QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Southern Downs Regional Council v Queensland Services Industrial Union of Employees & Anor [2019] QIRC 118

PARTIES:	
	Southern Downs Regional Council 
(Applicant) 

v

Queensland Services, Industrial Union of Employees
(First Respondent)

and 

The Australian Workers' Union of Employees, Queensland
(Second Respondent)
	
CASE NO:
	CB/2018/71
	
PROCEEDING:
	Arbitration
	
DELIVERED ON:
	21 August 2019 	
HEARING DATES: 
	7 and 8 May 2019
	
MEMBERS:

HEARD AT:	O'Connor VP
Merrell DP
Pidgeon IC

Brisbane	

ORDERS:
	
The parties are directed to:

•	by 4.00 p.m. on 4 September 2019 confer about the terms draft determination filed by the Council on 2 April 2019; and

•	by 4.00 p.m. on 18 September 2019 to file in the Industrial Registry a draft agreed Determination that reflects the full and complete terms of the clauses of each matter agreed between the parties and this decision.  
	
CATCHWORDS:	INDUSTRIAL LAW - ARBITRATION IF CONCILIATION UNSUCCESSFUL - matters at issue - nine-day fortnight - 19-day month - rostered day off.
	
LEGISLATION:
	Industrial Relations Act 2016 (Qld), s 27, s 28 and s 180
	
APPEARANCES:	Ms S. Wishart of the Local Government Association of Queensland Ltd for the Council

Ms M. Robertson of Queensland Services, Industrial Union of Employees, First Respondent

Mr J. Harding of The Australian Workers' Union of Employees, Queensland, Second Respondent
	
Reasons for Decision

Introduction

[1]	This matter was referred to arbitration following conciliation between Southern Downs Regional Council ('the Council'), the Queensland Services, Industrial Union of Employees ('QSU') and The Australian Workers' Union of Employees, Queensland ('AWUEQ') (collectively 'the Respondents').  

[2]	All issues in the proposed agreement, the Southern Downs Regional Certified Agreement 2019 – Stream A Employees ('the proposed Agreement') were resolved between the parties other than the matter of the Council's claim regarding clause 4.3 which was to introduce a 19-day month in place of the existing nine-day fortnight. 

[3]	The proposed agreement only applies to a part of the Council's workforce, namely those employees of the Council employed under the Queensland Local Government Industry (Stream A) Award – State 2017. In the main, the employees who will be covered by the proposed Agreement are administrative, clerical, technical, professional, community service, supervisory and managerial employees.

[4]	A Full Bench hearing was conducted on 7 and 8 May 2019 to determine the matter. 

[5]	Prior to the commencement of the arbitration hearing, the AWUEQ informed the Full Bench that it was supporting the submissions of the QSU and would not be making separate submissions. However, notwithstanding that advice, the AWUEQ did file and serve brief written submissions which, in addition to an issue about some witness evidence, supported the QSU's submissions.

The Legislation
[6]	In determining this matter, the Full Bench must consider s 180(4) of the Industrial Relations Act 2016 ('the Act') which relevantly provides:

(4) 	In determining the matters in dispute, the full bench must consider at least the 
	following -

(a)	the merits of the case;

(b) 	the likely effect of the proposed arbitration determination, and any matters agreed between the negotiating parties before or during the arbitration, on employees and employers to whom the proposed arbitration decision will apply. 

The parties' cases in outline

The Council's case
[7]	The Council led evidence that the nine-day fortnight arrangement is not the product of hard-fought negotiations but was introduced as a by-product of amalgamation. 

[8]	The Council submits that: 

Each and every certified agreement negotiation is a fresh negotiation where the parties negotiate the terms and conditions of employment of relevant employees where they seek to vary them from the relevant awards.

[9]	In essence, the Council argues that the operational needs of the Council remain a priority and there are adverse impacts on the Council of a nine-day fortnight, namely:

•	the financial cost to the Council of a nine-day fortnight; and

•	the loss in productivity under a nine-day fortnight.

[10]	The Council also claims that:

•	Rostered Days Off ('RDOs') are not a part of the standard terms and conditions of employment;

•	the nine-day fortnight has an adverse impact on training of employees;

•	there is no discernible difference in sick leave between a nine-day fortnight and a 19 month; and

•	the nine-day fortnight was not a condition of employment in other sectors in the Region, other Councils working under a 19-day month have received significant operational benefits including in recruitment and retention, the employees want a 19-day month and a 19-day month would amount to fairness and balance between the needs of the employees and the Council.   

The Respondents' case

[11]	The Respondents submit that the nine-day fortnight has existed as part of negotiated certified agreements that predated the amalgamation of the Warwick and Stanthorpe Shire Councils in 2008 which formed Southern Downs Regional Council, namely clause 4.4 of the Southern Downs Regional Council former Federal Award Employees Enterprise Bargaining Agreement 2008-2011 Certified Agreement which in turn replaced clause 9.7 of the Warwick Shire Council Enterprise Certified Agreement No 4 2005 and clause 26 of the Stanthorpe Shire Council Enterprise Agreement 2003. 

[12]	The Respondents point out that the Council continues to provide a nine-day fortnight for operational employees by way of clause 4.3 of the Southern Downs Regional Council Certified Agreement 2018 - Operational Employees, certified by the Commission on 10 August 2018.

[13]	 The removal of the nine-day fortnight, is submitted, "…would have the effect of diminishing a long-held condition of employment that was not willingly negotiated away between the parties."

Question to be determined
[14]	The sole issue for determination by the Full Bench is whether to accept the Council's claim for a 19-day month work arrangement or accept the Respondents' position that the nine-day fortnight work arrangement remain in place. 

	The merits of the case and the likely effect on the employees and the Council

[15]	The submissions and evidence led by the parties sought to  establish and address the merits of their respective claims.  

[16]	The matters canvassed throughout the hearing can be broadly characterised as falling under the following headings:

•	operational considerations;

•	impact on employees; and

•	other considerations.

[17]	Aspects of the submissions of all parties will be set out under these headings and will be followed by a consideration of the submissions and determination.  

Operational Considerations

The Council's submissions

Coverage and Productivity

[18]	The Council submits: "The recurrent absence of each Stream A Award employee for a full day each fortnight has a substantial impact on service delivery, productivity and the general operations of the council." 

[19]	Because of this, the Council seeks to establish a 19-day month work arrangement.

[20]	The Council submits that it:

…experiences a loss in productivity each fortnight under a 9 day fortnight work arrangement.  When emergent issues arise and the relevant employee is absent on their RDO each fortnight, the manager or another employee has to attend to their responsibilities.

[21]	It is contended that in some cases, there are difficulties with coverage because there are a number of positions where responsibilities held by only a small number of employees at Council.

[22]	A shift to a 19-day month would halve the number of RDOs each month and therefore halve the time lost. 

Complaints

[23]	Mr Keenan, the Council's Chief Executive Officer, gave evidence that he had had feedback from the Councillors and the community with frustration at access to staff members, particularly in the development process, especially when RDOs come into play.

[24]	Mr Lambert, the Council's Local Laws Coordinator, also gave evidence that the compliance team receives feedback from the community.

[25]	Under the current nine-day fortnight arrangement and leave entitlements, Stream A Award employees may only work some 72.79% of available working days per annum.

Financial position of Council and costs of the nine-day-fortnight work arrangement.

[26]	The Council led evidence relating to its financial position. 

[27]	The Council submits that they incur "…significant costs covering RDOs under the 9-day fortnight arrangement."

[28]	The Council submits that significant work has been done to improve the Council's precarious financial position, however the Council only has a "developing outlook" and faces significant financial challenges. In this regard it was submitted: 

The Council currently has a forecasted operating surplus of $700,000. However, this will be significantly eroded by the financial burden of a nine-day fortnight arrangement and the significant financial challenges facing SDRC.

[29]	The Council further envisages that it and the Southern Downs region face significant challenges over the proposed term of the determination. They contend that there will be significant savings achieved under a 19-day work month resulting in improved economic prosperity of both Council and the Region by assisting the Council to minimise any future rate increases and to maintain and increase service to the community.

Training and Supervision 

[30]	The Council submits that the nine-day fortnight makes it difficult to schedule training. 

[31]	The Council submits that a 19-day month will not have a negative impact on the supervision of Stream B and C employees.

Recruitment and retention

[32]	The Council refutes the QSU's submission that a 19-day month would affect recruitment and retention.  The Council states that they do not have difficulty attracting and retaining staff. Rather, the Council submits that a nine-day fortnight work arrangement can adversely impact recruitment by delaying the process. 

[33]	The Council submitted that staff were also attracted by the other generous leave entitlements and additional superannuation entitlements offered by Council.

High quality services, economic prosperity and social justice for Queenslanders

[34]	The Council contends that a 19-day month will halve the number of days Stream A Award employees are absent from work and unavailable to serve the community.

The Respondents' submissions

Coverage and productivity

[35]	The QSU submits that Mr Keenan, the Chief Executive Officer of the Council:

•	was unable to provide evidence of complaints he said he had received from community members and councillors due to the operation of the nine-day fortnight; and

•	while he provided in his affidavit (at paragraph 44) that most RDOs were taken on a Monday or Friday, he conceded that the current certified agreement did not provide that they must be taken on those days.

[36]	The QSU also submitted that:

•	Ms Macfarlane, the Human Resources Officer, provided in her affidavit that nine-day fortnight arrangements can result in interview delays and candidates receiving job offers from other employers before interviews were finalised, however under cross examination, Ms Macfarlane could not provide evidence of this occurring;

•	Mr Lambert, the Local Laws Co-ordinator, agreed under cross-examination that the proposed agreement would contain provisions for local area workplace agreements where business needs dictated they should be happening; 

•	Mr Page, the Manager Finance and Information Technology, admitted that the proposed agreement provided for such agreements;

•	Mr Magnussen, the Acting Manager of Environmental and Regulatory Services, gave evidence under cross-examination that sometimes employees are asked to take the RDO on a day other than Monday or Friday, but stated that he has never asked an employee to change their RDO to a Tuesday, Wednesday or Thursday and Mr Page also stated that RDOs could be changed to suit everyone's needs; and

•	while Mr Page indicated in his affidavit that there could be difficulties in providing adequate IT support to the business and keep projects running with five RDOs a fortnight to accommodate, under cross-examination, he could not provide evidence of where this had occurred.

Impact on employees 

The Council's submissions

No need for RDOs

[37]	The Council submits that 'RDOs are not part of the standard terms and conditions of employment', and that "…the Respondents did not provide substantial evidence that it was a necessity for employees to have one RDO each fortnight". 

[38]	The Council points to evidence given by witnesses that employees use their RDOs for a whole range of reasons, including secondary employment, working on their farms and study.

[39]	The Council submits that Respondents have not been able to provide evidence that the nine-day fortnight is important in attracting and retaining employees to a Regional area, or where the nine-day fortnight is used to provide care for children or of where the nine-day fortnight was rearranged to suit business needs.

[40]	The Council submits that Ms Samantha Shelbourn gave evidence that she would struggle to cope with a 19-day month due to medical conditions, however, she agreed that she has substantial sick leave available to her; and that she was opposed to working a 19-day work arrangement and would not agree to working a 19-day month if asked. 

[41]	The Council submits that Mr Jason Aspinall's evidence shows that he has had to supplement his RDOs with carer's leave to care for his parents and that he agreed that other flexible arrangements could be made to enable him to take his parents to their appointments should a 19-day month be introduced. 

[42]	The Council submits that the Respondent was unable to demonstrate that a 19-day month would result in additional travel time for employees.

[43]	Further, the Council submits that the Respondents have not demonstrated that employees would incur additional child care expenses as a result of a nine-day fortnight. The Council points to the evidence of Ms Joanne Morris, the Council's Director of Corporate Services, that there would be no additional childcare costs incurred by a 19-day month. The Council also refers to the evidence of Ms Jane McFarlane, Human Resources Officer, that she had "…entered into a flexible work arrangement working 10 days a fortnight to better meet her parental responsibilities" and to the evidence of Ms Robyn Hutley who gave evidence that she was aware of "… staff with children - have given up their RDO to work shorter days so they can pick children up."

[44]	The Council refers to the evidence that:

•	employees do not presently use all of their RDOs, time off in lieu (TOIL), annual leave and long service leave entitlements each year;

•	employees would still have access to one RDO day off each month together with 15 days personal leave, five days carer's leave, the ability to use 5 days personal leave as family leave, four weeks annual leave and long service leave when accrued.

Ability to manage illness and/or carers responsibilities

[45]	The Council submits that a nine-day fortnight is not necessary to manage illness and/or carers responsibilities and provided evidence that a number of the witnesses do not work standard hours or have accessed carers leave or flexible work arrangements in order to attend appointments or attend to caring responsibilities.

Employee wishes

[46]	Mr Keenan gave evidence that he had received feedback that many employees are amenable to the Council's claim for a 19-day month work arrangement.

The Respondents' submissions

[47]	The QSU submits that "…it is a fact that an additional day of work from the nineteen-day month will result in an additional day of expense for travel to and from the workplace and the provision of childcare for those with child rearing responsibilities."

[48]	The QSU also submits its "…witnesses provided evidence that a continuation of the nine‑day fortnight allows for less use of personal and carers leave.  A fulltime workload is performed without recourse to accessing leave." 

[49]	Ms Shelbourn, a Librarian, provided evidence that she was concerned that if the 19-day month was introduced, she would need to access more sick leave due to illnesses.

[50]	Mr Aspinall, a Governance and Grants Officer, stated that the existence of the nine-day fortnight was the predominant reason he applied for employment with the Council, and that the rostered day off could be changed if requested.

[51]	Mr Mark Cochrane, an Engineering Project Manager, agreed that if the nine-day fortnight was removed, it would be his intention to start looking for other employment.

Other Considerations

	The Council's submissions

	Other sectors in the Region

[52]	The Council states that it offers generous terms and conditions of employment when compared to other employers in the region and the nine-day fortnight arrangement is not something that is seen in other sectors.

[53]	The Council submits that the Respondent was unable to challenge this evidence.

Other experiences of a 19-day month work arrangement in local governments

[54]	The Council submits that other Councils working under a 19-day month find it beneficial.  Witnesses from other Councils provided evidence regarding coverage and better spread of hours to provide services for the community.

Fairness and balance

[55]	The Council submits that a determination in favour of a 19-day month work arrangement would fairly balance the needs of employees and employer and that employees already receive many other generous leave entitlements and the nine-day fortnight does not always adequately address employees' needs. 

[56]	The Council submits it is not unfair for staff to work alongside employees with different terms and conditions, and that it "…reflects the different nature of the work performed by employees in different streams" and that there is a matter of fairness with an impact on colleagues being left with the work of someone who is taking an RDO. 

	Facilitative provisions

[57]	The evidence of the Respondents' witnesses demonstrates that despite the existence of flexible work arrangements in the Agreement, it is unlikely that workers will agree to a 19-day month should the Council ask them to do so for operational reasons.

[58]	While the Respondents argue "…that a determination should not be made in favour of a 19 day month work arrangement because the Council did not raise issues with respect to the operation of the 9 day fortnight at Joint Consultative Committee (JCC)", the Council argues that "…the evidence demonstrated that the parties had not conducted any JCC meetings for many years so no issues had been raised by either party."

Local Area Work Agreements, Major Project Agreements and Individual Flexibility Agreements

[59]	The Council submits that the Individual Flexibility Agreement (IFA) provisions will not allow the Council to vary the work arrangements of the Stream A Award workforce to a 19-day month as it can only be done by agreement for a predetermined term and must have a provision by which it can be readily terminated.

[60]	The Council also submits that the Major Project Work Agreements (MPA) and Local Area Work Agreements (LAWA) can only be done with agreement of 60% of the workforce and must have a provision by which it can be readily terminated.

[61]	The Council submits that it provides:

…flexible work arrangements should an employee need to work different hours to meet their individual health requirements or caring responsibilities. There are currently 30 employees working under formal flexible arrangements.

[62]	The Council also refers to s 27 and s 28 of the Act that give employees the capacity to ask an employer for a change in the way an employee works, and this request can only be refused on reasonable grounds.

[63]	The Council goes on to conclude:

The Respondents have prosecuted a case based on the specific needs of six employees due to their particular health conditions and caring commitments. It is submitted that it is not the role of the Full Bench in this arbitration to solely consider the individual needs of a small number of employees due to their personal health circumstances or caring commitments.  Rather the Full Bench must consider the needs of all Stream A Award employees overall, balanced against the needs of the employer.

…

The objective of the IR Act is a framework for industrial relations that supports both economic prosperity and social justice. It is submitted that the 19-day month work arrangement sought by the Applicant balances these two interests. 

	The Respondents' submissions

[64]	The Respondents submit that the Council's witnesses agreed that:

•	the proposed Agreement provides facilitative provisions at clause 6.7 for MPAs, at clause 6.8 for IFAs and at clause 6.9 (LAWAs); and

•	there are also existing and continuing provisions in clauses 1.6, 1.7 and 1.8 concerning the role of the JCC in facilitating the implementation of the Certified Agreement.

[65]	The Respondents' submit that:

•	their witnesses gave evidence of their current willingness to cooperate with the business needs of the Council by shifting their RDO or altering work hours;

•	the Council had not attempted to use the facilitative provisions in the agreement to address concerns it had with the implementation of the nine-day fortnight; and

•	the Council has not made the case for the claim to be approved under the legislation or provided the Commission with a reason to approve the claim based on merit. 

[66]	In conclusion, the Respondents submit:

•	the removal of the nine-day fortnight would have a detrimental effect on the productivity attained through its continued use; 

•	the removal of the nine-day fortnight is not in the interests of the Council or its employees; and 

•	the removal of the nine-day fortnight would not result in greater overall hours being worked.

Consideration of the merits of the case and likely impact 

[67]	The proposed Agreement offers a range of remedies to address the issues Council identifies through flexible working arrangements such as MPAs, IFAs and LAWAs.

[68]	The Council argues that these arrangements will not readily enable them to introduce a 19-day month and they point to evidence given by a number of witnesses that they would not agree to move to a 19-day month work arrangement.  

[69]	The flexibility provisions in the proposed Agreement are not for the purpose of implementing a 19-day month for all staff, but to address specific circumstances where this may be necessary in relation to some of the examples given by Council. 

[70]	The evidence of some witnesses that they oppose the removal of the nine-day fortnight should not be considered as evidence that the provisions allowing for alternative work arrangements to be negotiated are doomed to fail. Mr Keenan gave evidence of a number of staff who had indicated a desire to work a 19-day month and a number of managers indicated that they have not previously asked workers to vary their rostered days off to mitigate against the issues raised by the Council.

[71]	While the Council identifies some peak times throughout the monthly or yearly cycle and some specific services which are impacted by the nine-day fortnight, addressing the needs of this specific part of Council's business should not lead to all Stream A employees losing this entitlement. 

[72]	While evidence led by the Council indicates that it can be operationally difficult to cover the nine-day fortnight, these days are rostered and are therefore known in advance. If the Council is able provide for other types of leave, it is difficult to see how planned absences in the form of rostered days off cannot be accommodated. 

[73]	The Council has not demonstrated that rostered days off have any greater impact than other types of leave. 

[74]	The Council's evidence regarding levels of complaints, problems with coverage and productivity were largely supported by the impressions formed by, and observations of members of Council management rather than through any quantifiable evidence. 

[75]	This creates a difficulty in discerning whether  the problems of coverage being experienced relate directly to RDOs,  other types of leave, or to staffing levels in particular areas of the Council. 

[76]	Similarly, the Council has not demonstrated through the evidence that the nine-day fortnight is the cause of the Council's current financial position. 

[77]	The Respondents argue that various mechanisms to raise concerns about the operation of the nine-day fortnight working arrangement aspect of the agreement were not enlivened throughout the life of the agreement. 

[78]	Mr Keenan stated that there has been no JCC meeting held during his time at the Council. 

[79]	The use of the JCC would have provided the parties with an avenue to explore how to address the identified issues of service delivery, productivity and the general operations of the Council prior to seeking a remedy through the removal of an entitlement through bargaining. 

[80]	The balance of the evidence does not indicate that there is a need to remove a longstanding entitlement from the employees covered by the proposed Agreement. 

[81]	The financial circumstances of the Council are not dire.  There is no cogent evidence before the Commission to suggest that the implementation of a 19-day month for Stream A employees would have any beneficial effect so as to significantly improve the financial circumstances of the Council.

[82]	The evidence given by Mr Keenan concerning feedback from Councillors and members of the community about their frustration at having access to staff members when on RDO's was anecdotal and lacked particularity.  

[83]	Equally, the contention that managers and other employees were required to attend to the responsibilities of an employee on an RDO was also not made out. The claim lacked any specificity and the evidence before the Commission was not, in our view, such that a conclusion could be reached that the issue was at a level which was an endemic problem for the Council.

[84]	The Council led evidence that other local government authorities utilise a 19-day month work arrangement. It was asserted that this arrangement had significant benefits in terms of better coverage of service expectations, productivity, compression of the working week, and planning and rostering. However, the evidence before the Commission did not demonstrate a correlation between the implementation of a 19-day month work arrangement and the benefits said to have been achieved by other local government authorities. 

[85]	The fact that employees have other entitlements such as time off in lieu, annual leave and long service leave are not, in our view, a justification for the removal of the nine-day fortnight.

[86]	Central to the Council’s case is the contention that the current nine-day fortnight for Stream A Award employees has had a substantial impact on service delivery, productivity and the general operations of Council. The evidence before the Commission does not support such a contention. The Commission is not convinced, having regard to the matters contained in s180(4) of the Act that the Council has made out the case for change.

[87]	The Council's claim is rejected.

Orders

The parties are directed to:

•	by 4.00 p.m. on 4 September 2019 confer about the terms draft determination filed by the Council on 2 April 2019; and

•	by 4.00 p.m. on 18 September 2019 to file in the Industrial Registry a draft agreed Determination that reflects the full and complete terms of the clauses of each matter agreed between the parties and this decision.