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CITE

Unreported Judgment

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2023] QIRC 181Pidgeon IC
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Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2023] QIRC 181

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2023] QIRC 181
PARTIES:	Queensland Services, Industrial Union of Employees (Applicant/Notifier) v Council of the City of Gold Coast (Respondent)
CASE NO:	D/2022/103
PROCEEDING:	Arbitration of an industrial dispute
DELIVERED ON:	15 June 2023
MEMBER:	Pidgeon IC
HEARD AT:	On the papers
ORDERS:	In answer to the question for arbitration, namely: Where an employee, who is engaged to work a ten (10) day fortnight under clause 6.3 of the *City of Gold Coast Certified Agreement 2019* (Agreement), requests to return to work after a period of primary carers leave on a part-time basis, do the provisions of clause 9.5.14 of the Agreement entitle the employee to be paid the salary equivalent to their ten (10) day fortnight position on a pro rata basis? The answer is: No.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – arbitration of an industrial dispute – notice of industrial dispute concerning employee’s salary – where the employee is a senior coastal engineer employed by the respondent – where the employee previously worked a ten-day fortnight and received a fourteen per cent loading pursuant to cl 6.3 of the City of Gold Coast Certified Agreement 2019 – where the employee took a period of parental leave – where the employee returned from parental leave to her role in a part-time capacity – whether the employee should be paid the fourteen per cent loading on a pro rata basis – dispute not resolved in conciliation – dispute to be arbitrated – determination of question for arbitration
LEGISLATION:	City of Gold Coast Certified Agreement 2019 cls 1, 3, 6, 9 Gold Coast City Council Certified Agreement 2012 Government Industry Award – State 2014 Industrial Relations Act 2016 ss 261, 262, 451 Queensland Local Government Industry (Stream A) Award – State 2017 cl 15
CASES:	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Trading as Australian Manufacturing Workers' Union v Townsville City Council [2021] QIRC 063 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 Escobar v Rainbow Painting P/L No.2 [2002] FMCA 122 Edwards v Hillier & Educang Ltd t/as Forest Lake College [2006] QADT 34

Reasons for Decision

Background

[1]
On 25 October 2022, the Queensland Services Union, Industrial Union of Employees (‘the Union’) (‘the Applicant’) filed a dispute pursuant to s 261 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) on behalf of its member, Mrs Zoe Elliot-Perkins.^[1]

[2]
Mrs Elliot-Perkins is employed by the Council of the City of Gold Coast (‘the Respondent’) as a Senior Coastal Engineer. She commenced employment with the Respondent in this role on or about 9 May 2016.

[3]
The Respondent wrote to Mrs Elliot-Perkins with an offer of employment on 21 April 2016, and Mrs Elliot-Perkins accepted the conditions of employment on 28 April 2016.^[2] The letter of offer relevantly provides that the role is classified as a Level 8, with the rate of pay commensurate with employment on a ten-day fortnight basis, and the hours of work designated as 40.30 per week.

[4]
The terms and conditions of Mrs Elliot-Perkins’ employment are governed by the City of Gold Coast Certified Agreement 2019 (‘the 2019 Agreement’).^[3] Clause 1.8 of the 2019 Agreement specifies that it is to be read in conjunction with the relevant modern award, namely the Queensland Government Industry (Stream A) Award – State 2017 (‘the Stream A Modern Award’).

[5]
Under clause 6.3 of the 2019 Agreement, certain positions under the Stream A Modern Award may require the occupant of the role to be present each working day per fortnight (equating to a ten-day fortnight). At the time when Mrs Elliot-Perkins commenced in her role, it was designated as a ten-day fortnight position.

[6]
In accordance with the 2019 Agreement, an employee with a ten-day fortnight arrangement receives a base salary that is fourteen per cent (14%) higher than the rate applicable to an employee working a nine-day fortnight arrangement or a full-time equivalent of 36.25 hours per week. Employees working a ten-day fortnight are eligible to receive the 14% premium payment to work an average of 8.06 hours per day and 40.30 hours per week.

[7]
On or about 17 April 2021, Mrs Elliot-Perkins commenced a period of parental leave from the Council. In July 2022, Mrs Elliot-Perkins advised the Council that she intended to return to work following her parental leave in a part-time capacity. She then returned to the workplace on a part-time basis, in the role of Senior Coastal Engineer, on or about 18 October 2022.

[8]
Clause 9.5 of the 2019 Agreement details the entitlements in relation to parental leave. Clauses 9.5.12 and 9.5.14 detail the entitlements related to part-time work and the position held immediately prior to the leave or an alternative role capable of being performed by the employee. The entitlements related to parental leave are also contained within Division 8 of the Act.

[9]
Mrs Elliot-Perkins’ part-time salary is calculated in accordance with the provisions of cl 3.2 of the 2019 Agreement.^[4]

[10]
The dispute lodged by the Union on 25 October 2022 relates to whether Mrs Elliot-Perkins, having returned to her role in a part-time capacity following a period of parental leave, is entitled to the 14% loading.

[11]
As the dispute was not able to be resolved at a conciliation conference, it was referred for arbitration pursuant to s 262(3) of the IR Act and the proposed question to be determined, as agreed between the parties, is:

Where an employee, who is engaged to work a ten (10) day fortnight under clause 6.3 of the City of Gold Coast Certified Agreement (Agreement), requests to return to work after a period of primary carers leave on a part-time basis, do the provisions of clause 9.5.14 of the Agreement entitle the employee to be paid the salary equivalent to their ten (10) day fortnight position on a pro rata basis?

[12]
With the parties’ agreement, I determined to decide the matter on the papers. The parties filed an agreed statement of facts and I directed the filing of written submissions.

Statutory framework

[13]
Section 451 of the IR Act addresses the general powers of the Commission:

451
General powers

(1)
The commission has the power to do all things necessary or convenient to be done for the performance of its functions.

(2)
Without limiting subsection (1), the commission in proceedings may –

(a)
give directions about the hearing of a matter; or

(b)
make a decision it considers appropriate, irrespective of the relief sought by a party; or

Relevant instruments

City of Gold Coast Certified Agreement 2019

[14]
Clause 1.8 of the 2019 Agreement provides:

1
APPLICATION AND OPERATION

…

1.8
Relationship to Modern Awards

1.8.1
This Agreement shall be read and interpreted wholly in conjunction with the Modern Awards, provided that where there is any inconsistency, this Agreement shall prevail.

1.8.2
Further, where this Agreement is silent, the provisions of the relevant Modern Award, shall apply.

[15]
Clause 3 deals with employment types and states:

3
EMPLOYMENT TYPES

…

3.2
Part-time employment

3.2.1
The City acknowledges the importance of work arrangements that assist staff to balance their various work and life responsibilities. Employees may wish to seek flexible or part time work arrangements for a variety of reasons. Part-time work is an option that is currently available to City Employees where operational requirements permit. Within that limitation, the City is committed to providing Employees with access to flexible work options that enhance their work and life balance.

3.2.2
Part-time employment means employment for fewer than the normal weekly ordinary hours specified for a full-time Employee by the relevant Modern Award, and for which entitlements are paid on a pro-rata basis.

…

3.2.4
The ordinary hourly rate of pay for a part-time Employee will be calculated by dividing the annual salary (as specified in this Agreement for the Employee’s classification) by fifty-two (52) and then dividing the result by the normal weekly ordinary hours specified for a full-time Employee by the Modern Award relevant to the part-time Employee’s classification.

[16]
Clause 6 deals with nine-day and ten-day fortnight provisions and relevantly provides:

6
HOURS AND ARRANGEMENT OF WORK

…

6.2
Nine-day fortnight provisions

…

6.2.2
Hours of duty

a.
Except in accordance with clause 6.1, the indicative ordinary hours of duty to be worked by employees working a nine-day fortnight arrangement may be as follows:

8.00am
Commence work

10 minute
Tea break to be taken mid-morning

45 minute
Lunch break taken between noon and 2.00pm

4.40pm
Finish work.

b.
Notwithstanding the above, the ordinary hours of duty for Employees on this arrangement shall be in accordance with the Queensland Local Government Industry (Stream A) Award – State 2017, being an average of 36.25 hours per week or 7.25 hours per day, inclusive between the hours of 6.00am to 6.00pm. This spread of hours is available to ensure flexibility in relation to the start and finish times so that each Branch / Work Unit is able to set the Employees' hours of work to meet their own operational requirements by mutual agreement in writing with the Employee.

c.
The Parties acknowledge that the daily standard ordinary hours (as specified above) include an earlier finish time, in return for forgoing an afternoon tea break of ten (10) minutes. In other words, no afternoon tea break is taken so that the Employee’s finish time can be earlier

6.3
Ten-day Fortnight provisions

6.3.1
The conditions applicable in this clause apply to Employees within the classifications contained in the Queensland Local Government Industry (Stream A) Award – State 2017, and whose position is assessed, as requiring them to be present each working day. For the avoidance of any doubt, the provisions contained within this clause will override any provisions contained within any Local Area Agreement.

6.3.2
Certain positions within the classifications described above, may be required to be present over ten (10) days per fortnight (and therefore not able to enjoy an RDO arrangement) and are employed on a ten (10) day fortnight basis, with an additional loading paid. This arrangement is set out in this clause.

6.3.3
Hours of Duty - Ten Day Fortnight (14 per cent Loading)

a.
Except as otherwise provided for in clause 6.1, the standard hours of work for Employees working under this arrangement shall be an average of 8.06 hours per day, 40.3 hours per week, worked over a ten (10) day fortnight. Employees working under this arrangement are not entitled to a RDO as per the nine (9) day fortnight arrangements.

b.
To ensure the operational requirements of each Branch/Work Unit are met, start and finish times within the spread of hours can be negotiated at the workplace level by mutual agreement. Provided that the continuous hours worked before overtime is paid shall remain at 8.06 hours per day.

6.3.4
Remuneration

It is recognised by the Parties that the standard hours of work under the ten (10) day fortnight arrangement are in excess of the provisions as contained within the relevant Modern Award. Therefore, a premium payment of 14 per cent of the Employee’s base annual salary shall be paid to Employees working under this arrangement. This additional, all-purpose payment will form part of the employee’s base salary and is paid to compensate employees for working a ten (10) day fortnight without a Rostered Day Off.

…

6.3.7
Removal from Ten (10) Day Fortnight Positions

Where a position is classified as a ten (10) day fortnight position in accordance with these arrangements, and subsequently it is determined by management that the position must revert to a nine (9) day fortnight, due to operational or structural requirements, the incumbent Employee will be given three (3) months’ notice before the change is affected.

Clause 1.5 of LAA 2.23 contained in Part 2 of this Agreement will be read as requiring three (3) months’ notice before the change is effected in lieu of the six (6) month period stated.

6.3.8
Hours of duty

a.
Except as otherwise provided for in clause 6.1, the indicative ordinary hours of duty to be worked by employees working a ten-day fortnight arrangement may be as follows:

8.00am
Commence work

10 minute
Tea break to be taken mid-morning

45 minute
Lunch break taken between noon and 2.00pm

4.40pm
Finish work.

b.
The Parties acknowledge that the daily standard ordinary hours (as specified above) include an earlier finish time, in return for the forgoing of an afternoon tea break of ten (10) minutes. In other words, no afternoon tea break is taken so that the finish time can be earlier.

[17]
Clause 9 addresses parental leave and relevantly states:

9
LEAVE

9.5
Parental Leave

9.5.14Returning to work after a period of Primary Carer’s Leave

a.
An Employee will notify of their intention to return to work after a period of Primary Carer’s Leave at least four (4) weeks prior to the expiration of the leave.

b.
An Employee will be entitled to the position which they held immediately before proceeding on Primary Carer Leave. In the case of an Employee transferred to a safe job pursuant to clause 9.5.13, the Employee will be entitled to return to the position they held immediately before such transfer.

c.
Where such position no longer exists but there are other positions available which the Employee is qualified for and is capable of performing, the Employee will be entitled to a position as nearly comparable in status and pay to that of their former position.

d.
An eligible casual resource who is employed by a labour hire company who performs work for a client of the labour hire company will be entitled to the position which they held immediately before proceeding on Primary Carer Leave.

e.
Where such a position is no longer available, but there are other positions available that the Employee is qualified for and is capable of performing, the City shall make all reasonable attempts to return the Employee to a position comparable in status and pay to that of the Employee’s former position.

Principles of interpretation

[18]
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Trading as Australian Manufacturing Workers' Union v Townsville City Council,^[5] I had regard to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited (‘AMWU v Berri’),^[6] and noted that the principles set out in AMWU v Berri have previously been applied by the Commission in the interpretation of an enterprise agreement:

[114]
The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1.
The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i)
the text of the agreement viewed as a whole;

(ii)
the disputed provision's place and arrangement in the agreement;

(iii)
the legislative context under which the agreement was made and in which it operates.

2.
The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3.
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4.
The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5.
The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s. 172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6.
Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7.
In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10.
If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11.
The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12.
Evidence of objective background facts will include:

(i)
evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii)
notorious facts of which knowledge is to be presumed; and

(iii)
evidence of matters in common contemplation and constituting a common assumption.

13.
The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s. 180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14.
Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15.
In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

The Applicant's position

[19]
The Union says that the Senior Coastal Engineer position is a designated ten-day fortnight position pursuant to cl 6.3 of the Agreement and that for the entire time Mrs Elliot-Perkins has worked in the role, it has been a ten-day fortnight position. The Union says that the position is classified at Level 8 and paid at Step 5, which attracts a current annual salary of $137,167.08.

[20]
The Union says that this designation as a ten-day fortnight position sets it aside from the arrangements set out at cl 3.2.2 and 3.2.4 of the Agreement.

[21]
The Union points to cl 6.3 of the Agreement and says that the only way that a position can be re-designated as a nine-day fortnight position is set out at cl 6.3.7.

[22]
The Union says that the Council has taken none of the steps outlined in cl 6.3.7 in relation to Mrs Elliot-Perkins’ position.

[23]
Further, the Union points to cl 9.5.14 of the Agreement which provides that Mrs Elliot-Perkins is entitled to return to the position she held immediately before taking parental leave.

[24]
The Union says that Mrs Elliot-Perkins’ part-time salary is calculated on a pro-rata basis relative to her full-time salary and that the Agreement does not provide for ‘automatic’ reversion to a nine-day fortnight position because an employee is returning to a ten-day fortnight position on a part-time basis.

[25]
The Union says that the Council has not ‘removed’ the ten-day fortnight Senior Coastal Engineer position and Mrs Elliot-Perkins has returned to that role.

[26]
The Union says that Council is now remunerating Mrs Elliot-Perkins at the nine-day fortnight rate of pay because she has returned to her role on a part-time basis following a period of parental leave. As a result, the Union says that Mrs Elliot-Perkins is now performing the same work for approximately $1.50 less per hour primarily because she has sought to return to her role in a part-time capacity post a period of parental leave.

[27]
The Union says it is important to recognise that Council has not followed the process in the Agreement for altering the fixed hours of work and submits that to do so would be unfair and indirectly discriminate against Mrs Elliot-Perkins.^[7]

[28]
The Union concludes that Mrs Elliot-Perkins is entitled to return to the position she held prior to her period of parental leave in a part-time capacity and to be remunerated for her part-time hours of work on a pro-rata basis of the salary attached to that position. The Union says that the conduct of the Council towards Mrs Elliot-Perkins is unfair and unreasonable.

The Respondent's position

[29]
The Council says that Mrs Elliot-Perkins is entitled to be remunerated in accordance with the rates of pay set out in Schedule 2 of the Agreement. The Agreement is to be read in conjunction with the Pre-Modern Award. The Respondent notes that there are two rates of pay for each classification dependent upon whether the employee was engaged by the Respondent to work a nine or ten-day fortnight arrangement.

[30]
The Respondent refutes the Union’s contention at [19] and says that there are differential rates, dependent upon the total number of days the employee is required to attend the workplace, specifically nine or ten days.

[31]
The Council says that the Pre-Modern Award was replaced by the Queensland Local Government Industry Award – State 2014 (the 2014 Award) and subsequently the Queensland Local Government Industry (Stream A) Award – State 2017 (the Stream A Modern Award) during the life of the Gold Coast City Council Certified Agreement 2012 (‘the 2012 Agreement’).

[32]
The Council submits that the underpinning awards applicable during the life of the 2012 Agreement provided for full-time employees to work a maximum of 36.25 ordinary hours each week and for a part-time employee to work less than the normal weekly hours of a full-time employee.

[33]
The Council says that the provisions related to the operation of a ten-day fortnight are contained with the appendices of the 2012 Agreement, specifically at Local Area Agreement 2.23 (the LAA). The Respondent points to cl 1.1 of the 2012 Agreement which provides that the employee is required to work 8.06 hours per day and 40.30 hours each week. Council draws attention to the provision stating that the premium payment of 14% of the employee’s base annual salary which forms part of the base salary is paid to ‘compensate employees for working a ten-day fortnight without a Rostered Day Off’.

[34]
The Council says that there is a clear intention within the provision that the payment of the 14% loading is for a specific purpose, that is, to compensate the employee for not being able to participate in a nine-day fortnight arrangement, needing to be present at the workplace for ten days of each fortnight and having to work additional hours, specifically 4.05 hours each week above and beyond the 36.25 ordinary hours specified within the underpinning award.

[35]
The Council says that the letter of offer provided to Mrs Elliot-Perkins provides that the classification of the role is Level 8 with the rate of pay commensurate with employment on a ten-day fortnight basis and the hours of work designated as 40.30 per week.

[36]
Clause 6.3.1 of the 2019 Agreement provides for the current terms and conditions of employment for an employee engaged in a classification covered by the Stream A Award, specifically Level 8 occupying a position designated as requiring attendance each working day.

[37]
It is the Council’s position that whilst it is not detailed within cl 6.3.1 as to what a ‘working day’ constitutes, consistent with cl 15.1(a) of the Stream A Award, work is to be performed Monday to Friday inclusive. The Council says that reading the Stream A Award in conjunction with cl 6.3.1 of the 2019 Agreement, the reasonable conclusion to draw is that the employee, in order to access the provisions of the ten-day fortnight arrangements, including the payment of the additional 14% loading, would need to attend the workplace each day Monday to Friday in each week within a two-week cycle.

[38]
The Council states for completeness that cl 6.3.1 of the 2019 Agreement provides that the provisions contained within it will override the provisions of any Local Area Agreement. The Council notes that within the 2019 Agreement, there is a separate LAA for the ten-day fortnight arrangements albeit it mirrors in the main the provisions contained within cl 6.3.1.

[39]
The Council states that Mrs Elliot-Perkins returned to work in her nominal role of Senior Coastal Engineer on 18 October 2022 in a part-time capacity working two days each working week and that she has continued to work in a part-time capacity.

[40]
The Council notes that there is not commentary within cl 6.3.1 of the 2019 Agreement in relation to employees being able to work on a part-time basis and access the benefits of the 14% loading. The Respondent submits that the absence of commentary is a consequence of the provisions being designed exclusively for an individual who is working on a full-time basis, attending ten days each fortnight and working ordinary hours in excess of those contemplated by the Stream A Award, being 36.25 hours each week.

[41]
The Respondent points to cl 6.3.4 which it says speaks to the above and makes a specific statement regarding the intention behind the payment of the 14% loading.

[42]
The Council submits that words should be given their ordinary meaning and that the payment is designed to ameliorate the effects upon the employee for having to work ten days within a fortnight period and not be able to access the benefit of having the tenth day off without loss of pay.

[43]
The Council’s position is that Mrs Elliot-Perkins, having regard to the current working arrangement, does not meet the conditions stipulated by cls 6.3.1, 6.3.2 and 6.3.3 of the 2019 Agreement to receive the 14% loading.

[44]
The Council says that the provisions applicable to employees working on a part-time basis with Council are detailed within cl 3.2 of the 2019 Agreement and the provisions contained with the Stream A Award, having regard to the provisions of cl 1.8 of the 2019 Agreement, noting that in the event of an inconsistency, the Agreement prevails.

[45]
The Council says that cl 3.2.2 of the 2019 Agreement provides that part-time employees are engaged to work fewer than the full-time hours stipulated by the relevant Modern Award. Council says that the Stream A Award provides at cl 8.1 that a full-time employee works an average of 36.25 hours each week. In the Respondent’s submission, what flows from this is that a part-time employee would work less than 36.25 hours each week and that Mrs Elliot-Perkins currently works less than 36.25 hours each week.

[46]
The Council says that the proper calculation is to be derived from cl 3.2.4 of the 2019 Agreement which speaks to dividing the annual salary by 52 and then dividing that figure by the ordinary hours of a full-time employee specified by the Stream A Award. The Council says that the relevant full-time ordinary hours are 36.25 per week.

[47]
The Council notes that there are two salary schedules within the 2019 Agreement, one for employees working a nine-day fortnight and one for employees working a ten-day fortnight arrangement. When considering the fact that the 14% loading is provided to an employee in compensation for working additional hours above and beyond 36.25 hours per week, Council says that the most appropriate annual figure to be utilised would be that applicable to an employee who is not working on a ten day per fortnight basis.

[48]
With regard to the Union’s submission at [20] that cl 6.3 is somehow set apart from the provisions in relation to part-time employment contained in the 2019 Agreement, Council says that it is difficult to see how this could practically operate. The Council says that an employee, by nature of the hours they work each week, are either engaged in a full-time or part-time capacity and the relevant provisions of the industrial instruments regulate their terms and conditions of employment, including relevant rates of pay. The Council says that to find otherwise would result in all employees, regardless of their status or hours of work, being entitled to be remunerated at the rate applicable to an individual working ten days per fortnight in circumstances where they might work one day per fortnight. The Council submits that such an outcome does not reflect the terms of or the intent of the ten-day fortnight arrangements within the 2019 Agreement.

[49]
In response to the Union’s submission at [24], the Council says that cl 6.3 is silent in relation to part-time arrangements. The Council says that the terms and conditions for undertaking part-time working arrangements, be that temporary or ongoing, are as detailed in cl 3.2.4 with the normal weekly hours defined by the Stream A Award as 36.25 ordinary hours.

[50]
Regarding the submission of the Union at [26], Council says that Mrs Elliot-Perkins does not meet the criteria stipulated in cl 6.3 of the 2019 Agreement to enliven the 14% loading. Council reiterates that Mrs Elliot-Perkins does not work in excess of 36.25 ordinary hours per week, nor does she attend the workplace for ten out of a possible 14 days within a fortnightly cycle. Council refutes the Union’s assertion that Mrs Elliot-Perkins is now being paid approximately $1.50 less to undertake the same work because she has sought to return to her role in a part-time capacity. Council says that there is a differential in the hourly rates of pay currently paid to an employee engaged at Level 8, Step 5, dependent on the number of days worked with in the fortnight.

[51]
Council says that there has been no evidence led by the Union in support of its assertion that the Council has been unfair or unreasonable in the approach it has taken to interpret the relevant provisions.

[52]
The Council refutes the Union’s assertion that it has ‘altered the fixed hours of work’. The Respondent notes that the hours of work are relevantly provided for at cl 6.2.2 and 6.3.8 of the 2019 Agreement along with cl 8.1 and 15 of the Stream A Award.

[53]
In response to the Union’s submission that Mrs Elliot-Perkins is entitled to return to the position she held prior to her period of parental leave, the Council says that Mrs Elliot-Perkins returned to the workplace on a part-time basis in the role that she performed prior to undertaking a period of leave. Council therefore asserts that the calculation of Mrs Elliot-Perkins’ hourly rate of pay should be in accordance with the part-time provisions, cl 3.2 of the 2019 Agreement.

The Applicant’s submissions in reply

[54]
The Union filed reply submissions on 10 May 2023. The Union submits that ‘there is not much in the respondent’s submissions of relevance to the argument we have advanced’. However, the Union submits that it is clear that cl 6.3.4 of the 2019 Agreement says that some positions are required to be present for ten days per fortnight. The Union says that it follows that if Mrs Elliot-Perkins is not present for ten days per fortnight, the Council must find another employee to work the balance of the days required of the position.

[55]
The Union says that the Council’s submissions have failed to address the proposition advanced by the Union that Council has not initiated the process at cl 6.3.7 of the agreement or given Mrs Elliot-Perkins any notice of its intention to do so.

[56]
The Union says it follows that Mrs Elliot-Perkins is entitled to work a pro-rata ten-day fortnight and to be remunerated at the loaded rate.

Consideration

[57]
This is an arbitration being undertaken on the papers. The parties have not led evidence and I have not been provided with additional extrinsic material. I have therefore considered the arguments of the parties with regard to the operation of the relevant provisions and why they say the answer to the question for arbitration is ‘yes’ or ‘no’.

[58]
The entitlement Mrs Elliot-Perkins has under cl 9.5.14 is to return to the position she held immediately before taking the leave. This position is that of Senior Coastal Engineer. It follows that Mrs Elliot-Perkins would be entitled to return to that role at the relevant classification, being Level 8. The relevant tables at Schedule 2 calculate the pay rate for the classification for the nine-day fortnight or the ten-day fortnight.

[59]
The controversy that has arisen in this situation is that Mrs Elliot-Perkins, at the time she commenced leave, was working a ten-day fortnight basis and was therefore being remunerated as such. Clause 6.3 of the Agreement provides a 14% loading in recognition of the requirement to be present over ten days per fortnight and therefore not able to enjoy a rostered day off (‘RDO’) arrangement:

… This additional, all purpose payment will form part of the employee’s base salary and is paid to compensate employees for working a ten (10) day fortnight without a Rostered Day Off.

[60]
Essentially, the Council argues that upon her return in a part-time capacity, Mrs Elliot-Perkins was no longer working a ten-day fortnight and therefore had no entitlement to the 14% loading and should be paid on a pro-rata basis at what I would refer to as the ‘default’ nine-day fortnight rate of pay. Clearly at this stage, Mrs Elliot-Perkins is also not working a nine-day fortnight or availing herself of an RDO arrangement. She is working a four-day fortnight under a part-time work arrangement.

[61]
There is no indication that Mrs Elliot-Perkins’ position has been removed or ‘re-designated’ from the ten-day fortnight requirement. That is, if Mrs Elliot-Perkins were to return to full-time employment, it appears that she would be required to work the ten-day fortnight. The Agreement contains a specific clause about removal from the ten-day fortnight provision. I understand the Union’s argument that the Council has not sought to implement the process associated with cl 6.3.7, however I am not persuaded it was required to do so other than in the event it no longer deemed the role to be one requiring presence in the workplace over ten days when being undertaken by someone in a full-time capacity. That does not appear to be the case here.

[62]
I disagree with the Union’s submission that the ‘designation’ of Mrs Elliot-Perkins’ role as a ten-day fortnight position somehow sets it aside from the clauses regarding part-time employment. The Agreement is silent as to how the part-time arrangement might work specifically for a person substantively employed on a ten-day fortnight and there is no clause setting such an arrangement aside from the approach set out at cl 3. Clause 3 regarding part-time employees does clearly stipulate that ‘the ordinary hourly rate of pay for a part-time Employee will be calculated by dividing the annual salary (as specified in this agreement for the Employee’s classification) by fifty-two (52) and then dividing the result by the normal weekly ordinary hours specified for a full-time Employee by the Modern Award relevant to the part-time Employee’s classification.’ I also find that the Respondent has not undertaken an ‘automatic reversion’ to the nine-day fortnight. Rather, I find that the circumstances of Mrs Elliot-Perkins’ employment mean that cl 6.3 currently does not apply to her.

[63]
If one were to simply apply cl 3 to Mrs Elliot-Perkins’ situation, the hours that would apply to her classification would be those set out in the Award, being 36.25 hours per week.

[64]
I completely understand the Union’s position that Mrs Elliot-Perkins was employed under the ten-day fortnight provisions prior to taking leave and that this pay rate should continue upon returning from leave to part-time work. It seems unfair that Mrs Elliot-Perkins’ rate of pay should be lower upon her return because she is working on a part-time basis. A situation such as this no doubt contributes to the gender pay gap and appears to penalise those working on a ten-day fortnight upon returning to work part-time after a period of parental leave. However, the task of interpreting the Agreement does not enable me to ‘rewrite the agreement to achieve what might be regarded as a fair and just outcome’.^[8] I find that the most likely reason there is no reference to cl 6.3 in cl 3 is that cl 6.3 refers only to a scenario where one is working full-time for ten days per fortnight and that the drafters of the Agreement did not envisage compensating a part-time employee for being unable to access an RDO.

[65]
While an overly technical approach should be avoided in interpreting an agreement, it seems clear to me that on an ordinary reading of the relevant words^[9] in clause 6.3.4, the payment is for those ‘working a ten (10) day fortnight without a Rostered Day Off’. According to cl 9.5.14 it is the position Mrs Elliot-Perkins has an entitlement to return to rather than the additional compensation payment set out in cl 6.3 and which led to the increased pay level Mrs Elliot-Perkins was receiving when working full-time prior to her parental leave. While she is working on a part-time basis of two days per week or four days per fortnight, Mrs Elliot-Perkins is not working in an arrangement that triggers access to the cl 6.3 payment compensating workers undertaking a ten-day fortnight.

[66]
I accept the Union’s reply submission that it follows that if Mrs Elliot-Perkins is not present for ten days per fortnight, the Council must find another employee to work the balance of the days required by her position may be true. However, any person taking up either all, or a portion of, Mrs Elliot-Perkins’ role would similarly not be working a ten-day fortnight and also would not be eligible for the ten-day fortnight rate of pay.

[67]
I find that Mrs Elliot-Perkins’ entitlement under the provisions of cl 9.5.14 does not entitle her to be paid the salary equivalent to her ten-day fortnight position on a pro-rata basis as I find that the arrangement at cl 6.3 applies in circumstances where an employee is working a ten-day fortnight. I do not find that the Respondent is remunerating her at the nine-day rate because she has sought to return to her role on a part-time basis, rather she is being remunerated at nine-day rate because she is not currently eligible to the compensation which cl 6.3 provides.

[68]
If and when Mrs Elliot-Perkins recommences work in the position on a ten-day fortnight basis, this will trigger the payment of the 14% loading.

[69]
To conclude, the question for arbitration was:

Where an employee, who is engaged to work a ten (10) day fortnight under clause 6.3 of the City of Gold Coast Certified Agreement (Agreement), requests to return to work after a period of primary carers leave on a part-time basis, do the provisions of clause 9.5.14 of the Agreement entitle the employee to be paid the salary equivalent to their ten (10) day fortnight position on a pro rata basis?

[70]
For the foregoing reasons, the answer to the question for arbitration is: No.

Order

[71]
I make the following order:

In answer to the question for arbitration, namely: Where an employee, who is engaged to work a ten (10) day fortnight under clause 6.3 of the City of Gold Coast Certified Agreement 2019 (Agreement), requests to return to work after a period of primary carers leave on a part-time basis, do the provisions of clause 9.5.14 of the Agreement entitle the employee to be paid the salary equivalent to their ten (10) day fortnight position on a pro rata basis?

The answer is: No.

Footnotes

[1] I have been assisted by the provision of a Statement of Agreed Facts. This background is taken from that statement.

[2] Statement of Agreed Facts filed 17 March 2023, Attachment 1: Letter from Ms Deb Blyth, Coordinator Operational Effectiveness, for the Chief Executive Officer, Council of the City of Gold Coast to Mrs Zoe Elliot-Perkins dated 21 April 2016.

[3] [2019] QIRC 153.

[4] Statement of Agreed Facts filed 17 March 2023, [16].

[5] [2021] QIRC 063.

[6] [2017] FWCFB 3005 (‘AMWU v Berri’).

[7] Escobar v Rainbow Painting P/L No.2 [2002] FMCA 122, [37]; Edwards v Hillier & Educang Ltd t/as Forest Lake College [2006] QADT 34, [95].

[8] AMWU v Berri (n 6).

[9] Ibid [144].

Editorial Notes

Published Case Name:
Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast
Shortened Case Name:
Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast
MNC:
[2023] QIRC 181
Court:
QIRC
Judge(s):
Pidgeon IC
Date:
15 Jun 2023

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
AMWU v Berri Pty Ltd	View on:JADE[2017] FWCFB 3005	3 citations Jump To Cite 1 - [2017] FWCFB 3005 Cite 2 - [2017] FWCFB 3005 Cite 3 - [2017] FWCFB 3005
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Trading as Australian Manufacturing Workers' Union v Townsville City Council	[2021] QIRC 63	2 citations Jump To Cite 1 - [2021] QIRC 63 Cite 2 - [2021] QIRC 63
Edwards v Hillier & Educang Limited t/a Forest Lake College	[2006] QADT 34	2 citations Jump To Cite 1 - [2006] QADT 34 Cite 2 - [2006] QADT 34
Escobar v Rainbow Printing Pty Ltd (No.2)	View on:JADE[2002] FMCA 122	2 citations Jump To Cite 1 - [2002] FMCA 122 Cite 2 - [2002] FMCA 122
In the making of the City of Gold Coast Certified Agreement 2019	[2019] QIRC 153	1 citation Jump To Cite 1 - [2019] QIRC 153

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Queensland Services, Industrial Union of Employees v Council of The City of Gold Coast	[2024] ICQ 6	4 citations
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees	[2024] QIRC 289	2 citations

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Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2023] QIRC 181