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Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016[2024] QIRC 64

Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016[2024] QIRC 64

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064

PARTIES:

The Electrical Trades Union of Employees Queensland

(Applicant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO.:

MA/2022/3

PARTIES:

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

(Applicant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO.:

MA/2022/4

PARTIES:

Plumbers & Gasfitters Employees' Union Queensland, Union of Employees

(Applicant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO.:

MA/2022/5

PARTIES:

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

(Applicant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO.:

MA/2022/6

PROCEEDING:

General applications

HEARING DATE:

On the papers

DELIVERED ON:

15 March 2024

DATES OF WRITTEN SUBMISSIONS:

Respondent's submissions, filed on behalf of all parties, on 15 May 2023

Parties' joint submissions filed on 17 October 2023

MEMBER:

Merrell DP

ORDERS:

The order contained in paragraph [58] of these reasons for decision

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – AWARDS – AMENDMENT, VARIATION OR RESCISSION – application by four registered employee organisations to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award – State 2016 to provide for certain rates of pay and other entitlements for apprentices and trainees – conditions and entitlements for such apprentices and trainees presently provided for in the Order – Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities) and the Order – Supply of Tools to Apprentices – agreement by all parties to the Award to so vary the Award – parties also seek the rescission of the Order – Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities) and the Order – Supply of Tools to Apprentices in so far as they apply to the apprentices and trainees to be covered by the Award and that new Orders be made – whether the Queensland Industrial Relations Commission has power to rescind the Orders and make new Orders – Commission has that power – parties directed to file revised agreed draft Award variations and agreed draft Orders

LEGISLATION:

Acts Interpretation Act 1954, s 24AA

Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016, cl 4 and cl 8.5

Further Education and Training Act 2014, sch 1

Industrial Relations Act 1999, s 137, s 138 and s 725

Industrial Relations Act 2016, s 3, s 4, s 7, s 8, s 135, s 136, s 137, s 141, s 143, s 144, s 147, s 248, s 301, s 429, s 447, s 451, s 539, s 1004 and sch 5

Native Title Act 1993, s 203BK

Order - Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities), cl 1.3

Order - Supply of Tools to Apprentices, cl 1

Vocational Education, Training and Employment Act 1991, s 89

CASES:

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Ors (1998) 159 QGIG 60

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

Northern Land Council v Quall [2020] HCA 33; (2020) 271 CLR 394

Re: In the matter of the making of Modern Awards - Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2016] QIRC 053

Training Recognition Council and Anor v Australian Workers' Union of Employees, Queensland and Ors [2003] QIRComm 350; (2003) 173 QGIG 878

Training Recognition Council v Queensland Council of Unions and Anor [2001] 166 QGIG 101

Reasons for Decision

Introduction

  1. [1]
    By separate general applications filed on 24 June 2022, The Electrical Trades Union of Employees Queensland (The ETU'), the  Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland, the  Plumbers & Gasfitters Employees' Union Queensland, Union of Employees and the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland ('the Unions') each applied, pursuant to s 147 of the Industrial Relations Act 2016 ('the Act'), to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 ('the Award'). The Award applies to the Unions and to the State of Queensland ('the State' or collectively 'the parties').[1]
  1. [2]
    The purpose of the Unions' applications is to provide for rates of pay and other entitlements for certain apprentices and trainees to be regulated by the Award. The reasons given by The ETU for the variations sought (which are similar to the reasons given by the other applicant Unions) are:
  • to increase the relativities for apprentices to provide for consistency with modern awards made under the Fair Work Act 2009;
  • to increase the tool allowance for apprentices to account for price increases; and
  • to update the training packages to reflect current training standards.
  1. [3]
    In seeking to vary the Award, the Unions also sought consequential amendments to the following instruments made by the Commission:
  • Order - Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities) ('the Wages and Conditions Order'); and
  • Order - Supply of Tools to Apprentices ('the Supply of Tools Order' or collectively with the Wages and Conditions Order, 'the two Orders').
  1. [4]
    The ETU contends that:
  • under the Wages and Conditions Order, first and second year apprentices employed in the Queensland public sector are currently being paid 40% and 50% of the standard rate;
  • under the comparable modern awards made under the Fair Work Act 2009, first and second year apprentices are paid at 55% and 65% of the standard rate;
  • the Wages and Conditions Order has not been reviewed since 2001; and
  • the Supply of Tools Order has not been reviewed since 2010 and the rate of the tool allowance has not kept pace with retail pricing.
  1. [5]
    The other applicant Unions make similar contentions in their applications. The State consents to the relief sought by the Unions.
  1. [6]
    The Award also applies to The Australian Workers' Union of Employees, Queensland ('The AWUEQ').[2]
  1. [7]
    Since the first mention of the Unions' applications, following conciliation conferences held before Industrial Commissioner Pidgeon (which involved The AWUEQ), the parties have agreed on draft proposed variations to the Award. However, by written submissions filed by the State on 15 May 2023, which were also filed on behalf of the Unions, it was submitted that the Commission should:
  • pursuant to s 147 of the Act, make the variations to the Award as sought; and
  • rather than amending the two Orders, rescind the two Orders and issue new Orders that reflect the operation of the Award as varied.
  1. [8]
    Following a further mention of the Unions' applications, I sought submissions from the parties about the power of the Commission to rescind the two Orders and to make new Orders. The State and the Unions filed joint submissions about those matters on 17 October 2023.
  1. [9]
    For the reasons that follow, subject to the parties jointly filing revised draft agreed variations to the Award and an agreed draft of a new Wages and Conditions Order and an agreed draft of a new Supply of Tools Order, I will:
  • pursuant to s 147(1)(b) of the Act, make an order varying the Award; and
  • make an order rescinding the Wages and Conditions Order;
  • pursuant to s 136(1) of the Act, make a new Wages and Conditions Order; and
  • make an order rescinding the Supply of Tools Order; and
  • pursuant to s 137(1) of the Act, make a new Supply of Tools Order.

Background

  1. [10]
    On 2 January 2001, a Full Bench of the Commission, pursuant to s 137 of the Industrial Relations Act 1999 ('the 1999 IR Act'), made the Wages and Conditions Order.[3] Clause 1.3 of the Wages and Conditions Order provides:

1.3  Objectives

The objectives of this Order are to:

  • Prescribe an industrial relations framework to regulate the engagement and placement of apprentices and trainees within Queensland Government Entities, as defined;
  • Provide linkages to other industrial instruments that have application to apprentices and trainees;
  • Provide industrial coverage for apprentices and trainees in Queensland Government Entities to complement the industrial coverage provided for apprentices and trainees in the private sector by B 1185 of 1999;
  • Provide a consolidated framework where apprentices and trainees can be engaged under flexible work arrangements, including full-time, part-time and school-based arrangements;
  • Simplify the process of establishing the industrial arrangements for apprenticeships and traineeships when new apprenticeship or traineeships are approved by the Training Recognition Council; and
  • Establish arrangements where the entitlements of apprentices and trainees, including the supply of tools (where appropriate), are linked to achievement of competencies, or the demonstration of approved levels of progression towards the achievement of competencies, specified in the relevant apprenticeship or traineeship.
  1. [11]
    On 19 June 1998, a Full Bench of the Commission, pursuant to s 89 of the Vocational Education, Training and Employment Act 1991, made the Supply of Tools Order.[4] The Supply of Tools Order continued to have effect after the commencement of the 1999 IR Act as if it had been made by the Commission under section 138 of the 1999 IR Act.[5]
  1. [12]
    Clause 1 of the Supply of Tools Order provides that during the term of each apprenticeship relating to a trade or calling listed in it, an employer is required, in respect of each year of each term, to supply each apprentice with tools of trade of no less value at retail prices than as prescribed in that Order.
  1. [13]
    Upon the operation of the Act, the two Orders continued in effect as if they were made under ch 2, pt 5 of the Act.[6]
  1. [14]
    By order dated 16 May 2016, the Commission made the Award and it operated on and from 26 May 2016.[7]
  1. [15]
    The Award applies to employees employed by the State whose salaries or rates of pay are fixed by the Award and who are employed under a number of specified Acts. Fundamentally, the Award covers Queensland public sector employees who work in building or engineering trades.  The Award does not apply to apprentices or trainees.

The relevant provisions of the Industrial Relations Act 2016

  1. [16]
    The main purpose of the Act is to provide for a framework for cooperative industrial relations that is fair and balanced, and supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.[8] That purpose is primarily achieved by, inter alia:
  • providing for a fair and equitable framework of employment standards, awards, determinations, orders and agreements;[9] and
  • ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community.[10]
  1. [17]
    Chapter 2, pt 5 of the Act deals with wages and employment conditions for apprentices and trainees. The terms 'apprentice' and 'trainee' are defined in the Act by reference to sch 1 to the Further Education and Training Act 2014.[11] An apprentice and a trainee are employees for the purposes of the Act.[12] An employer, for the purposes of the Act, is a person who is not a national system employer within the meaning of the Fair Work Act 2009 and employs, or usually employs, one or more individuals.[13]
  1. [18]
    Section 135 of the Act relevantly provides:

135  Apprentice’s and trainee’s employment conditions

  1. An apprentice or trainee is entitled to the same employment conditions as those fixed by the industrial instrument applicable to employees in the workplace where the apprentice or trainee is employed.
  1. An apprentice or trainee is entitled to wages at–
  1. if an industrial instrument applying to employees in the workplace where the apprentice or trainee is employed or placed states a rate payable to apprentices or trainees – the rate stated in the instrument; or
  1. otherwise – the rate fixed by the commission, being a proportion of the wages payable for the relevant calling to employees in the workplace where the apprentice or  trainee is employed or placed.

…

  1. If an industrial instrument provides for a tradesperson in a calling to be paid an allowance in addition to wages, an apprentice in the calling is entitled to be paid–
  1. if, under the instrument, the allowance is taken to be part of the  tradesperson’s wages – the percentage of the allowance that the apprentice’s wages bear to the tradesperson’s wages; or
  1. if, under the instrument, the allowance is not taken to be part of the tradesperson’s wages – the full allowance.
  1. If an industrial instrument provides for a tradesperson in a calling to be paid an allowance that is assessed as a percentage of the tradesperson’s wages, an apprentice in the calling is entitled to be paid the percentage of the allowance that the apprentice’s wages bear to the tradesperson’s wages.
  1. Subsection (4) applies whether or not, under the instrument, the allowance is taken to be part of the tradesperson’s wages.
  1. In this section–

industrial instrument includes a federal industrial instrument.

workplace, for an apprentice or trainee employed by a group training organisation, includes the workplace of the host employer with whom the apprentice or trainee is placed.

  1. [19]
    Section 136(1) of the Act provides that the Commission may make an order fixing minimum wages and employment conditions for apprentices or trainees, whether or not they are employed under an industrial instrument.
  1. [20]
    Section 137(1) of the Act provides that the Commission may make an order requiring an apprentice’s employer to provide the apprentice with tools relevant to the calling in which  the apprentice is engaged, or to provide an amount to enable the apprentice to buy the tools.
  1. [21]
    Chapter 3 of the Act deals with modern awards.
  1. [22]
    Section 141 of the Act provides:

141  General requirements for commission exercising powers

  1. In exercising its powers under this chapter, the commission must ensure a modern award–
  1. provides for fair and just wages and employment conditions that are at least as favourable as the Queensland Employment Standards; and
  1. generally reflects the prevailing employment conditions of employees covered, or to be covered, by the award.
  1. For subsection (1), the commission must have regard to the following–
  1. relative living standards and the needs of low-paid employees;
  1. the need to promote social inclusion through increased workforce participation;
  1. the need to promote flexible modern work practices and the efficient and productive performance of work;
  1. the need to ensure equal remuneration for work of equal or comparable value;
  1. the need to provide penalty rates for employees who–
  1. work overtime; or
  1. work unsocial, irregular or unpredictable hours; or
  1. work on weekends or public holidays; or
  1. perform shift work;
  1. the efficiency and effectiveness of the economy, including productivity, inflation and the desirability of achieving a high level of employment.
  1. [23]
    Section 143 of the Act provides for the content of modern awards.
  1. [24]
    Section 248 of the Act provides that the Commission must ensure a modern award provides for equal remuneration.

The proposed variations to the Award

  1. [25]
    The parties proposed that the Award be amended by inserting a new clause in the Award (proposed cl 8.5) and a new schedule (proposed sch 9). Proposed cl 8.5 provides that:
  • the Award's terms will apply to  apprentices and trainees, except where it is otherwise stated, in proposed sch 9;
  • apprentices and trainees may be engaged in trades or occupations provided for in clause 12 of proposed sch 9 where declared or recognised by the State Training Authority; and
  • proposed sch 9 to be inserted into the Award contains the  employment conditions for apprentices and trainees who will be covered by the Award.
  1. [26]
    The parties made the following submissions:
  • the proposed variations will contain contemporary employment conditions that will automatically be adjusted at the time of the State Wage Case decision which will avoid the need for separate annual applications to adjust and reissue the Orders;
  • the proposed variations are by consent and all parties participated in the consultation and development of the proposed variations;
  • should the Commission make an order to vary the Award as sought, the Commission would be exercising powers in a manner consistent with the requirements at s 141(l) of the Act in that the changes being sought provide for fair and just wages and generally reflect the prevailing employment conditions of employees covered, or to be covered, by the Award;
  • having regard to the matters which the Commission must consider under s 141(2) of the Act:
  1. -
    updating progression percentages and modernising supply of tools arrangements for apprentices and trainees supports their needs towards achieving their qualifications;
  1. -
    capturing employment conditions in a modern award allows those individuals, interfacing with apprentice and trainee employment conditions in the performance of their work, to do so in a more efficient and productive manner, and the increase in productivity will in turn have a positive effect on the State's economy;
  1. -
    the need to ensure equal remuneration for work of equal or comparable value remains assured as all relevant employees will continue to be remunerated based on competencies and classification levels which provide for equal pay where the same work is performed; and
  1. -
    the present applications have no effect on penalty rates, for certain employees, and inflation;
  • section 143 of the Act obliges the Commission to ensure that modern awards achieve certain (content) objectives, and, relevantly, pursuant to s 143(1) of the Act, the proposed variations:
  1. -
    do not discriminate against an employee;
  1. -
    do not displace, or otherwise vary the Award in a manner inconsistent with the Queensland Employment Standards and are, in fact, aimed at ensuring better alignment with those standards;
  1. -
    provide for equal remuneration for work of equal or comparable value;
  1. -
    do not include an objectionable term within the meaning of section 301 of the Act;
  1. -
    are stated in plain English and the structure and content are easy to understand;
  1. -
    do not include provisions that are obsolete, and actively seek to remove such provisions;
  1. -
    do not affect existing consultation requirements for agencies, or amend provisions which deal with award coverage;
  1. -
    provide fair standards for employees in the context of living standards generally prevailing in the community;
  1. -
    are suited to the efficient performance of work according to the needs of particular enterprises, industries or workplaces;
  1. -
    take into account employees' family responsibilities; and
  1. -
    do not offend any of the requirements under s 143(l)(k) of the Act;
  • the proposed variations do not alter the remuneration structure of the Award, which continue to provide for equal remuneration for work of equal or comparable value, and appropriately value work, and, therefore, the Commission should be satisfied the requirements under section 248 of the Act, which relate to ensuring modern awards provide for equal remuneration, have been met;
  • similarly, because the proposed variations do not alter the existing dispute resolution procedures under the Award, the requirements under section 144 of the Act have been met; and
  • the proposed variations are:
  1. -
    equitable;
  1. -
    in the best interests of those immediately concerned and the wider public;
  1. -
    conducive to an industrial relations system that is fair and balanced; and
  1. -
    supportive of high-quality services for Queenslanders.[14]
  1. [27]
    The Commission has the power to vary a modern award.[15] I accept the parties' submissions that the Award should be varied as proposed. This is because the proposed variations:
  • are consistent with the requirements for a modern award as contained in s 141 of the Act;
  • are consistent with the required content of a modern award as contained in s 143 of the Act, in particular, the objective contained in s 143(1)(i) of the Act, namely, to provide fair standards for employees in the context of living standards generally prevailing in the community; and
  • will continue to relate to work which is appropriately valued and will continue to provide for equal remuneration for work of equal or comparable value, as required by 248 of the Act.

The proposed rescission of the two Orders and the proposed making of two new Orders

  1. [28]
    The parties submit for the proposed Award variations to have application as intended, the Wages and Conditions Order and the Supply of Tools Order require variation, but by their rescission and the making of a new Wages and Conditions Order and a new Supply of Tools Order. This is necessary, it is submitted '… to overcome inconsistencies between the instruments triggering potential contraventions due to sections 136(3) and 137 of the IR Act.'[16]
  1. [29]
    The parties submit that amending the Award as proposed will create an inconsistency between the Award and the Wages and Conditions Order and that the inconsistent provisions of that Order would prevail as provided for in s 136(3) of the Act. Therefore, the parties now apply:
  • to rescind the Wages and Conditions Order; and
  • for a new Wages and Conditions Order to be made that provides that building, engineering and maintenance services related apprentices and trainees would be excluded from the new Wages and Conditions Order thereby eliminating inconsistency with the Award as varied.[17]
  1. [30]
    Specifically, the parties submitted:
  1. The parties consider the operation of section 136 of the IR Act does not expressly provide the Commission power to vary an Order similar to an modern award. The parties contend however, the provision operates to provide powers for the Commission to rescind an Order and issue a new Order.
  1. [31]
    In support of  the above submission, the parties refer[18] to the decision of the Commission in Training Recognition Council and Anor v Australian Workers' Union of Employees, Queensland and Ors.[19] In that case, the Order - Apprentices’ and Trainees’ Wages and Conditions (Excluding Certain Queensland Government Entities) 2003 was, pursuant to s 137 of the 1999 Act, ' … repealed and replaced with a new Order as follows as from 30 June 2003.'[20]
  1. [32]
    In respect of the Supply of Tools Order, the parties submit that amending the Award as proposed will create an inconsistency with the Supply of Tools Order and has the potential to lead to a contravention of that Order as provided for by section 137(4) of the Act.[21]
  1. [33]
    For similar reasons as advanced in respect of the Wages and Conditions Order, the parties now apply to rescind the current Supply of Tools Order and for a new Order to be made such that building, engineering and maintenance services related apprentices would be excluded from the new Supply of Tools Order, thereby eliminating any potential contravention.[22]
  1. [34]
    Specifically, the parties submitted:
  1. Similar to paragraph 16 above, the parties consider the operation of sections 136 and 137 of the IR Act do not expressly provide the Commission power to vary an Order similar to a modern award. The parties contend however, the provisions operate to provide power for the Commission to rescind an Order and issue an new Order.
  1. The current Tools Order can be seen as a result of the original Order being amended and rescinded thus a new Order being made and issued [on] 1 September 1998. This follows a similar approach as referred to in paragraph 17 above.
  1. As submitted in paragraph 19 above, the Commission can be satisfied that the IR Act provides the power to incorporate the variation as proposed in an new Order as issued and, will not disrupt those remaining apprentices whose supply of tools conditions will continue to operate.

Can the Wages and Conditions Order and the Supply of Tools Order be rescinded?

  1. [35]
    Section 136 of the Act provides:

136  Order setting minimum wages and conditions

  1. The commission may make an order fixing minimum wages and employment conditions for the following employees, whether or not they are employed under an industrial instrument–
  1. apprentices or trainees;
  1. different classes of apprentices or trainees.
  1. In making an order, the commission may consider any matter it considers relevant, including–
  1. the age, competency, or method of progression through training of the apprentices or trainees; and
  1. an industrial instrument.
  1. Despite section 135, if there is an inconsistency between an order and an industrial instrument (other than a certified agreement), the order prevails to the extent of the inconsistency.
  1. The commission may make an order–
  1. of the commission’s own initiative; or
  1. on application by–
  1. the chief executive (training); or
  1. an organisation; or
  1. a State peak council; or
  1. the Minister; or
  1. another entity with an interest in apprentices or trainees.
  1. In this section–

industrial instrument includes a federal award or federal agreement.

  1. [36]
    Section 137 of the Act relevantly provides:

137  Order setting tool allowance

  1. The commission may make an order requiring an apprentice’s employer to provide the apprentice with–
  1. tools relevant to the calling the apprentice is engaged in; or
  1. an amount to enable the apprentice to buy the tools (a tool allowance).
  1. The order may state–
  1. the particular tools to be provided and the circumstances in which the tools are to be provided; or
  1. the circumstances in which a tool allowance must be provided.
  1. The commission may make an order–
  1. of the commission’s own initiative; or
  1. on application by–
  1. the chief executive (training); or
  1. an organisation; or
  1. a State peak council; or
  1. the Minister; or
  1. another entity with an interest in apprentices.
  1. An employer must not contravene an order.
  1. [37]
    There is no express power contained in s 136 of the Act to rescind the Wages and Conditions Order. Similarly, there is no express power contained in s 137 of the Act to rescind the Supply of Tools Order.
  1. [38]
    In their further written submissions, the parties jointly submitted that: [23]
  • the Commission has express power to rescind the earlier orders made pursuant to the 1999 IR Act in that s 447 of the Act sets out the Commission's functions, which include:
  1. -
    s 447(l)(i) of the Act, namely, resolving disputes of industrial matters including by the making of orders; and
  1. -
    s  447(l)(p) of the Act, namely, any other function conferred on the Commission by the Act.
  • there is no dispute that the matter presently before the Commission is a dispute about an industrial matter as it concerns the amounts and allowances to be provided to employees engaged as apprentices;
  • s 451(1) of the Act provides that the Commission has power to do all things necessary or convenient to be done for the performance of its functions and, in the present case, aside from the general powers, the Commission is also given, by s 136 and s 137 of the Act, the express power to make orders concerning the wages and conditions of apprentices and concerning tool allowances;
  • on an orthodox examination of the circumstances before the Commission, there is an industrial dispute about the appropriate conditions and tool allowances for apprentices and the Commission has an express function to resolve that dispute, including by making orders;
  • any order rescinding the two Orders, which are merely transitional orders, is simply an ancillary order which is necessary or convenient for the discharge of the Commission's functions; and
  • this analysis is consistent with the way in which the Commission has previously approached matters of this kind.[24]
  1. [39]
    In the alternative, the parties jointly submit that the Commission has power to rescind the two Orders by virtue of s 24AA of the Acts Interpretation Act 1954.[25]
  1. [40]
    In considering the parties' submissions, it is necessary to consider what functions the Commission is being asked to perform.
  1. [41]
    The Commission is, in practical effect, being asked to perform three functions. The first is, pursuant to s 147(1)(b) of the Act, to vary the Award. The second is, pursuant to s  136 of the Act, to make a new Wages and Conditions Order. The third is, pursuant to s 137 of the Act, to make a new Supply of Tools order. These are all functions expressly conferred on the Commission by the Act.
  1. [42]
    I do not think it entirely accurate to submit, as the parties have done, that the function that the parties have requested the Commission to perform is that identified by s 447(1)(i) of the Act. That section provides that the Commission's functions include '… resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order.' There has been no notification by either party of an industrial dispute whereby the Commission has attempted to resolve any such dispute by conciliation.
  1. [43]
    In fact, as submitted by the parties in their principal submissions, the proposed Award variations are to give effect to Recommendation 26 of the Five-year Review of Queensland's Industrial Relations Act 2016 - Final Report which  recommended:
  • that percentages for competency-based  progression for apprentices be aligned to  the relevant federal modern award;
  • the value of the tool allowance to be increased to ensure it reflects current pricing, where the final value of the tool allowance is a matter for determination by the relevant parties after which an application for revised and updated orders should be made to the Commission; and
  • any such application made to the Commission, for this purpose, should be supported by the State.[26]
  1. [44]
    However, by virtue of s 451(1) of the Act, the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. This is a common way to describe such a power as conferred on a statutory body. A description similar to s 451(1) of the Act has been considered by the High Court. In Northern Land Council v Quall,[27] Kiefel CJ and Gageler and Keane JJ relevantly stated:[28]

[33] The power conferred on a representative body by s 203BK(1)[29] in the familiar terms of a power “to do all things necessary or convenient to be done for or in connection with the performance of its functions”, though “broad”, is “strictly ancillary”, authorising “the provision of subsidiary means of carrying into effect what is enacted in the statute itself” and encompassing “what is incidental to the execution of its specific provisions”. The power does “not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred”.             

  1. [45]
    Later, their Honours stated:

A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental.[30]

  1. [46]
    In my view, the Commission does have power to rescind the two Orders. This is because the rescission of the two Orders is incidental to the execution of specific provisions contained in the Act. 
  1. [47]
    The specific provisions are s 136(1) and s 137(1) of the Act, which confer on the Commission:
  • power to make an order fixing minimum wages and employment conditions for apprentices or trainees; and
  • power to make an order requiring an apprentice’s employer to provide the apprentice with tools relevant to the calling in which the apprentice is engaged, or to provide an amount to enable the apprentice to buy the tools.
  1. [48]
    That is, in performing its functions to make orders of that kind, it is incidental to the performance of those functions that the Commission have power to rescind any existing orders.
  1. [49]
    Even in the absence of s 451(1) of the Act, the Commission would have power to rescind the two Orders. The Commission is established as a court of record in Queensland[31] and its functions, jurisdiction and powers are those conferred on it by the Act and other Acts. The Commission, therefore, is a statutory court.
  2. [50]
    In  DJL v The Central Authority,[32] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ relevantly held:

A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred".  It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.[33]

  1. [51]
    In these circumstances, it is unnecessary to consider the parties' submissions about the potential effect of s 24AA of the Acts Interpretation Act 1954.
  1. [52]
    For all these reasons, I am of the view that the Commission has the power to rescind the two Orders.
  1. [53]
    Furthermore, for the reasons given by the parties in their submissions, so as to give effect to the proposed variations to the Award:
  • the two Orders should be rescinded;
  • pursuant to s 136(1) of the Act, a new Wages and Conditions Order should be made; and
  • pursuant to s 137(1) of the Act, a new Supply of Tools Order should be made.

The next steps

  1. [54]
    On 24 April 2023, the parties filed an agreed draft order for the proposed variations to the Award. The parties proposed a new cl 8.5 to the Award headed 'Apprentices and Trainees' which provided that the terms of the Award would apply to apprentices and trainees except where otherwise stated in the proposed sch 9. However, I note that there is already a cl 8.5 in the Award which is headed 'Anti-discrimination.'
  1. [55]
    On the same date the parties also filed agreed draft proposed variations to the two Orders.  However, in relation to these agreed draft proposed variations, they were filed at a time when the parties were not proposing that the two Orders be rescinded and that new Orders be made. The parties should file draft agreed replacement Orders.
  1. [56]
    In light of the above, the parties should file:
  • a revised draft agreed order varying the Award; and
  • a draft agreed Order - Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities) 2024 to replace the Wages and Conditions Order upon its rescission;
  • a draft agreed Order - Supply of Tools to Apprentices 2024 to replace the Supply of Tools Order upon its rescission.

Conclusion

  1. [57]
    For the reasons I have given, subject to the parties filing the above drafts for my consideration, I will grant the relief sought by the parties in their submissions.

Order

  1. [58]
    I make the following order:

By 4.00 pm on Friday, 19 April 2024, the parties are to jointly file in the Industrial Registry, in hard copy and in electronic form:

  • a revised draft agreed order varying the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016; and
  • a draft agreed Order - Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities) 2024 to replace, upon its rescission, Order - Apprentices' and Trainees' Wages and Conditions (Queensland Government Departments and Certain Government Entities) reported at (2001) 166 QGIG 101; and
  • a draft agreed Order - Supply of Tools to Apprentices 2024 to replace, upon its rescission, Order - Supply of Tools to Apprentices reported at (1998) 159 QGIG 6 as varied.

Footnotes

[1] Building, Engineering and Maintenance Services Employees (Queensland Government) Award – State 2016 ('the Award'), sub-cls 4.1(b) and (c)(i),(ii), (iii) and (v).

[2] The Award, sub-cl 4.1(c)(iv). By applications filed on 1 September 2022, The AWUEQ, pursuant to s 539(b)(v) of the Industrial Relations Act 2016,  sought leave to be heard in each of the Unions' applications. There was no opposition to the AWUEQ's applications.

[3] Training Recognition Council v Queensland Council of Unions and Anor (2001) 166 QGIG 101 (President Hall, Commissioner Blades and Commissioner Brown).

[4] Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Ors (1998) 159 QGIG 60 (Commissioner Edwards, Bloomfield and Baldwin).

[5] Industrial Relations Act 1999, s 725(3).

[6] Industrial Relations Act 2016, s 1004.

[7] Re: In the matter of the making of Modern Awards - Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2016] QIRC 053 (Deputy President O'Connor, Deputy President Swan and Industrial Commissioner Thompson).

[8] Industrial Relations Act 2016, s 3.

[9] Industrial Relations Act 2016, s 4(d).

[10] Industrial Relations Act 2016, s 4(g).

[11] Industrial Relations Act 2016, sch 5 (definition of 'apprentice') and (definition of 'trainee').

[12] Industrial Relations Act 2016, s 8(2)(f) and (g).

[13] Industrial Relations Act 2016, s 7(1).

[14] The submissions of the State of Queensland, on behalf of all parties, filed on 15 May 2023 ('the parties' initial submissions'), paras. 4-11.

[15] Industrial Relations Act 2016, s 147(1)(b).

[16] The parties' initial submissions, para. 12.

[17] The parties' initial submissions, paras. 13-15.

[18] The parties' initial submissions, paras. 17-19.

[19] [2003] QIRComm 350; (2003) 173 QGIG 878 ('Training Recognition Council') (Deputy President Bloomfield, Commissioner Brown and Commissioner Thompson). 

[20]  Ibid 878.

[21] The parties' initial submissions, para. 21.

[22] The parties' initial submissions, para. 22.

[23] The joint submissions filed by the parties on 17 October 2023, paras. 9-15 ('the parties' further submissions').

[24] Citing Training Recognition Council (n 19).

[25] The parties' further submissions, paras. 16-28.

[26] The parties' initial submissions, para. 3.

[27] [2020] HCA 33; (2020) 271 CLR 394 ('Quall').

[28] Citations omitted.

[29] This was s 203BK(1) of the Native Title Act 1993 (Cth) which provided:

(1)A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

[30] Quall (n 27), [63].

[31] Industrial Relations Act 2016, s 429.

[32] [2000] HCA 17; (2000) 201 CLR 226.

[33] Ibid [25]. Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016

  • Shortened Case Name:

    Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016

  • MNC:

    [2024] QIRC 64

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 Mar 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
DJL v The Central Authority (2000) 201 CLR 226
2 citations
Jump To
Cite 1 - (2000) 201 CLR 226
Cite 2 - (2000) 201 CLR 226
DJL v The Central Authority [2000] HCA 17
2 citations
Jump To
Cite 1 - [2000] HCA 17
Cite 2 - [2000] HCA 17
Re: In the matter of the making of Modern Awards - Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2016] QIRC 53
2 citations
Jump To
Cite 1 - [2016] QIRC 53
Cite 2 - [2016] QIRC 53

Cases Citing

Case NameFull CitationFrequency
Chilcott v Townsville Hospital and Health Service [2025] QIRC 322 citations
Corney v Workers' Compensation Regulator (No. 2) [2024] QIRC 3052 citations
Neil v Lee (No. 2) [2024] QIRC 1492 citations
Plumb v Rockhampton Regional Council [2025] QIRC 1762 citations
Plumb v Rockhampton Regional Council (No. 2) [2025] QIRC 1502 citations
Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 (No. 2) [2024] QIRC 1312 citations
State of Queensland (Office of the Governor) v Workers' Compensation Regulator [2025] QIRC 2102 citations
1

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