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Queensland Services, Industrial Union of Employees v Mareeba Shire Council & Ors[2022] QIRC 389

Queensland Services, Industrial Union of Employees v Mareeba Shire Council & Ors[2022] QIRC 389

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Services, Industrial Union of Employees v Mareeba Shire Council & Ors [2022] QIRC 389

PARTIES:

Queensland Services, Industrial Union of Employees

(Applicant)

v

Mareeba Shire Council

(First Respondent)

AND

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

(Second Respondent)

AND

Plumbers & Gasfitters Employees' Union Queensland, Union of Employees

(Third Respondent)

AND

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

(Fourth Respondent)

AND

The Australian Workers' Union of Employees, Queensland

(Fifth Respondent)

CASE NO:

CB/2019/99

PROCEEDING:

Arbitration – Request for Help

DELIVERED ON:

11 October 2022

HEARING DATES:

11 August 2020

20 November 2020

Final submissions received 9 February 2021

MEMBERS:

Knight IC, Hartigan IC and Power IC

HEARD AT:

Brisbane

ORDER:

The parties are directed to jointly file in the Industrial Registry, a draft agreed determination that reflects the full and complete terms of the clauses of each matter agreed between the parties and the determination of the matters in dispute as contained in these reasons by 4.00 pm on 25 October 2022.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – request for help to make a certified agreement under s 175(1)(b) of the Industrial Relations Act 2016 (Qld) – matters at issue – employee accrual of personal leave in second and subsequent years of employment – access to paid maternity leave – where claim for personal leave in second and subsequent years – where inclusion of paid maternity leave accepted

LEGISLATION AND

INSTRUMENTS:

Industrial Relations Act 1996 (NSW) s 23

Industrial Relations Act 1999 (Qld) s 140CA

Industrial Relations Act 2016 (Qld) ss 4, 40, 42, 165, 173, 180, 181, 182, 183, 198, 199, 201, 210

Local Government Act 2009 (Qld)

Mareeba Shire Council Certified Agreement 2014 – 2017

Paid Parental Leave Act 2010 (Cth) 

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

Queensland Local Government Industry Award – State 2014

Tablelands Regional Council 2011 – 2014 Certified Agreement

CASES:

Maternity Leave Test Case (1979) 218 CAR 120

New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (2003) 131 IR 203

Parental Leave Test Case (1989-1991) 36 IR 1

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v New South Wales Lotteries Corporation (Industrial Relations Commission of New South Wales, McKenna C, 7 June 2002)

Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2022] ICQ 23

Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council (No 2) [2022] ICQ 026

Re Australian Federal Police [2018] FWCA 2776

Re The University of Melbourne [2014] FWCA 1133

Re: In the matter of the making of Modern Awards – Queensland Local Government Industry Award – State 2017 [2017] QIRC 009

APPEARANCES:

N. Henderson and M. Robertson of the Queensland Services, Industrial Union of Employees for the Applicant

A. Bradford, T. Wild and N. Holden of the Local Government Association of Queensland for the First Respondent

J. Stein of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland for the Second Respondent

J. Harding of The Australian Workers' Union of Employees, Queensland for the Fifth Respondent

The Third and Fourth Respondents did not appear

Reasons for Decision

Introduction

  1. [1]
    Two outstanding issues between the parties to the Mareeba Shire Council Certified Agreement 2018 – 2021 ('the proposed Agreement') fall to be arbitrated in these proceedings. The first concerns the quantum of personal leave which employees are to accrue; the second, access to paid maternity leave. The parties to the proposed Agreement are the Mareeba Shire Council ('the Council'), and the following Unions:
  1. (a)
    Queensland Services, Industrial Union of Employees ('the QSU');
  1. (b)
    Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland ('the AMWU');
  1. (c)
    Plumbers & Gasfitters Employees' Union Queensland, Union of Employees ('the PGEU');
  1. (d)
    Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland ('the CFMEU'); and
  1. (e)
    The Australian Workers' Union of Employees, Queensland ('the AWU'),

('the Union parties').

  1. [2]
    The proposed Agreement will apply to the entirety of the Council's workforce, save for senior officers exempted under div 2 s 1 cl 4.2 of the Queensland Local Government Industry (Stream A) Award – State 2017 ('Stream A Award').
  1. [3]
    The nature of the work undertaken by the Council's employees who will be covered by the proposed Agreement is diverse, ranging from administrative and technical positions, through to operational, trade-based and engineering roles.
  1. [4]
    In addition to the agreed matters to be arbitrated, the parties, during the course of the hearing, separately raised the following two matters for consideration:
  1. (a)
    the wording of the proposed consultative clause in the proposed Agreement; and
  2. (b)
    the relevance, if any, of the issues raised by the Council in relation to good faith bargaining with respect to the alleged conduct of the QSU.
  1. [5]
    The matter was heard by a Full Bench of the Queensland Industrial Relations Commission ('the Commission') on 11 August 2020 and 20 November 2020. The parties were afforded further time to file written closing submissions in 2021.

Relevant Historical Facts

  1. [6]
    In preparation for the arbitration, the parties filed a Statement of Agreed Facts[1] that relevantly set out the agreed facts as follows:
  1. The Current Agreement nominally expired on 30 June 2017.
  1. Council by an email to the Union parties and the then "Employee Negotiating Team" (ENT), on 28 February 2017, that:

a.the requirement to serve a notice of intention to bargain was taken to have been satisfied as at that day; and

b.the parties were taken to have begun negotiations/bargaining on that day.

  1. The first meeting with the Union parties (with the exception of the CFMEU who were not then involved in the bargaining and the QSU who were an apology) and the ENT was held on 6 June 2017.
  1. A second meeting involving all Union parties except the CFMEU and the ENT was held on 13 June 2017.
  1. On 11 July 2017 and 25 July 2017 Commissioner Roney of the Queensland Industrial Relations Commission (Commission) provided preliminary views that:

a.Council was required to negotiate a Certified Agreement with relevant employee organisations (unions) only;

b.the ENT and its members were not permitted to participate in any bargaining meetings in the capacity of bargaining (employee) representative; and

c.Employee representatives (howsoever appointed or described) were not permitted to participate in any bargaining meetings in the capacity of bargaining (employee) representative unless they were appointed to participate by an employee representative (union).

  1. A series of further meetings occurred including all Union parties, but excluding the ENT, in accordance with the preliminary views of the Commission.
  1. On 4 October 2017, Council circulated its final offer as presented to the Union parties at a meeting on 26 September 2017, to all staff with the intention of holding a ballot to determine whether or not staff were supportive of the final offer as set out in a proposed draft agreement (but not a vote).
  1. On 25 October 2017, upon application by the PGEU, Commissioner Roney issued an order restraining Council from undertaking a ballot.
  1. PGEU, AMWU and CFMEU members took protected industrial action in the form of strike on 22 February 2018 and 28 March 2018.
  1. No meeting has been held since 6 July 2018. At the meeting on 6 July 2018:

a.'in principle agreement' was reached between the CFMEU, PGEU, AWU, and Council that the draft agreement as presented by Council on 26 September 2017 and amended by agreement in the meetings in June 2018 and July 2018 could be presented to staff for a vote; and

b.the QSU member present at the meeting advised that:

i.approval of the State Secretary was required before its consent or approval could be given to allow the draft agreement to be presented to staff for a vote; and

ii.in its capacity as bargaining representative, it was not happy with 3 points or areas in the proposed draft agreement.

  1. On 17 August 2018, the QSU provided an email with 25 dot pointed statements outlining approximately 30 issues the QSU, in its capacity as bargaining (employee) representative, had with the draft agreement.
  1. On 22 August 2018, in response to an email from Council, the TSU advised there were 4 points or areas that the QSU wished to revisit.
  1. In or around August and September 2018, the CFMEU, PGEU, AWU and AMWU advised it was their view that agreement had been reached with Council and they were not prepared to negotiate further.
  1. With the assistance of the Commission, on 26 March 2020 the Council and all Union parties were able to reach agreement on 2 out of the 4 issues raised by the QSU on 22 August 2018. All parties were unable to reach agreement on the outstanding 2 issues (which are the subject of this arbitration).[2]
  1. [7]
    The remaining two issues are the subject of this arbitration determination.

Issues to be Determined

Personal Leave

  1. [8]
    Under the Mareeba Shire Council Certified Agreement 2014 – 2017 ('the current agreement'), all employees accrue 10 days of personal leave each year.
  1. [9]
    Employees covered by the Stream A Award are entitled to 12 days of personal leave in the first year of employment and 15 days of personal leave per year each year after that.[3] Employees covered by the Queensland Local Government Industry (Stream B) Award –  State 2017 ('Stream B Award') and Queensland Local Government Industry (Stream C) Award – State 2017 ('Stream C Award') are entitled to 10 days of personal leave per year.
  1. [10]
    The parties filed a Further Statement of Agreed Facts,[4] wherein they outlined their respective positions with regard to personal leave as follows:
  1. The Queensland Services, Industrial Union of Employees (QSU) proposes that employees with a role covered by Division 2 – Section 1 of the Queensland Local Government Industry (Stream A) Award – State 2017 (Stream A Award) should receive an entitlement of fifteen (15) days' personal leave in the New Certified Agreement to be decided by arbitration by the Commission.
  1. Council proposes that all employees of Council (covered by the New Certified Agreement), receive the same entitlement to personal leave in the amount of twelve (12) days' [sic].
  1. The parties have agreed to most of the wording of the personal leave clause and it is only the quantum of the entitlement that is in dispute.[5]

Maternity Leave

  1. [11]
    Similarly, the parties outlined their respective positions regarding the entitlement to maternity leave in the Further Statement of Agreed Facts as follows:
  1. The QSU propose that the paid maternity leave provision from the undertaking on page 2 of the Mareeba Shire Council Certified Agreement 2014 – 2017 (Current Agreement) be included at a new clause 12.5A in the New Certified Agreement.
  1. Council proposes that no paid maternity leave be included in the New Certified Agreement.
  1. The parties have agreement on the wording for the paid maternity leave provision, if the QSU's position is accepted. That wording is as per Current Agreement. For the convenience of the Commission, the parties have set out their respective positions on the wording of the clause, in the table below.[6]
  1. [12]
    Within their material, the parties jointly provided a comparative table which sets out a side-by-side comparison of the respective positions of the Council and the QSU.[7] That table is reproduced in Schedule 1 of these reasons.

Legislative Framework and Applicable Industrial Instruments

  1. [13]
    In determining this matter, the Full Bench is required to consider s 180 of the Industrial Relations Act 2016 (Qld) ('the Act') which provides a mechanism for the Commission to arbitrate disputed matters as follows:

180 Full bench to arbitrate disputed matters

  1. (1)
    The full bench must determine the matters in dispute by arbitration.
  1. (2)
    To determine the matters in dispute, the full bench—
  1. (a)
    may give directions or make orders of an interlocutory nature; and
  1. (b)
    without limiting paragraph (a), before making an arbitration determination may order an increase in wages payable to employees; and
  1. (c)
    may make any other order, or exercise another power, the full bench considers appropriate to determine the disputed matters.

Note—

A negotiating party may not be represented by a lawyer in the proceeding before the full bench—see section 530(2).

  1. (3)
    The full bench must ensure an arbitration determination—
  1. (a)
    includes the provisions and other matters it would be required to include if the determination were a proposed bargaining instrument the subject of a part 5 application; and
  1. (b)
    includes any increase in wages ordered by the full bench under subsection (2)(b) or agreed by the parties during the arbitration.
  1. (4)
    In determining the matters in dispute, the full bench must consider at least the following—
  1. (a)
    the merits of the case;
  1. (b)
    the likely effect of the proposed arbitration determination, and any matters agreed between the negotiating parties before or during the arbitration, on employees and employers to whom the proposed arbitration determination will apply.
  1. [14]
    Section 181 of the Act permits the inclusion of agreed matters in an arbitration determination as follows:

181 Arbitration determination may include agreed matters

  1. (1)
     An arbitration determination by the full bench may include provision for a matter agreed between the negotiating parties before or during the arbitration.
  1. (2)
     The full bench may not exercise any powers under this division in relation to a matter mentioned in subsection (1).
  1. [15]
    Section 182 of the Act provides that the Full Bench must publish its reasons when determining the disputed matters.
  1. [16]
    Section 183 of the Act provides for the operation of arbitration determinations and is in the following terms:

183 Operation of arbitration determinations

  1. (1)
     An arbitration determination must state, as its nominal expiry date, a date that is—
  1. (a)
     agreed by the negotiating parties or, if the parties can not agree, ordered by the full bench; but
  1. (b)
     no later than 4 years after the date on which the determination is made.
  1. (2)
     The arbitration determination has effect subject to any conditions stated in the determination.
  1. (3)
     The arbitration determination operates until it is terminated under part 7, division 3.
  1. (4)
     While the arbitration determination operates, the determination—
  1. (a)
     prevails, to the extent of any inconsistency, over an award or an order made under section 136; and
  1. (b)
      can not be amended.
  1. [17]
    The parties agree[8] that the relevant industrial instruments are the:
  1. (a)
    current agreement;
  1. (b)
    Stream A Award;
  1. (c)
    Stream B Award; and
  1. (d)
    Stream C Award.

Merits of the Case and the Likely Effect of the Proposed Arbitration

  1. [18]
    Both the QSU and the Council sought to file submissions and lead evidence highlighting the merits of their respective cases and the potential impact of the claims on both the Council and its employees.
  1. [19]
    The issues raised throughout the arbitration fell broadly into four categories, namely:
  1. (a)
    the evolution and history of the proposed entitlements;
  1. (b)
    cost considerations (affordability), and the financial position of the Council;
  1. (c)
    issues of equal remuneration, equality and fairness; and
  1. (d)
    the effect or impact of the claims on employees, service standards and the broader community.
  1. [20]
    The QSU's claim for personal leave, relevant submissions and evidence are set out below, followed by consideration and a determination of that issue. Thereafter, the claim for the inclusion of a maternity leave entitlement is considered and determined.

Personal Leave – Evolution and Current Entitlement

  1. [21]
    Under the current agreement, Council employees are entitled to accrue 10 days of personal leave per annum.
  1. [22]
    The entitlement to personal leave for employees ordinarily falling within the coverage of the various iterations of the Local Government Award has been the subject of ongoing discussion and negotiation for more than half a decade following the commencement of an Award modernisation process in 2013.
  1. [23]
    Relevantly, the personal leave entitlement for employees who fall within the coverage of the Stream B Award and the Stream C Award is derived from the Queensland Employment Standards ('the QES').[9]
  1. [24]
    Presently, the QES provides an entitlement for full-time and part-time employees to receive 10 days paid personal leave per annum.[10]
  1. [25]
    Clause 20(a) of the Stream A Award provides that personal leave is provided for in div 6 of the QES and covers sick leave, carer's leave, bereavement leave and cultural leave.
  1. [26]
    Clause 20(d) of the Stream A Award provides that the amount of sick leave a full-time employee is entitled to is as follows:
  1. (d)
    The amount of sick leave to which a full-time employee is entitled depends on how long they have worked for the employer and accrues from year to year as follows:
  1. (i)
    at the rate of one day's leave for each month of employment in the first year, to a total of 12 days; and
  2. (ii)
    15 days credited at the start of the second and each subsequent year of service.
  1. [27]
    The QSU's claim incorporates the personal leave entitlements currently in the Stream A Award, within the proposed Agreement.

The Council's Position

  1. [28]
    The Council maintains for reasons associated with affordability, fairness and harmonisation, that the better course for all employees covered by the proposed Agreement, irrespective of where they work within the Council, is to receive the same personal leave entitlements, that is, 12 days per annum.[11]
  1. [29]
    Although it concedes the personal leave provisions within the Stream A Award are an inevitable consideration in negotiations about entitlements contained in the proposed Agreement, it argues employees presently undertaking a role covered by the Stream A Award, on balance, will not be disadvantaged by the Council's proposal, nor will their entitlements fall below the minimum prescribed in the QES.[12]

Affordability

  1. [30]
    The Council maintains the issue of affordability is particularly acute in so far as it relates to the QSU's personal leave claim, arguing it cannot afford to pay more in circumstances where it is already offering wages significantly higher than any relevant Award rates.[13]
  1. [31]
    It argues that acceding to the QSU's claim, may place the Council in a position where it is in breach of its obligations under the Local Government Act 2009 (Qld) ('the LG Act'), which requires the Council to ensure it is 'accountable, effective, efficient and sustainable'.[14] Moreover, it submits that agreeing to the QSU's position would result in redundancies.[15]
  1. [32]
    To better understand the Council's position in relation to affordability, the Full Bench sought further information during the proceedings, including:
  • the Council's approved budget for 2020/2021;
  • relevant annual reports;
  • a breakdown of employee numbers by stream, classification and gender;
  • an explanation of the methodology underpinning the modelling of costs to the Council in respect of the claims, including personal leave; and
  • COVID-19 rebate information in so far as it was relevant to the collection of rates under the Council's budget.
  1. [33]
    Evidence in respect of the Council's financial position was given by Mr Peter Franks, the Chief Executive Officer ('CEO') of the Council and Ms Jennifer McCarthy, Director of Corporate and Community Services for the Council.
  1. [34]
    In his first affidavit, Mr Franks explained he had assumed the role of Mareeba Council CEO in the wake of the Council's de-amalgamation from the Tablelands Regional Council ('the TRC').[16]
  1. [35]
    Mr Franks noted that in the lead-up to de-amalgamation in 2014, Queensland Treasury Corporation ('QTC') conducted an analysis 'on the financial split of Council from the TRC', whereupon the Council was given a financial sustainability rating by QTC of 'Very Weak with a Negative outlook' and was likely to be 'broke' within a period of five years.[17] According to Mr Franks, QTC concluded 'de-amalgamation should not occur'.[18]
  1. [36]
    Relying on a de-amalgamation analysis undertaken by QTC prior to the 2014 de‑amalgamation, Ms McCarthy's evidence was that QTC had determined the Council was unsustainable beyond the first year of amalgamation, with the report highlighting 'significant liquidity concerns from FY2014 and little to no capacity to service new borrowings …'.[19]
  1. [37]
    Mr Franks explained that notwithstanding QTC's analysis and conclusions, the Mareeba community voted for de-amalgamation, which took effect on 1 January 2014.[20]
  1. [38]
    After formally assuming the role of CEO, Mr Franks' evidence was that he conducted his own analysis of the Council's financial position, whereupon he reached similar conclusions to QTC.[21]
  1. [39]
    To avoid pushing the Council into further debt or administration, Mr Franks explained that over time it has been necessary for the Council to cut positions from the organisational structure, implement several redundancies and reduce the overall workforce from 250 to 210 full-time employees.[22]
  1. [40]
    Ms McCarthy's evidence was that several other cost-cutting measures, including self‑insurance of assets, telephone services and solar energy installation were also implemented by the Council to ensure its survival in the wake of QTC's analysis and de‑amalgamation.[23]
  1. [41]
    During cross-examination, Ms McCarthy confirmed the current QTC rating in respect of the Council's financial position had recently improved to 'sound, with a neutral outlook', following the implementation of several cost-cutting initiatives.[24]
  1. [42]
    Mr Franks' evidence was that the Council's financial position had been fragile since 2014. He observed it was against this backdrop and its focus on reducing costs wherever possible, that the Council had approached the negotiations for the proposed Agreement.[25]
  1. [43]
    Mr Franks concluded that, in the event the Council was required to pay all employees 15 days personal leave, it would likely have to make several positions redundant to avoid further budget deficits, cashflow challenges and potential breaches of the LG Act.[26]
  1. [44]
    In support of the Council's concerns around affordability, Mr Franks' evidence was that the budget for the 2020/2021 financial year reflected an operating revenue of $29,058,308 compared to a budgeted operating expense of $29,001,779.[27] After adjusting the budget for depreciation on externally funded projects and transfers to and from reserves for future funding purposes, Mr Franks explained the Council was left with a small, retained surplus of $10,100.[28]
  1. [45]
    Ms McCarthy clarified the difference between a retained surplus and an operational surplus, highlighting the $10,100 relied on by Mr Franks is the final figure after capital income and appropriations to reserves are added or subtracted from the operational surplus in the general fund, which amounted to $56,529.[29]
  1. [46]
    She explained that operational budgets were not fixed and that if rates were not paid, the true cashflow impact would be unfavourable for the Council.[30] Moreover, that there was no guarantee the services offered by the Council would be utilised at the same levels in subsequent years and that in circumstances where the Council had no control over the Federal Government's decisions to allocate operational grants, a reduction in amounts provided in previous years would have a direct impact on the operating surplus.[31]
  1. [47]
    Ms McCarthy concluded that:
  • any of the factors referred to in [46] could, alone or together, result in a reduction in income of more than $56,529;[32] and
  • an increase in expenditure of anything more than $56,529 would immediately place the Council's operating position into a deficit.[33]
  1. [48]
    Mr Franks told the Commission that during the negotiations for the proposed Agreement, the Council agreed to increase personal leave to 12 days for all employees, irrespective of which Award stream they fell within, with the additional cost for the Council sitting at $114,514 at 100% utilisation, or $104,185 at 91% utilisation. He estimated this equated to an increase of 20% in personal leave costs and a 0.7% increase in the Council's overall employee costs, resulting in an increase of almost 3%.[34]
  1. [49]
    In the event Stream A employees were granted 15 days personal leave and Streams B and C retained the 12 days already reflected in the proposed Agreement, Mr Franks' evidence was that this would equate to a further cost of $186,693 for the Council, even in circumstances where the cost was calculated having regard to the lower personal leave utilisation rate of 91%.[35] He explained it would be necessary to increase rates by a further 1% to fund the additional cost.
  1. [50]
    During cross-examination, and in response to a query as to whether the Council had costed the difference between the QSU's proposal of 15 days personal leave and the Council's proposal for 12 days, Mr Franks estimated the difference to be in the vicinity of $82,000.[36]
  1. [51]
    Mr Franks was of the view that the financial impact of the QSU's personal leave claim on the Council would be untenable in circumstances where:
  • it had already offered a 2.25% per annum wage increase within the proposed Agreement, along with an increase in personal leave which equated to a further 0.7% increase in employee costs;
  • the Mareeba Shire already faced the challenge of having to fund critical infrastructure upgrades in the absence of an adequate base, due to the capacity of its rate payers;[37]
  • the existing limitations on the Council increasing its revenue has been further exacerbated by drought and the COVID-19 pandemic;[38] and
  • the high level of socio-economic disadvantage present in the Mareeba Shire, particularly in the wake of the COVID-19 pandemic, restricted the Council's ability to increase revenue through a further rate increase.
  1. [52]
    Having regard to employment and unemployment trends within the Mareeba Shire, Mr Franks observed that prior to COVID-19, the Shire's unemployment rate was in the order of 8% but had now reached 24.3%, which seriously impacts the ability of its residents to pay rent and/or rates.[39]
  1. [53]
    He considered the closure and subsequent limited opening of restaurants, bars and other businesses during the COVID-19 period had impacted local producers and was of the opinion the impact would be felt for several years to come, affecting the capacity of property owners to pay rates and, in turn, the Council's ability to deliver services.[40]
  1. [54]
    Ms McCarthy's evidence was that in the event the QSU's personal leave proposal was implemented, in the absence of a further increase to rates and utilities charges, it would be necessary for the Council to consider other options, including:
  • retaining a budget deficit, which she maintained was contrary to the principles of the LG Act and the State Government's position that Councils should not continually operate in deficit;
  • reducing operating expenses, which may not be possible given an already existing lean budget; and
  • a reduction in employee expenses, resulting in potential redundancies.[41]
  1. [55]
    Although there was no evidence from the QSU, in the form of financial reports, budgets or similar documents in respect of the Council's financial position, it argued the evidence relied on by the Council 'was aimed at putting the worst blush on the respondent's financial position', submitting the Council was in a better financial position than that advanced in its evidence-in-chief.[42]
  1. [56]
    The QSU contends that s 180 of the Act requires the Commission to consider the likely effect of the determination on employers and employees. The QSU contends that the inconsistency in the evidence relied on by the Council illustrates that the Council is in a better financial position than the position which it put to the Commission in its evidence‑in-chief.[43] The QSU estimated that on the Council's own material, the personal leave claim would, at worst, result in an additional cost of $102,000 for the Council.[44] Under cross-examination, Mr Franks estimated the cost difference between each of the parties' respective positions to be $82,000.[45] Moreover, the QSU contends that several variables, including a requirement on the part of an employee to provide a medical certificate for absences of greater than two days sick leave, could result in the projected cost being lower.[46]
  1. [57]
    In this regard, the QSU submitted there was no empirical data relied on to support the proposition put by the Council that employees would take additional days at the same rate that they presently accessed their leave entitlements. It further noted the Council has not factored in the potential impact of the proposed cl 12.3.1 and the actual dollar cost to the Council will depend upon the extent to which the Council incurs an additional cost in replacing the employee who is accessing the leave. The QSU submitted the likely cost of the personal leave claim is minimal and more than offset by the merit of the QSU's claim to ensure that employees receive no less than their Award entitlement.

Fairness and Harmonisation

  1. [58]
    In his evidence, Mr Franks noted he had become aware, in or around 2017, that the terms of the Local Government Award had been altered, to the extent that employees falling within the coverage of s 1 of the Stream A Award would receive 12 days personal leave in their first year of service and 15 days paid personal leave for each subsequent year of service. He observed that all remaining employees falling within the coverage of the Stream A Award, along with employees in Streams B and C would receive 10 days paid personal leave.[47]
  1. [59]
    During the negotiations, the Council and other union parties (except for the QSU) agreed that paid personal leave of all employees be harmonised to 12 days. This would have the effect of reducing, by three days after the first year of employment, paid personal leave entitlements for those employees covered by the Stream A Award, and increasing, by two days, the entitlement for those employees covered by the Stream B and Stream C Awards.
  1. [60]
    Mr Franks told the Commission that the Council was of the view paid personal leave should be harmonised across the organisation for the following reasons:
  • it is unfair and inequitable for one group of employees under the Award (Stream B and Stream C employees) who predominantly work outdoors, to receive 10 days paid personal leave, while Stream A employees, who are predominantly indoor workers, receive 15 days paid personal leave;
  • many of the Council's outdoor workers are older workers who are generally more susceptible to illness and injury than indoor workers, yet they receive less personal leave when compared to indoor workers;
  • the Council wants to create a more equitable environment where employees receive equal benefits, as far as reasonably practical;
  • the differences in the personal leave entitlements creates challenges for foremen and supervisors who fall within the coverage of Stream A, but work directly within the field and supervise employees in Streams B or C who accrue different entitlements; and
  • a harmonised personal leave entitlement is easier to administer from a human resources and payroll perspective, particularly in circumstances where employees move between the different Award Streams.[48]
  1. [61]
    Mr Franks stated that if the Council were required to pay 15 days paid personal leave for Stream A employees, the Council may be forced to reduce paid personal leave for Streams B and C employees back down to 10 days to offset some of the costs.[49]
  1. [62]
    The QSU maintains that none of the arguments advanced by the Council have any substance, noting the Local Government Awards contain many differences between the streams of employment but, in any event, it highlights the Awards were properly made and in accordance with the legislative requirement that the conditions were fair and relevant.[50]

Consideration – Personal Leave

  1. [63]
    In determining this matter, the Full Bench must consider, at least, the merits of the case and the likely effect of the proposed arbitration determination, and any matters agreed between the negotiating parties before or during the arbitration, on employees and employers to whom the proposed determination will apply.
  1. [64]
    The current agreement provides for 10 days personal leave per annum for all employees, irrespective of which Stream of the Award a Council employee would normally fall within.
  1. [65]
    The QSU's claim is, for employees who would ordinarily fall within the coverage of div 2 s 1 of the Stream A Award, to receive 12 days of personal leave in the first year of employment and 15 days per annum in the second and subsequent years.
  1. [66]
    In support of its claim, the QSU notes the higher personal leave accrual being sought has been a longstanding entitlement of employees ordinarily covered under s 1 of Stream A of the various iterations of the Local Government Awards over the years, notwithstanding a period where the entitlement was lost in the wake of Award modernisation. Relevantly, the QSU's claim reflects the terms of the current Stream A Award.
  1. [67]
    The fact that the QSU's claim reflects the terms of the Stream A Award is a matter the Commission places significant weight upon. However, that matter must not be considered in isolation, but in the context of the merits of the case and the likely effect of the proposed determination and the matters agreed between the parties before or during arbitration.
  1. [68]
    The Council opposes the claim, arguing it is unaffordable, inequitable and ignores the preferences of the majority of employees within the Council who will be covered by the proposed Agreement.
  1. [69]
    The Council further submits the granting of the claim for additional personal leave, beyond the wage increases and other conditions already being offered within the proposed Agreement, could result in redundancies and other challenges having regard to its current financial position.
  1. [70]
    Instead, the Council proposes that, in circumstances where employees ordinarily covered by Streams B and C of the Award would receive 10 days personal leave, the better and more equitable course is for all employees covered by the proposed Agreement to receive the same personal leave entitlements, that is, 12 days per annum, irrespective of where they work within the Council.[51]
  1. [71]
    Relevantly, the AMWU supports an in-principle agreement reached between it and other unions, other than the QSU, during the negotiations whereby Streams B and C employees will be entitled to accrue and access 12 days of personal leave per annum.
  1. [72]
    Highlighting the benefits that flow from a more streamlined payroll system, the Council also argues it is seeking to harmonise the personal leave entitlement across the Council in circumstances where it considers it is unfair for one group of employees to receive a greater amount of personal leave than another, particularly where the group receiving the lesser entitlement is generally older, works outside and is often more susceptible to illness and injury.[52]
  1. [73]
    In considering the merits of this application and the likely effect of the arbitration determination, there is an inevitable tension that arises between factors such as affordability and achieving fair standards in wages and conditions for employees.
  1. [74]
    During the proceedings, the Full Bench sought further information in relation to the question of affordability and the assumptions underpinning modelling the Council had undertaken in support of its position it was unable to afford the additional claims being sought by the QSU.[53]
  1. [75]
    Consequently, a further affidavit of Mr Franks was filed on 31 August 2020 that included further financial information.[54] The Council's potential financial position was further clarified under cross-examination of Mr Franks, during which he stated that the difference between the 12 days of personal leave put by the Council and the 15 days personal leave put by the QSU equated to a predicted additional $82,000 in costs to the Council.[55]
  1. [76]
    The QSU acknowledges the Council led a significant amount of evidence about its financial position but maintains that much of it was aimed at putting the worst possible blush on the Council's financial position.[56] The QSU further submits that there are a number of variables which the Council have not taken into account which could have the result of the actual cost being lower than predicted.[57]
  1. [77]
    In this regard, the QSU referred to the evidence of Mr Franks wherein he agreed that the estimated financial position of the Council in the budget had changed from $739,000 as the operating surplus in 2018, when the Agreement negotiations were underway to $56,000 during these proceedings. The QSU also refers to the evidence of Mr Franks wherein he agreed that QTC had improved the financial performance rating that it gave the Council during the same period.[58]
  1. [78]
    The QSU consequently submits the Commission can readily observe that the Council was 'hotly opposed' to the claims when the budget, in terms of its operational surplus in 2018, was a dozen times what the present budget indicates.
  1. [79]
    Whilst we accept that the Council did amend the quantum of the figures it relied on during the course of the hearing, including after the cross-examination of Mr Franks wherein he conceded some matters regarding the Council's financial position put to him by the QSU, we are ultimately satisfied, on the material before us, of the following financial information:
  1. (a)
    the budget for the 2020/2021 financial year revealed an operational surplus of $56,529,[59] before capital income and appropriations to reserves are added or subtracted from the operational surplus; and a retained surplus of $10,100 following an adjustment for depreciation on external funded projects and transfers to and from reserves for future funding;[60]
  1. (b)
    the budget forecast for personal leave entitlements under the current agreement, (that is, 10 days personal leave for all employees, irrespective of the Stream they would ordinarily fall within) is projected to be $566,903 at 100% utilisation of personal leave, and $528,662 at 91% utilisation;[61]
  1. (c)
    the utilisation rate of 91% has been determined having regard to the average personal leave usage of the Council's employees over the preceding five years, but does not account for increasing levels of personal leave being accessed during the COVID-19 period;[62]
  1. (d)
    the budget forecast for personal leave entitlements under the proposed Agreement, where the Council has offered 12 days personal leave for all employees, irrespective of which Stream they would ordinarily fall within, is forecast to be $695,590 at 100% utilisation of personal leave, or $632,848 at 91% utilisation, resulting in an additional cost to the Council of at least $104,185 over and above the amount the Council is currently paying for personal leave under the current agreement;[63]
  1. (e)
    the current forecast budget and retained surplus of $10,100 has been calculated based on the Council's proposed accrual of 12 days personal leave for each employee and the removal of paid maternity leave;[64]
  1. (f)
    the budget forecast for personal leave entitlements, in the event the QSU's claim is successful, is forecast to be $768,976 at 100% utilisation or $699,614 at 91% utilisation, resulting in an additional cost to the Council of $205,203 at 100% utilisation of personal leave or $186,693 at 91% utilisation when compared to the forecast cost of personal leave under the current agreement, where employees currently accrue 10 days of personal leave per annum;[65]
  1. (g)
    in circumstances where the budget forecast has been prepared in contemplation of all employees receiving 12 days of personal leave, the additional cost to the Council, assuming an across-the-board increase of 12 days of personal leave and all other sources of income and expenditure remaining the same, will fall within the range of $82,508 to $101,018, subject to personal leave utilisation;[66]
  1. (h)
    the projected revenue from rates assumes 100% of the Council's residents will pay their rates for the relevant period.[67] Likewise, the Council's fees and charges associated with works for third parties are not certain and therefore may not be realised;[68] and
  1. (i)
    in the event the Council is unable to secure sufficient capital grants in any year against which to allocate budgeted employee expenses, the additional costs will be borne by the operational budget, in turn negatively impacting the operating surplus of $56,529.[69]
  1. [80]
    Whilst the Commission accepts generally the proposition put by the QSU that there are several variables which could ultimately result in the actual cost of the personal leave entitlement, as proposed by the QSU, being lower than projected, the Commission also accepts that there is currently no empirical data in the circumstances of this matter to support that conclusion. The QSU relied on an example that there is currently no empirical data to support a conclusion that employees would access the additional days of leave at the same rate to which the leave is currently accessed. At this juncture, it is simply unknown how the personal leave entitlement will be utilised by employees in the future. Accordingly, the Commission considers it reasonable in the circumstances of this matter, and in the absence of contradictory evidence, to consider and rely on the Council's data regarding the utilisation of the current leave entitlements with respect to its considerations.
  1. [81]
    We find the Council's submissions in respect of the financial challenges it would face, and additional cost cutting measures that would likely be undertaken to fund the additional leave, to be, ultimately, persuasive and weigh in favour of the Council's proposal with respect to personal leave. With limited capacity to increase rates, even in the best-case scenario, the modelling indicates the Council would have to assume an operating deficit or implement further cost cutting measures to fund the additional personal leave entitlement.
  1. [82]
    Although it is not in dispute that through cost cutting measures, the Council has gradually improved its financial sustainability rating since de-amalgamation from 'very weak, with a negative outlook' to a more neutral position, the evidence in relation to its financial position supports a conclusion that it is presently precluded from funding both the QSU's claim for additional personal leave, in addition to the terms and conditions already agreed between the parties before the arbitration.
  1. [83]
    The Full Bench considers it would not be in the interests of either the Council or its employees to grant the claim having regard to its small operating surplus, and the ongoing financial uncertainty that has arisen in the COVID-19 environment.
  1. [84]
    Although not the primary reason for refusing the claim, the Full Bench also considers there is some merit in the Council's arguments in respect of harmonising the personal leave entitlements of all employees across the Council, with a view to achieving enhanced efficiencies from a human resources and payroll perspective, particularly where:
  1. (a)
    employees to be covered by the proposed Agreement will receive a level of remuneration that clearly exceeds existing Award rates; and
  1. (b)
    employees, including those who would otherwise fall within Streams B and C of the Award, will receive an additional two days of personal leave over and above the amount prescribed in the QES and the current agreement.
  1. [85]
    For the reasons set out above, we do not consider the merits of the matter weigh in favour of employees within div 2 s 1 of the Stream A Award receiving 12 days of personal leave in the first year of employment and 15 days per annum in the second and subsequent years of employment.
  1. [86]
    Instead, we consider the more meritorious approach in the current environment is to adopt that proposed by the Council and include the following words within the proposed Agreement, in so far as it concerns the quantum of personal leave available to the Council's employees:

All employees (except casuals) are entitled to accrue twelve [12] days paid personal leave per year of service (pro-rata for part-time employees) in accordance with the full provisions of the Award;

  1. [87]
    We consider that such an approach is reasonable and has regard to the likely effect of the proposed arbitration determination and the matters agreed between the parties.

Maternity Leave

  1. [88]
    The QSU's claim is to reinstate the provisions relating to paid maternity leave as they appeared in the Tablelands Regional Council 2011 – 2014 Certified Agreement as follows:

15.6.2Additional Maternity Leave

On application Council will pay ten (10) weeks Maternity Leave at full pay or twenty (20) weeks at half pay, in addition to the new Federal government paid parental leave scheme.

This can either be taken concurrently or following the taking of the new Federal government paid parental leave scheme.

Maternity Leave applies to eligible Council employees who are pregnant or have given birth to a child. To be eligible for this payment, employees must have completed two (2) years' service, Employees who have less than two (2) years but greater than one (1) year's service will be entitled to half this amount.

Pro rata payments will be made for part-time employees.

Paid maternity leave will apply to maternity leave taken after certification of this agreement.

  1. [89]
    The proposal would result in eligible employees, regardless of the Award Stream they would ordinarily fall within, being able to access 10 weeks of paid maternity leave.
  1. [90]
    The QSU advances its claim for the inclusion of a paid maternity leave clause within the proposed Agreement on several fronts:
  1. (a)
    firstly, if the provision continues to be an existing arrangement for a number of employees of the Council by virtue of the undertaking given to the Commission by the Council to secure the certification of the current agreement, the removal of the entitlement will impact negatively on those employees;[70]
  1. (b)
    secondly, the removal of the entitlement will impact negatively on the gender pay gap at the Council; and
  1. (c)
    thirdly, the restoration of the provision to all eligible employees will not negatively impact on the gender pay gap.[71]
  1. [91]
    The QSU submits the claim is intended to improve the amount of paid maternity leave for the Council's female employees, noting the Paid Parental Leave Act 2010 (Cth) specifically allows the scheme to operate alongside any paid entitlements that may be accessible under the relevant industrial instruments.[72]
  1. [92]
    In response, the Council submits that to allow only paid maternity leave, and not other types of paid parental leave, strikes at the very heart of the 'equal remuneration' provision in the Act, in circumstances where it argues the phrase contemplates all types of paid leave.[73]
  1. [93]
    Mr Franks' evidence to the Commission was that the Council wants paid maternity leave removed from the proposed Agreement in circumstances where:
  • the community does not gain any benefit from paid maternity leave;
  • the Council cannot afford paid maternity leave;
  • a limited number of employees have previously made use of paid maternity leave; and
  • employees would still be able to access paid maternity leave through the Federal Government's paid parental leave which provides for 18 weeks' pay at the minimum wage.[74]
  1. [94]
    The Council contends the provision only benefits female employees in circumstances where it is focussed on retaining and increasing employment benefits that would apply to all employees, with the objective of creating equality across the organisation.
  1. [95]
    In relation to its concerns around affordability, Ms McCarthy's evidence was that modelling based on the Council's current workforce demonstrates the number of employees currently entitled to maternity leave under the existing provision within the current agreement is relatively low,[75] but that in the event maternity leave was extended to all females at the Council irrespective of when they commenced, a total of 37 female employees could access maternity leave at a cost of $512,061.80.[76]
  1. [96]
    Having regard to the Council's financial situation and the modelling that has been undertaken, Ms McCarthy considers it would not be feasible for the Council to extend paid maternity leave to the wider workforce.[77]
  1. [97]
    During the proceedings, the Full Bench sought further information from the parties in respect of the methodology underpinning the modelling of the cost of the paid maternity leave provision.
  1. [98]
    The Council provided the Full Bench with a summary of female employees who had accessed maternity leave from January 2014 to September 2019.[78]
  1. [99]
    According to the summary, seven females between the ages of 24 and 32 accessed the paid maternity leave provision in this period, at a cost to the Council of approximately $42,339.25 over a period of five years, or an average of $6,476.80 per annum.[79]
  1. [100]
    Mr Franks told the Full Bench the Council also sought independent data to predict the utilisation of maternity leave. His evidence was that the only reliable data the Council had been able to source were Gender Indicators from the Australian Bureau of Statistics ('the ABS'). According to Mr Franks, the data, which related to non-public sector employees, indicated that in the previous three years, an average of 4.433 females in every 100 employees took maternity leave in any one year.[80]
  1. [101]
    The ABS data relied on by the Council was based on the proposition that the child‑bearing age for women ranges from 15 to 50 years of age.
  1. [102]
    Mr Franks' evidence was that when applying the data to the number of females employed by the Council – that is, 61.48 full-time equivalent ('FTE') employees – he estimated that approximately 2.73 females would take maternity leave in any one year.[81]
  1. [103]
    Having regard to the average annual cost to the Council for each female employee, Mr Franks was of the view the paid maternity leave provision, based on an average annual cost of a female worker of $99,275, would cost the Council approximately $52,033 per annum which was marginally below the Council's budgeted general fund operating surplus for the financial year.[82]
  1. [104]
    Although Mr Franks acknowledged the Council operated a multimillion-dollar budget, his position was it did so with minimal margins, where any single adverse event could result in it operating with a deficit.[83] Mr Franks' position was that the Council would need to increase rates by 0.35% to fund the cost of the paid maternity leave claim.
  1. [105]
    During cross-examination of Mr Franks, the QSU proposed a different approach to costing the maternity leave provision having regard to data extracted from Australia's Mothers and Babies guide prepared by the Australian Institute of Health and Welfare issued in 2017 ('the guide').[84] The guide, although not provided to the Commission in its entirety, proposed a reproductive age ranging from 15 years to 44 years, a somewhat narrower, but perhaps more realistic range, than that relied on by the Council.
  1. [106]
    The QSU's position was that when a more representative reproductive age range is applied to the list of current and potential female employees capable of accessing maternity leave, which was exhibited to Ms McCarthy's affidavit affirmed 2 July 2020, several issues emerge.[85]
  1. [107]
    Firstly, it submits that of the 37 employees listed within Exhibit JM2 of Ms McCarthy's affidavit,[86] 13 employees fall outside the age range proposed in the guide, with a further 12 part-time employees undertaking hours that equate to 8.168 FTE positions.
  1. [108]
    Secondly, the QSU maintains the Council's figures include four managers who fall outside the coverage of the proposed Agreement, and it takes issue with the Council's reliance on the average annual cost of $99,275 for a female employee, in circumstances where the average annual calculation includes costs of employees who would not ordinarily fall within the coverage of the proposed Agreement.
  1. [109]
    Thirdly, after the employee list exhibited to Ms McCarthy's affidavit is adjusted for agreement coverage and age, the QSU submits the parties are left with a total of 16.168 FTE female employees, which at the 6% rate referenced in the guide, leads to an outcome of 0.97 employees being statistically likely to take up the maternity entitlement each year.[87]
  1. [110]
    Basing the calculations on an average annual cost of female employment of $88,258, the QSU submits the average cost for 10 weeks maternity leave would be $16,972 and an annual cost of $16,493 having regard to 0.97 employees likely to access the entitlement, which in turn equates to 0.1% of the Council's overall budget.[88]
  1. [111]
    The QSU maintains this outcome correlates with the prior experience of the Council in respect of the take-up of the existing maternity leave provision contained within the current agreement. It contends this approach is a more realistic measure of the likely cost than that put forward by the Council, which the QSU characterises as fanciful and based on flawed reasoning.[89]
  1. [112]
    The QSU also rejects Mr Franks' statements that removing paid maternity leave will aid in the creation of equality across the Council, arguing the approach is inconsistent with the well-established view that the provision of maternity leave is to acknowledge that women have special industrial interests.[90]

Consideration – Maternity Leave

  1. [113]
    The history of access to maternity leave, initially unpaid, dates back to the 1970s when a Full Bench of the former Australian Conciliation and Arbitration Commission ('ACAC') handed down its decision in the Maternity Leave Test Case.[91] The concept of maternity leave was supported by the Full Bench having regard to the changing social and economic role of women in Australia.[92]
  1. [114]
    The maternity leave clause adopted by the Full Bench, albeit in different forms, has become a standard feature in many agreements and Awards throughout the Australian public and private sector. Relevantly, women's labour force participation has risen exponentially since the late 1970s,[93] and in the wake of ACAC's recognition of the importance of preserving jobs during absences from work for maternity reasons.[94]

No Benefit to the Community

  1. [115]
    We reject Mr Franks' evidence that the inclusion of a paid maternity leave clause within the proposed Agreement would result in no benefit to the community.
  1. [116]
    In the Maternity Leave Test Case, ACAC observed:

The claim, if granted, would recognise the special industrial interests of those female employees who elect to combine motherhood with continued participation in the workforce. The preservation of job security in the event of maternity might well facilitate career opportunities and encourage career aspirations amongst women who have hitherto regarded termination of employment as an inevitable consequence of motherhood. The material tendered with respect to employment in the public services of the Commonwealth and of New South Wales suggests that a significant number of women who avail themselves of maternity leave entitlements terminate their employment shortly after returning to work. However, we consider that in the long term, maternity leave if granted, could enhance the employment prospects of woman and at the same time secure the retention of skills and abilities which might otherwise be lost to industry.[95]

  1. [117]
    As one of the larger employers within the Mareeba Shire, the obvious benefit to the community in retaining the existing paid maternity leave provision is the ongoing inclusion and participation of women within the Council workforce through the access of such a provision, and the consequent economic and social benefits that inevitably flow from the retention of such employees.

Inconsistent with s 201 of the Act – Equal Remuneration

  1. [118]
    Section 201 of the Act provides for equal remuneration:

201Equal remuneration

The commission must satisfied—

  1. (a)
     for a multi-employer agreement or project agreement—the agreement provides for equal remuneration for work of equal or comparable value in relation to the employees to be covered by the agreement; or
  1. (b)
     for any other proposed bargaining instrument—the employer—
  1. (i)
     has implemented equal remuneration for work of equal or comparable value in relation to all employees of the employer; or
  1. (ii)
     will, if the instrument is certified or made, implement equal remuneration for work of equal or comparable value in relation to all employees of the employer; or
  1. (iii)
     is implementing equal remuneration for work of equal or comparable value in relation to all employees of the employer.
  1. [119]
    The Council argues, on a fair reading of the Act, the requirement to ensure 'equal remuneration' applies to all types of paid leave, including paid maternity leave.[96] The Council contends that allowing paid maternity leave, and not other types of paid parental leave, 'strikes at the very heart' of the equal remuneration principle.[97] Consequently, in circumstances where it is accepted other forms of parental leave will not be paid, it submits it would be difficult for the Commission to reach the requisite state of satisfaction under s 201 of the Act.[98]
  1. [120]
    The QSU maintains paid maternity leave is not related to the value of work performed but exists for the reasons set out in the Maternity Leave Test Case. It therefore contends maternity leave is not captured by the equal remuneration principle.[99]
  1. [121]
    The Council contends the issue of whether or not women have special industrial interests is not in issue in this matter.[100]
  1. [122]
    In the Parental Leave Test Case,[101] a Full Bench of the former Australian Industrial Relations Commission, observed:

Maternity leave recognises the special industrial interests of female employees who elect to combine motherhood with continued participation in the workforce. The existing provisions are directed to the protection of the mother's health before and after the birth and the care of the newborn child.[102]

  1. [123]
    In New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('New South Wales Lotteries'),[103] the Full Bench of the Industrial Relations Commission of New South Wales overturned a decision of McKenna C refusing to certify an Award on the basis that it provided for paid maternity leave, but not paid paternity leave.
  1. [124]
    Relevantly, McKenna C considered the provision offended the equal remuneration principle provided for under s 23 of the Industrial Relations Act 1996 (NSW):

23  Equal remuneration and other conditions

Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.

  1. [125]
    McKenna C consequently refused the application for certification.[104] On appeal, the Full Bench considered McKenna C had erred, overturning her decision, and finding:

37 ... paid maternity leave is an entitlement of a different character to paid leave for employees who are parents and principal care givers of a child.

38 The maternity leave provided by the award has two elements. A component of paid leave and a component of unpaid leave. When considered with similar leave provided by the award, for example, parental or adoption leave, it becomes obvious that the overall grant of maternity leave is designed for a specific situation and not only for the child-care aspect of the parent's role. The paid maternity leave is designed specifically for the particular or personal aspects of the pregnancy and the birth of the child, rather than the subsequent child care responsibilities. The paid leave is referrable to the fact of pregnancy and available only to a person who is or has been pregnant. As such, maternity leave is not gender specific. For example, where two females share the responsibility of caring for a child, the non-pregnant partner while being female, would not be entitled to maternity leave since the relevant circumstance, the fact of being pregnant, has not arisen. Similarly, if there is a situation where two males share child care responsibilities, neither would be entitled to paid maternity leave because the relevant circumstances giving rise to the entitlement are not present.

39 As earlier observed, the leave provisions of the consent award provide specific entitlements for leave for those employees who have child care responsibilities. Parental and adoption leave, provided for by clause 19.4 and clause 19.3 respectively, are available to both men and women, including women who are not pregnant, for the care of a child. Thus, there is no discrimination on the basis of gender, or unequal treatment by reference to gender, in the provision of unpaid parental and adoption leave for a period of up to 12 months. The unpaid portion of the maternity leave entitlement is comparable to these entitlements and thus may be reasonably assumed to represent an intention to provide leave on a comparable basis for the "child care" part of the period of leave after the pregnancy. The consent award in providing a nine week paid maternity leave component in clause 19.2(g) provides this benefit to an employee who is pregnant by reference to that consideration and factors associated with the confinement. Seen in this way, it cannot be said that there is any unequal treatment arising from these provisions. Any different benefit or treatment could not seriously be said to result from discrimination on the basis of sex.

  1. [126]
    We consider the circumstances as outlined above to be analogous to the present matter. The question of whether paid maternity leave is discriminatory has been considered in a number of other matters and it has consistently been determined that such an entitlement is neither discriminatory nor objectionable.[105]
  1. [127]
    The proposed paid maternity leave provision provides, on application, for the payment of 10 weeks maternity leave at full pay or 20 weeks, at half pay but only in circumstances where an employee is pregnant or has given birth to a child.
  1. [128]
    In a situation where two females elected to raise a child together, eligibility to the paid maternity leave provision in the proposed Agreement would be confined to the partner who was pregnant and gave birth to a child. Likewise, a male couple would be prevented from accessing the entitlement on the basis that neither would ordinarily be pregnant or give birth to the child. Therefore, eligibility to the entitlement is linked directly to pregnancy and the birth of the child, rather than gender.
  1. [129]
    Separately, it is open to all staff, through cl 12.5 of the proposed Agreement, to access parental leave and, within that period, utilise paid leave, including annual and long service leave, irrespective of gender.
  1. [130]
    Akin to the circumstances in New South Wales Lotteries,[106] all eligible employees, irrespective of gender, have access to unpaid parental leave, annual leave and long service leave on a comparable basis for the 'child care' portion of the period of leave after the pregnancy, whereas the entitlement to paid maternity leave is confined to specific circumstances, not linked to gender, but instead the pregnancy itself.
  1. [131]
    Consequently, the Full Bench is satisfied the paid maternity leave provision proposed by the QSU does not offend the equal remuneration provisions set out at s 201 of the Act.

Affordability

  1. [132]
    Notwithstanding Mr Franks' evidence that a limited number of employees had accessed paid maternity leave in the past, Ms McCarthy considered it would not be feasible for the Council to extend paid maternity leave to all female employees at the Council.[107]
  1. [133]
    Ms McCarthy estimated that a total of 37 female employees would be able to access the paid maternity leave provision under the proposed Agreement at a cost of $512,061.80.[108] The difficulty with this approach, however, is that it assumes all 37 employees will become eligible to access the paid maternity provision within a similar period, which seems unlikely.
  1. [134]
    In his evidence, Mr Franks took a more considered position, suggesting the cost of the provision would equate to approximately $52,033 per annum, based on an average annual cost of a female worker of $99,275.[109]
  1. [135]
    Although potentially more realistic than the costs highlighted by Ms McCarthy, we hold concerns about the veracity of the Council's modelling in circumstances where it appears the analysis was undertaken having regard to an inflated average annual cost for a female worker, an expansive childbearing age range of 15 to 50 and a broad cohort of female employees, some of whom would not ordinarily fall within the coverage of the proposed Agreement.[110]
  1. [136]
    Instead, we prefer the approach adopted by the QSU during cross-examination of Mr Franks whereby a more realistic reproductive age range of 15 to 44 was proposed and later costed, having regard to the annual average cost of a female Council employee of $88,258.
  1. [137]
    Considering the uptake of the paid maternity provision in the current or earlier agreements, albeit in circumstances where it had a narrower application, the result of 0.97 employees being statistically likely to take up the entitlement in any one year, at an estimated annual cost to the Council of $16,493, appears to be a more realistic assessment of the potential uptake of the entitlement in the future.
  1. [138]
    Having regard to those costings, in the event an employee became eligible to access the paid maternity leave provision, we are satisfied the budgeted operational surplus could adequately fund the 10 week entitlement. Accordingly, we consider that the projected costings for the maternity leave provision is not a factor that weighs against the inclusion of the proposed maternity leave provision in the determination. In coming to this conclusion, we have also had regard to the likely effect of the proposed arbitration determination and the matters agreed between the parties.
  1. [139]
    As outlined at [11] above, the maternity leave provision currently exists for a number of employees by virtue of the undertaking given to the Commission by the Council at the time of certification of the current agreement. The failure to include a similar provision within this agreement will disadvantage those employees by reducing their entitlements.[111] This factor, together with the associated ongoing benefit to the community from the inclusion of the maternity leave provision, supports a finding that the inclusion of the QSU's proposed maternity leave provision in the determination is meritorious.
  1. [140]
    Having regard to the matters we must consider as required by s 180(4)(a) and (b) of the Act, we are satisfied that the proposed claim for the inclusion of a paid maternity leave provision should be approved.
  1. [141]
    For the reasons set out above, the QSU's claim for the inclusion of a paid maternity leave provision within the proposed Agreement, in the form reflected in the Further Statement of Agreed Facts,[112] is granted.

Other Matters

Section 198 of the Act

  1. [142]
    Section 180(3)(a) of the Act requires the Full Bench to ensure an arbitration determination includes, inter alia, the provisions and other matters it would be required to include if the determination were a proposed bargaining instrument the subject of a pt 5 application.[113]
  1. [143]
    The QSU submits cl 8 in the proposed Agreement does not satisfy the mandatory requirements of s 198 of the Act without the omission of the word 'final', arguing the inclusion of the word 'final' could have the result that decisions likely to be of particular significance are not the subject of consultation where they are characterised by the employer as not being 'final' decisions.[114]
  1. [144]
    Clause 8 of the proposed Agreement provides:

8. CONSULTATION INTRODUCTION OF CHANGES

8.1 EMPLOYER'S DUTY TO NOTIFY

Prior to making or implementing a final decision, where an employer is proposing to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer will notify the employees who may be affected by the proposed changes and, where relevant, their union/s.

'Significant effects' includes termination of employment; major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

Where the Award makes provision for alteration of any of the matters referred to above an alteration will be deemed not to have significant effect.

8.2 EMPLOYER'S DUTY TO CONSULT OVER CHANGE

The employer will consult the employees affected and, where relevant, their union/s about the introduction of the changes, the effects the changes are likely to have on employees (including the number and categories of employees likely to be dismissed, and the time when, or the period over which, the employer intends to carry out the dismissals) and ways to avoid or minimise the effects of the changes (e.g. by finding alternate employment).

The consultation must occur prior to making or implementing a final decision regarding the proposed changes.

For the purpose of such consultation the employer will provide in writing to the employees concerned and, where relevant, their union/s, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees, and any other matters likely to affect employees.

Notwithstanding the provision above the employer will not be required to disclose confidential information if the disclosure of which would be averse to the employer's interests.[115]

  1. [145]
    The Council submits that, based on the Agreed Statement of Facts filed 19 June 2020, which constituted all matters agreed between the parties before the arbitration, the Commission cannot and should not exercise any powers in relation to cl 8 of the proposed Agreement regardless of whether that clause is purportedly non-compliant with the Act.
  1. [146]
    The Council further submits that the Agreed Statement of Facts was an agreement pursuant to s 181(1) of the Act and that s 181(2) of the Act applies to prohibit the Full Bench from exercising any powers in relation to a matter mentioned under s 181(1).[116]
  1. [147]
    In any event, the Council maintains that cl 8 of the proposed Agreement is compliant with the requirements of s 198 of the Act even if the word 'final' is included.[117]
  1. [148]
    The Council further argues that where no 'final' decision is made, that decision cannot be 'likely to be of particular significance' to employees.[118] Moreover, that it cannot give 'proper' consideration unless there is a view to make or implement a final decision. The inclusion of the word 'final' is, therefore, to ensure that the Council can properly consider any relevant views, when it is at the decision-making stage.
  1. [149]
    The Council questions whether there can be any proper or sensible consideration of those views without being at the stage of looking at making or implementing a final decision, as opposed to simply making a non-'final' decision to explore its options.[119]

Consideration – Section 198

  1. [150]
    Section 198(1)(a) of the Act relevantly provides:

198 Provisions and other information to be included

  1. (1)
     The commission must be satisfied the proposed bargaining instrument—
  1. (a)
     includes a provision requiring an employer to consult employees before making a decision likely to be of particular significance to the employees…
  1. [151]
    The clear intent of s 198(1)(a) of the Act is to ensure a bargaining instrument contains a provision that requires an employer to consult employees before it makes a decision likely to have significant effect on employees.
  1. [152]
    Section 198(2) of the Act further requires that the provision must state a consultation process to be followed that enables the employer to properly consider the views of employees and relevant employee organisations before making or implementing a final decision.
  1. [153]
    Clause 8.1 of the proposed Agreement places an obligation on the Council to notify employees who may be affected by proposed changes, prior to making or implementing a final decision. Clause 8.2 requires the Council to consult with affected employees, which envisages the employer writing to employees or their union representatives and providing all relevant information about any proposed changes prior to making a final decision.
  1. [154]
    The Council's submission that the Commission is precluded from exercising any powers in relation to the inclusion of cl 8 within the proposed Agreement in the event it did not comply with s 198 of the Act is not accepted. The terms of s 198(1) are mandatory in that the Commission must be satisfied that the proposed instrument includes provision for the matters in s 198(1)(a). The Commission cannot ignore the requirements of s 198 simply on the basis that the parties may have formed a different view pursuant to s 181 of the Act.
  1. [155]
    The Commission is not satisfied that the requirements of s 198 of the Act are met by the terms of cl 8 of the proposed Agreement. Section 198(1)(a) requires the inclusion of a provision requiring notification 'before making a decision likely to be of particular significance to employees'. To permit the insertion of the word 'final' before 'decision' in the proposed Agreement would allow for decisions likely to be of particular significance to employees to be made without notification on the basis that the decision was provisional or temporary.
  1. [156]
    Section 198(2) of the Act requires that a consultation process be included allowing for the consideration of employee and employee representative's views prior to the employer making or implementing a final decision. The inclusion of the term 'final' in cl 8.2 of the proposed Agreement is inconsistent with this requirement.
  1. [157]
    Accordingly, the Full Bench is of the view that cl 8.1 of the proposed Agreement must be amended to remove the word 'final' to ensure that it is consistent with the requirement of s 198(1)(a) of the Act.

Good Faith Bargaining and Employee Participation in Negotiations

  1. [158]
    Highlighting the obligations of the parties to bargain in good faith within its submissions, the Council takes issue with the QSU's conduct during the negotiations of the proposed Agreement, submitting the QSU:
  1. (a)
    engaged in a series of good faith bargaining meetings without advising the Council that any agreed terms and conditions would require approval from an elected QSU official;
  1. (b)
    agreed on certain matters for inclusion, change or removal in a proposed document; and
  1. (c)
    at the final meeting advised, in effect, that the work undertaken by the parties was of no consequence unless an elected QSU official approved and authorised the draft agreement to be released to staff to vote.[120]
  1. [159]
    Ms Jennifer Thomas, Executive President of the QSU, deposes the following in her affidavit sworn on 16 July 2020:
  1.  The usual practice for our Union at each workplace for the negotiation of an Agreement which is to be certified is that the document is negotiated and then approval is sought from the Elected Officers. Our officials are not authorised to give final approval, but are authorised to indicate when negotiations have finished, either because the document can be put to the elected officers for consideration of approval or because agreement cannot be reached.
  1.  … the minutes of the Mareeba Shire Council Certified Agreement Negotiations Minutes of 6 July 2018. The minutes show that our Organiser present at the meeting, Jeanine Orzani, accurately described our process.[121]
  1. [160]
    It is not in contention that on 6 July 2018, Ms Jeanine Orzani, Organiser with the QSU, informed the Council of concerns raised by members of the QSU regarding parental leave.[122] Ms Orzani confirmed with the Council that QSU members were not agreeable to the proposed clauses regarding, inter alia, personal leave and maternity leave.[123] Ms Orzani also outlined the process she would need to follow for seeking approval for the draft agreement which extended to obtaining approval from the State Secretary.
  1. [161]
    Attached as exhibit 'JT1' to the affidavit of Ms Thomas is a copy of the Mareeba Shire Council Certified Agreement Negotiations Minutes of 6 July 2018, which outlines the following:

ITEM- 2  UNIONS RESPONSE

Unions agree to the proposals as put by Management plus the other clauses as previously agreed on the basis that Management agree to a 2.5% per annum pay increase, for the life of the agreement. If Management agree to this the Unions agreed the draft CA could be put to staff for vote. TSU recorded indoor members will not be agreeable to clauses regarding Personal Leave, Locality Allowance and Parental Leave.

Action required

Management to consider offer

…

ITEM- 3  MANAGEMENT RESPONSE

Management accepted the proposal of the 2.5% but put counteroffer for Unions to consider which was the wage increase to remain at 2.25% per annum for the 3 years but with an increase to the Mareeba allowance to $63.50 per fortnight to all workers for the life of the agreement. This proposal was predicated on a guarantee from Union that no campaigning will be done during vote process. The CFMEU, PTEU and AWU agreed they would simply explain the agreement to staff and leave the decision to the staff and would not promote a 'no' vote. The TSU would not agree to not campaign for a 'no' vote.

Action required

Unions to consider offer

…

ITEM- 4 UNION RESPONSE

CFMEU, PTEU and AWU agree with Management's offer to be adopted with the Agreement to be put to staff for vote. TSU advised their process prior to agreeing differs and requires approval from the State Secretary and as such will take slightly longer…

Action required

Draft Certified Agreement to be distributed as soon as possible.[124]

  1. [162]
    The Council does not dispute that on 6 July 2018, Ms Orzani described the approval process the QSU would ordinarily follow, prior to an agreement being put to a ballot.[125]
  2. [163]
    Its primary complaint, however, is that several negotiation meetings were held between 5 September 2017 and 6 July 2018 and it was not until the latter date that Mr Orzani advised the meeting of the need for an elected official to review and sign off on the agreement.[126]
  3. [164]
    In support of its concerns, the Council attached a copy of the Mareeba Shire Council Certified Agreement Negotiation Minutes dated 5 September 2017.[127] Those minutes relevantly provide:

MEETING OPENED

The meeting opened at 9.34am

ITEM- 1  CONFIRMATION OF AMENDED AGREEMENT

The existing agreement was amended to reflect the legislative changes that had occurred. From this point on the proposed changes by the parties will be reflected in the document until such time as agreement is reached and that everything is still up for negotiation.

Action Required

Distribute document to all members of EB Committee

ITEM- 2  DEVELOPMENT OF A WORKING DOCUMENT/AGREEMENT

The existing agreement was worked through and clauses that were not in contention were agreed to with the proviso that any of the parties can return to these items at a later stage.

Where there was no agreement these clauses were either left unmarked or union/management positions identified.

Management will add the clauses it wishes to have included plus will include the items from all unions logs of claims and circulate this as soon as possible.

Action Required

As per above[128]

  1. [165]
    Mr Franks maintains that at the 5 September 2017 meeting, the parties agreed on a process for working through the draft document with a view to working through any contentious clauses which would be reflected in the minutes.[129]
  1. [166]
    His evidence was 'to the best of my recollection, there was no discussion at the meeting on 5 September 2017 about the process described in the Affidavit of Ms Thomas'. He considered his recollection was supported by the minutes which did not include any reference to the process.[130]
  1. [167]
    The Council also highlights what it considers to be potential breaches by the QSU of the good faith bargaining obligations under s 173 of the Act, complaining the union gave 'cursory consideration' to the wishes of the majority of persons who are employed at the Council and eligible to be members of the QSU.
  1. [168]
    The Council's concerns extend to an alleged review of a 'petition' signed by Council employees, by a QSU official in no more than 47 minutes, which it argues could potentially be considered a failure to disclose relevant information and also conduct that could undermine freedom of association.[131]
  1. [169]
    The Council submits that its employees were so concerned about the actions of the QSU that they created a petition of persons at the Council who were, or were eligible to be, members of the QSU.[132]
  1. [170]
    In its submissions, the Council contends that the petition, which was sent to the Executive President of the QSU, Ms Thomas, expressed that a majority of employees who would ordinarily fall within the coverage of the Stream A Award wished to vote on the agreement proposed by the Council, as it stood as at July 2018.[133]
  1. [171]
    The Council provided the Commission with a copy of the petition and a related email, which was sent to Mr Neil Henderson, Branch Secretary of the QSU, Ms Thomas and Ms Orzanzi on 19 September 2018.[134] The petition header contained the following details:

To: Branch Secretary Neil Henderson/ Executive President Jennifer Thomas, Australian Municipal, Administrative, Clerical and Services Union Queensland (Services and Northern Administrative) Branch Trading as The Services Union.

The petition of employees of Mareeba Shire Council, as members or persons eligible to be members of The Services Union, draws to the attention of The Services Union our desire to be permitted to vote on the proposed Mareeba Shire Council Certified Agreement 2018-2021.

We therefore request The Services Union to agree to a secret ballot being conducted by Mareeba Shire Council to determine whether or not the proposed agreement is supported or not supported by a majority of employees.

We, the undersigned, have signed this petition freely and without duress.

  1. [172]
    Noting that the Act prohibits employees from holding a vote in relation to the proposed Agreement until all the Union parties give their consent,[135] the Council submits the views of its employees should be considered by the Full Bench when making its determination.[136]
  1. [173]
    The Council contends that the unfairness visited upon its employees by the protracted negotiation, their inability to participate in their own negotiations and the QSU's purported disregard of the majority viewpoint is, in the Council's submissions, sufficient to support a finding that the Council's position in relation to personal leave and paid maternity leave is the meritorious position.[137]
  1. [174]
    The QSU rejects the Council's proposition that the QSU's processes 'open up some sort of' potential breach of the good faith bargaining provisions of the Act'.[138] The QSU submits there is no obligation for the union to consider the views of persons who are not members and to pass onto the Council information about any 'petition'.
  1. [175]
    The QSU relies on s 165(b)(1) of the Act which outlines that the proposed Agreement is to be between the employer and employee organisations, giving effect to the provision of s 4(n) of the Act in 'encouraging representation of employees … by organisations that are registered under this Act'.[139]
  1. [176]
    The QSU argues that there was nothing to stop any employees from forwarding their views to the Council.[140]
  1. [177]
    Rejecting any claims that it did not bargain in good faith, the QSU notes that such claims by the Council are not matters for consideration by the Full Bench in these proceedings in any event.[141] Moreover, that it was open to the parties to raise concerns about the manner in which the QSU communicated its disagreement during the negotiations by utilising, for example, the provisions under s 173 of the Act.

Consideration – Good Faith Bargaining

  1. [178]
    As noted above, the QSU submits that the Council's claim with respect to the QSU's conduct during bargaining is not a matter for consideration by the Commission in proceedings such as these.[142]
  1. [179]
    Conversely, the Council maintains the QSU's alleged failure to participate in the bargaining process in good faith, in so far as it is related to protracted negotiations and its alleged disregard of the majority viewpoint, should feature in the Full Bench's determination of this matter.
  1. [180]
    Relevantly, it is useful to have regard to the manner in which the Council seeks to raise the matter of good faith bargaining. Firstly, it was raised by the Council as a separate and standalone issue. A great deal of the Council's written submissions[143] dealt with what it considered to be the unfair conduct of the QSU during bargaining and suggested that the QSU's conduct may have potentially breached the good faith bargaining obligations in s 173 of the Act.[144] However, the Council does not seek any relief with respect to the alleged breach of s 173 of the Act.
  1. [181]
    Secondly, the Council submits that the views of the majority of employees allegedly expressed in a petition that was prepared by an unknown person or persons during the bargaining process should be considered by the Commission when it makes the arbitration determination.[145] Relevantly, the Council sought to rely on the petition to support a submission that the Council's position, with respect to personal leave and maternity leave, was supported by a majority of employees.
  1. [182]
    For the following reasons, we decline to make any findings with respect to the alleged breach of the good faith bargaining obligations by the QSU.
  1. [183]
    The matters raised by the Council do not form part of the dispute to be determined by arbitration by the Commission. Relevantly, as noted above, s 180(1) of the Act provides that the Full Bench must determine the matters in dispute by arbitration, and s 180(2) of the Act provides a mechanism for determining the matters in dispute including by the issuing of directions. In this matter, the Commission issued directions[146] requiring the parties to file an agreed statement of facts that, inter alia, identified each matter in dispute between the parties to be determined by the Full Bench. The parties complied with that direction and filed a Statement of Agreed Facts[147] identifying the matters in dispute requiring determination by the Commission.[148] The matters in dispute were limited to personal leave and maternity leave.
  1. [184]
    Accordingly, whether the QSU complied with its good faith bargaining obligations during negotiations does not form part of the dispute to be determined by the Commission.
  1. [185]
    Further, whether the QSU complied with its good faith bargaining obligations during the negotiation for the proposed Agreement is not a matter that falls to be considered pursuant to s 180(3)(a) or s 180(4) of the Act.
  1. [186]
    Whilst the Council considers it has adduced evidence to establish that a majority of employees support its position with respect to the disputed matters, that does not erode from the fact that parties to the proposed Agreement, relevantly the QSU and the Council, are in dispute and it is for the Commission to determine that dispute by arbitration having regard to the matters required to be considered under s 180(4) of the Act.
  1. [187]
    Finally, we consider there to be some force in the QSU's submissions that the demeanour of a party during the course of negotiations may be raised utilising, for instance, the provisions of s 173 of the Act whilst bargaining continues, however, by the time the matters in dispute advance to the determination phase, the tools of the bargaining provisions of the Act are no longer relevant.[149]

Arbitration Determination to Include Agreed Matters

  1. [188]
    Section 181(1) of the Act provides that an arbitration determination by the Full Bench may include a provision for a matter agreed between the negotiating parties before or during the arbitration.
  1. [189]
    As noted above, the parties have provided a draft determination. In tendering the draft determination, the parties identified the matters that had been agreed between them both before and during the arbitration. Consistently with s 181(2) of the Act, it is intended that the terms of those agreed matters will be adopted in the determination of this matter, without the Full Bench exercising any powers pursuant to ch 4 pt 3 div 3 of the Act.
  1. [190]
    Consequently, directions will be issued requiring the parties to jointly file a draft agreed determination. The draft agreed determination is to reflect the full and complete terms of the clause of each matter agreed between the parties and the determination of the disputed matters as contained in these reasons. Further, the parties should ensure that, when conferring as to the terms of the draft agreed determination, they have proper regard to the requirements set out in the Act, including, but not limited to, the matters referred to in ss 180(3)(a) and (b) and 183(1)(a) and (b).

Conclusion

  1. [191]
    The QSU's claim for employees within div 2 s 1 of the Stream A Award to receive 12 days of personal leave in the first year of employment and 15 days per annum in the second and subsequent years is refused.
  1. [192]
    The QSU's claim for the inclusion of a paid maternity leave provision within the proposed Agreement, in the form reflected in the Further Statement of Agreed Facts is granted.

Order

  1. [193]
    We order accordingly:

The parties are directed to jointly file in the Industrial Registry, a draft agreed determination that reflects the full and complete terms of the clauses of each matter agreed between the parties and the determination of the matters in dispute as contained in these reasons by 4.00 pm on 25 October 2022.

Schedule 1[150]

Personal Leave

Council

QSU

Council proposes that the relevant part of the clause in relation to personal leave (where indicated below), should read:

All employees (except causals) are entitled to accrue twelve [12] days paid personal leave per year of service (pro-rata for part-time employees) in accordance with the full provisions of the Award;

The QSU proposes that the relevant part of the clause in relation to personal leave (where indicated below) should read:

  • All Stream A employees (except casuals) are entitled to accrue fifteen [15] days paid personal leave per year of service (pro-rata for part-time employees) in accordance with the full provisions of the Award;
  • All other employees (except casuals) are entitled to accrue twelve [12] days paid personal leave per year of service (pro-rata for parti-time employees ) in accordance with the full provisions of the Award;

Subject to inserting one of the party's proposed clause wording above into the relevant section indicated by highlighting and square brackets, the parties have agreed that the balance of the Personal Leave clause should read as follows.

12.3 Personal Leave (Sick & Carer's)

All personal leave entitlements shall be in accordance with full personal leave provisions of the Award subject to the following conditions:

  • [insert from above]
  • Personal Leave may be taken as sick leave when an employee suffers a personal illness or injury.
  • Carer's leave may be taken when an employee is required to provide care or support to a member of the employee's immediate family or a household member who requires care or support as a result of sickness, injury or an unexpected emergency;
  • All Personal leave will accrue fortnightly in arrears; and
  • There will be no ceiling to the amount of sick leave which can be accrued.

12.3.1

When taking sick leave the employee must notify their supervisor/manager of their absence as soon as practical, but should be where possible be a minimum of thirty [30] minutes before their normal start time on the day of absence.

A medical certificate from a registered health practitioner or other evidence to Council's satisfaction is required for absences greater than two [2] days of sick leave, or maybe required:

  • for any instance of sick leave taken by an employee immediately preceding or following scheduled leave or a public holiday; or
  • for any instance of sick leave taken by an employee after they have given notice of termination

If a Friday and Monday either side of a weekend are taken the weekend is considered as part of the consecutive days

If it is deemed necessary by the CEO/Management Representative due to a regular pattern of sick leave, a medical certificate or other evidence to Council's satisfaction will be required to be produced for any one [1] day of sick leave. It is acknowledged that these regular patterns can be due to personal problems beyond the employee's control and this clause is clearly related to a potential abuse of sick leave and the intent is to open discussion between the employee and their manager.

Employees are able to utilise sick leave accruals in increments of hours rather than full days, where requires for as an example: planned specialist medical appointments which cannot be scheduled on RDO's or weekends. \

Maternity Leave

Council

QSU

Council seeks that the paid maternity leave provision not be included so has not provided any proposed wording.

12.5A Paid Maternity Leave

On application Council will pay ten (10) weeks Maternity Leave at full pay or twenty (20) weeks at half pay, in addition to the new Federal government paid parental leave scheme.

This can either be taken concurrently, or following the taking of the new Federal government paid parental leave scheme.

Maternity Leave applies to eligible Council employees who are pregnant or have given birth to a child. To be eligible for this payment, employees must have completed two (2) years' service.

Employees who have less than two (2) years but greater than one (1) years' service will be entitled to half this amount.

Pro rata payments will be made for part-time employees

Paid maternity leave will apply to maternity leave taken after certification of this agreement.

Footnotes

[1] Exhibit 13 – Statement of Agreed Facts and Proposed Certified Agreement 2018 – 2021 filed 19 June 2020.

[2] Emphasis in original.

[3] Queensland Local Government Industry (Stream A) Award – State 2017 cl 20.

[4] Exhibit 14 – Further Statement of Agreed Facts filed 26 June 2020.

[5] Emphasis in original.

[6] Ibid [6]-[8].

[7] Ibid 2-3.

[8] Exhibit 13 – Statement of Agreed Facts and Proposed Certified Agreement 2018 – 2021 filed 19 June 2020, [17]-[19].

[9] See Industrial Relations Act 2016 (Qld) ch 2 pt 3.

[10] Ibid ss 40(1) (sick leave), 42(2) (carer's leave).

[11] Council's submissions filed 7 August 2020.

[12] Ibid [11].

[13] Ibid [25].

[14] Ibid [21].

[15] Ibid [23].

[16] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [19], [22].

[17] Ibid [20].

[18] Ibid [20(b)].

[19] Exhibit 8 – Affidavit of Jennifer McCarthy filed 31 August 2020, JM8.

[20] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [21].

[21] Ibid [23].

[22] Ibid [24].

[23] Exhibit 8 – Affidavit of Jennifer McCarthy filed 31 August 2020, [32].

[24] T2-6 ll 5-20.

[25] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [25].

[26] Ibid [39].

[27] Ibid [27].

[28] Ibid.

[29] Exhibit 8 – Affidavit of Jennifer McCarthy filed 31 August 2020, [18].

[30] Ibid [21].

[31] Ibid [22].

[32] Ibid [25].

[33] Ibid [30].

[34] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020, [38].

[35] Ibid [39].

[36] T-25 ll 30-45.

[37] Exhibit 8 – Affidavit of Jennifer McCarthy filed 31 August 2020, [28].

[38] Ibid [30].

[39] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020, [17].

[40] Ibid [23], [25].

[41] Exhibit 3 – Affidavit of Jennifer McCarthy filed 3 July 2020, [14].

[42] The QSU's closing submissions filed 12 January 2021, [64].

[43] Ibid [65].

[44] Ibid [68].

[45] T2-25 l 45.

[46] The QSU's Closing Submissions filed 12 January 2021, [71].

[47] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [35].

[48] Ibid [37].

[49] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [38]. We note, in his evidence Mr Franks referred to all employees covered by Stream A of the Award despite Stream A of the Award providing these entitlements only for employees that are employed in div 2 s 1 of Stream A of the Award. However, it was subsequently accepted by Ms McCarthy under cross-examination that the Council does not employ anyone who would be covered by the Stream A Award in either s 2 or s 3 and has no plans to do so in the future. See Tl‑43 ll 41‑42.

[50] The QSU's submissions filed 7 August 2020, [26]-[27].

[51] Council's submissions filed 7 August 2020.

[52] Ibid [37].

[53] T1-75 l 29 to T1-78 l 4.

[54] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020.

[55] Ibid [40]; T2-25 l 45.

[56] The QSU's closing submissions filed 12 January 2021, [64].

[57] Ibid [71].

[58] T2-45 l 1.

[59] Exhibit 8 – Affidavit of Jennifer McCarthy filed 31 August 2020, [18].

[60] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [27].

[61] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020, PF9.

[62] Ibid PF10.

[63] Ibid PF9.

[64] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [27].

[65] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020, PF9.

[66] Ibid.

[67] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [29].

[68] Exhibit 8 – Affidavit of Jennifer McCarthy filed 31 August 2020, [22].

[69] Ibid [61].

[70] The QSU's submissions filed 7 August 2020, [40].

[71] Ibid [40]-[42].

[72] Ibid [46 (c)].

[73] Council's submissions filed 7 August 2020, [31], [33].

[74] Exhibit 4 – Affidavit of Peter Hamilton Franks filed 3 July 2020, [47].

[75] Exhibit 3 – Affidavit of Jennifer McCarthy filed 3 July 2020, [23].

[76] Ibid [24]-[25].

[77] Ibid. [28].

[78] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020, PF11.

[79] Ibid [44], PF11.

[80] Ibid [45].

[81] Ibid [46].

[82] Ibid [47], PF13.

[83] Ibid [48].

[84] Exhibit 12 – Extract from Australia's mothers and babies report.

[85] The QSU's closing submissions filed 12 January 2021; Exhibit 3 – Affidavit of Jennifer McCarthy filed 3 July 2020, JM2.

[86] Exhibit 3 – Affidavit of Jennifer McCarthy filed 3 July 2020, JM2.

[87] The QSU's closing submissions filed 12 January 2021, [19]-[20]; Exhibit 3 – Affidavit of Jennifer McCarthy filed 3 July 2020, JM2.

[88] The QSU's closing submissions filed 12 January 2021, [23].

[89] Ibid [20].

[90] Exhibit 2 – Affidavit of Jennifer Ann Thomas filed 17 July 2022, [40].

[91] (1979) 218 CAR 120.

[92] Ibid.

[93] The QSU's submissions filed 7 August 2020, [46(d)].

[94] Maternity Leave Test Case (n 91).

[95] Ibid 123.

[96] Council's submissions filed 7 August 2020, [31].

[97] Ibid [33].

[98] Ibid [38].

[99] The QSU's submissions filed 7 August 2020, [58].

[100] Council's submissions filed 7 August 2020, [32].

[101] Parental Leave Test Case (1989-1991) 36 IR 1.

[102] Ibid 10.

[103] (2003) 131 IR 203.

[104] Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v New South Wales Lotteries Corporation (Industrial Relations Commission of New South Wales, McKenna C, 7 June 2002).

[105] Re The University of Melbourne [2014] FWCA 1133; Re Australian Federal Police [2018] FWCA 2776.

[106] (2003) 131 IR 203.

[107] Exhibit 3 – Affidavit of Jennifer McCarthy filed 3 July 2020, [28].

[108] Ibid [24]-[25].

[109] Exhibit 10 – Affidavit of Peter Hamilton Franks filed 31 August 2020, [47], PF13.

[110] Ibid [45].

[111] Industrial Relations Act 2016 (Qld) s 210(2).

[112] Exhibit 14 – Further Statement of Agreed Facts filed on 26 June 2020.

[113] The Act provides for the certification of agreements and the making of bargaining awards within ch 4 pt 5 of the Act.

[114] QSU closing submissions dated 12 January 2021, [62].

[115] Emphasis added.

[116] Council submissions dated 31 August 2020, [6]-[7].

[117] Ibid [8].

[118] Ibid [9]-[10].

[119] Ibid [11].

[120] Council submissions dated 7 August 2020, [43].

[121] Exhibit 2 – Affidavit of Jennifer Ann Thomas sworn 16 July 2020.

[122] Exhibit 15 – Affidavit of Jeanine Ann Orzani affirmed 14 September 2020, Exhibit I.

[123] Ibid [31]-[35], Exhibits J and K.

[124] Emphasis added.

[125] Exhibit 5, Affidavit of Peter Hamilton Franks dated 31 July 2020, [5].

[126] Ibid [12].

[127] Ibid [6].

[128] Ibid PF4.

[129] Ibid [9].

[130] Ibid [10].

[131] Council submissions dated 7 August 2020, [53].

[132] Ibid [45].

[133] Ibid [49].

[134] Exhibit 5 – Affidavit of Peter Hamilton Franks dated 31 July 2020, PF5.

[135] Council submissions dated 7 August 2020, [41].

[136] Ibid [53].

[137] Ibid [47].

[138] QSU submissions dated 12 January 2021, [49].

[139] Ibid [54].

[140] Ibid [55].

[141] Ibid [60].

[142] Ibid.

[143] Council's submissions dated 7 August 2020, [39]-[56].

[144] Ibid [52].

[145] Ibid [53].

[146] Directions Order dated 26 May 2020, Direction 2(a)(ii).

[147] Exhibit 13 – Statement of Agreed Facts and Proposed Certified Agreement 2018 – 2021 filed 19 June 2020.

[148] Ibid [26].

[149] The QSU's submissions dated 12 January 2021, [59].

[150] Exhibit 14 – Further Statement of Agreed Facts filed 26 June 2020.

Close

Editorial Notes

  • Published Case Name:

    Queensland Services, Industrial Union of Employees v Mareeba Shire Council & Ors

  • Shortened Case Name:

    Queensland Services, Industrial Union of Employees v Mareeba Shire Council & Ors

  • MNC:

    [2022] QIRC 389

  • Court:

    QIRC

  • Judge(s):

    Knight IC, Hartigan IC, Power IC

  • Date:

    11 Oct 2022

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
Maternity Leave Test Case (1979) 218 CAR 120
2 citations
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Cite 1 - (1979) 218 CAR 120
Cite 2 - (1979) 218 CAR 120
New South Wales Lotteries Corporation v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (2003) 131 IR 203
3 citations
Jump To
Cite 1 - (2003) 131 IR 203
Cite 2 - (2003) 131 IR 203
Cite 3 - (2003) 131 IR 203
Parental Leave Test Case (1989-1991) 36 IR 1
2 citations
Jump To
Cite 1 - (1989-1991) 36 IR 1
Cite 2 - (1989-1991) 36 IR 1
Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2022] ICQ 23
1 citation
Jump To
Cite 1 - [2022] ICQ 23
Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council (No 2) [2022] ICQ 26
1 citation
Jump To
Cite 1 - [2022] ICQ 26
Re Australian Federal Police [2018] FWCA 2776
2 citations
Jump To
Cite 1 - [2018] FWCA 2776
Cite 2 - [2018] FWCA 2776
Re: In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 9
1 citation
Jump To
Cite 1 - [2017] QIRC 9
The University of Melbourne [2014] FWCA 1133
2 citations
Jump To
Cite 1 - [2014] FWCA 1133
Cite 2 - [2014] FWCA 1133

Cases Citing

Case NameFull CitationFrequency
Queensland Services, Industrial Union of Employees v Mareeba Shire Council & Ors (No. 2) [2022] QIRC 4652 citations
1

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