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Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council

[2020] QIRC 38

Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council[2020] QIRC 38

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] QIRC 038

PARTIES: 

Queensland Services, Industrial Union of Employees

(Applicant)

v

Moreton Bay Regional Council

(Respondent)

CASE NO:

D/2018/57

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

6 March 2020

MEMBER:

Knight IC

 
  1. The answer to Question 1 is: Yes
  2. The answer to Question 2 is: Ordinary Time

CATCHWORDS:

INDUSTRIAL LAW – Interpretation of Award – Agreement to alter ordinary hours – Variation and replacement of Award over time – removal of additional payment for ordinary hours performed on weekend – dispute over rate of pay for hours performed outside of normal span or on weekends – whether agreement is still valid – whether employee entitled to overtime or ordinary time payment.

LEGISLATION:

Industrial Relations Act 1999

Industrial Relations Act 2016

Queensland Local Government Officers' Award 1998

Queensland Local Government Industry Award – State 2014

Queensland Local Government Industry Award – State 2014 (2016 Interim Award)

Queensland Local Government Industry Award – State 2017

Queensland Local Government Industry Award – State 2017 (Stream A)

CASES:

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813

Reasons for Decision

  1. [1]
    Ms Tania Peters works as a part-time senior librarian assistant for the Moreton Bay Regional Council (the Council). She is represented by the Queensland Services Union (the Union). The               Union has requested the Commission arbitrate a dispute concerning the remuneration Ms Peters is presently paid for hours worked on Friday evening after 6.00 pm and all-day Saturday.
  1. [2]
    When she was originally engaged by the Council, Ms Peters’ hours on a Saturday were characterised as ordinary hours under Clause 15.3 of the Queensland Local Government Industry Award – State 2014 (the previous 2014 Award).
  1. [3]
    The Award that was in place at the time provided for an employer and employee to agree to ordinary hours of work on any five out of seven days per week, including Saturday and Sunday. The relevant rate of pay for ordinary hours worked on Saturday was time and a quarter. Ms Peters hours on a Friday attracted an ordinary hourly rate notwithstanding she worked until 8.15 pm in the evening. 
  1. [4]
    On 1September 2016, the Commission varied the terms of the previous 2014 Award by way of a determination, such that the entire contents of the previous Award were replaced with the content contained in an Annexure to the Determination. This essentially resulted in the creation of an Interim Award of the same name, albeit with different content, which took effect from 1 September 2016 (the Interim Award).
  1. [5]
    Unlike the previous 2014 Award, the Interim Award did not contain a consolidated table detailing the relevant payments for the various streams, groups or classifications of employees, including Ms Peters, who worked ordinary hours on a weekend.
  1. [6]
    Instead, the 2014 Interim Award dealt with terms such as hours of duty, payment for ordinary hours and overtime on a stream by stream basis. Much like the previous consolidated table, the remuneration and relevant rates varied significantly, depending on the Stream and the role being undertaken. In so far as Ms Peters’ role is concerned, the Interim Award did not contain a specific clause dealing with payment for ordinary hours worked on a Saturday or after 6.00 pm on a Friday.
  1. [7]
    Eventually, the Commission repealed and replaced the Interim Award with the Queensland Local Government Industry Award – State 2017 (the 2017 Award). Similarly, the 2017 Award does not contain a specific clause dealing with payment for ordinary hours worked on a Saturday or after 6.00 pm on a Friday for an employee in Ms Peter’s stream.
  1. [8]
    The 2017 Award was later partitioned into three separate Awards of the same name, albeit with different streams of employees and classifications (the 2017 partitioned Awards). Again, the relevant Award for Ms Peters does not contain any reference to a special rate for work performed on Saturday or after 6.00 pm.[1]
  1. [9]
    The Union now argues the agreement to work ‘any 5 out of 7 per week’, which the Council purported to enter into with Ms Peters in 2015, if it had ever operated, ceased to operate when the (previous) Award under which it was made was revoked. It contends Ms Peters should have been in receipt of overtime payments for any work performed outside of 6.00 am – 6.00 pm, Monday to Friday from at least 1 September 2016, when the interim Award was created.
  1. [10]
    Although the Council has continued to pay Ms Peters in accordance with the agreement, it maintains the actual minimum applicable rate of pay for the hours Ms Peters works after 6.00 pm on a Friday, is ordinary time, irrespective of whether the previous 2014 Award, the 2014 Interim Award or the 2017 Award(s) apply.
  1. [11]
    In respect of payment for work performed on Saturday, the Council acknowledges it was required to pay time and a quarter as stipulated in the previous 2014 Award and set out in the agreement with Ms Peters, but argues the applicable rate of pay under the 2014 Interim Award, and the 2017 Award(s) for work performed on Saturday (post the Determination) is ordinary time.
  1. [12]
    The parties have agreed upon the following questions to be arbitrated:
  1. Did Council enter into a legally effective 'any 5 in 7' arrangement with Ms Peters upon her employment with the Council, in relation to the days upon which ordinary hours may be worked?
  1. If the answer to question 1 is:
  1. (a)
    Yes – what is the rate of remuneration that Council is presently required to pay Ms Peters under the applicable Award for her hours of work?
  1. (b)
    No – what is the rate of remuneration that Council is presently required to pay Ms Peters under the applicable Award for her hours of work, and is any (and if so how much) back-pay required to be paid?

Did Council enter into a legally effective 'any 5 in 7' arrangement with Ms Peters upon her employment with the Council, in relation to the days upon which ordinary hours may be worked?

  1. [13]
    Ms Peters commenced her employment with the Council on 31 August 2015. She signed a letter of offer detailing the ‘5 in 7’ arrangements on 4 September 2015. Her terms and conditions of employment as detailed in the offer letter, are governed, in part, by the Moreton Bay Regional Council Certified Agreement 2014 EBA3 ("the EBA") and any subsequent agreement. The EBA is to be read and interpreted wholly in conjunction with the Award and, in the case of inconsistency, the provisions of the Agreement shall prevail.
  1. [14]
    Among other things, the correspondence set out details of the proposed conditions of employment, hours of work and rate of pay for the position of Senior Library Assistant. 
  1. [15]
    At the outset, I should note that the EBA, along with the Moreton Bay Regional Council Certified Agreement 2019 EBA4 (which was certified on 28 October 2019), are largely silent with respect to hours of work and overtime. For the most part, this arbitration concerns the interpretation and application of provisions of the relevant Award, and, the circumstances in which the hours worked by Ms Peters attract a payment of ordinary time, overtime or some other rate of pay.  
  1. [16]
    The letter of offer to Ms Peters relevantly provides (my underlining):

...

Hours of Work

In accordance with Clause 15.3 'Spread of Ordinary Hours of Duty – Day Workers' of the Award, your ordinary hours of duty may be worked on any 5 out of 7 days per week, including Saturday and Sunday. For ordinary hours worked on a Saturday you will be paid at time and a quarter and on a Sunday you will be paid at time and a half of your applicable ordinary pay rate.

Your initial hours of duty are 11 hours per week, worked over 2 days in the following pattern:

Working Days

Starting Time

Finishing Time

Unpaid Lunch

Friday

4.30pm

8.15pm

Nil

Saturday

8.30am

4.45pm

60 minutes

Should you work additional hours on Saturday and/or Sunday, these hours would be beyond your ordinary hour's arrangement and as such, you will be paid the applicable penalties as outlined in the Award.

Your pattern of hours may be amended by mutual agreement or, if council determines that your pattern of work needs to change in order to meet operational requirements, you will be given 4 weeks' notice of the change.

...

  1. [17]
    As can be observed, the letter of offer proposes Ms Peters work ordinary hours on Friday and Saturday, with the Saturday hours attracting a rate of time and one-quarter ("the Agreement").
  1. [18]
    At the time Ms Peters signed the letter setting out the proposed ‘5 in 7’ arrangement the relevant Award was the Queensland Local Government Award 2014.
  1. [19]
    Clause 15.3 provided (my underlining):

15.3 Spread of ordinary hours of duty – day workers

  1. (a)
     

(i)     Subject to clause 15.4(a)(ii), the spread of ordinary hours for day workers shall be 0600 to 1800 Monday to Friday, or other days of work, spread of ordinary hours and conditions as prescribed in the table in clause 15.3(iv) below.

  1. (ii)
     Notwithstanding the spread of ordinary hours prescribed in clause 15.3(a)(i) and in the table in clause 15.3(iv) below, an employer and an employee or a group of employees (who may be represented by their local union delegate/s, their union officials or any other person authorised to represent them) may agree that:

 (A) the ordinary hours of duty may be worked on any five out of seven days per week including Saturday and Sunday; and/or

 (b) the prescribed spread of ordinary hours may be altered.

...

  1. [20]
    The Award then exhaustively sets out, in a table at cl 15.4, the rates for ordinary hours. The rate of payment for working ordinary hours varied depending on where an employee sits within a stream or group, as well as the days and times that are worked.
  1. [21]
    Up until 1 September 2016, Ms Peters’ role sat within the Administrative, technical, community service, supervisory and managerial (other than Indigenous Councils) group, of the General Stream, for the purposes of identifying the relevant rate of pay for ordinary time worked. Any work undertaken on Saturdays attracted a rate of time and one-quarter whereas, on Sundays, the rate was time and one-half.[2]
  1. [22]
    After considering the circumstances of Ms Peters’ appointment, the letter of offer, the date at which she signed the letter and the interaction between the relevant Agreement and the previous Award, I am satisfied the Council entered into a “legally effective”, as the question puts it, ‘any 5 in 7’ arrangement with Ms Peters upon her employment, in so far as it related to the days upon which ordinary hours could be worked.   
  1. [23]
    At the time of her appointment and certainly up until 1 September 2016, the applicable rates of remuneration for the days and hours which form the basis of this dispute were:
  • Friday afternoon and evening until 8.15pm – ordinary time
  • Saturday, 8.30am until 4.45pm – time and a quarter.
  1. [24]
    I am satisfied Ms Peters, at least until 1 September 2016, has been paid in accordance with the relevant Award rates and the agreement which was struck between herself and Council.  

The Determination – Interim Award (2016)

  1. [25]
    By determination dated 31 August 2016, Deputy President Bloomfield, for reasons unrelated to this application, replaced the contents of the 2014 Award with an Interim Award.
  1. [26]
    The Union reasons that the Agreement reached between the Council and Ms Peters ceased to validly operate when the 2014 Award under which it was made was revoked. At that time, it is argued the Council needed to enter into a fresh agreement with Ms Peters. Because this did not occur, the provisions of the relevant Award are said to apply, subject to the relevant EBA.
  1. [27]
    Unlike the 2014 Award, which contained that aforementioned table which prescribed the rates of payment for working ordinary hours, the Interim Award merely stated:

15. Hours of duty

 15.1 Ordinary hours of duty – day workers

 ...

 (b) An employer and employee, who may be represented by an accredited union representative, may agree that the ordinary hours of duty may be worked on any five out of seven days per week including Saturdays and Sundays or the ordinary hours may be altered as to the spread of hours.

  1. [28]
    Essentially, Clause 15.1 of the Interim Award prescribed the ordinary hours for employees in the relevant stream as being 0600 to 1800 Monday to Friday, unless the employee and Council entered into an agreement described in Clause 15.1.
  1. [29]
    There is some force in the Council's submission that, for the introduction of the Interim or 2017 Award to have the effect of automatically vitiating the validity of all extant agreements forged under the previous Award like Ms Peters', clear and emphatic language of that intention might have been expected.
  1. [30]
    In this regard, I note there is no inconsistency between the terms of the 2014 Award and the Interim Award which suggest the Agreement was to be rendered invalid by implication. The Union, in part, hangs its hat on the removal of the table of rates of payment. On that basis alone, I am not prepared to conclude that the drafter(s) desired the outcome for which the Union contends.
  1. [31]
    I have set out below the relevant clause, identical in both the Interim and 2017 Awards, once more (my emphasis):

An employer and employee, who may be represented by an accredited union representative, may agree that the ordinary hours of duty may be worked on any five out of seven days per week including Saturdays and Sundays or the ordinary hours may be altered as to the spread of hours.

  1. [32]
    An important observation is that the clause empowers an employer and employee to make an agreement to work on any five out of seven days, or to alter the spread of the ordinary hours. Put simply, one limb of the clause pertains to the days of work, the other to the hours of work – their spread.
  1. [33]
    In Ms Peters' case, the Council, by valid agreement, relied upon both limbs to alter the terms of Ms Peters' employment.  Firstly, she agreed to work ordinary hours of duty on a Saturday. The hours she works on Saturdays are unremarkable; they fall within the usual ambit for ordinary hours. Secondly, on Fridays, the spread of her hours has been altered by operation of the Agreement. She works past 6.00 pm until 8.15 pm.
  1. [34]
    One must bear in mind that the Council may only achieve this outcome by agreement. I am satisfied Ms Peters agreed to the arrangement.
  1. [35]
    I agree with Council’s alternative submissions that an agreement varying Ms Peters' ordinary hours existed between herself and the Council at the time the Interim Award came into effect.  Likewise, the same agreement existed between Ms Peters and the Council by the time the Interim Award was replaced with the 2017 Award and later, the 2017 partitioned Award. 
  1. [36]
    The relevant clauses, in so far as they relate to an employee varying their hours to work any five out of seven days per week, including Saturdays and Sundays, have consistently appeared in the previous 2014 Award, the Interim Award, the 2017 Award and the 2017 partitioned Award.
  1. [37]
    As such, I am satisfied the Agreement between Ms Peters and the Council that her ordinary hours may be worked on any 5 out of 7 days per week, including Saturday and Sunday, continued to be valid after 1 September 2016.

What is the rate of remuneration that Council is presently required to pay Ms Peters under the applicable Award for her hours of work?

  1. [38]
    Although Council continued, as it does to this day, to pay Ms Peters the rates set out in her original letter of offer and as provided for in the previous 2014 Award, the other issue in this dispute is that, since the introduction of the Interim Award in 2016, while an employee and an employer may still agree which hours are to be worked (i.e. that "the ordinary hours of duty may be worked on any five out of seven days per week including Saturdays and Sundays"),[3] the rates of payment attaching to those hours are not, as before, exhaustively prescribed by the Award.
  1. [39]
    In the absence of any other prescriptive rate within the relevant Award (s), other than the ordinary hourly rate, the Union submits the hours which are the subject of this dispute should attract the overtime rate.
  1. [40]
    The Interim Award and the 2017 Awards provide that Ms Peters' ordinary hours of duty are, as a rule, "between the hours of 0600 and 1800", Monday to Friday.  As regards overtime, the Interim Award refers to the pre-modernisation Award: Queensland Local Government Officers' Award 1998 ("the pre-modern Award"). At cl 15.4 of that Award, it stated all overtime worked on Saturdays and Sundays shall be paid at a rate of double time, with a minimum payment of three hours.
  1. [41]
    The 2017 Award and the 2017 partitioned Award reproduce this provision:

18.2 Payment for overtime

  1. (a)
     Except as provided elsewhere in clause 18, overtime worked outside the spread of ordinary hours on any day Monday to Friday, inclusive, or in excess of the ordinary daily or weekly hours shall be paid for at the rate of time and one-half.
  1. (b)
     All overtime worked on a Saturday or a Sunday shall be paid for at the rate of double time with a minimum payment as for 3 hours' work.
  1. [42]
    The Union contends Ms Peters should have been in receipt of overtime payments since 1 September 2016, for any work performed outside the ordinary hours of 6.00 am and 8.00 pm, Monday to Friday. Accordingly, her shift on Friday should have attracted a rate of time and one-half from 6.00 pm until 8.15 pm, not her ordinary rate; whereas, on Saturday, she should have earnt double time, not a rate of time and one-quarter.
  2. [43]
    By way of background, the pre-modern Award contained a clause virtually identical to that which appears in the interim and 2017 Awards:[4]

13.1 A respondent and officer who may be represented by an accredited union representative may agree that the ordinary hours of duty may be worked on any five out of seven days per week including Saturday and Sundays or the ordinary hours may be altered as to the spread of hours.

  1. [44]
    While the Award provided that all overtime worked on Saturdays and Sundays shall be paid at a rate of double time, it made no provision for the payment of special rates or a higher rate for ordinary hours worked past 6.00 pm on a Friday evening or all-day Saturday. In respect of matters which are relevant to this arbitration such as hours of work, penalty rates and overtime, the pre-modernised Award is substantially the same as the Interim, the 2017 Award and the 2017 partitioned Award. 
  1. [45]
    That is, there were no specific rates (other than the ordinary hourly rate) set out in the pre-modern Award for Officers who elected to work ordinary hours on a Saturday or Sunday; or who agreed to alter their spread of hours. Then, during the modernisation process, a prescriptive set of rates appeared in the 2014 Award[5] before being removed in the Interim Award.
  1. [46]
    The background suggests that the presence of special rates for work performed after 6.00 pm on a Friday or on a weekend, from the introduction of the 2014 Award until their removal on 1 September 2016, were the exception and not the rule for Officers.
  1. [47]
    The question I have been asked to consider is what is the rate of remuneration that Council is presently required to pay Ms Peters under the applicable Award for her hours of work she performs after 6.00 pm on Friday evening and all-day Saturday (my emphasis).
  1. [48]
    Presently, there is a valid agreement between Ms Peters and the Council that her ordinary hours may be worked on any 5 out of 7 days per week, including Saturday and Sunday. I am satisfied there has been no requirement in any of the relevant Awards since 1 September 2016, to pay a rate other than the ordinary hourly rate for work performed after 6.00pm on Friday or all-day Saturday. 
  1. [49]
    Although Ms Peters currently receives a higher rate on a Saturday under an existing agreement she has with Council, the rate she would otherwise be entitled to in the event the agreement wasn’t in place, for hours performed after 6.00 pm on a Friday or all-day Saturday under the applicable award is ordinary time.

Other matters - Invalidity of the Interim Award

  1. [50]
    The Council submitted that the 2014 Award continues to underpin Ms Peters' employment in circumstances where the Deputy President lacked the jurisdiction to make the Interim Award.
  1. [51]
    The Industrial Relations Act 1999 provided that the Commission may make a determination only if it is satisfied, inter alia:

that making the determination or modern Award other than for the purposes of a periodic review is necessary to achieve the modern Awards objectives.[6]

  1. [52]
    The modern Award objectives are set out at s 140D.
  1. [53]
    The Determination relevantly provided:

...

... whereas the Commission proposes to act on its own initiative, pursuant to section 140G of the Act, to vary the terms of the Queensland Local Government Industry Award - State 2014 (the 2014 Award) so as to produce an (interim) Award which will substantially comply with the terms of the Minister's Variation Notice and allow the Commission and the interested parties a short period of grace to review and finalise the content of the 2016 Award in accordance with the provisions of section 140D and Chapter 20, Part 20, of the Act,

...

  1. [54]
    The Council submits that s 140G(2)(a) has not been satisfied because the Determination "does not state that the variation is necessary to meet those objectives". The Council did not expand upon this submission, nor enter into a discussion concerning the consequences – potentially far reaching – that would result if its submission were accepted.
  1. [55]
    It is unnecessary and inappropriate for the Commission, in the context of arbitrating a dispute concerning a single employee's remuneration, to delve into whether the variation of an Award, effected over three years ago, and since replaced, was statutorily compliant. If the Council had such concerns, it ought to have been raised while the Interim Award was operative or, for instance, by way of an application for a Declaration as to its invalidity.
  1. [56]
    For much the same reason, I similarly dismiss the Council's further submission questioning the validity of the Interim Award.[7]
  1. [57]
    In any case, the 2017 partitioned Award is now operative and is, in its terms, substantially the same as the Interim Award.

 Conclusion

  1. [58]
    It follows that the answer to Question 1 is "yes".
  1. [59]
    The answer to Question 2, is under the applicable award, Council is required to pay Ms Peters the ordinary rate of pay for hours of work performed after 6.00 pm on Friday and all-day Saturday.
  1. [60]
    I order accordingly.

ANNEXURE A – Queensland Local Government Awards (2014 – 2017)

The following historic summary has, in part, been borrowed from several decisions related to the Award for the period 2014 – 2017.[8]   I have added some commentary where relevant to this matter.

  1. Part 8 of Chapter 5 'Modernisation of Awards' as well as Chapter 5A, 'Modern Awards', were inserted into the Industrial Relations Act 1999 (the 1999 Act) by Act No. 61 of 2013. The amending Act thereby introduces a regime which permits the Minister to request the Queensland Industrial Relations Commission (Commission) to undertake a process of modernising Awards. Section 140C empowers the Treasurer and Minister for Employment and Industrial Relations (Minister) to give the Commission an Award modernisation request (Request) to carry out an Award modernisation process.
  1. On 26 September 2014 following a Request from the then Attorney-General and Minister for Justice given in January 2014, a Full Bench of this Commission made the Queensland Local Government Industry Award - State 2014 (the 2014 Award).
  1. The 1999 Act was amended in 2015 by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 which amongst other things, amended s 140D of the 1999 Act 'Modern Award objectives', by deleting the requirement that the Commission have regard to 'financial considerations' as defined in that section. It also amended the principal object of the Act by deleting s 3(p) which required that when wages and employment conditions are determined by arbitration and the matter involved the public sector, the financial position of the State and the relevant public sector entity and the State's fiscal strategy were to be taken into account.
  1. The Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 also inserted Part 20, Transitional Provisions for Industrial Relations (Restoring Fairness) and other Legislation Amendment Act 2015 into the 1999 Act. Section 841 of the 1999 Act requires the Commission to review a relevant modern Award and vary it if the Minister gives the Commission a variation notice under s 140CA. Section 140CA(1) requires the Commission to remove certain provisions which had been required to be inserted prior to their repeal by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015, as well as to include certain provisions that had been contained in relevant pre-modernisation Awards.
  1. The Commission recommenced the Award modernisation process following the passing of amendments to the 1999 Act and the issuing of a variation to the existing Ministerial Request (Consolidated Request) on 17 July 2015.
  1. On 20 August 2015, a Full Bench dealt with the Consolidated Request and the requirement of s 844 that the Commission consider an increase to the number of Awards covering the Queensland local government industry (Excluding Brisbane City Council) ('Queensland local government industry'). That Full Bench declined to increase the number of Awards governing the Queensland local government industry deciding that one Award is appropriate.
  2. Following that decision, pursuant to the Consolidated Request, the Commission's Award modernisation team (AMOD Team) conducted conferences with interested parties in an attempt to come to an agreed position in relation to amending the 2014 Award in conformity with the Consolidated Request. No agreement was reached.
  1. On 10 September 2015, Deputy President Bloomfield referred the variation of the Award to the Vice President who constituted a Full Bench to deal with the matter and to vary the 2014 Award in conformity with the Consolidated Request. The Referral included an Exposure Draft of a proposed new Modern Award for the Full Bench to consider.
  1. On 31 October 2015 the Commission made orders, relying upon the Award modernisation process contained in Part 8 of Chapter 5 of the Industrial Relations Act 1999.
  1. On 10 November 2015, an appeal against the Full Bench's 31 October 2015 decision was lodged in the Industrial Registry. In short, Martin J found that the previous Full Bench erred in its determination of the requirements of the Consolidated Request and, as a result, fell into error in the manner in which it proceeded to make the new Award. The decision of the Full Bench was set aside and the matter was remitted to the Commission to be heard and determined according to law.
  1. A new Consolidated Request was issued by the Honourable Grace Grace, Minister for Employment and Industrial Relations (the Minister) on 6 June 2016. Schedule 1 to that request sets out:

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:

a) salaried, professional, administrative, clerical, technical and supervisory employees;

b) operational employees (including those in civil construction, horticultural, maintenance, etc.); and

c) trade qualified employees.[9]

  1. On 20 July 2016, Deputy President O'Connor directed that the Local Government Industry Award - State 2016 ("the Proposed Award") be referred back to the AMOD Team in order that further conciliation conferences be conducted with interested parties. It was further ordered that that the AMOD Team produce a further Draft Award for consideration by the parties and for a differently constituted Full Bench to hear and determine any outstanding issues about which the parties could not reach a consent position.
  1. On 31 August 2016, Deputy President Bloomfield released a Determination. The Determination details that the Minister issued a Variation Notice on 6 June 2016, requiring the Commission to review and vary the 2014 Award to produce a new Award to be known as the Queensland Local Government Industry Award - State 2016 (the 2016 Award) by 31 August 2016. The Commission was unable to meet that deadline, and the Determination sought to vary the terms of the 2014 Award by way of the Commission acting on its own volition. In particular, the Determination acted to vary the 2014 Award as follows:
  1. To delete the entire content of the 2014 Award and replace that content with the text contained in Annexure A to the Determination.
  1. The Determination to operate on and from 1 September 2016.[10]
  1. On 9 December 2016, the Industrial Relations Act 2016 (Qld) (the Act) gained assent.
  1. The Full Bench made the following orders on 28 February 2017:
  1. That the Queensland Local Government Industry Award - State 2017 (The 2017 Award) be made pursuant to s 140CE(1)(a) of the Industrial Relations Act 1999 and operate on and from 28 February 2017, subject to the provisions of s 824 of the 1999 Act.
  2. That the Queensland Local Government Industry Award - State 2014 be repealed on and from 28 February 2017, subject to the provisions of s 824 of the 1999 Act (as it had been varied by the Determination to operate on and from 1 September 2016).[11]

 *my commentary has been inserted in bold text.

  1. Section 995 of the Act commenced on 1 March 2017 and relevantly provides:

995  Requirement to partition modern Award for local government

  1. (1)
     This section applies in relation to whichever of the following modern Awards (the relevant Award) was in effect under the repealed Act immediately before the commencement—
  1. (a)
     the Queensland Local Government Industry Award— State 2014;
  1. (b)
     a modern Award that replaced the Award mentioned in paragraph (a);
  1. (c)
     a modern Award that replaced the modern Award mentioned in paragraph (b).
  1. (2)
     As soon as practicable after the commencement, the registrar must partition the relevant Award by—
  1. (a)
     terminating the relevant Award; and
  1. (b)
     making 3 replacement modern Awards (the replacement Awards).
  1. (3)
     The replacement Awards must each cover a group of employees described in the ministerial request as Stream A, Stream B or Stream C in relation to the Queensland Local Government Industry Award—State 2014.
  1. (4)
     In partitioning the relevant Award, the registrar may make any necessary provision to ensure wages and employment conditions for employees are not affected by the partitioning.
  1. (5)
      A party to the relevant Award is not entitled to be heard in relation to the partitioning of the Award.
  1. (6)
     When the registrar partitions the relevant Award—
  1. (a)
     the relevant Award is taken to be revoked by the commission under chapter 3; and
  1. (b)
     the replacement Awards are taken to be modern Awards made under chapter 3.
  1. (7)
     As soon as practicable after partitioning the relevant Award, the registrar must—
  1. (a)
     give the parties to whom each replacement Award applies notice of the making of the Award; and
  1. (b)
     publish the replacement Awards on the QIRC website.
  1. (8)
     Despite subsection (6)—
  1. (a)
     section 150 does not apply to the revocation of the relevant Award; and
  1. (b)
     chapter 3, parts 1 and 2 and chapter 5, part 2, division 1 do not apply to the making of the replacement Awards.
  1. (9)
     If the relevant Award is the Queensland Local Government Industry Award—State 2014, despite subsection (2) the registrar must not partition the relevant Award until the review and variation of the Award under old chapter 20, division 2 has been completed.
  1. (10)
     In this section—

ministerial request means the variation notice given by the Minister to the commission under old section 140CA(1) on 6 June 2016.

replaced includes superseded.

  1. On 30 June 2017, by way of Notice, the Industrial Registrar revoked the Queensland Local Government Industry Award - State 2017 (the 2017 Award) and made the following replacement Modern Awards to take effect on 1 July 2017:
  • Queensland Local Government Industry (Stream A) Award – State 2017;
  • Queensland Local Government Industry (Stream B) Award – State 2017;
  • Queensland Local Government Industry (Stream C) Award – State 2017.[12]

Footnotes

[1] Note: Annexure A sets out a detailed summary of the history of the Queensland Local Government Award for the period 2014 until mid-2017.

[2] Queensland Local Government Award 2014 cl 15.4(b) (Administrative, technical, community service, supervisory and managerial (other than Indigenous Councils) group of the General stream).

[3] By virtue of cl 15.1(b) of the Interim Award and cl 15.1(c) of the 2017 Award.

[4] Queensland Local Government Officers’ Award 1998.

[5] Queensland Local Government Officers' Award 1998 clause 15.4.

[6] Industrial Relations Act 1999 s 140G(2)(a).

[7] The submission centred upon s 841(3)(b) of the Industrial Relations Act 1999.

[8] Re: Variation and renaming of a modern Award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186; Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009.

[9] Grace Grace, Minister for Employment and Industrial Relations, Request under section 140C(1) – Award Modernisation, Consolidated request arising from variation notice, 6 June 2016.

[10] Determination of Deputy President Bloomfield, 31 August 2016, Queensland Local Government Industry Award – State 2014 (MA/2016/19).

[11] Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009, 61.

[12] Industrial Registrar J Steel, Notice, Industrial Relations Act 2016 – s.995 – Requirement to partition modern Award for local government, 30 June 2017 (MA/2017/64).

Close

Editorial Notes

  • Published Case Name:

    Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council

  • Shortened Case Name:

    Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council

  • MNC:

    [2020] QIRC 38

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    06 Mar 2020

Appeal Status

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