QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186

PARTIES: The Hon. Curtis Pitt, Treasurer and Minister for Employment and Industrial Relations and Minister for Aboriginal and Torres Strait Islander Partnerships

Local Government Association of Queensland Limited

Queensland Services, Industrial Union of Employees

The Australian Workers' Union of Employees, Queensland

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

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

Plumbers & Gas Fitters Employees' Union Queensland, Union of Employees

Queensland Independent Education Union of Employees

Queensland Nurses' Union of Employees

The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees

The Electrical Trades Union of Employees, Queensland

Transport Workers' Union of Australia, Union of Employees (Queensland Branch)

United Voice, Industrial Union of Employees, Queensland

CASE NO: MAP/2015/9

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PROCEEDING: Variation of a Modern Award

DELIVERED ON: 31 October 2015

HEARING DATES: 23, 28, 29, 30 September 20151 October 2015

HEARD AT: Brisbane

MEMBERS: Vice President LinnaneDeputy President KaufmanIndustrial Commissioner Neate

ORDERS: That the Queensland Local Government Industry Award – State 2014 be varied by:

(a) deleting the numerals "2014" from the title and inserting in lieu thereof "2015".

(b) by deleting clauses 1 - 34 and Schedules 1 to 5 and inserting in lieu thereof the Clauses appearing in the retitled award released concurrently with this decision.

CATCHWORDS: VARIATION OF A MODERN AWARD – Section 140C(1) of the Industrial Relations Act 1999 – request from the Minister for Employment and Industrial Relations that a modern award for the Local Government sector be made by 31 October 2015 – Local Government Industry Award – State 2015 – Modern Award made

CASES: Industrial Relations Act 1999, ss 3, 71HB, 140BA, 140BB, 140C, 140CA, 140CC, 140D, 145D, 273, 319, 320, 322, 366, 373, 840, 841, 842, 843, 844Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 Public Service Act 1996Fair Work Act 2009

Queensland Local Government Industry Award - State 2014Queensland Local Government Officers' Award 1998Municipal Officers' Award (Aboriginal and Islander Community Councils) Award 2004Queensland Local Government Officers' Award

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1992Municipal Officers' (Queensland) Award 1959Municipal Officers' (Queensland) Consolidated Award 1975Engineering Award - State 2012Building Trades Public Sector Award - State 2012Local Government Employees' (Excluding Brisbane City Council) Award - State 2003Waste Management Award 2010

Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2015] QIRC 156Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149Re: Electrical Engineering Award - State (1963) 54 QGIG 423Re: Water Supply and Sewerage Labourers' Award - State (Excluding Brisbane) (1973) 84 QGIG 565 Re: Making of a modern award - General Employees (Queensland Government Departments) and Other Employees Award - State 2015 [2015] QIRC 169The Australian Workers' Union of Employees, Queensland and Anor v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (2000) 165 QGIG 221

APPEARANCES: Mr A. James, of the Office of Industrial Relations for the Minister for Employment and Industrial RelationsMr T. Goode and Mr S. Blaney, of the Local Government Association of Queensland LimitedMr N. Henderson and Ms M. Robertson, of The Queensland Services, Industrial Union of EmployeesMr B. Watson, of The Australian Workers’ Union of Employees, QueenslandMs K. Allen, of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, QueenslandMs K. Inglis, of The Electrical Trades Union of Employees, QueenslandMs M. Delaware, of the Plumbers & Gas Fitters Employees’ Union Queensland, Union of Employees

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Ms M. Cerrato, of the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch)Mr J. Spriggs and Ms D. Wilson, of the Queensland Independent Education Union of EmployeesMs R. Huskie, of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, QueenslandMs L. Booth, of the Queensland Nurses Union of Employees

Reasons for Decision

Introduction

[1] Part 8 of Chapter 5 "Modernisation of awards" as well as Chapter 5A, "Modern awards", were inserted into the Industrial Relations Act 1999 (the Act) by Act No. 61 of 2013. The amending Act thereby introduces a regime which permits the Minister to request the Queensland Industrial Relations Commission (Commission) to undertake a process of modernising awards. Section 140C empowers the Minister to give the Commission an award modernisation request (Request) to carry out an award modernisation process.

[2] On 26 September 2014 following a Request from the then Attorney-General and Minister for Justice given in January 2014, a differently constituted Full Bench of this Commission made the Queensland Local Government Industry Award - State 2014 (the 2014 Award). A copy of the Request is attached to this decision at Schedule A.

[3] The Act was amended in 2015 by the Industrial Relations (Restoring Fairness) and Other Legislation Act 201 which amongst other things, amended s 140D of the Act "Modern award objectives", by deleting the requirement that the Commission have regard to "financial considerations" as defined in that section. It also amended the principal object of the Act by deleting s 3(p) which required that when wages and employment conditions are determined by arbitration and the matter involved the public sector, the financial position of the State and the relevant public sector entity and the State's fiscal strategy were to be taken into account.

[4] The Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 also inserted Part 20, Transitional Provisions for Industrial Relations (Restoring Fairness) and other Legislation Amendment Act 2015 to the Act. Section 841 of the Act requires the Commission to review a relevant modern award and vary it if the Minister gives the Commission a variation notice under s 140CA. Section 140CA(1) requires the Commission to remove certain provisions which had been required to be inserted prior to their repeal by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015, as well as to include certain provisions that had been contained in relevant pre-modernisation awards.

[5] On 17 July 2015 the Treasurer and Minister for Employment and Industrial Relations (Minister), pursuant to s 140CA(1) issued a variation notice and made a Consolidated

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Request. A copy of the Consolidated Request is attached to this decision at Schedule B.

[6] A differently constituted Full Bench dealt with the Consolidated Request and the requirement of s 844 that the Commission consider an increase to the number of awards covering the Queensland local government industry (Excluding Brisbane City Council) ("Queensland local government industry"). That Full Bench declined to increase the number of awards governing the Queensland local government industry deciding that one award is appropriate.1

[7] Following that decision, pursuant to the Consolidated Request, the Commission's award modernisation team (AMOD Team) conducted conferences with interested parties in an attempt to come to an agreed position in relation to amending the 2014 Award in conformity with the Consolidated Request. No agreement was reached and, on 10 September 2015, Deputy President Bloomfield referred the variation of the award to the Vice President who constituted this Full Bench to deal with the matter and to vary the 2014 Award in conformity with the Consolidated Request. The Referral included an Exposure Draft of a proposed new modern award for this Full Bench to consider.

Relevant Legislation

[8] Section 3 of the Act sets out its principal object, which provides:

"The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by -

(a) providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers; and

(b) providing for an effective and efficient economy, with strong economic growth, high employment, employment security, improved living standards, low inflation and national and international competitiveness; and

(c) preventing and elimination discrimination in employment; and

(d) ensuring equal remuneration for men and women employees for work of equal or comparable value; and

(e) helping balance work and family life; and

(f) promoting the effective and efficient operation of enterprises and industries; and

(g) ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and

1 Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award – Local Government [2015] QIRC 156.

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(h) promoting participation in industrial relations by employees and employers; and

(i) encouraging responsible representation of employees and employers by democratically run organisations and associations; and

(j) promoting and facilitating the regulation of employment by awards and agreements; and

(k) meeting the needs of emerging labour markets and work patterns; and

(l) promoting and facilitating job growth, skills acquisition and vocational training through apprenticeships, traineeships and labour market programs; and

(m) providing for effective, responsive and accessible support for negotiations and resolution of industrial disputes; and

(n) assisting in giving effect to Australia’s international obligations in relation to labour standards; and

(o) promoting collective bargaining and establishing the primacy of collective agreements over individual agreements."

[9] Section 140BA of the Act sets out the object of modernising awards:

"140BA Object of modernising awards

The principal object of this part is to provide for the modernisation of awards so they -

(a) are simple to understand and easy to apply; and

(b) together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees; and

(c) are economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and

(d) are in a form that is appropriate for a fair and productive industrial relations system; and

(e) result in a certain, stable and sustainable modern award system for Queensland."

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[10] The modern awards objectives are found in s 140D of the Act which relevantly provides:

"140D Modern awards objectives

(1) In exercising its chapter 5A powers, the commission must ensure modern awards, together with the Queensland Employment Standards, provide a minimum safety net of employment conditions that is fair and relevant.

(2) For subsection (1), the commission must have regard to the following -

(a) relative living standards and the needs of low-paid employees;

(b) the need to promote social inclusion through increased workforce participation;

(c) the need to promote flexible modern work practices and the efficient and productive performance of work;

(d) the need to ensure equal remuneration for male and female employees for work of equal or comparable value;

(e) the need to provide penalty rates for employees who -

(i) work overtime; or

(ii) work unsocial, irregular or unpredictable hours; or

(iii) work on weekends or public holidays;

(iv) or perform shift work;

(f) the likely impact of the exercise of the chapter 5A powers on business, including on productivity, employment costs and the regulatory burden;

(g) the need to ensure the modern award system -

(i) is simple and easy to understand; and

(ii) is certain, stable and sustainable; and

(iii) avoids unnecessary overlap of modern awards;

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(i) the likely impact of the exercise of the chapter 5A powers on–(i) employment growth and inflation; and

(ii) the sustainability, performance and competitiveness of the Queensland economy

…

(4) The objectives of the commission under subsections (1) and (2) are the modern awards objectives.

…"

[11] Section 140BB describes the Commission's award modernisation function:

"140BB Commission's award modernisation function

(1) The functions of the commission include carrying out a process (award modernisation process) to reform and modernise pre-modernisation awards.

(2) In performing its functions under this part, the commission must have regard to the following factors –

(a) promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;

(b) the need to help prevent and eliminate discrimination in employment;

(c) protecting the position in the labour market of young people, employees engaged as apprentices or trainees and employees with a disability;

(d) the needs of low-paid employees;

(e) the need to promote the principle of equal remuneration for work of equal value;

(f) the need to help employees balance their work and family responsibilities effectively and to improve retention and participation of employees in the workforce;

(g) the safety, health and welfare of employees;

(h) the Queensland minimum wage;

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(i) the desirability of reducing the number of awards operating under this Act;

(j) the representation rights of organisations and associations under this Act.

(3) This section does not limit section 140D."

[12] As noted earlier, s 140C and s 140CA of the Act empower the Minister to make an award modernisation request and a variation to that request respectively. Section 140C and s 140CA of the Act relevantly provide as follows:

"140C Minister may make award modernisation request

(1) The Minister may give the commission a written notice (an award modernisation request) requesting that an award modernisation process be carried out.

(2) An award modernisation request must state -

(a) details of the award modernisation process that is to be carried out; and

(b) the day by which the process must be completed.

…

(4) An award modernisation request may state any other matter about the award modernisation process the Minister considers appropriate.

(5) Without limiting subsection (4), the award modernisation request may -

…

(b) state permitted matters about which provisions must be included in a modern award; or

(c) direct the commission to include in a modern award terms about particular permitted matters; or

(d) give other directions about how, or whether, the commission must deal with particular permitted matters.

(6) In this section -

permitted matter means a matter about which provisions may be included in a modern award under chapter 2A, part 3, division 1 or 2.

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"140CA Variation of award modernisation request

(1) Before an award modernisation process is completed, the Minister may vary the award modernisation request by written notice (a variation notice) given to the commission.…"

[13] The procedure for the carrying out of the award modernisation process is found in s 140CC of the Act and that section provides:

"140CC Procedure for carrying out modernisation process

(1) The commission must carry out the award modernisation process in accordance with the award modernisation request.

(2) Subject to subsection (1) -

(a) the commission may decide the procedure for carrying out the award modernisation process; and

(b) without limiting paragraph (a), the commission may inform itself in any way it thinks appropriate, including by consulting with any person, body or organisation in the way the commission considers appropriate.

(3) To remove any doubt, it is declared that subsection (2) does not limit the powers of the commission under any other provision of this Act."

[14] Section 273 of the Act sets out the Commission's functions and provides:

"(1) The commission's functions include the following -

(a) establishing and maintaining a system of non-discriminatory awards that, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees;

(b) supervising the bargaining of agreements;

(c) certifying agreements;

(d) resolving disputes by concilliation of industrial matters and, if necessary, by arbitration or making an order;

(e) making awards;

(f) resolving disputes in the negotiation of agreements -

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(i) by conciliation; or

(ii) by arbitration, including by the making of determinations;

(g) resolving disputes over union coverage by making representation orders;

(h) resolving disputes by performing the functions conferred on the commission under a referral agreement;

(i) resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;

(j) dealing with -

(i) applications for orders under section 85C, 278 or 408F; or

(ii) claims relating to dismissals

(k) making declarations about industrial matters

(2) The commission must perform its functions in a way that -

(a) furthers the objects of this Act; and

(b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act."

[15] In order to effect the changes wrought by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015, transitional provisions are necessary. These include sections 841, 842, and 843:

"841 Commission must review and vary relevant modern award

(1) This section applies to a relevant modern award if the Minister gives the commission a variation notice under section 140CA in relation to the award modernisation process.

(2) The commission must review the relevant modern award and vary it under this division as soon as practicable after receiving the variation notice.

(3) For reviewing the relevant modern award under this division -

(a) the commission must carry out the review in accordance with section 140CC; and

(b) section 140CE and chapter 5A, part 3 do not apply.

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(4) The award modernisation process under which the relevant modern award was made continues for the purpose of enabling the award to be reviewed and varied under this division.

842 Requirements for review of relevant modern award

(1) In reviewing a relevant modern award under this division, the commission must vary the award to remove -

(a) a provision required to be included by repealed section 71M, 71MA or 71MB; and

(b) any provision ancillary to a provision mentioned in paragraph (a).

Example for paragraph (b) -clause 8.2 of the Queensland Public Service Officers and OtherEmployees Award - State 2014

(2) Also, the commission must vary the relevant modern award to include a provision that was in a relevant pre-modernisation award about any of the following -

(a) union encouragement;

(b) union delegates;

(c) industrial relations education leave or trade union training leave;

(d) right of entry;

(e) prevention and settlement of disputes, including employee grievance procedures;

(f) termination, change and redundancy.

(3) For subsection (2), the commission may amend the provision for insertion in the relevant modern award as the commission considers appropriate having regard to -

(a) the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and

(b) the modern awards objectives under section 140D; and

(c) in relation to a provision mentioned in subsection (2)(e) - the requirements under section 71MCA.

(4) In this section -

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provision, of a relevant pre-modernisation award, includes a provision of the award that was of no effect because of repealed chapter 15, part 2.

843 Other variations

(1) The commission may vary a relevant modern award to provide for a matter contained in a relevant pre-modernisation award.

(2) For deciding whether to vary the relevant modern award under subsection (1), the commission must have regard to -

(a) the provisions permitted to be included in a relevant modern award under section 71ND; and

(b) the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and

(c) the modern awards objectives under section 140D; and

(d) a submission made by a party covered by the relevant modern award about the proposed variation.

Overview

[16] The current provisions of the Act and the Minister’s new Consolidated Request require that the 2014 Award be varied. It is also a requirement of the Consolidated Request that this variation be made by 31 October 2015.

[17] Consequently, this Full Bench is required to re-consider the provisions of a new award to apply in the Queensland local government industry. As mentioned previously, the Referral to this Full Bench included an Exposure Draft of a new modern award for the consideration of the Full Bench. This Exposure Draft is included in Exhibit 1. Prior to determining its terms and conditions, the Full Bench has been required to deal with a number of threshold issues. Those issues include:

the Minister’s Intervention;

the format of any varied 2014 Award for the Queensland local government industry;

whether a number of allowances contained in the awards in existence prior to the making of the 2014 Award should again be included in the varied award in lieu of the Local government industry allowance which was inserted into the 2014 Award; and

whether Locality Allowances and the additional week of annual leave, which was included in the former Queensland Local Government Officers' Award 1998 and the Municipal Officers' Award (Aboriginal and Islander Community Councils) Award 2004 by way of a reference to a Directive of

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the Queensland Government, should again be included in the varied award.

[18] At the outset it should be noted that, at the time of the hearing of this application, out of a total 22 of 76 local governments in Queensland have their employment conditions governed by either the 2014 Award or by the 2014 Award together with a certified agreement approved by this Commission since the making of the 2014 Award in September 2014.

[19] Throughout this decision the following organisations will be referred to as follows:

the Local Government Association of Queensland Limited (LGAQ);

the Queensland Services, Industrial Union of Employees (QSU);

the Australian Workers' Union of Employees, Queensland (AWU);

the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland; the Electrical Trades Union of Employees, Queensland; the Plumbers & Gasfitters Employees' Union of Queensland, Union of Employees and the Construction, Forestry, Mining & Energy, Industrial Union of Employees Queensland (BEMS Unions);

the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU);

the Electrical Trades Union of Employees, Queensland (ETU);

the Construction, Forestry, Mining & Energy, Industrial Union of Employees Queensland (CFMEU);

the Plumbers & Gasfitters Employees' Union of Queensland, Union of Employees (PGEU);

the Transport Workers' Union of Australia, Union of Employees (Queensland Branch (TWU);

the Queensland Independent Education Union of Employees (QIEU).

Threshold issue - the Minster's intervention

[20] A preliminary, or threshold, issue relates to the extent to which the Consolidated Request may be said to direct the Commission as to the content of any variation to the 2014 award made in response to the Consolidated Request. In particular:

(a) whether the Minister can direct the Commission about what should be included in the varied award;

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(b) whether the Consolidated Request contains directions to the Commission about what the varied award must contain; and

(c) if so, what weight the Commission should give to any directions contained in the Consolidated Request and how much discretion the Commission has in the way in which it gives effect to a specific direction or directions from the Minister.

[21] At first blush, it appeared that the terms of the Consolidated Request may have impermissibly breached the doctrine of the separation of powers between the executive and judicial arms of government. The Commission, albeit a tribunal, is a court of record and required to act judicially.

[22] In order to deal with this issue, submissions were sought from the parties, including the Minister.

[23] Written submissions were received and oral argument in relation to this issue was heard on 28 September 2015.

[24] The Minister intervened as of right pursuant to s 322 of the Act, and thereby became a party. Somewhat ironically, Mr J Murdoch QC, who sought leave to appear on behalf of the Minister, was unable to do so because the LGAQ objected to the Minister being legally represented. Section 319(2)(b)(ii) only allows a party to be legally represented in proceedings of this nature with the consent of all other parties. The Commission lacks the power to exercise a discretion to grant leave.

[25] In his written submission, the Minister submits in essence that the Commission is required by the Act to ensure that the varied award "is compliant with the terms of the [Consolidated] Request," in particular the statements in Schedule 1 of the Consolidated Request that the Commission:

(a) "is to give consideration to a review of the allowances and other provisions" in the 2014 Award and, to that end, the Commission "is to give consideration to restoring the provisions of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation award/s;"

(b) "is to review the Consolidated and other allowance arrangements" currently in the 2014 Award to "ensure employee entitlements have not been reduced in comparison with the allowance arrangements prescribed in the pre-modernisation awards;" and

(c) "is to give consideration to the submissions of the parties in the review of the allowances and other provisions, in particular where a party can demonstrate a reduction in employee remuneration or an employee entitlement as a consequence of the consolidation of, or changes made to, the allowances and other provisions."

[26] The Minister submits that "it was envisaged" in the Consolidated Request that, in determining the varied award, "employee entitlements and conditions would not be reduced or removed from what was available in pre-modernisation awards."

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[27] Ultimately, the separation of powers issue need not be decided because no party has submitted that either the Act or the Consolidated Request goes so far as to direct the Commission as to what is to be contained in any provision that the Commission prescribes in the varied award.

[28] The position of the Minister is encapsulated in the following exchange with Anthony James, who appeared for the Minister: " … the Minister’s intent through this process is to ensure that it is not - as a consequence of process for entitlements to be removed or lost." … "But how we get to that point is up to us? … As long as the objective is reached, the form of the award which achieves that outcome could be expressed, notionally, in a number of ways?" "Yes." "And so is your submission that we should ensure that that objective is reached, but, beyond that, the Minister isn’t prescribing how we get to that objective?" "The Minister is not prescribing the detail of what will be in the award, but he does clearly contemplate that the outcome should not be a reduction in the terms and conditions that were available to employees in the pre-modernised award."2

[29] How the Commission achieves that is up to the Commission.

[30] It is timely to refer to s 140C which makes it clear that the Minister’s request is in relation to process. We note that the Minister may request that an award modernisation process be carried out by the Commission and the Commission is to carry out the award modernisation process in accordance with the award modernisation request. Beyond an ability to direct the Commission as to subject matter to be included, or not, in the award, the Consolidated Request does not extend to the content of the subject matter.

[31] No separation of powers issue has therefore arisen.

[32] The BEMS Unions faintly submitted that the Consolidated Request is delegated legislation and that accordingly its requirements are imperatives. This submission was not advanced. The Consolidated Request is not delegated legislation.

[33] In support of their case the unions relied, particularly, on the Statement of Intent and Schedule 1 of the Consolidated Request where the Minister said:

"A modern award shall provide for fair and just employment conditions.

The purpose of award modernisation is to ensure awards remain relevant and provide for the rights and responsibilities that ensure economic advancement and social justice for all employees and employers.

Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in pre-modernisation awards. Having regard to this, the Commission shall ensure wages and employment conditions continue to provide fair conditions in relation to the living standards

2 Transcript of proceedings, Re: Making of a modern award - Queensland Local Government Industry Award – State 2015 (Queensland Industrial Relations Commission, MAP/2015/9, VP Linnane, DP Kaufman, Industrial Commissioner Neate, 28 September 2015, 1 - 24/5 - 40.

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prevailing in the community and what is afforded to employees and employers in the relevant pre-modernisation award/s.

Schedule 1 - Local Government (excluding Brisbane City Council) award modernisation priorities

Allowances and other provisions

The Commission is to give consideration to a review of the allowances and other provisions in the Queensland Local Government Industry Award - State 2014. To this end the Commission is to give consideration to restoring the provision of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation award/s. Furthermore, the Commission is to review the consolidated and other allowance arrangements currently in the Queensland Local Government Industry Award - State 2014 to ensure employee entitlements have not been reduced in comparison with the allowance arrangements prescribed in the pre-modernisation awards.

The Commission is to give consideration to the submissions of the parties in the review of the allowances and other provisions, in particular where a party can demonstrate a reduction in employee remuneration or an employee entitlement as a consequence of the consolidation of, or changes made to, the allowances and other provisions." [Emphasis added]

[34] We are reminded by the Minister's Statement of Intent that award modernisation is not intended to reduce or remove employee entitlements and conditions from what was available in pre-modernisation awards, and to that end we are to ensure wages and employment conditions continue to provide fair conditions in relation to living standards prevailing in the community.

[35] We note that this requirement is not dissimilar to that of the Request of the former Minister pursuant to which the award was made in 2014. That Request directed the Commission to have regard to the safety net community standards operating in respect of similar work throughout Australia, including properly fixed minimum rates and allowances.

[36] Given that direction, a premise of the 2014 Award must be that it was made having regard to safety net community standards and therefore already provides fair conditions in relation to living standards prevailing in the community.

[37] In varying the award we have had regard to the Minister's intent expressed in the Consolidated Request, and consistent with our statutory duty we act conformably with it. No party has suggested that the Statement of Intent precludes a reduction or removal of any employee entitlements.

[38] It is readily apparent that the Commission is required to give consideration to restoring locality allowances and an extra week's leave. No party has suggested that the Consolidated Request demands more.

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[39] Much of the debate centered around that portion of the Consolidated Request that requires the Commission to review allowance arrangements to ensure employee entitlements have not been reduced vis à vis those in the pre-modernisation awards.

[40] The unions' submissions, which we deal with in detail later, were to the effect that the requirement that the Commission ensure employee requirements not be reduced from those which pertained in the pre-modernisation awards, means that each and every pre-existing allowance be now included in the varied award.

[41] In making the 2014 Award, the Full Bench said:

"The Full Bench, in considering the submissions, has formed the view that an Industry Allowance should be included in the award. The approach taken by the AMOD Team reflects, in the Full Bench's view, one of the objects of the modern award process - namely, to provide for awards that are simple to understand and easy to apply.3 The Full Bench was advised that in excess of 200 separate allowances have been reduced to 19 in the Exposure Draft. It is apparent to the Full Bench that the incorporation of the Industry Allowance into the modern award would provide significant cost and administrative savings to the Local Government sector, and its inclusion is consistent with the award modernisation process."4

[42] In order to ensure that individual employees were not to be disadvantaged by the reduction of some 200 allowances to 19, the Full Bench created a Local government industry allowance and also made a "preservation order" to enable any employee who was in fact disadvantaged to seek an order preserving his or her allowances. The Exposure Draft retains the Local government industry allowance and adds another allowance (the Construction, reconstruction, alteration, repair and/or maintenance allowance) to further ensure that employees are not disadvantaged by the loss of individual allowances.

[43] This regime may properly be described as an allowance arrangement. Its purpose was manifestly to ensure that employee entitlements had not been reduced in comparison with the allowance arrangements prescribed by the pre-modernisation awards that were repealed upon the making of the 2014 Award.

[44] The Consolidated Request must, of course, be read in the context of the Act, which is paramount. The Commission must comply with the Consolidated Request, but only insofar as it can do so conformably with the Act.

[45] Insofar as terms and conditions of employment and entitlements are concerned, the Act has not changed significantly since the making of the 2014 Award. The deletion of the references in the Act to "financial position" and "fiscal strategy" in ss 3(p) and 145D are not relevant to our decision, as they were not adverted to in the 2014 decision.

[46] It follows that the 2014 Award was made in a context that is substantially the same as that which currently pertains.

3 Industrial Relations Act 1999 s 140BA(a).4 Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149, [152] (e).

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[47] The restoration of the pre-existing allowances is not required by the Consolidated Reference, nor is it consistent with the award modernisation provisions of the Act. We refer in particular to ss 3(f), 140BA, 140BB, 140D and 273.

[48] Further in our view, the restoration of the pre-modernisation allowances would be antithetical to the requirements of ss 3(f), 140BA(a), (b), (c), and (d), and 140D(1), (2)(iii), (vi) and (vii).

[49] Significantly, the evidence called by the unions does not demonstrate that any employee's actual entitlements have been reduced in comparison with what he or she would have received under the allowance arrangements prescribed in the pre-modernised awards. We will analyse the evidence later in these reasons.

The format of the varied award

[50] Another threshold issue is what form the varied award should take, in particular, whether this Full Bench should vary it to conform with:

(a) the Exposure Draft prepared by the AMOD Team; or

(b) the draft prepared by five unions (the PGEU, QSU, ETU, AWU and CFMEU) and supported by some other unions.

[51] In summary, the Exposure Draft comprises eight parts dealing with formal matters; dispute resolution; types of employment, consultation and termination of employment; minimum wage and salary levels, allowances and related matters; hours of work, breaks, on-call, overtime, shift work, weekend work; leave of absence and public holidays; transfers, travelling, camps and equipment; and union related matters. Schedules 1 to 6 deal with classifications and wage levels for employees in particular streams, and the definitions and position descriptors for those streams. Schedule 7 lists employers declared not to be national system employers.

[52] The draft award submitted by the five unions comprises five short parts dealing with formal matters; consultation and dispute resolution; superannuation; leave of absence and public holidays; travelling; and award compliance and union related matters. The bulk of the document is set out in three divisions applying respectively to:

(a) administrative, technical, community service, supervisory and managerial employees;

(b) building, engineering and maintenance employees; and

(c) operational employees.

Each division contains provisions in relation to substantially the same matters as the other divisions (including application; types of employment and termination of employment; minimum wages and salary levels, allowances and related matters;

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hours of work, breaks, on-call, overtime, shift work, weekend work; leave of absence and public holidays; and travelling). Some other provisions are specific to one or more divisions.

[53] Oral submissions were made in relation to the two forms of the proposed Award.

[54] Unions' submissions: The BEMS Unions, and the AWU, QSU and TWU (the supporting unions) made separate submissions in support of the five unions' draft award. Considered together, their submissions were to the following effect:

(a) this Full Bench is not bound by the Exposure Draft but is required to consider the matter afresh, and nothing in the Act or the Consolidated Request precludes the Full Bench looking at using a different approach;

(b) it is open to the Full Bench to consider different configurations of the single award in order to recognise several discrete and distinct occupational groupings;

(c) that form of award would streamline and be reflective of different occupational groupings;

(d) in substantive terms, that form of award would be the simplest and most effective way of ensuring that employees' entitlements are not reduced by comparison with pre-modernisation standards;

(e) that form of award would ensure that the modern award remains clear, stable and certain;

(f) union members would find it easier to access and understand;

(g) employers would find it easier to understand and correctly apply relevant conditions;

(h) that form of award would be consistent with the approach local governments take when negotiating enterprise agreements, and hence would make it easier to create enterprise agreements;

(i) that form of award is consistent with s 140D of the Act (particularly s 140D(1) and s 140D(2)(g)) and the Minister's statement of intent, "Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in pre-modernisation awards."

[55] By contrast to their proposal, the BEMS Unions and supporting unions submit that

one award in the form of the Exposure Draft is large, complicated and difficult to read. They also submit that, in the absence of divisions along occupational lines, the only way to ensure employee standards are not compromised or reduced would be by picking the high standard in each instance and have it apply more generally. Such an approach, they concede, would not be acceptable.

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[56] The BEMS Unions submit that employees not covered by those unions (e.g. teachers and nurses) could be included in the appropriate existing stream or other streams could be created and included in the modern award.

[57] The QSU specifically disputes the suggestion that the five unions' draft award appears to be in conflict with the decision of a differently constituted Full Bench, that only one award should be made for the local government industry. Rather, the QSU submits that the draft award provided by the unions has a "common core" and several divisions.

[58] LGAQ's submission: The LGAQ supported, or at least had no problems with, the form of award contained in the Exposure Draft. It pointed to the substantial reduction in documentation compared with the 18 pre-modernised awards and, significantly, noted that 22 local governments (large and small) are operating under the 2014 Award. The LGAQ submitted that to depart radically from that award in content would adversely affect those local governments.

[59] The LGAQ submits that, by contrast, the five unions' draft award:

(a) contains only 18 pages of common provisions (including some provisions not included in pre-modernised awards);

(b) in essence adds a number of awards with a cover sheet, rather than being a genuine attempt to create a single local government industry modern award;

(c) is some three to four times longer than the 2014 Award;

(d) would not be simple and easy to understand and apply; and

(e) in its current form, would not take into account all the other potential groups that are currently covered by the 2014 Award.

[60] Consideration and conclusion: Although this Full Bench is not bound to accept the form of the Exposure Draft, we have not been convinced to adopt a different form.

[61] We accept that the length of a modern award is not necessarily an indication of its compliance with the modern award objectives in the Act and other requirements or guidelines. However, we are not persuaded that the incorporation of long and detailed divisions dealing separately with categories of employees into one award is the preferable way to meet those objectives and requirements. Indeed, while it might be easier for some employees to navigate through the separate parts of an award that apply only to them, the range and greater number of provisions applying to one or more categories of employees could significantly add to the administrative burden of local governments in giving effect to the varied award.

[62] As noted earlier, the five unions' draft award in its present form does not cover all employees who need to be covered by a modern local government award. In the course of oral submissions, there were suggestions about whether it would be necessary to create other streams to accommodate other employees (such as nurses and teachers) or whether those employees could be accommodated within one of the

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three proposed streams. Although it was not incumbent upon the BEMS Unions and the supporting unions to provide a draft covering employees other than their members, the discussion about this issue in the hearing and the lack of ready answers indicate that a considerable amount of work might need to be done if that form of agreement were to be adopted and revised to cover all relevant employees.

[63] There are other practical reasons for retaining that form of award. They overlap with the reasons given by another Full Bench when deciding that there should be one modern award for the local government industry in Queensland.5 They include:

(a) reducing the risk of significant differences and inequity where different provisions apply to people working side-by-side within distinct operational areas; and

(b) recognising that, for those local governments who have had practical experience in adapting to and administering the 2014 Award, the experience has been positive and the 2014 Award has proved easier (and less risky) to administer.

In other words, this Full Bench is able to decide the appropriate form of award on the basis of practical experience as well as conceptual arguments.

[64] We have decided to vary the 2014 Award to make it consistent with the form contained in the Exposure Draft and will consider the submissions made in relation to specific provisions that are in contention later in this decision.

Local government industry allowance or restoration of allowances contained in the pre-modernised awards

[65] The AMOD Team proposes a Local government industry allowance of $0.55 per hour in Clause 13(b)(i), and describes the working conditions that would qualify an employee to such compensation in Clause 13(b)(i)(A) to (E). The Local government industry allowance is intended to replace a number of specific allowance provisions in the pre-modernised awards. The Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State6 inserted such an allowance into the 2014 Award.

[66] In so doing that Full Bench stated at [152]:

"a) Local Government Industry Allowance: The AWU, AMWU, ETU, and PGEU oppose the establishment of the Local Government Industry Allowance (Industry Allowance). In particular, these Objectors argue that Clause 13(a) provides a level of monetary compensation less than the allowance regime under the existing awards. The submission is that the proposed clause would disadvantage employees who are suffering from discrete and separate disabilities on one occasion during the course of a working day. In addition, the disadvantage would be further compounded in the event that multiple disabilities were suffered at the same time or during the same day. As a

5 Re: Request pursuant to s 140CA(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2015] QIRC 156.6 Re: Making of a modern award - Queensland Local Government Industry Award - State [2014] QIRC 149.

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consequence, they argue that the flat rate of $0.50 per hour would not provide proper or fair compensation.

b) The AMWU, ETU and PGEU oppose the Industry Allowance on the following grounds:

it is a significant departure from the historical entitlement to an allowance arising as a result of a discrete disability being suffered by an employee;

the quantum is lower than many allowances currently payable to employees under pre-modernised awards;

it departs from the established principle of accumulation of allowances and acknowledgement that an employee should, in most circumstances, receive payment for each disability suffered;

it does not apply in situations where other allowances payable under the proposed modern award apply; and

it creates disadvantages and inequities to those employees required to work in environments and conditions in which they ought to be duly compensated for by way of separate and discrete allowances.

c) In short, the AMWU, ETU, and PGEU submit that Clause 13(a) should be deleted from the modern award and be replaced by discrete and separate disability entitlements that can be accumulated in circumstances where more than one disability is being suffered. In the alternative, the AMWU, ETU, and PGEU submit that, should the Full Bench be minded to determine that the modern award should include an Industry Allowance, there should be:

an increase in the per hour flat rate payable to employees in the building trades group, engineering and electrical/electronic group and operations group, respectively, of the General stream to $1.50 per hour;

provision for additional payments of $0.50 per additional disability when one or more disabilities as detailed in Clause 13(a) are being suffered; and

an accumulation of special rates provision to ensure employees suffering from multiple disabilities that are subject to allowances elsewhere in Clause 13 are duly compensated for each disability suffered, unless otherwise already excluded by the current award allowance provisions.

d) The LGAQ supports the incorporation of the Industry Allowance in the modern award. However, it submits that the clause should be amended to delete reference to 'streams'. The submission of the LGAQ is based on a different classification methodology than that adopted by the AMOD Team and by this Full Bench.

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e) The Full Bench, in considering the submissions, has formed the view that an Industry Allowance should be included in the award. The approach taken by the AMOD Team reflects, in the Full Bench's view, one of the objects of the modern award process - namely, to provide for awards that are simple to understand and easy to apply. The Full Bench was advised that in excess of 200 separate allowances have been reduced to 19 in the Exposure Draft. It is apparent to the Full Bench that the incorporation of the Industry Allowance into the modern award would provide significant cost and administrative savings to the Local Government sector, and its inclusion is consistent with the award modernisation process."

[67] That Full Bench went on to state that "Whilst accepting the utility of incorporating the Industry Allowance into the modern award, the Full Bench is nevertheless cognisant of the fact that the introduction of the modern award could lead to a reduction in the amount of an allowance, or the total amount of allowances, payable to an existing employee under Clause 13. To deal with such a situation, the Full Bench raised, in the hearing of this matter, the prospect of permitting a local government employee as at 1 January 2015 to seek a preservation order from the Commission once the modern award applies to that employee".7

[68] In the current proceeding, the AWU objects to the provision as it stands, submitting the substitution of an hourly allowance in lieu of a variety of allowances that were paid to its members on a weekly basis, will result in significant income losses to its members. The AWU proposes the allowance be paid as a weekly allowance of $21.00. It would also amend the provision so that work performed at cemeteries is excised from the working conditions for which the allowance is payable, on the basis that other specific allowances in Clause 13 compensate employees for such work.

[69] The TWU objects to the Local government industry allowance should it remain at $0.55 per hour and proposes an additional dirt money allowance for bitumen sprayer drivers, at a rate of $2.60 per day. Alternatively, the TWU proposes a dirt money allowance for bitumen sprayer drivers of $6.77 per day should the local government allowance be removed.

[70] The BEMS Unions propose the Local government industry allowance be removed altogether, submitting it is a radical departure from the way in which the Commission has dealt with allowances in the past, and that the proposed rate of $0.55 per hour does not adequately compensate their members for the disabilities suffered doing particular kinds of work, for example, working in cramped spaces.

[71] The LGAQ submits that much of the argument for the restoration of pre-modernised award conditions is based on the various union assertions that there has been a diminution in conditions of employment as a result of the single award. The LGAQ submits that these arguments have little basis in practice.

[72] It is the LGAQ's submission that the practical experience from local governments that have transitioned to the 2014 award, is at odds with what is being claimed by the unions. In this regard the LGAQ relies upon the affidavit of Tony Goode (Exhibit

7 Ibid [152] (f).

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17). Mr Goode is the Workforce Strategy Manager with the LGAQ and in response to the unions' submissions in this matter, actively sought information from the 22 local governments subject to the 2014 modern award.

[73] In the survey undertaken by Mr Goode not one of those local governments was subject to an application for a Preservation Order from an employee or had received any formal grievance from any such employee. Eleven of those local governments indicated that employees had gained income as a result of the introduction of the Local government industry allowance.

[74] By way of example: as the unions had complained that the Local government industry allowance was insufficient because it incorporated the exhumation allowance of $45.76 for each exhumation provided for in pre-modernised awards, Mr Goode further undertook a survey of local governments to establish just how many exhumations occurred each year. Of the 21 local governments who had indicated in a 2014 survey that they did perform this function, only five exhumations had occurred in the past year. That survey revealed one in the Banana local government, one in the Southern Downs local government, one in the Toowoomba local government and two in the Townsville local government. It is an allowance received by very few employees in the Queensland local government industry.

[75] The submissions of the various unions seeking the restoration of the allowances contained in the pre-modernised awards relied heavily on the terms of the Minister's Consolidated Request.

[76] In this Exposure Draft the AMOD Team has, in addition to the Local government industry allowance also included in Clause 13(h) the Construction, reconstruction, alteration, repair and/or maintenance allowance of $0.80 per hour in lieu of the Local government industry allowance whilst engaged on such work. This allowance was not provided for in the 2014 Award.

[77] It is also to be noted that no application for a Preservation Order has been made since the making of the 2014 Award. Whilst not all local government employees have been covered by the 2014 Award, at least 22 local governments and their employees have been. The fact that no individual in those 22 local governments has sought a Preservation Order suggests that the detriment to employees envisaged by the various unions did not eventuate.

[78] The Full Bench has, in dealing with the objections to Clause 13, decided to include in the varied award the Construction, reconstruction, alteration, repair and/or maintenance allowance of $0.80 per hour. The Full Bench has also decided to provide for the ability to obtain a Preservation Order. These matters are dealt with later in this decision.

[79] In those circumstances the Full Bench has formed the view that the Local government industry allowance of $0.55 per hour be included in the varied award. When one looks at the proposal of the BEMS Unions to insert 52 separate allowances into the modern award to replace the Local government industry allowance, the benefits of the one allowance are obvious. The Local government industry allowance in the modern award will provide significant cost and administrative savings.

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[80] The insertion of such an allowance is consistent with the objects of the modern award provisions in the Act.

Locality Allowance and the additional week's leave

[81] In its 2014 decision, the Full Bench said:8

"(dd) Locality Allowance: The LGAQ opposes a Locality Allowance provision in the modern award. There is no such provision in the Exposure Draft. The QSU and the QIEU seek the insertion of such allowances in Clause 13 of the modern award. In its submission, the LGAQ argues that locality allowances provide disparity and prejudice between the 'haves' and 'have nots'. The LGAQ argues that allowances based on geographical location are not appropriate in a modern minimum award. The QSU argues that the inclusion of a locality allowance provision has a strong historical basis and employees in regional and remote areas of Queensland are reliant on the payment of such an allowance. The LGAQ, by contrast, submits that '[t]he historical genesis for these provisions in pre-modernisation awards is not a reason for their retention in a modern award context.' The LGAQ goes on to submit, '[c]ost and ease of travel and transport infrastructure has changed markedly since the inclusion of these considerations; the social relativities between the centres within these predefined districts have varied considerably since their development; and technological advancement (such as tele-health) has made significant in-roads into the remoteness and isolation of these locations/districts.'

(ee) The Full Bench sees merit in the submission of the LGAQ and it is appropriate that the basis for both the payment and the topographical boundaries which underpin the locality allowances should be comprehensively reviewed. In regard to the payment of a locality allowance, the Full Bench has indicated that it is prepared to continue the operation of Clause 13.1 of the Municipal Officers' Award (Aboriginal and Islander Community Councils) and Clause 12.1 of the Queensland Local Government Officers' Award 1998 until 31 March 2015. Such a course will enable applications to be filed in the Industrial Registry (prior to 30 November 2014) by any organisation seeking the insertion of locality allowances in this modern award. Provided that such applications are filed within that time, the Commission will hear and determine such applications by 10 March 2015."

[82] Consequently, the matter was referred to Deputy President Kaufman, who heard and determined the matter. His Honour outlined the historical basis for the inclusion of those provisions in the pre-modernised award, the Queensland Local Government Officers Award 1992. He concluded that it was not appropriate that the modern award contain the locality allowance or the additional week's leave, albeit his Honour retained them for a period. It is convenient to repeat some of his Honour's reasons:9

"Historical Basis

8 Re: Making of a modern award - Queensland Local Government Industry Award – State 2014 [2014] QIRC 149, [152].9 Re: Application for Amendment of the Queensland Local Governments Industry Award – State 2014 [2015] QIRC 052.

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[7] The Unions contend that both the locality allowance and the additional week's annual leave for particular localities have been included in the employment conditions for the relevant employees since at least 1959. The 1959 federal award, (Municipal Officers (Queensland) Award 1959 (93CAR492), provided for an "isolation" allowance for each employee whose "place of employment is situated, by the most practicable route' a distance of thirty-five miles or more from the nearest railway station". However, this method altered around the late 1970's and those allowances were then fixed by reference to the allowances set by the Queensland Public Service Board.10

[8] In the federal Queensland Local Government Officers Award 1992, the relevant provision contained a direct reference to a Public Service Directive. This reference to a Directive was also mirrored in the same terms in the 1998 award, the (Queensland Local Government Officers Award 1998). This reference to Public Service Directive 19/99 existed throughout the historical consent arrangements made pursuant to former federal awards. The LGAQ notes that the directive, which applies only to public servants has no direct application to Queensland councils and their employees.

[9] There are two main points which arise from the historical basis of these allowances and both are canvassed in the submissions of the LGAQ. There is no dispute between the parties that the locality allowance existed in the past for Queensland Councils (and will continue until at least 31 March 2015). However the LGAQ points out that all employees covered by the award are in receipt of divisional and district allowances which historically has been the vehicle by which state award employees have been compensated for any inherent disabilities associated with climatic conditions and higher living costs (to the extent they exist). The LGAQ submits that the evidentiary basis for retaining such payments should be revisited, given that changes in cost of living and other socioeconomic factors have occurred since these divisional and district allowances were introduced.

[10] The LGAQ submits that the Commission has long recognized that the self-imposed regime of providing for locality allowances to public service employees is intrinsically linked to, and has the purpose of compensation for, the acknowledged discrete disability, pursuant to the Public Service Act, of employees being able to be required to transfer from their initial place of employment to any part of the state. Local Council employees do not have any such obligation and are at liberty refuse to transfer to another location. This is a fundamental difference between the employment conditions of local government and public service employees.

…

Nature of the Application

10 Submissions of QSU 12.1.15; See for example the Municipal Officers (Queensland) Consolidated Award 1975 Print D3115, cl 13.

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[11] The nature of the application seeks to amend the current award to provide entitlements to a class of white collar worker employed in the administrative, technical, community service, supervisory and managerial group in Indigenous councils and other than Indigenous councils. These employees were entitled to the allowance and the extra week's annual leave under the pre-modernised awards which merely incorporated Directive Number 19/99 made pursuant to the provisions of the Public Service Act 1996.

…

[14] The basis upon which the applications were originally made was in relation to members of the QSU and APESMA working in the nominated locations. Notably the most remote councils, where the unions have no members, were excluded from the application. As the omission to include the remote councils was apparently due to a misunderstanding, on 2 February 2015, I granted leave to the unions to further amend their application to extend to an additional seven councils.

…

[28] For reasons that follow, I have decided to dismiss the applications. In the circumstances it is not necessary to deal with the submissions of the parties in detail. I add that I am nevertheless persuaded by the submissions of the LGAQ. The evidence relied on by the unions falls far short of a persuasive case.

The Limited Scope of the Applications

[29] I noted at the commencement of the hearing that I had some concerns about the nature of the applications. Although an attempt has been made by the unions to provide an evidentiary basis for the granting of the applications, there is no doubt that the motivation behind them is an attempt to retain the locality allowances and the additional week's leave that existed in the pre-modernised awards.

[30] Section 320(3) of the Act provides that the commission is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole.

[31] Section 273 provides that the commission's functions include establishing and maintaining a system of non-discriminatory awards that, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees.

[32] These applications cover only a proportion of the employees covered by the award. They extend only to administrative, technical, community service, supervisory and managerial employees in Indigenous and non-Indigenous councils. There are an additional 11 groups of employees covered by the award in respect of whom these applications are not made.

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There is no evidence as to the numbers of employees in the respective groups. Given the nature of the groups to which the application does extend, it is reasonable to assume that those groups comprise a significant proportion of the employees of the councils concerned.

[33] Disadvantages associating with living in the areas for which the location allowance and the extra week's leave is provided are not related to the work performed, its nature, complexity or difficulty.

[34] As a matter of logic, it must be the case that any disadvantages due to the geographic location in which persons perform work are shared by all in the location to a greater or lesser extent; perhaps depending on whether the work is performed indoors or outdoors. Yet these applications cover only a proportion of the employees in the locations for which special consideration is sought.

[35] Pursuant to s 140BA of the Act part of the principal object of modernising awards is so that they, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees. In my view, to provide for a location allowance and/or an additional week's leave for only some of the employees covered by the award who find themselves in the particular location, whilst not providing the same for other employees in the same location cannot be said to be fair.

[36] Further, it would be contrary to equity and good conscience to award benefits to only some employees in the situation where they cannot be differentiated from other employees who must, as a matter of logic, suffer from the same disability. Nor would an award so providing comply with the s 273 imperative of establishing and maintaining a system of non-discriminatory awards that, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees. It is apparent that, if the applications were to be granted, the award would discriminate as between employees covered by it.

[37] It is not appropriate in the making of a modern safety net award to import the consent arrangements agreed to by some unions with the employers in respect of a portion of the workforce. In reality this is what is being sought to be done here.

[38] There is considerable force in the LGAQ's submission that there is no place in this modern award for what was, in reality, a consent arrangement to import certain public service conditions into local government awards. Such matters are properly the subject of enterprise bargaining or individual contracts. Unlike the situation in the public service where employees may be required to transfer to any location within the state, local government employees must be recruited. If incentives are required to attract and retain them, no doubt enterprise agreements and individual contracts will be tailored accordingly.

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[39] By parity of reasons the same considerations must apply to the provision of an additional week's leave.

[40] The applications must be dismissed."

[83] As we noted earlier, the Consolidated Request requires us to give consideration to restoring the provision of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation awards.

[84] Mr Henderson, who appeared for the QSU, and Mr Spriggs, who appeared for the QIEU essentially based their case for the restoration of the locality allowance and the extra week's leave on the Minister's comment that award modernisation is not intended to reduce or remove employees' pre-modernisation entitlements. Two affidavits were filed by the QSU in support of the retention of the locality allowance and the additional week's leave. They were in a similar vein to the 35 affidavits that were filed in the proceedings before Deputy President Kaufman.

[85] No positive case was put such as would warrant a different conclusion to that reached by Deputy President Kaufman. We adopt the conclusion that he reached.

Terms of the Award

[86] Having determined that the content of any award for the Queensland local government industry should follow the format of the Exposure Draft provided to the Full Bench in the Referral from Deputy President Bloomfield, we now deal with the objections to some of the clauses contained in that Exposure Draft. Before doing so, it is noted that, almost invariably, the rationale for the unions' proposals is that what they seek was contained in one or more of the pre-modernised awards.

[87] It should be noted that no objections were received to the following Clauses and Schedules in the Exposure Draft:

Clause 1 TitleClause 2 Operation and transitional arrangementsClause 4 CoverageClause 5 Queensland Employment Standards and this

AwardClause 9 Termination of Employment Clause 10 RedundancyClause 11 Consultation – Introduction of ChangesClause 14 SuperannuationClause 16 Meal BreaksClause 17 Rest PausesClause 21 Parental LeaveClause 24 Jury ServiceClause 25 Professional development and study leaveClause 26 Conference LeaveClause 27 Service LeaveClause 32 Transfer and appointment expensesClause 33 Patient Escort

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Schedule 1 Classifications and Wage Levels for Employees in the General Stream

Schedule 2 Classifications and Wage Levels for Employees in the Children's Services and Early Childhood Education Stream

Schedule 3 General Stream - Definitions and Position Descriptors

Schedule 4 Children's Services and Early Childhood Education Stream - Definitions and Position Descriptors

Schedule 5 Nursing Stream - Definitions, Position Descriptors, Wage Rates and Leave

Schedule 6 Clerical Employees Employed in Owned or Controlled Corporations of Local Government Stream - Definitions, Position Descriptors and Wage Rates

Schedule 7 Employers Declared not to be National System Employers

[88] As there were no objections raised to these Clauses and Schedules we will include them in the Award in the same terms as provided in the Exposure Draft.

Clause 3 - Definitions and interpretations

[89] In Clause 3 - Definitions and interpretations, the LGAQ objects to the definition of "double rates". The Exposure Draft provision defines "double rates" to mean "twice the applicable rate which would otherwise apply". The LGAQ seeks a definition that provides for "double the rate normally applied, except for work performed as overtime or on public holidays or where additional penalties are payable where it will mean the employee's ordinary rate in addition to the rate otherwise payable".

[90] As the LGAQ and BEMS Unions note, the term "double rates" only appears in Clause 13(t) of the Exposure Draft i.e. Work in the Rain.

[91] The LGAQ contends that there was no definition of "double rates" in any of the pre-modernised awards covering the Queensland local government industry and that the proposed definition has the effect of unreasonably compounding the allowance depending on whether the work was performed on a public holiday, as overtime, or where a penalty is otherwise payable on ordinary time.

[92] The LGAQ submits its proposal would provide a definition which produces a fixed rate for compensating employees for working in the rain where clothing becomes wet, irrespective of when it is performed. That fixed rate is said to be the equivalent of the employee's ordinary rate. In support of its objection and proposal the LGAQ relies upon the decision in Re: Electrical Engineering Award - State11.

[93] The LGAQ contends the Exposure Draft definition provides an entitlement to employees that is both unfair and unjust from the employer's perspective and is out of proportion with the associated disability which it compensates, having regard to other

11 Re: Electrical Engineering Award - State (1963) 54 QGIG 423.

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disabilities and associated allowances payable under the terms and conditions contained in the Exposure Draft. In support of its proposal, the LGAQ provides the example of an employee who works in the rain on a public holiday. In such circumstances, the LGAQ contends the employee would be paid at five times the employee’s ordinary rate for working in the rain or potentially eight times the ordinary rate if working overtime on a public holiday. The LGAQ argues that this is to be contrasted with an employee working on live sewer work on a public holiday who would receive the equivalent of three times the ordinary rate.

[94] The LGAQ suggests if the Exposure Draft definition of "double rates" were to remain then local authorities would have no alternative but to direct employees to remain idle under cover when it rains to avoid the excessive penalty rates.

[95] It is generally agreed that the definition of "double rates" should be removed from Clause 3 and that some reference be made in Clause 13(t). The Full Bench agrees the definition of "double rates" in Clause 3 of the Exposure Draft should be deleted. We will deal with the matter when considering Clause 13(t) of the Exposure Draft.

Clause 6 - Enterprise flexibility and facilitative award provisions

[96] In Clause 6.2(f) - Procedures to implement facilitative award provision, the LGAQ raises the difficulty of employees directly affected being consulted "as a group". The Full Bench acknowledges the concerns raised by the LGAQ and will insert the words "shall be consulted, where practicable, as a group or in groups".

Clause 7 - Dispute resolution

[97] In Clause 7.1 - Prevention and settlement of disputes, the QSU, the BEMS Unions and the AWU each object to the deletion of the words "The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed" from Clause 7.1(b). A similar objection was made to Clause 7.2 - Employee grievance procedures, by those unions. They seek to retain the reference to "The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed" in Clause 7.2(e).

[98] The Full Bench has decided to retain the words "The status quo existing before the emergence of a grievance or dispute is to continue whilst the procedure is being followed" in Clause 7.1(b) and Clause 7.2(e) of the Exposure Draft. It does so to retain consistency with other similar clauses in modern awards made by this Commission. However, the Full Bench notes the difficulties that can be associated with such a provision. Should the abovementioned provisions in Clause 7.1 and Clause 7.2 result in difficulties in the Queensland local government industry which would justify the removal of the "status quo" provision, then the industry could apply to have the sentence removed from both clauses of the proposed modern award.

[99] The LGAQ seeks the inclusion in Clause 7.2(b) of the words "other than those dealt with in accordance with clause 7.1" to make it clear that Clause 7.2 does not apply to disputes about the application of the award under Clause 7.1. The Full Bench is of the

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view the inclusion of the words proposed by the LGAQ would make it clear that Clause 7.1 rather than Clause 7.2 deals with disputes about matters covered by the award.

[100]Consequently, the Full Bench has decided to amend the headings to Clause 7.1 and Clause 7.2 of the Exposure Draft. The heading to Clause 7.1 will now read "Prevention and settlement of disputes about matters covered by this Award" and the heading to Clause 7.2 will be "Prevention and settlement of other grievances or disputes".

[101]Further, in Clause 7.2(b) the LGAQ objects to the term "employees' union" and proposes the term "employee's representative" on three occasions. A similar objection is taken to "the union" in Clause 7.1(d). The Full Bench raised concerns about the fact that Clause 7.2 gives employees no right to representation other than by a union representative. The Act does not make union membership compulsory and therefore employees should have a right to be represented by a person of their choosing, including a union.

[102]The Full Bench has decided that as Clause 7.1 is concerned with disputes over matters covered by the award, and the parties to the award are the unions and the various Queensland local governments, no amendment is required to provide for employee representation other than union representation in this clause.

[103]The Full Bench considers that Clause 7.2 needs to be amended to provide employees with the ability to have representation other than union representation. As a result Clause 7.2(b)(i) will provide that an employee may exercise the right to consult a representative including a union. That representative is then defined as "employee representative" elsewhere in Clause 7.2 of the Exposure Draft.

[104]The LGAQ further seeks to have the reference to "investigating employee" replaced with the word "investigator" in Clause 7.2(b) of the Exposure Draft as the person undertaking the investigation need not be an employee of the local government. The Full Bench sees merit in amending Clause 7.2(b) of the Exposure Draft to replace "investigating employee" with "investigator" and will amend the clause in the Exposure Draft.

[105]Incorporating the abovementioned views of the Full Bench into Clause 7 of the Exposure Draft, the new Clause 7 will provide as follows:

"7. Dispute resolution

7.1 Prevention and settlement of disputes about matters covered by this Award

(a) The objectives of this procedure are the avoidance and resolution of any disputes about matters covered by this Award by measures based on the provision of information and explanation, consultation, co-operation and negotiation.

(b) Subject to legislation, while the dispute procedure is being followed, normal work is to continue except in the case of a genuine safety issue.

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The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.

(c) In the event of any disagreement between the parties as to the interpretation or implementation of this Award, the following procedures shall apply:

(i) the matter is to be discussed by the employee/s concerned and the immediate supervisor in the first instance. The discussion should take place within 24 hours and the procedure should not extend beyond 7 days;

(ii) if the matter is not resolved as per clause 7.1(c)(i), it shall be referred by the employee/s concerned, or their representative, to the appropriate management representative who shall arrange a conference of the parties to discuss the matter. This process should not extend beyond 7 days;

(iii) if the matter remains unresolved it may be referred to the chief executive for discussion and appropriate action. This process should not exceed 14 days;

(iv) if the matter is not resolved then it may be referred by either party to the commission for conciliation and, if necessary, arbitration.

(d) Nothing contained in this procedure shall prevent unions or the employer's representative from intervening in respect of matters in dispute, should such action be considered conducive to achieving resolution.

7.2 Prevention and settlement of other grievances or disputes

(a) The objectives of the procedure are to promote the prompt resolution of grievances and disputes by consultation, co-operation and discussion; to reduce the level of disputation; and to promote efficiency, effectiveness and equity in the workplace.

(b) The following procedure applies to all industrial matters within the meaning of the Act:

(i) Stage 1: In the first instance, the employee shall inform such employee's immediate supervisor of the existence of the grievance or dispute and they shall attempt to resolve the grievance or dispute. It is recognised that an employee may exercise the right to consult a representative, including a union ("employee representative") during the course of Stage 1.

(ii) Stage 2: If the grievance or dispute remains unresolved, the employee shall refer the grievance or dispute to the next in line management ("the manager"). The manager will consult with the employee. The employee may exercise the right to consult or be represented by an employee representative during the course of

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Stage 2.

(iii) Stage 3: If the grievance or dispute is still unresolved, the manager will advise the chief executive and the aggrieved employee may submit the matter in writing to the employer if such employee wishes to pursue the matter further. If desired by either party, the matter may also be notified to the union.

The employer shall ensure that:

(A) the aggrieved employee or the employee representative has the opportunity to present all aspects of the grievance or dispute;

(B) the grievance or dispute shall be investigated in a thorough, fair and impartial manner.

The employer may appoint another person to investigate the grievance or dispute. The employer may consult with the employee representative in appointing an investigator. The appointed person shall be other than the employee's supervisor or manager.

If the matter is notified to the union, the investigator shall also consult with the union during the course of the investigation. The employer shall advise the employee initiating the grievance or dispute, the employee representative and any other employee directly concerned, of the determinations made as a result of the investigation of the grievance or dispute.

(c) The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise:

Stage 1: Discussions should take place between the employee and such employee's supervisor within 24 hours and the procedure shall not extend beyond 7 days.

Stage 2: Not to exceed 7 days.

Stage 3: Not to exceed 14 days.

(d) If the grievance or dispute is not settled the matter may be referred to the commission by the employee, the employee representative or the employer.

(e) Subject to legislation, while the grievance or dispute procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.

(f) Where the grievance or dispute involves allegations of sexual harassment, the employee should commence the procedure at Stage 3."

Clause 8 - Types of employment

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[106]The BEMS Unions and the AWU object to aspects of the Exposure Draft Clause 8.2 - Part-time employment. The Exposure Draft provides in Clause 8.2(a)(i) that a part-time employee is an employee who "is engaged to work a regular pattern of ordinary hours each week or fortnight that are less than the ordinary hours worked by an equivalent full-time employee". The BEMS Unions seek the inclusion of the words "on pre-determined days of the week that" following the word "fortnight", and the words "with a minimum of 10 hours per week to be agreed in writing at the time of engagement" at the end of the sentence. The AWU seeks the inclusion of the words "(minimum of 10 hours per week)" in the clause. The LGAQ is opposed to the AWU and BEMS Unions' proposal.

[107]The AWU submits that the minimum of 10 hours per week had not, to date, caused any problem. There was, however, no evidence adduced to support this submission. If as the AWU asserts, there have been no problems with the minimum of 10 hours, it may well be because the local governments do not have around 10 hours work available on pre-determined days and as a result employ no one. In the absence of evidence, it is equally open to hypothesize that some people are missing out on work (and pay) that would otherwise be available.

[108]The difficulty with that submission is that if local governments are not employing persons to perform work where they do not have 10 hours of work per week on pre-determined days available, then the local government would simply not be employing any such person to perform the work. In such circumstances neither the AWU nor any other union would become aware that the provision is limiting employment in the Queensland local government industry.

[109]One of the modern award objectives in s 140D of the Act is the "need to promote flexible modern work practices and the efficient and productive performance of work". Requiring an employer to stipulate predetermined days of the week and a 10 hour minimum per week does not advance that objective.

[110]Given the objective of award modernisation provided for in s 140D(2)(c) of the Act, the Full Bench does not support this proposal of the AWU and the BEMS Unions and will not insert such a provision.

[111]The BEMS Unions seek an additional Clause 8.2(a)(iii) i.e. "any amendments to the hours of work as stated in clause 8.2(a)(i) are to be by consent and in writing". The AWU proposes a similar clause, although at Clause 8.2(a)(iv). The LGAQ does not support the proposals by the BEMS Unions or the AWU on the basis that it is too restrictive.

[112]Whilst it is preferable in most instances for any amendment to the hours of work to be in writing, the Full Bench does not propose to include such a provision in the varied award as it does not promote flexible modern work practices or the efficient and productive performance of work.

[113]The AWU seeks the insertion of a new Clause 8.2(a)(iii) in the following terms "At the time of engagement the employer will agree in writing on the pattern of work required, including specifying the number of ordinary hours per week, the days on which the work is to be performed and the usual daily starting and finishing time".

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[114]Further, the BEMS Unions want the deletion of Clause 8.2(c) of the Exposure Draft i.e. that part-time employees can, by mutual agreement, elect to work additional ordinary hours beyond the regular pattern of ordinary hours they are engaged to perform up to and including full-time equivalent full-time hours. The BEMS Unions submit that any additional hours worked by a part-time employee beyond their pre-determined hours of work should be paid for at the applicable overtime rate. Given that the arrangement for additional hours is to be "by mutual agreement" the Full Bench considers it appropriate and rejects the BEMS Unions' proposal.

[115]The BEMS Unions propose an additional paragraph (g) in the Exposure Draft Clause 8.3 - Casual employment. The basis for the proposal is that there was such a provision in the pre-modernised Engineering Award - State 2012. This proposal would enable a casual employee who has had six months employment with a local government to have a right to elect to have his or her contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process. The QSU also supports the BEMS Unions in their proposal. A casual conversion provision was also contained in the pre-modernised Queensland Local Government Officers' Award 1998. The provision was inserted into that award when it was an award of the Fair Work Commission.

[116]The LGAQ objects to the BEMS Unions and the QSU proposal. In so doing the LGAQ relies upon the objective of award modernisation that modern awards promote flexible modern work practices and the efficient and productive performance of work in s 140D(2)(c) of the Act.

[117]The clause in both awards arose out of a test case by the then Australian Industrial Relations Commission. The provision was inserted into the federal counterpart of the Engineering Award - State 2012 and then subsequently was incorporated into the Engineering Award - State 2012. Insofar as the Queensland Local Government Officers' Award 1998 is concerned, the provision was inserted into the federal award and in 2010 those covered by the federal award came within the jurisdiction of this Commission. The Queensland award simply mirrored the existing federal award. The Commission did not undertake a test case about casual conversion, nor did it adopt the decision of the Australian Industrial Relations Commission's decision as policy.

[118]The Full Bench does not support the inclusion of such a provision in the varied award. There is no evidence before the Full Bench to suggest that Queensland local governments employ substantial numbers of casual employees in comparison with the number of full-time and part-time employees which would warrant the inclusion of such a clause. If there was some evidence of abuse of casual employment within the Queensland local government industry then such a provision might be warranted. No similar provision exists in any Queensland public sector modern award.

[119]In Clause 8.6(a) - Incidental and peripheral tasks, the Exposure Draft provides that "An employer may direct an employee to carry out such duties as are reasonably within the limits of the employee's skill, competence and training". The BEMS Unions seek the inclusion of the following words at the end of that sentence "consistent with the classification structure of this Award provided that such duties are not designed to promote deskilling".

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[120]The LGAQ contends that such a proposal is inconsistent with the objective of award modernisation that promotes flexible modern work practices. The LGAQ is concerned that, if employees have to conform to a particular calling and are unable to work across different areas in local government, this would cause real concerns within the local government industry as it could unduly restrict the way work might be performed and may lead to some forms of demarcation.

[121]The Full Bench has decided not to include this proposal as the clause currently provides that the duties are to be "reasonably within the limits of the employee's skill, competence and training". This provision only occurred in the pre-modernised Engineering Award - State 2012 and therefore only had application to a small number of Queensland local government industry employees.

Clause 12 - Classifications and minimum wage and salary levels

[122]The BEMS Unions raise a couple of issues with the proposed Clause 12 - Classification and minimum wage and salary levels. The BEMS Unions highlight the fact that the training package and associated documents for the electrical trades, which would underpin the electrical classification structure, have not yet been finalised. As and when this training package and associated documents have been finalised, the ETU indicates it would seek to further amend the modern award to make reference to the appropriate training package. The Full Bench acknowledges that intent on the part of the ETU.

[123]When dealing with the format of the modern award it is acknowledged that the BEMS Unions propose a different award format with separate classification structures. Given the Full Bench decision to follow the format provided for in the Exposure Draft it is unnecessary to deal with those submissions. The Full Bench accepts the classification structure as proposed in the Exposure Draft.

[124]The BEMS Unions also object to the proposed Clause 12.12 - Mixed functions in contending that the pre-modernised Building Trades Public Sector Award - State 2012 contained an additional safeguard which required that, should an employee be engaged performing duties at a higher level than their usual classification/wage level for a period of 4 hours or less, they would be paid at the higher rate for a minimum of 4 hours.

[125]Only a small percentage of Queensland local government employees have been covered by the pre-modernised Building Trades Public Sector Award - State 2012. Given that the great majority of Queensland local government employees likely to be performing mixed functions have not had the benefit of such a clause, the Full Bench has determined not to include such a provision in the new modern award. Further, given the current generic descriptors contained in the Schedule 3 of the Exposure Draft, the value of any such proposal is questionable.

Clause 13 - Allowances

[126]Given that the Full Bench has decided to maintain the Local government industry allowance in the form proposed in the Exposure Draft, we intend to deal with Clause 13 – Allowances, in the manner outlined in the Exposure Draft. Again, almost

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invariably, the unions' case is that the allowances they seek were to be found in one or more of the pre-modernised awards.

[127]The BEMS Unions' first objection is to Clause 13(a) - Accumulation of allowances. The Exposure Draft provision is as follows:

"Except where specifically provided in clause 13, an employee in receipt of one of the allowances prescribed is not to be deprived of an entitlement to a second allowance if the clause concerned covers that employee's situation."

[128]The BEMS Unions submit that the reference to a "second allowance" would mean an employee could only receive two allowances at any one time. The BEMS Unions argue that the Exposure Draft clause was not reflective of the principle of multiple allowances applying when multiple disabilities are suffered. The BEMS Unions further submit the proposed clause contemplates that, at the most, two allowances may be payable at any one time. The LGAQ did not understand the proposed Clause 13(a) as depriving employees of more than two allowances and therefore did not object to a rephrasing of the clause.

[129]The Full Bench has decided to amend Clause 13(a) in the Exposure Draft to delete the words "a second allowance" and replace it with "further allowances".

[130]The Full Bench has previously decided to retain Clause 13(b) - Local government industry allowance. The AWU proposes that, should the Commission retain the Local government industry allowance of $0.55 per hour provided for in the Exposure Draft, the provision should be $21.00 per week. The allowance has been set at $0.55 for each hour worked by the AMOD Team, an increase in $0.05 per hour to the allowance in the 2014 Award. There is a logical basis for the hourly rate in that the Local government industry allowance is not payable when employees are performing particular work e.g. live sewer work. Further, if the allowance was expressed as a weekly rate those employees performing live sewer work would retain the Local government industry allowance in addition to the live sewer allowance. There is thus a need for the retention of the hourly rate. Further, a part-time employee whose regular employment is only over two days per week would be entitled to the weekly rate rather than the hourly rate for 16 hours of work.

[131]The Full Bench does not support the AWU's proposal in this regard and will not insert the proposal in the varied award.

[132]The AWU proposes an amendment to Clause 13(h) - Construction, reconstruction, alteration, repair and/or maintenance allowance. The Exposure Draft provision envisages an allowance of $0.80 per hour worked being paid to employees engaged on construction, reconstruction, alteration, repair and/or maintenance work as described in Clause 13(h)(ii). The AWU propose the deletion of $0.80 per hour and its replacement with $30.40 per week. Similarly, the BEMS Unions propose an allowance of $27.20 to $29 per week for this allowance. The BEMS Unions also seek the allowance when work as described in Clause 13(e)(ii) is performed.

[133]In their written submission the BEMS Unions state:

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"This clause provides for an allowance of $0.80 per hour in lieu of the weekly rate of between $27.20 to $29 employees are currently entitled to.

We are concerned that employees have the potential to lose the majority of this allowance in some weeks should the proposed change to an hourly allowance be implemented.

Currently employees are paid this allowance for the whole week. So even when the employee is engaged in paperwork tasks, training or any other task where the allowance is not applicable, provided the employee is engaged in work where the allowance is payable for at least one hour of the week, the employee receives the weekly allowance.

…"

[134]There appears to be great confusion about the applicability of this allowance in the Queensland local government industry. That current confusion also exists amongst the union officials representing the various unions in this proceeding. The pre-modernised awards provided for this allowance to be paid "at the rate of $28.40 per week". It has never been an allowance of $28.40 per week. It is an allowance that is paid whilst engaged on construction, reconstruction, alteration, repair and/or maintenance work. If, for example, two hours of work are spent on the construction etc work then the award payment is 2 x $28.40/38 or $1.49, and not $28.40 for the week. A misinterpretation of the award provisions in the pre-modernised awards has led to arguments being advanced by the various unions that employees will be worse off under the provisions of the Exposure Draft.

[135]If such employees have been receiving the allowance as a weekly amount then it is apparent that any such payment has been made by some Queensland local governments as an over-award payment. The allowance in the pre-modernised awards is "at the rate of $28.40 per week". It is not a payment of $28.40 per week.

[136]The Full Bench does not accept either the AWU or the BEMS Unions' proposal given it is based on a misinterpretation or misunderstanding of similar allowance provisions in the pre-modernised awards.

[137]The TWU proposes additional subclauses in Clause 13(i) - Rubbish and sanitary operations allowance. The TWU seeks an increase to the allowance outlined in Clause 13(i)(i) and (ii). The TWU seeks the deletion of $1.55 per hour in Clause 13(i)(i) and its replacement with $1.93 per hour and the deletion of $1.75 per hour in Clause 13(i)(ii) and its replacement with $2.38 per hour. This proposal is said to compensate drivers for the removal of a number of allowances e.g. footwear allowance, wet pay and rubbish and sanitary operations allowance contained in the pre-modernised award.

[138]The TWU further seeks the inclusion of the following subclauses in Clause 13(i) of the Exposure Draft:

"(iii) Employees primarily engaged in sanitary or refuse collection services shall be paid $14.14 per week wet pay in addition to their ordinary wages.

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(iv) Employees primarily engaged in sanitary or refuse collection services shall be paid a footwear allowance of $2.65 per week where the employer does not provide suitable footwear.

(v) Where an employee is primarily engaged in refuse or sanitary collection, the allowance prescribed by this clause shall be treated as part of the ordinary weekly wage for the purposes of this Award."

[139]The evidence before the Commission is that currently all Queensland local governments provide drivers of rubbish vehicles and sanitary vehicles with protective footwear pursuant to workplace health and safety legislation. The TWU was unable to provide any evidence to the contrary. The Full Bench sees no reason to provide for a footwear allowance which is now obsolete.

[140]As for the proposed allowance of $14.14 per week wet pay, in addition to the drivers' ordinary wages, such drivers would be entitled to the allowance at Clause 13(t) i.e. Work in the rain allowance. The Full Bench therefore does not support the proposal of an allowance of $14.14 per week for such drivers.

[141]The Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State 201412 dealt with the reduction in this allowance as follows:

"(k) The LGAQ submits that Clause 13(e) (Drivers of sanitary, rubbish or sullage vehicles and their assistants) should be deleted from the Exposure Draft as it no longer reflects the way in which the work is carried out in the modern workforce. The LGAQ submits that the nature and type of work has changed over time and local government employees who drive sanitary, rubbish or sullage vehicles or who work as assistants generally collect waste from the cabin of the vehicle using hydraulic or mechanical means. The LGAQ submits that there is no longer a disability requiring compensation by way of such an allowance in a modern award. The TWU objects to the removal of the allowance and its replacement with the Industry Allowance of $0.50 per hour. In his affidavit, Craig Williams deposes:

'The introduction of side loaders has not completely done away with manual handling of waste. Local councils require their employees or their contractors to provide services to the aged and infirm who are unable to take out their wheelie bin. This service is colloquially known in the industry as a "sickie" or "infirm". The driver must alight the vehicle, collect the wheelie bin from the yard, empty the bin using external hydraulic controls and then return the bin to the yard. Drivers must also get out of the truck to move and empty bins that are located behind parked vehicles.'

(l) It was further submitted by the TWU that waste workers collect waste from local government parks and other roadside collections. Such work is not undertaken from the cabin. The Full Bench was advised that Ipswich City Council, Townsville City Council, Bundaberg City Council and

12 Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149, [152].

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Rockhampton City Council employ their own drivers rather than contract out the waste management services to private enterprise. The TWU submitted that the allowance contained in Clause 13(e) of the Exposure Draft should be amended to better reflect the nature of the work undertaken by waste workers. In support of that submission, the TWU submitted a number of examples which illustrated the potential loss to existing employees.

(m) The Full Bench, having considered the submissions, has adjusted the allowance in Clause 13(e)(i) to $1.50 and in Clause 13(e)(ii) to $1.70 per hour. Clause 13(e) would therefore provide as follows:

'(e) Rubbish and sanitary operations allowance

(i) Drivers of rubbish vehicles and their assistants primarily engaged on the collection of refuse shall be paid an additional amount of $1.50 per hour whilst directly engaged on such work.

(ii) Drivers of sanitary vehicles and their assistants shall be paid an additional amount of $1.70 per hour whilst directly engaged on such work.'

[142]The TWU has not advanced any argument that would cause this Full Bench to deviate from the view expressed by a differently constituted Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State 2014.13

[143]The Exposure Draft in Clause 13(k) - Leading hand allowance, provides that an employee appointed by the employer to be in charge of the work of other employees shall be entitled to an additional daily allowance as follows:

"Per day(A) in charge of 2 or more but less than 6 employees $5.28 (B) in charge of 6 or more employees but less than

11 employees $7.92(C) in charge of 11 or more employees $10.56"

[144]The BEMS Unions propose the following:

"All other than plumbers -

(A) in charge of not more than 1 person $3.93(B) in charge of 2 and not more than 5 persons $8.66(C) in charge of 6 and not more than 10 persons $10.91(D) in charge of more than 10 persons $14.53

Plumbers only -

13 Ibid.

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(a) in charge of not more than 1 person $5.65(b) in charge of 2 and not more than 4 persons $7.86(c) in charge of more than 4 persons $11.07"

[145]The BEMS Unions contend the pre-modernised awards i.e. the Engineering Award - State 2012, the Building Trades Public Sector Award - State 2012 and the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 entitled a person in charge of at least one other person to receive a leading hand allowance. Further, in those pre-modernised awards, there exists no exclusion as to the employees to be counted in the number of employees the leading hand is in charge of. Different rates applied in each of the abovementioned pre-modernised awards. In the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 an amount of $5.33 per day (currently $5.50 per day) was paid regardless of how many employees the person was in charge of.

[146]The BEMS Unions rely upon the evidence of Michael Parkinson (Exhibit 10). Mr Parkinson is employed by the Gold Coast City Council as a Ganger level 7 (leak detection) and is a delegate for the PGEU. Mr Parkinson's evidence was that he receives an allowance of $5.33 per day (now $5.50 per day) for being a leading hand, and that at the Gold Coast City Council employees generally work in groups of two, with one person being paid the leading hand allowance. Mr Parkinson did not quantify how often he is in charge of the work of only one other person.

[147]The LGAQ objects to the BEMS Unions' proposal contending that, as the various pre-modernised awards contained competing provisions, the Exposure Draft proposal is fair and just.

[148]Deputy President Bloomfield in Tab 17 of his Referral (Exhibit 1) provided an analysis of the Leading Hand Allowances in awards reflected in the Exposure Draft, other Queensland Awards and awards of the Fair Work Commission. A review of that analysis indicates that the provisions contained in the Exposure Draft reflect an appropriate provision in all the circumstances. The Full Bench has thus decided to retain the provision outlined in the Exposure Draft.

[149]The Exposure draft in Clause 13(l) - Live sewer work allowance, provides as follows:

"(i) Employees engaged on live sewer work or cleaning septic tanks shall, during ordinary hours, be paid at the rate of time and a-half for all time so engaged. During overtime or on week-ends or public holidays employees shall be paid one-half of the ordinary hourly rate in addition to the relevant overtime, week-end or public holiday rate for all time engaged on live sewer work.

(ii) The allowance shall also apply to include a minimum payment of one hour for work on pumps after removal from a pumping station or treatment works for cleaning or stripping.

(iii) Employees who are on any day required to carry out work in connection with the release of blockages in sewerage lines, septic tanks and

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connections thereto shall be paid not less than 4 hours at the appropriate rates.

(iv) This allowance shall not apply to employees engaged at sewerage treatment plants who are to receive the additional allowance prescribed at clause 13(b)(i).

(v) For the purposes of this clause, live sewer work shall mean work carried out in situations where there is direct personal connection with a sewer through which sewerage is flowing. The term shall also include work in connection with septic tanks and cleaning of mechanical plant if such plant is contaminated with sewage. Where personal connection with a sewer or septic tank is blocked by a disc, plug, valve, water seal or other means, the live sewer rate shall not apply.

(vi) The local government industry allowance prescribed in clause 13(b) or the construction, reconstruction, alteration, repair and/or maintenance allowance prescribed in clause 13(h) shall not be paid in addition to the allowance prescribed in clause 13(l)."

[150]The BEMS Unions object to some of the provisions in Clause 13(l) of the Exposure Draft. The BEMS Unions contend that live sewer work is one of the most significant, objectionable and confronting disabilities suffered by local government employees. In particular the BEMS Unions object to the change from "direct aerial connection" to "direct personal connection". The BEMS Unions argue that the different description has the potential to narrow the scope of the allowance and therefore it is a reduction in the pre-modernised standard.

[151]The BEMS Unions rely on the evidence of Scott Reichman, an organiser with the ETU (Exhibit 11). Mr Reichman asserts that the change to "personal connection" will deny access to live sewer allowance to many employees. Whilst Mr Reichman states that the only allowance an employee is deprived of when performing live sewer work is the Construction, reconstruction, alteration, repair and/or maintenance allowance, we observe that such an employee is also entitled to the Local government industry allowance in such circumstances. Mr Reichman also states:

"There will also be employees who perform electrical isolations for the open sewer pit, and safety observers on a landing above the open sewer. Whilst those employees are not necessarily directly handling sewage soiled equipment, they are exposed to and working in close proximity to the sewer well, and experience the obnoxious conditions such as cramped spaces and offensive smell."

[152]The BEMS Unions claim that Mr Reichman's evidence suggests the majority of

employees who are currently able to claim live sewer allowance would not be able to do so. This, it is argued, would be a significant reduction in pay for many employees.

[153]The BEMS Unions also rely upon the evidence of Mr Parkinson in relation to this proposition. Mr Parkinson is paid this allowance pursuant to the provisions of an enterprise agreement. He states that he currently gets paid a 17.4% loading as part of his ordinary weekly wage to fully compensate him for any other entitlements otherwise payable in respect of live sewer. Mr Parkinson is thus paid this 17.4%

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loading at all times. Mr Parkinson's concern is that if there is a change to "personal connection" in the proposed award that his 17.4% allowance would be removed. Mr Parkinson confirms that his connection with live sewer is only aerial i.e. he states that his work "as a ganger involves him in locating and lifting manholes to measure depths and trace sewer lines with electronic locators to show accurate alignment and depths of sewer lines".

[154]Mr Parkinson states that if he were to rely on an award that provided for "direct personal connection" or "personal connection" he would be worse off by about $3,908.16 per year whilst employed as a ganger. It should however be noted that Mr Parkinson currently receives an allowance under an enterprise agreement well in excess of the provisions contained in both the Exposure Draft and the pre-modernised award that applied to his employment.

[155]The AWU also objects to the change in description and supports the objection of the BEMS Unions.

[156]The LGAQ opposes a return to "aerial connection" or "direct aerial connection" contending that it has been open to misinterpretation and the cause of constant disputation. The LGAQ poses the dilemma faced by local governments – is aerial contact merely seeing or smelling a sewer or does direct aerial contact mean physically having sewage splash or spray upon a person? The LGAQ submits the terminology "direct personal connection" is clear and unambiguous and properly compensates employees who are directly exposed to the sewage. The LGAQ further submits local governments wish to compensate employees who are exposed to adverse conditions and supports this allowance for those who have contact with sewage.

[157]Given the extensive debate on this allowance both in the 2014 hearing and in this hearing, the Full Bench undertook an analysis of the insertion of this provision into awards applying in the Queensland local government industry. It is apparent that the provision was first inserted in Re: Water Supply and Sewerage Labourers' Award - State (Excluding Brisbane)14 as a result of a hearing before then Commissioner Pont. In the course of that proceeding the Commission undertook inspections at Haigh Park and Kingle Park in Rockhampton.

[158]The transcript of that proceeding, following the inspections, indicates that Mr Alexander, on behalf of the AWU, summarised those inspections as follows:

"Inspections were ultimately carried out at Rockhampton at Haigh Park and Kingle Park on 5 September 1973.

At Haigh Park the operation of clearing a blockage in a four inch line was described as a relatively simple operation which was occasioned by tree roots entering the pipe and ultimately causing a complete blockage in the line leading from the toilet facilities. The engineer, Mr Phillip, and the employees concerned agreed that the job was a simple one but this in itself did not detract from the extremely offensive aspects of the operation such as the obnoxious stench and the clearing away by hand of the raw sewage contained in the pipe.

14 Re: Water Supply and Sewerage Labourers' Award - State (Excluding Brisbane) (1973) 84 QGIG 565.

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It was during this operation that the engineer read the context of the union's application and acknowledged that the claim was in keeping with the work undertaken by the employees.

The clearing of the blockage at Kingle Park was an entirely different operation in that it required one of the employees to enter a man hole leading directly to a main sewer some 18 feet below. The blockage was located on a branch line leading from a public convenience. Clearing of the blockage necessitated the ganger to position himself inside the man hole and directly opposite the outlet from the branch line into the main sewer. Quite apart from other aspects considerable care had to be exercised in entering the man hole and necessitated the use of safety harness. The employee inside the man hole positioned the augur and directed the employees on the surface during the clearing of the blockage.

It was apparent we submit that the operation at Kingle Park clearly established that this work has no place for weaklings, no place for workers on light duties and that sustained effort is surely a requirement of the job. On the job at Kingle Park when the blockage was ultimately cleared the ganger was directly in front of the branch line leading directly into the main or truck sewer. On this occasion he was fortunate not to be deluged by raw sewage.

Employees on this type of job are not always so fortunate as it is common place for the person in the man hole to be deluged when the blockage is ultimately cleared. It was apparent from the gangers cramped position and being affixed by a safety belt that getting out of the hole required an even greater amount of effort than getting in and as a result it became almost an impossibility to get out of the path of the raw sewage [sic] after the augur was withdrawn and the blockage freed.

All employees carry full sets of spare clothing on the vehicle because this aspect of blockages is part and parcel of everyday operations. It is apparently not unusual for fumes to be present in the main sewer which are capable of rendering these employees violently ill and these being men accustomed to the most objectionable stench.

The work being carried out is particularly offensive in the extreme."

Commissioner Pont then commented as follows:

"I think it should be mentioned that at the inspection at Kingle Park it was mentioned by the man clearing the sewerage and acknowledged by the engineer that on one occasion one man went out at the bottom of one of these sewers because of the foul air."

Mr Alexander then went on to state the following:

"That is so. The employees person and their clothes become contaminated in view of their continuous contact with the raw sewage which in the majority of cases has been rotting in the pipes for months. Instances were given at Kingle

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Park that blockages were usually caused by tree roots entering the pipes, sewerage lines sinking, and by paper, rag, bottles, stones etc. being trapped in the pipes.

It is very difficult to be objective in describing the work being carried out by these employees during the inspection but we feel a description of ultimate filth may best describe the work being performed. It goes without saying that these employees perform a vital service and the work being carried out is of the utmost importance to the community.

…

To effect clearance of blockages in these receptacles the employees must work in raw sewerage [sic], and if this is not bad enough they have at times to contend with additional hazards as a result of thoughtless acts by members of the community who in an endeavour to effect clearage empty caustic soda and the like into the pedestal.

Instances were given of other hazards associated with blockages from premises tenanted by doctors and veterinaries when hypodermic needles get caught in the blockage and later become embedded in hands of the employees charged with clearing the line.

What is most significant however in the overall operation is that these employees are working in raw sewage all of the time. This sewage is possibly in its most obnoxious form in that it has been trapped in a line rotting away for weeks or months and it is in this form of human excrement that these employees are in contact with each and every day of their employment.

There can be little doubt that the only way to gauge the foul nature of the work is to actually observe the employees at work.

…

We wish to make further reference to the remarks made by Mr Phillip the Rockhampton Council engineer. He raised the query that employees may not be carrying out actual work on blockages etc. for the full eight hours per day and as such could it be interpreted that payment at the additional penalty only be incurred for the time actually spent in the blockage release and would this necessitate the keeping of time sheets by the ganger.

…

When one takes into account the time spent in travelling, the work involved clearing the blockage and the absolute necessity to clean up after the job we contend that a minimum payment of four hours at the appropriate rate is equitable under the circumstances and in addition would compensate for the necessity in the absolute majority of circumstances for the employee to launder the clothing worn during the operation.

…

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It could not be challenged, we submit, that risk of infection is ever present in this type of operation.

On the blockage at Kingle Park ganger Neilsen received abrasions to the hands and one of the other employees indicated the numerous sores on his hands and legs which he advised were obtained during the course of his work."

[159]The live sewer allowance is paid for the disability suffered by such employees and is a substantial allowance. The allowance is payable at the rate of time and a-half for all time so engaged for a minimum of 4 hours.

[160]As a substantial allowance it is paid for the type of disability associated with such work as described by the AWU in the 1973 case. It is not an allowance paid for traffic management or traffic control adjacent to the sewer work being performed by other employees nor is it payable when a person is wandering around the sewerage pumping station whilst other employees are engaged in live sewer work. In the view of the Full Bench, the term "personal connection" or "direct personal connection" appears to more aptly describe the work and the connection with the live sewer work that was envisaged when the provision was arbitrated in 1973 than the terms "aerial connection" or "direct aerial connection" used in the pre-modernised awards. If an employee is required to handle product that has been contaminated by sewage then such an employee would be entitled to receive the allowance as and when they handled the contaminated product.

[161]A substantial allowance should be paid as and when a substantial disability is incurred by an employee. The Full Bench has thus decided to retain the words "personal connection" or "direct personal connection" in Clause 13(l) of the Exposure Draft.

[162]The BEMS Unions further propose an amendment to Clause 13(l)(iii) to include a sentence that "All time involved in travelling to and from such operations shall be deemed to be time worked for the purposes of this clause". The Full Bench has decided not to insert the BEMS Unions' proposal. Employees performing live sewer work are provided with protective clothing. There is no evidence of any disability per se in travelling to and from such operations which would warrant the payment of this substantial allowance.

[163]The BEMS Unions further propose the deletion of the words "clause 13(b)(i)" in Clause 13(l)(iv) and their replacement with the words "elsewhere in this award". The BEMS Unions also propose the deletion of the words "The local government industry allowance prescribed in clause 13(b)" from Clause 13(l)(vi).

[164]Because of the substantial nature of the live sewer allowance, employees in receipt of this allowance are not entitled to the Local government industry allowance as provided for in Clause 13(b) of the Exposure Draft when in receipt of the live sewer allowance. The Full Bench does not accept either of the BEMS Unions' proposals. The fact that the Local government industry allowance is not payable when an employee is in receipt of the live sewer allowance should be explicit in the provisions of the modern award.

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[165]The BEMS Unions further propose the words "and electrical" after the word "mechanical" and the words "or installed in association with sewerage" after the words "contaminated with sewage" in Clause 13(l)(v) of the Exposure Draft. The Full Bench sees merit in the inclusion of the word "and electrical" in Clause 13(l)(v) of the Exposure Draft but does not support the proposed inclusion of the words "or installed in association with sewerage" in that clause because there may be no exposure to sewage in such circumstances.

[166]The AWU seeks to exclude the reference to a "motorcycle" in Clause 13(m) - Motor vehicle allowance, contending that it should be deleted as there was no reference to a motorcycle in the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003. The Exposure Draft provides for an allowance of $0.77 per kilometre when using a motor vehicle and a lesser amount of $0.26 per kilometre for motorcycles. Clearly the costs associated with running a motorcycle are much less than the costs associated with running a motor vehicle. The Full Bench sees no reason to provide employees driving a motorcycle with the same allowance as those driving a motor vehicle. The Full Bench does not accept this AWU proposal.

[167]The BEMS Unions propose a number of variations to Clause 13(n) - Overtime meal allowances and meal breaks in the Exposure Draft. The first such variation is the replacement of "2 hours" in Clause 13(n)(i)(A) with "1.5 hours".

[168]In creating a single modern award for the Queensland local government industry there has had to be some rationalisation of conditions. The great majority of employees to be covered by this modern award currently has an entitlement to an adequate meal or a meal allowance after working more than two hours after ordinary ceasing time. No merit case has been made out for reducing this period to 1.5 hours.

[169]The Full Bench supports the provision in the Exposure Draft and does not intend to provide for a more advantageous provision than that which existed in the pre-modernised awards for the great majority of employees in the Queensland local government industry. The Full Bench therefore rejects the first variation to Clause 13(n) sought by the BEMS Unions.

[170]The BEMS Unions also seek to have shift workers receive a paid crib break of 30 minutes in addition to a meal allowance where employees are required to work overtime. In this regard the BEMS Unions also seek the removal of Clause 13(n)(iii). No other shift workers employed by Queensland local governments have an entitlement to a paid crib break of 30 minutes and a meal allowance. As mentioned previously, the Full Bench is of the view that a consistency of entitlement is appropriate. We are therefore not prepared to include a provision for BEMS Unions members which is greater than the provision that applies to all other local government employees. The Full Bench thus does not accept the amendments to Clause 13(n) as proposed by the BEMS Unions.

[171]In the pre-modernised Engineering Award - State 2012, the BEMS Unions contend employees receive a "paid meal break after overtime has been worked after the usual ceasing time of one and a half hours". In the Building Trades Public Sector Award - State 2012, the BEMS Unions contend employees working overtime on a weekend get an unpaid meal break of 30 minutes after the 5th hour of work. Should overtime continue past 9 hours then the employee is entitled to a further paid break of 30

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minutes. In the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 the BEMS Unions submit that all meal breaks during overtime are to be paid.

[172]In the Queensland public sector awards the great majority of employees do not receive a paid meal break when working overtime. In federal awards the paid meal break is limited to a 20 minute period. Those employed pursuant to Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004 had no entitlement to a paid meal break when working overtime. In circumstances where the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003, the Engineering Award - State 2012 and the Building Trades Public Sector Award - State 2012 have paid meal breaks, the Full Bench has decided to incorporate a paid meal break of 20 minutes for all employees when overtime is being worked. The Full Bench will amend the Exposure Draft accordingly.

[173]In Clause 13(s) - Working in water allowance, the Exposure Draft provides for employees who are required to work in water to a depth exceeding 750mm to be paid an allowance of $1.75 per hour. The BEMS Unions propose an additional allowance for working in wet places of $4.52 per day in addition to the rates prescribed in the Award. Further the proposal sets out when a place shall be deemed to be "wet" i.e. when water, other than rain, is dropping from overhead so that the clothing of employees will become saturated with water, or where an employee works without protective waterproof footwear in water.

[174]The pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 has a provision that employees having water drip from overhead so that their clothing becomes wet or who work without protective footwear in water exceeding a depth of 50 mm are paid an additional $4.66 per day (currently $4.80 per day). The Building Trades Public Sector Award - State 2012 has a similar provision whereby employees are paid an amount of $0.663 per hour (currently $0.6795 per hour) in such circumstances.

[175]The BEMS Unions rely upon the evidence of Ian Christensen who stated that he works in trenches where there are broken water mains and he gets wet around 10 to 20 hours per month. It is noted that this allowance has been incorporated into the Local government industry allowance. A full-time employee working only ordinary hours would receive a Local government industry allowance of $83.60 in a four week period.

[176]If Mr Christensen was employed pursuant to the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 and worked his ten hours in such conditions over a five day period, he would receive a Working in water allowance of $23.30 (currently $24.00) in the four week period and an amount of $46.60 in a four week period should he work twenty hours over ten days in that four week period. If Mr Christensen had been employed pursuant to the Building Trades Public Sector Award - State 2012 he would have received between $6.69 over the four week period and $13.38 if he had worked twenty hours in that four week period. This exemplifies the inequities in the current pre-modernised awards applying in the Queensland local government industry where individuals employed pursuant to

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different pre-modernised awards receive different payments for working in the same conditions.

[177]In any event, the Local government industry allowance of $83.60 in the four week period would more than compensate for such disability. The Full Bench does not accept this proposal of the BEMS Unions.

[178]As noted earlier, it is in Clause 13(t) - Work in the rain allowance where the term "double rates" is used. The proposed Clause 13(t)(i) in the Exposure Draft provides as follows:

"Where an employee is required to perform work in the rain and by so doing gets clothing wet the employee shall be paid double rates for all work so performed. Such payment shall continue until the employee finishes work or until the clothing dries or is able to be changed, whichever is the earlier."

[179]The Full Bench refers to our earlier comments in relation to Clause 3 of the Exposure Draft and has determined to amend Clause 13(t)(i) of the Exposure Draft to provide as follows:

"Where an employee is required to perform work in the rain and by so doing gets clothing wet, the employee shall be paid the employee's ordinary rate in addition to the rate applicable at the time for all work so performed. Such payment shall continue until the employee finishes work or until the clothing dries or is able to be changed, whichever is earlier in time." [Emphasis added]

Such a clause adequately and properly compensates for the disability.

Additional Allowances Sought

[180]The TWU proposes the inclusion of an allowance for "dirt money" for rubbish and sanitary vehicle drivers and bitumen sprayer drivers. The TWU submits under the pre-modernised award, bitumen sprayer drivers were entitled to a "dirt money allowance" of $6.77 per day (currently $6.80 per day) or $33.85 per week (currently $34.00 per week). Under the Exposure Draft that would be replaced by the Local government industry allowance of $0.55 per hour or $20.90 if working a 38 hour week. The TWU contends that such drivers will be $12.95 worse off per week. The TWU thus seeks the restoration of this allowance via the payment of a "dirt money allowance" of $2.60 per day.

[181]It should be noted that in order for drivers to receive $33.85 per week they would need to be driving on each of the days of the week. With the Local government industry allowance the drivers would get $20.90 per week whether or not they drove vehicles on each of the five days in the week.

[182]It is doubtful whether any Queensland local government in 2015 employs drivers of sanitary vehicles. The bitumen sprayer drivers are likely to be engaged on construction, reconstruction, alteration, repair and/or maintenance where they would

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be entitled to the allowance in Clause 13(h), i.e. an allowance of $0.80 per hour. If driving in such circumstances over a 38 hour week such drivers would be entitled to an allowance of $30.40 for the week. If they were not employed for 38 hours driving, and therefore not entitled to the construction allowance for the full 38 hours, then they would get the Local government industry allowance for those periods not engaged in construction etc.

[183]The rubbish and sanitary vehicle drivers and their assistants were entitled to the rubbish or sanitary operations allowance, wet pay and footwear allowance. The TWU submits that for rubbish drivers and their assistants these allowances amounted to $111.03 per week and $128.13 per week for sanitary drivers and their assistants. Under the Exposure Draft these allowances have been replaced with a reduced rubbish or sanitary operations allowance plus the Local government industry allowance. The TWU contends that as a result the rubbish drivers and their assistants would be $31.23 per week worse off and the sanitary drivers and their assistants would be $40.73 per week worse off.

[184]The TWU relies upon the affidavit of Craig Williams, the Co-ordinator/Lead Organiser for the TWU, in support of its proposals. It was the evidence of Mr Williams that the disposal of municipal waste in Queensland is generally outsourced by local governments to waste management companies who are national system employers covered by the federal modern award, the Waste Management Award 2010. Such organisations are also parties to enterprise agreements made under the Fair Work Act 2009.

[185]Mr Williams provided an affidavit in these proceedings which was sworn on 5 September 2014. Mr Williams' evidence was that, to his knowledge, there are only four local governments which directly employ waste truck drivers i.e. the Ipswich City Council, the Townsville City Council, the Rockhampton City Council and the Bundaberg City Council. These four local governments have certified agreements applying to their waste truck drivers. Mr Williams also suggested that perhaps the Winton Shire Council and the Charters Towers Regional Council might also employ waste truck drivers.

[186]It was Mr Williams' concern that local government entities might commence to compete for work against the private sector waste management companies and, should there be a disparity in the wages payable to local government employees as compared to the rates of pay of employees of waste management contactors, then local government entities would have an unfair competitive advantage i.e. it would be possible for local government entities to cease to use contractors for their waste management work.

[187]Consistent with the comments of the Full Bench when dealing with the TWU's proposal for Clause 13(i) - Rubbish and sanitary operations allowance, the Full Bench does not accept the TWU's proposal and will not include such an allowance in the modern award.

[188] The QSU proposes a new allowance for Supervisors. The proposal is as follows:

"Employees employed in the Administrative, technical, community service, supervisory and managerial group who supervise employees of the Trades or

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Operational group who receive allowances or special rates listed in their Division, and when actually subject to those disabilities that attract those allowances or special rates, shall be paid such allowances in the same terms and for the same periods as those applicable to those employees."

[189]The LGAQ objects to the QSU proposal for the insertion of a Supervisor allowance for employees employed under the Administrative, technical, community service, supervisory and managerial group. The LGAQ submits that supervisors (such as forepersons), if engaged under the Administrative, technical, community service, supervisory and managerial group, receive a range of other more beneficial entitlements that compensate them for the occasional exposure to certain disabilities that employees they may be supervising are subject to. Supervisors are already adequately compensated for their role as supervisors, regardless of whether that supervisory activity takes place remotely or as part of some site visit.

[190]The rate of pay for supervisors reflects the fact that they are supervisors. Further, if such supervisors are performing work (with those that they supervise) in circumstances where a disability allowance is encountered by the supervisor, then the supervisor is entitled to payment of the particular disability allowance. The Full Bench does not accept the insertion of a specific supervisors allowance in the proposed modern award.

Preservation Order

[191]The Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State 201415 said:

"Whilst accepting the utility of incorporating the Industry Allowance into the modern award, the Full Bench is nevertheless cognisant of the fact that the introduction of the modern award could lead to a reduction in the amount of an allowance, or the total amount of allowances, payable to an existing employee under Clause 13. To deal with such a situation, the Full Bench raised, in the hearing of this matter, the prospect of permitting a local government employee as at 1 January 2015 to seek a preservation order from the Commission once the modern award applies to that employee. In this regard, the Full Bench has, after hearing further argument on the construction of the proposed order, formed the view that the following process should be adopted:

'Application for a preservation order

Employees as at 1 January 2015 who consider that the introduction of the modern award has led, or will lead, to a reduction in an allowance, or the total amount of allowances, payable to them under Clause 13 of the award may be able to seek a preservation order from the Commission. To gain a preservation order the employee must first meet the following criteria:

(i) an application must be made within 12 months from the time the award applies to the employee;

15 Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149, [152] (f).

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(ii) an employee must first use the individual dispute resolution procedures contained in Clause 8.1 of the award;

(iii) the employee must show that a reduction in an allowance, or the total amount of allowances, is attributable to the modern award;

(iv) the Commission must be satisfied that the employee claiming a reduction in an allowance has actually suffered a reduction in an allowance or is likely to suffer a reduction in an allowance;

(v) any reduction in allowance will be assessed over a 6 month period;

(vi) any application must be for a sum in excess of $247 calculated over a six month period; and

(vii) the employee has not been adequately compensated in other ways for the reduction.

If successful in gaining a preservation order an employee will have their allowance or allowances preserved while they remain in the same job. The allowances paid under this order shall be automatically increased from the same date and in the same manner as such monetary allowances are adjusted in any State Wage Case decision or other decision of the Commission adjusting minimum award rates'".

[192] The Local government industry allowance was designed to address the situation where in striving to adhere to the award modernisation objectives, some employees might be disadvantaged. To this end, a global allowance was struck which was intended to ensure that the lack of some of the myriad of allowances in the new modernised award did not result in employees being disadvantaged.

[193] The Full Bench has decided to increase the quantum of the Local government industry allowance by ten percent and has further provided for a Construction etc allowance in certain circumstances.

[194] The Preservation Order is a safety net to catch and protect any employee who might fall through the cracks. In so providing, the Full Bench has had particular regard to the Minister’s exhortation that the Commission ensures that employee entitlements have not been reduced in comparison with the allowance arrangements prescribed in the pre-modernised awards.

[195]This Full Bench endorses the comments made by the 2014 Full Bench and will insert into the modern award a term enabling employees in the Queensland local government industry to seek a Preservation Order where the criteria for such an order are met. The Preservation Order to be inserted in the modern award at Clause 13(w) of the Exposure Draft will be as follows:

"Application for a preservation order

Employees as at 1 November 2015 who consider that the introduction of the modern award has led, or will lead, to a reduction in an allowance, or

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the total amount of allowances, payable to them under Clause 13 of the award (excluding Locality allowance or the additional week's leave currently enjoyed by some employees pursuant to Queensland Local Government Officers' Award 1998 or the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004) may be able to seek a preservation order from the Commission. To gain a preservation order the employee must first meet the following criteria:

(i) an application must be made within 12 months from the time the Award applies to the employee;

(ii) an employee must first use the individual dispute resolution procedures contained in Clause 7.2 of the Award;

(iii) the employee must show that a reduction in an allowance, or the total amount of allowances, is attributable to the Award;

(iv) the Commission must be satisfied that the employee claiming a reduction in an allowance has actually suffered a reduction in an allowance, or allowances, based on a correct interpretation and application of pre-modernised award provisions;

(v) any reduction in allowance will be assessed over a six month period;

(vi) any application must be for a sum in excess of $247 calculated over a six month period; and

(vii) the employee has not been adequately compensated in other ways for the reduction.

If successful in gaining a preservation order an employee will have the allowance or allowances preserved while remaining in the same job. The allowances paid under this order shall be automatically increased from the same date and in the same manner as such monetary allowances are adjusted in any State Wage Case decision or other decision of the Commission adjusting minimum award rates."

Clause 15 - Hours of work

[196]In Clause 15.1(b) - Ordinary hours of duty, the Exposure Draft provides that "An employer and an employee or groups of employees may agree that the ordinary hours of work are to exceed 7.25, 7.5 or 8 hours on any day (as the case may be), to a maximum of 10 hours". Immediately after that sentence the AWU seeks the inclusion of the following sentence "Provided that where any arrangement of ordinary hours exceeds 8 hours on any day the relevant union or union shall be notified in writing within 14 days of the commencement of work under such an arrangement".

[197] The LGAQ objects to such an inclusion. To require the local government to notify a union within 14 days of the commencement of work just extends the time for any arrangement to be confirmed. The LGAQ further submits that if any employee wishes

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to inform their union they can be represented by that union or unions in negotiations toward a possible agreement under that Clause.

[198]The Full Bench considers that such a provision has no utility. The Full Bench does not intend to include such a provision in the varied award.

[199]Both the AWU and the BEMS Unions propose inclusions to Clause 15.1(e) - Ordinary hours of duty. The Exposure Draft provides "The method of working a 36.25, 37.5 or 38 hour week may be altered by the employer after giving 7 days' notice or such shorter period as may be mutually agreed upon between the employer and the majority of affected employees". The AWU proposes the addition of the following sentence immediately afterwards "Prior to an alteration of the method of implementing a 38 hour week the employer shall consult with the employees concerned". The BEMS Unions propose to extend the provision with "… following negotiations between the employer and employees concerned, in accordance with the consultation provision at clause 11", which is the wording used in the existing award.

[200]The LGAQ objects to these proposals on the same grounds as their objection to proposed additions to Clause 15.1(b), i.e. the Clause 11 provisions already require consultation with the affected employees in such circumstances.

[201]The difficulty with the LGAQ’s proposals is that Clause 11 requires consultation where the employer decides to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. A change to the ordinary hours of work does not appear to be captured by the consultation provisions in Clause 11 of the Exposure Draft.

[202]The Full Bench has decided to add the following provision after the words "affected employees" in Clause 15.1(e) of the Exposure Draft "Prior to that alteration the employer shall consult the employees affected".

[203]The Exposure Draft provides the following at Clause 15.2(h) - Shift work arrangements "By agreement between an employer and the affected employees, ordinary hours of duty not exceeding 12 hours on any day may be worked subject to". The AWU proposes the inclusion of the words "and the union or unions concerned" after the words "the affected employees".

[204]Insofar as Clause 15.2 - Shift work arrangements is concerned, the LGAQ supports the proposed clause in the Exposure Draft which requires the agreement of employees when extending shifts. Given any change will affect the employees personally, the LGAQ submit that it makes sense that the employees themselves need to agree to the change. The LGAQ rejects the unions' proposal to extend the pre-requisites for any extension to also require union agreement. The LGAQ suggests that this could lead to a situation of a union refusing to agree to a change despite a significant majority of employees agreeing to the change. The LGAQ submits that any employee is at liberty to advise their union of any proposed change and they can be represented by their union in negotiations.

[205]The LGAQ submits the inclusion of a requirement to obtain union agreement, and not just consult with a union or unions, could result in circumstances where a shift-work arrangement involving one member and ten non-members is held up because of a

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failure to obtain union agreement. The LGAQ submitted the safeguards in Clause 6.2 - Procedures to implement facilitative award provisions, are sufficient.

[206]In order to provide some consistency with provisions in the modern award, the Full Bench has decided to incorporate a new paragraph at the commencement of Clause 15.2(h) as follows:

"Notwithstanding the spread of ordinary hours prescribed in this clause, an employer and an employee or an employer and the majority of the employees concerned (who may be represented by their local union delegate/s, their union officials or any other person authorised to represent them) may agree to work ordinary hours of duty not exceeding 12 hours on any day subject to:"

[207]Both the AWU and the BEMS Unions propose changes to Clause 15.4(a)(ii) - Payment for working ordinary hours - day workers. These unions propose increasing the rate of pay for Saturday work, as provided for in the Exposure Draft, from time and one-half all day to time and one-half for the first 2 hours and double time thereafter (the BEMS Unions) or to time and one-half for the first 3 hours and double time thereafter (the AWU). The AWU submits the relevant pre-modernised award clauses were consistent with its proposal and to not include this current entitlement would result in a reduction in entitlements for local government employees. The BEMS Unions rely upon the pre-modernisation Building Trades Public Sector Award - State 2012 in which employees are paid double time after the first 2 hours and submit that inclusion of a similar requirement into the modern award would ensure no loss of pay for their members. Both the AWU and the BEMS Unions make similar submissions in relation to Clause 15.5 (b)(i), which relates to ordinary hours for shift workers.

[208]The LGAQ objects to the inclusion of any proposals whereby ordinary time worked on a Saturday is paid at anything other than time and one-half, indicating that to introduce double time for ordinary hours on Saturdays is to mimic overtime penalty rates. The LGAQ contends that the AMOD Team conducted a comprehensive survey of the rates paid for ordinary hours on Saturdays and have included in the Exposure Draft a standard widely applied across Queensland and federally.

[209]Further, the LGAQ submits that the majority of employees currently covered by the AWU and the BEMS Unions' submissions do not generally engage in Saturday work as part of their ordinary hours. Mr Blaney, representing the QLGA, relied on the affidavit evidence of Scott Martin, an organiser with the AMEPKU who stated "Even though I am not aware of any councils I'm involved in currently performing ordinary hours on Saturdays, in the event that does arise in the future - …"

[210]The BEMS Unions propose that Clause 15.5(a) - Payment for working ordinary hours - shift workers, be amended to include a sentence that reflects the pre-modernised Engineering Award - State 2012 i.e. employees who perform shiftwork on a Saturday are paid time and one-half for the first 3 hours and double time thereafter with a minimum period of 3 hours' work or payment in lieu, and a minimum payment of 3 hours at the overtime rate for Sunday work. The BEMS Unions suggest that the proposal for all ordinary hours worked on a Saturday to be paid at time and one-half is a significant reduction for these employees.

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[211]The LGAQ indicated that the great majority of employees of Queensland local governments covered by these unions do not generally work on a Saturday on ordinary time. The reluctance of local governments to engage a person on ordinary hours on a Saturday and pay them the equivalent of overtime rates can be readily understood.

[212]The LGAQ objects to the BEMS Unions' proposal to increase penalty rates for shift work employees working ordinary hours on weekends. The LGAQ submits that there are very limited circumstances where genuine shift work is performed in the local government industry in Queensland. The Exposure Draft reflects the Saturday penalty rates for shift workers under the pre-modernised Queensland Local Government Officers' Award 1998 and these penalty rates provide a fair and relevant minimum safety net provision having regard to existing pre-modernised awards and the prevailing community standards.

[213]In Exhibit 1, the Full Bench has been provided by Deputy President Bloomfield with an analysis of these Clause 15 conditions in Tab 8 - Tab 11. In summary:

Tab 8 compares the payment for ordinary time worked on a Saturday, payment for ordinary time worked on a Sunday and the minimum payment for work on a public holiday in local governments across Australia;

Tab 9 compares conditions in twelve federal awards with some similarity to local government operations. Once again this analysis deals with the payment for ordinary time worked on a Saturday, payment for ordinary time worked on a Sunday and the minimum payment for work on a public holiday;

Tab 10 compares conditions in six federal awards which include coverage of BEMS-type employees. Once again this analysis deals with the payment for ordinary time worked on a Saturday, payment for ordinary time worked on a Sunday and the minimum payment for work on a public holiday; and

Tab 11 compares the conditions in pre-modernised and modernised awards applying to the Queensland Public Sector and the proposed provisions in the Exposure Draft. Once again this analysis deals with the payment for ordinary time worked on a Saturday, payment for ordinary time worked on a Sunday and the minimum payment for work on a public holiday.

[214]The provisions contained in Tab 8 - Tab 11 in the Referral demonstrate that, in the context of the local government industry in Queensland, the provisions contained in the Exposure Draft are fair and reasonable and conform with the modern award requirements of the Act. A small minority of employees are covered by the pre-modernised Engineering Award - State 2012 whereas a substantial number of employees in the Queensland local government industry are covered by the Queensland Local Government Officers' Award 1998. The Full Bench is not prepared to include in the Exposure Draft the proposals sought by the BEMS Unions and the AWU.

Clause 18 - Overtime

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[215]In Clause 18.2(a) - Payment of overtime - day workers, the Exposure Draft makes provision for overtime to be paid at the rate of time and one-half for the first 3 hours of work and double time thereafter. The BEMS Unions seek to have the "3 hours" changed to "2 hours" on the basis that the pre-modernised Building Trades Public Service Award - State 2012 made provision for payment at the rate of time and one-half for the first 2 hours. The BEMS Unions make the same claim in respect of Clause 18.2(b) and (c).

[216]The QSU proposes that the Exposure Draft clause be replaced with the following provision "18.2 All overtime worked on Saturdays shall be paid for at the rate of double time with a minimum payment of three hours" as the current provision in the Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004 had such a provision.

[217]The percentage of employees in the Queensland local government industry working under the pre-modernised Building Trades Public Sector Award - State 2012 is very small when compared to the overall workforce. Further, while the number of employees covered by Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004 is quite significant, the rate of double time of all overtime worked on a Saturday is far in excess of that recorded in Tabs 8 - 11 in the Referral. In the circumstances the Full Bench has decided to support the provision contained in the Exposure Draft which reflects that contained in the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003.

[218]In Clause 18.5(a) - Recall to duty - other than from on-call, the Exposure Draft provides for a minimum payment of 3 hours for each call out regardless of whether the employee is required to work the 3 hours. Both the BEMS Unions and the AWU seek to have the Exposure Draft amended to provide for a minimum payment of 4 hours for each call out. The argument is advanced on the basis that two of the pre-modernised awards contain such a provision i.e. the Building Trades Public Sector Award - State 2012 and the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003. The BEMS Unions contend that it is not unusual for employees in the local government industry to be recalled to work to attend to breakdowns in sewerage treatment plants, water works and traffic lighting. The same argument is advanced in respect of Clause 18.5(c).

[219]The LGAQ objects to the proposal from the BEMS Unions and the AWU contending that in the primary pre-modernised local government award (Local Government Employees (Excluding Brisbane City Council) Award - State 2003) the provision was for time and one-half for the first 3 hours and double time thereafter. This award has, according to the LGAQ, applied to the broadest majority of local government employees in Queensland.

[220]The Full Bench considers that the provision contained in the Exposure Draft of payment for overtime at the rate of time and one-half for the first three hours and double time thereafter is fair and just in all of the circumstances. Once again there has to be a rationalisation of conditions when combining a number of awards into one award in order to comply with the modern award provisions in the Act.

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[221]The BEMS Unions and the AWU seek also to have the amount of $41.00 in Clause 18.7(a)(iii) and (iv) removed and the insertion of the word "an amount equal to 8 hours ordinary pay" in lieu thereof. The argument advanced by the unions is that the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 provides for 8 hours ordinary pay and its removal would result in a loss for those receiving the higher rates of pay. It is fair and equitable that all employees be remunerated equally.

[222]Once again this provision is in only one of the pre-modernised awards. If an employee is required to be "on-call" then the disability suffered is the same for each employee regardless of the classification level or the wages received by the respective employees.

[223]In Clause 18.8(a) - Recall to duty - from on-call, the Exposure Draft provides as follows:

"If an employee is recalled to perform duty whilst on call on any day or night outside their ordinary working hours in accordance with clause 18.7(a), the employee shall be paid for the time worked with a minimum payment as for 3 hours for each call out at the prescribed overtime rate.

[224]The BEMS Unions seek to have the "3 hours" replaced with "4 hours" contending that the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003, the Building Trades Public Sector Award - State 2012 and the Engineering Award - State 2012 each provide for "4 hours".

[225]In Exhibit 1, the Full Bench has been provided by Deputy President Bloomfield with an analysis of these Clause 18 conditions as follows:

Tab 8 compares the minimum payments and certain employment conditions in local government across Australia. This deals with the "on-call payment" provisions, the "recall (other than from on-call minimum payment)" and the "recall from on-call minimum payment";

Tab 9 compares conditions in twelve federal awards with some similarity to local government operations. Once again this analysis deals with the "on-call payment" and the "recall allowances";

Tab 10 compares conditions in six federal awards which include coverage of BEMS-type employees. Once again this analysis deals with the "on-call payment" and the "recall allowances"; and

Tab 11 compares the conditions in pre-modernised and modernised awards applying to the Queensland Public Sector and the proposed provisions in the Exposure Draft. Once again this analysis dealt with the "on-call payment" and the "recall allowances".

[226]Any interpretation of the abovementioned material indicates that what is proposed in the Exposure Draft reflects what employees in the Queensland government and employees covered by federal awards overwhelmingly receive. The Full Bench does

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not intend to alter the provisions contained in Clause 18 in the manner sought by the BEMS Unions and the AWU.

[227]The LGAQ seeks the inclusion of a new Clause 18.8(e) in the following terms:

"Overtime worked in the circumstances specified in clause 18.8 shall not be regarded as overtime for the purposes of clause 18.9 where the actual time worked is less than 3 hours on such recall or on each of such recalls."

[228]The LGAQ's proposal seeks to make it clear that the fatigue leave/rest period after overtime under Clause 18.9 does not apply where an employee is recalled to work overtime pursuant to Clause 18.8 and the actual time worked is less than 3 hours. The addition of this subclause is said by the LGAQ to make Clause 18.8 consistent with Clause 18.5 which provides for the exemption from the application of Clause 18.9. Under Clause 18.5(c) where the time worked on a recall is less than 3 hours, the fatigue break/rest period provisions under Clause 18.9 do not apply. The LGAQ's proposal is identical to that provided for in Clause 18.5(c).

[229]The Full Bench accepts that the LGAQ proposal is consistent with the provisions of Clause 18.5, and will amend the Exposure Draft accordingly.

Clause 19 - Annual Leave

[230]The QSU proposes the insertion of an additional week's annual leave for employees in the Administration, technical, community service, supervisory and managerial employees group who are employed in a number of local governments outlined in the QSU's Appendix 2. This matter has been dealt with earlier in this decision in paragraphs [81], [82] and [85].

Clause 20 - Personal Leave

[231]The Exposure Draft in Clause 20(c) provides for the phasing out of an entitlement under the pre-modernised Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004 of 12 days personal leave in the first year of employment, and 15 days personal leave in the second and subsequent years of service. The Exposure Draft proposal reduces such employee's entitlement from 15 days sick leave on full pay in 2015 to 10 days sick leave on full pay in the year 2020.

[232]There is no good reason why one group of employees in the Queensland local government industry should continue to retain additional personal leave. The Act provides for 10 days sick leave on full pay for each completed year of service. Apart from white collar workers in the local government industry in New South Wales, no other employees in the local government industry in Australia receive more than 10 days sick leave.

[233]There is a desirability for consistency in the provision of personal leave across all employees in the Queensland local government industry and the Full Bench is of the view that Clause 20(c) in the Exposure Draft is a fair and reasonable compromise in the circumstances.

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[234]The QSU also proposes the inclusion of the portability of personal leave provision which was previously provided in the Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004. The QSU seeks the following additional clause:

"(d) Credit shall be allowed for personal leave accumulated with previous employing respondents provided that the employee's service as between such employers has been continuous and that the employee at the time of engagement produces a certificate from the previous employer certifying the amount of personal leave accumulated to the employees' [sic] credit.

(e) Continuous service is defined for the purpose of 20(d) above to include service with an employer or with more than one employer which has been continuous except for the employee having been dismissed or stood down, or by the employee having terminated the employee's service with the employer provided that the employee shall have been re-employed by that employer or some other employer within a period not exceeding the combination of any period of unused annual leave when the employee ceased employment with the employee's previous employer plus a further period of four weeks."

[235]This is a provision only enjoyed by those employed pursuant to the pre-modernised Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004. It may prove to be a deterrent to a local government recruiting from within the ranks of the local government industry. The Full Bench is of the view that if a local government wishes to employ a person from within the industry then that employee could negotiate the portability of such personal leave. Alternatively this could be a matter for enterprise bargaining. The Full Bench will not amend the Exposure Draft in the manner sought by the QSU.

[236]The QSU also seeks the inclusion of a clause enabling the re-crediting of personal leave. In the pre-modernised Queensland Local Government Officers' Award 1998 and the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004 such a provision existed. The QSU seeks the inclusion of the following provision:

"(f) If an employee while absent from duty on annual leave granted pursuant to clause 19 - Annual leave, is overtaken by illness the employee shall, on production of a certificate signed by a duly qualified medical practitioner certifying that such employee was incapacitated by such illness to the extent that the employee would be unfit to perform normal duties for a period of not less than five days shall be entitled on application to have such period of illness which occurred during the employee's annual leave debited to the employee's personal leave entitlements and the employee's annual leave entitlement shall be adjusted accordingly.

(g) If an employee whilst absent from duty on long service leave granted pursuant to clause 22 - Long service leave, is overtaken by illness the employee may, subject to the provision contained in this clause, be entitled on application to have such period of illness which occurs during the

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employee's long service leave entitlement be adjusted accordingly, provided that:

(i) the application for adjustment is approved by the employing authority;

(ii) the application includes a certificate signed by a duly qualified medical practitioner certifying that such employee was incapacited by such illness to the extent that the employee would be unfit to perform normal duties for a period of not less than five days."

[237]Only the white collar employees in the Queensland local government industry have been entitled to have personal leave re-credited. No other employees have this entitlement. Whilst such a provision is not found in any of the Queensland public sector modern awards, the Full Bench has formed the view that, as it currently is a benefit for the majority of employees in the Queensland local government industry, it will include a provision dealing with the re-crediting of personal leave. It seems to us that the inclusion of such a provision has merit in that an employee is entitled to sick leave as well as annual leave and long service leave. There is an unfairness in requiring employees to forego periods of annual leave and long service leave if they fall ill.

[238]The Full Bench will thus insert into the Exposure Draft the following clause:

"Clause 20

(d) An employee:

(i) while absent from duty on annual leave granted pursuant to clause 19; or

(ii) while absent from duty on long service leave granted pursuant to clause 22; and

(iii) who produces a certificate signed by a duly qualified medical practitioner certifying the employee was incapacitated by illness to the extent that the employee was unfit to perform normal duties for a period of not less than five days,

shall be entitled on application to have such period of illness debited to the employee's accrued personal leave entitlements. The employee's annual leave or long service leave entitlement will be adjusted accordingly."

[239]The insertion of the above clause will extend this benefit to all blue collar workers in the Queensland local government industry.

Clause 22 - Long Service Leave

[240]The Exposure Draft provides at Clause 22(b) - Long service leave as follows:

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"In lieu of the provisions of section 71HB(2)(a) and (b) of the Act, all employees covered by this Award who complete 10 years' continuous service are entitled to long service leave at the rate of 1.3 weeks on full pay for each year of continuous service and a proportionate amount for an incomplete year of service."

[241]In order to rectify the discrepancy that currently exists between white and blue collar workers, the LGAQ proposes that from 1 January 2016 those employees who currently receive inferior long service leave entitlements should receive the same entitlements as the white collar workers.

[242]The LGAQ also proposes the new provisions be phased in from 1 January 2016, with existing entitlements unaffected. There is no objection to this LGAQ proposal. As this would be an additional benefit to all of the blue collar workers in the Queensland local government industry, and the LGAQ proposal met with no objection, the Full Bench will vary the proposed award by inserting the following clause:

"22. Long service leave

(a) Long service leave, including for casual employees, is provided for in Division 6 of the QES. Clause 22(b) and (c) supplement the QES.

(b) In lieu of the provisions of section 71HB(2)(a) and (b) of the Act:

(i) those employees who were, prior to 1 November 2015, employed pursuant to the Queensland Local Government Officers' Award 1998, the Municipal Officers' (Aboriginal and Islander Community Councils) Award 2004 and those employed pursuant to the Administrative, technical, community service, supervisory and managerial group of the Queensland Local Government Industry Award - State 2014 and who complete 10 years' continuous service, are entitled to long service leave at the rate of 1.3 weeks on full pay for each year of continuous service and a proportionate amount for an incomplete year of service.

(ii) as and from 1 January 2016, all employees covered by this Award who are not otherwise at that time subject to clause 22(b)(i), shall commence accruing long service leave at the rate of 1.3 weeks on full pay for each year of continuous service, and a proportionate amount for an incomplete year of service.

To be clear, this clause is not intended to affect an employee's accrued entitlement to long service leave prior to 1 January 2016.

(c) Clause 22(b) does not apply to those employers stated in Schedule 7 which are declared not to be national system employers."

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Clause 23 - Public Holidays

[243]The BEMS Unions propose an additional provision to Clause 23 - Public holidays, which entitles any employee, whose employment is terminated or who is stood down by their employer during the month of December and who is re-employed in January the following year, to be paid for one or more of the holidays; Christmas Day, Boxing Day and New Year's Day, at the ordinary rate payable at the time of their dismissal or stand-down. This is consistent with clause 7.6.6 of the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003.

[244]The LGAQ objects to the BEMS Unions' proposal. It contends there is no evidence of the suggested practice of terminating staff in December and then rehiring them in the New Year within the Queensland local government sector.

[245]The Full Bench is not prepared to accept the BEMS Unions' proposal in this regard. There was no evidence before the Full Bench which suggested that such a practice had occurred or was occurring, and hence there is no need for such a provision.

Clause 28 - Employees required to report to a depot

[246]The BEMS Unions submit that Clause 28(b) - Employees required to report to a depot should be amended to remove reference to employees being able to use their own vehicles where they are required to report to the usual depot and then travel to a job site in excess of 5 km from the depot. Clause 28(b) in the Exposure Draft provides as follows:

"(b) Where an employer requires an employee to report to the usual depot and then travel to a job site in excess of 5 km from the depot, the employer shall provide transport to the job site and return, or compensate the employee for the reasonable cost of travel. Where the employee uses their own vehicle, for the purpose of this clause, reasonable cost shall mean the payment of the amount prescribed by clause 13(i)."

[247]The BEMS Unions argue the clause places a new obligation on employees currently subject to the Building Trades Public Sector Award - State 2012 and the Engineering Award - State 2012 to, in some instances, provide their own vehicle to travel. The clause does no such thing. The BEMS Unions seek the removal of all words after "to the job site and return" so that there would be no obligation on the employee to compensate an employee for the use of their own vehicle. The LGAQ objects to the proposed change. The LGAQ submits that local governments typically provide transport to a job site unless an employee is late. Many local governments supply employer vehicles with commuter use benefits.

[248] The LGAQ opposes the BEMS Unions' proposal on the basis that the Exposure Draft provision reflects the entitlement under the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003.

[249] The pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 provides that the travelling between the depot and the job that occurs outside an employee's ordinary hours shall be paid for at ordinary rates. The coverage of this pre-modernised award is substantial in the Queensland local

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government industry unlike the coverage of the Building Trades Public Sector Award - State 2012 and the Engineering Award - State 2012. As Clause 28 of this varied award will have application to all employees it would not be appropriate to extend the provisions in the Building Trades Public Sector Award - State 2012 and the Engineering Award - State 2012 to all employees. As stated previously, the Full Bench has had to rationalise the award conditions in a number of the pre-modernised awards when varying the 2014 Award. The Full Bench is of the view that to provide for this benefit to all employees would be inappropriate in all the circumstances.

[250] The Full Bench considers that when travelling between a depot and the job outside the employee's ordinary hours of duty, the employee is not working but rather travelling and therefore the addition of travelling time at ordinary rates is appropriate in a safety net award.

[251]The Full Bench finds no reason to amend Clause 28(b) as requested by the BEMS Unions, especially in light of the agreement by both the BEMS Unions and the LGAQ that an employee might prefer to use their own vehicle. Such an amendment might preclude that from occurring.

[252]The BEMS Unions also seek an amendment to Clause 28(c) in the Exposure Draft which currently provides for the payment at the employee's ordinary hourly rate when travelling between the depot and the job outside the employee's ordinary hours of duty. The BEMS Unions seek to have the employee be paid at the applicable overtime rate.

[253]The LGAQ objects to the BEMS Unions' proposal on the basis that the Exposure Draft provision reflects the entitlements under the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003.

[254]In the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 employees are paid for such travel at ordinary rates. The Full Bench therefore considers that the position it has adopted with respect to Clause 28(b) shall also have application to Clause 28(c) i.e. that payment for travelling between the depot and the job that occurs outside an employee's ordinary hours of duty shall be paid for at the employee's ordinary hourly rate.

[255]The Full Bench considers that travelling between a depot and the job outside the employee's ordinary hours of duty should be paid at the ordinary hourly rate and will amend the Exposure Draft accordingly.

[256]Further, it is noted that in Clause 28(c) the reference to Clause 33 should be a reference to Clause 29 in the Exposure Draft and the Full Bench will make that necessary amendment.

Clause 29 - Employees required to report directly to the job

[257]The BEMS Unions propose an addition to Clause 29(a) - Employees required to report directly to the job site, in the following terms:

"If the travel time is undertaken outside of ordinary hours the applicable overtime rate shall apply."

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[258] In the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 where an employee is required to report directly to a job site any additional time taken to travel to the job site compared to travelling from the employee's home to the usual depot shall be paid for at ordinary rates.

[259] The LGAQ opposes the BEMS Unions' proposal on the same basis as it objects to the BEMS Unions' proposal in respect of Clause 28(c) of the Exposure Draft.

[260] As the pre-modernised Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 covers the majority of the blue collar workers in the Queensland local government industry and the Full Bench is varying a safety net award, we have adopted a similar approach to that for Clause 28(c) i.e. the Full Bench determines that where an employee is required to report directly to a job site that any additional time taken to travel to the job site compared to travelling to the employee's home to the usual depot shall be paid for at ordinary rates.

Clause 30 - Travelling and relieving expenses

[261]The BEMS Unions object to Clause 30(b) of the Exposure Draft and propose the deletion of the words "maximum of 12 hours travelling time on any one day". The BEMS Unions further seek the deletion of Clause 30(b)(i) and (ii) which provide payment for travel between Monday to Saturday to be at their ordinary hourly rate and travel on a Sunday or a public holiday at the rate of time and one-half. In lieu thereof the BEMS Unions propose the following Clause 30(b):

"An employee undertaking travel in accordance with Clause 30(a) shall be entitled to be paid at the usual rates."

[262]The Full Bench does not have any difficulty in limiting the payment to a maximum of 12 hours travelling time on any day in the absence of any evidence of this being abused. Further, the Full Bench does not see any difficulty with Clause 30(b)(i) and (ii) of the Exposure Draft as employees are not working during this period but simply travelling. The Full Bench thus rejects the BEMS Unions' proposal in this regard.

Clause 31 - Camps

[263]The TWU seeks the deletion of "where practicable" in Clause 31(a) of the Exposure Draft. The differently constituted Full Bench in Re: Making of a modern award - Queensland Local Government Industry Award - State16 held at paragraph [59](a) of that decision that the "existing provisions of Clause 10.1 and 10.2 of the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 shall be the minimum standard of living for camp accommodation. Should a local government seek to provide camp accommodation at a lesser rate than that currently contained in clause 10.1 and 10.2 of the Local Government Employees' (Excluding Brisbane City Council Award - State 2003 (Exhibit 10 in the proceedings) then the matter should be referred to the Commission under Clause 8 of the modern award for conciliation and/or arbitration".

16 Re: Making of a modern award - Queensland Local Government Industry [2014] QIRC 149.

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[264]To the knowledge of the Full Bench there has been no referral to the Commission since the making of the 2014 Award in respect of camp accommodation. Whilst not all local governments have been subject to the 2014 Award, there have been 22 such local governments covered by that award. This Full Bench endorses the view expressed by the 2014 Full Bench and sees no reason to vary the provision in the Exposure Draft.

[265]The BEMS Unions and the TWU seek an amendment to Clause 31(b) of the Exposure Draft which currently provides that "An employee undertaking travel to camp in accordance with clause 31(a) shall be entitled to be paid at their ordinary hourly rate, to a maximum of 8 hours on any one day". The BEMS Unions propose to replace the word "ordinary" with the word "usual" and to delete "to a maximum of 8 hours on any one day".

[266]No evidence was before the Full Bench that would suggest it takes more than 8 hours to travel from a local government depot to a camp site in the Queensland local government industry. This sub-clause was inserted by the 2014 Full Bench at the request of the TWU who sought a clause relating to travelling time. Further, the existing travelling time provision in the Engineering Award – State 2012 and the Local Government Employees' (Excluding Brisbane City Council) - Award 2003 provide for payment at the rate of ordinary time. The Full Bench has not been persuaded to vary the Exposure Draft provision as sought by the BEMS Unions and the TWU.

[267]The TWU also seeks a rather prescriptive Clause 31(b) in the following terms:

"(b) Where a camp or caravan is situated:

(i) within a radius of 150 km of the recognised centre employees will be transported to and from such centre on a weekly basis by the Employer;

(ii) outside a radius of 150 km and within a radius of 300 km of the recognised centre the employees will be transported to and from such centre on a fortnightly basis by the Employer;

(iii) outside a radius of 300 km of the recognised centre the employees will be transported to and from such centre on a 4 weekly basis by the Employer."

[268]The TWU then seeks new Clauses 31(c) - (g) as follows:

"(c) Travelling time between the camp or caravan and the recognised centre is to be paid for at ordinary rates.

(d) The ordinary working hours shall be 38 in each week exclusive of travelling time provided for in sub paragraph (b).

(e) Employees using their own vehicles to travel between the camp or caravan and recognised centre and who agree to transport stores and/or other materials shall be paid travelling time at the rate of time and a-half.

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(f) Travelling time outside the ordinary working hours relating to travel between the camp and a job site will be paid for at the rate of time and a-half.

(g) Employees required to use their own motor vehicles in lieu of Employer provided transport shall be paid 60.22c per kilometre."

[269]The TWU submits that under the pre-modernised award, the Local Government Employees' (Excluding Brisbane City Council) - Award 2003, employees were entitled to the provisions sought in (c) to (g) above. In a safety net modern award such a prescriptive award provision is not desirable. Consequently, the Full Bench declines to insert these provisions in the Exposure Draft. If any local government does not transport employees from camp sites or caravan sites on a relatively regular basis then the TWU can notify the Commission of a dispute for conciliation and/or arbitration.

Clause 34 - Equipment and instruments

[270]The BEMS Unions seek an amendment to Clause 34(d) - Equipment and instruments, of the Exposure Draft. The Exposure Draft proposal is that "Where employees are required to provide their own equipment and/or instruments, the employer shall, where practicable, provide secure storage facilities". The BEMS Unions propose the removal of "where practicable". The BEMS Unions also propose the identification in the proposed modern award of the types of tools to be supplied by the employer and the types of tools to be supplied by the employee.

[271]It is to be noted that Clause 34(a) provides that "Where an employee is required to provide their own equipment and/or instruments, other than those for which a tool allowance is paid pursuant to clause 13(1) (this should be a reference to clause 13(o) in the Exposure Draft), the employer must reimburse the employee the reasonable cost of such equipment and/or instruments".

[272] In circumstances where the employer must reimburse the employee the reasonable cost of equipment and/or instruments, the Full Bench is of the view that it would be only in exceptional circumstances where an employer would not provide secure storage facilities. Accordingly, the Full Bench will not insert the BEMS Unions' proposed clause in the Exposure Draft.

[273]Further, the Full Bench sees no utility in identifying in the award the types of tools to be supplied by the employer and the types of tools to be supplied by the employee. The list of tools referred to in the BEMS Unions' proposal would likely be outdated soon after being inserted into any award.

Clause 35 - Union Encouragement

[274]Both the BEMS Unions and the QSU seek the inclusion of the words "and will encourage that membership", i.e. union membership, in Clause 35(a). Those unions seek an additional sub-clause as follows:

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"An application for union membership and information on the relevant union(s) will be provided to all employees at the point of engagement."

[275]This Commission has a Statement of Policy on Union Encouragement17 that encourages an employee to join and maintain financial membership of a union. The provisions dealing with union encouragement in the pre-modernised awards reflect that Statement of Policy.

[276]Whilst the Full Bench is of the view that the BEMS Unions and the QSU proposals go beyond the Commission's Statement of Policy on union encouragement, the Full Bench is prepared to amend Clause 35(a) of the Exposure Draft so that the provision will read as follows:

"(a) The employer parties to this Award recognise the right to, and encourage, individuals to join a union. However, it is also recognised that union membership remains at the discretion of the individual."

Clause 36 - Union delegates

[277]The Exposure Draft makes provision for union delegates in the following manner:

"(a) Union delegates have a role to play within a workplace. The existence of accredited union delegates is encouraged.

(b) The employer shall not unnecessarily hinder accredited union delegates in the reasonable and responsible performance of their duties."

[278]This Exposure Draft provision is identical to the union delegate provisions in the pre-modernised awards.

[279]The BEMS Unions and the QSU propose a substantially altered provision. The Full Bench is not persuaded by the arguments advanced by those unions in respect of their proposal. The Full Bench does however find that Clause 36(a) to the Exposure Draft has grammatical problems. Accordingly, the Full Bench will amend Clause 35(a) to read as follows:

"Union delegates have a role to play within a workplace and their accreditation is encouraged"

That sub-clause should be read in conjunction with the union encouragement provision in Clause 35(a).

Clause 37 - Trade Union Training Leave

[280]The BEMS Unions and the QSU seek the insertion of an additional sub-clause in the Exposure Draft provision as follows:

17 The Australian Workers' Union of Employees, Queensland and Anor v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (2000) 165 QGIG 221.

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"Additional leave, over and above 5 working days non-cumulative (or the equivalent hours) in any one calendar year may be granted where approved structured employees' training courses involve more than 5 working days (or the equivalent). Such leave will be subject to consultation between the employer, the relevant union and the employee."

[281]Those unions also seek an amendment to sub-clause (e) to insert the words "At the same time, such leave shall not be unreasonably refused".

[282]Neither amendment is currently contained in the pre-modernised awards prevailing in the Queensland local government industry. In this proceeding the Full Bench is involved in the variation of a safety net award. The Full Bench is of the view that, as the clause in the Exposure Draft reflects the provisions contained in the pre-modernised awards, and the Full Bench considers the provisions in those pre-modernised awards appropriate for the purpose of this Clause, it will not amend Clause 37 in the manner sought.

Clause 38 - Right of Entry

[283]There was no provision dealing with Right of Entry in the Exposure Draft given that a Full Bench of the Commission in Re: Making of a modern award - General Employees (Queensland Government Departments) and Other Employees Award - State 201518 was considering the matter at that time. The Right of Entry provision approved by that Full Bench will be inserted into this Award as follows:

"34. Right of entry

(a) Authorised industrial officer

(i) An 'authorised industrial officer' is any union official holding a current authority issued by the Industrial Registrar.

(ii) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the union.

(b) Entry procedure

(i) An authorised industrial officer may enter a workplace at which an employer carries on a calling of the officer's organisation, during the employer's business hours to exercise a power under section 373 of the Act as long as the authorised industrial officer:

(A) has notified the employer or the employer's representative of the officer's presence; and

(B) produces their authorisation, if required by the employer or the employer's representative.

18 Re: Making of a modern award - General Employees (Queensland Government Departments) and Other Employees Award - State 2015 [2015] QIRC 169.

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(ii) Clause 34(b)(i) does not apply if, on entering the workplace, the officer discovers that neither the employer nor the employer's representative having charge of the workplace is present.

(iii) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry.

(iv) If the authorised industrial officer does not comply with a condition of clause 34(b)(i) the authorised industrial officer may be treated as a trespasser.

(c) Inspection of records

(i) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act.

(ii) An authorised industrial officer is entitled to inspect such time and wages records of any current employee except if the employee:

(A) is ineligible to become a member of the authorised industrial officer's union; or

(B) has made a written request to the employer that they do not want their record inspected.

(iii) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer.

(iv) A person must not, by threats or intimidation, persuade or attempt to persuade an employee or prospective employee to make, or refuse to make, a written request to the employer or prospective employer that the record not be available for inspection by an authorised industrial officer.

(d) Discussions with employees

An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the union:

(i) matters under the Act during working or non-working time; and

(ii) any other matter with a member or employee eligible to become a member of the union, during non-working time.

(e) Conduct

(i) The employer must not obstruct the authorised industrial officer exercising their right of entry powers.

(ii) An authorised industrial officer must not wilfully obstruct the employer, or an employee during the employee's working time."

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Conclusion

[284]As the Full Bench has noted in paragraph [87] of this decision, there was no objection to many provisions in the Exposure Draft and that those Clauses and Schedules would be included in the varied award. The Full Bench will include in the varied award the remaining provisions of the Exposure Draft subject to the amendments made to those provisions as discussed in paragraphs [89] to [284] of this decision.

[285]The Full Bench is satisfied that the proposed modern award complies with the requirements of the Act in relation to modern awards, is consistent with the statutory objects of the award modernisation process and meets the requirements of the Minister's Consolidated Request.

[286]Like the making of the 2014 Award, the process of varying it has been conducted within a tight timeframe and the Full Bench has appreciated the work undertaken by those organisations appearing in the matter.

[287]The Full Bench has had the benefit of the Referral from Deputy President Bloomfield (Exhibit 1), including the Exposure Draft and the analysis undertaken by the AMOD Team in respect of award provisions as well as the extensive and detailed written submissions and oral submissions from all organisations appearing in the matter.

[288]The 2014 Full Bench stated:19

"In summary, the award will result in:

(a) a comprehensive scheme for more than 32,000 Local Government employees outside Brisbane who between them have a diverse range of roles and functions and who will be categorised within three streams; the General local government industry stream, the Children's services and early childhood education stream and the Nursing stream;

(b) the reduction in the number of awards applying to the Local Government sector outside Brisbane from 20 to one;

(c) a reduction in the number of wage levels from more than 200 to 21;

(d) a reduction in the number of specific allowances payable to various categories of employees in the Local Government sector from approximately 200 to 19;

(e) the creation of a process to enable any employee who considers that the introduction of the award has led to a substantial reduction in the allowance or allowances payable to them to seek a preservation order from the Commission;

19 Re: Making of a modern award - Queensland Local Government Industry Award – State 2014 [2014] QIRC 149, [189].

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..."

[289]In dealing once again with the variation of the 2014 Award, this Full Bench confirms the outcomes of the process as outlined above. Whilst an additional allowance is provided for and other provisions such as union delegates, union encouragement and trade union training leave have been added as a result of legislative change, the abovementioned outcomes are still relevant.

[290]During the course of the hearing we adverted to the apparent tension between some of the terms of the Consolidated Request and certain provisions of the Act.

[291]We have set out the relevant sections of the Act. We draw particular attention to:

s 3 - the principal object of the Act which is to provide a framework for industrial relations that supports economic prosperity and social justice;

s 3(f) – promoting the effective and efficient operation of enterprises and industries;

s 3(g) - ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community;

s 140BA - the principal object of modernising awards so they, amongst other things, are:

simple to understand and easy to apply;

together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment;

are in a form that is appropriate for a fair and productive industrial relations system;

s 140BB(2)(i) – the desirability of reducing the number of awards operating under the Act;

s 140D – the modern award objectives which, amongst other things, require the Commission to have regard to the need to promote flexible modern work practices and the efficient and productive performance of work; and

s 140D(2)(f) – the likely impact of the exercise of the chapter 5A powers on business, including on productivity, employment costs and the regulatory burden;

[292]The Consolidated request must be read in the context of the objects and objectives of the Act.

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[293]We emphasise that a modern award together with the Queensland Employment Standards is to provide a fair minimum safety net.

[294]The historic move away from paid rates awards and employer specific awards to minimum safety net awards is a consequence of the emphasis in industrial legislation on collective bargaining. A fair minimum safety net award is to be the base from which bargaining proceeds. It is not the function of a modern award to establish a higher base for bargaining. The safety net is to ensure that employees who may not be able to strike a bargain are protected by a fair minimum set of terms and conditions of employment which, inter alia have regard to relative living standards and the needs of low paid employees.

[295]Albeit the award modernisation process is not intended to remove employee entitlements, where there is a multiplicity of awards, some of which contain terms and conditions that are greater than what is required for the provision of a fair minimum safety net, a rationalisation of those awards with the consequent reduction of the number of them covering the employees affected by the award modernisation process, will almost inevitably result in the award entitlements of some of them being reduced. Conversely, the award entitlements of some of them may be increased.

[296]The comments of a Full Bench of the then Australian Industrial Relations Commission in response to a federal Award Modernisation request to the effect that modern awards are not intended to disadvantage employees or increase costs for employers, is apposite.

[297]The six member Full Bench said:

"[4] The consolidated Request also provides that the process is not intended to disadvantage employees or increase costs for employers – objectives which are potentially competing. The content of the Awards we have formulated is a combination of existing terms and conditions in relevant Awards and existing community standards…

[5] Various parties have pointed to the impact of modern award provisions. The parties largely addressed this matter on the basis of comparison between existing and proposed award obligations rather than the impact of the modern award on actual terms and conditions. Even so, it is clear that some award conditions would increase, leading to cost increases, and others will decrease, leading to potential disadvantage for employees, depending upon the current award coverage. The creation of modern awards which will constitute the award elements of the safety net necessarily involves striking a balance as to the appropriate safety net terms and conditions in light of diverse award arrangements that currently apply…" 20

[298]The prism through which modern award entitlements should be viewed is that of the provision of a fair safety net of terms and conditions of employment.

20 Award Modernisation, [2009] AIRCFB 800 [4], [5].

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[299]Our review of the allowance arrangements that featured prominently in these proceedings was undertaken with these considerations firmly in focus. In accordance with that part of the Consolidated Request that states that the Commission is to ensure employee entitlements have not been reduced in comparison with the allowance arrangements prescribed in the pre-modernisation awards, we have provided a mechanism to meet that objective, i.e. the Local government industry allowance, the Construction, reconstruction, alteration, repair and/or maintenance allowance, and the Preservation Order.

[300]By doing so we have sought to balance the modern award requirements of the Act with those of the Consolidated Request.

[301]Given the range and multiplicity of the matters covered by the award, the Full Bench has decided to release the award initially only to those organisations who appeared and have coverage under the modern award. We do this to enable those organisations to have 14 days to consider the provisions of the modern award.

[302]Should any organisation consider that, by reference to these reasons for decision, the varied award contains any substantive or typographical errors they should notify the Industrial Registrar in writing by 4.00 pm on Monday 16 November 2015 identifying precisely what the organisation considers should be correc

[303]The Full Bench will then consider such written notices and make such changes as we consider appropriate before publishing the award on the Commission's website.

Orders

[304]For the reasons set out above, the Full Bench makes the following order:

That the Queensland Local Government Industry Award – State 2014 be varied by:

(c) Deleting the numerals "2014" from the title and inserting in lieu thereof "2015".

(d) By deleting clauses 1- 34 and Schedules 1 to 5 and inserting in lieu thereof the Clauses appearing in the retitled award released concurrently with this decision.

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Schedule A

REQUEST UNDER SECTION 140C (1) – AWARD MODERNISATION

I, JARROD BLEIJIE, ATTORNEY-GENERAL AND MINISTER FOR JUSTICE, pursuant to section 140C(1) of the Industrial Relations Act 1999 (“the Act”) request that the Vice-President of the Queensland Industrial Relations Commission (“the Commission”) undertake award modernisation in accordance with this request.

This award modernisation request is to be read in conjunction with Chapter 5 Part 8 of the Act. Objects

1. The aim of the award modernisation process is to create a comprehensive set of modern awards. As set out in section 140BA of the Act, the principal object of the modernisation process is the modernisation of awards so they:

(a) are simple to understand and easy to apply; and(b) together with the Queensland Employment Standards (QES), provide for a fair

minimum safety net of enforceable conditions of employment for employees; and(c) are economically sustainable, and promote flexible modern work practices and the

efficient and productive performance of work; and(d) are in a form that is appropriate for a fair and productive industrial relations system;

and(e) result in a certain, stable and sustainable modern award system for Queensland.

2. The creation of modern awards is not intended to:

(a) extend award coverage to those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have traditionally been award free. This does not preclude the extension of modern award coverage to new industries or new occupations where the work performed by employees in those industries or occupations is of a similar nature to work that has historically been regulated by awards; or

(b) result in high-income senior employees, as defined by section 189 of the Act, being covered by modern awards.

Performance of functions by the Commission

3. In accordance with section 140BB(2) of the Act, the Commission must have regard to the following factors when performing its functions under Chapter 5 Part 8 of the Act and this award modernisation request:

(a) promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;

(b) the need to help prevent and eliminate discrimination in employment;

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(c) protecting the position in the labour market of young people, employees engaged as apprentices or trainees and employees with a disability;

(d) the needs of low-paid employees;(e) the need to promote the principle of equal remuneration for work of equal value;(f) the need to help employees balance their work and family responsibilities effectively

and to improve retention and participation of employees in the workforce;(g) the safety, health and welfare of employees;(h) the Queensland minimum wage;(i) the desirability of reducing the number of awards operating under the Act; (j) the representation rights of organisations and associations under the Act.

Award modernisation process

4. In creating modern awards, and as indicated at paragraph 3(i) above, the Commission must have regard to the desirability of reducing the number of awards operating under the Act.

5. When modernising awards, the Commission is to create fewer modern awards which may be organised across industry and/or occupational lines as it considers appropriate, subject to the priority industries/occupations listed at paragraph 19 of this request.

6. Subject to this request, the Commission will identify the type of work, industry and/or occupations covered by a modern award and the application of each award.

7. The Commission is to have regard to the desirability of avoiding the overlap of awards and minimising the number of awards that may apply to a particular employee or employer.

8. In developing the content for modern awards, the Commission will have regard to the safety net community standards operating in respect of similar work throughout Australia, including properly fixed minimum rates and allowances.

Award modernisation process consultation

9. After receiving this award modernisation request, the Commission may, as it considers appropriate, consult with the major employer and employee representative bodies on the best process to be followed by the Commission when creating modern awards.

10. The Commission will then release a clear program and timetable for completing the award modernisation process.

11. In determining the program and timetable for completing the award modernisation process, the Commission must have regard to the prioritisation of particular industries and/or occupations listed at paragraph 19 of this request.

12. The Commission will prepare an exposure draft of each modern award. The Commission will, as appropriate, hold a conference or conferences with major employer and employee representative bodies for the purpose of informing the preparation of each exposure draft.

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13. The Commission is to publish exposure drafts of each modern award for the purpose of further consultation and to ensure that all stakeholders and interested parties have a reasonable opportunity to comment upon the exposure drafts. In so far as is practicable, the exposure drafts will be electronically published for comment.

14. Consultation on exposure drafts of modern awards will be open and transparent.

Creating modern awards

15. Upon completion of the consultation processes in relation to an exposure draft, theCommission will prepare the modern award.

16. The Vice-President may establish one or more Full Benches for the purpose of creating modern awards. Each modern award is to be created by a Full Bench.

Timing

17. The Commission is to complete the award modernisation process by 31 December 2014.

18. To that end, the Commission shall:

(a) by 10 February 2014 to have identified a list of awards for modernisation which are connected with the priority industries/occupations described at paragraph 19 of this request and developed a timetable for completing the modernisation process;

(b) as soon as practicable, but by no later than 30 June 2014, have created modern awards for each of the priority industries or occupations identified at paragraph 19 of this request;

(c) review the existing award content applicable to the rail industry (which is derived from federal modern award content) such that it complies with the modern award requirements of the Act and endeavour to complete award modernisation for this industry in a time to facilitate bargaining before the nominal expiry date of current agreements.

List of priority industries/occupations

19. In developing a timetable for completing the award modernisation process, the Commission is required to prioritise the creation of modern awards covering the following industries or occupations:

(a) Health (as defined in Schedule 1);(b) Local government (excluding Brisbane City Council);(c) Public service (see paragraph 22 below); (d) Fire Auxiliaries; and(e) Rail.

Local Government

20. When undertaking the award modernisation process with regard to the Local Government sector (excluding Brisbane City Council), the Commission is to give consideration to consolidating the Queensland Local Government Officers Award 1998; the Municipal Officer’s Award (Aboriginal and Islander Community Councils) Award 2004; and the Local Government Employees (Excluding Brisbane City Council) Award

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State 2003 (collectively, the Awards) and creating a new modern Local Government Industry Award covering employers and employees subject to those Awards.

21. When undertaking the award modernisation process with regard to the Local Government sector (excluding Brisbane City Council), the Commission is also to endeavour, where practicable, to review any other awards which underpin Local Government Agreements which nominally expire throughout the first half of 2014, in order that negotiations for the replacement of those agreements can be commenced in a timely manner.

Public Service

22. With reference to paragraph 19(c) above, the QIRC should give consideration to:

a) Making a single consolidated award for employees engaged in the Queensland public service in administrative, professional, technical and related ‘white collar’ occupations under the follow awards:

Queensland Public Service Award – State 2012Legal Aid Queensland Employees’ Award – State 2012Parliamentary Services Award – State 2012Workers Compensation Queensland Award – State 2012Crime and Misconduct Commission Employees Award – State 2012Residential Tenancies Authority Employees’ Award – State 2012QRAA Award – State 2012Agricultural Colleges of Queensland (Excluding Domestic and General Staff) Award – State 2012Tourism Queensland Employees’ Award – State 2012Safe Food Production Queensland - Employees’ Award 2012Clerical Employees’ Award – State 2012GoPrint Award – State 2012Queensland Building Services Authority Award – State 2012

b) making a single consolidated award for employees engaged in the Queensland public service in operational and related ‘blue-collar’ occupations under the following awards:

Employees of Queensland Government Departments (Other than Public Servants) Award – State 2012 Conservation, Parks and Wildlife Employees’ Award – State 2012GoPrint Award – State 2012Queensland Building Services Authority Award – State 2012Residential Tenancies Authority Employees’ Award – State 2012Agricultural Colleges of Queensland (Excluding Domestic and General Staff) Award – State 2012Forestry Employees’Award – Department of Agriculture, Fisheries and Forestry 2012

Note: list of awards not intended to be exhaustive

Generic Awards

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23. When modernising awards, the Commission is to give consideration to:a) the following generic awards:

i. Family Leave Award – State 2012;ii. Family Leave (Queensland Public Sector) Award – State 2012;

iii. Training Wage Award – State 2012;iv. Supported Wage Award – State 2012; and

b) identifying any matters contained in these awards which the Commission considers are safety net terms and conditions and, if the Commission is satisfied that the matters are not adequately provided for in the QES and are permitted to be included in modern awards, the Commission should develop a consistent approach to include such matters in modern awards.

Community Police in the Torres Strait

24. When developing a timetable for completing the modernisation process, the Commission is to give consideration to prioritising the modernisation of awards covering Community Police in the Torres Strait which were affected by the transitional provisions of the Act.

Reporting on the progress of award modernisation

25. Once the Commission has identified a list of awards for modernisation which are connected with priority industries/occupations and developed a timetable for completing the award modernisation process, the Vice-President is to provide the Attorney-General with an initial report outlining the details of the timetable and any other matters which the Vice-President considers appropriate.

26. Following this initial report, the Vice-President is to provide the Attorney-General with regular reports outlining:

(a) those industries and/or occupations undergoing or about to commence award modernisation;

(b) the progress of award modernisation, including any significant developments during the previous two months and key issues or developments scheduled for the two months;

(c) any other matters which the Vice-President considers appropriate; and

(d) a response to any matters raised by the Attorney-General.

27. The reports are due by:

(a) 31 March 2014;

(b) 31 May 2014;

(c) 31 July 2014;

(d) 31 September 2014;

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(e) 30 November 2014

(f) 31 December 2014.

Content

28. When modernising awards, the Commission is to have particular regard to Chapter 2A, Part 3 of the Act which deals with the content of modern industrial instruments, and more specifically the content of modern awards, including the provisions that are required to be included, are permitted to be included and must not be included in modern awards.

29. Each modern award must include:

(a) A consultation term that satisfies the requirements of section 71M of the Act;(b) A dispute resolution term that satisfies the requirements of section 71MA of the Act; (c) A flexibility term that satisfies the requirements of section 71MB of the Act; and(d) Coverage provisions that satisfy the requirements of section 71MC of the Act.

30. When modernising awards, where there is any overlap or potential overlap in the coverage of modern awards, the Commission will as far as possible include clear rules in the modern awards that identify which award applies. As far as practicable, only one set of terms and conditions and one modern award should apply to any one employee at any point in time.

31. Consistent with section 71NB of the Act, a modern award may include provisions, other than non-allowable provisions, that are incidental to a provision that is required or permitted to be included in the instrument and are essential for making a particular provision operate in a practical way.

32. In creating a modern award, consistent with section 71NC of the Act, the Commission is to assess whether machinery provisions are necessary for the applicable industry or occupation, and where they should be included.

33. The Commission may include transitional arrangements in modern awards to ensure the Commission complies with the objects and principles of award modernisation set out in this award modernisation request.

34. Subject to this request and section 71NA of the Act, modern awards may also include provisions relating to the QES.

Interaction with the Queensland Employment Standards

35. The QES consist of comprehensive legislated core employment standards for all employees covered by the state industrial relations system. The QES establish a simple legislative framework of minimum entitlements with straightforward application or machinery rules that are essential to the operation of each entitlement. The QES will operate in conjunction with a relevant modern award to provide a fair safety net of minimum entitlements for award covered employees.

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36. A modern award cannot exclude the QES or any provision of the QES.

37. A modern award may include any provision, other than a non-allowable provision, that provides for all or part of a matter that is provided for under the QES but only to the extent that the effect of the provision is no less favourable to an employee than the QES. A modern award may replicate a provision of the QES only where the Commission considers this essential for the effective operation of the particular modern award provision. Where a modern award replicates a provision of the QES, QES entitlements will be enforceable only as QES entitlements and not as provisions of the modern award.

38. A modern award may include any provision, other than a non-allowable provision, that is ancillary or incidental to the operation of the entitlement of an employee under the QES, but only to the extent that the effect of the provision is no less favourable to an employee than the QES.

39. A modern award may include any provision, other than a non-allowable provision, that supplements the QES where the Commission considers it necessary to do so to achieve the modern award objectives, having regard to the terms of this request and the existing award provisions for those employees. The Commission may only supplement the QES where the effect of the provision is no less favourable to an employee than the QES.

40. A modern award may include industry-specific detail about matters in the QES.

Minimum wage

41. In accordance with section 71ND of the Act, minimum wages are a matter that may be dealt with in modern awards. In dealing with minimum wages, the Commission is to have regard to the desire for modern awards to provide a comprehensive range of fair minimum wages for all employees including, where appropriate, piece rates and wages for young employees, employees with a disability and employees engaged as apprentices or trainees.

Allowances

42. Allowances should be clearly and separately identified in modern awards.

43. The Commission is to ensure that all modern awards include an appropriate method or formula for automatically adjusting relevant allowances when minimum wage rates are adjusted.

Ordinary hours of work

44. The Commission is to ensure that it specifies in each modern award the ordinary hours of work for each classification of employee covered by the modern award. The Commission is also to ensure that ordinary hours, or the process for determining ordinary hours, are specified for each type of employment permitted by the modern award (for example, part time, casual).

Consolidation and consistency

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45. Throughout the award modernisation process, the Commission must seek to consolidate modern awards to:

a) reduce the number of awards; b) avoid unnecessary overlap and duplication of coverage of awards; c) ensure consistency of content; and

ensure that the objectives in this paragraph are met for all modern awards prior to the completion of the process for the purposes of section 140CD of the Act. If necessary, the Commission may act in this regard of its own motion under section 140G(3)(a) of the Act.

46. To achieve the objectives outlined in paragraph 45 above, the consolidation process may result in a reduction in the number of modern awards initially made by the Commission. The consolidation process should not result in significant variation to any substantive terms and conditions of employment contained in modern awards made prior to the consolidation process. If this is to occur, the Commission is required to prioritise the consolidation of the modern awards covering the industries or occupations set out at paragraph 19 of this request.

[Signed]

JARROD BLEIJIE MPAttorney-General and Minister for Justice

Schedule 1 - Clause 19 (a) List of priority industries / occupations – Health

For the purposes of prioritisation, Health includes:

a) medical officersb) nursesc) health practitioners, including dentistsd) health support services, including professional, technical, operations and

administrative officers,

and excludes:

a) employees engaged in the Queensland Ambulance Service in any of the classifications outlined in the Ambulance Service Employees’ Award – State 2012,

b) Engineering and maintenance in connection with health facilities.

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Schedule B

Consolidated Request

REQUEST UNDER SECTION 140C(1) – AWARD MODERNISATION

CONSOLIDATED REQUEST ARISING FROM VARIATION NOTICE

I, CURTIS PITT, TREASURER AND MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS, (“the Minister”) pursuant to section 140CA(1) of the Industrial Relations Act 1999 (“the IR Act”) request that the Vice-President of the Queensland Industrial Relations Commission (“the Commission”) recommence the award modernisation process in accordance with this request.

[Note: An Award Modernisation’ Variation Notice’, made under S140CA of the IR Act was issued by the Treasurer and Minster for Employment and Industrial Relations on 17 July 2015. This consolidated request reflects the content of that variation notice]

Objects 1. The aim of the award modernisation process is to create a comprehensive set of modern

awards. As set out in section 140BA of the Act, the principal object of the modernisation process is the modernisation of awards so they:

a) are simple to understand and easy to apply; and b) together with the Queensland Employment Standards (QES), provide for a

fair minimum safety net of enforceable conditions of employment for employees; and

c) are economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and

d) are in a form that is appropriate for a fair and productive industrial relations system; and

e) result in a certain, stable and sustainable modern award system for Queensland.

Statement of Intent

2. A modern award shall provide for fair and just employment conditions.

The purpose of award modernisation is to ensure awards remain relevant and provide for the rights and responsibilities that ensure economic advancement and social justice for all employees and employers.

Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in pre-modernisation awards. Having regard to this, the Commission shall ensure wages and employment conditions continue to provide fair conditions in relation to the living standards prevailing in the community and what is afforded to employees and employers in the relevant pre-modernisation award/s. Furthermore, the Commission must give special regard to the needs of low paid

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employees and the desirability of safeguarding the employment entitlements and protections for such employees.

When modernising awards, the Commission is to take into account the amended legislative framework under which the award modernisation process will recommence, particularly the amendment of the modern award objectives at section 140D of the IR Act and the removal of proscriptions and qualifications for certain content which may now be included in modern industrial instruments. The Commission must also have due regard to any agreement reached by the parties on a particular matter for inclusion in a modern award throughout the modernisation process.

The outcome of award modernisation is to provide for a fair and just industrial relations system underpinned by clear, certain and stable modern awards.

3. The Commission is to establish an award modernisation program for completing the award modernisation process in accordance with paragraphs 4 to 11 of this request. The award modernisation program is to be published in an electronic format.

Priority Awards

4. The Commission is to prepare and publish a program for the modernisation of certain pre-modernisation awards and the review and variation of certain modern awards made prior to the passage of the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 (the “IR Amendment Act”) that are identified as priorities at paragraph 6 of this request (known collectively as “priority awards”).

5. In developing the award modernisation program for these priority awards the Commission is to have regard to the requirements set out at paragraphs 12 to 16 of this request. The program for these priority awards shall include the following information:

a) the date by which the relevant parties are to provide a draft award or submission about the modern award or the proposed modern award;

b) the date for a Full Bench hearing to make or vary the modern award to the meet the timeline for the making or variation of the modern award; and

c) the date by which the modern award or proposed modern award is to be reviewed and varied or made as set out in paragraph 7 of this request.

6. The priority awards are as follows:

a) a single, consolidated modern award for employees engaged in the Queensland public service in operational and related ‘blue-collar’ occupations under the Employees of Queensland Government Departments (Other than Public Servants) Award – State 2012 and other relevant awards:

(i) including any relevant coverage for Cultural Centre entities; and

(ii) excluding coverage for employees engaged under the Conservation, Parks and Wildlife Employees’ Award – State Government 2012, and

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b) the Resident Medical Officers (Queensland Health) Award – State 2014;

(i) including any relevant coverage for Senior Medical Officers, Medical Superintendents (with the right of private practice) and Medical Officers (with the right of private practice);

c) a single modern award to replace the Queensland Health Framework Award – State 2012 (refer to paragraphs 27-29);

d) the Queensland Public Service Officers and Other Employees Award – State 2014,

(i) including coverage for Cultural Centre entities;

e) the Queensland Local Government Industry Award – State 2014 (also see Schedule 1 for further requirements in relation to the review and variation of this award);

f) the Health Practitioners and Dental Officers (Queensland Health) Award – State 2014;

g) the Queensland Health Nurses and Midwives Award – State 2012;

h) the District Health Services Employees Award – State 2012; and

i) the WorkCover Queensland Employees Award - State 2014.

7. Dates for the making or the variation of priority awards are set out in this paragraph. While it is expected that the Commission will meet the dates prescribed, the President or the President’s delegate may make a written request to the Minister seeking a short extension where the President or the President’s delegate considers such an extension is necessary. The dates for the making or variation of priority awards are as follows:

a) the Employees of Queensland Government Departments (Other than Public Servants) Award – State 2012 and other relevant awards by 30 September 2015;

b) the Resident Medical Officers (Queensland Health) Award – State 2014 by 30 September 2015;

c) the Queensland Health Framework Award – State 2012 by 31 October 2015;

d) the Queensland Public Service Officers and Other Employees Award – State 2014, by 31 October 2015;

e) Queensland Local Government Industry Award – State 2014 by 31 October 2015;

f) the Health Practitioners and Dental Officers (Queensland Health) Award – State 2014 by 31 October 2015;

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g) the Queensland Health Nurses and Midwives Award – State 2012 by 30 November 2015;

h) the District Health Services Employees Award – State 2012 by 30 November 2015; and

i) WorkCover Queensland Employees Award – State 2014 by 30 November 2015.

Remaining awards

8. As soon as practicable after the publication of the award modernisation program for priority awards, the Commission shall provide for in the award modernisation program the modernisation of the remaining pre-modernisation awards and the review and variation of the remaining modern awards made prior to the passage of the IR Amendment Act (known collectively as the “remaining awards”).

9. The Commission must consult with the relevant employer and employee representatives and organisations for the development of the program for the remaining awards and is to have regard to the nominal expiry dates of relevant certified agreements.

10. The award modernisation program as it pertains to the remaining awards may be reviewed and varied from time to time as the Commission deems appropriate. Any changes to the program must be published in electronic format.

11. The Commission shall endeavour to complete the award modernisation process by 30 June 2016 or as soon as is practicable thereafter.

Award modernisation process

12. When undertaking the award modernisation process, the Commission must have regard to:

a) Chapter 5 Part 8 of the IR Act; b) for the review and varying of existing modern awards – the provisions of Chapter

20 Part 20 Division 2 of the IR Act; c) for those awards yet to be modernised – section 851 of the IR Act; and d) Part 13 Division 6 of the Hospital and Health Boards Act 2011 (in relation to the

Resident Medical Officers (Queensland Health) Award – State 2014).

13. In addition, the Commission must have due regard to any agreement reached by the parties on a particular matter for inclusion in a modern award (a “consent position”) throughout the modernisation process.

14. Subject to paragraph 15, the Commission must adopt the following procedure for the making or variation of modern awards: a) The Commission must invite the relevant parties to provide a draft award or

submission about the modern award/proposed modern award to the Commission. b) The Commission is then to convene a conference (or conferences) to consider any

draft award or submission made by a relevant party. c) The Commission is then to prepare and release an exposure draft.

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d) The exposure draft must have regard to: i. any draft award or submission (written or oral) made by a relevant party;

andii. any consent position.

e) The exposure draft is to be made available in an electronic format. f) The Commission is to convene a further conference (or conferences) for the parties

to make submissions in relation to the exposure draft. g) A draft modern award is to be prepared and referred to a Commission Full Bench.

The Vice-President may establish one or more Full Benches for the purpose of the making or variation of modern awards. Each modern award is to be varied or made by a Full Bench.

15. Where it considers appropriate, the Commission may adapt the process in paragraph 14 to include referral of particular matters to a Full Bench (for example, in relation to the application of section 844 ‘Commission may increase the number of modern awards’).

16. A modern award may include transitional arrangements to ensure the award complies with the objects of award modernisation set out in this award modernisation request and the IR Act.

Generic Awards

17. When modernising awards, the Commission is to give consideration to:a) the following generic awards:

(i) Family Leave Award – State 2012; (ii) Family Leave (Queensland Public Sector) Award – State 2012; (iii)Training Wage Award – State 2012; (iv)Supported Wage Award – State 2012; and

b) identifying any matters contained in these awards which the Commission considers are safety net terms and conditions and, if the Commission is satisfied that the matters are not adequately provided for in the QES and are permitted to be included in modern awards, the Commission should:

(i) develop a consistent approach to include such matters in modern awards, or (ii) make a specific modern award or awards.

Reporting on the progress of award modernisation

18. Once the Commission has established a program for completing the award modernisation process in accordance with paragraph 3, the Vice-President is to provide the Minister with an initial report outlining the details of the program and any other matters which the Vice-President considers appropriate.

19. Following this initial report, the Vice-President is to provide the Minister with quarterly reports outlining:

(a) those industries and/or occupations undergoing or about to commence award modernisation;

(b) the progress of award modernisation, including any significant developments during the previous period and key issues or developments scheduled for the next period;

(c) any other matters which the Vice-President considers appropriate; and (d) a response to any matters raised by the Minister.

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20. The reports are due by: (a) 30 September 2015; (b) 31 December 2015 (c) 31 March 2016, and (d) 30 June 2016.

21. In addition to paragraphs 18 – 20, the Vice-President may report to the Minister at any other time as the Vice-President considers appropriate and necessary.

Minimum wage

22. In accordance with section 71ND of the Act, minimum wages are a matter that may be dealt with in modern awards. In dealing with minimum wages, the Commission is to have regard to the desire for modern awards to provide a comprehensive range of fair minimum wages for all employees including, where appropriate, piece rates and wages for young employees, employees with a disability and employees engaged as apprentices or trainees.

Allowances

23. Allowances should be clearly and separately identified in modern awards.

24. The Commission is to ensure that all modern awards include an appropriate method or formula for automatically adjusting relevant allowances when minimum wage rates are adjusted.

Other content matters

25. Certain rulings made under section 53 and 54 of the Public Service Act 2008 provide enforceable conditions of employment for many public service employees. The Commission is requested to include references to relevant directives in a modern award where a reference to that directive appeared in a relevant pre-modernisation award.

26. The Commission must retain provisions relating to district and divisional allowances in a consolidated modern award for employees engaged in the Queensland public service in operational and related ‘blue-collar’ occupations. The Commission must also retain provisions relating to district and divisional allowances in modern awards made for relevant employees currently engaged under the Building Trades Public Sector Award - State 2012, Civil Construction, Operations and Maintenance General Award - State 2012 and Engineering Award - State 2012.

Further review of modern Queensland Health Framework Award

27. After the initial modernisation of the Queensland Health Framework Award (in accordance with paragraph 6(c)), the Commission must conduct a further review of that award.

28. When conducting its further review, the Commission must give particular consideration to updating award content, including relevant definitions, references and related provisions.

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29. This further review is to occur immediately prior to the completion of the award modernisation process.

Other matters

30. The Commission is also to ensure that no award coverage of auxiliary firefighters occurs as a result of the award modernisation process defined under section 140BB(1) of the Act.

Regulatory complexity and coverage

31. Throughout the award modernisation process, the Commission must seek to: (a) avoid unnecessary overlap and duplication of coverage of awards; (b) reduce regulatory complexity, however this requirement is not to outweigh a

need for distinct or unique industrial conditions for a particular group of employees where such provisions are appropriate to reflect a professional or industrial peculiarity or characteristic;

(c) use contemporary language; and (d) ensure that the objectives of award modernisation are met for all modern awards

prior to the completion of the process for the purposes of section 140CD of the Act. If necessary, the Commission may act in this regard of its own motion under section 140G(3)(a) of the Act.

Schedule 1 – Local Government (excluding Brisbane City Council) award modernisation priorities

As per paragraph 6(e) of this Variation Notice, the Commission is to prioritise the review and variation of the Queensland Local Government Industry Award – State 2014 in accordance with Chapter 20 Part 20 of the IR Act.

Pursuant to section 844 of the IR Act and in addition to the review and variation of the Queensland Local Government Industry Award – State 2014, the Commission must consider an increase to the number of modern awards covering the local government industry.

In doing so the Commission is to invite the parties to make submissions on increasing the number of modern awards covering the local government industry. The Commission is not to be bound by previous Commission decisions when considering increasing the number of modern awards covering the local government industry.

Additionally, the requirement expressed at clause 20 of the former Award Modernisation Ministerial Request for the Commission to “give consideration to consolidating pre-modernisation awards operating in the local government sector (excluding the Brisbane City Council) and create a new modern Local Government Industry Award covering employees and employers subject to those (pre-modernisation) awards” no longer applies and is not supported by this variation notice.

It is open to the Commission to reconsider the number of awards in the Queensland local government industry. In this regard the Commission is to give consideration to increasing

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the number of modern awards in the Queensland local government industry such that there are separate awards for:

a) salaried, professional, administrative, clerical, technical and supervisory employees;

b) operational employees (including those in civil construction, horticultural, maintenance, etc.); and

c) trade qualified employees.

Additionally, consideration should also be given to whether professional groups (e.g. early childhood teachers, nurses) employed in the Queensland local government sector are more appropriately included in relevant occupational awards.

Allowances and other provisions

The Commission is to give consideration to a review of the allowances and other provisions in the Queensland Local Government Industry Award – State 2014. To this end the Commission is to give consideration to restoring the provision of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation award/s.

Furthermore, the Commission is to review the consolidated and other allowance arrangements currently in the Queensland Local Government Industry Award – State 2014 to ensure employee entitlements have not been reduced in comparison with the 8 prescribed in the pre-modernisation awards.

The Commission is to give consideration to the submissions of the parties in the review of the allowances and other provisions, in particular where a party can demonstrate a reduction in employee remuneration or an employee entitlement as a consequence of the consolidation of, or changes made to, the allowances and other provisions.

Classification structure

Subject to the outcome of the consideration of the number of modern awards operating in the local government industry, the Commission is to ensure that the classification structure or structures in the modern award or awards is meeting/will continue to meet the needs of the local government industry. The Commission is to give consideration to the submission of the parties in the review of the classification structure.

[SIGNED] HON. CURTIS PITT MP

Treasurer Minister for Employment and Industrial Relations Minister for Aboriginal and Torres Strait Islander Partnerships 17 July 2015

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