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  4. Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 3) - [2022] QIRC 98

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Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 3)[2022] QIRC 98

Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 3)[2022] QIRC 98

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 3) [2022] QIRC 98

PARTIES:

MACKAY REGIONAL COUNCIL

(applicant)

v

QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES & OTHERS

(respondent)

FILE NO:

CB/2021/10

PROCEEDING:

Arbitration

DELIVERED ON:

23 March 2022

HEARING DATE:

19, 20 and 21 January 2022

MEMBER:

Davis J, President, O'Connor VP, Hartigan IC

HEARD AT:

Mackay

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 30 March 2022

CATCHWORDS:

INDUSTRIAL LAW – ARBITRATION – IF CONCILIATION UNSUCCESSFUL – matters at issue – salary and wages – salary percentage increase – backpay – redundancy – allowances – Determination released

CASES:

Industrial Relations Act 2016 (Qld), s 175, s 177, s 180, s 181, s 182, s 183

Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 2) [2022] QIRC 011, related
Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors [2021] QIRC 373, related

APPEARANCES:

A Bigby (Mackay Regional Council), N Henderson and M Robertson (Queensland Services, Industrial Union of Employees), G Harradine (Construction, Forestry, Mining and Energy Union, Industrial Union of Employees, Queensland), T Fernandez (Plumbing and Pipe Trades Employees’ Union), T McQuillan (The Australian Workers’ Union of Employees, Queensland)

  1. [1]
    Before the Full Bench of the Queensland Industrial Relations Commission (the Commission) is an arbitration with respect to the terms of a proposed industrial agreement[1] to replace the Mackay Regional Council Certified Agreement 2017 (the 2017 Certified Agreement).[2]
  2. [2]
    The parties had earlier commenced bargaining for a certified agreement to replace the 2017 Certified Agreement, however they were unable to reach agreement as to its terms.
  3. [3]
    On 29 April 2021, an application was filed by the Mackay Regional Council (the Council) for help to make a certified agreement pursuant to s 175(1)(b) of the Industrial Relations Act 2016 (Qld) (the IR Act).
  4. [4]
    The matter was listed for conciliation in Mackay over a period of several days.  At the conclusion of the conciliation process, the parties remained in dispute with respect to the replacement agreement and the conciliating member subsequently referred the matter to arbitration pursuant to s 177(2) of the IR Act.
  5. [5]
    The arbitration hearing was heard in Mackay on 19, 20 and 21 January 2022.
  6. [6]
    On the first day of hearing, following the issuing of orders with respect to a preliminary issue,[3] the parties were asked by the Commission to confer with respect to presenting a joint position in relation to the issues that remained in dispute.
  7. [7]
    At the commencement of the second day of hearing, a draft proposed industrial agreement was tendered,[4] by consent, which identified the matters that remained in dispute.
  8. [8]
    The Full Bench heard evidence and submissions from the parties with respect to the disputed matters.  Following the concession of some of the disputed matters during the course of submissions, it was agreed, by the parties, that they would confer with respect to the concessions made and provide a further draft of a proposed industrial agreement to the Commission.
  9. [9]
    At the commencement of the third day of hearing, a further draft of a proposed industrial agreement was tendered,[5] by consent, identifying that the following were the only matters remaining in dispute:
    1. (a)
      Salary and wages;
    2. (b)
      Allowances; and
    3. (c)
      Redundancy.
  10. [10]
    The dispute about allowances was limited.  It was agreed that any percentage increase to allowances would equate to the percentage increase in wages to be determined by the Full Bench in this determination.  Therefore, the allowances were only in dispute to the extent that the quantum of any wage increase was in dispute.  It was not, in reality, a separate question.

Relevant legislation

  1. [11]
    Section 180 of the IR Act provides a mechanism for the Commission to arbitrate disputed matters in collective bargaining.[6]  Section 180 provides:

“180 Full bench to arbitrate disputed matters

  1. (1)
    The full bench must determine the matters in dispute by arbitration.
  2. (2)
    To determine the matters in dispute, the full bench—
  1. (a)
    may give directions or make orders of an interlocutory nature; and
  2. (b)
    without limiting paragraph (a), before making an arbitration determination may order an increase in wages payable to employees; and
  3. (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
  2. (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;
  2. (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. [12]
    Section 181 of the IR 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.
  2. (2)
    The full bench may not exercise any powers under this division in relation to a matter mentioned in subsection (1).”
  1. [13]
    Section 182 of the IR Act provides that the Full Bench must publish its reasons when determining the disputed matters.
  2. [14]
    Section 183 of the IR 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
  2. (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.
  2. (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
  2. (b)
    can not be amended.”

Wage Levels and Interim Wage Increase

  1. [15]
    In April 2021, the Council awarded an administrative wage increase of $250 per annum to employees covered by the Queensland Local Government Industry (Stream B) Award – State 2017 (Stream B Award) and the Queensland Local Government Industry (Stream C) Award – State 2017 (Stream C Award) and an increase of one per cent to all award covered employees from 1 July 2020.[7]
  2. [16]
    Additionally, by orders issued on 18 October 2021,[8] the Commission granted, pursuant to s 180(2)(b) of the IR Act, an interim wage increase of two per cent at the current rate of pay for employees covered by the Queensland Local Government Industry (Stream A) Award – State 2017 (Stream A Award) and the Stream B Award to take effect as and from 1 July 2021.
  3. [17]
    The application for the interim wage increase was only made in respect of those employees covered by the Stream A and Stream B Award.  At the hearing for the interim wage increase, it was foreshadowed by the relevant unions whose members are covered by the Stream C Award, that they intended to make an application for an interim wage increase for those employees in due course.
  4. [18]
    However, prior to any application being filed, the Council granted an administrative increase of two point five per cent to the employees covered by the Stream B and Stream C Awards.[9]
  5. [19]
    Accordingly, the Commission will treat the relevant base wage levels, for the purpose of this Determination, as the level of wages and salary after the increases issued administratively in April 2021 and October 2021 and by order of the Commission issued in October 2021.[10]

Consideration

  1. [20]
    Section 180(4)(a) and (b) of the IR Act requires the Full Bench to, at least, consider 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 arbitration determination will apply.

Disputed matters

Salary and wages

  1. [21]
    The parties have identified that the salary and wages provision to be included in the determination remains in dispute.
  2. [22]
    At the outset of the hearing, the parties respectively sought the following wage and salary increases:
    1. (a)
      The Council sought:
      1. two point one per cent increase for the 2022/2023 year;
      2. two point one per cent increase for the 2023/2024 year; and
      3. two point one per cent increase for the 2024/2025 year.

with a CPI cap of two point five per cent.[11]

  1. (b)
    The QSU sought:
    1. one per cent backpay for Stream A employees from 1 July 2020;
    2. zero point five per cent backpay for Stream B employees from 1 July 2020;
    3. zero point five per cent increase for Stream A employees from 1 July 2021; and
    4. two point five per cent increase for the periods commencing 1 July 2022 and 1 July 2023.
  2. (c)
    The CFMEU, the PGEU and the AWU (for Stream B and C Award employees) sought:
    1. from the first full weekly pay period after 1 July 2020, $250 pay increase to base salary and a one per cent increase to base salary;[12]
    2. from the first full weekly pay period after 1 July 2021 a two point five per cent increase;
    3. from the first full weekly pay period after 1 July 2022, a two point seven five per cent increase; and
    4. from the first full weekly pay period after 1 July 2023, a three per cent increase.
  1. [23]
    On the commencement of the third day of hearing, the Council advised[13] that it had revised its position with respect to wages and salary and that its altered position was that it consents to the proposed wage increase sought by the QSU for the years 2022 and 2023, that being a two point five per cent increase for the period commencing 1 July 2022 and a two point five per cent increase for the period commencing 1 July 2023 with a CPI cap of three per cent.  The Council also consents to a point five per cent backpay for those employees covered by the Stream A Award, effective from 1 July 2021.  However, the Council maintained its opposition[14] to the QSU’s claim for backpay for the 2020 pay period.
  2. [24]
    Further, the Council opposed the increases in salary and wages sought on behalf of the employees covered by the Stream B and Stream C Awards.  Whilst not explicitly stated by the Council, it can be inferred from the Council’s submissions, that it seeks a two point five per cent increase in salary and wages for the periods commencing 1 July 2022 and 1 July 2023 for all employees covered by the Stream A, Stream B and Stream C Awards.
  3. [25]
    The practical effect of the change in the Council’s position, is that a large component of the evidence given during the hearing from Ms Kylie Lamb, Director Organisational Services of the Council, became irrelevant.  This is because the tenor of Ms Lamb’s evidence was that, because of the Council’s financial position, it could not agree to more than a two point one per cent wage increase.
  4. [26]
    Despite this, there are some components of Ms Lamb’s evidence that remain relevant and will be considered further below.
  5. [27]
    We will consider the merits of the case of the percentage increase in salary and wages sought by the parties together with the likely effect of such an increase on the employees and the Council.
  6. [28]
    Following our consideration of these matters, we will then deal with whether there is any merit in a differential increase for different parts of the workforce as contended for by the CFMEU, the PGEU and the AWU on behalf of the employees covered by the Stream B and Stream C Awards.

Salary percentage increase for the periods commencing 1 July 2022 and 1 July 2023

  1. [29]
    We accept the submissions of the QSU that the state of the economy and the financial position of the Council are factors which may be relevant when considering what is an appropriate wage increase.
  2. [30]
    The QSU contends[15] that the prevailing economic conditions favours a wage increase on the following basis:
    1. (a)
      the current Reserve Bank of Australia outlook is for wage increases approaching two to two point five per cent from the end of 2021;
    2. (b)
      the RBA also indicates that the Wage Price index is “… anticipated to pick up to above two per cent by the end of 2021 and gradually increase to around two point seven five per cent by 2023”; and
    3. (c)
      inflation expectations continue to be moderate with some expectations of inflation running at over two per cent by the end of 2023.
  3. [31]
    There is no opposition to the QSU’s submissions regarding the state of the economy and they are accepted.
  4. [32]
    Having regard to the submissions made, we consider the current state of the economy to be a factor that weighs in favour of an increase of at least two point five per cent per annum for 2022 and 2023 for all employees covered by Stream A, Stream B and Stream C Awards.
  5. [33]
    As noted above, Ms Lamb gave evidence regarding the state of the Council’s financial position.  The effect of Ms Lamb’s evidence was that the Council's financial position was in a much stronger position than had been anticipated during the early stages of negotiations.[16] Relevantly, Ms Lamb’s evidence was that an anticipated $5 million deficit for the 2020/2021 financial year did not eventuate, and, in fact the Council achieved an operating surplus of nearly $6 million for the 2020/2021 financial year.[17]
  6. [34]
    Accordingly, we consider that the stronger than anticipated financial position of the Council is a factor that weighs in favour of an increase of at least two point five per cent for the periods commencing 1 July 2022 and 1 July 2023 for all employees covered by the Stream A, Stream B and Stream C Awards.
  7. [35]
    Having regard to the current state of the economy and the financial position of the Council, we have determined that the wage increase for all employees covered by the Stream A, Stream B and Stream C Awards of at least two point five per cent for the periods commencing 1 July 2022 and 1 July 2023 is reasonable.  Such an increase will be beneficial to those employees who will receive the benefit of it whilst not being unreasonably burdensome on the Council.
  8. [36]
    Having determined this, we will consider whether different parts of the workforce should receive a greater increase than two point five per cent.
  9. [37]
    The CFMEU, the PGEU and the AWU maintain their respective positions as to the salary increase sought for employees covered by the Stream B and Stream C Awards.  Relevantly, they seek an increase of two point seven five per cent for the period from 1 July 2022 and three per cent for the period from 1 July 2023 for employees covered by Stream B and Stream C Awards.
  10. [38]
    We will consider the merit of awarding a greater increase to separate parts of the workforce, together with the likely effect of such a proposal on the relevant employees and the Council.
  11. [39]
    The CFMEU, the PGEU and the AWU all submit that the employees covered by the Stream B and Stream C Awards should receive an increase in wages and salary which considers the wage differential between those employees and the employees covered by the Stream A Award.
  12. [40]
    It was submitted[18] that an increase in pay rates to employees covered by the Stream B and Stream C Award was needed in order to “catch up” to the comparable rate of employees covered by the Stream A Award.  The illustration that was provided in support of that submission was that the wages and salary of an employee covered by the Stream A Award employed at an entry point classification was equivalent to a trade qualified employee covered by the Stream C Award who had completed three years of work.
  13. [41]
    The submissions made on behalf of the PGEU addressed this point as follows:[19]

“So really even if you – if you compare somebody who’s coming straight out of school to a fully qualified plumber, they’ve already done their three years that it would be fair to compare it to, for example, level 1.3, and in which case that plumber is $2295 behind. Now, I take the point that Mr – Mr Henderson raised around the trade allowances and there are a number of allowances that are paid, but they’re – they’re equally is not the increments that – that happen every – every 12 months. And those increments are paid to those employees when they are sick, on annual leave, and long-service leave, because that’s their substantive pay rate. Many of our allowances are not paid to our members when we are on those – on those types of leave. So as we said, we – we – we want to accept the council’s offer that was – that was made on the 19th. And with those – with those I suppose extra increases for us for our BNC guys to be able to catch up. Thank you very much.”

  1. [42]
    As properly acknowledged by the PGEU in its submission, the comparison conducted by it did not take into account the trade and other allowances that the relevant employees covered by the Stream C Award are entitled to.
  2. [43]
    Relevantly, those parties seeking the higher increase have not conducted any analysis as to the true position, with respect to wages and salary, of employees who are covered by the Stream B and C Awards and those covered by the Stream A Award.  We consider that such an analysis would need to, at least, consider the trade allowance, or, alternatively, address why the trade allowance is not relevant to such an analysis.  Further, there is no submissions made as to what effect the percentage increase sought on behalf of the employees covered by the Stream B and C Award would potentially have on the wage differential and how such an increase meaningfully addresses that wage differential.
  3. [44]
    The written submissions of the QSU[20]  provides some historical context to the relativities in Queensland local government wages as follows:
  1. “28.The relativities in Queensland local government wages were fixed pursuant to the 1989 structural efficiency principles in the Australian Industrial Relations Commission and are based on the C10 Fitter rate from the Metal industry. The rate for a level 1.3 in the current Stream A award was set as being the 100%-point equivalent of the fitters rate. Other key relativities were set out at level 2.4 for the three-year degree entry point and level 3.1 for the four-year degree and Graduate Professional Engineer entry point. At the time that these relativities were agreed in 1992, they were 125% and 128% respectively.
  2. 29.The wage relativities in the Queensland local government industry did not alter on the making of the Queensland Local Government Industry Award 2017 and the subsequent Stream A, B and C awards. The relativities used in the Queensland Local Government Officers Award 1992 remained intact.
  3. 30.One important and enduring consequence of the adoption of these relativities was the fixing of a wage relationship between traditional female dominated classifications with male classifications. For example, the QSU submits that it is most likely that the majority of employees in Level 1 of Stream A structure are women. Ensuring the maintenance of those relativities is one way of ensuring compliance with the equal remuneration provision of the IR Act.

…

  1. 35.The relativities in place at MRC were compressed by .1% on average by the $250 flat rate increase paid by MRC which adds the compression which has already occurred, subject to the following point.
  2. 36.This point concerns the payment of the Trade allowance of $2789 per annum paid for all purposes at MRC, under the provisions of clause 23 of the current Agreement.
  3. 38.When this allowance is factored in the relativities with the Stream A Award drop to 97.8% at Level 1.3, 119.3% at level 2.4 and 122.6% at level 3.1.
  4. 29.Under the provisions of s201 of the Act the Commission must be satisfied that equal remuneration is being implemented or will be implemented if the Agreement is made. These provisions apply to the task of the Full Bench in these proceedings by virtue of s180(3)(a) of the Act.”
  1. [45]
    The submissions made on behalf of the employees covered by the Stream B and Stream C Awards did not address the wage relativities in place and how they may be affected by the increase sought.  On the material before us, we are not satisfied that the wage relativities within the Council and, more generally, within the local government sector, would not be disturbed by the increase sought on behalf of the employees covered by the Stream A and Stream B Awards.
  2. [46]
    Finally, there was evidence heard during the course of proceedings, that a greater increase in salary and wages for the employees covered by the Stream B and Stream C Awards might be necessary in order to attract potential candidates to the position.  Relevantly, that evidence arose in the context of the Council providing an explanation for the administrative increase made by the Council to the employees covered by the Stream B and Stream C Awards at a higher rate than the interim wage order issued by the Commission in October 2021.
  3. [47]
    Ms Lamb’s evidence regarding the Council's reasoning for awarding the two point five per cent administrative increase to only the employees covered by the Stream B and Stream C Awards was to try and increase the base wages for those employees as a means of attracting potential candidates for positions that had been historically difficult to recruit.  Ms Lamb’s evidence was that the difficulty in recruitment arose, inter alia, because of the higher wages paid in the resources sector in the region.[21]
  4. [48]
    However, given that the Council did not ultimately support the higher wage differential sought for the employees covered by Stream B and Stream C Awards, we consider little weight, if any, can be placed on that evidence as being a basis to award a higher increase to those employees.
  5. [49]
    We do not consider the merits of the matter weigh in favour of awarding the higher percentage increases sought on behalf of the employees covered by the Stream B and Stream C Awards.  We consider the amount of two point five per cent for the 2022 and 2023 years for all employees is reasonable.
  6. [50]
    We determine that there be an increase of two point five per cent for all employees covered by the Stream A, B and C Awards for the periods commencing 1 July 2022 and 1 July 2023.

Point five per cent increase effective from 1 July 2021 for Stream A Award covered employees

  1. [51]
    As noted above, the Full Bench awarded an interim wage increase to those employees covered by the Stream A and Stream B Awards of two per cent effective from 1 July 2021.  As already observed, the following day, the Council, of its own volition, awarded a two point five per cent increase to those employees covered by Stream B and C Awards.
  2. [52]
    The QSU seeks a point five per cent increase in base salary for its employees, effective from July 2021, who are covered by the Stream A Award to equal the administrative increase that was awarded to the Stream B and C Award employees by the Council in October 2021.
  3. [53]
    Ms Lamb stated that the decision to apply the administrative increase to the employees covered by the Stream B and Stream C Awards was made at a management level, after considering the financial impact of such an increase on the Council.[22] That management decision was made the day following the interim wage order.
  4. [54]
    As noted above, the Council further contended that it awarded a two point five per cent increase to employees covered by the Stream B and Stream C Awards to assist in the recruitment of positions covered by those streams.  This contention does not detract from the QSU’s argument that the wage increase should be equally applied to the employees covered by the Stream A Award.
  5. [55]
    The evidence with respect to the Council’s stronger than anticipated financial position is equally relevant when considering the merits of an increase of point five per cent sought by the QSU for the Stream A covered employees. The Council’s financial position is a factor that weighs in favour of awarding the point five per cent increase to employees covered by the Stream A Award.  We have also had regard to the facts that the Council now supports that point five per cent increase being awarded to the employees covered by the Stream A Award.
  6. [56]
    We determine that an increase of point five per cent backdated to 30 July 2021, to those employees covered by the Stream A Award, is reasonable.

Backpay for period 1 July 2020

  1. [57]
    The QSU seeks a one per cent increase for employees covered by the Stream A Award and a point five per cent increase for employees covered by the Stream B Award to be backdated to 1 July 2020.  The QSU’s submissions clarified that it did not resist employees covered by the Stream C Award also receiving similar backpay, but that it was not in a position to make such submissions as it had no members in that stream.[23]
  2. [58]
    The difference in backpay claimed on behalf of the employees covered by the Stream A Award and Stream B Award appears to arise from the manner in which the Council awarded an administrative increase in April 2021.  As noted above, the administrative wage increase awarded by the Council in April 2021 was an increase of $250 per annum to employees covered by the Stream B and Stream C Awards only and a one per cent increase in wages to all employees across the board.
  3. [59]
    The QSU submits[24] that the back pay sought for the relevant employees would “top-up” the administrative wage increases to a reasonable level and that such an increase would have regard to the fact that the workforce has maintained productivity during the pandemic and ensured that service to the community has been maintained.[25]
  4. [60]
    The Council did not address the backpay claimed in its submissions other than to state its objection to it.[26] However, evidence was led from Ms Lamb with respect to the Council’s position.  Ms Lamb’s evidence was that the impact on Council, if the backpay was awarded, would be that the Council would “have to wear” an unbudgeted expense in a financial year in which the Council was experiencing financial pressures.[27] Additionally, Ms Lamb referred to administrative issues arising out of an award of backpay, including identifying staff who may have left the Council’s employment and the Council not being able to recover funding for particular jobs which may have closed.[28]
  5. [61]
    The Council does not seek to disturb the submissions made by the QSU in favour of the backpay, but rather, has adduced evidence of budgeting and administrative matters as a reason not to award the backpay sought.
  6. [62]
    The budgeting and administrative matters raised by the Council are not matters that would necessarily, on their own, weigh against an order for backpay.  Indeed, they are matters that ordinarily arise when an award of backpay is made.  Whilst it is accepted that there may be some budgeting and administrative inconvenience if the backpay was to be awarded, there are no further, or more compelling, reasons relied on by the Council that would weigh against awarding the backpay.
  7. [63]
    We have had regard to the submissions made by the parties and to the fact that, other than the administrative increase awarded in April 2021, the relevant employees did not receive any increase in salary during the period claimed.  We consider it reasonable, in the circumstances, for an award of backpay to be made as sought by the QSU.  Additionally, as the employees covered by the Stream C Award are in a similar position to those employees covered by the Stream B Award, we consider it reasonable that an amount of point five per cent, to be backdated to July 2020, also be awarded to employees covered by the Stream C Award.
  8. [64]
    We determine that there be a one per cent increase for employees covered by the Stream A Award and a point five per cent increase for employees covered by the Stream B Award and the Stream C Award to be backdated to 1 July 2020.

Redundancy

  1. [65]
    The parties have identified that the following redundancy provision remains in dispute.

“44.7. When an employee is transferred to a lower paid position, the appointment will be made at the highest incremental point within the appointed level (if applicable), with wage/salary at the previous rate prior to redeployment to be maintained for a period of six (6) months.”

  1. [66]
    The issue in dispute relates only to the proposed period of time that the previous rate would apply, post re-deployment.  The Council maintains that the period should be as it has historically been, a period of six months.  The QSU maintains that it should be amended to operate for a period of 12 months.
  2. [67]
    During the course of the hearing, the QSU argued, in summary, that the current arrangement did not provide an adequate safeguard for its members’ income during a period of displacement, following a restructure or some other impact on their employment.  The QSU’s position was supported by the other unions.
  3. [68]
    There was no direct evidence relied on in support of the QSU’s position.  Rather, the submissions were put as a “concern” arising out of the fact that a large number of employees are employed in roles specific to local government and to find alternative work within the local government sector would now likely require an employee to move to another region.[29]
  4. [69]
    The Council resisted any amendment to the operational period of the clause.  The Council’s position was that the period of six months is more generous than the equivalent provisions in the award and that the period of six months is reasonable in all the circumstances.
  5. [70]
    We are of the view that the period of six months is reasonable.  An operational period of six months acknowledges that employees employed by the Council may need to move from the Mackay region to find alternative employment in another local government area and provides them with a reasonable period to do so.  No evidence was tendered that supports a view that a period of six months does not give effect to the intent of the provision which is, inter alia, to support a re-deployed employee for a reasonable period of time.
  6. [71]
    We determine that the operational period of the clause will be six months.

Allowances

  1. [72]
    The parties have identified that the following provisions, using the clause numbering from the 2017 Certified Agreement, are to be determined following the determination of the wage percentage increase.  The parties have identified[30] the relevant allowance provisions that remain in dispute are as follows:

“24.1.2. An employee required to remain on-call during any day and/or night, outside their ordinary working hours, shall be paid $45 for each day during which they remain on- call. This allowance shall increase by TBD % on the first full pay period after 1 July 2022, TBD % on the first full pay period after 1 July 2023.

…

24.4.2 An all purpose tradesperson’s allowance of $60.00per week will be paid from the first full pay period after 1 July 2022 This allowance shall increase by TBD % on the first full pay period after 1 July 2023

…

24.5.2 An all purpose Arborist allowance of $45.00per week will be paid from the first full pay period after 1 July 2022. This allowance shall increase by TBD % on the first full pay period after 1 July 2023.

…

24.6.1  Toilet cleaning allowance

Employees required to clean toilets or dog/cat pound/s, other than merely by hosing waste through the drain, shall be paid an allowance at the rate of $7.50per day from the first full pay period after 1 July 2022. This allowance shall increase by TBD %  on the first full pay period after 1 July 2023.

…

23.12 Leading Hand Allowance

All Leading Hand Allowances shall increase to $8.09 per day from the first full pay period after 1 July 2022.  This allowance shall increase by TBD % on the first full pay period after 1 July 2023.”

  1. [73]
    Relevantly, the key issue that is in dispute with respect to these provisions, is the percentage increase to be paid after 1 July 2022 and 1 July 2023.  It is agreed between the parties that the percentage increase is dependent upon the percentage increase the Full Bench determines is appropriate with respect to Salary and Wages.
  2. [74]
    Accordingly, given the determination the Full Bench has made with respect to Salary and Wages, we determine that the percentage increases in allowance as referred to in clauses 24.1.2., 24.4.2., 24.5.2., 24.6.1. and 23.12, will be two point five per cent.

Arbitration determination to include agreed matters

  1. [75]
    Section 181(1) of the IR 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.
  2. [76]
    As noted above, the parties tendered a draft determination.[31] 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 IR 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 Chapter 4, Part 3, Division 3 of the IR Act.
  3. [77]
    The Full Bench was minded to issue a determination adopting the agreed matters and to include the determination of the disputed matters to be published together with these reasons.  However, it is apparent that the draft determination that was tendered contains typographical and formatting errors.  This is not a criticism of the parties as the Full Bench acknowledges that the draft determination was prepared hastily during the course of the arbitration for the assistance of the Commission.
  4. [78]
    Consequently, directions will be issued for the parties to jointly file a draft agreed determination.  The draft agreed determination is required 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, that they have proper regard to the requirements set out in the IR Act, including, but not limited to, the matters referred to in s 180(3)(a) and (b) of the IR Act.

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 30 March 2022.

Footnotes

[1] Industrial Relations Act 2016, Chapter 4, s 180.

[2]  The 2017 Certified Agreement has a nominal expiry date of 30 June 2020.

[3] Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 2) [2022] QIRC 011.

[4]  Exhibit 7.

[5]  Exhibit 8.

[6] Industrial Relations Act 2016, Chapter 4.

[7]  Submissions of the QSU filed 8 October 2021, [15].

[8] Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors [2021] QIRC 373.

[9]  Ibid, [64].

[10]  For the purpose of s 180(3)(b) of the IR Act, only the administrative increase and interim wage increase order of October 2021 will be referenced in the Determination on the basis that those increases were awarded after the matter was referred to arbitration.

[11]  T 2–77, ll 10–12.

[12]  This was awarded by the Council as an administrative increase in April 2021.

[13]  T 3-6, ll 16-20.

[14]  T 3-6, l 30.

[15]  Submissions filed on 8 October 2021, [10] and [11].

[16]  Although it is noted Ms Lamb was reluctant to couch the Council’s financial position in such terms. See, for instance, T 2-19, ll 28-29.

[17]  T 2–16, l 5.

[18]  T 2–73, ll 22–28.

[19]  T 2–73, ll 30–41.

[20]  Filed on 8 October 2021, [28]–[30].

[21]  T 2–12, l 46; T 2–13, l 3.

[22]  T 2–15, ll 30–42.

[23]  T 2-68, ll 34–42.

[24]  T 2-68, ll 29–34.

[25]  Submissions of the QSU filed 8 October 2021, [22].

[26]  T 3-6, l 34.

[27]  T 2-14, ll 11–14.

[28]  T 2-14, ll 14–18.

[29]  T 2–51, ll 17–25.

[30]  Exhibit 8.

[31]  Exhibit 8.

Close

Editorial Notes

  • Published Case Name:

    Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 3)

  • Shortened Case Name:

    Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 3)

  • MNC:

    [2022] QIRC 98

  • Court:

    QIRC

  • Judge(s):

    Davis J, President, O'Connor VP, Hartigan IC

  • Date:

    23 Mar 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
Mackay Regional Council v Queensland Services, Industrial Union of Employees [2021] QIRC 373
3 citations
Jump To
Cite 1 - [2021] QIRC 373
Cite 2 - [2021] QIRC 373
Cite 3 - [2021] QIRC 373
Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2) [2022] QIRC 11
2 citations
Jump To
Cite 1 - [2022] QIRC 11
Cite 2 - [2022] QIRC 11

Cases Citing

Case NameFull CitationFrequency
Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 4) [2022] QIRC 1422 citations
1

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