QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Fraser Coast Regional Council v Employees of Fraser Coast Regional Council [2015] QIRC 102 
	
PARTIES:	
	Fraser Coast Regional Council
(Applicant)

And

Employees of Fraser Coast Regional Council
(Respondent)
	
CASE NO:
	CA/2015/5	
PROCEEDING:
	Application for Certification of Certified Agreement	
DELIVERED ON:
	28 May 2015	
HEARING DATE:
	17 April 2015
	
MEMBERS:
	Commissioner Black
	
ORDER:
	 Agreement certified subject to undertakings
	
CATCHWORDS:	INDUSTRIAL LAW - CERTIFICATION OF AGREEMENT - Application for certification of agreement - undertakings - Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015 
	
CASES:	Industrial Relations Act 1999  s 143, s 144, s 145,     
s 156, s 160, s 164, s 166  
	
APPEARANCES:	Mr N Braid for the Local Government Association of Queensland on behalf of the Fraser Coast Regional Council, the Applicant;
Ms R Huskie for the Construction, Forestry, Mining & Energy Industrial Union of Employees, Queensland;
Mr N Henderson for Queensland Services, Industrial Union of Employees; and
Mr M Raguse for the Australian Workers' Union of Employees, Queensland.

	
Decision 
	
	Background

[1]	An application by the Fraser Coast Regional Council (the Council) for certification of the Fraser Coast Regional Council State Certified Agreement 2015 was lodged with the Industrial Registry on 2 April 2015.  It was proposed that the 2015 Agreement replace the Fraser Coast Regional Council State Certified Agreement 2011.

[2]	The application was listed for hearing on 17 April 2015 when appearances were entered by the Local Government Association of Queensland (LGAQ) on behalf of the Council, the Australian Workers' Union of Employees, Queensland (AWU), Queensland Services, Industrial Union of Employees (QSU), and the Construction, Forestry, Mining & Energy Industrial Union of Employees, Queensland (CFMEU).  These employee organisations were entitled to be heard pursuant to s 155 of the Act.  These organisations submitted that if the Commission ultimately decided to certify the proposed agreement, they would seek to be bound by the agreement pursuant to s 166(2) of the Industrial Relations Act 1999 (the Act).

[3]	While the Plumbers & Gasfitters Employees' Union Queensland, Union of Employees (PGEU) and the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) did not appear in the proceedings, they notified the Commission of their wish to be bound by the agreement pursuant s 166(2) of the Act, if a decision were made to certify the agreement.  The Transport Workers' Union of Australia, Queensland Branch informed the Commission that it would not be seeking to be bound by the proposed agreement. 

[4]	In the hearing the QSU drew attention to a number of provisions in the proposed agreement, which if not removed or modified, may preclude certification having regard to the provisions of s 156 and s 157 of the Act.  The AWU position was that it was for the Commission to determine whether the agreement was capable of certification, and that if it were, the union sought to be bound by the agreement.  The CFMEU took the same objections to certification as those raised by the QSU and in addition submitted that in particular respects the agreement could not satisfy the no disadvantage test. 

[5]	The hearing concluded on the basis that if the Council and the unions were able to resolve their differences through agreement on the terms of undertakings, I would proceed to certify the agreement subject to the undertakings. 

[6]	Ultimately discussions between representatives of the Council and the interested unions were able to resolve the concerns of all unions except the CFMEU.  The resolution arises from the decision of the Council to provide certain undertakings.  CFMEU did not agree that all undertakings were adequate, and continued to maintain that the proposed agreement did not meet the no disadvantage test.  These objections are resolved in this decision.

	Undertakings

[7]	The Council has offered to provide the following undertakings, or undertakings to this effect, to facilitate certification of the proposed agreement: 

Undertaking One

The Agreement shall be read and applied as if clause 1.3.2 (Application) was deleted.

Undertaking Two

Clause 2.8 of the Agreement (Probationary Period) shall be read and applied as if the following words were contained at the end of the first paragraph:

“However any extension of the probationary period beyond 3 months does not remove an employee's unfair dismissal remedy pursuant to s 72 of the Act if they are dismissed after the first three months of employment."

Undertaking Three

The fourth paragraph of Clause 5.2.8 of the Agreement (Fitness for Duty) shall be read and applied in the following terms:

 “Where it is established through medical reports and/or functional capacity assessment that there is no likelihood of the employee returning to work, termination of employment may occur (provided that the employee has been absent on unpaid leave through illness or injury for more than three months within a one year period.”

Undertaking Four

Clause 1.3.1 of the Agreement (Application) shall be applied as if the words “technical/specialist” were deleted.

Undertaking Five

Clause 6.2.2 of the Agreement shall be applied as if the following words were deleted:

“All transferring employees who become employees of the Employer become covered by and are subject to the employment conditions set out in this Agreement.”

[8]	While the undertakings satisfied any concerns held by either the QSU or the AWU, the CFMEU maintained that the undertakings relating to the "probationary period" and to "fitness for duty" did not adequately address particular deficiencies.     

[9]	However, to the extent that the provisions in contention were capable of precluding certification of the agreement in the first instance, I am satisfied that the undertakings given remedy any deficiency and remove any barrier to the certification of the agreement.  

No Disadvantage Test

[10]	It was the CFMEU view that the proposed agreement could not satisfy the no disadvantage test.  Their concerns were directed at the proposed clause 4.1 (Christmas Close Down); clause 4.4 (Specific Project/Tasks); and clause 4.5 (Span of Ordinary Hours).

[11]	Clause 4.1 in the proposed agreement defines the arrangements to be applied in respect to what is understood to be an annual close down of operations over the Christmas period.  The CFMEU has taken issue with the fact that while the proposed agreement specifies that two weeks' notice must be given to employees who are required to work during the close down, it does not prescribe that notice of the close down be given to employees generally.  If the Christmas close down were a recurring event, I could understand that it may not be necessary to formally inform employees each year that the close down would eventuate.  Hence it is doubtful in these circumstances that any disadvantage arises, notwithstanding that the Award provides for 90 days' notice to be given.  However the LGAQ advised that if the certified agreement is read in conjunction with the Award, then Council would be obliged to comply with the 90 day notice period, given that the agreement was silent in this particular respect.   

[12]	Clause 4.4 in the proposed agreement facilitates Council's response in the event of special projects or special or emergent circumstances.  According to the LGAQ, the provisions complained about have been drawn from the Council's current certified agreement, do not preclude the certification of the agreement, and were not matters in contention during the bargaining process.  Further, on my review, clause 15.3(c) of the Award includes a provision which is similar to that included in clause 4.4 of the proposed agreement.  Beyond this, there is nothing to preclude day workers altering their status to shift workers, either by mutual agreement or subject to reasonable notice. 

[13]	The CFMEU argued that afternoon shift workers may be disadvantaged by the operation of the proposed clause 4.4.  But I think the provisions of clause 4.4 are intended to be applied to day workers not shift workers.  If workers were already employed as shift workers there would be no need to contemplate the changes to working arrangements which are allowed under clause 4.4, such as employees working over all seven days of the week and employees working at night.  Further the proposed agreement makes no specific provision for shift workers and therefore it is presumed these provisions are covered by the underpinning Award. 

[14]	The LGAQ stated that the provision for a longer spread of hours had been included in the agreement at the request of one of the participating employee delegates.  It is inferred from this that an early start could have been facilitated by flexible work arrangements set out in clause 4.7 of the proposed agreement which are similar to the individual flexibility arrangements set out in clause 6 of the underpinning Award.  It is also noted that clause 15.3(a)(ii) of the Award allows the spread of hours to be altered by agreement between the employer and the employee.

[15]	Clause 5.5 of the proposed agreement allows for ordinary hours to be worked between 5.00 am and 7.00 pm in particular operational areas.  The Award provisions provide for a considerable variation in the spread of hours for the different occupational groups, but the standard spread of hours is between 6.00 am and 6.00 pm.  In regard to standard hours, the award provides that the spread of ordinary hours may be altered by agreement between the employer and employee.  In the "engineering" group the spread of hours is specified as 6.00 am to 6.00 pm but this spread may be altered by up to one hour at either end by agreement between the employer and the majority of employees involved.  There is no specified spread of hours for "water and sewerage treatment plant" employees.  While the CFMEU drew attention to the street sweepers and related classifications receiving a loading of 25 per cent for ordinary hours worked before 6.00 am or after 6.00 pm, no starting or ceasing times are specified and they are able to be determined by the employer based on the requirement of the work. Given the capacity under the award for agreements to be reached to vary the spread of hours, and given the provisions of the award relating to relevant occupational groups, and given a general comparison between provisions, I am not of a view that the no disadvantage provisions of the Act preclude certification of the agreement.

[16]	In my view, following a consideration of the relevant provisions in both the Award and the proposed agreement and after an overall review of the provisions of the proposed agreement compared to the provisions of the Award, I am satisfied that the no disadvantage test has been met.

Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015

[17]	On 15 May 2015 I caused an email to be sent to the LGAQ and interested unions inviting submissions in respect to the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015, and in particular, to the effect of particular transitional provisions of the Bill that relate to the status of certified agreements, including s 847, s 849 and s 850.

[18]	The LGAQ on behalf of the Council took the view that "the potential effect of this Bill, if and when it is enacted into law, is not a matter which this Commission can have regard pursuant to s 156 or s 157 in determining whether to certify the Agreements presented."  The LGAQ requested that the Commission proceed to certify the agreement from 17 April 2015.

[19]	The QSU informed the Commission that their concerns about the content of the proposed agreement had been addressed by the undertakings provided.  It was accepted that the provisions of s 156 of the Act are mandatory and that the Commission must certify an Agreement provided the requirements of the Act have been met.  Despite this the QSU advised that, having regard to the provisions of the Industrial Relations Amendment Bill presently before the Queensland Parliament, if the Commission were of the view that there was a residual discretion available to it to defer certification of the Agreement, that was a matter for the Commission and the QSU had no submissions to make in relation to it.  The QSU submission was supported by the AMEPKIU. 

[20]	While the AWU noted the contents of the Industrial Relations Amendment Bill, it submitted that the relevance of the Bill to any determination that the Commission had to make about certification of the proposed agreement, was a matter for the Commission to decide.  The AWU also expressed concern that any delay in certification may further delay the payment of wage increases provided under the agreement and suggested that the employer should take administrative action to resolve the matter.  However I don’t think that this course of action is reasonably open to the employer given that the contents of the agreement represent a consensus about a range of matters all of which would be expected to be implemented concurrently.  

[21]	The CFMEU submitted that the Commission should not certify the proposed agreement if there was a prospect that any decision to certify may be voided in the event that the Bill were enacted in its current form.  The CFMEU suggested that the Commission was bound by overriding principles to make decisions in a cost effective way and that these principles mitigated in favour of a decision declining to certify the agreement.  However no other party or interested union advocated this course of action and I am not persuaded to so proceed. 

[22]	If the Commission determined to certify the agreement, it was the submission of the CFMEU that the date of certification should be the date of this decision, not the date of the hearing on 17 April 2015 as proposed by the employer. 

Decision

[23]	I have determined to certify the proposed agreement provided that the terms of the agreement are read and applied subject to the undertakings set out in this decision.  The implications of the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Bill 2015 for the future operation of the agreement, if made, are understood by those participating in the proceedings.  Notwithstanding this, the applicant pressed for certification of the proposed agreement, and this course of action was not opposed, except in the case of the CFMEU. 

[24]	It is also a relevant consideration that clause 1.5 of the proposed agreement provides that the agreement is to be read and interpreted in conjunction with the Queensland Local Government Industry Award - State 2014.  It is possible therefore, that if the Award is varied at some time in the future pursuant to s 842 (2) of the Bill, that some or all of the new provisions included in the Award would be incorporated in the agreement pursuant to clause 1.5.  Finally any decision to defer certification of the proposed agreement will mean that employees subject to the agreement will experience further delays in the payment of the prescribed pay increases. 

[25]	The decision of the Commission is to certify the Fraser Coast Regional Council Certified Agreement 2015 made between the Council and its employees.  Section 156 of the Act provides that the Commission must certify an agreement and it must not certify an agreement unless the provisions of s 143, s 144 and s 145 have been met.  Further, the agreement must also pass the no disadvantage test as defined in s 160 of the Act.  Having considered the submissions made, and having read the application including the affidavit of Lisa Margaret Desmond, Chief Executive Officer of the Fraser Coast Regional Council, I find that the proposed agreement meets the requirements of the relevant sections of the Act and will be certified in the terms proposed except to the extent that those terms have been modified by the undertakings provided.  These undertakings will form part of the agreement.

[26]	The applicant sought that the proposed agreement be certified from 17 April 2015 which was the date of hearing of the application.  However pursuant to s 164 of the Act, the date of operation of the agreement is the date that it is certified.  As no decision to certify the agreement was made on 17 April 2015, the date of operation of the agreement will be 28 May 2015.  

[27]	The new agreement replaces the Fraser Coast Regional Council State Certified Agreement 2011.  The agreement operates from 28 May 2015 and has a nominal expiry date of 15 March 2018.

[28]	Pursuant to s 166(2) the following unions are bound to the agreement:

The Queensland Services Industrial Union of Employees;  
The Australian Workers’ Union of Employees, Queensland;
The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland;
The Plumbers and Gasfitters Employees’ Union of Queensland; and
The Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland.  

[29]	I determine and Order accordingly.