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Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2024] QIRC 43

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2024] QIRC 43

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2024] QIRC 043

PARTIES:

Queensland Services, Industrial Union of Employees

(Applicant)

v

Council of the City of Gold Coast

(Respondent)

CASE NO:

D/2023/73

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

16 February 2024

MEMBER:

HEARD AT:

Hartigan DP

On the papers

ORDER:

  As to the questions for arbitration:

  1. Does the Local Area Agreement [Gold Coast Water 24 Hour Service Centre], contained at Appendix 1.21 of the City of Gold Coast Certified Agreement 2019 apply to all employees of the City of Gold Coast Council who are employed within the classifications described within Division 2, Section 1, Schedule 1 of the Queensland Local Government Industry (Stream A) Award – State 2017, who work a 24 hour, 7 days a week roster cycle within the Gold Coast Water 24 Hour Operations Centre? ('Question 1')

The answer to Question 1 is: 'Yes.'

  1. Or, in the alternative, is the coverage of the Local Area Agreement limited by the salary packaging table detailed at clause 2.2 of Appendix 1.21 of the City of Gold Coast Certified Agreement 2019? ('Question 2')

The answer to Question 2 is: 'No.'

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – AWARDS –  notification of industrial dispute – dispute in relation to the application of the City of Gold Coast Certified Agreement 2019 – Conciliation unsuccessful – Referred to arbitration

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 261

City of Gold Coast Certified Agreement 2019

Gold Coast City Council Certified Agreement 2012

Gold Coast City Council Certified Agreement 2009

CASES:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285;

Australia Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFC 7474.

Reasons for Decision

  1. [1]
    The Queensland Services, Industrial Union of Employees ('the Applicant') filed a Notice of Industrial Dispute on 25 July 2023 regarding the application of a Local Area Agreement contained in the City of Gold Coast Certified Agreement 2019 ('the Agreement'). The subject matter of the dispute was set out in the Notice of Industrial Dispute as follows:
  1. The terms and conditions of employment for employees of the City of Gold Coast are provided in the Queensland Local Government Industry (Stream A) State 2017 ("the Award") and the City of Gold Coast Certified Agreement 2019 ("the Agreement").
  2. Appendix 1.21 Gold Coast Water 24 Hour Service Centre of the Agreement applies to all employees whose classifications are provided within the Award who work a 24 hour, 7 days a weeks roster in the Gold Coast Water 24 Hour Operations Centre.
  3. Council contends that the Appendix only applies to employees engaged at classification level 3.
  4. Council is seeking to reclassify existing level 3 positions to level 4 (through an Expression of [sic] Inereset process) and recruit new level 5 positions. Council has stated that the Appendix will not apply to the new classifications and positions despite the positions being required to work a 24 hour, 7 days a weeks roster in the Gold Coast Water 24 Hour Operations Centre.
  5. Council has previously committed to not proceeding with the recruitment of these positions whilst this matter is in dispute however, Council has advised that they now intend to proceed with the recruitment of these positions.
  1. [2]
    From the above, it is apparent that the dispute relates to the correct application of a Local Area Agreement, contained in Appendix 1.21 of the Agreement, to classifications other than Level 3 positions. The dispute was unable to be resolved by conciliation and was subsequently referred for arbitration. The parties jointly submitted that the arbitration proceed on the papers.
  1. [3]
    The parties agreed that the question for arbitration in this matter is as follows:

Does the Local Area Agreement [Gold Coast Water 24 Hour Service Centre], contained at Appendix 1.21 of the City of Gold Coast Certified Agreement 2019 apply to all employees of the City of Gold Coast Council who are employed within the classifications described within Division 2, Section 1, Schedule 1 of the Queensland Local Government Industry (Stream A) Award - State 2017, who work a 24 hour, 7 days a week roster cycle within the Gold Coast Water 24 Hour Operations Centre? Or is the coverage of the LAA limited by the salary packaging table detailed at clause 2.2 of Appendix 1.21?[1]

  1. [4]
    The Applicant brings the dispute on behalf of its members who are employed by the Gold Coast City Council ('the Council') working as Operation Centre Officers within the Gold Coast Water 24 Hour Operations Centre ('the Operations Centre').

Relevant background

  1. [5]
    The parties agree[2] that the following facts are relevant to my consideration of the dispute:

…

  1. The terms and conditions of employment for Operations Centre Officers are currently governed by the City of Gold Coast Certified Agreement 2019 [2019] QIRC 153 (“the 2019 Agreement”). As per clause 1.8 of the 2019 Agreement, the 2019 Agreement is to be read in conjunction with the Relevant Modern Award, which is the Queensland Local Government Industry (Stream A) Award – State 2017 (“the Stream A Modern Award”).
  2. Within the 2019 Agreement there is a specific Local Area Agreement for the Gold Coast Water 24 Hour Operations Centre which is contained within Appendix 1.21 to the 2019 Agreement.
  3. Appendix 1.21 of the 2019 Agreement provides – “The conditions under this Appendix apply to all employees of Gold Coast Water within the classifications described within the LGOA, who work a 24 hour, 7 days a week roster in the Gold Coast Water 24 hour Service Centre”.
  4. Clause 2.2 Salary Package of Appendix 1.21 outlines the salary packaging arrangements including a table setting out the salary package rates of pay.  
  5. A mechanism for pay rises is provided within clause 2.2 of Appendix 1.21 which states – “The salary package will be adjusted in line with the pay rises indicated in Part 1 of this Agreement”. 
  6. Following the nominal expiry date of the 2019 Agreement in 2022, the Respondent provided an updated wages schedule [Attachment 1] detailing the rates of pay applicable to all classifications contained within the 2019 Agreement.
  1. [6]
    The Applicant provided additional information with respect to changes that had been made to the rates of pay as follows:
  1. This provision has remained substantively the same, with the only change being a change to the rates of pay listed in Table 1. The change to the rates of pay was made in Appendix 2.21 of the Gold Coast City Council Certified Agreement 2012. A copy is attached and marked “QSU2”. The rates of pay were not varied in the 2019 Agreement.
  2. Following the nominal expiry date of the 2019 Agreement in 2022, the Respondent provided an updated wages schedule “QSU3” detailing the rates of pay applicable to all classifications contained within the 2019 Agreement.
  3. The salary package is calculated using the rates of pay as provided in the updated wages schedule.
  4. The Applicant submits that the salary packaging table detailed at clause 2.2 of Appendix 1.21 does not restrict or exclude the application of the Appendix to classifications other than Level 3.
  5. The rates of pay are reflective of the industrial context at the time and the salary packaging table identifies that the rate of pay is dependent on the classification of the employee.
  6. When the Appendix was first negotiated Council employed all employees within the Operations Centre at the same level. The issue in dispute has only arisen as the Respondent has recently sought to engage employees in classifications other than Level 3.  
  1. [7]
    The Applicant contends that the "salary packaging table" ('Table 1') detailed in cl 2.2 of Appendix 1.21 does not restrict or exclude the application of Appendix 1.21 to employees employed at classifications other than Level 3.
  1. [8]
    However, the Council contends that cl 2.2 of Appendix 1.21 is prescriptive in its application to Level 3 employees only. In doing so, the Council relied on Table 1 which only refers to the salary of employees classified at Level 3.
  1. [9]
    Neither party called any evidence in respect of their positions and they each sought to rely on the facts contained in the Statement of Agreed Facts.

Approach to interpretating a Certified Agreement

  1. [10]
    In Australia Meat Industry Employees Union v Golden Cockerel Pty Ltd[3] the Full Bench of the Fair Work Commission relevantly summarised the principles relevant to the task of construing an enterprise agreement. The Golden Cockerel principles have subsequently been modified by a different full bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[4] as follows:

[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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
  8. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
  9. 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.
  10. 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.
  11. 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.

  1. 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.
  2. 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.
  3. 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.
  1. [11]
    It is noted that some of the principles refer to provisions of the Fair Work Act 2009 (Cth). I do not consider that those references erode the general application of the principles in this jurisdiction.

Relevant provisions of the Agreement

  1. [12]
    The Agreement applies to the Council and its employees whose classifications are specified within the Agreement.[5] Clause 1.8 of the Agreement provides that the Agreement is to be read and interpreted wholly in conjunction with the relevant Modern Awards, provided that where there is an inconsistency the Agreement shall prevail. The parties agree that the relevant Modern Awards in the context of this arbitration is the Queensland Local Government Industry (Stream A) Award – State 2017 ('the Stream A Award').[6]
  1. [13]
    The Agreement contains an appendix[7] attaching a number of Local Area Agreements. Clause 1.1 of the Agreement defines a Local Area Agreement as:

… an Agreement based on the needs of a specific work area within the City which may vary the conditions of employment, however, when viewed as a whole the Employee/s will not on balance be disadvantaged when employed under the terms of a Local Area Agreement in comparison to this Agreement and the Modern Award.

  1. [14]
    Clause 10.4 of the Agreement provides the manner in which Local Area Agreements operate as follows:
  1. 10.4.1 10.4.1 Local Area Agreements (LAA’s) are agreements reached between the relevant Unions, employees and the City to address specific issues relating to a group or category of employees. The current LAA’s applicable in the City are contained in the Appendix to this Agreement.
  1. 10.4.2  During the life of this agreement, the parties commit to review all current LAA’S contained in the Appendix to this Agreement with a view to:

-removing redundant clauses and duplicate provisions;

-ensuring each LAA is reflective of operational requirements; and

-ensuring each LAA is delivering for employees, the city and the community.

  1. 10.4.3 Any changes to current LAA’s under this sub clause will be implemented upon the agreement of the City and the relevant unions. Agreement to changes proposed which meet the criteria listed above will not be unreasonable withheld.
  1. 10.4.4 The aim of the LAA is to allow sufficient flexibility for those specific sections of the workforce so that the City can provide cost effective and competitive services. LAA’S are not intended to supplant or in any way derogate from the minimum work conditions set out in this Agreement. The Parties recognise that a LAA may vary the conditions of employment; however, when viewed as a whole the employee must not be on-balance in an inferior position in terms of conditions than they would be under the terms of this Agreement or the relevant Modern Award.
  1. 10.4.5 Where any relevant party proposes the implementation of a new LAA, or a change to an existing LAA, then the following process and steps for the development and negotiation of the LAA are to be followed.

1. If the Parties agree that a new LAA is required or an existing LAA be changed, consultation with the relevant union will occur in regard to the process and content of such agreements.

2. Development of the new LAA or a change to an existing LAA will involve the City, employees to be proposed to be covered by the proposed LAA a and relevant union/s.

3. Where either party proposes a new LAA or a change to an existing LAA the majority (67per cent) of employees proposed to be covered by the introduction or change to a LAA must agree to a new LAA or a change to an existing LAA.

4. The LAA will be in writing and will be subject to the agreement between the City and the relevant union(s), and signed by the city and branch/state secretary of the relevant union(s).

5. The scope of areas covered by the LAA may include all or part of the unit, section or team members as determined by the parties, but a LAA shall not be made in respect solely of an individual employee.

6. The content of the LAA may be extensive and will examine all areas of employment conditions which may be considered relevant to the improved and continuous efficiency and effectiveness of the workplace.

7. Where local initiatives have implications for other unit/s, employee representatives from the City’s management will be invited to participate in the discussions. Where local initiatives seek to alter the relevant Modern Award or this Agreement, the LAA will specify the clauses of the relevant Modern Award and/or this Agreement to be overridden as a consequence of the operation of the LAA. The LAA will specify which Modern Award or Agreement clause is replaced and articulate how the employee is not worse off.

8. The establishment of LAA’s:

A) is not to result in a diminution in customer or client service;

B) should constitute value for money;

C) will be the subject of both a business case and cost benefit analysis prior to approval by the chief executive officer.

Any dispute relating to a proposed LAA or the operation of an existing LAA will be managed in accordance with the dispute resolution procedure.

  1. [15]
    Appendix 1.21 of the Agreement includes a Local Area Agreement for the Gold Coast Water 24 Hour Operations Centre. Relevantly, the terms of Appendix 1.21 are as follows:

APPENDIX 1.21

The conditions under this Appendix apply to all employees of Gold Coast Water within the classifications described within the LGOA, who work a 24 hour, 7 days a week roster in the Gold Coast Water 24 hour Service Centre. ['the application provision'].

  1. 1.3PARTICIPATION

The Appendix is based on encouraging a team approach to effectively and efficiently providing a 24 Hour Service Centre to Gold Coast Water. Therefore staff are expected to participate fully with the aim of increasing the knowledge and skills of staff and of enhancing GCW's ability to provide excellent quality water services to the community.

  1. 1.5DEFINITIONS

“24 hour service centre officer” means an employee who is required by Council to work in the Gold CoastWater 24 Hour Service Centre and subject to this Appendix.

"Planned Leave" means all leave that can be scheduled in advance. Which includes but is not limited to annual leave and long service leave.

  1. 2.2SALARY PACKAGE

The salary package will be as per table 1, which will be averaged out weekly over the year. The salary package will be adjusted in line the pay rises indicated in Part 1 of this Agreement. This salary package will be recognised as the employee’s salary for all purposes, including superannuation contributions.

All existing employees will move to the Annual Salary rate of Level 3 Step 4 with effect from 1 July 2009:

Table 1: Salary Package[8]

Classification*

Annual Salary with effect from 1 July 2009

Level 3 Step 1

$75,764.61

Level 3 Step 2

$77,501.36

Level 3 Step 3

$79,289.20

Level 3 Step 4

$81,128.12

*depending on classification

  1. 2.3SALARY PACKAGE COVERAGE

Employees covered by this Appendix are exempt from the following provisions contained in the LGOA and Part 1 of this Agreement, and are compensated for within the agreed salary package:

• Clause 12.3 (Meal allowance);

• Clause 14.2 (Ordinary working hours);

• Clause 14.3 (Rosters);

• Clause 14.4 (Overtime);

• Clause 14.5 (Shift premiums);

• Clause 14.7 (Weekend and public holiday penalty rates);

• Clause 14.9 (Holiday falling on rostered day off); and

• Clause 14.10 (Travel arrangements).

All employees covered by this Appendix shall be deemed to be shift workers and not subject to 9 Day Fortnight provisions contained in Part 1 of this Agreement or LGEAS.

Public holidays are to be worked as a normal day with the understanding that over a period of time all employees will work an equitable share of public holidays. The agreed salary package also recognises flexibility of working arrangements and the taking of calls while not on duty. There will be no overlapping of Annual Leave by 24 Hour Service Centre Officers except where Long Service Leave in excess of four weeks has been approved or where emergency leave is approved.

…

  1. [16]
    Appendix 1.21 of the Agreement also covers other conditions of employment including leave, planned leave, roster and sick leave.[9] It is unnecessary, for the purpose of this determination, to consider those provisions in any further detail.

 The Parties' Submissions

  1. [17]
    The Applicant submits that the ordinary meaning of the words in Appendix 1.21 are "inclusive and have the effect of applying to all employees" who work a 24 hour, 7 days a week roster in the Operations Centre. In these circumstances, the Applicant submits that there is no need to refer to external material as the application of Appendix 1.21 is "clear".  
  2. [18]
    The Applicant submits that Table 1 contained within cl 2.2 of Appendix 1.21 does not "restrict or exclude" classification levels other than Level 3 as follows:

When the Appendix was first negotiated Council employed all employees within the Operations Centre at the same level. The issue in dispute has only arisen as the Respondent has recently sought to engage employees in classifications other than Level 3.

As there has been no need to engage employees outside of the Level 3 classification previously, the Respondent has been misguided in determining that the Appendix is limited to Level 3 classifications.

  1. [19]
    The Council contends that an employee must meet the following number of preconditions in order to be covered by the Local Area Agreement:[10]
  1. a.
    That they are engaged within “Gold Coast Water”;
  1. b.
    That they are engaged within “classifications described within the LGOA”;
  1. c.
    [that they] be, in the discharge of their duties, cycling through all 24 hours within a day and working across all of the 7 days that fall within a week, albeit on a rotating basis, “who work a 24 hour, 7 days a week roster”; and
  1. d.
    [that they are] working in “the Gold Coast Water 24 hour Service Centre”.
  1. [20]
    The Council submits that Level 3 employees working within the Operations Centre satisfy the preconditions listed above. The Council further submits that regard should be given to cl 1.2 of the Agreement which cites the current Modern Awards applicable to the operations of the Council.
  1. [21]
    The Council refutes the Applicant's assertion that cl 2.2 of Appendix 1.21 does not restrict or exclude the application of the Appendix to classifications other than Level 3. In support of its position, the Council contends that previous iterations of Appendix 1.21, in particular the Appendix table listed within the 2009[11], 2012[12] and 2019 Agreements, only refer to the Level 3 classification.
  1. [22]
    The Council makes further submissions with respect to the history of Appendix 1.21 as follows:

The Respondent notes that the 2009 Agreement is the first iteration that makes reference to the issue of progression based on longevity, which is a significant change from the 2006 Agreement which simply provides a single salary package of $63,431.42 to be paid to a “24 hour service centre officer” and makes specific reference to the following:

“The salary package does not allow for further salary increments due to “years of service””.

In addition, the 2006 Agreement makes reference to the Local Area Agreement applying to the classifications, that are contained within the 2006 Agreement at sub-part 2.1 [Pages 78 – 153]. For completeness the 2006 Agreement defines each of the eight levels within the Administrative Stream.

(citations omitted).  

  1. [23]
    The Council submits that it follows that there was a "clear intention", dating back to the 2006 Agreement, that a single rate of remuneration would apply to Operations Centre Officers. The Council submits that whilst later iterations of the Agreement in 2009, 2012 and 2019 specify the relevant classification, a reasonable inference can be drawn that Appendix 1.21 was intended only to cover workers classified as a Level 3 in accordance with the Agreement.
  1. [24]
    Further, the Council submits that if it were intended for Appendix 1.21 to cover positions other than a Level 3, the negotiating parties to the 2009, 2012 and 2019 Agreement could have "quite simply removed reference to the Level 3 pay scale" listed in the relevant Appendix. The Council notes that specific reference has been made to Level 3 positions in the Local Area Agreement and therefore an inference can be drawn that the Local Area Agreement applies only to a "discreet and specific cohort". The Council submits that this interpretation is consistent with cl 10.4.1 of the Agreement which is set out in the following terms:[13]

Local Area Agreements (LAA’s) are agreements reached between the relevant Unions, employees and the City to address specific issues relating to a group or category of employees. The current LAA’s applicable in the City are contained in the Appendix to this Agreement.

  1. [25]
    In determining the question for arbitration, the Council submits that the Commission should have regard to the Local Area Agreements operating under the Water and Waste Directorate (as it was previously known) in the Agreement. The Council refers to Appendices 1.18, 1.19 and 1.22 of the Agreement, which specify multiple classifications and levels that apply to workers engaged in these areas. The Council refers to these other Local Area Agreements to support their contention that if Appendix 1.21 were intended to apply to classifications other than Level 3, it would have been included, as was the case in Appendices 1.18, 1.19 and 1.22 of the Agreement.
  1. [26]
    The Council refutes the Applicant's assertion that when Appendix 1.21 was first negotiated, the Council employed all workers within the Operations Centre at a Level 3 and contends that there is no evidence to support the Applicant's position with respect to this. The Council further refutes the Applicant's contention that the Council has been "misguided in determining that the Appendix is limited to Level 3 classifications".
  1. [27]
    In its reply submissions the Applicant submits that the Respondent's contention that the parties to the Agreement intended for the Appendix to only apply to a Level 3 classification is "without substance". In support of its position, the Applicant makes reference to Appendix 3.24 in the 2006 Agreement and submits that this provision does not limit its application to a specific classification level.
  1. [28]
    Further, the Applicants submits that there is "no basis" to support the Respondent's position that other Local Area Agreements should be considered in the current matter. The Applicant submits that it is "unnecessary" to rely on extrinsic material when interpreting the Appendix.

Consideration

Question 1: Does the Local Area Agreement [Gold Coast Water 24 Hour Service Centre], contained at Appendix 1.21 of the City of Gold Coast Certified Agreement 2019 apply to all employees of the City of Gold Coast Council who are employed within the classifications described within Division 2, Section 1, Schedule 1 of the Queensland Local Government Industry (Stream A) Award – State 2017, who work a 24 hour, 7 days a week roster cycle within the Gold Coast Water 24 Hour Operations Centre?

  1. [29]
    As noted above, the definition of a Local Area Agreement provides, in part, that it is an agreement based on the needs of a specific work area within the Council which may, inter alia, vary the conditions of employment. Accordingly, Appendix 1.21 is a Local Area Agreement based on the needs of a specific work area being the Gold Coast Water 24 hour Service Centre.
  1. [30]
    The application provision of Appendix 1.21 states that the conditions contained within it apply to all employees of Gold Coast Water within the classification described within the LGOA, who work a 24 hour 7 days a week roster in the Gold Coast Water 24 hour Service Centre.
  1. [31]
    The reference to the "LGOA" in the application is a reference to the former Local Government Officers' Award. The reference to LGOA reflects either that Appendix 1.21 has not been reviewed since the LGOA ceased operating, or, alternatively, if it has been reviewed, the reference to LGOA has been overlooked.
  1. [32]
    The Respondent submits that the reference to "LGOA" should be interpreted to be a reference to "the Relevant Modern Award".
  1. [33]
    I consider such an approach is consistent with the provision, in the context of reading the Agreement as a whole and in particular, in the context of clause 1.8 of the Agreement. It also has regard to the industrial context in which the Agreement was certified. Notably, at the time of classification, the LGOA had long been replaced by the relevant Modern Awards. Consistent with this, the classification levels referred to throughout the Agreement are the classification levels included in the Modern Awards.
  1. [34]
    It follows that, the application provision provides that Appendix 1.21 applies to all employees who:
  1. are employees of Gold Coast Water;
  2. who are employed in a classification described in the relevant Modern Award being the Stream A Award; and
  3. who work a 24 hour, 7 day a week roster in the Gold Coast Water 24 Hour Service Centre.
  1. [35]
    Accordingly, if an employee meets the conditions referred to in sub-paragraph (a) to (c) above, the Local Area Agreement contained in Appendix 1.21 will apply to them. The application provision does not limit, by its terms, the application of Appendix 1.21 to employees who are employed in classification Level 3 only. Rather, the ordinary words used in the application provision with respect to the classification of an employee, is an employee employed in a classification described, relevantly, in the Stream A Award. 
  1. [36]
    The Council argues that the ordinary meaning of the words in the application provision are limited by cl 2.2 of the Local Area Agreement.
  1. [37]
    Clause 2.2 of the Local Area Agreement commences in the following terms:

The salary package will be as per table 1, which will be averaged out weekly over the year. The salary package will be adjusted in line the pay rises indicated in Part 1 of this Agreement. This salary package will be recognised as the employee’s salary for all purposes, including superannuation contributions. …

  1. [38]
    The language used in the above extract of cl 2.2 is generally consistent with the application provision and does not limit its operation only to employees employed in classification Level 3.
  1. [39]
    However, Table 1 contained in cl 2.2 only provides the salary package for employees employed in a classification of Level 3. Table 1, which is relied on by the Council in support of its position, is as follows:

All existing employees will move to the Annual Salary rate of Level 3 Step 4 with effect from 1 July 2009:

Table 1: Salary Package

Classification*

Annual Salary with effect from 1 July 2009

Level 3 Step 1

$75,764.61

Level 3 Step 2

$77,501.36

Level 3 Step 3

$79,289.20

Level 3 Step 4

$81,128.12

*Depending on classification

  1. [40]
    The salary rates referred to in Table 1 only refer to salaries for classification Level 3 employees.
  1. [41]
    The asterix symbol which appears after "classification" identifies "classification" as meaning "depending on classification". This does not significantly assist in the determination of the dispute.
  1. [42]
    The effect of Table 1 in cl 2.2 of Appendix 1.21 is that, currently, the Local Area Agreement in Appendix 1.21 only provides a salary package for classification Level 3 employees.
  1. [43]
    However, the terms of cl 2.2 do not operate to limit the terms of the application provision. All that cl 2.2 does is specify the salary package for employees employed within the Level 3 classification.
  1. [44]
    The Applicant contends that the Council has historically employed all employees in the Gold Coast Water 24 Hour Service Centre at classification Level 3. It is only because the Council now wishes to engage employees at classification Levels 4 and 5 that the issue has arisen.
  1. [45]
    I consider that cl 2.2 reflects what has, up until now, been the operational requirements of the Council by providing a salary package for the classification level of the employees engaged in that work area.
  1. [46]
    The Council points to other Local Area Agreements within the Agreement that refer to a range of classifications and subsequent remuneration that applies. I consider that the references do no more than identify the operational requirements of those work areas which includes a requirement to engage employees employed in a range of classifications.
  1. [47]
    Regard has also been had to the Agreement as a whole, including cl 10.4.2 which provides, inter alia, that during the life of the Agreement the parties commit to review all current Local Area Agreements contained in the appendix to this Agreement with a view to ensuring each Local Area Agreement is reflective of operational requirements.
  1. [48]
    Accordingly, if an operational change is made to a specific work area covered by a Local Area Agreement, cl 10.4.2 provides a mechanism for the parties to review operational requirements. In this regard, the Agreement contemplates that operational change may be made to a specific work area which is reflected in the Local Area Agreement.
  1. [49]
    The Applicant submits that the fact that Table 1 only refers to the salary range of classification Level 3 employees can be explained by the fact that at the time Appendix 1.21 came into force, the Council only employed employees in the Level 3 classification at the Gold Coast Water 24 hour Service Centre.
  1. [50]
    It is clear that it is now the intention of Council to make operational changes to employ employees at classification Levels 4 and 5.
  1. [51]
    As noted above, the purpose of the Local Area Agreement is to vary the conditions of employment for a specific work area. The relevant work area with respect to Appendix 1.21 is the Gold Coast Water 24 hour Service Centre. The purpose of Appendix 1.21 is to vary the conditions of employment to all employees of Gold Coast Water who:
  1. are employed within the classifications described within the Stream A Award;
  2. work a 24 hour, 7 days a week roster; and
  3. work in the Gold Coast Water 24 hour Service Centre.
  1. [52]
    On that basis, I consider that the Local Area Agreement contained in Appendix 1.21 applies to all employees who fit the criteria outlined in the application provision. I do not consider that Table 1 contained in cl 2.2. of Appendix 1.21 operates to restrict the application provision.
  1. [53]
    Clause 2.2. does no more than provide for the salary package of those employees who have been historically covered by the Local Area Agreement. If the Council intends to employ employees at other classification levels, Appendix 1.21 will apply to them if they are employees of Gold Coast Water who:
  1. are within the classifications described within the Stream A Award;
  2. work a 24 hour, 7 days a week roster; and
  3. work in the Gold Coast Water 24 hour Service Centre.
  1. [54]
    Accordingly, the answer to the first question for arbitration is: "Yes". 

Question 2: In the alternative, is the coverage of the Local Area Agreement limited by the salary packaging table detailed at clause 2.2 of Appendix 1.21 of the City of Gold Coast Certified Agreement 2019?

  1. [55]
    For the reasons referred to above, the answer to Question 2 is: "No".

Order

  1. [56]
    I make the following Order:

As to the questions for arbitration:

  1. Does the Local Area Agreement [Gold Coast Water 24 Hour Service Centre], contained at Appendix 1.21 of the City of Gold Coast Certified Agreement 2019 apply to all employees of the City of Gold Coast Council who are employed within the classifications described within Division 2, Section 1, Schedule 1 of the Queensland Local Government Industry (Stream A) Award – State 2017, who work a 24 hour, 7 days a week roster cycle within the Gold Coast Water 24 Hour Operations Centre? ('Question 1')

The answer is: 'Yes.'

  1. Or, in the alternative, is the coverage of the Local Area Agreement limited by the salary packaging table detailed at clause 2.2 of Appendix 1.21? ('Question 2')

The answer is: 'No.'

Footnotes

[1] For ease of consideration, I have separated the question into two.

[2] Statement of Agreed Facts filed on 5 October 2023.

[3] [2014] FWCFC 7474 at [41]

[4] [2017] FN CFB 3005 ('Berri')

[5] Gold Coast City Council Certified Agreement 2019 ('the Agreement') cl 1.4.

[6] Also see the Agreement (n 2) cl 1.2, 'Definitions'.

[7] The Agreement (n 2) Appendix 1.1 – 1.23.

[8] Following the nominal expiry date of the Agreement in 2022, the Council provided an updated wages schedule.

[9] The Agreement (n 2) Appendix 1.21 cl 2.4-2.8.

[10] The Agreement (n 2) Appendix 1.21.

[11]Gold Coast City Council Certified Agreement 2009, Appendix 2.21

[12] Gold Coast City Council Certified Agreement 2012, Appendix 2.21

[13] The Agreement (n 2) cl 10.4.1.

Close

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:

    [2024] QIRC 43

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    16 Feb 2024

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
AMWU v Berri Pty Ltd [2017] FWCFB 3005
1 citation
Jump To
Cite 1 - [2017] FWCFB 3005
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd (2017) 268 IR 285
1 citation
Jump To
Cite 1 - (2017) 268 IR 285
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

Case NameFull CitationFrequency
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees [2024] QIRC 2892 citations
1

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