

Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2014] QIRC 089

APPEARANCES:

A. Goode and S. Blaney, for the Local Government Association of Queensland

N. Henderson , for the Queensland Services Union of Employees

B. Watson, for The Australian Workers Union of Employees, Queensland

K. Inglis, for the Electrical Trades Union of Employees, Queensland

M. Delaware, for Plumbers and Gas Fitters Union Queensland, Union of Employees

J. Spriggs, for the Queensland Independent Education Union of Employees

L. Booth, for the Queensland Nurses Union of Employees

S. Ong, for the United Voice Industrial Union of Employees, Queensland

R. Huskie, for the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland

K. Allen, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland

Reasons for Decision

  1. [1]
    On 23 May 2014, a Full Bench of the Queensland Industrial Relations Commission ("the Commission") as presently constituted ordered that a single award be created for local government.[1]
  1. [2]
    This Full Bench has been asked to reconsider that decision and decide whether there should be more than one modern award in relation to the local government industry in Queensland and, if so, who would be covered by those separate awards.
  1. [3]
    The matter comes before the Commission by way of a request from the Treasurer and Minister for Employment and Industrial Relations, the Honourable Curtis Pitt MP ("the Minister"), to the Vice President of the Commission dated 17 July 2015.
  1. [4]
    The Vice President allocated the matter to this Full Bench.

 Background

  1. [5]
    So far as this Full Bench is aware, the following events relevant to the present proceedings have occurred since its decision of 23 May 2014:
  1. (a)
    consistently with that decision, the Queensland Local Government Industry Award - State 2014 was made by a differently constituted Full Bench on 29 September 2014;[2]
  1. (b)
    different parts of the Queensland Local Government Industry Award - State 2014 commenced on different specified dates;
  1. (c)
    seven councils have negotiated certified agreements that have the Queensland Local Government Industry Award - State 2014 as the underpinning Award;[3]
  1. (d)
    the Government of the State of Queensland changed after the election on 31 January 2015;
  1. (e)
    the Minister made an Award Modernisation "Variation Notice" under s 140CA of the Industrial Relations Act 1999 ("the Act") on 17 July 2015, in which he rescinded all remaining paragraphs of the consolidated request dated 15 October 2014 and inserted paragraphs 2 to 31 and Schedule 1, to form a Consolidated Request Arising from Variation Notice ("the Consolidated Request").
  1. [6]
    The key features of the Consolidated Request that are relevant to the present proceedings are:
  1. (a)
    the Statement of Intent (paragraph 2);
  1. (b)
    the priority that the Commission is to give to the review and variation of certain modern awards, including the Queensland Local Government Industry Award - State 2014 by  October 2015 (paragraphs 4, 6(e), 7(e));
  1. (c)
    the statements in Schedule 1 to the Consolidated Request that:
  1. the Commission is to prioritise the review and variation of the Queensland Local Government Industry Award - State 2014 in accordance with Chapter 20 Part 20 of the Act;
  1. pursuant to s 844 of the Act, the Commission also "must consider an increase to the number of modern awards covering the local government industry;"
  1. in doing so, the Commission is to invite the parties to make submissions on increasing the number of modern awards covering the local government industry;
  1. the Commission is not to be bound by previous Commission decisions when considering increasing the number of modern awards covering the local government industry;
  1. the requirement expressed at clause 20 of the former Award Modernisation Ministerial Request for the Commission to "give consideration to consolidating pre-modernisation awards operating in the local government sector (excluding the Brisbane City Council) and create a new modern Local Government Industry Award covering employees and employers subject to those (pre-modernisation) awards" no longer applies and is not supported by this variation notice;
  1. it is open to the Commission to reconsider the number of awards in the Queensland local government industry and, in this regard, the Commission is to "give consideration to" increasing the number of modern awards in the Queensland local government industry such that there are separate awards for:
  1. salaried, professional, administrative, clerical, technical and supervisory employees;
  1. operational employees (including those in civil construction, horticultural, maintenance, etc.); and
  1. trade qualified employees;
  1. consideration should also be given to whether professional groups (e.g. early childhood teachers, nurses) employed in the Queensland local government sector are more appropriately included in relevant occupational awards.
  1. [7]
    It is important to emphasise that the only question presently before this Full Bench is whether there should be an increase to the number of modern awards covering the local government industry and, if so, who would be covered by those separate awards.  These proceedings do not concern what the modern award or awards should contain.

 Relevant legislative provisions

  1. [8]
    We proceed on the basis that, in his Consolidated Request, the Minister used "consider," "considering" and "give consideration to" with their usual English meaning.  Standard dictionaries include the following definitions of "consider":
  1. (a)
    "contemplate mentally; weigh merits of (course of action, claim, candidate, etc.); give mental attention to (that, whether, etc., or abs.)"[4];
  1. (b)
    "1. to contemplate mentally; meditate or reflect on.  2.  to regard as or deem to be: I consider the examination is justified.  3.  to think; suppose … 9.  to think deliberately or carefully; reflect.  [Middle English considere(n) from Latin considerare examine closely]"[5]

 and "consideration":

  1. (a)
    "act of considering; meditation;"[6]
  1. (b)
    "1. the act of considering; meditation or deliberation.  2. regard or account; something taken, or to be taken, into account.  3. a thought or reflection."[7]
  1. [9]
    When considering and then deciding whether there should be more than one award, this Commission must act by reference to relevant sections of the Act, in particular ss 140CA, 140C, 839 and 844. 
  1. [10]
    The Consolidated Request was made under s 140CA(1) of the Act which provides that, before an award modernisation process is completed, the Minister may vary the award modernisation request by written notice given to the Commission.  As noted earlier, the Consolidated Request rescinded all but paragraph 1 of the previous consolidated request dated 15 October 2014.
  1. [11]
    Subsection 140CA(1) must be read by reference to s 140C which empowers the Minister to give the Commission a written notice requesting that an award modernisation process be carried out.  Subsection 140C(2) prescribes what such a request "must state" and s 140C(4) provides that the request "may state any other matter about the award modernisation process the Minister considers appropriate."  None of the examples of what an award modernisation request may require or direct the Commission to do (listed in s 140C(5)) applies to the issue in these proceedings.  Consequently, the question is whether the Minister's request that the Commission consider an increase to the number of modern awards covering the local government industry can be characterised as stating "any other matter about the award modernisation process."  That question is answered by reading the Consolidated Request, including the reference to the Commission prioritising the review and variation of the Queensland Local Government Industry Award - State 2014 in accordance with Chapter 20 Part 20 of the Act, along with s 844.
  1. [12]
    Section 844 of the Act is headed "Commission may increase the number of modern awards."  It states:

"(1) This section applies if the making of the relevant modern award resulted in a significant reduction in the number of awards covering an industry or occupation.

  1. (2)
    Before reviewing and varying the relevant modern award under this division, the commission must consider whether to increase the number of modern awards covering the industry or occupation.
  1. (3)
    The commission must consider a submission made by a party covered by the relevant modern award about whether to increase the number of modern awards covering the industry or occupation.
  1. (4)
    If the commission decides to increase the number of modern awards covering the industry or occupation, the commission must -
  1. (a)
    vary the relevant modern award to reduce its coverage; and
  1. (b)
    make one or more additional modern awards covering the employees excluded from coverage of the relevant modern award under paragraph (a).
  1. (5)
    An additional modern award made under subsection (4)(b) is, for the purposes of this division, taken to be a relevant modern award."  (emphasis added)
  1. [13]
    That section must be read in context.  It comes within Chapter 20 Part 20 of the Act titled "Transitional provisions for Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015," which commenced to operate on 11 June 2015.
  1. [14]
    Division 2 of Part 20 is titled "Review of relevant modern awards."  It commences with section 840 which states that the purpose of that Division is:
  1. (a)
    to provide for the review and variation by the Commission of modern awards made, under the award modernisation process, before the commencement; and
  1. (b)
    to ensure the awards mentioned in paragraph (a) are not inconsistent with the amended Act.

Sections 841 and 842 deal with the review and variation of relevant modern awards by the Commission.  Section 843 provides that the Commission may vary a relevant modern award to provide for a matter contained in a relevant pre-modernisation award.  Those sections do not apply to the issue in the present proceeding.

  1. [15]
    Section 839 sets out the definitions for Part 20.  They include the definition of "relevant modern award" to mean "a modern award made by the commission before the commencement."  There is no issue that the Queensland Local Government Industry Award - State 2014 is a modern award made by the Commission before the commencement of the 2015 amendments to the Act.
  1. [16]
    Subsection 844(2) requires the Commission to consider whether to increase the number of modern awards covering the local government industry before reviewing and varying the relevant modern award.  We now do so.

 Evidence and submissions

  1. [17]
    In response to directions given by the Vice President of the Commission on 31 July 2015, the parties filed submissions in writing to the Commission. 
  1. [18]
    The following parties support the reconsideration of the number of modern awards in the Queensland local government industry:
  1. (a)
    Queensland Nurses' Union of Employees ("QNU")
  1. (b)
    Queensland Independent Education Union of Employees ("QIEU")
  1. (c)
    Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland ("AMEPKIU")
  1. (d)
    Electrical Trades Union of Employees Queensland ("ETUQ")
  1. (e)
    Plumbers and Gasfitters Employees' Union Queensland, Union of Employees ("PGEU")
  1. (f)
    Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland ("CFMEUQ")
  1. (g)
    Queensland Services, Industrial Union of Employees ("Services Union")
  1. (h)
    Australian Workers' Union of Employees, Queensland ("AWUEQ")
  1. (i)
    United Voice, Industrial Union of Employees, Queensland ("United Voice").
  1. [19]
    The Local Government Association of Queensland ("LGAQ") filed submissions in writing to the Commission supporting retaining the single Queensland Local Government Industry Award - State 2014.
  1. [20]
    At a hearing on 7 August 2015, oral submissions were made on, or on behalf of, all the parties.  Some of the deponents of affidavits filed with the LGAQ's written submission were cross-examined.
  1. [21]
    Before considering that evidence and those submissions, we note that the starting point for the present proceedings is significantly different from the situation with which this Full Bench dealt in early 2014.  On that occasion, there were some 18 awards applying to different employees within the local government industry in Queensland outside Brisbane.  Rather than there being a multitude of awards, there is now one modern award covering those employees.  No party to these proceedings submitted that there should be a return to the pre-2014 situation.  The only significant difference between them was whether there should be one award or three awards and, if three awards, who would be covered by each award.

Evidence and submissions supporting an increase in the number of modern awards

  1. [22]
    There was a degree of overlap or consistency between many of the submissions made by or on behalf of individual unions.  In summary:
  1. (a)
    the unions submitted that there should be more than one modern award;
  1. (b)
    seven of the nine unions submitted there should be three awards;
  1. (c)
    in essence the unions submitted that the three modern awards should cover:
  1. white-collar employees such as salaried, professional, administrative, clerical, technical and supervisory employees;
  1. trade qualified, building, engineering and maintenance employees; and
  1. all other operational employees.
  1. [23]
    There was, however, some variation in the submissions of the unions as to why more than one modern award is desirable and which award would cover their members.
  1. [24]
    Parts of the written and oral submissions on behalf of the unions referred to the contents of the Queensland Local Government Industry Award - State 2014, and whether some employees are worse off financially than before the award took effect.  As noted earlier, the only issue before this Full Bench is the number of modern awards there should be for the local government industry.  This Full Bench is not concerned with the content of a modern award or modern awards.  Although it is understandable that submissions refer to the contents of modern awards as part of the award modernisation process, those contents can only be relevant to these proceedings if it can be demonstrated that the contents will vary in some material respect as a consequence of there being one award or more than one award.
  1. [25]
    The unions have members employed by local government entities (other than the Brisbane City Council) who are currently covered by the Queensland Local Government Industry Award - State 2014 or by a pre-modernisation award.
  1. [26]
    The AMEPKIU, ETUQ, PGEU and CFMEU made a joint written submission expressed to be confined to the issue before this Full Bench and to be further confined to the occupational groupings of building, engineering and maintenance employees, and all other operational employees engaged in the Queensland local government industry. 
  1. [27]
    Those unions submitted that such an increase in the number of awards is consistent with the objects of the Act, s 844 of the Act and the Consolidated Request. 
  1. [28]
    Those unions also assert that the recent award modernisation process for local government resulted in many entitlements of their members being reduced as a direct result of consolidating multiple awards into one and many entitlements being reduced to the lowest denominator across awards.  In particular, the pre-modernisation award conditions for their members were not provided for in, and did not form part of, the modern award.  The relevant pre-modernisation award entitlements were described as "specific and unique" to the occupational groupings represented by those unions. 
  1. [29]
    In their submission:
  1. (a)
    the conflation of all pre-modernisation awards into one modern award has "undisputedly resulted in a reduction of pre-modernisation award standards;"
  1. (b)
    the local government industry contains clear occupational divisions (which are reflected in some certified agreements and in the existence of different awards providing substantially different structures and entitlements, and in coverage by different unions who pursue discrete objectives when bargaining for collective agreements);
  1. (c)
    awards covering local government employers should be developed around these occupational groupings (consistently with the objective of reducing the number of awards applying to local government employers whilst ensuring that the unique characteristics of those occupational groupings are reflected appropriately in modern awards);
  1. (d)
    the creation of three modern awards would ensure that pre-modernisation award employees' entitlements continued and are maintained;
  1. (e)
    even in the current environment where local government may be covered by multiple awards there is no overlap in the coverage of employees, and the proposed three awards would not have any overlap or duplication in coverage;
  1. (f)
    increasing the number of awards to three would assist in reducing the regulatory complexity of having one award (where, for example, one award provides two or more different classification methods, two or more rates of accrual for each type of leave, and two or more systems of working hours); and
  1. (g)
    the result would be a "vast improvement and reduction in awards that currently apply to the Queensland local government industry." 
  1. [30]
    Those unions refute the assertions made previously by the LGAQ that there has been any confusion or lack of clarity as to the application of the existing awards to local government employees.  The unions state that they are not aware of any disputes arising out of these divisions and, in particular, are not aware of any such disputes being brought before an industrial tribunal. 
  1. [31]
    Looking beyond local government, those unions referred to "numerous instances" of national system employers being covered by multiple federal modern awards which they submit, demonstrates that modernisation and consolidation need not mean dispensing with occupational divisions within a given industry. 
  1. [32]
    Apart from those matters, much of the submission on behalf of the unions was devoted to expanding on the contention that the creation of one modern award for the local government industry has resulted in the reduction of award conditions and entitlements for members of those unions.  They referred to a number of "key entitlements" afforded to the members under the relevant pre-modernisation awards that are not provided for in the modern award, for example rates and penalties paid for working (including overtime, shift work and weekend work), recall to work and call back, and allowances.  In their submission, the award modernisation process did not result in the making of a modern award which "appropriately and fairly reflected the long-standing and necessary employment standards" for the building, engineering and maintenance employees, which employment standards had been developed over decades to "reflect the necessary employment standards unique to this occupational grouping."
  1. [33]
    The unions point to the provision in the modern award for employees who suffer disadvantage by way of the new allowance structure to apply for a Preservation Order as evidence that there was an acceptance that employees would likely suffer disadvantage as a result of the making of the modern award.  The submission also states that, in the time since the modern award came into operation, those unions have not been able to collect sufficient information to establish to what extent their members have been disadvantaged.  The absence of that evidence, they state, is largely due to the fact that only a "very small number of members" are currently subject to the modern award, due to most being covered by certified agreements not yet replaced.  The unions simply state that they "understand that for some employees it has been a significant shortfall." 
  1. [34]
    The relevance of those submissions to the issue before this Full Bench is put in the unions' submission that pre-modernisation standards must be afforded in modern award making and that such exercises will best be undertaken in accordance with an award made on occupational groupings, which share common pre--modernisation provisions.  By contrast, they submit that the classification structure in the modern award "essentially pulls together all employees within the industry" and that this is a "flawed process."  In their oral submission, they described the Queensland Local Government Industry Award - State 2014 as "large, complicated and difficult to read."  Accordingly, there must be a return to specific classification structures, and the easiest way to do this is through the making of modern awards along occupational lines which would include commonality of classification structures. 
  1. [35]
    The submission made by the Services Union identifies a range of differences in the entitlements for local government employees in the Queensland Local Government Officers' Award 1998 and the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003, and differences in the classification methods provided by those awards.  That historical review provides the context for the submission that the award modernisation process resulted in a significant reduction of long-standing award entitlements.  The submission states that the modernisation process to be undertaken now requires that there should be no reduction of entitlements.  That part of the submission is not directed to the issue before this Full Bench. 
  1. [36]
    The Services Union also submits that it would be contrary to the award modernisation objects of creating awards that are simple to understand, easy to apply, and result in a certain, stable and sustainable system (s 140BA) for one award to provide, for example, two fundamentally different classification methods, two rates of accrual for each type of leave, and two systems of working hours. 
  1. [37]
    The Services Union states that the local government sector contains "clear occupational divisions," which are reflected in the existence of different awards with substantially different provisions.  Traditionally, the employees covered by each award covered by different unions pursue discrete objectives when bargaining for collective agreements.  Some local governments have negotiated separate agreements with "indoor" and "outdoor" employees.  The Services Union submits that it would be simpler and less confusing for "indoor" and "outdoor" employees to each have the benefit of a dedicated award in which they and their employers could easily identify the applicable conditions.  
  1. [38]
    The Services Union supports the creation of three modern awards along occupational lines:
  1. (a)
    an award covering white-collar employees (indoor workforce);
  1. (b)
    an award for trade employees covering building, engineering and maintenance employees; and
  1. (c)
    an award covering all other employees, excluding those employed in building, engineering and maintenance areas. 

In its submission, that would achieve the objective of reducing the number of awards in the local government sector.  On the other hand, there is no benefit in a single award for local government employees and employers regardless of occupation, and there should be no reason to "increase confusion for employees and employers" with the retention of a single award and the single conditions and classification structure that it will bring.  Practically it will mean the transitioning of more than 30,000 employees to new arrangements would place a burden on employers and employees.  The Services Union also submits that the creation of only one local government award, regardless of occupational lines, had the result of disadvantaging employees. 

  1. [39]
    According to the Services Union's submission, the local government industry in Queensland should not follow the Federal approach because:
  1. (a)
    different union coverage arrangements in different parts of Australia have influenced the industrial arrangements and how award coverage has developed;
  1. (b)
    there are different arrangements in different states (e.g. in New South Wales there is one State Award (which does not cover some employees); in Western Australia councils which are constitutional corporations operate in the Federal jurisdiction and are covered by the Local Government Industry Award 2010 while other councils are regulated by two awards of the Western Australian Industrial Relations Commission; in Victoria local government employees are in the Federal jurisdiction and are covered by the Victorian Local Government Award 2015 which is in similar terms to the Federal award; in South Australia employees are covered by two awards of the South Australian Industrial Relations Commission; and local governments in the Northern Territory and Tasmania are subject to the Federal award) and none of the mainland states have the whole of the local government industry covered by one award. 
  1. [40]
    In the Services Union's submission:
  1. (a)
    the groupings proposed by the Minister allow for significant rationalisation of the number of awards without the confusion caused by the creation of a single award; and
  1. (b)
    maintaining at least three awards with the coverage suggested would assist in ensuring that there is no reduction or removal of entitlements and conditions. 
  1. [41]
    The AWUEQ supports the creation of more than one modern award because that would reduce the need for the rationalisation of conditions of employment.  In its submission, one modern award (i.e., the Queensland Local Government Industry Award - State 2014) has already reduced conditions of employment for members of the union (in relation to income received under the pre-modernisation award with respect to allowances). 
  1. [42]
    United Voice also supports the making of three modern awards to cover the local government industry, being separate awards set out in the joint submission of the AMEPKIU, ETUQ, PGEU and CFMEU.  United Voice submits that a single local government award:
  1. (a)
    would not appropriately recognise the size and diversity of employment within the Queensland local government industry;
  1. (b)
    would be inconsistent with the objects of the Act by reducing workforce participation for relevant employees (see s 3(h));
  1. (c)
    might lead to the "dilution" of conditions for workers in "minority" segments of the local government sector by removing specific occupational awards, thus minimising the ability of those people to influence their specific or unique circumstances of employment;
  1. (d)
    would be inconsistent with the object of award modernisation to create awards that are simple to understand and easy to apply (s 140BA(a));
  1. (e)
    is "something of an industrial falsehood."

It also submits that the creation of a single award has resulted in "lesser clarity," with workers now required to identify as a "local government employee" rather than as part of the occupational grouping. 

  1. [43]
    By contrast, three awards would reflect the approach which is adopted by many local governments to negotiate separate agreements in respect of their "indoor" and "outdoor" workforces.
  1. [44]
    The LGAQ filed 12 affidavits from the employees of 12 different councils that are subject to the Queensland Local Government Industry Award - State 2014, some of which have negotiated certified agreements.  The affidavits are summarised later in these reasons when considering the LGAQ's submissions.  The thrust of those affidavits was that the experience of having one award has been positive for those councils.  At the request of the unions, five of the deponents also gave oral evidence at the hearing.  In cross-examination by union representatives:
  1. (a)
    Mr Franks distinguished between the responses to the single award and the certified agreement at Mareeba Shire Council.  He said that the feedback to the award from employees in group meetings was positive, "people are very comfortable, and the organisation's working really well," and that any concerns are about the potential for some people to be downgraded as part of the review of the classification of staff as part of the certified agreement process and its implementation; and even though there are multiple classification systems in the new award, there is a "lot more equity and people can actually see where they sit," and there is a relativity between positions by reference to the pay points in the new modern award which was not the case under the old system with multiple awards; most people are better off financially than under the old awards having regard to all the allowances paid to employees, but some were worse off;
  1. (b)
    Mr Owen-Turner gave evidence of aspects of the new certified agreement at Moreton Bay Regional Council which provide:
  1. allowances to ensure that existing employees did not receive less income as a result of the change (e.g. because previous allowances were no longer available under the modern award); and
  1. separate salary structures for people employed at the date the agreement was made and for people employed subsequent to the making of the agreement (with lower salaries for those people at levels 1 to 9), which he said was a strategy that the council could have implemented at any time and was not as a result of the introduction of the modern award but as a result of enterprise bargaining negotiations;
  1. (c)
    Ms Murken gave evidence about the two wage structures in operation at Cloncurry Shire Council for people employed at the date the certified agreement was made and for people employed subsequent to the making of the agreement, and about allowances under the certified agreement that are higher than in the modern award;
  1. (d)
    Mr Shang gave evidence about the two wage structures in operation under the certified agreement at Fraser Coast Regional Council for people employed at the date the certified agreement was made and for people employed subsequent to the making of the agreement (which are higher than the modern award), and other conditions that are different depending on the date when an employee was employed by that council (and he acknowledged that some employees might be worse off financially);
  1. (e)
    Ms Carr gave evidence that the Wujal Wujal Aboriginal Shire Council has relatively few full-time employees, it converted the classification of employees to the equivalent classification in the modern award from 1 January 2015, employees who were previously employed under another award have had their locality and additional annual leave entitlements continued by an order of the Commission until 2017, and, although employees work different hours, arrangements have been made so that no one is financially disadvantaged;
  1. [45]
    The thrust of at least some of that evidence was that some of the conditions or allowances in the recently negotiated certified agreements exceed those in the single award in order to ensure that existing employees received incomes no lower than previously.  That evidence illustrates the point that a modern award operates as a safety net and conditions can be improved under a certified agreement.  The evidence does not go to the issue of whether there should be one award or three.
  1. [46]
    The submission on behalf of the Services Union in relation to that evidence was to the effect that the councils who have already come under the Queensland Local Government Industry Award - State 2014 still have multiple arrangements in place.  Indeed some councils have increased the number of arrangements in operation.  Thus it cannot be said that the making of the Queensland Local Government Industry Award - State 2014 has resulted in a single set of conditions of employment and a single classification structure.  Although the Services Union seems to accept that the evidence illustrates that those councils are in a transitional phase to a simpler set of conditions, it submits that the evidence and the submissions of the LGAQ point to standardising conditions to the lowest conditions.  There has been no instance where conditions have been standardised up.  However, the Services Union submits that that approach will not be permitted under the terms of the Consolidated Request when the award or awards to cover the local government industry are prepared. 
  1. [47]
    Although those submissions are directed more to the content of the award than the number of awards there should be for the local government industry, the Services Union submits that if there are "swings and roundabouts" in the preparation of an award, those "swings and roundabouts" should be confined to the relevant people.  It would not be fair for people covered by the classification in the award to lose something which could be notionally offset by something that will only benefit other people.  The likelihood of that not occurring is improved by having more than one award.  Given that the councils already subject to the Queensland Local Government Industry Award - State 2014 still have multiple arrangements in place, there should not be significant practical difficulties in moving to three awards.  To at least some extent, similar submissions were made on behalf of the unions.
  1. [48]
    Separate submissions were made by the QNU and the QIEU in relation to the particular circumstances of the relatively small numbers of their members that are employed in local government and are affected by the modern award.
  1. [49]
    QNU: The Consolidated Request requires the Commission to give consideration to whether nurses employed in the Queensland Local Government sector would be more appropriately covered under an occupational award.  QNU does not seek the creation of an occupational award for nurses in the Queensland Local Government sector.
  1. [50]
    The Full Bench accepts the argument of the QNU that the time and resources necessary to create an occupational award for nurses in the Local Government Sector would require a disproportionate amount of resources which cannot be justified.
  1. [51]
    The QNU submits that the Queensland Local Government Industry Award - State 2014 currently contains entitlements and a classification structure unique to nursing, including a nursing classification structure in Schedule 5.  The QNU contends that nurses in the local government sector should be grouped with other occupational groups within consistent award entitlements but retain their distinct nursing identity through a classification structure and associated provisions as set-out in Schedule 5 of the Queensland Local Government Industry Award - State 2014.
  1. [52]
    The QNU supports an increase in the number of awards to three awards.
  1. [53]
    QIEU:  The QIEU submits that kindergarten teachers in the Local Government Sector should be covered by the same award that covers other teachers.  The QIEU argues that their proposal is consistent with the federal model where the Educational Services (Teachers) Award 2010 covers all teachers in the federal jurisdiction, regardless of whether they are employed in a 'state' school, non-state school, a kindergarten or preschool, unless they are covered by another instrument.
  1. [54]
    The Queensland Local Government Industry Award - State 2014 currently makes provision for kindergarten teachers and assistants.  However, the QIEU submits that the modern award objectives would neither be advanced nor hindered by the existence of a separate award covering kindergarten teachers.
  1. [55]
    In Queensland Independent Education Union of Employees v Local Government Association of Queensland Limited [2015] QIRC 031 the Full Bench concluded:

"In summary, we are not and were not persuaded, particularly given the small number of councils and employees affected, that early childhood teachers and assistants employed in local government should not be covered by the same award as applies to all other employees in local government."

  1. [56]
    It is the view of this Full Bench that nothing has been advanced in the submissions of the QIEU to persuade us from departing from the conclusion that early childhood teachers and assistants employed in local government should not be covered by the same award as applies to all other employees in local government.
  1. [57]
    We note the Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149 repealed the Early Childhood Education Award - State 2012 insofar as it operates within the Local Government sector (excluding Brisbane City Council) on and from 30 September 2014.  Thus it is not clear under which modern award teachers in the local government sector are proposed to be covered. 

 Evidence and submissions opposing an increase in the number of modern awards

  1. [58]
    The LGAQ submits, in summary, that:
  1. (a)
    increasing the number of modern awards does not advance the modern award objectives (set out in s 140D of the Act[8]) and is contrary to the interests of councils and the long-term employment prospects of the local government workforce; 
  1. (b)
    retaining a single local government industry modern award is an outcome that best meets the modern award objectives, in that it provides "a minimum safety net of employment conditions that is fair and relevant;"[9] 
  1. (c)
    the unions have failed to demonstrate how the single award fails to meet the modern award objectives, and how moving to a multiple award system would better deliver the legislated objectives;
  1. (d)
    if and where there is a need to tailor a unique set of employment conditions for a distinct occupational calling or group of local government employees, there is ample flexibility to do so under the single Queensland Local Government Industry Award - State 2014 so as to ensure the modern award objectives continue to be met;
  1. (e)
    adoption of the three awards should be rejected as a far less favourable, and possibly an unfavourable, option in these circumstances.
  1. [59]
    In support of that submission, the LGAQ referred to and relied on 12 affidavits from officers from 12 councils in Queensland, and the affidavit of an employee of the Western Australia Local Government Association, discussed later in these reasons.
  1. [60]
    The submissions made by the LGAQ can be described broadly as:
  1. (a)
    submissions in favour of a single award for the local government industry;
  1. (b)
    submissions against multiple awards for the local government industry.
  1. [61]
    Submissions in favour of a single award: The LGAQ submits that, although local government is recognised as an industry, there is no single local government employer.  Rather there are 77 different and unique local government employers (or 76 excluding the Brisbane City Council), each of which is responsible for meeting its obligations as an employer.  Local governments (excluding the Brisbane City Council) employ more than 32,000 workers across highly diverse and wide ranging categories of work,[10] and the categories of work vary between councils depending on local community demands.  There is significant variation in the number of people employed by councils, with 16 councils employing more than 500 workers and 25 councils employing fewer than 100 workers.  However:
  1. (a)
    local governments are established under the same legislation[11] which prescribes general responsibilities of all local government employees and obligations for local governments towards those employees and, accordingly, those employees are first and foremost "local government" employees;
  1. (b)
    because councils are "place-based" workplaces, employees who often work and sometimes live near each other more readily compare themselves with other council employees than with workers of similar callings across different councils and different centres;
  1. (c)
    there are limited numbers of local government employees in the professional callings (e.g. teachers, nurses). 
  1. [62]
    For those reasons, the LGAQ submits that it makes sense to have an award that makes it easier to compare employees who work side by side within a particular council, particularly within discrete business units or service areas. 
  1. [63]
    The LGAQ also refers to a history of Queensland councils seeking a single award for local government (with a discrete industry focus), which reflects a national pattern to the structure of awards regulating the local government sector (as illustrated by the Australian Industrial Relations Commission making a single modern local government industry award as the preferred award structure to best meet national Modern Award Objectives).  In the years immediately before the Queensland Local Government Industry Award - State 2014, the situation in Queensland was in contrast with that pattern.  
  1. [64]
    In support of that submission, the LGAQ refers to the affidavit of Scott Roffey, Employee Relations Service Manager for the Western Australian Local Government Association (Exhibit 13).[12]  Mr Roffey deposed that:

"4. It is my experience that whilst Western Australia does have a parallel state industrial relations system, approximately 85% or more local governments in Western Australia operate in the federal industrial relations system.

  1. The approximate 85% or more local governments in Western Australia that operate in the federal industrial relations system either directly apply the Local Government Industry Award 2010 or use it as an underpinning instrument for negotiated enterprise agreements."

In cross-examination, Mr Roffey stated that there are 140 local councils in Western Australia, of which he estimated 85 per cent elect to operate in the federal system.  There are two interim state awards that are "essentially carbon copies of the pre-existing federal award."

  1. [65]
    In a similar vein, the LGAQ stated that:
  1. (a)
    it understood, from direct discussions with representatives from relevant local government associations within other states and territories, that local governments and their employees in Tasmania and the Northern Territory are subject to the single Local Government Industry Award - 2010;
  1. (b)
    the New South Wales local government sector operates within the State jurisdiction, yet all local governments there operate under a single local government award[13] which covers the overwhelming majority of local government staff in that state;
  1. (c)
    the Fair Work Commission has recently approved a single local government award for all Victorian local governments.  (Paragraphs 37-39)
  1. [66]
    In relation to the current situation in Queensland, the LGAQ notes that, although the Queensland Local Government Industry Award - State 2014 is relatively recent:
  1. (a)
    approximately one third of local governments in the state are subject to the new award;
  1. (b)
    the experience has been a genuinely positive one for those councils;
  1. (c)
    there has been limited, if any, industrial disputation arising from the transition.
  1. [67]
    In support of that submission, the LGAQ refers to the affidavits of 12 employees of 12 different councils.  Those councils employ different numbers of staff, ranging from 35 to 1,500.  In summary, different affidavits contain statements to the effect that:
  1. (a)
    it is easier (and reduces the risks) for payroll and HR staff to navigate a single award that is specific to local government than various awards with different (or no) provisions on some matters;
  1. (b)
    associated processes have been simplified and streamlined, are less expensive to operate and are easier to explain;
  1. (c)
    with one award, it is easier for employees to understand their entitlements and the differences between the conditions and benefits of other employees at different classifications and in different employment streams, and hence to work together;
  1. (d)
    employees support the concept of employment practices which recognise the nuances of different classifications, functions and work requirements, and employees have been positive about having one award and one certified agreement;
  1. (e)
    no negative consequences have been observed or reported by employees as a result of operating under one award;
  1. (f)
    although the process of transition to the Queensland Local Government Industry Award - State 2014 was "onerous" or "challenging" for some councils, and involved considerable realignment of payroll processes and a significant commitment of resources, the councils believe that:
  1. the single award presents numerous benefits to the councils and their employees; and
  1. the creation of multiple awards covering employees would be a retrograde step, involving additional complexity and potential confusion, and would cause these benefits to be lost.
  1. [68]
    The LGAQ submits that the evidence in relation to the Queensland Local Government Industry Award - State 2014 shows that it is achieving the modern award objectives of simplification, ease of application and reduction of regulatory burden.
  1. [69]
    The LGAQ submits that a single award has a much better chance of achieving the aims of:
  1. (a)
    providing greater relevance to the needs of the operational or functional areas of councils;
  1. (b)
    providing greater fairness in outcomes by creating a greater level of equity/standardisation of conditions within distinct operational areas so that local government employees of various callings who are working side by side are treated more equitably; and
  1. (c)
    being easier to apply and understand (particularly for smaller councils with less sophisticated payroll systems) because there would be a single reference document with a greater level of standardisation of employment arrangements. 
  1. [70]
    In response to submissions about the effect of the current modern award on entitlements and conditions of employees, the LGAQ submits that there has never been any evidence to support a finding that the creation and content of the single award was "intended to reduce the entitlements and conditions for employees."  The LGAQ:
  1. (a)
    acknowledges that the shift to a single award led to a greater equalization and standardisation of conditions and entitlements to employees working side by side and exposed to the same working conditions.  That acknowledgement is supported by some of the evidence in these proceedings from council employees;
  1. (b)
    notes that the Commission approved various transitional and safeguarding measures, along with the capacity for parties to seek variations to the award to pursue legitimate claims of unfair disadvantage. 
  1. [71]
    Submissions against multiple awards: The LGAQ submits that the coverage of the three proposed awards largely reflects the historical award demarcation which had applied to most local government employees in Queensland, which demarcation was a pragmatic response to working across dual State and Federal industrial jurisdictions.  That jurisdictional split no longer exists.  The LGAQ contends that the proposal for three awards does not provide a sound basis for expressing modern award coverage and could be characterised as a relic of history. 
  1. [72]
    In terms of the practical implications of multiple awards, the LGAQ submits that the historical approach to multiple award regulation gave rise to significant tensions (including from overlapping coverage of awards).  As contemporary local government work has changed (including in response to rapid technological change), many callings of work have not been able to be fitted neatly into one award or another.  The creation of three awards would continue to create confusion where current and changing roles do not fit one of the broad groupings of work which might be taken to fall within the scope of a particular modern award or awards.  Such "pigeon holing" could inhibit councils from changing existing work practices or undertaking new work practices in the interests of productivity or efficiency (e.g. if such change means employment conditions might change because the work would be covered by a different award).  By comparison, it is more likely that the industrial arrangements applying to changes in work affecting a broad operational area of Council's services would be considered holistically.  A single award arrangement is better suited to accommodating and promoting flexible modern work practices.
  1. [73]
    When making that submission, the LGAQ acknowledged that there are similar problems in determining the current streams of the Queensland Local Government Industry Award - State 2014.  However, the greater level of standardisation introduced by that award and the fact that there is only one document to consider has meant that the practical difficulties have been reduced significantly. 
  1. [74]
    The LGAQ submits that, if the request for three or more awards was successful, it is very likely that the conditions in these alternative three awards would not directly reflect all the entitlements and conditions that existed prior to the creation of those awards.  A degree of standardisation would still need to occur. 
  1. [75]
    The LGAQ also submits that, because of the tendency for separate awards to develop independently of each other (being driven by different interests groups), separate awards are more likely to lead to inequity developing between provisions in those awards.  That inequity would be most apparent where different awards apply to people working side-by-side within distinct operational areas.  However, the LGAQ notes that where multiple certified agreements have been maintained to accommodate disparate union parties in relation to the Queensland local government sector, there is a high level of consistency in the content of those documents. 
  1. [76]
    When critiquing the submissions of the unions in support of multiple awards, the LGAQ notes, among other things, that much of the argument for an increase in the number of awards is based on union assertions that there has been a severe diminution in conditions of employment as a result of the single Queensland Local Government Industry Award - State 2014.  The LGAQ submits that these arguments have little basis in practice, and provides examples to illustrate in support of that submission.  It also submits that, if there are problems with discrete forms of entitlement (whether included or not included in the single award), that is a matter to be dealt with elsewhere, e.g. by seeking a variation to the award, or in the upcoming process by seeking the insertion of various changes to the current award, or in the course of enterprise bargaining.

Consideration and conclusion

  1. [77]
    Having considered the issue of whether to increase the number of awards in the Queensland local government industry in light of the relevant provisions of the Act, the Consolidated Request and the evidence and submissions of the parties, we are not persuaded that there should be more than one award for the local government industry in Queensland (excluding the Brisbane City Council).
  1. [78]
    In reaching that conclusion, we have taken the following matters into account:
  1. (a)
    there is currently one award, the Queensland Local Government Industry Award - State 2014;
  1. (b)
    significant resources were expended by individual councils throughout Queensland in implementing and explaining the Queensland Local Government Industry Award - State 2014;
  1. (c)
    the response to the implementation of the award from the councils and from local government employees has been generally positive;
  1. (d)
    no significant problems have been identified in relation to having a single award for the local government industry in Queensland;
  1. (e)
    having one award for the local government industry across the state is consistent with practice in most other states and the Northern Territory, and the operation of the federal award;
  1. (f)
    having one award reduces the risk of significant differences emerging between awards over time, particularly if separate awards were to develop independently of each other (being driven by different interest groups), with the possibility of inequity developing between provisions in those awards, which inequity would be most apparent where different awards apply to people working side-by-side within distinct operational areas; and
  1. (g)
    having one award:
  1. removes the possibility of disputes in relation to the coverage of separate awards (particularly in the context where changing work conditions and roles within the local government industry can create some uncertainty as to which grouping of work applies to a particular worker or workers); and
  1. reduces the possibility that councils might be inhibited from changing existing work practices or undertaking new work practices if such change meant employment conditions might change because the work could be covered by a different award.
  1. [79]
    As noted earlier, there are some instances where individual employees or small categories of employees receive less remuneration than they received before the Queensland Local Government Industry Award - State 2014 commenced to operate.  However, their circumstances appear to be the result of the implementation of certified agreements negotiated under the award, rather than the award itself.  Other employees are apparently better off financially.
  1. [80]
    We again make the point that a modern award, together with the Queensland Employment Standards provides for a fair minimum safety net of enforceable employment conditions of employment for employees, thus promoting collective bargaining conformably with s 3(o) of the Act
  1. [81]
    If there are significant concerns about the content of the Queensland Local Government Industry Award - State 2014, they could be dealt with in the course of the review of that award to be undertaken by the Commission in accordance with the Consolidated Request and the amended Act. 
  1. [82]
    We decline to make more than one award for the local government industry in Queensland (excluding Brisbane City Council).

Footnotes

[1] Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2014] QIRC 089.

[2] Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149.

[3] See e.g.. Affidavit of Peter Franks (Exhibit 1), Geoffrey Owen-Turner (Exhibit 2), Sydney Shang (Exhibit 4).

[4] The Australian Concise Oxford Dictionary of Current English, 7th edn, 1987, p 217.

[5] Macquarie Dictionary, 5th edn, 2009, p 366

[6] The Australian Concise Oxford Dictionary of Current English, 7th edn, 1987, p 217.

[7] Macquarie Dictionary, 5th edn, 2009, p 366

[8] Section 140D of the Act lists matters to which the Commission must have regard when making modern awards.  Those matters are primarily about the content of modern awards.

[9] S 140D(1).  See also s 140D(2)(g) which requires the Commission to have regard to the need to ensure the modern award system is simple and easy to understand; is certain stable and sustainable; and avoids unnecessary overlap of modern awards.

[10] It has been calculated that there are more than 400 identifiable different jobs/callings.  For examples see LGAQ submission paragraph 25.

[11] Local Government Act 2009 and Local Government Regulation 2012.

[12] See also Exhibit 7, affidavit of Adam Mark Seiler.

[13] Local Government (State) Award 2010.

Close

Editorial Notes

  • Published Case Name:

    Re: Request Pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a Modern Award - Local Government

  • Shortened Case Name:

    Re: Request Pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a Modern Award - Local Government

  • MNC:

    [2015] QIRC 156

  • Court:

    QIRC

  • Judge(s):

    Member Deputy President O'Connor, Member Deputy President Kaufman, Member Neate IC

  • Date:

    20 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149
3 citations
Jump To
Cite 1 - [2014] QIRC 149
Cite 2 - [2014] QIRC 149
Cite 3 - [2014] QIRC 149
Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2014] QIRC 89
2 citations
Jump To
Cite 1 - [2014] QIRC 89
Cite 2 - [2014] QIRC 89
Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ [2015] QIRC 31
1 citation
Jump To
Cite 1 - [2015] QIRC 31

Cases Citing

Case NameFull CitationFrequency
Re: Variation and Renaming of a Modern Award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 1863 citations
1

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