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Vol. 173 FRIDAY, 20 JUNE, 2003 No. 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 Industrial Relations (Tribunals) Rules 2000

NOTICE

The following Agreements have been certified by the Commission: No/s Title Date certified Cancelling CA138/03 Golden Mile Farms – Certified Agreement 13/5/03 CA47/00 CA150/03 MacLennan Nominees Pty Ltd - Certified Agreement 2003 21/5/03 CA155/03 Queensland University of Technology Student Guild - Certified 26/5/03 CA217/00 Agreement 2002-2003 CA167/03 Traffic Services Australia Holdings Pty Ltd - Certified Agreement 26/5/03 CA168/03 CSR Limited (Gyprock Fibre Cement) Queensland Manufacturing 26/5/03 CA210/01 and Logistics Operation Enterprise Bargaining - Certified Agreement CA169/03 Bell's Carrying and Crane Hire Service - Certified Agreement 2003 27/5/03 CA426/97 CA175/03 Greenslopes Private Hospital - Administration Employees – Certified Agreement 2003 29/5/03 CA175/03 E. EWALD Industrial Registrar ###########################################################################################################################

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission

Scott Samuel Murgatroyd AND Acknowledge Database Services Pty Ltd (No. C23 of 2003)

PRESIDENT HALL 4 June 2003

DECISION

On or about 1 July 2002 the appellant and the respondent entered into an employment agreement which expressly provided that the applicant’s salary should be $100,000.00 per annum (plus some presently entirely irrelevant bonuses and expenses). By clause 3.3 of the agreement the employee was given the right, subject to the Income Tax Assessment Act 1997 and rulings of the Australian Tax Office, to structure his salary package to cover the provision of a salary, superannuation contributions (including life insurance), income protection insurance, one or more motor vehicles, or any

588 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 June, 2003

combination thereof. The mechanics by which such a structuring was to be achieved were detailed at Schedule B to the agreement. It is unnecessary to reproduce the whole of the schedule. The essence of the scheme appears from the fourth and fifth paragraphs. Those paragraphs provided:

“The first step is to determine the Employee’s expected tax-deductible expenses over a year plus a margin – this becomes the Employee’s expense budget. This amount is deducted from the Employee’s expected annual earnings. The remainder is divided into 26 payments which are drawn down as a salary on a fortnightly basis. The expense budget is accumulated as the Employee earns income, and drawn down on by claiming expenses against it. At the end of the year (June), the balance of the expense budget is paid to the employee as (taxable) salary. The employee is free to claim any expenses out of this budget that they consider appropriate as long as such expenses can be claimed as tax-deductible expenses (based on the advise of ADB’s accountants).”.

The appellant exercised the right to structure his salary package. The effect of the restructuring was that after the deductions from the salary package of the 9% statutory superannuation obligation, and monies moved to the “expense budget”, the “remainder” to be divided into 26 payments pursuant to the first of the paragraphs set out above was set at $67,037.42. The appellant’s engagement by the respondent has long since come to an end. It is the complaint of the appellant that he was dismissed. He seeks relief pursuant to Part 2 of Chapter 3 of the Industrial Relations Act 1999. The respondent has raised a preliminary point. The respondent’s contention is that the appellant is denied access to the remedies at Part 2 of Chapter 3 because s. 72(1)(e) excludes from the protection of Part 2 of Chapter 3 an employee whose “annual wages immediately before the dismissal are more than $68,000 or a greater amount stated in, or worked out in a way prescribed under a regulation.”. It is common ground at all material times that a “greater amount” had been prescribed by s. 4 of the Industrial Relations Regulations 2000. That amount was $75,200. If one ignores the salary restructure it is plain that the appellant is excluded from the protection of Part 2 of Chapter 3. After the deduction of the obligatory 9% superannuation payment, which on all the authorities must be deducted, his annual wages amounted to $91,743.12. The sole issue before the Commission on the preliminary point and sole issue for this Court on the appeal is whether, the true effect of the restructure was to reduce the appellant’s wages to $67,037.42. The Commissioner who dealt with the matter at first instance and who was mistaken as to the facts, dealt with the matter as follows:

“These voluntary payments are to be viewed differently to those such as superannuation and vehicle expenses incurred in the course of employment. His Honour cited the case of Ardino v Count Financial Group Limited (1994) 57 IR 89 with apparent agreement where Wilcox CJ said at 94:

‘If the situation is that the employer never had any option but to pay particular monies to a superannuation fund, as distinct from makingitf available to the employee, the payment cannot properly be described as “wages”.’.

Wilcox CJ continued:

‘So far as money payments are concerned (superannuation, school fees, etc.), the critical question is whether the employee ever had an entitlement to receive the money himself or herself. If the contractual arrangement between the employer and the employee was that the money would be paid to someone else as soon as the occasion arose, to the exclusion of any right of the employee to obtain payment, the money was not something that the employee received or was entitled to receive.’.

Wilcox CJ noted that Mr Ardino was entitled to receive the payments himself. ‘He chose to have them diverted elsewhere’. The contractual arrangement between Mr Murgatroyd and Acknowledge Database Services Pty Ltd was that at any time he could elect to take the full amount of the package, absent the superannuation of course, in case. The employee always had the right to obtain payment of these sums to him. President Hall also cited Re: Australian Liquor, Hospitality and Miscellaneous Workers Union Print Q1629 as follows:

‘… a Full Bench of the Australian Industrial Relations Commission concluded (at 15):

“We therefore construe paragraph 170CC(3)(b) as meaning that the rate of remuneration applicable to the employee is an assessed annual rate of the cash payments made or liable to be made by the employer to or on behalf of the employee, or benefits in kind for the private use of the employee, exclusive of payments made as reimbursement, and identifiable as a reward or recompense for the work or service in the period of employment immediately prior to the termination of employment” (Emphasis added).’.

Many of the expenses deducted from the salary of the applicant were of a private and voluntary nature. They were benefits in kind for the private use of the applicant. They were not a reimbursement of expenses such as referred to by President Hall and apart from the superannuation, were not required to be paid by the employer. Expenses which were clearly of a private and voluntary nature, without going through an exercise of dealing with all of the deductions in the list individually, were ‘visa $3,000’, ‘vehicle two $5,909.77’, ‘income protection $1,149’ and ‘medical insurance $3,480’, totalling $13,538.77. In my view, these at least, must be added to the applicant’s net wage of $67,037.42. If that exercise be done, the result is $80,576.19 which takes his ‘annual wages’ beyond the statutory limit.”.

Had this been a case in which monies had been drawn down from the “expense budget” and paid to the various creditors of the appellant, I should have entirely agreed with the Commission’s decision. The authorities to which the Commission referred entirely support the view which the Commission adopted. And in my view the misapprehension as to the facts makes no difference. It would be incongruous if payments made to a creditor were to be taken into account in calculating the appellant’s annual wages whilst reimbursements made to the appellant on the production of receipts were not. The essential point is that the appellant was entitled to receive $91,743.12 as wages. In reliance upon the decision of this Court in O’Connor v. The Electroboard Administration Pty Ltd (2001) 168 QGIG 90 it is contended for the appellant that only amounts upon which the appellant paid tax are to be taken into account in determining the annual wages payable to the appellant immediately prior to his dismissal. O’Connor v. The Electroboard Administration Pty Ltd, ibid, is authority for the proposition that “wages” at s. 72(1)(e) does not mean “remuneration”, the word which was used in the counterpart provision of the Workplace Relations Act 1997, and that wages at s. 72(1)(e) should be given its natural meaning rather than the meaning at the definition of “wages” in Schedule 5. As to the first matter, the point in distinguishing “wages” and “remuneration” was to ensure that cases decided under the Workplace Relations Act 1997 were not blindly followed. At no point did the Court develop the proposition that in calculating “wages” for the purpose of s. 72(1)(e) one was to leave out of account payments which were more appropriately characterised as “remuneration”. In fact, there will be many payments which fall within the ordinary meaning of “wages” and within the ordinary meaning of “remuneration”. As to the ordinary meaning of “wages”, in an era in which a variety of entitlements are commonly rolled into an “annualised salary” I find it impossible to distinguish between a case in which it is agreed that an employee will be periodically paid a nominated money sum for his services and a case in which it is agreed that an employee will be paid an annualised sum by 26 periodic instalments. Certainly, there is nothing in the policy of s. 72(1)(e) to suggest that those whose wages expressed as an annualised amount are to be within the protection of Part 2 of

20 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 589

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Chapter 3 whilst those whose wages expressed as a weekly or fortnightly sum are to be denied the protection if the total “annual wages” exceeds the nominated amount. With the greatest of respect to the skill with which Mr Shepley of counsel has argued his case, his difficulty in formulating the proposition exposes the frailty. Whether one talks of “the wages upon which tax is payable” or “that part of the wages upon which tax is payable”, one inevitably admits that one is trying to exclude some part of the wages actually paid. I dismiss the appeal. I reserve the question of costs. If need be written submissions will be taken. Dated 4 June 2003. D.R. HALL, President. Released: 4 June 2003

Appearances: Mr J. Shepley instructed by Australian Industrial Reinstatement Services for the appellant. Mr A. Duffy instructed by Hogan Besley Boyd, Lawyers, for the respondent.

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INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 – s. 509 – appeal against decision of industrial magistrate

WorkCover Queensland AND J.M. Kelly (Project Builders) Pty Ltd (No. C31 of 2003)

PRESIDENT HALL 11 June 2003

DECISION

On 6 December 2001 WorkCover accepted a claim for compensation by a Mr James Fitzgerald. On 18 January 2002 WorkCover confirmed the acceptance of Mr Fitzgerald’s claim and provided “reasons for decision”. Mr Fitzgerald’s employer, the respondent to this appeal, sought a statutory review of WorkCover’s decision. By a letter dated 28 June 2002 the statutory review unit advised the respondent that WorkCover Queensland’s decision had been affirmed. The respondent then appealed to the Industrial Magistrate’s Court. By a decision of 21 January 2003 the Industrial Magistrate’s Court allowed the appeal. It is against the decision of the Industrial Magistrate that this appeal is brought. Throughout and on this appeal, there has been but one issue. Whether Mr Fitzgerald was “a worker” within the meaning of the WorkCover Queensland Act 1996 when he suffered physical injuries on 15 September 2001. At all material times “worker” was defined by s. 12. The definition was (and is):

“12 (1) A ‘worker’ is an individual who works under a contract of service. (2) Also, a person mentioned in schedule 2, part 1 is a ‘worker’.”

Materially, schedule 2, part 1 provides:

“1. A person who works under a contract, or at piecework rates, for labour only or substantially for labour only.” It is convenient to deal with the issues arising under s. 12(1) and then move to the difficulties created by s. 12(2) and schedule 2, part 1. Before doing that, I should perhaps by way of background record that on or about 30 August 2001 Mr Fitzgerald had commenced working for the respondent at a site on which a shopping centre was being constructed. He was engaged to fix Miska Expansion joints. It was always intended that the engagement would be a short term one. The project was at the “finishing” stage and the respondent was anxious to complete the project “within time” so to avoid contractual penalties. The common law has long since abandoned control as the only relevant factor in determining whether a relationship is that of employer and employee, compare Stevens v. Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 29 per Mason J and Hollis v. Vabu Pty Ltd (2001) 207 CLR 21 at 41 per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. Doubtless, any contrary approach would have rendered the law of employment irrelevant to much economic activity in contemporary Australian society, compare Ermogenous v. Greek Orthodox Community of SA Inc. (2002) 209 CLR 95 at 124 per Kirby J. However, a consequence is that the distinction between “employee” and “independent contractor”, has, to quote Deane J in Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 at 49, become “an increasingly amorphous one as the single test of the presence of absence of control has been submerged in a circumfluence of competing criteria and indicia.”. Whilst I am not aware of any authority that the assessment has become so generalised as to require that any appeal be dealt with on the basis of the principles in House v. The King (1936) 55 CLR 499, compare Macauslane v. Fisher and Paykel Finance Pty. Ltd. [2003] QdR 503 at 513 per Holmes J with whom McMurdo P and White J agreed in the case of assessing reasonable notice of termination, it is plain that one should exercise caution in characterising a decision at first instance as “wrong”. In the absence of such characterisation, there can be no basis for allowing an appeal, compare Norbis v. Norbis (1986) 161 CLR 513 at 518 and Macauslane, ibid, at 513. By his written submission counsel for the respondent summarises the indicia weighed by the Industrial Magistrate as follows:

(a) Fitzgerald was engaged on contract for a very brief and specific purpose. The Respondent was at the end of its project and time was critical to complete it. There was a special need because of a large performance bond.

(b) The engagement was for a period of about two and a half weeks. (c) Fitzgerald was an experienced carpenter who was provided with no training. (d) The work of Fitzgerald was performed at his discretion subject to overriding considerations of the Respondent’s contractual and other

obligations. (e) Fitzgerald was to work at a higher rate of remuneration than that applicable to employees of the Respondent. He worked at a rate of $22.00

per hour.


(f) Fitzgerald had to provide his own equipment. (g) Fitzgerald provided invoices for work which referred to his ABN and included GST. (h) Fitzgerald provided no tax file number to the Respondent. (i) Fitzgerald was not provided with holiday pay, sick leave or other entitlements applying to an employee. (j) Fitzgerald had flexible working hours and was not required to fill out a time sheet. (k) The Respondent did not have exclusive use of his services. Fitzgerald worked for others as an independent contractor at or about the time of

his engagement with the Respondent (refer Exhibit 5). He advertised his services for hire. Some, albeit minor, comment should be made about the summary. To begin with, the circumstance that Mr Fitzgerald provided his own tools was inconsequential and the Industrial Magistrate expressly said so. It was inconsequential because Mr Fitzgerald sometimes worked as a independent contractor and sometimes worked as an employee and on all occasions provided his own tools. More telling than the circumstance that the rate at which Mr Fitzgerald worked was higher than the going rate for employees, is the circumstance that he was paid for time worked rather than to produce a result. That is an indication that he was an employee. That matter is taken further by the circumstance that the flexibility and the hours which he worked was really quite marginal. The explanation given by the respondent’s project manager that it was all about coordinating teams of workmen to finish the project on time lacks plausibility. The circumstance that Mr Fitzgerald sought permission to start “late”, when necessary is further indication that he was an employee. It should perhaps have been stressed that this was not a case in which the respondent had prevailed upon Mr Fitzgerald to obtain an ABN. The evidence was that Mr Fitzgerald had an ABN because he sometimes worked as a independent contractor and indeed advertised for work. Counsel for the appellant presses that the Industrial Magistrate should have taken into account also that at the direction of the project manager Mr Fitzgerald performed work other than on the Miska Expansion joints. The difficulty is that such work was always expressly invoiced out. The factor is inconclusive. Counsel for the appellant also complains that there was no evidence that Mr Fitzgerald worked for others or was entitled to do so. Counsel is correct. Notwithstanding that the Industrial Magistrate and I are not ad idem on all matters, I am far from satisfied that this is a case in which it could properly be said that the Industrial Magistrate was wrong. The opinion which His Worship formed was plainly open. Indeed, as is implicit in my comments about His Worship’s decision, I would in the end result have reached the same conclusion though perhaps a little less enthusiastically. I am not prepared to interfere with the Industrial Magistrate’s conclusion that Mr Fitzgerald was not a “worker” within s. 12(1). The Industrial Magistrate dealt, but briefly, with the submission that Mr Fitzgerald worked under a contract for labour only or substantially for labour only. At p. 4 of his written decision His Worship said:

“As stated above, subsection 1 of Schedule 2 of the Act states that ‘A person who works under a contract, … for labour only or substantially for labour only,’ is a worker. In this regard I was referred to the World Book Case9 was (sic) concerned with s. 221A(1) of the Income Tax Assessment Act 1936(Cth). In that case Sheller JA stated (at pages 385-6): ‘….. In my opinion by retaining the description of contract wholly or principally for the labour of a person the legislature has maintained a distinction between a contract for labour and a contract to use the expression of the High Court in Neale (at 425), “whereby the contractor has undertaken to produce a given result and” (the amount to be paid) “becomes payable when, and only when, the contractual conditions have been fulfilled”. Undertaking the production of a given result has been considered to be a mark if not the mark, of an independent contractor: see e.g. Queensland Stations Pty Ltd v. Federal Commissioner of Taxation (1945) 70 CLR 539 at 545 and 548. It may be that there are contracts for services which are wholly or principally for the labour of a person and which are not undertaken by the contractor to produce a given result. To the rewards of such contracts the definition may apply. But a contract which is undertaken to the contractor to produce a given result is not in my opinion, a contract wholly or principally for the labour of a person for reason that the labour is undertaken and not for the principal but for the contracting party himself to produce the result he has contracted to produce. ….’.”

The Industrial Magistrate’s decision that Mr Fitzgerald was not a “worker” within the meaning of s. 12(2) has to be based on that passage. The decision referred to, viz, World Book (Australia) Pty. Ltd. v. Federal Commissioner of Taxation (1992) 108 ALR 510, is really quite unhelpful. Mr Fitzgerald had not contracted to produce a particular result and was not labouring for himself to earn money payable on achievement of the result. The respondent had contracted, not to pay for a result, but to pay for such time as was worked in achieving the result, viz the installation of the Miska Expansion joints. Mr Fitzgerald was always working for the respondent. Special provision to bring subcontractors who substantially perform work rather than take profits within Workers Compensation legislation has been the feature of Australian Law for sometime, compare Marshall v. Whittaker’s Building Supply Co. (1963) 109 CLR 210 at 219 to 220 per Windeyer J. Indeed, interestingly, in Herbert v. Edelston [1909] St R Qd 316, a case upon the Worker’s Compensation Act 1905 which contained no such expansionary provision, Real J and Chubb J (Shand J dissenting) held that where a person was engaged to perform manual labour in circumstances where remuneration to be received was understood and intended to be in substance a reward for that manual labour that person was properly regarded as a “worker” for the purposes of the Act without analysis of or characterisation of the contract. (Though it has to be noted in Marshall, op cit, at 220 Windeyer J was of the view, without deciding, that the decision in Herbert, op cit, was one which might be revisited.) The current definition of “worker” flows from Act No. 17 of 1999. Because the object of interpretation is to adopt the interpretation which will best achieve the purpose of an Act, see Acts Interpretation Act 1954, s. 14A(1) I have gone to the Explanatory Notes and the Minister’s Second Reading Speech, see s. 14B(1) and (3)(e) and (f). The Explanatory Notes are of no assistance. Relevantly, the Minister said:

“The definition of ‘worker’ will be changed so that all people who work under a contract of service, regardless of their tax paying status, will be eligible for workers compensation. To assist decision makers in determining whether a contract of service exists, administrative guidelines will be developed by the department and WorkCover Queensland. For further clarification, the schedule to the Bill contains provisions that declare certain groups as workers or employers. Under the existing definition of ‘worker’, significant groups of workers, such as those paying tax under PPS while working under a contract of service, are excluded from compensation. They must seek their own personal injury insurance at their own cost.”.

I apprehend that passage to indicate that schedule 2 was directed, not at clarifying the concept of “a contract of service” but at making analysis of the engagement unnecessary in the case of certain groups of persons by placing the members of the groups within the definition of “worker”. When one goes to schedule 2, part 1 and looks at the range of groups brought within the definition of “worker” that understanding is confirmed. Without reproducing the rather lengthy schedule the groups listed will often be and, in the case of the group at s. 4 “contractors” will necessarily be, persons who were not working pursuant to a contract of service.



The outstanding issue is whether Mr Fitzgerald was a person who was working under a contract for labour only or substantially for labour only. It seems to me that he was. It is immaterial that he provided his own tools. Section 1 of schedule 2, part 1 does not stop at bringing within the definition of “worker” persons who work under a contract for labour only. It goes further “ …so that the definition may apply not only where the remuneration is a return for manual labour … and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so insignificant that in reality, or as one might say to all intents and purposes, it is the return for manual labour …”, Marshall v. Whittaker’s Building Supply Co. (1963) 109 CLR 210 at 214 per Kitto, Taylor, Menzies and Owen JJ. See also Summit Homes v. Lucev (1996) 16 WAR 566. I allow the appeal. I set aside the decision of the Industrial Magistrate. In lieu thereof I order that the appeal against the decision of the statutory review unit be dismissed. I reserve all questions as to cost. If there are to be arguments about costs they should be developed in writing. Dated 11 June 2003. D.R. HALL, President. Released: 11 June 2003

Appearances: Mr G. P. Long directly instructed by WorkCover Queensland for the appellant. Mr M. T. O’Sullivan instructed by Hunt & Hunt, Lawyers for the respondent.

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Industrial Relations Act 1999 – s. 74 – application for reinstatement

William Roy Adams AND Chute Industries Australia Pty Ltd (No. B1308 of 2002)

DEPUTY PRESIDENT BLOOMFIELD 4 June 2003 Application for reinstatement – Witness evidence – Witness credibility – Employee breached duty of fidelity and good faith – Respondent acted fairly – Termination not harsh, unjust or unreasonable – Application dismissed.

DECISION

Background and relevant facts

The Applicant in these proceedings, Mr William Roy Adams, first commenced work with the Respondent, Chute Industries Australia Pty Ltd, in early 1999 as a contract collector and siter of clothing bins used by the Respondent to collect used clothing for various charities. The Applicant worked for the Respondent until the end of 2000 when he returned to Papua New Guinea to run his family coffee plantation.

In around April 2001 (shortly after becoming an Australian citizen) the Applicant made contact with the Respondent to seek further contract work. However, the work which he had previously performed was now being performed by a new contractor and there was no work available for him. In the discussions which ensued the Respondent indicated that it would assist the Applicant to set up a company in Melbourne, with two Fijian nationals supplying the funding, to be known as Pacific Clothing Recycle Centre Pty Ltd (PCRC). It was proposed PCRC link itself with a charity and become involved in the collection of used clothing in Victoria. It was also proposed that a branch operation be conducted in Brisbane. It was further proposed that the Respondent and another recycling company in Melbourne contribute towards the set up expenses in return for receiving collections made through PCRC.

However, the Applicant did not wish to relocate to Melbourne. Consequently, the Respondent arranged with him to place collection bins in the southern Brisbane metropolitan area and on the Gold Coast and collect clothing, and other bric a brac, from those bins under contract to the Respondent. The Applicant’s duties also involved bringing the collected goods back to the Respondent’s factory, sorting them and packing the clothing in bales. The Applicant, who worked alone when performing these tasks, had a key to gain access to the Respondent’s factory.

The Applicant was paid an agreed amount for each bale of clothing (of a minimum weight of 180kgs). All expenses involved in the collection, including site rental, was to be paid from the agreed amount. Further, the Respondent agreed with the Applicant that he would be paid a set amount for painting and preparing the bins for delivery to site and an additional amount for each bin sited with full written permission and a lesser amount for those sited otherwise.

The evidence was that between mid-2001 and April 2002 a total of 30 bins were placed on sites arranged through the Respondent. Further, a total of 60 bins had been repainted by the Applicant. The Respondent said it had paid the Applicant a total advance of $21,306 against monies earned under the piecework arrangements which amounted to only $9,600.

The Respondent’s manager, Mr Doonan, said he received information in mid-April 2002 that clothing was being sorted after hours at the Respondent’s factory and that it was later being sold at the Stafford shopping centre markets by the Respondent and his wife. Mr Doonan said he confronted the Applicant about the allegation on 23 April 2002 when the Applicant admitted he had sold clothing “on a few occasions (but) had only received a couple of hundred dollars on each of these occasions”.

In his supplementary affidavit in reply the Applicant specifically denied the allegation that he had sold the Respondent’s clothing at the Stafford markets “as alleged or at all”. However, under cross-examination he reluctantly confirmed the accuracy of Mr Doonan’s evidence.

Mr Doonan said he instructed the Applicant at the 23 April 2002 meeting not to sort any further goods at the Respondent’s premises. However, Mr Doonan said that when he returned after the Anzac Day long weekend he found that the entire factory contents had been sorted. Consequently, he arranged for the locks on the factory to be changed to prevent any access by the Applicant.

Mr Doonan said that during a visit to the Applicant’s place of residence in early May 2002 he noticed a large quantity of clothing, in sacks and cartons belonging to the Respondent, stored in a garage of the unit next to the Applicant’s. Mr Doonan estimated there was approximately 100 sacks and cartons containing between 1,500kgs and 3,000kgs of clothing. He expressed the belief that the boxes and cartons contained clothing which the Applicant had sorted over the Anzac weekend period and prior. The Applicant argued there were only 8 sacks and 8 cartons and that the pile looked bigger because there were mattresses, fridges etc. behind the sacks and cartons. I do not believe him. Mr Doonan struck me as a reliable witness and someone with his knowledge of the used clothing business would have recognised the difference between 16 sacks and cartons and 100, even allowing for some overestimation.


Mr Doonan said he confronted the Applicant about the sacks and cartons of clothing. He said the Applicant told him it was Mr Joe Nepal’s family’s personal clothing to be sent to Papua New Guinea. Further, Mr Doonan said the Applicant told him that Mr Nepal had been in the Respondent’s factory and had “borrowed” the sacks and cartons. Mr Doonan said he told the Applicant that he believed the sacks, cartons and clothing were the property of the Respondent and he asked the Applicant to return them to the Respondent’s premises. Mr Doonan said that the sacks and cartons were not returned. Mr Doonan also said he had not been able to pursue the issue of the clothing because of the difficulties associated with proving the Respondent’s ownership of the goods. Because of all of the above events – together with the discovery of a facsimile sent from the Respondent’s premises on behalf of a competitor (below) – Mr Doonan concluded that he could no longer trust the Applicant to perform the work he had been engaged to do (i.e. use the Respondent’s truck to collect used clothing from the Respondent’s collection bins, bring it back to the warehouse and sort it before packing it in bales – all without supervision) and that he would only employ him on other available work until a meeting could be arranged with the representative of the Fijian shareholders of PCRC (the representative being Mr Pat Chute – the principal shareholder of the Respondent) to map out the Applicant’s future. Consequently, the Applicant was assigned the task of repairing and painting the Respondent’s collection bins at an agreed hourly rate. By 27 July 2002 all of the clothing bins had been repaired and painted and the Respondent offered no further work to the Applicant.

The Applicant’s application for reinstatement alleges that, in all of the circumstances, the Respondent breached it’s contract of employment with the Applicant by refusing to offer him work after 27 July 2002 in circumstances that were unjust, harsh and/or unreasonable within the meaning of s. 73 of the Industrial Relations Act 1999.

Other material which emerged from the evidence

In his affidavit of evidence the Applicant alleged that his duties were changed in May 2002 because Mr Doonan employed his wife’s niece and her boyfriend. However, Mr Doonan said the new employees had not commenced as casual employees until on or about 20 June 2002. I believe Mr Doonan. Under cross-examination the Applicant also acknowledged he had been instructed at the time of his engagement not to have any dealings with a competitor of the Respondent, a Mr Kimisopa. However, the Applicant conceded that he had sent a facsimile from the Respondent’s premises on behalf of Mr Kimisopa to Mr Nepal in Papua New Guinea on 20 February 2002 in relation to the shipping of a container of “virgin stock – unsorted used clothing” worth AU$15,000. Mr Doonan said that checks of the Respondent’s telephone records showed that there had been “over 100 overseas calls” from the Respondent’s telephone number in the month of February 2002. Many of these calls were to Mr Nepal’s telephone number. The Applicant reluctantly conceded under cross-examination that he had “frequently” used the Respondent’s telephone to make calls to Papua New Guinea claiming that these calls were to his mother. Mr Doonan also said that the Applicant told him at the 23 April 2002 meeting (above) that he was unhappy with the payments he was receiving for collecting clothes from the recycling bins and that as a director of PCRC he was also entitled to receive profits from the clothing sold as well as payments for collecting the goods. Mr Doonan said he directed the Applicant to the manager of the Victorian recycling company because he (Mr Doonan) had no knowledge of PCRC’s activities in Victoria and PCRC did not operate in Queensland. The Applicant argued that the bins he sited in Brisbane and on the Gold Coast were for PCRC. Mr Doonan denied this saying they belonged to the Respondent and were for charities linked to the Respondent. Given the absolute lack of any evidence from the Applicant about any charities with which PCRC may have been linked in Queensland I accept Mr Doonan’s version. The Applicant also said he believed he was dismissed because of his involvement in PCRC and because he started to ask questions about what was happening. He claimed that neither Mr Doonan nor Mr Chute would tell him what was happening and that Mr Doonan was preventing him from seeing correspondence relating to the PCRC operation. The Applicant also alleged that at a meeting with Mr Chute in May 2002 he was told that Mr Chute wanted his resignation as a director of PCRC because he (Mr Chute) wanted to run the company his way. The inference was that the termination of the Applicant’s employment by the Respondent was linked to the dispute about PCRC. However, Mr Doonan said the decision to change the Applicant’s duties in early May 2002 was made because of the fact he had lost faith and trust in the Applicant and because he was no longer prepared to allow the Applicant to continue to collect used clothing and sort it because it was impracticable to arrange any supervision. Again I believe him. Firstly, the Respondent had ample evidence to support the decision. Secondly, the meeting with Mr Chute did not take place until after the Applicant had been relieved of his collection and sorting duties. Thirdly, Mr Doonan’s behaviour at the time was consistent with his evidence about the events as they unfolded. Fourthly, the Respondent’s practices – where the collectors performed the tasks alone and had 24 hour access to the Respondent’s factory – meant that it was impossible for the Respondent to allow the Applicant to continue in his previous role. Was the termination harsh, unjust or unreasonable? After considering all of the evidence in this matter I have concluded that the Respondent’s decision not to offer the Applicant further work after 27 July 2000 was not harsh, unjust or unreasonable. Rather, the Respondent acted very fairly by providing a period of further work from early May 2002 until 27 July 2002 when it could, on the evidence available at the time, have reasonably terminated the Applicant’s employment at the beginning of May 2002. This was because the evidence clearly showed that the Applicant breached his duty of fidelity and good faith by acting dishonestly and contrary to the interest of his employer. For example, although denying in sworn affidavits that he had sold any of the Respondent’s goods “as alleged or at all” the Applicant conceded in evidence that he had taken goods which were the property of the Respondent (and ultimately one of the charities with which the Respondent is linked) and sold them at the Stafford markets. In addition, the Applicant also conceded he had frequently used the Respondent’s phone to make telephone calls to Papua New Guinea. In that regard I record that I do not believe his evidence that he only phoned his mother. Further, the Applicant also conceded that he had used the Respondent’s fax facility to send a facsimile on behalf of a competitor of the Respondent (Mr Kimisopa) to Mr Nepal in Papua New Guinea. In that regard the Applicant claimed he had previously offered Mr Doonan the opportunity to supply used clothing to Mr Nepal and that in sending the fax to “a friend” he was doing nothing wrong. Not only was the suggestion that Mr Doonan was offered the opportunity to sell clothing to Mr Nepal not put to Mr Doonan, I find the whole proposition implausible and reject it. The Applicant knew that Mr Kimisopa was a direct competitor of his employer and acknowledged that he had been instructed at the time of his engagement in mid-2001 that he was not to have any contact with that gentleman. However, the Applicant blatantly disregarded the instruction and directly assisted the competitor to make a sale to someone who was also apparently a client of the Respondent. The Applicant also revealed himself to be a deceitful and untrustworthy employee in other ways.



Mr Doonan said that when he confronted the Applicant about the sacks and cartons in the garage the Applicant had told him that Mr Nepal had been in the Respondent’s factory and had “borrowed” sacks and cartons to transport his clothing in. Although that issue was not responded to in the Applicant’s affidavit in reply, and not directly put in cross-examination, I accept Mr Doonan’s evidence. Why the Applicant would have taken Mr Nepal to the Respondent’s factory in the first place, let alone permit him to “borrow” sacks and cartons belonging to the Respondent, was not explained. It was simply inappropriate behaviour and in breach of his duties as an employee. I also accept Mr Doonan’s evidence (ahead of that of the Applicant) that the sacks and cartons were never returned. Notwithstanding my doubts about the Applicant’s reliability as a witness I think it implausible that he would have returned such items directly to Mr Doonan’s house rather than to one of the Respondent’s factories. In my view, the Respondent was entitled to rely upon all of the above material to reach the conclusion, in early May 2002, that it could no longer employ the Applicant on the (piece) work on which he had previously been engaged and which required the Respondent to have complete confidence and trust in the Applicant. As such, it was entitled to remove him from the duties which he had previously performed and act to either terminate his employment or to offer him other reasonable work which it might require and which did not involve the same elements of trust. As the evidence disclosed, the Applicant was offered other piecework, at an agreed rate, repairing and spray painting collection bins. On 27 July 2002, when that work ran out, there was no other available work which the Applicant could perform. Consequently, given the way the Applicant had behaved previously, there was nothing harsh, unjust or unreasonable about the Respondent’s decision not to offer the Applicant any further work after that date. For the foregoing reasons the application is dismissed. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2003 6 May Released: 4 June 2003

Appearances: Mr J.M. Horton, Counsel, instructed by Mr G. McGoldrick of J.A. Sherwood & Co, Solicitors, for the Applicant. Ms K. Carmody, Counsel, instructed by Mr J. Nagel, of John Nagel & Co, Solicitors, for the Respondent.

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Industrial Relations Act 1999 – s. 278 – application for pro rata long service leave

Dafydd Campbell Mark Thomson AND Pauls Limited (No. W37 of 2003) DEPUTY PRESIDENT BLOOMFIELD 6 June 2003 Application for pro rata long service leave – Family moved to Tasmania – Applicant resigned to move with them – Applicant claimed domestic or other pressing necessity – Evidence – Relevant case law considered – Tests in Re Computer Sciences applied – Circumstances do not constitute a domestic or other pressing necessity – Application dismissed.

DECISION The application Mr Dafydd Thomson (the applicant) has made an application under s. 278 of the Industrial Relations Act 1999 (the Act) for an order that Pauls Limited (Pauls) pay an amount of $5,002.95 representing pro rata long service leave accrued by him during the period of his employment with Pauls viz 6 July 1994 until 28 March 2003. Mr Thompson argued that the reasons for his departure from Pauls amounted to a domestic or other pressing necessity and that he was entitled to pro rata long service leave under the terms of the Act. Legislative provisions The provisions of the Act relevant to this application are found in s. 43(3) and (4) of the Act which provides as follows: “(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the

termination of the employee’s service. (4) However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to

a proportionate payment only if – (a) the employee’s service is terminated because of the employee’s death; or (b) the employee terminates the service because of – (i) the employee’s illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer – (i) dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or (ii) unfairly dismisses the employee.”. In The Australian Workers’ Union of Employees, Queensland v Sunshine Coast Private Hospital (2003) 172 QGIG 1097 Asbury C compared the provisions of the above legislation with the comparable provisions at s. 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW). In doing so she referred to a number of the leading New South Wales decisions relating to the concept of “a domestic or other pressing necessity” and identified that the term “because of”, as it appears above, involves the notion of cause and effect: British Motor Corporation v Chance 1965 AR 364.


One of the other leading decisions referred to by the learned Commissioner was Computer Sciences of Australia Pty Ltd v Leslie 1983 AR 828. At 831, the Commission in Court Session said: “On the question of the test to be applied to establish the validity of the claim as falling within s. 4(2)(a)(iii) His Honour [Sheldon J in Franks v

Kembla Equipment Co Pty Ltd 1969 AR 17] said: ‘The test, I would suggest, is whether there is a really serious problem in the home, although not necessarily a crisis. On the one hand the

colourable and frivolous should be rejected but on the other overexacting standards should not be adopted. After all what is being dealt with is not a sphere-shaking issue but a reason for terminating employment and a material consideration must be whether a domestic situation is such that a reasonable man might feel compelled to seek its solution by terminating his employment. (Our emphasis.).’.

His Honour was obviously not attracted by refinements based on a ‘subjective’ approach, in whatever sense that term may be said to have been

intended in Eyles v Cook. We do not think, in any event, that properly considered, the judgments in Eyles v Cook and British Motor Corporation v Chance are to be read as implying that the test is a ‘subjective’ one in the sense that the worker’s view is to prevail even though a reasonable person would not have felt compelled to seek a solution to the problem by terminating his employment in the same circumstances. If that were the conclusion to be reached by reference to those cases we would, with respect, disagree. We would prefer the simple and characteristically well expressed exposition of Sheldon J in Franks Case above.

Applying that approach, the present case should be resolved, in our view, by asking the following questions. (1) Was the reason claimed for termination one which fell within the section? (2) Was such reason genuinely held by the worker and not simply colourable or a rationalisation? (3) Although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate, was it the real or motivating reason? (4) Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment?”.

In AWU v Sunshine Coast Private Hospital (above) Asbury C essentially adopted the reasoning of the Commission in Court Session in Computer Sciences and made 2 other points, which I respectfully adopt, in relation to the approach which the Commission should take in matters of this type. Those 2 points were: (1) that a claimant should provide clear evidence to the Commission to enable the questions posed to be answered in the affirmative; and (2) in answering the questions, the Commission should determine what the true facts were at the relevant time, in light of what was said and

done, and of the circumstances in which those things were said and done. Utilising the questions posed in Computer Sciences and the approach adopted immediately above I turn now to consider Mr Thomson’s claim that he resigned his employment because of a domestic or other pressing necessity. Applicant’s argument in support of claim In his application – lodged on 20 March 2003 i.e. before the cessation of his employment – Mr Thomson advanced the following material in support of the claim: “My entire family is moving to Tasmania. I have always lived at home with my family and have voluntarily resigned from my employment to stay

with my family and move interstate with them. I would be financially disadvantaged without my pro-rata long service leave, as I support myself financially while living at home. I have prepared copies of my bank statements which can be lodged to support my claim of financial hardship should my long service not be

approved. I have been a consistent and loyal worker at Pauls Parmalat for almost 9 years, and would have remained an employee if my family were not moving

interstate. I commenced my employment with Pauls Parmalat on 6 July 1994 and ceased my employment with the company on 28 March 2003.”. When giving his evidence Mr Thomson formally adopted the above reasons. He also said he was a bachelor and had always lived with his family, “wherever they moved I would have moved with them”. He said he did not give his reasons for leaving at the time he was employed with Pauls because he did not want his personal life discussed on the factory floor. Mr Thomson’s reasons for the resignation need to be compared to the reasons provided to Pauls at the time of the resignation, and subsequently. Ms Milburn, Manager – Milk Operations, said Mr Thomson asked if he could make an appointment to see her at 10.00 a.m. on 14 March 2003. She agreed. At 10.00 a.m. Mr Thomson arrived with a union delegate. Ms Milburn said she thought this strange but assumed that Mr Thomson had asked for the delegate’s presence because he had previously received a few warnings. Mr Thomson then said words to the effect “I’m going to resign” and handed her a resignation letter. Ms Milburn said she asked Mr Thomson why he was resigning and he replied with words to the effect “I am tired – I’ve had enough”. After some further discussion about him being missed Mr Thomson repeated that he was tired. Ms Milburn said she asked Mr Thomson what his plans were and he said “sleep”. When she asked him whether he would be looking for another job he replied with words to the effect that his uncle had offered him a job as a fish feeder on an off-shore fish farm.

Ms Milburn said that Mr Thomson never mentioned his parents or his intention to move to Tasmania.

Mr Cesky, a Senior Coordinator in Milk Product Packaging, said Ms Milburn told him that Mr Thompson had resigned. She asked him to prepare the normal resignation papers. Mr Cesky said he spoke to Mr Thomson on the same day as he was filling in the termination report and asked Mr Thomson why he resigned. Mr Thomson replied with words to the effect “I just resigned”.

Mr Cesky said he took this to mean that Mr Thomson did not wish to specify his reasons so he wrote “Personal” on the termination report. When he took the report to the pay office he was told the reason stated was not good enough and he was asked for more detail. When Mr Cesky asked Mr Thomson for some more detail about the reasons for his resignation Mr Thomson replied with words to the effect “it’s time to move on. I’ll take a few months off and then I’ll probably look for another job.”. Again, Mr Cesky said that Mr Thomson did not mention his parents or moving to Tasmania.



Ms Cosh was the Payroll Officer employed at Pauls. She gave evidence that some time after Mr Cesky gave her the termination report Mr Thomson came to the office and queried his entitlement to long service leave. Ms Cosh said she told Mr Thomson what the provisions of the legislation were regarding pro rata payment of long service leave and advised him that if he fitted one of these reasons he would be entitled to long service leave. However, she also said that she told Mr Thomson, based on what Mr Cesky had told her that he would not be entitled to long service leave as he was going to another job and did not fit the legislation. Ms Cosh said Mr Thomson asked her for a copy of the document she had referred to and she gave him a copy of the relevant parts of an article dealing with long service leave taken from Wageline’s internet site. Ms Cosh said sometime later she received a telephone call from a person claiming to be Mr Thomson’s mother. The person said Mr Thomson would be making an application for long service leave and asked how much leave he had and what it was worth. Ms Cosh told the person she could not give this information over the telephone and Mr Thomson would have to make a written request for the information. Ms Cosh said that during the course of the conversation the lady on the telephone mentioned that Mr Thomson was moving to Tasmania to live and work. Ms Cosh said she noted this on Mr Thomson’s letter of resignation. This was produced into evidence. Under cross-examination Mr Thomson indicated he got on well with Ms Milburn and Mr Cesky, that he believed them to be trustworthy and that he accepted that in their positions they would be privy to a lot of confidential information which they did not disclose to other people. He also indicated his acceptance of the proposition that Ms Cosh, as the Payroll Officer, worked in a highly confidential position and did not disclose things such as people’s pay. Notwithstanding those concessions, Mr Thomson nonetheless asserted that the reasons why he was leaving were personal and that he did not disclose them to Ms Milburn, Mr Cesky and Ms Cosh because he wished to keep gossip off the factory floor. In that regard, Mr Thomson said that people already knew that he lived with his parents. He was not hiding that fact from them, he just wished to keep the move to Tasmania personal. When pressed for reasons why he thought he was entitled to pro rata long service leave because of some domestic or other pressing necessity Mr Thomson provided the following general reasons in support of his application:

• It was only after talking to his family that he realised he could apply. • If you added up the hours he had worked – 6 days a week on a regular basis and at times on 12 hour shifts – he would have his 10 years’

service. • He was a hard worker. • Because he was moving interstate with his family, all of whom had resigned from their jobs to move to Tasmania. • He would rather change his job than change his domestic arrangements.

However, at page 12 of transcript the following exchange occurs: “DEPUTY PRESIDENT: Mr Thomson, why did your parents move to Tasmania?-- Change of lifestyle, sir. Now you mention that your family are a very close family. I presume it was a family decision to move?-- Yes, it was, sir, yes. So it was also a consideration of yours to have a lifestyle change?-- Yes, it was, sir, yes.”. Later, when making submissions in reply, Mr Thomson advanced the following points in support of his claim:

• his family is his next of kin. The idea of suddenly renting and being unable to share his normal family lifestyle was untenable and would have resulted in undue stress and anxiety. That would have eventually caused a resignation;

• his sole reason for resigning was to move interstate with his family; • his lifestyle revolved around his family and would be generally harmed by an inability to maintain that lifestyle; • his comments to his supervisors about being tired and wanting a break were normal conversation by anyone needing a holiday or by anyone

who works a hard day’s work; and • he gave his reasons as personal because it might not be considered normal for a 29 year old bachelor to want to remain with his family. Mr

Thompson stressed that, notwithstanding other people’s views, he was normal, was not embarrassed by his close family ties and wanted to maintain them.

The tests in Computer Sciences 1. Was the reason claimed for termination one which fell within the section? I simply note that the primary reason advanced by Mr Thomson for his resignation was that his family was moving to Tasmania and he wished to remain with them. I also note that Mr Thomson had a genuine desire to remain with his family although, perhaps, overstating the consequences to him personally if he had chosen not to move with them. However, the reasons advanced do not constitute a domestic or other pressing necessity. There was, for example, no suggestion of there being a really serious problem in the home, although not necessarily a crisis, as considered by Sheldon J in Franks Case. Nor were there the types of circumstances considered in Australian Municipal, Administrative, Clerical and Services Union v Qantas Airways Limited (1996) 66 IR 70, where the applicant resigned to travel to America to become married; in Rumiz v Statts Management Pty Ltd (1999) 88 IR 266, where the applicant resigned in order to join her husband who had been transferred overseas; or in Mate v Western Sydney Health Service (2001) NSWCIMC 20 (13 February 2001), where the applicant resigned to travel overseas to care for her sick mother.

2. Was such a reason genuinely held by the worker and not simply colourable or a rationalisation?

My consideration of Mr Thomson’s evidence leads me to conclude that the reason advanced by Mr Thomson was not the primary, or motivating, reason for his decision to resign. Whilst I do accept (as expressed immediately above) that Mr Thomson had a genuine desire to remain with his family, I am nonetheless satisfied that his decision to resign was to allow him – in conjunction with the rest of his family – to make a lifestyle change.

It was not suggested, for example, as was the case in Rumiz, that one of his parents was being transferred in their employment to Tasmania and because of their transfer he felt compelled to move with them. (Even in these circumstances it might be that a reasonable person [see question 4 below] might not have felt compelled to move). Nor was there any suggestion that Mr Thomson was the family’s primary breadwinner and that because of his parent’s decision to move he felt “compelled” to move.


To me, Mr Thomson’s reasons for his resignation were coloured in an attempt to have them fall within the terms of the legislation. There was simply no attempt to justify the real reason for the decision but, rather, just the attempt to flavour the resignation (after the event) with some reasons which might have fallen within the terms of the Act. Even then, Mr Thompson’s evidence suggests that he was interested in effecting a lifestyle change. The explanations he gave to Pauls’ supervisors, for example, about being tired and it being time to move on, fit with the lifestyle change scenario. 3. Although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate was it the real or motivating reason for it? I am unable to conclude that the reasons claimed were the real or motivating reason for Mr Thomson’s resignation. As indicated immediately above I have concluded that the real or motivating reason for the resignation was so that Mr Thomson (together with the rest of his family) could effect a lifestyle change. 4. Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment? I am unable to conclude that a reasonable person in the circumstances in which Mr Thomson found himself would have felt “compelled” to terminate their employment for the reasons claimed by Mr Thomson, i.e. to maintain the family unit. [I adopt the qualification on the use of the word “compelled” found at paragraphs 30-32 by Simpson J in State Rail Authority v Smith (2000) NSWSC 334 (19 April 2000 – unreported)]. This was because there was no suggestion (as in Franks) that there was some serious problem in the home which necessitated Mr Thomson’s decision. Further, Mr Thomson said in his evidence that he thought it would not have been considered normal that a 29 year old bachelor would want to relocate to Tasmania simply to be with his family. I do not disagree with his observation. A reasonable person would not have thought that it was a “necessity” for Mr Thomson to relocate. Elements of choice were involved. Equally, I am not satisfied there was anything remotely “compelling”, or even pressing, in this case which would have caused a reasonable person to terminate their employment simply to effect a lifestyle change. A decision to resign one’s employment for that type of reason does not come within the set of circumstances at s. 43(4) of the Act. Consequently, for the foregoing reasons, I am not satisfied that Mr Thomson’s decision to resign his employment with Pauls was because of a pressing or domestic necessity within the meaning of s. 43(3) and (4) of the Act. Whilst my decision might have some direct financial consequence for Mr Thomson (see the reasons advanced in the formal application (above)) I simply refer to, and adopt, the comments of the Commission in Court Session in Re Computer Sciences in relation to the legislation and its intention: “As unfortunate as it may be for the worker, with only a further (15) six months needed to escape the more stringent conditions imposed, that he

should fail in his claim, nevertheless, the intention of the legislation in what, after all, is long service leave legislation is plain. An employer required to grant the substantial benefits of this legislation is entitled to have the worker complete the minimum unconditional qualified period unless the contingencies provided with respect to earlier terminations are clearly met.”.

The application is dismissed. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2003 13 May

Appearances: Mr D.C.M. Thomson, Applicant. Mr M. Rodgers, of Livingstones (Australia), instructed by Ms L. Leslie, of Pauls Limited, for the Respondent.

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Industrial Relations Act 1999 – s. 149 – arbitration if conciliation unsuccessful

Education Queensland AND Queensland Teachers Union of Employees and Others (No. B731 of 2003)

DEPUTY PRESIDENT SWAN COMMISSIONER BECHLY COMMISSIONER THOMPSON 6 June 2003

DECISION

The application before the Full Bench is made by the Queensland Teachers Union of Employees (the QTU) pursuant to s. 149(2)(b) of the Industrial Relations Act 1999 (the Act) seeking an interim order of 8% increase in salaries under the Department of Education Teachers’ Determination 2000 (the Determination) from 1 March 2003, pending the arbitration of the respective claims of the QTU and Education Queensland. This claim is supported by The Queensland Public Sector Union of Employees and opposed by Education Queensland. The Determination had a nominal expiry date of 28 February 2003. There has been no action initiated by either party to revoke the Determination. Whilst being mindful of s. 149(2)(b) of the Act, we need to consider the provisions of section 150 of the Act “Determinations made under s 149”. Education Queensland has stated in its submissions that:

“There are technical difficulties in resolving in favour of the QTU claim. The Education Queensland Teacher’s Determination 2000 continues to operate until revoked and cannot be amended.”.

Section 150 of the Act states as follows: “150 Determination made under s 149 (1) A determination under section 149 must specify a date, of no later than 3 years after the date on which the determination is made, as its

nominal expiry date.



(2) Subject to this section, the determination operates at all times after it commences and can not be amended. (3) The determination has effect subject to any conditions specified in it. (4) Before the determination’s nominal expiry date has passed, the commission must not revoke the determination unless satisfied – (a) the employer and the 1 or more organisations, or a majority of the employees, who are bound by the determination have agreed to the

revocation (for example, because they propose to make an agreement under division 1); and (b) the revocation would not be against the public interest. (5) After the determination’s nominal expiry date – (a) the employer, or an organisation, bound by the determination; or (b) a majority of the employees to whom the determination applies;

may give notice to all of the employees, or other employees, to whom the determination applies and persons, or other persons, who are bound by the determination and to the commission, stating that the determination is revoked with effect from a specified day.

(6) The specified day must be at least 28 days after – (a) the day on which the notice is given; or (b) if it is given to different persons on different days – the day on which it is last given.”. The order sought by the QTU, under the heading of “Relationship to Existing Awards, Agreements and Determinations” is that the order should be read in conjunction with: “Department of Education Teacher’s Determination 2000; Teacher’s Award – State; Community Teachers, Assistant Teachers – Aboriginal and Torres Strait Islander Community Schools Award – State; Permanent Part-Time Teaching in State Schools Industrial Agreement; and Specialist Teachers in State Primary and Special Schools Industrial Agreement.”. In light of the fact that: (a) the Department of Education Teachers’ Determination 2000 is the instrument currently binding upon the parties; (b) the nominal expiry date of that instrument was 28 February 2003; and (c) the Determination has not been revoked by either of the parties. we have determined that we require further submissions from the parties on s.150 of the Act. The Registrar will notify the parties of a date for the hearing of further submissions on this point. At this stage, we see no need to issue particularised Directions Orders on this matter. The matter under examination relates to a discrete section of the legislation. We order accordingly. D.A. SWAN, Deputy President R.E. BECHLY, Commissioner J.M. THOMPSON, Commissioner Hearing Details 2003 30 May Released: 6 June 2003

Appearances: Ms J. Carberry for the State of Queensland. Mr P. Whitehouse for Education Queensland. Mr G. Moloney and with him Mr K. Bates and with them Dr J. McCullow for the Queensland Teachers Union of Employees. Mr J. Spriggs for the Queensland Independent Education Union of Employees. Mr K. Cuddihy for the Catholic Education Employing Authorities Queensland. Mr J. Redsell for Grammar Schools and Lutheran Education Queensland.

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Industrial Relations Act 1999 – s. 149 – arbitration if conciliation unsuccessful

Education Queensland AND Queensland Teachers Union of Employees and Others (No. B481 of 2003)

DEPUTY PRESIDENT SWAN COMMISSIONER BECHLY COMMISSIONER THOMPSON 6 June 2003

REPORT ON DECISION (as edited)

In giving their decision from the Bench on 26 May 2003, the Full Bench stated:

“Given the imminent nature of the next hearing before the Commission in terms of the arbitration we have made this decision.


Having heard the submissions of the parties on today’s date and those persons wishing to intervene, we have determined to adopt the following course. We accept the general thrust of the submissions made by the Queensland Teachers Union of Employees (the QTU) from points 24 to 27 in their written submissions. This would preclude intervention on the basis sought by the interveners today. However, section 149 (5)(c)(11) of the Industrial Relations Act 1999 (the Act) places a mandatory obligation on the Commission to consider the public interest. In acting upon that obligation, it is our intention to seek written factual commentary only from those seeking to intervene in the matter together with the Queensland Independent Education Union of Employees (the QIEU) on the question of the likely effects of any wage increase on the non-government sector.

The situation at hand represents a discrete set of circumstances not common to matters before the Commission generally. We note that reluctantly the QTU proposes an alternative course (supported by the QIEU) in the event that intervention was granted.

We believe that proposition to be in excess of what is required and appropriate in these circumstances, therefore, intervention as sought is not granted. However, the Commission will accept from those proposing intervention, written factual commentary as to the likely effects of a wage increase as sought.

In the event that parties directly involved in this arbitration believe that the written factual commentary is inaccurate or would have the opportunity to mistakenly inform the Commission in any way, then we would be prepared to listen to debate around the issue and in that vein we would reserve our position on that point.

As and when those matters will arise as a matter of fact and be required to be acted on, will be something that will be dealt with by the Commission during the course of the Arbitration. On that basis we order accordingly and will adjourn, thank you.”.

Dated 6 June 2003

By the Commission, [L.S.] E. EWALD, Industrial Registrar. Appearances: Ms J. Carberry for the State of Queensland Mr P. Whitehouse for Education Queensland. Mr G. Moloney and with him Mr K. Bates and with them Dr J. McCullow for the Queensland Teachers Union of Employees.

Mr J. Spriggs for the Queensland Independent Education Union of Employees. Mr K. Cuddihy for the Catholic Education Employing Authorities Queensland. Mr J. Redsell for Grammar Schools and Lutheran Education Queensland.

Released: 6 June 2003

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Sydney Henry Dolega AND John Holland Pty Ltd (No. B1926 of 2002)

COMMISSIONER FISHER 3 June 2003

Application for reinstatement – Employee excluded from contract site – Alternative employment options explored – Employee made redundant – Redundancy found not genuine – Termination, Change and Redundancy Provisions – Performance issues – Applicant found to be dismissed – Final warning – Dismissal found not harsh, unjust or unreasonable – Application dismissed.

DECISION

This is an application by Sydney Dolega seeking reinstatement to his former position of Cleaning Supervisor with John Holland Group Pty Ltd (John Holland). He was employed in this capacity at the Queensland Nickel Industries (QNI) site at Yabulu. Mr Dolega commenced employment as Cleaning Supervisor on 3 June 2002 and was dismissed on 25 November 2002.

The broad facts of the matter are not substantially in dispute. John Holland had entered into a contract with QNI to provide cleaning services at the Yabulu site. In or about mid November 2002 QNI complained to John Holland about aspects of Mr Dolega’s performance and attitude. QNI requested John Holland to take demonstrable action over these matters. In response John Holland issued Mr Dolega with a final written warning on 19 November 2002. Mr Dolega proceeded to take several rostered days off and sought personal counselling in this time to help him address the issues of concern.

Regrettably, the issuing of a final warning was insufficient for QNI. They decided to exercise their right under the contract to exclude Mr Dolega from the Yabulu site. Such advice was received by John Holland from QNI on 20 November 2002. On that day consideration was given by John Holland to alternative employment options for Mr Dolega. John Holland only had one other contract in Townsville and it is for maintenance work for which Mr Dolega is not qualified. Accordingly John Holland decided to terminate Mr Dolega’s employment.

John Holland did not immediately inform Mr Dolega of QNI’s decision. On his return to work on 25 November 2002, Mr Dolega was advised of QNI’s decision. Mr Dolega was advised that he was redundant as at 25 November 2002 and was paid one week’s pay in lieu of notice and, as an ex gratia payment, an extra week’s pay for being over 45 years of age.

Mr Dolega complained that the redundancy was not genuine and that his dismissal was harsh, unjust or unreasonable. His concerns were that the complaint against him from QNI was not properly investigated nor was he given the opportunity to respond. By the time a meeting was held with Mr Dolega and his representative, John Holland had already taken the decision to dismiss Mr Dolega. Doubt was cast over the credibility of the witnesses called by John Holland, viz, David Remilton, Business Development Manager of John Holland and the John Holland Project Manager, Gavin Blaik, especially in relation to the advice of the exclusion from the QNI site.

On the first argument, that the redundancy was not genuine, the Commission would agree. A redundancy is normally defined in relation to a position. Moreover, the Commission’s policy on Termination of Employment, Introduction of Changes, Redundancy, [(1987) 125 QGIG 1119] talks about redundancy as being “Where an Employer has made a definite decision that he/she no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment . . .”. This definition of redundancy is drawn from the decision of the then Australian Conciliation and Arbitration Commission (ACAC) which, in the Termination, Change and Redundancy Case, considered a range of definitions of redundancy. [(1984) 8 IR 34]. It was particularly attracted to the definition given in the decision of Bray CJ in Reg v Industrial Commission(S.A.); Ex parte Adelaide Milk Supply Co-operative (1977) 44 SAIR 1202 at 1205. In their decision the ACAC said that:

“A key element in that definition is that the employer no longer requires to have the work done by anyone.”.



It is clear on the evidence before me that the job that Mr Dolega had been doing is still being done. Another employee has been employed in Mr Dolega’s position. The termination of Mr Dolega’s employment cannot be classed as a redundancy. A dismissal has been accepted in this Commission to mean “a termination of employment at the initiative of the employer and without the genuine consent of the employee”. [see Dowdell v Sunlite Glass Bricks (1997) 155 QGIG 785]. Mr Dolega did not consent to the termination of his employment. In my view Mr Dolega was dismissed from his employment. Was the dismissal harsh, unjust or unreasonable? The phrase “harsh, unjust or unreasonable” was considered by Sheppard and Heerey JJ of the Federal Court in Bostik (Aust) P/L v Georgevski (1992) 36 FCR 20 at 28. In that decision the following was said: “These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not

think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of the decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive.”.

It is the case that there was no real opportunity given to Mr Dolega to discuss or refute the allegations that led to the warning being issued on 19 November 2002. Indeed it seems to have been presented as a fait accompli. Reference was made in the letter of warning to other warnings, however, when pressed in his evidence on these matters, Mr Blaik was vague, saying that he understood Mr Dolega’s supervisor to have issued those warnings. I am not satisfied on the evidence that previous warnings had been issued although I accept that some matters of concern about Mr Dolega’s performance had been raised informally with him prior to 19 November 2002. Some issue was made during the proceedings by the applicant’s representative, Mr Scott, about the sequence of events that led to Mr Dolega’s exclusion and ultimately his dismissal. It is a little confusing because Mr Remilton and Mr Blaik had separate discussions with QNI representatives on 19 November 2002 and the correspondence, which was by email, is at times less than clear. However, the evidence showed that a final warning was issued by John Holland to demonstrate to QNI that they were treating QNI’s complaints about Mr Dolega seriously. QNI was not satisfied with the final warning given to Mr Dolega. Although no incident occurred specifically after the issuing of the final warning on 19 November 2002, later that day QNI decided to exercise its powers under the contract to exclude Mr Dolega. Mr Blaik was contacted by QNI who advised of its decision to revoke Mr Dolega’s authorisation to enter the site. Mr Blaik said that he attempted to dissuade QNI from this action but that he was unsuccessful. Mr Blaik then asked that QNI put the direction in writing to John Holland. On 19 November 2002 Mr Remilton also received advice from another officer of QNI of their dissatisfaction with Mr Dolega’s attitude and performance and decision to revoke his authorisation. Mr Remilton also sought to intercede on Mr Dolega’s behalf but to no avail. Mr Remilton then sought written confirmation from the QNI contract administrator of their decision. This was provided on 20 November 2002. At times Mr Remilton was hesitant in giving his evidence and Mr Blaik curt in answering questions in cross examination but based on their demeanour and their evidence as a whole I am unable to draw any adverse inferences about their credibility. On the evidence before me I am satisfied that both Mr Remilton and Mr Blaik genuinely attempted to save Mr Dolega from being excluded. Clause 3.5.3 of the contract between QNI and John Holland provides that “QNPL resumes the right to exclude any person from the Yabulu Michel Refinery . . . This right will not be exercised unreasonably by QNPL.”. (QNPL is taken to mean QNI in the context of this decision). On the basis of the information before the Commission I think that the issue of whether QNI exercised its right of exclusion reasonably is open to challenge. However, that is not a matter for determination by this Commission. The decision of John Holland to dismiss Mr Dolega is the one that must be scrutinised. Mr Scott complained that Mr Dolega was not told of his exclusion and dismissal until 25 November 2002 despite Mr Blaik having contacted Mr Dolega for other work related matters during his days off. In my view John Holland acted appropriately in not advising Mr Dolega of the situation that had arisen while he was on rostered days off. The better practice is to meet with the staff member concerned on their return to work and to discuss the situation then. This is what occurred here. I expect that if Mr Dolega had been told of the situation whilst he was on leave that action would have been open to criticism by the Commission. Evidence was given by Messrs Remilton and Blaik that alternative employment opportunities had been explored before taking the decision to dismiss Mr Dolega. After reflecting on the evidence given the Commission considered that further evidence needed to be before the Commission to establish whether these options had been thoroughly investigated. To this end a further brief telephone hearing was reconvened on 27 May 2003. At this time Mr Remilton provided evidence about the matter of concern to the Commission. Mr Remilton said that when Mr Dolega was dismissed John Holland’s only operations in North Queensland were the cleaning contract with QNI and a maintenance contract with the Townsville Port Authority. Fifteen people were employed under the cleaning contract and three trades qualified staff were engaged under the maintenance contract. The person who replaced Mr Dolega at the QNI site was recruited to the position from outside of John Holland. Mr Remilton also said that he spoke to Gordon Hutchings the Queensland Region Industrial Relations and Occupational Health and Safety Manager for John Holland, and Mr Blaik about alternative prospects for Mr Dolega. Because of the limited involvement of John Holland in the Townsville area, neither person could find or suggest other work. Once this information was available, the decision was taken to dismiss Mr Dolega. I am satisfied on the evidence that Mr Dolega’s dismissal related to the operational requirements of John Holland’s business. The situation in which John Holland found itself as a result of the decision taken by QNI is not unusual in contract operations such as contract cleaning, contract catering and the like. In order to retain the present contract and to hopefully gain a new contract, companies have to respond to demands of their clients in ways that they may not necessarily think is fair and appropriate for their employees. But that is the nature of contracting industries. The decision of John Holland to dismiss Mr Dolega was not taken lightly and also not taken without consideration of Mr Dolega’s situation. I am satisfied that John Holland genuinely attempted to find alternative work for Mr Dolega but as they only had one cleaning job in the Townsville area, alternative placements for Mr Dolega were not available. The Townsville Port contract required trades staff and Mr Dolega was not so qualified. In the circumstances I am satisfied that John Holland had no work for Mr Dolega and this only left the option of dismissal. For these reasons I consider that when viewed objectively the dismissal of Mr Dolega was not harsh, unjust or unreasonable. In reaching that view I am conscious of the impact of the decision on Mr Dolega. In his evidence Mr Dolega admitted to having below average literacy skills and indicated that he wanted to better understand why his performance was considered to be deficient. The Commission commends Mr Dolega for taking rostered days off work to seek personal counselling after having received a final written warning. Mr Dolega was clearly making every effort to improve his performance to make his services satisfactory to both John Holland and QNI. It is not often that the Commission sees an employee take such deliberate and positive steps to improve their performance. John Holland, too, seemed to be impressed by Mr Dolega’s efforts in this regard.


The Commission has no doubt that Mr Dolega was distressed by his dismissal, coming so soon after the final warning and given his attempt to improve his performance. John Holland attempted to cushion the impact of the decision by paying a week’s pay in addition to the statutory notice. This was a gesture John Holland was not obliged to make. However, the job of the Commission is to determine whether, in all of the circumstances, the dismissal was harsh, unjust or unreasonable. Given the situation confronting John Holland, where one of its employees had been excluded from the only site where it conducted cleaning operations and there was no other work available for the employee concerned, the Commission cannot conclude the dismissal was harsh, unjust or unreasonable. The application is dismissed. Order accordingly. G.K. Fisher, Commissioner. Hearing Details: 2003 22 & 27 May

Appearances: Mr P. Scott for the applicant. Mr C. Burton and with him Mr D. Remilton for the respondent. Released: 3 June 2003

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Victor Wolfgramm AND J.J. Richards & Sons Pty Ltd (No. B1906 of 2002)

COMMISSIONER BROWN 4 June 2003

DECISION

On 27 November 2002, Victor Wolfgramm (the applicant) lodged an application for reinstatement to his former position of boilermaker/welder with J.J. Richards & Sons Pty Ltd (the respondent). A conference between the parties held on 17 December 2002 failed to resolve the matter. The hearing proceeded on 17, 18 and 24 March and 2 April 2003 with final submissions of the respondent being received on 23 April 2003 with the applicant’s further submissions arriving on 30 April 2003. The applicant commenced employment with the respondent on 26 October 1986 and was terminated on 8 November 2002. The respondent argued that the dismissal was appropriate in the circumstances having regard to the applicant’s work history, in particular his failure to accept directions and his, at times, aggressive behaviour. The applicant believed that he had been subjected to racial slurs and an environment of harassment and victimisation by certain management representatives over a period of time and that his dismissal was the culmination of this treatment. He also argued that his termination, in addition to being harsh, unjust and unreasonable, was for an invalid reason, namely discrimination pursuant to s. 73(2)(m) and further that the dismissal contravened s. 93 (Dismissal of injured employees only after 6 months) of the Industrial Relations Act 1999 (the Act). The applicant is Tongan by nationality. The applicant had been employed by the respondent as a boilermaker for approximately 16 years until his termination on 8 November 2002. The division of the respondent that the applicant was employed in manufactured and repaired industrial bins and receptacles know as skips. Evidence was given for the applicant by the applicant and Dirk Wagensveld, a work colleague at material times. Evidence for the respondent was given by:

Andrew Roberts; Paul Gaston; Gregory Hack; Arion Meyer; Joshua Charles Richards; Michael Joseph Linehan; Shane De Maid; and Barry Edward Kelb

The applicant claimed that the evidence of discrimination lay in comments made by Gaston which included:

calling the applicant a “black bitch”; asking the applicant “you fellas kill any human beings yet to put in the hangi; making derogatory comments about the Tongan Wesleyan Church (the applicant’s church); alleging that “all Tongans are lazy”; and expressing the view that Tongans should not be in the (Qld) rugby team.

It was also claimed by the applicant that further evidence of discrimination could be found in that the applicant was denied access to overtime in the period prior to his termination. A dispute over which led to a warning being issued by the respondent on 10 October 2002 regarding the applicant’s behaviour. The days prior to his termination the applicant had been on WorkCover and the applicant claimed also to have been in possession of a sick leave certificate for stress covering the following four weeks. Mr Cox for the applicant made no reference in submissions to s. 73(2)(a) of the Act which declares that temporary absences, within a meaning of a regulation, from work because of illness or injury is an invalid reason for dismissal and consequently unfair in line with s. 73(1)(b).



The applicant relied heavily on submissions that the conduct of the applicant subsequent to the final warning given to him on 10 October 2002 was not of a nature that could be construed as a further violent outburst or conduct that would justify dismissal and therefore was harsh, unjust and unreasonable. The applicant further submitted that the manner in which the termination was effected caused the applicant excessive stress and this was further grounds for a finding of harshness. Mr Cox submitted that the applicant was suffering from “chronic stress” and that this was known to the respondent and that the respondent failed to deal with the issue properly. Mr Cox submitted that it could be argued the stress suffered by the applicant could explain confused replies under cross-examination. His “general awe” of Commission procedures and language difficulties were also advanced as a possible reason for inaccuracy in evidence on the part of the applicant. It was submitted for the applicant that he was bullied in the workplace and that bullying in general prevented other employees from coming forward to complain when they experienced problems. The applicant sought re-employment in an area of the respondent’s enterprise away from Mr Gaston and Mr Meyer, his alleged tormentors, together with payment of wages lost or in the alternative, compensation. Further, the applicant sought the payment of the maximum number of penalty units under s. 80 (135 units) Sanctions for unfair dismissal – invalid reason. It was further submitted that the Commission had sufficient evidence to impose a penalty of 40 penalty units pursuant to s. 93 Dismissal of injured employees only after 6 months. Mr Cox submitted that material contained in Meyer’s diary indicated that the condition of the applicant was not isolated with respect to work related stress. The diary also revealed that fights and horse play were not uncommon and were allowed to go unchecked by the respondent. It was also submitted that the grievance procedure found at clause 3.1 of the relevant Award was not followed. This was a general allegation with no specific reference to which part of the procedure may have been breached. Mr Franken for the respondent submitted that the applicant’s claim that the dismissal was for an invalid reason pursuant to s. 73(2)(a) should be dismissed in that it was not part of the original application and only adopted by the applicant at the commencement of the hearing. Moreover, the respondent submitted that there was no evidence supporting the claim in any event. The respondent refuted allegations that the applicant suffered discrimination and victimisation in his employment and submitted that the evidence did not support such claims. Regarding attempts by the respondent to transfer the applicant to other duties, the respondent submitted that the applicant had in cross-examination accepted that the actions of the respondent were reasonable and lawful. The respondent submitted that the July 2002 attempt by the respondent to move the applicant to another job subsequent to the disclosure by the applicant that his medication was making him drowsy was reasonable, lawful and resulted in or would have resulted in no loss of income. The transfer was point blank refused by the applicant who only provided the medical certificate required by the respondent some 2 weeks later and despite the refusal of a lawful direction, suffered no adverse consequences. The respondent denied the existence of any discrimination in the respondent’s decision to deny the applicant access to overtime in late 2002 and alleged that the applicant had lied to the Commission in denying the existence of a protocol that excluded employees from overtime in weeks where the employee was absent from work for a period of a week. The respondent submitted that any criticism of the applicant’s work was justified and referred to the evidence including that of the applicant’s witness Dirk Wagensveld as supportive of this contention. The respondent denied that any of the respondent’s representatives had verbally or racially abused the applicant and that the applicant had failed to refer to abuse he allegedly received from Gaston on 17 June 2002, in his cross-examination when questioned over the incident. The respondent submitted that the evidence was such that the Commission should accept that the applicant called Meyer “a dirty, sleazy c—t” despite the applicant’s claim that he never swore. The submissions of the respondent were that the evidence did not support the applicant’s claim that he was assaulted by Gaston. The respondent took issue with paragraph 5 of exhibit 1A submitting that the account of events in this paragraph were “absolutely incorrect” and further evidence that the applicant’s evidence was unreliable. The respondent submitted that the reasons for termination were made clear to the applicant. The respondent contended that the evidence of the applicant was by and large unreliable and cited a range of issues from the transcript to support this contention. The respondent submitted that the warning issued by Joshua Richards on 10 October 2002 relating to an incident on 9 October 2002 was justified and related in general to the applicant’s unacceptable behaviour in the workplace and that the warning was not confined to “violent outbursts”. The behaviour of the applicant between 10 October 2002 and his termination, according to the respondent’s submissions, justified his termination in that he:

� on a number of occasions during this period refused to comply with reasonable and lawful instructions; � showed total disregard/disrespect for those in positions of authority towards him; � used abusive and unacceptable language aimed at more senior employees; � failed to arrive or arrive timely for pre-arranged meetings; and � acted generally in a manner that is not conducive for maintaining an employment relationship.


The respondent rejected the assertions of the applicant that Gaston and Hack on 7 November 2002 refused to accept a doctor’s certificate from the applicant which indicated that the applicant was suffering from symptoms associated with stress. The applicant, under oath, swore that his 2 witness statements were true and correct. (Transcript page 11) Of concern to the Commission was the applicant’s evidence relating to a claim made in paragraph 5 of Exhibit 1A of his witness statement which was:

“5. Prior to his (Gaston’s) promotion, while he was still working on the floor with me, he threatened to bash me. I told him, ‘Go ahead and do it. I am not scared on anyone, especially you.’ Michael Linehan, a big Maori man who also worked on the floor with us, intervened and put both hands around Paul Gaston’s neck and threatened to kill him. I told Michael Linehan to let off assaulting Paul Gaston and he did.”.

The paragraph related to physical confrontation in 1997 between the applicant and Gaston into which the applicant says Michael Linehan intervened. In cross-examination the applicant conceded that Linehan was not a witness and did not in fact intervene in the incident. Mr Cox advanced the following as an explanation:

“Mr Cox: There is some – I think we – I might be able to throw some light on this – this – this – this particular paragraph. There is some confusion in the original solicitor/client interview that these two in one of the comments were run together in the – in the statement that was taken down at the time when it was transcribed it – they came out combined. Okay? And I’m sure – and Mr Andrews has quite obviously pointed out to Mr Franken that he actually did sign that. However, sometimes people don’t read things and I can understand that that does sort of create a problem but that’s where the original thing – how – yet we accept the fact and it’s been sort of made known that there was an altercation between Mr Gaston and Linehan and there was another altercation between – between Mr – between Mr Wolfgramm and Mr Gaston. So there were two separate incidents but they have got sort of - - - -.”. (Transcript page 76, lines 1 to 37)

It seemed to the Commission that this was an attempt by Mr Cox to take responsibility for the inaccuracy of the evidence. Despite this explanation the Commission believes that the applicant was prepared to allow the Commission to form the view that the statement in paragraph 5 was entirely correct and the incident so serious as to require the intervention of a third party. Cross-examination of the applicant over paragraph 5:

“Mr Franken: Look at paragraph 5 of your statement, Victor, of 1A, okay? You said prior to this promotion, that Paul Gaston’s promotion, Riley was still working on the floor. He threatened to bash me. You told him to go ahead and do it. I’m not scared of anyone, especially you. Michael Linehan, a big Maori man who also worked on the floor with us, intervened and put both hands around Paul Gaston’s neck and threatened to kill him. I told Michael Linehan to let off assaulting Paul Gaston and he did so, or did he? Is that exactly what happened ? – –That’s exactly what happened.”. (Transcript page 71, lines 33 to 42) [The reference to “Riley” is an error in the transcript, “Riley” was in fact the words “while he”.]

and further at transcript page 72, lines 8 to 12:

“Mr Franken: How did – it was Mike Linehan – Michael Linehan, was he there at the time that it happened? He can testify to this? – – He can testify to this. Was he there? – – He was there. Was he there when Paul threw things at you? – – He just – well, he was there.”.

It is not known to the Commission when the applicant first took up residence in Australia. However, the applicant had been an employee of the respondent for over 16 years and on the evidence was involved on at least one occasion in negotiations regarding workplace conditions, namely the overtime system. Having observed the applicant, submissions that cultural or language difficulties caused this to happen, are rejected. The applicant deliberately avoided a number of opportunities to correct the misinformation and did so only under vigorous cross-examination. The applicant alleged that the occasions upon which Gaston attempted to transfer him to bin building were evidence of discrimination. Under cross-examination it was revealed that the applicant refused the transfer on each occasion with no adverse reaction toward him from the respondent. On one occasion, in response to a conversation regarding his absences, the applicant had mentioned that he was suffering side effects from medication. Gaston then requested the applicant to provide a doctors’ clearance to enable Gaston to allow the applicant to continue to operate machinery including a forklift. This was on 16 July 2001. Some 2 weeks’ later, after having been questioned by Gaston as to the whereabouts of the clearance from the doctor, the clearance was produced by the applicant. Gaston, having been satisfied by the clearance that it was safe to leave the applicant in his present position, did so. The applicant acknowledged that there was no cut to his pay or conditions involved in the attempted transfer. The applicant alleged that he had been victimised and intimidated during this process yet later acknowledged that he had apologised to Gaston over the matter. (Transcript page 68, Ex 6, attachment 3) On the evidence of the applicant, the other two instances where the applicant claimed to have been asked to do new bin work were met with a refusal from the applicant, again with no adverse impact on the applicant. The applicant believed that those attempts to transfer him were examples of discrimination. The applicant viewed bin building as an inferior position and saw attempts to transfer him there as a threat to his employment also. The applicant gave evidence of a meeting in June 2002 with Gaston regarding noxious fumes. He stated that Gaston was unsympathetic and again threatened the applicant with a transfer to bin building.



The applicant claimed that at the conclusion of the meeting, Gaston “Stood up, ran around the table and punched me on my shoulder and pushed me out his door” (Ex 1B, para. 9). The applicant stated in cross-examination that “He punched me in the office – assaulted me in the office while having an argument with him”. (Transcript page 27) Later, the applicant described the punch as a playful punch and further the applicant accepted that it was not serious. (Transcript page 164, lines 24 and 31) Further, the applicant said that “He (Gaston) didn’t have a swing at me. He just pushed me out”. (Transcript page 165) In his evidence Dirk Wagonsveld stated:

� Gaston treats all employees the same in terms of the rules and policies of the business; � Wolfgramm could be angry and “stroppy” at times; � could not recall Wolfgramm swearing; � was not aware of the number of employees who may have left or why; � nicknames for employees were commonplace including “Oshi” for the applicant. Nicknames had not been used in the workplace for some

time; and � never saw Gaston personally abusing any employee.

The evidence of Andrew Roberts was that he:

� had not directly worked with the applicant; � wrote the question list used by the respondent in the interview with the applicant prior to his termination; � was not directly aware that the applicant had told Gaston and Meyer that he was under stress but became aware 10 to 14 days after the

applicant’s termination that the applicant had claimed to be stressed; � answered questions regarding the procedures to be followed in the event of an accident or incident; � understood that the respondent possessed a rehabilitation plan signed by Dr Teo which enabled the respondent to contact the applicant; and � had no idea that the applicant was under stress prior to his termination.

The evidence of Paul Gaston was that he was employed since 23 January 1997 as a welder/metal fabricator and became foreman in 1998. He was appointed Manager on 7 September 2000 to accommodate Gary Hack’s retirement on 1 December 2000. Gaston said he had a reasonable relationship with the applicant while he worked with him as a welder and later as foreman. He stated the applicant’s work was inconsistent but acceptable for “skip” work. Gaston referred to an incident in July 2001 where, as a result of having been questioned over having been absent, the applicant “raised his voice, his face became red” and the applicant accused Gaston of trying to take his rights away. (Ex 6, paragraph 4) Gaston claimed that the applicant later apologised and advised that his gout medication made him drowsy in the mornings. Arising from this, on 16 July 2001 Gaston requested the applicant to provide him with a doctor’s clearance to enable him to operate plant and equipment. On 25 July 2001, following another day’s absence on the part of the applicant, Gaston proposed to the applicant that he move to building bins and again requested a doctor’s certificate. Gaston stated that his reasons for the proposal were to remove the applicant from the driving of forklifts whilst on medication to ensure the safety of the applicant, those around him and because the bin building area would be better able to cope with his level of reliability. In response to the applicant’s reluctance to move, Gaston explained to the applicant that the bin building area involved no physical or strenuous activity because of automation. No forklift work and in the event of complications from the applicant’s drowsiness there was always a co-worker close by. Gaston stated that the applicant saw this as punishment for not coming to work and victimisation. Gaston stated that the applicant told him that he refused to transfer to the new area. There was no adverse affects on the applicant as a result of the refusal. On 31 July 2001, Gaston stated that the applicant provided him with a letter from his doctor clearing him to perform his job repairing skips whilst taking medication. Gaston said the applicant apologised to him and signed a statement to that effect on 31 July 2001 (Ex 6, Attachment C). That statement indicated that the applicant understood why Gaston took the steps he did. The applicant was given a “final written warning” for being involved in a physical altercation with another employee on 14 August 2001. The applicant signed the warning on 20 September 2001. The other employee was similarly warned. Gaston stated that on 13 June 2002, Arion Meyer, the floor supervisor, advised him that the applicant had refused to perform certain work because he was suffering headaches from fumes and the applicant had also refused to perform alternate duties offered. Meyer also told Gaston that the applicant refused to wear a respirator because it made him dizzy. Gaston spoke to the applicant regarding those events on 17 June 2002 in the presence of Meyer. During this discussion the issues of fumes and breathing equipment were discussed.


The applicant was again offered a job building bins whereupon Gaston stated that the applicant became “aggressive and agitated – he was red in the face – arms waving and shouting”. Gaston denied the applicant’s claim to have an agreement not to build bins following the production of the doctor’s certificate in July 2001 when the applicant was last unsuccessfully directed to build bins. Gaston stated that the applicant accused him several times of victimising, discriminating, intimidating and hassling him and talked of getting John or Joshua Richards involved. Gaston claimed that the applicant called Meyer “a dirty sleazy c—t” for doing Gaston’s dirty work and later alleged that Gaston’s actions would cause sufficient stress in the applicant’s life to cause the applicant’s pregnant wife to miscarry. Gaston stated he ended the meeting by placing his hand on the applicant’s shoulder and directed him to the door. Gaston denied assaulting the applicant in any way. (Transcript page 391). Gaston stated that the applicant later, by phone, apologised. Gaston reported his concerns to Joshua Richards about the serious allegations of the applicant and Gaston’s concern that the applicant could turn violent. On Monday, 24 July 2002, Gaston received a report from Richards that he and the applicant had been involved in a meeting witnessed by Fleet Manager, Owen Burton, regarding the matters raised by Gaston. According to Gaston, Richards told him that the applicant was apologetic and after a discussion about what constituted victimisation or harassment had agreed that Gaston and Meyer had not spoken or acted in a discriminatory manner against him. In September 2002, Gaston stated that he advised the applicant that certain overtime may be required and that the applicant could partake in such overtime. Gaston stated that on 9 October 2002, he advised the applicant that, because of his absences from work, he would not be offered overtime on the following Friday. Gaston said that the applicant became agitated, red in the face and screamed at him. The applicant allegedly being some two inches from his face. Gaston claimed to have explained the overtime rule whereby overtime is not offered to employees who have been absent during the previous week. Gaston stated that the applicant denied knowledge of the rule. According to Gaston, the applicant again levelled accusations of discrimination at him. Gaston immediately arranged a meeting with the applicant in the presence of Meyer. Gaston said that during the meeting the applicant continued to allege discrimination and victimisation and also accused Gaston of criminalising and polarising him. Gaston claimed to have explained and demonstrated to the applicant how all employees were treated equally and asked the applicant for examples of how Gaston and Meyer had demonstrated hatred towards him – no examples were forthcoming according to Gaston. Gaston said that he prepared an infringement notice regarding the incidents. (Ex 6, attachments F, G & H) According to Gaston the applicant labelled the notice as being full of lies and refused to sign it. Meyer countersigned with Gaston. Gaston recalled attending a meeting on 10 October 2002 with the applicant and Joshua Richards. Gaston’s recollection of the meeting included a confirmation of the overtime policy by Richards, a verbal final warning regarding any further outbursts by the applicant issued by Richards and verbal notice from Richards to the applicant that further occurrences would not be tolerated. Gaston made notes of the meeting (Ex 6, attachments I & J) on Infringement Notices 95 & 96 which the applicant refused to sign. Gaston stated that on 31 October 2002, Meyer advised him that the applicant had injured himself at work. Gaston claimed that Greg Hack, a manager, had advised him of a heated conversation with the applicant about the possibility of an early return to work. He stated Roberts, Hack and himself discussed light duties that might be available for the applicant and prepared a return to work programme. Dr Teo, the applicant’s doctor, subsequently approved that return to work programme. Gaston said that he phoned the applicant to advise of the doctor’s approval of the return to work programme. The applicant declined to participate claiming to have a doctor’s certificate until Thursday. The applicant was then alleged by Gaston to have said “F—k man, I’ll see you Thursday” and then hung up the phone. Gaston stated that on 7 November 2002 he called the home of the applicant between 7.30 a.m. and 8.00 a.m. whereupon the applicant’s wife advised him that the applicant had left for work but would not be working. Gaston stated that he then spoke with Hack who advised him that the applicant had told him that he had been to the doctor and had not received a clearance. Gaston said that Hack told him that Roberts had suggested that the applicant not be sent back to the doctors but that the doctor could fax the clearance to the workplace. Gaston said that he and Hack searched for and found the applicant and during their attempts to suggest to the applicant that his certificate could be faxed to work, the applicant revealed that he had not been to the doctor. Hack shook his head and left. Gaston then instructed the applicant to go and get a clearance. Gaston stated that when the applicant returned with his clearance, he attempted to arrange a meeting with the applicant and Richards to discuss what had occurred over the last week. According to Gaston the applicant “became edgy” and raised his voice saying “What meeting? I can’t have no f—ing meeting. You’re backing me into a corner and stressing me out”. Gaston again stated the need for a meeting to address the issues prior to the applicant’s starting back. Gaston said that the applicant responded saying he wasn’t ready for a meeting. The applicant then jumped in his car and drove off. Gaston said that he contacted the applicant by phone that evening and arranged a meeting for 7.00 a.m. the following day. During the phone conversation Gaston recalled the applicant saying he was feeling a bit stressed and might need to see his solicitor.



Gaston said the applicant failed to arrive at 7.00 a.m. but did arrive at 8.00 a.m. He said the meeting took place in Richards’ office with Roberts also in attendance. Gaston asked the applicant questions from a prepared sheet following which the applicant left the meeting to allow the respondent to consider the information then available. Gaston said that the applicant returned about an hour later whereupon Richards terminated the applicant on the basis that there was no longer a working relationship between him (the applicant) and management. Gaston recalled that Richards advised the applicant that he disagreed with his claim to have been singled out or picked on and further recalled Richards offering to help the applicant find employment. Gaston said he then gave the applicant the contact details of Precision Labour Hire with advice that they were seeking workers. The evidence of Arion Meyer was that he:

� was employed since 12 January 1999; � appointed Floor Supervisor from June 2001; � considered the applicant’s standard of work only suited to repair and maintenance; � considered the applicant to be a slow worker and told him this; � witnessed the incident between Sciezka and the applicant for which both received a warning; � claimed the applicant failed to heed advice from Gaston regarding safety and lift operation on 23 May 2002 when he again operated the

forklift in an unsafe manner on 28 May 2003; � recalled on 13 June 2002 the applicant complaining of headaches from welding and cutting; � recalled the applicant refusing to use a respirator and becoming aggressive over the matter; � directed the applicant to use the correct safety equipment. The applicant refused; � told the applicant he could move to work on bin building; � recalled the applicant refused this directive saying that Gaston had told him that he didn’t have to do the bins; � recalled the applicant claimed to suffer from red eye while doing bins and when he suggested heavier shaded lenses and clear safety glasses

the applicant allegedly said “Are you a f---ing doctor” and refused to do the bins; � arranged on 17 June 2002 for a meeting between Gaston, the applicant and himself to discus the matters; � claimed the applicant accused Gaston of discrimination for taking him off skips and Gaston explained that the reason was that Linehan had

considered his work to be too slow; � saw Gaston show the applicant “Skip report files” regarding time taken to build skips; � claimed the applicant then refused Gaston’s direction to work on building bins because of “red eye”; � witnessed Gaston instruct the applicant to see a doctor regarding that problem to which the applicant responded by alleging that Gaston was

victimising and intimidating him; � claimed to have been called by the applicant a “dirty sleazy c—t” doing Paul’s dirty work for him; � refrained from issuing an infringement to the applicant on 2 October 2002 when the applicant failed to carry out a direction to remove a

skip; � witnessed the meeting on 9 October between Gaston and the applicant; � stated that the applicant became abusive during the meeting; � signed the written warning issued to the applicant on 9 October 2002 and confirmed the evidence that the applicant refused to sign it; and � recalled another employee suggesting that his workmates were afraid to complain after initially failing to recollect such an incident.

The evidence of Gregory Hack was that he:

� was employed by the respondent from 1982 to the present except for the period December 2000 to May 2002; � was a boilermaker/mechanic with the applicant and at times was the Assistant Supervisor; � became Manager, Welding Section in 1993 but not supervising the applicant; � had used the nick name “oshi” when talking to the applicant but desisted when the applicant expressed objection and further apologised; � made a decision to prohibit nick name use in the workshop; � claimed the applicant’s work ability made him more suited to bin manufacture and repair – he was inconsistent;


� stated that the general question of rehabilitation from an injury was discussed with the applicant and 2 others following a team briefing in

April 2001 regarding the Company’s Induction Book. Rehabilitation was apart of the Induction Book, The applicant signed the agreement on the back of the Induction Book;

� became aware on 1 November 2002 of the applicant’s accident on 31 October 2002 and rang the applicant at home; � claimed the applicant agreed to see him at work at 10.00 a.m. on Monday 4 November 2002 following his 9.00 a.m. appointment with the

doctor; � said the applicant did not arrive; � rang the applicant at home on 4 November 2002 and left a message at 10.00 a.m.; � again rang the applicant at home on 5 November 2002 and the applicant apologised for mixing up dates; � explained to the applicant that a return to work program existed and that 2 other employees had participated; � stated that the applicant said “all you bastards are doing is conspiring with the doctor to get the poor injured worker back to work so he can

crawl around the floor”; � explained the rehabilitation program to the applicant and that the Company was obliged to act; � said the applicant then stated “I’m sick of all this. I’ve got a certificate and I’ll be seeing the doctor on Thursday; � discussed the applicant with Dr Teo on 5 November 2002 and later after consultation with Gaston and Richards submitted a return to work

program that was subsequently endorsed by Dr Teo; � witnessed telephone conservations between Gaston and the applicant wherein Gaston explained that the return to work program had been

endorsed; � saw Gaston take the phone away from his ear causing him to think that the applicant had given Gaston a “mouthful”. Gaston looked at him

and said “he’s hung up”; � agreed with Gaston to “leave it” and see whether the applicant turned up on Thursday, 7 November 2002; � stated that on Thursday, 7 November 2002, he rang Dr Teo’s surgery to enquire whether the applicant had attended that morning and was

told no; � witnessed a further phone call from Gaston to the applicant’s home and discovered that the applicant was on his way to work; � stated that before lunch he found the applicant in the lunch room completing WorkCover forms; � said that in conversation the applicant agreed to start back at work on Monday and revealed that the doctor had not given him (the applicant)

the clearance forms and was told he could not recommence work until he had one; � said the applicant agreed to get the form from the doctor; � told Richards that the applicant had returned but did not have a clearance form and also that he knew that the applicant had not been to the

doctor as claimed; � said that Richards told him in the presence of Gaston that the applicant need not attend the doctors as the clearance could be faxed; � stated that he and Gaston went looking for the applicant to save him the trip to the doctors and found him in the car park and the applicant

then admitted that he still had not been to the doctor; and � stated that at this point he shook his head in disgust and walked away.

The evidence of Joshua Richards was that he:

� was employed by the respondent for over 15 years and currently held the position of General Manager; � met with the applicant on 26 June 2002 regarding allegations of discrimination against Gaston and Meyer and explained the definition of

discrimination as per the Company policy and the applicant apologised and retracted his complaint; � said that on 10 October 2002, following a request from Gaston, he held a meeting with the applicant; � stated that the applicant was continuing to act in an aggressive manner towards his superiors and alleging discrimination whenever an issue

was raised with him; � said that he made it clear that the respondent had enough of his behaviour and conduct in the workplace towards management and gave the

applicant a final warning; � stated that following the applicant’s allegations that other staff were being intimidated by Gaston, the applicant was invited to supply a list

of names privately or ask the people to see him and no list or staff complaints were received; � said that Gaston and Hack kept him informed of events following the applicant’s accident on 31 October 2002; � stated that he, Gaston and Roberts met with the applicant and the applicant was asked a series of prepared questions (Ex 12, attachment B)

and invited to make further comments; and � said after consideration the applicant was advised that there was no longer an acceptable working relationship between him, the applicant

and management and terminated the applicant.



The evidence of Michael Joseph Linehan was that he:

� was an employee with over 9 year’s experience as a welder; � considered the applicant to have been an average tradesperson; � prepared a statement regarding the accident on 31 October involving the applicant; � stated that he had experienced instances in social circumstances where the banter contained some racial or discriminatory comments but in a

joking manner; � stated Gaston was not a racist; � maintained he had heard the applicant swear often whilst in the workplace – swearing was commonplace; � said the overtime rule was commonly known in the workplace; � stated he had never heard Hack make racial comments; � described the workplace as “happy-go-lucky”; � never personally experiences racism in the workplace despite being a Maori; � has been called a “black bastard” but only jokingly and knows the difference between a joke and a serious comment; and � did not believe that any employee would be afraid to raise a complaint for fear of losing their job.

The events which are alleged to have occurred prior to the overtime incident that led to the warning issued to the applicant on 10 October 2002 were canvassed by the parties in order to assert or deny the existence of an environment of harassment, intimidation, victimisation and discrimination in the workplace in relation to the applicant. I have accepted the evidence of the witnesses for the respondent and Dirk Wagensveld for the applicant and concluded that such an environment did not exist. However, on 10 October 2002 the applicant received a final warning. At that point in time, I am of the view that the employment relationship was intact with the proviso that the conduct of the applicant needed to improve or at least not be repeated. The applicant made no reference to this warning in his initial witness statement (Ex 1A) and described the meeting during which the applicant was issued with the warning as a “meeting with Joshua Richards in which he tried to mediate between Gaston and myself” in his further statement. (Ex 1B) At page 200, line 35 of the transcript of proceedings the applicant denied that he had received a final warning on 10 October 2002 but conceded at page 201, lines 28 to 32 that he was told by Joshua Richards during this meeting that his behaviour would not be further tolerated and that the applicant’s employment might be terminated. The applicant accepted that in the same meeting he gave a commitment to co-operate with management in the future. I am of the view that this represented a warning in clear terms that his general conduct and co-operation with management must improve and moreover I believe the applicant understood or should have that further problems in those areas could lead to his dismissal. I place little weight on whether or not the word “final” was used in connection with the warning or whether the applicant had seen the written account of the meeting prepared by Gaston after the meeting. I accept that this warning was justified. I further accept that it related to the issue of behaviour generally and that reference to “violent outbursts” was a reference only to one aspect of the behaviour which the applicant knew or reasonably should have known would not be tolerated post 10 October 2002. In order to determine the application the Commission must now decide which version of events post 10 October 2002 represents the truth and having settled that, the Commission must then determine whether the circumstances in the accepted version amount to circumstances which would:

(a) justify the dismissal; (b) not justify the dismissal; and/or (c) constitute invalid reasons for the dismissal.

After the 10 October 2002 warning, the applicant suffered an injury at work following which his doctor gave him a certificate regarding his unfitness for duty. The submissions of the applicant, regarding Chapter 3, Part 5 Protection of Injured Employees, that the applicant was an injured employee dismissed solely or mainly because he was injured, can be quickly dealt with. Section 93 states:

“93. Dismissal of injured employees only after 6 months

(1) Within 6 months after an employee becomes injured, the employer must not dismiss the employee solely or mainly because the employee is not fit for employment in a position because of the injury.

Maximum penalty – 40 penalty points

(2) This section applies to a dismissal after the commencement of this section even if the employee became unfit before the

commencement.”.


On the evidence the exchanges between the applicant and the respondent from the time of injury until his return to the workplace were about having the applicant return to work. There was no credible evidence that the activities of the respondent were designed to prevent the applicant from working or to dismiss him. In fact, it was the applicant who refused to participate in a rehabilitation program when requested. I find that the termination related to the conduct of the applicant and not to the fact that the applicant was unfit having suffered an injury. The application insofar as it relates to Chapter 3, Part 5 is dismissed. After questioning by the Commission, Mr Cox advised in his opening address that he believed that the dismissal was for an invalid reason, namely that contained in s. 73(2)(a) being a temporary absence, within the meaning of a regulation, from work because of illness or injury. Mr Cox did not include this ground in the original application and the respondent was entitled to raise this as a concern. Mr Cox also did not make any written final submissions regarding this matter. I prefer the evidence of Gaston and Hack to that of the applicant where they claim that the applicant did not attempt to hand them a doctor’s certificate relating to time off for the applicant because of stress on 7 November 2002. The Commission is of the same view as that expressed regarding s. 93 of the Act i.e. that it was the conduct of the employee that caused the termination and not his potential absence through illness. This ground is similarly dismissed. The Commission accepts that the significant events since 10 October 2002 were:

� the applicant being given a verbal yet clear warning that his behaviour and conduct in the workplace needed to improve and that a repeat of the sort of conduct leading to the warning could result in termination;

� the applicant’s refusal to participate in a return to work program; � the applicant’s actions in hanging up the phone on his manager, accepted by the applicant in cross-examination as a rude gesture; � the applicant’s initial refusal to meet with Meyer and Gaston during a conservation in the car park where the applicant stated “F—k man I

can’t have no f—king meeting”; and � the applicant failing to attend the subsequently arranged meeting on 8 November 2002 at 7.00 a.m. as agreed and arriving at 8.00 a.m.

As mentioned, during the period 10 October and 8 November 2002, the applicant was injured at work on 31 October 2002. The evidence regarding the standard of workmanship of the applicant or whether or not the applicant contributed, by his negligence to the accident, are not issues that concern the Commission. I accept the evidence of Joshua Richards that his reason for terminating the applicant was his assessment that he, having considered the warning issued on 10 October 2002 and the applicant’s behaviour post 10 October 2002, concluded that there was a lack of a working relationship caused by the behaviour of the applicant. I accept that this conclusion had been reached by Joshua Richards based on his own knowledge and direct experience with the applicant and reports given to him by his managers regarding the applicant’s conduct. I prefer the evidence of witnesses for the respondent over the evidence given by the applicant where this evidence conflicts. In observing the applicant as a witness, I found him to be evasive and at times dissembling. I find that the applicant was notified of the reasons for dismissal pursuant to s. 77(a) of the Act. Regarding s. 77(b) of the Act, I find that the dismissal related to the applicant’s conduct. The applicant was warned about the conduct (s. 77(c)(i)) and given an opportunity to respond. Having considered the evidence and submissions, the Commission finds that the conclusion reached by the respondent to terminate the applicant was reasonable. The application is dismissed. With respect to costs, s. 335(1) of the Act states:

“335 Costs

(1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied – (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement – the party caused costs, including witness expenses and other expenses, to be incurred by the other

party because of an unreasonable act or omission connected with the conduct of the application.”. The Commission accepts that the applicant may genuinely have believed that his actions post 10 October 2002 were such as to not warrant the penalty of dismissal and as such had open to him the ability to test his belief through this application. In dismissing the application the Commission has not concluded that the application was made vexatiously or without reasonable cause nor does the Commission believe that either party committed an unreasonable act or omission. Costs are not awarded. D. K. BROWN, Commissioner. Hearing Details: 2003: 17, 18 and 24 March 2 April

30 April (Final Written Submissions received)

Appearances: Mr G. Cox, with him Ms H. Reeve of Merrell Stephenson, for the applicant Mr J. Franken of Livingstones Australia for J.J. Richards & Sons Pry Ltd. Released: 4 June 2003




Industrial Relations Act – 1999 – s. 72 – application for excluded employee

The State of Queensland (Representing Queensland Health and The Princess Alexandra Hospital) AND Dr Frank Lepre (No. B632 of 2003)

COMMISSIONER BROWN 4 June 2003

INTERIM DECISION

This interim decision relates to an application filed on 10 April 2003 by The State of Queensland (Representing Queensland Health and The Princess Alexandra Hospital) (applicant) to dismiss an application for reinstatement (No. B1957 of 2002) filed by Dr Frank Lepre (respondent) on 6 December 2002 on the ground that the respondent is a person excluded by s. 72(1)(e) of the Industrial Relations Act 1999 (the Act) from the operation of s. 73(1) of the Act.

Section 72(1)(e) states:

“72 Who this chapter does not apply to

(1) Section 73 (1) does not apply to–

…

(e) an employee–

(i) who is not employed under an industrial instrument; and (ii) who is not a public service officer employed on tenure under the Public Service Act 1996; and (iii) whose annual wages immediately before the dismissal are more than $75,200 or a greater amount stated in, or worked out in a

way prescribed under a regulation; or”.

The parties in the above matter have agreed that the Ministerial Directive 02/02 which governs the employment of the respondent is not an industrial instrument.

In the absence of that Directive, the respondent would have been an employee whose employment was governed by an industrial instrument and hence he would not have been excluded from s. 73(1) of the Act, as he now may be.

This Directive and only this Directive caused the respondent the need to pass the tests in s. 72(1)(e)(ii)and(iii) of the Act. If the unchallenged evidence of the respondent is correct that the Directive was issued pursuant to a breakdown in negotiations between the Australian Medical Association and Queensland Health, then it is entirely possible that the removal of the right of an employee to bring a reinstatement application to this Tribunal was an unintended consequence of the issuing of the Directive. In that light and in that it is still possible for this application to be withdrawn thus allowing the original matter to be determined on its merits, I recommend as follows:

• The applicant discuss the issue raised by the Commission in this interim decision with the Office of the Minister for Industrial Relations.

If, after consideration of those discussions, the applicant believes that it was the case that the removal of a right that existed prior to the Directive being issued was an unintended consequence, then I further recommend as follows:

• The applicant consider the withdrawal of the application to strike.

The applicant should, as soon as possible, in any event no later than close of business on Monday 16 June 2003, advise the Commission and the respondent of their position.

Should the position of the applicant remain unchanged, the decision on the application to strike will be released promptly.

D. K. BROWN, Commissioner.

Hearing Details:

2003 29 May Released: 4 June 2003

Appearances: Mr C. Murdoch (instructed by Crown Law) for The State of Queensland. Mr M. Smith (instructed by Nicol Robertson Hallett) for Dr F. Lepre.

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Industrial Relations Act 1999 – s. 335 – application for costs

Chris Barsha AND Motor Finance Wizard (Sales) Pty Ltd (No. B492 of 2002)

COMMISSIONER ASBURY 6 June 2003

Application for costs – Unfair dismissal application – Industrial Relations Act 1999 s. 335(1)(b) – Admissibility of evidence of offers of settlement made at conciliation conference – Case law on offers of settlement and costs application – Presumption that offers of settlement made in conciliation conference are “without prejudice” – Necessary for party seeking to call evidence of offers made at conciliation conference to rebut the presumption of “without prejudice” status of such offers – No evidence that offer made on basis that applicant reserved right to raise it on question of costs – No evidence that offer of settlement was repeated outside conciliation conference or put in writing in a manner which deprived it of “without prejudice” status – Decision that affidavit of applicant purporting to detail offer of settlement made at conciliation conference would not taken be taken into account on costs application – Case law on circumstances in which costs will be awarded by Commission – Commission constrained in argument on costs by relevant findings of fact made in hearing of application itself – Consideration of findings of fact – Consideration of certificate issued by conciliating Commissioner – Certificate indicates that respondent prepared to negotiate but not prepared to meet applicant’s demand in relation to settlement – Absent any admissible evidence of quantum or nature of applicant’s offer of settlement no finding that respondent unreasonably rejected reasonable offer of settlement – Application for costs dismissed.


DECISION

Background On 4 October 2002, a decision was released awarding the applicant $8,400.00 as compensation for his unfair dismissal. The issue of costs was reserved. On 10 February 2003, solicitors for the applicant corresponded with the Industrial Registrar seeking directions in relation to submissions on the issue of costs. On 24 February 2003, a further directions order was issued setting a time frame for the receipt of written submissions and indicating that the application for costs would be determined on the papers. Final submissions in relation to the application for costs were received by the Commission on 27 March 2003. This decision deals with that application. Submissions for the Applicant on Costs The applicant’s claim for costs is based on his contention that a reasonable offer of settlement was made to the respondent, and was rejected. Had the offer been accepted, all costs of the hearing would have been avoided. Further, the certificate issued by the member of the Commission who conciliated the unfair dismissal application, stated: “The Commission is unable to see any ‘lack of loyalty’, no warnings were given and no procedural fairness.”.

It is contended that these two things make the respondent’s conduct unreasonable, because faced with both a reasonable offer of settlement and a Commissioner’s intimation, all future costs were caused by the unreasonable conduct of the respondent. Further, it was argued that at the hearing into the application, the Commission had found that the allegations of disloyalty made by the respondent were “entirely unreasonable” and that there was no evidence of any warnings or allegations being put to the respondent before his dismissal. The Commission had found that the applicant’s claim proved under three heads: it was unfair, unjust and harsh. Material was also filed with the submissions for costs on behalf of the applicant indicating that the respondent had filed an application to appeal and an application seeking leave to appeal against the decision of the Commission on the unfair dismissal application. It was contended that the appeal was unilaterally withdrawn and the applicant was forced to spend money to begin resisting the appeal. The applicant was only partly compensated for the costs thrown away in resisting the appeal. In support of the contention that a reasonable offer was made by the applicant at the conciliation conference, an affidavit sworn by the applicant detailing that offer was appended to the written submissions in relation to the costs application filed on his behalf. That affidavit also deposed to an offer of settlement being made by the respondent at the conciliation conference. In support of the proposition that this material was admissible, it was argued that if the material was not admissible the Queensland Industrial Relations Commission would be the only body in the common law world which could not take into account offers made in negotiations, in assessing which party ought to pay costs. The respondent referred the Commission to an extract from Lexis Nexis, an on-line legal research service provided by Butterworths, wherein the following cases are cited: Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 at 1289 per Lord Griffiths; Cutts v Head [1984] 1 Ch 290; [1984] 2 WLR 349 at 259 per Oliver LJ: Calderbank v Caldberbank [1975] 3 All ER 333 at 342; [1976] Fam LR 93 at 106 per Cairns LJ and Computer Machinery Co Ltd v Drescher [1983] 1 WLR 1379; [1983] 3 All ER 153 per Megarry VC. Reference was also made to the decision of Thomas J in Transit Australia P/L v Crewford Australia [1997] QSC 141 (12 August 1997) which held that it was an error of law for an arbitrator to refuse to consider an oral offer of settlement in an award of costs. It was also contended for the applicant that the statement of Mr Roderick James in the hearing of the substantive application, made a reference to an offer of settlement on behalf of the respondent, and that the applicant had responded to this in his statement. This had constituted a waiver of privilege by the respondent, given that the statement of Mr James had opened up the issue of offers, and it was unjust for the respondent to now claim privilege after the event. The applicant had at all times sought compensation on the basis of remuneration including commissions, but had abandoned the claim for commissions in the offer of settlement he made at conciliation. Regarding the quantum of costs, Rule 66 of the Industrial Relations (Tribunals) Rules 2000, provides that the Commission may have regard to the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999. It was submitted for the applicant that notwithstanding Rule 66, the applicant should be awarded costs as incurred which are reasonable as assessed by the Industrial Registrar. Submissions for the Respondent on Costs In opposing an award of costs in this case, the respondent submitted that there was a longstanding philosophy of the Commission that in the absence of frivolous or vexatious applications, or other circumstances that are abnormal, costs will not be awarded in traditional kinds of matters within the jurisdiction of the Commission. This philosophy had been expressed by the then President McKenzie J in Goldman v Data General Australia Pty Ltd (1993) 144 QGIG 379, where it was held that cases where a party had acted unfairly, unreasonably or improperly in the course of pursuing or resisting relief to the extent that those actions were so unjustifiable that the proceedings had worked as an act of oppression to the other party, would be rare. In Townsville City Council v Brennan (1998) 157 QGIG 92, Chief Industrial Commissioner Hall as he then was, had considered the nature of the discretion to award costs (provisions for which were in essentially in the same terms as s. 335 of the current Act) and held that the discretion was not unfettered, and arose only where the applicant for costs satisfied the Commission that a case of the type described in the section existed – i.e. an application made frivolously, vexatiously or without reasonable cause or causing costs to be incurred by an unreasonable act or omission. Further, it was held in that case that it was the effect of s. 32 CA of the Acts Interpretation Act 1925, that the provisions of the then Act dealing with costs could not be read as casting an obligation on the Commission to award them where those circumstances existed. It is contended for the respondent that to trigger the discretion to award costs to the applicant, the respondent must have acted unreasonably in the conduct of the application, and that the conduct of the respondent in this matter could not be so described. The applicant was seeking to found an argument of unreasonableness on the part of the respondent, on the basis of:

• A privileged offer of settlement at a conciliation conference; and • Disregarding “a very clear intimation by the [conciliating] commissioner that there was no evidence to substantiate the respondent’s claims of

disloyalty and that “no warnings were given and no procedural fairness.”.

It was submitted that financial offers to settle in conciliation conferences are essential elements to any settlement negotiations, and are always privileged and inadmissible, especially in an argument as to costs: cf. Marcinow v Marketplace Communications Pty Ltd (2000) 166 QGIG 10 where it was held that prior inconsistent statements made at a conciliation conference, not reasonably incidental to settlement negotiations, are admissible. While the failure to respond in a reasonable fashion to a reasonable offer of settlement had attracted an award of costs in other cases before the Commission, the facts in this case could be distinguished.



In Byvan Management Queensland v Rhonda Hansen (1999) 160 QGIG 132, an open offer of settlement had been made in which the respondent clearly flagged its intention to seek costs in the event the offer was not accepted. Similarly in Riley v KMKM Aboriginal Corporation (2000) 164 QGIG 45 it was found that the applicant had been put to considerable cost as a result of the unreasonable act or omission of the respondent in not responding to an offer to settle through a draft deed of settlement. In Hoffenback v Gold Coast Equipment Hire Sales and Service (2000) 163 QGIG 359, there was a finding that the respondent had engaged in a series of unreasonable acts including defending a termination totally lacking in merit; producing falsely represented documents and the failing to make a reasonable settlement offer. The question of whether there was evidence to substantiate the respondent’s allegations of disloyalty was a triable issue and for the respondent to have proceeded on that basis was not unreasonable. Further the respondent’s case was arguable on its merits, and involved:

• interpretation of the applicant’s contract of employment; • the quantum and method of payment of his remuneration; • facts, matters and circumstances of the termination of his employment; • resignation of the applicant as a working director of the respondent; and • the impact of that resignation on the respondent.

It was also submitted that the respondent had sought to have negotiations with the applicant on the morning of the hearing, but that his decision to include in his claim commissions averaged over a three month period, totalling $17,745.30, had prevented those negotiations from taking place. The fact that at trial, the applicant had not succeeded in gaining an award of compensation which included commissions was said to support the respondent’s contention that the defence of the application was reasonable, meritorious and partially successful. Given the provisions of s. 335(1)(b) of the Act, it was irrelevant that a portion of the award for the unfairness of the applicant’s dismissal would be absorbed by the costs of pursuing that application. Costs incurred by the applicant (at first instance) in an appeal/application for leave to appeal, were also irrelevant to a costs application pertaining to the application at first instance. The respondent had voluntarily withdrawn the appeal/application for leave to appeal and had reached an agreement in relation to the costs thrown away by the applicant, occasioned by the appeal. That agreement had been fulfilled and costs paid by the respondent. The issue of those costs could not be again raised in relation to an application for costs of the hearing at first instance. Conclusions Issues for Determination The central issue for determination in this case is whether the applicant should be awarded costs on his unfair dismissal application. A further issue is whether in deciding to award costs, the Commission should give consideration to an affidavit of the applicant in the costs proceedings, deposing to an oral offer of settlement made by him to the respondent, and a counter offer made by the respondent, at a conciliation conference conducted under s. 75 of the Act. There is no evidence in affidavit form or otherwise that the applicant’s offer of settlement was made on an open basis or repeated outside the conference. The final issue for determination is whether the respondent has waived any right to privilege with respect to “without prejudice” offers of settlement made at the conciliation conference by repeating an offer made by it at the conciliation conference outside the conference. For the sake of convenience, I will deal first with the latter issues. Admissibility of Evidence of Matters Raised in Conferences under s. 75 of the Act

The issue of what – if any – evidence of matters raised in conciliation conferences should be considered in hearings is a vexed one. To assist parties a Practice Note (No. 1 of 2001) was issued by the Vice President pursuant to rule 80 of the Industrial Relations (Tribunals) Rules 2000, entitled Admissibility of Evidence of Matters Raised in Section 75 Conference (2001 166 QGIG 318. As well as being published in the Queensland Government Industrial Gazette, the Practice Note is displayed on the notice board in the foyer of the Commission. That Practice Note deals with evidence of documents or communications in connection with an attempt to negotiate a settlement of a s. 74 application. Regrettably neither of the submissions in this application referred to the Practice Note. The Practice Note is relevant to, but not determinative of, the issues in this case, and for this reason, I am reluctant to put both parties to the further cost of making additional submissions on the Practice Note. Accordingly, I intend to determine this application for costs without further hearing from the parties on the subject of the Practice Note. For the sake of completeness, I set out below the Practice Note in Full:

“QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations (Tribunals) Rules 2000 – r. 80 – issue of practice note

ADMISSIBILITY OF EVIDENCE OF MATTERS RAISED IN SECTION 75 CONFERENCE (No. 1 of 2001)

PRACTICE NOTE

This practice note operates to clarify the position with regard to the admissibility into evidence in s. 76 proceedings of the Industrial Relations Act 1999 (the Act) of communications made and/or documents produced in a conciliation conference required to be held by the Commission under s. 75 of the Act. 1. Evidence is not to be adduced of:

(a) a communication that is made between parties in connection with an attempt to negotiate a settlement of a s. 74 application; or (b) a document that has been prepared in connection with an attempt to negotiate a settlement of the s. 74 application.

2. Paragraph 1 hereof does not apply:

(a) to communications made during the course of a s. 75 conference or documents produced and/or referred to in that conference which outlines the positions of the parties’ in respect of either the dismissal or the s. 74 application; or


(b) if evidence that has been adduced in the s. 76 proceeding, or an inference from evidence that has been adduced, is likely to

mislead the court or commission unless evidence of the communication or document is adduced to contradict or qualify that evidence; or

(c) if the communication or document is relevant to determining whether a party caused costs to be incurred by the other party

because of an unreasonable act or omission connected with the conduct of the s. 74 application; or

(d) if the parties to the application consent to the evidence being adduced in the s. 76 proceeding; or

(e) if the communication or document included a statement to the effect that it was not to be treated as confidential; or

(f) if the evidence tends to contradict or to qualify evidence that has already been admitted; or

(g) if the proceeding is a proceeding to enforce an agreement between the parties to settle the application, or the making of such a settlement is in issue.

3. In paragraphs 1 and 2 hereof:

(a) a reference to a communication made by a party to the application includes a reference to a communication made by an employee or agent of such party; and

(b) a reference to the consent of a party includes a reference to the consent of an employee or agent of such party, being an

employee or agent who is authorised so to consent; and

(c) a reference to the commission of an act includes a reference to a failure to act. Dated this twelfth day of March, 2001. D. M. LINNANE, Vice President.”.

The case of Marcinow v Marketplace Communications (2001) 166 QGIG 10 dealt with the issue of the admissibility of prior inconsistent statements made at a conciliation conference, in a hearing of an unfair dismissal application. In that case evidence of a prior inconsistent statement made at a conference under s. 75 of the Act, by a witness in the hearing of the substantive application, was admitted in that hearing. The evidence was admitted because it was not in connection with an attempt to negotiate a settlement of the application and because it went to the credibility of the witness who had made the statement in the conciliation conference and adduced for the purpose of contradicting his evidence. The circumstances in which a statement made in a conciliation conference will be admissible on the hearing of the substantive application which was the subject of the conference will be extremely limited. Those circumstances will be confined to ensuring that a person who is a witness in a hearing into an unfair dismissal application is not able to depart from a statement about a version of events made at a conciliation conference, and give a different version of events in a hearing into that same application, without having his or her credit challenged on the basis of the prior inconsistent statement. Further, the purpose of the admission of such evidence is to ensure that the Commission is not mislead. The terms of the Practice Note, would not prevent such evidence being admissible in future proceedings in which the same or similar circumstances arose. However, unlike the situation in Marcinow, this application raises the issue of admissibility of evidence about settlement offers made at a conciliation conference. There is a long established practice in this Commission that an application for costs will be heard and determined after the hearing and determination of the substantive application for which costs are sought. It is implicit in the decision of McKenzie J (then President of the Industrial Court) in Goldman v Data General (1993) 144 QGIG 379, that evidence of matters raised at a conciliation conference may be admissible on an application for costs. That decision confirmed the earlier decision of Bougoure C where it had been noted that a party may act unfairly, unreasonably or improperly in pursuing or resisting relief. It was and remains the case that in order to determine whether there has been unreasonableness in pursuing or resisting relief in an unfair dismissal application, reference may be had to what transpired at a conciliation conference in relation to that application.

It is explicit in a number of recent decisions of the Commission that the record of a conciliation conference has been opened and considered by the Commission on a costs application: see Paterson v Medical Benefits Fund of Australia Ltd (1999) 160 QGIG 95, where then Chief Commissioner Hall in determining an application for costs said: “… the record of the conciliation conference – which in accordance with the normal procedure, was opened on the question of costs…” and the decision of then Commissioner Swan in Hamco Original Floors v Hutchison (1998) 158 QGIG 74 at 75, where reference was made to a report of conciliation conference proceedings of then Chief Commissioner Hall (who had conducted the conference), to confirm that the applicant had been advised not to proceed with his claim and warned in relation to costs.

That matters raised in a conciliation conference might be admitted into evidence in a costs application, is also apparent from the provisions of s. 75 of the Act. That section requires the Commission to hold a conference to attempt to settle an unfair dismissal application before it hears the application. Section 75(3) provides that if the Commission is satisfied that all reasonable attempts to settle a matter by conciliation are or are unlikely to be successful, the Commission must issue a written certificate to that effect. The Commission must also inform the parties to the conciliation of the Commission’s assessment of the merits of the application and the possible consequences of further proceeding, and may recommend that the application be discontinued. It is axiomatic that the evidence of these matters, including the certificate itself, would be admissible on an application for costs.

The preamble to the Practice Note makes it clear that it operates to clarify the position with respect to admissibility into evidence in s. 76 proceedings of communications made and/or documents produced in a conciliation conference under s. 75 of the Act. Clearly paragraph 2(c) deals with such evidence being adduced in a costs application. It is highly unlikely that the Practice Note would in any circumstances be construed to enable evidence of a communication or a document in connection with an attempt to negotiate a settlement of an unfair dismissal application to be adduced in the hearing on the merits of that application.

There is nothing remarkable about the proposition that evidence of settlement offers may be adduced in proceedings for the determination of an application for costs. The case law cited by solicitors for the applicant in this matter deals with the use of what came to be referred to as “Calderbank” letters in proceedings other than matrimonial cases, where such letters had originated (see Calderbank v Calderbank [1975] 3 All ER 333 at 342; 93 Fam LR 93 at 106 where an offer of settlement in a letter which stated that the offer was “without prejudice” except as to costs, was considered in the determination of costs). This course was subsequently approved in Cutts v Head [1984] 1 Ch 290 at 312 where Oliver LJ held that the “Calderbank formula” was not restricted to matrimonial causes but was available in all matters where what is in issue is more than a simple money claim in respect of which a payment into court would be the appropriate way of proceeding. On that basis an offer to settle an action made “without prejudice” but subject to a clearly expressed reservation of the right to refer to it on the issue of costs, was admissible for that purpose in all cases. The earlier decision in Walker v Wilsher 23 QBD 335 where it had been held that “without prejudice” letters which did not result in agreement would not be referred to on the question of costs, was not followed.



In relation to policy considerations Oliver LJ said in Cutts v Head (at [1984] 1 Ch 290 at 306) that it was difficult to see how an inability to refer to correspondence on a question of costs after judgement, would encourage settlement and that a consciousness of a risk of costs if reasonable offers of settlement are refused, can only encourage settlement. At 307 Oliver LJ went on to say:

“whatever may have been the position in 1889 [when Walker v Wilsher was decided], it is, I think, clear that there can now no longer be said to be any reason in public policy why, where offers have been made of everything which could be obtained by the proceedings, that fact should not be brought to the Court’s attention in the argument as to costs…is there any logical reason why, in appropriate circumstances, the conventional meaning of the phrase [without prejudice] should not be modified so long as this intended modification is clearly expressed and brought to the attention of the recipient? Is there, to put it another way, any policy of law which prevents a party to litigation putting forward an offer of compromise on the footing that it shall be treated as ‘without prejudice’ on the issue of liability only?”.

In Cutts v Head the policy considerations of admissibility of “Calderbank” offers was also considered in the judgement of Fox LJ. In relation to the rule in Walker v Wilsher that such offers were not admissible, the following was stated (at [1984] 1 Ch 315):

“The rule is concerned with offers. The use of the formula protects both parties from reference to the offer if it is refused. The reason why the words ‘without prejudice’ had to be given the extended meaning of ‘without prejudice to the position of either party if the offer was refused’ was because the offeror was not entitled to impose one sided terms which might prejudice the offeree if the offer was rejected…the qualification that the offerer is to be quite free to refer to the offer on the question of costs, so far form being without prejudice, however, may be highly prejudicial to the offeree.”.

Fox LJ went on to hold that it was necessary to revisit Walker v Wilsher. While the policy considerations in that case were that the compromise of disputes should be facilitated, an offer of settlement in the “Calderbank” form was not so far as the substantive issues are concerned, an inhibition on compromise. This was because up to the point of judgment, the proposal of compromise could not be referred to and arose only upon the question of costs, after the issues between the parties had been decided. Fox LJ said that:

“… I am not convinced that the reservation as to costs would inhibit a reasonable compromise. If a party is exposed to risks as to costs if a reasonable offer is refused, he is more rather than less likely to accept the terms and put an end to the litigation. On the other hand, if he can refuse reasonable offers with no additional risk as to costs, it is more rather than less likely to encourage mere stubborn resistance.”. (at [1984] 1 Ch 315):

This approach had been followed by Sir Robert Megarry V.-C in Computer Machinery Co Ltd v Drescher [1983] 1 WLR 1379 at 1382–1383, who admitted a “Calderbank” letter and declined to follow referred to what had been seen as settled law in Walker v Wilsher, stating (at 1383):

“In my view the principle is one of perfectly general application which is in no way confined to matrimonial cases. Whether an offer is made ‘without prejudice’ or ‘without prejudice save as to costs’ the courts ought to enforce the terms on which the offer is made so as to encourage compromises and shorten litigation. The latter form of offer has the added advantage of preventing the offer from being inadmissible on costs, thereby assisting the court towards justice in making the order as to costs.”.

In Johns Perry Industries v International Rigging (Aust) [1988] 2 Qd R 556 Cutts v Head was followed in the Supreme Court of Queensland by Ryan J, who held that the meaning of the “without prejudice” formula did not extend to a case where a reservation was made that a “without prejudice” communication would be taken into account on the question of costs. All of the cases cited above, deal with circumstances where a written offer of settlement was made “without prejudice” but subject to a clearly expressed reservation of the right to refer to it on the issue of costs. None of these cases provides any authority for the proposition that a bare offer of settlement, absent any reservation of the right of the party making the offer to refer to it on the question of costs, is admissible on such an application. It is implicit in the decision in Cutts v Head that the party rejecting the offer of costs must be on notice or at least made aware, that there is a risk that rejection of a settlement offer may result in reference being made to that offer, on an application for costs. It is also made clear in Computer Machinery Co Ltd v Drescher that the formulation of an offer of settlement on the basis that it is “without prejudice save as to costs”, is what makes the offer admissible on an application for costs. The case of Transit Australia P/L v Crewford Australia P/L [1997] QSC 141 (12 August 1997) cited in the submissions for the applicant can in my view be distinguished from the cases cited above. There, Thomas J was considering an oral offer of settlement made by a party to a proceeding which had been arbitrated under the Commercial Arbitration Act 1990. That act contained a specific provision that required the arbitrator to take into account an offer of compromise and its terms, on an application for costs. Thomas J held that the provision in question should be read broadly so that offers which did not comply with the requirements of the rules of court were also required to be taken into consideration. Under this broad approach, oral offers could be taken into account, although reservations were expressed by Thomas J in relation to difficulties in precisely proving such offers. The Industrial Relations Act 1999 does not contain such a provision. It should also be noted that the Uniform Civil Procedure Rules 1999 provide at chapter 9, r. 353(3) that an offer of settlement is to be made in writing. In this case, the offer of settlement which the applicant deposes that he made, was not in writing. The only evidence of it is an affidavit of the applicant which indicates that he made an offer of settlement of a certain amount at a conciliation conference and that the respondent made a counter offer of a lesser amount. There is nothing in the affidavit of the applicant to indicate that the offer of settlement was made on an open basis or repeated outside the conciliation conference. There is also nothing to indicate that the applicant put the respondent on notice, either at the conciliation conference or subsequently, that if the offer of settlement was not accepted, he reserved the right to raise the fact that the offer was made and rejected, on an application for costs. There is a long established practice of this Commission that the positions taken by parties in conciliation conferences are generally “without prejudice” to the positions to be taken in a hearing. While there is no specific provision in the Act prohibiting evidence of anything said or done in a conciliation proceeding from being given in subsequent proceedings, there is a strong presumption that this will not occur other than a narrow range of circumstances (cf. s. 104(5) of the Workplace Relations Act 1996). The Practice Note reflects this narrow range of circumstances. As was pointed out by a Full Bench of the Australian Industrial Relations Commission in McKenzie v Meran Rise Pty Ltd t/as Nu Force Security Services (375/00 M Print S4692) Giudice J; Watson SDP and Whelan C:

“An offer of settlement made in conciliation proceedings is by its nature made on a without prejudice basis. It is inappropriate that an offer made in those circumstances should be taken into account in a costs application unless the offer is subsequently repeated on an open basis. It has long been accepted that positions taken in conciliation are without prejudice to the position to be taken in arbitration. The protection afforded to participants by this principle is an essential feature of conciliation proceedings. This is so whether the conciliation takes place in relation to an industrial dispute, an application pursuant to s. 170CE [Application to Commission to deal with termination…] or any other proceeding.”.

I respectfully agree with these views.


There is a strong presumption that in conciliation proceedings conducted by this Commission, that positions taken by parties, particularly in relation to offers and counter-offers of settlement, are taken on a “without prejudice” basis and will not be raised in any subsequent proceedings. With respect to a matter that is not connected with an offer of settlement, admissibility will be limited to a narrow range of circumstances such as those which arise when a witness in a hearing of an application makes a statement which is inconsistent with a statement made in a conciliation conference, and if evidence of the inconsistency was not lead, the Commission may be mislead.

In this regard, the policy considerations of preventing a witness in the hearing of an unfair dismissal application from giving evidence which might mislead the Commission, outweigh those relating to the “without prejudice” nature of matters raised in a conciliation conference.

I can see no basis upon which evidence of an offer of settlement would ever be admissible in the hearing of an unfair dismissal application, although such evidence may be admissible on an application to strike out an unfair dismissal application. However, when evidence is sought to be adduced of an offer of settlement made at a conciliation conference on a costs application, it will be necessary for the party seeking to lead that evidence, to rebut the presumption that the offer was made on a “without prejudice” basis at a conciliation conference. The offeror will at very least be required to demonstrate that the offer was clearly made on the basis that the right to refer to it on a costs application was reserved.

Given that there is no provision in the Act equivalent to s. 104(5) of the Workplace Relations Act (C’th), there is nothing to prevent an oral offer made at a conciliation conference, in a manner which placed the offeree on notice that the “without prejudice” status had been removed from such an offer, from being admissible on a costs application. However, it would be prudent for such offers to be put in writing, or at very least for the conciliating Commissioner to be requested by the offeror to include a reference on the certificate to the fact that the offer was made on the basis that it was “without prejudice save as to costs”.

In this case it is contended for the respondent, that it relied on the presumption that the offers of settlement made at the conciliation conference were made “without prejudice” on the basis that all matters which were discussed at the conference were discussed on that basis. That at least one Director of the respondent is a solicitor, in my view reinforces the reasonableness of the reliance on the part of the respondent on the presumption that offers of settlement made at the conciliation conference “were without prejudice”. There is no evidence from the applicant to rebut that presumption or the respondent’s reliance on it. The applicant does not state in his affidavit that any offer of settlement was made at the conference in a manner or in terms which deprived it of “without prejudice” status. The obvious method of reducing any offer of settlement to writing and indicating that the party making it reserved the right to raise it on an application for costs, was not employed.

This is not a case where the applicant and the respondent were both totally unrepresented. In the absence of representation, it might have been argued that no presumption in relation to the offers of settlement being “without prejudice” was raised in the first place because neither party understood this to be the case. In this case, the applicant while unrepresented at the conference, was legally represented in the hearing of his application. At least one of the respondent’s directors is a solicitor, and the respondent was also legally represented at the hearing. Any offer of settlement could reasonably have been made on an open basis or in a manner which deprived it of “without prejudice” status before the application was heard.

I am also of the view that in this case, to give consideration to the applicant’s affidavit detailing an offer and counter offer of settlement made at a conciliation conference, without the applicant having reserved the right or otherwise advised the respondent that it would be referred to on an application for costs, would be unfair. Accordingly, I decline to consider the affidavit of the applicant which was appended to the submissions filed on his behalf in relation to the application for costs.

Waiver of Privilege with Respect to Settlement Offers

The applicant also points in this case to the fact that the respondent has waived any privilege in relation to “without prejudice” offers of settlement made at the conciliation conference, by repeating its offer of settlement in the witness statement of Rodney Wickham James, made on 20 May 2002 and filed prior to the hearing of the substantive application. The witness statement (Exhibit R1) in the hearing of the substantive application, contains the following at point 20:

“Barsha was paid weekly under his contract and on finishing up was paid one weeks salary in lieu (less the week already paid) but has rejected this offer.”

In the applicant’s witness statement in reply, contains the following at point 17:

“With respect to paragraph 20 [of the statement of Mr James) I say that I was offered two weeks salary at the conciliation conference on 4 April 2002. I sought six weeks salary at that conference which was rejected by the respondent.”

In McKenzie v Donald Murhome cited above, a similar situation occurred, when the respondent’s representative referred to an offer of settlement in arbitral proceedings. It was held by the Full Bench that the applicant’s failure to object to the disclosure in arbitral proceedings of something said or done in conciliation constituted a waiver by the applicant of the right to object to that disclosure, under s. 104(5) of the Workplace Relations Act 1996. However, the Full Bench went on to hold that reference to the offer in arbitral proceedings, did not change the nature of the offer to one which was made on a without prejudice basis, to one which was appropriate to be taken into account on the question of costs, stating that:

“To hold otherwise would not only be contrary to principle, but would also have the potential to do great damage to the conciliation process which is such a central part of the Commission’s work. If the offer had subsequently been repeated in a manner which deprived it of its without prejudice status in relation to costs, the position would have been quite different.”.

I am also in agreement with this statement. While it is the case that there is no equivalent provision to s. 104(5) of the Workplace Relations Act 1996 in the Industrial Relations Act 1999¸ for reasons outlined above, there is a strong presumption to the same effect. In my view, the fact that the respondent referred to the offer in his witness statement did not change the nature of that offer from one made on a “without prejudice” basis at a conciliation conference to one which was appropriate to be taken into account on an application for costs.

At the point that the witness statements were drafted, both parties were legally represented, and should have been quite capable of stating any “without prejudice” offers in a manner which would have made them admissible on an application for costs. Further, a live issue in the hearing of the substantive application was the quantum of salary and whether it included the significant commission payments earned by the applicant. The references to an offer and counter offer of settlement in the witness statements do not make clear exactly what was being offered, and it would be inappropriate to consider those statements given this ambiguity.

Case Law in relation to Costs on Unfair Dismissal Applications

Section 335(1) of the Act provides as follows:

“The Court or Commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied – (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement – the party caused costs, including witness expenses and other expenses, to be incurred by the other party

because of an unreasonable act or omission connected with the conduct of the application.”.



In Doyles Construction Lawyers v Serratore (No 2) (2002) 170 QGIG 103 a Full Bench of the Commission said in relation to this section, that the decision of McKenzie P in Goldman v Data General Australia Pty Ltd (1993) 144 QGIG 379 is descriptive of the correct approach to be adopted in assessing whether there have been unreasonable acts or omissions in connection with the conduct of an application, notwithstanding that the decision was based on provisions of the previous Industrial Relations Act 1990. In Goldman McKenzie P said:

“These cases illustrate the long standing philosophy of the Industrial Commission that in the absence of a frivolous or vexatious application or other circumstances that are abnormal costs will not be awarded in the traditional kinds of matters within the jurisdiction of the Industrial Commission. However, there is a discretion to be exercised and such discretion cannot be fettered in such a way that, in practical terms, denies its character as a discretion. Where circumstances that can properly be described as abnormal can be identified in a case and it would cause serious injustice if costs were not awarded it would not do violence to these general principles if an award of costs is given. It would however be emphasised that the circumstances must be significantly out of the ordinary before the general rule is departed from. It is really the rationale of the cases where costs have been awarded that such circumstances have been able to be identified. . . . Nonetheless, it does make the point that some reinstatement cases by reason of the procedural steps involved and their nature, length and complexity have rather got away from the ideal of inexpensive dispute resolution. There may be some cases where at the end of the day it can be seen that a party has acted unfairly, unreasonably or improperly in or in the course of pursuing or resisting such relief and that those actions were so unjustifiable that the proceedings have worked as an act of oppression to the other side. It goes almost without saying that cases where such a finding could properly be made will be rare and would have to fit the description frivolous, vexatious or otherwise abnormal. The mere fact that a party fails to succeed would be far removed from this kind of case and will be far from sufficient to found an argument for costs. No one with a reasonably arguable case need be deterred from proceeding by fear of the consequences of costs unless some abnormal unfair aspect enters into the conduct of the proceedings.”.

As Blades C noted in Barry v Irish Bar and Restaurant Company Limited (1998) 159 QGIG 210, the decisions in Toowoomba City Council v Schaumberg (1996) 153 QGIG 541 and Lather v Lucas (1997) 155 QGIG 1058 greatly freed up the basis in which costs were awarded in dismissal cases. But the discretion to award costs is still fettered by the provisions of s. 335(1)(b) of the Act in that there must be an unreasonable act or omission. The categories of unreasonable acts or omissions which might attract the exercise of the discretion to award costs (or the refusal of the exercise of that discretion) are relatively well established, although the following list is not exhaustive:

• Failure to respond in a reasonable manner to a reasonable offer of settlement: Byvan Management (Qld) Pty Ltd v Hansen (1999) 160 QGIG 132; Riley v KMKM Aboriginal Corporation (2000) 164 QGIG 45; Hoffanbeck v Gold Coast Equipment Hire Sales and Service (2000) 163 QGIG 359.

• A demand for excessive compensation: Doyles Construction Lawyers v Serratore (No 2) (2002) 170 QGIG 103 Barry v Irish Bar and Restaurant Company Limited (1998) 159 QGIG 210; Townsville City Council v Brennan (1998) 157 QGIG 92; Wilson v Venron Pty Ltd (1998) 158 QGIG 425.

• Proceeding with an application after a certificate or recommendation from a conciliating Commissioner indicating that an application had no prospect of succeeding: Paterson v Medical Benefits Fund of Australia Ltd (1999) 160 QGIG 95.

• Untenable position taken by a party: L v Thuringowa City Council (1993) 144 QGIG 224 at 225. • Dishonest argument: Vernon Reddick v Ocean Spirit Cruises (1999) 169 QGIG 163 at 164. • Lies and evasiveness of the applicant unreasonably extending hearing of an application: Balboni v Mijan Pty Ltd (1996) 159 QGIG 168;

Trevanion v Tricare Limited (1998) 157 QGIG 97; • Spitefulness and prejudice involved in the dismissal of the applicant: Cater v Electra Cables (1997) 155 QGIG 733. • Facts which reasonable employee would acknowledge as being improper conduct by the employee and justifying action by the employer: Ryan

v Washington Motors Pty Ltd (1997) 155 QGIG 431. • Applicant or those advising him or her proceeding with an application knowing that it could not succeed – cf. party representing himself or

herself and doing it badly: Townsville City Council v Brennan (1998) 157 QGIG 92 at 93. • Applicant unsuccessful in two previous applications to the Commission involving identical arguments: Barlow v Brisbane Cabs Ltd (1997) 155

QGIG 741. • Deliberate attempt to annoy or embarrass the employer and to use any evidence gained to support claims to prosecute the employer elsewhere:

Shop Distributive and Allied Employees Association (Queensland Branch) (1991) 137 QGIG 257. Conclusion In Blagojvech v Australian Industrial Relations Commission [2000] FCA 483 (18 April 2000), it was held by Moore J that both the parties and the Commission are constrained in their arguments about, and conclusions upon, questions of costs, by any relevant findings of fact made by the Commission in determining the application itself. That is, the Commission must determine whether an order for costs should be made by reference to the facts as found in the hearing of the substantive application.

In this case, the facts as found can be briefly summarised as follows. The respondent contended that the applicant had resigned his position as a working director bringing his contract of employment to an end, subject to him remaining for a further week in the role of licensed manager, until a replacement working director could be found. Correspondence from the respondent to the applicant and from the respondent to the Office of Fair Trading, was totally at odds with the respondent’s contention in this regard and was found to have indicated that the applicant’s choice to cease acting as working director was accepted by the respondent, and he had reverted to another position, that of licensed manager. The evidence for the respondent that the position of working director was a fundamental term of the applicant’s employment contract was found to be at odds with the written contract. Further, the evidence of the respondent’s witnesses was found to be at odds with the submission that the applicant resigned his employment.

It was also found that the dismissal of the applicant was harsh because of its consequences for the applicant who was given only one week’s notice; unjust because he had simply sought to raise a legitimate issue about his legal position and that issue was not dealt with appropriately by the respondent following the grievance procedure in the applicant’s written contract of employment; and unreasonable because it was decided on inferences – that the applicant was disloyal – which could not reasonably have been drawn from the material before the respondent.

Significant findings made at the hearing of this application were essentially reflected in the certificate issued by Blades C on 4 April 2002, appended to the written submissions filed on behalf of the applicant, which stated:

“The applicant signed a written contract of employment that he would undertake a Working Director position as part of his duties. He later refused to continue in that role. That refusal would constitute a resignation. However, by letter dated 20 February, there was a variation to the written contract whereby the Company reverted applicant’s position to that of ‘Licensed Manager’. That letter will be seen as a variation of the previous written contract. The Company terminated the applicant’s position one week later for ‘lack of loyalty’. The Commission is unable to see any ‘lack of loyalty’, no warnings were given and no procedural fairness. The written contract purporting to provide for one week’s notice is likely to be declared void and varied as an unfair contract in proceedings under that provision of the Act. The applicant sought compensation but the respondent while prepared to negotiate, was not prepared to meet the applicant’s demands.”.


It is also of significance in my view that the respondent persisted in running an argument that the applicant had resigned, notwithstanding the clear terms of the certificate issued by Blades C which indicates his view that the respondent terminated the applicant’s employment. On one view, this is a clear case where the respondent pursued an argument at trial which was untenable on the terms of its own written documentation. It is also a case where the conciliating Commissioner formed a view that the respondent’s arguments in relation to resignation and the accusation of disloyalty on the part of the applicant, were not sustainable. Compounding the untenability of the respondent’s argument about the resignation, is that the letters referred to above were written by a director of the respondent who is a solicitor and should well have known that the terms of those letters was at odds with the argument about resignation. On another view, the admissible evidence about settlement offers on the costs application – which for reasons I have outlined above is essentially confined to the certificate issued by Blades C – indicates that the respondent was prepared to negotiate a settlement of the application. On balance, and in the absence of admissible evidence on the nature and quantum of settlement offers and counter offers, I am not satisfied that this is a case where the Commission should exercise the discretion to award costs. I would add that had the certificate issued by the conciliating Commissioner indicated that the respondent had made no offer, or had there been admissible evidence to demonstrate that an offer of settlement had been made by the applicant for an amount less than or in the vicinity of the award of compensation he obtained as a result of the hearing, I would have been disposed to award costs to the applicant for the hearing of the substantive application. However, in doing so, I would have accepted the respondent’s arguments in relation to the costs of the appeal. I would also note for completeness that rule 66(2) enables the Court to order that costs be assessed by the Registrar. The rule makes no reference to the Commission being given discretion to make such an order, and I would have declined to do so. The application for costs in B492 of 2002 is dismissed. I order accordingly. I.C. ASBURY, Commissioner. Hearing Details 2002 31 May

Released: 6 June 2003

Appearances: Ms K. Prior of Prior & Associates, instructed by A.J. Torbey & Associates for the applicant. Mr M.J. Byrne, instructed by Llewellyns Solicitors for the respondent.

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Robin Dunstan Maher AND Quick Cat Cruises (No. B2209 of 2001)

COMMISSIONER BLADES 10 June 2003 Unfair dismissal – Failure of respondent to deliver statements as required by the Directions Order – Failure of respondent to call evidence – Extension of time – Extension granted – Dismissal found to be harsh, unjust or unreasonable – Compensation awarded.

REPORT ON DECISION (as edited)

In giving his decision from the Bench on 2 June 2003, Commissioner Blades said: “I give leave to the applicant to amend the name of the respondent to Quick Cat Cruises (Qld) Pty Ltd. The respondent has given only very recent instructions to be represented in this hearing which has been set for some time. It has not complied with

the Directions Orders as to the exchange of documents and the lodging of witness statements and subsequently, has called no evidence. The respondent’s case has been limited to the cross-examination of the witnesses.

The applicant relies upon the evidence contained in three statements of witnesses, namely his own, Arlo Marcus Arthur, Ships Master, and Valerie

Mae Ferrier, Cruise Attendant. That evidence is not contested except where there might be inconsistencies within the contents of the various statements.

I am satisfied on the balance of probabilities that the applicant was dismissed on 22 October 2001. As the application seeking a remedy for unfair

dismissal was not filed until 12 December 2001, there is an extension of time application also to be considered. In this regard, I accept that the applicant first sought legal advice on 7 November 2001 and his Solicitor endeavoured to negotiate directly with the employer. When that failed, an application was lodged in the Federal Commission on 28 November 2001 and subsequently withdrawn on 7 December, 2001. It is clear that the applicant has pursued the respondent who was aware that a remedy was being sought. The length of the delay is small and no injustice to the employer if the extension of time is granted, has emerged. The error of the lawyer is seldom visited upon an applicant. The applicant sought assistance at an early stage. In all of the circumstances, I grant the extension of time.

I am satisfied on the balance of probabilities that the applicant was employed by the respondent as Coxswain on the vessel “Quickcat” and had been

so employed since May 2000. The applicant was suspended from employment on 14 October 2001 and dismissed on 22 October 2001. An incident occurred on 14 October after the “Quickcat” berthed at the Clump Point jetty at Mission Beach. There had been some remarks passing between the applicant and the ships engineer Steven Clifford during the journey. Some half to three-quarters of an hour after berthing and after the passing of the remarks, Mr Clifford was noticed to be pacing up and down outside the vessel on the jetty. The applicant went out to see what the matter was. Mr Clifford swore at him and launched a physical attack, knocking the applicant to the ground and punching him repeatedly. This view of the incident was corroborated by the two other witnesses. The respondent’s Manager John Taylor suspended the applicant for a week.

I am further satisfied that after that suspension, the applicant was terminated. At no time prior to the termination had the applicant received any

warnings. He received no pay during the suspension and that is unlawful. After termination he received no holiday pay and that is unlawful. He received no payment in lieu of notice and that is unlawful. A subsequent investigation carried out by the Industrial Inspectorate resulted in back wages and pro rata annual leave being paid.



It is of significance that the applicant was not a willing participant in the incident. The assault was unprovoked. He was attacked by another employee who was subsequently charged with assault occasioning bodily harm and fined in the Courts after pleading guilty to the offence.

Mr Melvin has claimed that the employer was entitled to terminate the applicant because of the assault. But it was not the applicant who was guilty

of the assault. Nor is there evidence that the applicant was guilty of fighting. Nor was the applicant guilty of provocation. The plea of guilty by the other party to the charge of assault is inconsistent with the assault having been provoked and the claim of provocation is also inconsistent with the evidence. The event occurred a significant period of time after the exchange of words. These matters would have come to light if the employer had bothered to carry out a proper investigation.

There is no evidence which suggests that the matter was properly investigated. Mr Arthur has stated he was not interviewed by the employer. Ms

Ferrier has made no allegation she was interviewed. The applicant does not appear to have been spoken to after the suspension. To dismiss an employee without a proper investigation is to breach natural justice principles.

In the whole of the circumstances, I am satisfied that the dismissal was harsh unjust or unreasonable. I am also satisfied that reinstatement or re-employment is inappropriate. The applicant then seeks an order for compensation. He received no work

until about February or March 2002 when he commenced a general handyman service at Mission Beach although he earned no income from that business, other than covering expenses, for approximately 4 months.

The applicant had been employed for 18 months and there was no reason to suggest he might soon depart from his employment. I assess

compensation at 6 months pay. Taxable income for the year ending 30 June 2001 was $22,215. I therefore assess the amount of compensation at $11,100.

I order that that sum be paid to the applicant within 21 days. On the question of costs, I order that any application and supporting submissions be lodged within 14 days. That a response be lodged within 14

days of receipt of the application for costs and if a reply is necessary, within 3 days of that. The question of costs will then be determined on the papers.”. (NOTE: The Commission received, from the Applicant, an application for costs on Thursday 5 June 2003.)

By the Commission, [L.S.] E. EWALD, Industrial Registrar. Hearing Date: 2003 2 June Released: 10 June 2003

Appearances: Mr A.T. Lee, Solicitor, Lee & Co, for the Applicant. Mr J. Melvin, Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, for the Respondent.

###########################################################################################################################


Industrial Relations Act 1999 – s. 125 – making, amending and repealing awards

Brisbane City Council AND The Electrical Trades Union of Employees of Australia, Queensland Branch and Others (No. B1329 of 2002)

ENGINEERING AWARD – STATE

COMMISSIONER SWAN 1 October 2002

AMENDMENT This matter coming on for hearing before the Commission at Brisbane on 18 September 2002 and 1 October 2002, this Commission orders that the said Award be amended as follows as from 1 October 2002. By deleting Schedule 3 and inserting the following in lieu thereof: “SHEDULE 3 – BRISBANE CITY COUNCIL TRADES SERVICES SCHEDULE PART 1 – APPLICATION AND OPERATION 1.1 Title This Schedule shall be known as the Brisbane City Council Trades Services Schedule. 1.2 Arrangement Subject Matter Clause No. PART 1 – APPLICATION AND OPERATION Title.............................................................................................................................................................................................................................. 1.1 Arrangement ................................................................................................................................................................................................................ 1.2 Date of operation ......................................................................................................................................................................................................... 1.3 Parties bound ............................................................................................................................................................................................................... 1.4


Subject Matter Clause No.

PART 2 – COMMUNICATION, CONSULTATION AND DISPUTE SETTLEMENT PROCEDURE Grievance and dispute settlement procedure .............................................................................................................................................................. 2.1 PART 3 – EMPLOYER AND EMPLOYEE’S DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Contract of employment.............................................................................................................................................................................................. 3.1 Temporary ................................................................................................................................................................................................................... 3.2 Fixed term.................................................................................................................................................................................................................... 3.3 PART 4 – WAGES AND WAGE RELATED MATTERS Wages .......................................................................................................................................................................................................................... 4.1 Apprentice wage rates ................................................................................................................................................................................................. 4.2 Allowances .................................................................................................................................................................................................................. 4.3 PART 5 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK Spread of hours............................................................................................................................................................................................................ 5.1 PART 6 – RESERVED MATTERS Call back...................................................................................................................................................................................................................... 6.1 Stand-by....................................................................................................................................................................................................................... 6.2 Emergency work.......................................................................................................................................................................................................... 6.3 1.3 Date of operation

This Schedule takes effect from 1 October 2002, and will continue in force until 30 June 2005.

1.4 Parties bound

1.4.1 Engineering Trades

This Schedule is legally binding upon the organisations listed in clause 1.4 of the Award, the Brisbane City Council, the employees of the Brisbane City Council, as prescribed by clause 1.5 of the Award PART 2 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION 2.1 Grievance and dispute settling procedure 2.1.1 The matters to be dealt with in this procedure shall include all grievances or disputes between an employee and an employer in respect to any

industrial matter and all other matters that the Parties agree on are specified herein. The Parties aim to avoid industrial disputes, or where a dispute occurs, to provide a means of settlement based on consultation, co-operation and discussion and the avoidance of interruption to work

2.1.2 During any dispute, other than a Workplace Health and Safety matter, the status quo existing immediately prior to the matter giving rise to the

dispute will remain and work shall continue as it was prior to the dispute without stoppage or the imposition of any ban, limitation or restriction. No party shall be prejudiced as to final settlement by the continuance of work in accordance with clause 2.1.2 (of Schedule 3).

2.1.3 Notwithstanding any other provisions having application to the Brisbane City Council, any grievance or dispute shall be handled as follows:

Stage 1 – Discussions between the employee/s and team leader and at the request of the relevant Union, shop steward/delegate Stage 2 – Discussions involving the employee/s, the shop steward/s and relevant Union Secretary/Organiser or nominated delegates with the

relevant line manager and an HR Consultant or other person nominated by the Manager, Employment Arrangements. Stage 3 – Discussions involving relevant Union Secretary/Organiser or nominated delegates with Divisional Manager and Manager, Employment

Arrangements or nominated delegate.

A dispute shall not be referred to the next stage until a genuine attempt to resolve the matter has been made at the appropriate level. 2.1.4 There shall be a commitment by the parties to achieve adherence to this procedure, including the earliest possible advice by one party to the other

of any issue or problem which may give rise to a grievance or dispute. Throughout all stages of the procedure, all relevant facts shall be clearly identified and recorded.

2.1.5 Sensible time limits shall be allowed for the completion of the various stages of the discussions. Discussions outlined in stages (1) and (2) above

should, if possible, take place within 24 hours after the request of the employee or the employee’s representative. At least 7 days should be allowed for all stages of the discussions to be finalised.

2.1.6 Emphasis shall be placed on a negotiated settlement. However, if the negotiation process is exhausted without the dispute being resolved, the

parties shall jointly or individually refer the matter to the Commission or the Australian Industrial Relations Commission for resolution. 2.1.7 In order to allow for peaceful resolution of grievances, the parties shall be committed to avoid stoppages of work, lockouts or any other bans or

limitations on the performance of work, while the procedures of negotiation and conciliation are being followed. 2.1.8 The parties shall ensure that all practices applied during the operation of the procedure are in accordance with safe working practices and

consistent with established custom and practice at the workplace.



PART 3 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 3.1 Contract of employment 3.1.1 Employees covered by this Schedule shall be advised in writing of their employment category upon appointment. In addition to the employment

categories listed in the Award, the Brisbane City Council may also engage employees on temporary or fixed term basis.

Employment categories are: (a) temporary

(b) fixed term

3.2 Temporary employment 3.2.1 A ‘temporary employee’ is one engaged to perform special projects or for a period not exceeding 12 months to take up work occasioned by a

permanent employee being absent on approved extended periods of leave e.g. sick leave, long service leave, workers’ compensation, maternity leave etc.

3.2.2 ‘Temporary employees’ may be used where the security and tenure of employment of additional staff required to meet peak work loads cannot

be guaranteed. 3.2.3 A temporary employee shall be notified in writing at the time of engagement of the approximate period of employment. In order to extend this

engagement by a further approximate period or periods, appropriate written notification must be given to the employee on each occasion clearly specifying the terms of such extension.

3.2.4 The employment of ‘temporary employees’ will not be used to avoid increasing staff requirements to meet developing work demands of a

permanent and continuous nature. 3.2.5 ‘Temporary employees’ shall be entitled to all award conditions and shall be paid rates prescribed by this award for permanent employees of the

same class. 3.3 Fixed term employment 3.3.1 A ‘Fixed term employee’ will be utilised where the employment need arises from a planned and budgeted project, provides services where

budgetary funding is not guaranteed from one financial year to the next, or, meets emergent peaks in demand where the use of labour hire or casual labour is less appropriate.

3.3.2 Fixed term employees shall be notified of the period of employment in writing, at the time of engagement. 3.3.3 Fixed term employment can be extended by agreement (in writing), under circumstances where projects are extended or delayed, for the life of

the project or vacancy. 3.3.4 Fixed term employees are not eligible to apply for internally advertised positions, however may apply for any externally advertised positions. PART 4 – WAGES AND WAGE RELATED MATTERS 4.1 Wages Weekly wage rates – An employee’s award rate of pay for each Wage Level is set out below and shall be paid for all purposes of this Schedule: 4.1.1 Wages

Total Minimum Rate of Pay Per Week Wage Group Award OAP EBA3 EBA3 Base Rate Total Rate $ $ $ $ Trades Services C14 79 431.40 82.50 450.40 532.90 Trades Services C13 82 448.10 82.50 464.80 547.30 Trades Services C12 87.4 470.60 82.50 487.90 572.40 Trades Services C11 92.4 491.50 82.50 513.90 595.90 Trades Services C10 100 525.20 82.50 549.60 632.10 Trades Services C9 105 546.10 82.50 574.40 656.90 Trades Services C8 110 566.90 82.50 599.10 681.60 Trades Services C7 115 585.80 82.50 623.60 706.10 Trades Services C6 125 627.50 82.50 673.00 755.50 Trades Services C5 130 647.80 82.50 697.70 780.20

NOTE: The rates of pay in this Schedule are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments.


4.2 Apprentice Wage Rates 4.2. Apprentice Wage Rates: EBA3 Base EBA3 final rate OAP $ $ $

Youth Apprentices Apprentice Trades Yr 1 219.80 239.00 19.20 Apprentice Trades Yr 2 302.30 328.50 26.20 Apprentice Trades Yr 3 412.20 448.40 36.20 Apprentice Trades Yr 4 494.60 537.90 43.30 Adult Apprentices Adult App. Yr1 = c14+app oap 450.40 469.60 19.20 Adult App. Yr2 = c14+app oap 450.40 476.60 26.20 Adult App. Yr3 = c14+app oap 450.40 486.60 36.20

Note: Trainees are engaged as per the Award, except as varied from time to time by the Order For Apprentices and Trainees Wages and Conditions (Excluding certain Queensland Government Entities) and Apprentices and Trainees Wages and conditions (Queensland Government Departments and Certain Entities).

4.3 Allowances 4.3.1 Over Award Payment: This Schedule gives effect to an agreement (by letter dated 17/11/1992) between the

parties to rationalise allowances and overaward components into a single overaward payment. The only additional allowances that are therefore available, and which may only be claimed where the employee meets the prerequisite conditions applicable to each such allowance, are the following.

4.3.2 Award Allowances:

• 15% Shift Allowance as per clause 6.5.5 of the Award • Leading Hand payments as per clause 5.8.21 of the Award • Tool Allowance as per clause 5.8.40 of the Award • Working in the Rain Allowance as per clause 5.8.45 of the Award • First Aid Allowance as per clause 5.8.15 of the Award • Meal Allowance as per clause 6.8 of the Award

4.3.3 Fares and Travelling Allowance:

(a) Regular shop, workshop or depot employees sent out to any job and who travel in the employer’s time shall be provided with appropriate transport or paid all fares actually paid by such employees, from shop, workshop or depot to job and from job to shop, workshop or depot:

(b) Regular shop or workshop employees sent out to any job on an ordinary working day and not travelling in the employer’s time shall be

paid, to compensate for excess fares and travelling time incurred;

• half an hour at the base rate for a C10 Trade Services employee, if travelling to and from places of work within the boundaries of Brisbane City Council

• one hour at the base rate for a C10 Trade Services employee if travelling to and from places of work outside of the Brisbane City Council boundaries.

(c) Payment for travelling time: The rate of pay for required travelling time shall be ordinary rates, except on Sundays and holidays when it

shall be time and a-half.

(d) Using Own Car – Any employee in receipt of an allowance as prescribed by clause 4.3.3 (b) (of Schedule 3) and who is required by direction of the employer to travel from job to job on the same day shall in addition to such allowance be paid all fares reasonably incurred covering travel from job where the employee commenced to the job on which the employee finished work for the day:

Provided that where an employer requests an employee to use their own car to effect such a transfer and such employee agrees to do so the employee shall be paid 65c per kilometre.

4.3.4 Exceptionally dirty and obnoxious engineering work allowance – will be available in the following circumstances: Where an engineering tradesperson or trades assistant is required to carry out an engineering task, (such as repairs including welding, fitting, machining on sewerage pumps, scrapers, pipes, digesters, centrifuges, motors, jetrodders and crusher plants), and comes into direct physical contact with sewerage and in carrying out the repair under these conditions, encounters these conditions on at least 2 days’ per week, then a payment of $18.10 per week will be paid to that employee.

4.3.5 Working in airlocks

(a) Employees of the Brisbane Water Business Unit covered by this Schedule who work in airlocks under air pressure shall be paid a remuneration of 75% in addition to the rates prescribed for the class of work for each day in which they so work.

(b) Such employees working underground, but not under air pressure other than the atmosphere, shall be paid not less than 20%, in addition to

their ordinary rate, employees covered by clause 3.2.5 (of Schedule 3) shall be entitled to the extra remuneration prescribed for the full number of ordinary working hours on each day in which they are so employed.

(c) Such employees whilst in receipt of extra remuneration under clauses 3.3.6(a) and (b) (of Schedule 3) shall not be entitled to any extra rate

for wet work under clause 3.5(42) of the Award or for dirt money under clause 3.5(9) or for underground work under clause 3.4(41) of the Award.



4.3.6 Shift work on Sewers

Employees performing sewerage construction work may work underground, at Award rates, on continuous shifts, corresponding to those worked by other underground workers: Provided that where continuous shifts are not required, shift work may be performed at such times as may be arranged, provided that each shift shall consist of 8 hours, bank to bank including three-quarters of an hour for crib on the surface, and provided that no employee shall be required to work night shift more than one week in 3, or afternoon shift more than one week in two.

PART 5 – HOURS OF WORK, BREAKS, OVERTIME, SHIFTWORK, WEEK END WORK 5.1 Spread of Hours 5.1.1 Day workers – The ordinary working hours of day working employees shall not exceed 38 hours per week or 7 hours 36 minutes per day to be

worked between 7.00 a.m. and 5.00 p.m. Monday to Friday inclusive, by agreement between the Union and the Brisbane City Council the ordinary hours may be worked over a fortnightly period of 9 consecutive days and not more than 8 hours 27 minutes shall be worked on any such day at ordinary rates.

5.1.2 Shift workers

(a) Subject to the following provisions the ordinary hours of work for shift workers shall not exceed 38 hours per week.

(b) The ordinary hours of work referred to in clause 5.1.2 (a) (of Schedule 3) may be exceeded in any week or weeks subject to the total

ordinary hours worked during any roster period not exceeding that number of hours ascertained by multiplying the number of weeks in the roster period by 38.

(c) The ordinary hours of work referred to in clause 5.1.2 (a) (of Schedule 3) may be worked according to a roster agreed upon between the

Union and the Brisbane City Council to suit the needs and circumstances of each establishment.

(d) Shift workers be allowed a crib break of 30 minutes during each shift for which no deduction of pay shall be made, such break shall be taken at a time and in such manner that it will not interfere with continuity of work where continuity is necessary.

5.1.3 Subject to the provisions for employees working in airlocks, the ordinary daily working hours for employees working in sewers (exclusive of

airlocks) shall not exceed 7.5 on Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays between the hours 8.00 a.m. and 4.00 p.m. Employees working in sewers shall be entitled to take three quarters of an hour for a meal (without deduction of pay) on all days.

PART 6 – RESERVED MATTERS 6.1 Call back 6.2 Stand-by 6.3 Emergency work”. Dated 6 June 2003 By the Commission, Operative Date: 1 October 2002 [L.S] E. EWALD, Amendment – Brisbane City Council Schedule Industrial Registrar Released: 6 June 2003 ###########################################################################################################################


Industrial Relations Act 1999 – s. 130 – award review

PRAWN AND OTHER SEAFOOD PROCESSING AWARD – STATE

(No. AR123 of 2002)

DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY 8 April 2003

AWARD REVIEW

After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the following Award be made, as from 2 June 2003.

PRAWN AND OTHER SEAFOOD PROCESSING AWARD – STATE 2003

PART 1 – APPLICATION AND OPERATION

1.1 Title

This Award is known as the Prawn and Other Seafood Processing Award – State 2003.

1.2 Arrangement

Subject Matter Clause No. PART 1 – APPLICATION AND OPERATION Title.............................................................................................................................................................................................................................1.1 Arrangement ...............................................................................................................................................................................................................1.2


Subject Matter Clause No. Date of operation ........................................................................................................................................................................................................1.3 Coverage.....................................................................................................................................................................................................................1.4 Definitions ..................................................................................................................................................................................................................1.5 Area of operation........................................................................................................................................................................................................1.6 Parties bound ..............................................................................................................................................................................................................1.7 PART 2 – FLEXIBILITY Enterprise flexibility...................................................................................................................................................................................................2.1 PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION Consultative mechanisms and procedures in the workplace .....................................................................................................................................3.1 Grievance and dispute settling procedure ..................................................................................................................................................................3.2 PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Employment categories ..............................................................................................................................................................................................4.1 Casual employment ....................................................................................................................................................................................................4.2 Pieceworkers ..............................................................................................................................................................................................................4.3 Juniors.........................................................................................................................................................................................................................4.4 Mixed functions..........................................................................................................................................................................................................4.5 Incidental or peripheral tasks .....................................................................................................................................................................................4.6 Anti-discrimination ....................................................................................................................................................................................................4.7 Termination of employment.......................................................................................................................................................................................4.8 Introduction of changes..............................................................................................................................................................................................4.9 Redundancy ................................................................................................................................................................................................................4.10 Continuity of service – transfer of calling .................................................................................................................................................................4.11 PART 5 – WAGES AND WAGE RELATED MATTERS Definition of classifications .......................................................................................................................................................................................5.1 Revised classification structure..................................................................................................................................................................................5.2 Wage rates ..................................................................................................................................................................................................................5.3 Allowances .................................................................................................................................................................................................................5.4 Payment of wages.......................................................................................................................................................................................................5.5 Superannuation...........................................................................................................................................................................................................5.6 PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK Hours of work.............................................................................................................................................................................................................6.1 Meal breaks ................................................................................................................................................................................................................6.2 Rest pauses .................................................................................................................................................................................................................6.3 Overtime .....................................................................................................................................................................................................................6.4 Shift work ...................................................................................................................................................................................................................6.5 PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS Annual leave...............................................................................................................................................................................................................7.1 Sick leave ...................................................................................................................................................................................................................7.2 Bereavement leave .....................................................................................................................................................................................................7.3 Long service leave......................................................................................................................................................................................................7.4 Family leave ...............................................................................................................................................................................................................7.5 Public holidays ...........................................................................................................................................................................................................7.6 PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK No provisions inserted in this Award relevant to this Part. PART 9 – TRAINING AND RELATED MATTERS Training program........................................................................................................................................................................................................9.1 PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES Clothing, equipment and tools ...................................................................................................................................................................................10.1 First aid.......................................................................................................................................................................................................................10.2 PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS Right of entry..............................................................................................................................................................................................................11.1 Time and wage records ..............................................................................................................................................................................................11.2 Posting of award.........................................................................................................................................................................................................11.3 Union encouragement ................................................................................................................................................................................................11.4 Provision for payroll deductions ................................................................................................................................................................................11.5 Schedule 1.3 Date of operation This Award takes effect from 2 June 2003.



1.4 Coverage 1.4.1 This Award applies to all employers engaged in Prawn and other Sea Food Processing and their employees working at heading, sorting, grading,

cutletting, processing, packing, freezing, storing, and handling of prawns and/or other sea foods and all other work in or in connection with or incidental to such work or services provided within the employer’s establishment which is not covered by the Fishery Employees’ Award – State 2003.

1.4.2 This Award shall apply throughout the State of Queensland. 1.4.3 As to the employers named in the Schedule to this Award the provisions of the Award are modified in accordance with the requirements of the

individual Orders listed in such Schedule. 1.5 Definitions 1.5.1 “The Act” means the Industrial Relations Act 1999 as amended or replaced from time to time. 1.5.2 “Commission” means the Queensland Industrial Relations Commission. 1.5.3 “Freezing Room” means and include any room excepting an ice room, the temperature of which is less than minus 1.6 degrees celsius. 1.5.4 “Union” means The Australian Workers’ Union of Employees, Queensland. 1.6 Area of operation For the purpose of this Award, the State of Queensland shall be divided into Divisions and Districts as set out below: 1.6.1 Divisions: Northern Division – That portion of the State along or north of a line commencing at the junction of the sea-coast with the 21st parallel of south latitude; then by that parallel of latitude due west to 147 degrees of each longitude; then by that meridian of longitude due south to 22 degrees 30 minutes of south latitude; then by that parallel of latitude due west to the western border of the State. Mackay Division – That portion of the State within the following boundaries: Commencing at the junction of the sea-coast with the 21st parallel of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due south to 22 degrees of south latitude; then by that parallel of latitude due east to the sea-coast; then by the sea-coast northerly to the point of commencement. Southern Division – That portion of the State not included in the Northern or Mackay Divisions. 1.6.2 Districts

(a) Northern Division:

Eastern District – That portion of the Northern Division along or east of 144 degrees 30 minutes of east longitude.

Western District – The remainder of the Northern Division. (b) Southern Division:

Eastern District – That portion of the Southern Division along or east of a line commencing at the junction of the southern border of the State with 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due north to the southern boundary of the Mackay Division.

Western District – The remainder of the Southern Division.

1.7 Parties bound This Award is legally binding upon the employees as prescribed by clause 1.4 and their employers, and the Union and its members. PART 2 – FLEXIBILITY 2.1 Enterprise flexibility 2.1.1 As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible

working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace.

2.1.2 The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of

matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions. 2.1.3 Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being

submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given. PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE SETTLING PROCEDURES 3.1 Consultative mechanisms and procedures in the workplace 3.1.1 To ensure productivity and efficiency in the workplace, a Consultation Committee shall be established and continued, to discuss at workplace

level all aspects of the Company’s operation, equipment, procedures, and occupational health and safety matters.


3.1.2 The Committee shall be comprised of equal numbers of management and employees from the workplace or a section, plus the Union organiser

shall be invited to attend. The minimum number of employee or management representatives from either an area or the workplace shall be 2. 3.1.3 The Committee shall meet regularly at suitable intervals, such as at the beginning of a season or every 2, 3 or 4 months, or more often if required

by a party indicating such in writing to the other parties by giving one week’s notice. 3.1.4 The outcome of the Committee discussions shall be displayed on the employee’s notice board within 2 days after each meeting.

3.2 Grievance and dispute settling procedure The matters to be dealt with in this procedure shall include all grievances or disputes between an employee and an employer in respect to any industrial matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to a single employee or to any number of employees. 3.2.1 In the event of an employee having a grievance or dispute the employee shall in the first instance attempt to resolve the matter with the

immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns alleged actions of the immediate supervisor the employee/s may bypass this level in the procedure.

3.2.2 If the grievance or dispute is not resolved under clause 3.2.1, the employee or the employee’s representative may refer the matter to the next

higher level of management for discussion. Such discussion should, if possible, take place within 24 hours after the request by the employee or the employee’s representative.

3.2.3 If the grievance involves allegations of unlawful discrimination by a supervisor the employee may commence the grievance resolution process

by reporting the allegations to the next level of management beyond that of the supervisor concerned. If there is no level of management beyond that involved in the allegation the employee may proceed directly to the process outlined at clause 3.2.5.

3.2.4 If the grievance or dispute is still unresolved after discussions mentioned in clause 3.2.2, the matter shall, in the case of a member of a Union, be

reported to the relevant officer of that Union and the senior management of the employer or the employer’s nominated industrial representative. An employee who is not a member of the Union may report the grievance or dispute to senior management or the nominated industrial representative. This should occur as soon as it is evident that discussions under clause 3.2.2 will not result in resolution of the dispute.

3.2.5 If, after discussion between the parties, or their nominees mentioned in clause 3.2.4, the dispute remains unresolved after the parties have

genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Commission in accordance with the provisions of the Act.

3.2.6 Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue. 3.2.7 The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed. 3.2.8 All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by the Commission with a

view to the prompt settlement of the dispute. 3.2.9 Any Order or Decision of the Commission (subject to the parties’ right of appeal under the Act) will be final and binding on all parties to the

dispute. 3.2.10 Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of

such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.

PART 4 – EMPLOYER AND EMPLOYEES’DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 4.1 Employment categories

4.1.1 Employees (other than casual employees) covered by this Award shall be advised in writing of their employment category upon appointment.

Employment categories are:

(a) full-time; (b) casual (as prescribed in clause 4.2); or (c) pieceworkers (as prescribed in clause 4.3).

4.2 Casual employment 4.2.1 A casual employee means a person is expressly engaged as such. The ordinary working hours shall be worked on any day of the week Monday

to Saturday inclusive: 4.2.2 A casual must be engaged for a minimum period of 2 hours’ work or be paid 2 hours’ pay in lieu thereof:

Provided that clause 4.2.2 shall not apply where work is unable to be performed through breakdown of machinery or other cause for which the employer cannot reasonably be held responsible.

4.2.3 A casual employee must be paid for ordinary hours worked at a rate of 1/40th of the weekly rate prescribed in clause 5.3 for the class of work

performed plus a loading of 23%. 4.3 Pieceworkers 4.3.1 A pieceworker shall mean an employee engaged on a piecework basis.



4.3.2 The rate for employees engaged on piecework shall be agreed upon between the employer and the Union, and such piecework rates shall be fixed so as to enable the average competent employee to earn not less than the weekly rate prescribed for adult employees performing such work plus 30%.

4.3.3 No employee who has been employed by an employer for more than 40 hours shall receive less wages than an amount proportionate to the

weekly rate of this Award according to the number of hours worked. 4.3.4 When a pieceworker is notified by ordinary ceasing time any day that their services will be required on the following day, such employee, on

turning up to work, shall be provided with a minimum of 2 hours’ work, or on starting work on any one day shall be provided with a minimum of 2 hours’ work or paid 2 hours’ pay in lieu thereof:

Provided that clause 4.3.4 shall not apply where work is unable to be performed through breakdown of machinery or other cause for which the employer cannot reasonably be held responsible.

4.4 Juniors 4.4.1 The proportion of juniors that may be employed shall not exceed one junior to every 2 adults in receipt of not less than the minimum adult rates. 4.5 Mixed functions Where any employee on any one day performs 2 or more classes of work to which a differential rate fixed by this Award is applicable, the employee, if employed for more than 4 hours on the class or classes of work carrying the higher rate shall be paid in respect of the whole time during which the employee works on that day at the same rate which shall be at the highest rate fixed by this Award in respect of any such classes of work, and if employed for 4 hours or less on the class or classes of work carrying the higher rate the employee shall be paid at such highest rate for 4 hours. 4.6 Incidental and peripheral tasks 4.6.1 Employees shall perform work as required by the employer provided that such work is reasonably within that employee’s limits of skills,

competence and training:

4.6.2 Provided further that employees shall use tools and equipment as required by the employer subject to appropriate training having been given.

4.6.3 Any direction issued by the employer pursuant to clauses 4.6.1 and 4.6.2 shall be consistent with the employer’s responsibility to provide a safe and healthy working environment.

4.7 Anti-discrimination

4.7.1 It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999 as varied from time to time, which includes:

(a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of any of the above attributes;

(b) sexual harassment; and

(c) racial and religious vilification.

4.7.2 Accordingly, in fulfilling their obligations under the grievance and dispute settling procedure in clause 3.2, the parties to this Award must take reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.

4.7.3 Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

4.7.4 Nothing in clause 4.7 is to be taken to affect:

(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991;

(b) an employee, employer or registered organization, pursuing matters of discrimination, including by application to the Human Rights and Equal Opportunity Commission/Anti-Discrimination Commission Queensland.

4.8 Termination of employment

4.8.1 Statement of employment

The employer shall, in the event of termination of employment, provide upon request to an employee who has been terminated a written statement specifying the period of employment and the classification or type of work performed by the employee.

4.8.2 Termination by employer

(a) In order to terminate the employment of an employee the employer shall give the following notice:

Period of Continuous Service Period of Notice

not more than 1 year ..............................................................................................1 week more than 1 year, but not more than 3 years ......................................................... 2 weeks more than 3 years, but not more than 5 years........................................................ 3 weeks more than 5 years................................................................................................... 4 weeks

(b) In addition to the notice in clause 4.8.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years’ continuous service, shall be entitled to an additional week’s notice.

(c) Payment in lieu of notice shall be made if the appropriate notice is not given:

Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.


(d) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used.

(e) The period of notice in clause 4.8.2(a) shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal, or in the case of casual, or seasonal employees, or to employees on daily hire, or employees engaged for a specific period of time or for a specific task or tasks.

(f) In order to terminate the employment of an employee in their first 3 months of employment (their probationary period) the employer is required to give the employee 2 days’ notice, or payment in lieu thereof.

4.8.3 Notice of termination by employee

The notice of termination required to be given by an employee shall be 2 days, save and except that there shall be no additional notice based on the age of the employee concerned. If an employee fails to give notice the employer shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate for the period of notice.

4.9 Introduction of changes

4.9.1 Employer’s duty to notify

(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their Union.

(b) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employers workforce or in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs:

Provided that where this Award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

4.9.2 Employer’s duty to discuss change

(a) The employer shall discuss with the employees affected and their Union, inter alia, the introduction of the changes referred to, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.

(b) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 4.9.1.

(c) For the purpose of such discussion, the employer shall provide in writing to the employees concerned and their Union, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees, and any other matters likely to affect employees:

Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the employer’s interests.

4.10 Redundancy

4.10.1 Discussions before terminations

(a) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and where relevant, their Union.

(b) The discussions shall take place as soon as it is practicable after the employer has made a definite decision which will invoke clause 4.10.1, and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to avert or mitigate the adverse effects of any terminations of the employees concerned.

(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their Union, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be carried out:

Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the employer’s interests.

4.10.2 Transfer to lower paid duties Where an employee is transferred to other duties for reasons set out in clause 4.10.1, the employee shall be entitled to the same period of notice of transfer the employee would have been entitled to if the employee’s employment had been terminated, and the employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rate of pay for the number of weeks of notice still owing. 4.10.3 Transmission of business

(a) Where a business is, whether before or after the date of this Award, transmitted from an employer (the “transmittor”) to another employer (the “transmittee”), and an employee who at the time of such transmission was an employee of the transmittor of the business, becomes an employee of the transmittee:

(i) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and (ii) the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of

the employee with the transmittee.

(b) “Business” includes trade, process, business or occupation and includes part of any such business and “transmission” includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and “transmitted” has a corresponding meaning.



4.10.4 Time off during notice period

(a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.10.1, the employee shall be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.

(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment,

the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.

4.10.5 Notice to Centrelink Where a decision has been made to terminate employees in the circumstances outlined in clause 4.10.1 the employer shall notify Centrelink thereof as soon as possible giving relevant information including a written statement of the reasons for the terminations, the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out. 4.10.6 Severance pay In addition to the period of notice prescribed for ordinary termination in clause 4.8.2, and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in clause 4.10.1 shall be entitled to the following amounts of severance pay:

Period of Continuous Service Severance Pay 1 year or less nil 1 year and up to the completion of 2 years..................................................... 4 weeks’ pay 2 years and up to the completion of 3 years ................................................... 6 weeks’ pay 3 years and up to the completion of 4 years ................................................... 7 weeks’ pay 4 years and over .............................................................................................. 8 weeks’ pay

“Weeks’ pay” means the ordinary time rate of pay for the employee concerned. 4.10.7 Superannuation benefits Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, such employee shall only receive under clause 4.10.6 the difference between the severance pay specified in that clause and the amount of the superannuation benefit such employee receives which is attributable to employer contributions only. If this superannuation benefit is greater than the amount due under clause 4.10.6 then the employee shall receive no payment under that clause. 4.10.8 Employee leaving during notice An employee whose employment is terminated for reasons set out in clause 4.10.1 may terminate such employment during the period of notice specified in clause 4.8.2, and, if so, shall be entitled to the same benefits and payments under clause 4.10 had such employee remained with the employer until the expiry of such notice: Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice. 4.10.9 Alternative employment An employer, in a particular case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee. 4.10.10 Employees with less than one year’s service Clause 4.10 shall not apply to employees with less than one year’s continuous service and the general obligation on employers should be no more than to give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment. 4.10.11 Employees exempted Clause 4.10 shall not apply:

(a) where employment is terminated as a consequence of misconduct on the part of the employee; (b) to employees engaged for a specific period of time or for a specific task or tasks; or (c) to casual employees.

4.10.12 Employers exempted Subject to an order of the Commission, in a particular redundancy case, clause 4.10 shall not apply to employers who employ less than 15 people. 4.10.13 Incapacity to pay An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription varied on the basis of the employer’s incapacity to pay. 4.11 Continuity of service – transfer of calling In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act as amended from time to time.


PART 5 – WAGES AND WAGE RELATED MATTERS

5.1 Definition of classifications

5.1.1 Cold Storage Hand shall mean an employee who is employed for more than 3 hours on any one day in a cold store.

5.2 Revised classification structures

5.2.1 The parties to this Award are committed to revising the existing classifications to create an Industry compatible and career-orientated Grading Structure that implements broadbanding based on the requirements of the Fishing and Seafood Industry.

5.2.2 As such the parties will finalise an agreed new career-orientated Grading Structure and associated definitions, and in doing so shall:

(a) establish participative mechanisms for the trialing of the new Grade Structure that will incorporate a monitoring and review of the trial;

(b) agree upon the criteria and mechanisms for determining movement between levels within the new career-orientated Grade Structure.

5.2.3 Accept in principle that the descriptions of job functions within a new Structure will be more broadly and Fishing and Seafood Industry based and generic.

5.2.4 Will co-operate in the transition from the existing classifications to the proposed new Structure to ensure that the transition takes place in an orderly manner without creating false expectations or disputation.

5.2.5 Affirm that wage increases arising from broadbanding and adjustment of minimum rates are subject to absorption into existing overaward payments.

5.2.6 Recognise that in order to increase the efficiency, productivity and international competitiveness of the Fishing and Seafood Industry, a greater commitment to training and skill development is required.

5.3 Wage rates

5.3.1 The minimum rates of wages payable to the following classes of employees in the Southern Division, Eastern District shall be:

Award Rate Per Week $ Supervisor..................................................................................................... 465.30 Employees engaged in the handling and/or heading and/or grading and/or processing and/or packing of prawns and/or other sea foods ................................................................. 448.90 Freezers ........................................................................................................ 458.20 Cold storage hands ....................................................................................... 452.40 All other adult employees not elsewhere classified ............................................................................... 443.90

NOTE: The rates of pay in this award are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.

Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments.

5.3.2 Juniors

Percentage of minimum adult rate for the appropriate Division or District % Under 17 years of age ......................................................................................55 17 and under 18 years of age ...........................................................................65 18 and under 19 years of age ...........................................................................75 And thereafter the adult rate.

Junior rates shall be calculated in multiples of 10 cents with any result of 5 cents or more being taken to the next highest 10 cent multiple:

Provided always that all employees of whatever age employed on heading and/or packing of prawns, shall receive the adult rate of wages as prescribed in clause 5.3.

5.3.3 Leading hand allowance

Any person in charge of 5 or more employees shall be entitled to an additional $12.80 per week.

5.3.4 Divisional and district allowances

Employees employed in the following districts shall be paid the following amounts in addition to the rates of wages prescribed by clause 5.3 for the division or district in which they are located:

Adults Per Week $

Mackay Division.............................................................................................0.90 Eastern District, Northern Division....................................... ....................... 1.05 Western District, Southern Division ............................................................. 1.05 Western District, Northern Division ............................................................. 3.25



5.3.5 Early work and late work allowance All time worked by day workers in ordinary time before 7.00 a.m. or after 5.00 p.m. shall be paid for at ordinary rates plus 25%.

5.4 Allowances 5.4.1 Locality allowance In addition to the rates elsewhere prescribed a locality allowance of $2.50 per day shall be paid to employees employed within that area of the mainland of the State, north or west of a line commencing at 18 degrees latitude at the Northern Territory/Queensland border then eastward to 142 degrees longitude and then due north along that line to the intersection of the Queensland Coastline. This allowance shall be paid on each day they are employed provided that:

(a) In the instance of weekly employees the allowance shall be not less than $15 where such an employee works on 5 or 6 days in any period of

7 consecutive days; or (b) In the instance of other than weekly employees such allowance shall not be payable in respect of any day where the employee concerned

works less than 8 hours; (c) No employee shall be entitled to receive more than $15 under clause 5.4.1 in any weekly pay period;

The allowance shall not be taken into account in the computation of overtime or penalty rates. 5.4.2 Container allowance Where employees are engaged in the physical packing and/or unpacking and checking of containers for export/import from cold storage the following additional allowance shall be paid:

(a) Packing and/or unpacking – $1.78 per container. (b) Checking – $5.07 per container.

5.4.3 Fork lift

Employees required to operate a fork lift in addition to normal duties shall be paid an additional 41.4 cents per hour for all operating time with a minimum of 82 cents on any one day.

5.4.4 Overaward “Overaward” payment is defined as the amount in rates of pay which an employee would receive in excess of the minimum award wage as prescribed in this Award for the classification in which such employee is engaged which applied immediately prior to the date of operation of this amendment: Provided that this definition shall exclude overtime, shift allowances, penalty rates, expense related allowances, industry allowances, disability allowances, vacation allowances, special rates or allowances, responsibility allowances, or any other ancillary payments of a like nature described by this Award. 5.5 Payment of wages 5.5.1 Wages shall be paid weekly in the employer’s time. 5.5.2 Where practicable and where mutually agreed between the employer and employee, wages may be paid by electronic funds transfer into that

employee’s nominated bank or building society account. 5.5.3 Upon termination of employment wages shall be paid at time of termination or by the employer dispatching the same on the next working day.

5.6 Superannuation 5.6.1 Application – In addition to any other entitlement pursuant to this Award, eligible employees (as defined in clause 5.6.3(b)) shall be entitled to

superannuation payments made by the employer into an approved occupational superannuation fund in accordance with the provisions of clause 5.6.

5.6.2 Contributions

(a) The employer shall contribute into the approved fund a minimum of 3% of ordinary time earnings per week on behalf of each eligible employee.

(b) Contributions for casual employees shall be on the same basis as weekly employees, or pro rata if less than a full week is worked, including

casual loading. (c) The employer may suspend for the applicable period contributions made on behalf of an employee if the employee is absent from the

workplace other than for annual leave, long service leave, public holidays, paid sick leave, or workers compensation for a period of not more than 26 weeks.

(d) No additional amount shall be paid by the employer for the establishment, administration, management or any other changes in connection

with the fund. (e) The employer shall remit contributions to the approved fund on a monthly basis. (f) Eligible employees may personally contribute additional amounts to the fund in addition to the minimum employer contributions as set out

in clause 5.6.2 by way of voluntary contribution, and the employer shall (at the employee’s written request) make arrangements for authorised deductions from the employee’s pay to be forwarded to the administrators of the fund.


5.6.3 Definitions

(a) “The approved fund” shall mean:

(i) The Australian Rural Industries Superannuation Fund known as “AUSTSAFE” established by a Deed of Trust dated the 31st day of August, 1988 and Rules thereto as amended.

(ii) In relation to any particular employer, any other established fund to which that employer was already actually making regular and

genuine contributions in accordance with clause 5.6.2 on behalf of at least a significant number of that employer’s employees covered by this Award as at 29 September 1989, and continues to make such contributions:

(b) “Eligible employee” shall mean any employee having served for 4 calendar weeks in employment (pro rata in the case of a casual

employee), who shall have occupational superannuation payments paid by the employer retrospective to the date of commencement of employment.

(c) “Ordinary time earnings” shall mean and include:

(i) the weekly pay for ordinary hours worked, including any overaward payments; (ii) any “all purpose” allowances or amounts including leading hand allowance; and (iii) shift allowances, and additional amounts paid for shift work and ordinary time worked on Saturdays and Sundays.

(d) The employer and employee may agree to have the employee’s superannuation contributions made to an approved superannuation fund,

other than those specified in this Award.

(i) Any such agreement must be recorded in writing and signed by the employer and employee and kept on the employee’s file. (ii) A person must not coerce someone else to make an agreement. (iii) Such agreement, where made, will continue until such time as the employer and employee agree otherwise, and shall be made

available to relevant persons for the purposes of sections 371 and 373 (inspection of time and wage records) of the Act. (iv) Any dispute arising out of this process will be handled in accordance with the grievance and dispute settling procedure as contained

in clause 3.2. 5.6.4 General Nothing in clause 5.6 shall act to diminish the rights and responsibilities of the trustees of the fund as set out in accordance with the deed of trust and rules thereto as amended. PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK 6.1 Hours of work 6.1.1 Day workers The ordinary hours of labour shall be 40 per week to be worked 8 hours per day on any 5 days between Monday to Saturday inclusive and shall be worked between the hours of 6 a.m. and 6 p.m. Working time shall be continuous except for meal breaks and rest pauses. 6.2 Meal breaks 6.2.1 All employees other than shift workers, shall be allowed not less than 30 minutes nor more than one hour for a meal which shall be in the

employees’ time and shall be commenced not later than during the 5th hour from ordinary commencing time. 6.2.2 Where more than one shift per day is worked, an unbroken 30 minutes shall be allowed for crib in the employer’s time during each shift in such

a manner as not to interfere with the continuity of work. 6.3 Rest pauses 6.3.1 All employees shall be entitled to a rest pause of 10 minutes’ duration in the first and second half of the employees’ daily work:

Provided that such rest pauses shall be taken at such times as will not interfere with continuity of work where continuity is necessary.

6.3.2 Employees who are working in a temperature not above minus 1.6 degrees celsius shall be allowed 4 periods of 10 minutes each day in addition

to the recognised smokos, but such extra period shall be so arranged that sufficient employees remain in the department to carry on the work:

Provided that rest pauses shall not be eliminated, but where agreed between the employer and the majority of employees in a section or a department, and subject to this local agreement being ratified by the Union, periods of work may be re-arranged so that there is less disruption to certain work by moving and/or combining the rest pauses.

6.4 Overtime 6.4.1 All time worked by an employee before the employees ordinary starting time or after the employees ordinary ceasing time or in excess of 8

hours in any one day or 40 on any one week or outside the ordinary working hours shall be deemed to be overtime. 6.4.2 All overtime, except as hereinafter provided, shall be paid for at one and a-half times the ordinary rate for the first 3 hours and double time

thereafter. 6.4.3 Overtime worked by shift workers shall be paid for at the rate of double time.

6.4.4 All time worked by employees other than shift workers on Sundays shall be paid for at the rate of double time, with a minimum of 2 hours’ work or payment therefore.



6.4.5 All time in excess of 8 hours per day or 40 hours per week Monday to Saturday inclusive for casual employees shall be regarded as overtime and paid for at the rate of time and a-half for the first 3 hours and double time thereafter.

6.4.6 Any employee who is required to continue working for more than one hour after the employees ordinary ceasing time shall be allowed 30

minutes for a meal after the first hour worked and, also 30 minutes after each further 4 hours worked provided work is to continue thereafter. 6.4.7 Meal allowance Any employee called upon to work overtime for more than one hour after the employees ordinary ceasing time shall be paid an allowance of $7.50 for a meal, or shall be supplied by the employer with a reasonable meal in lieu of such payment, in respect of each meal break allowed during such overtime as provided for in clause 6.4.6. 6.4.8 Fatigue break An employee who works so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day that the employee has not at least 10 consecutive hours off duty between those times shall, subject to clause 6.4.8 be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instructions of the employer such an employee resumes or continues work without having had such 10 consecutive hours off duty, the employee shall be paid double rates until they are released from duty for such period and the employee shall then be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence: Provided that where an employee is recalled to work overtime and works not more than 2 hours’ overtime, clause 6.4.8 shall not apply. The provisions of clause 6.4.8 shall apply in the case of shift workers who rotate from one shift to another as if 8 hours were substituted for 10 hours when overtime is worked:

(a) For the purpose of changing shift rosters; or (b) Where a shift worker does not report for duty; or (c) Where a shift is worked by arrangement between the employees themselves.

6.5 Shift work 6.5.1 Shift allowances (a) In addition to the wage rates prescribed by clause 5.3, shift workers shall be paid the following afternoon and night shift allowances for each

afternoon or night shift worked:

(i) Afternoon shift allowance:

The percentage allowance is 12.5% or $9.70 per shift (whichever is the greater).

(ii) Night shift allowance:

The percentage allowance is 15% or $9.70 per shift (whichever is the greater). (b) It is a condition of this Award that no employee is disadvantaged as a result of this change from a flat rate shift allowance to a percentage

shift allowance. (c) Shift allowance(s) shall not apply to shift work performed on a Saturday or Sunday. All ordinary time worked by shift workers between

midnight Friday and midnight Saturday shall be paid for at the rate of time and a-half.

For the purposes of clause 6.5.1 the percentage which is quoted shall be the amount which is payable for each shift in addition to the employee’s ordinary time wage rate.

6.5.2 For the purposes of clause 6.5: (a) “Afternoon Shift” shall mean any shift finishing after 6.00 p.m. and at or before midnight;

(b) “Night Shift” shall mean any shift finishing after midnight and at or before 8.00 a.m. or where the majority of hours worked in the shift falls between midnight and 8.00 a.m.; and

6.5.3 Extra week-end payments Where shift work is performed, one and a-half times ordinary rates shall be paid from midnight Friday to midnight Sunday. PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 7.1 Annual leave 7.1.1 Every employee (other than a casual employee) shall at the end of each year of their employment be entitled to annual leave on full pay as

follows:

(a) not less than 5 weeks if employed on shift work where 3 shifts per day are worked over a period of 7 days per week; and (b) not less than 4 weeks in any other case.


7.1.2 Such annual leave is exclusive of any public holiday which may occur during the period of that annual leave and (subject to clause 7.1.5) must

be paid for by the employer in advance:

(a) in the case of any and every employee in receipt immediately prior to that leave of ordinary wages at a rate in excess of the ordinary wages payable under clause 5.3, at that excess rate; and

(b) in every other case, at the ordinary time rate of pay payable under clause 5.3 to the employee concerned immediately prior to that leave.

7.1.3 If the employment of any employee is terminated at the expiration of a full year of employment, the employer shall be deemed to have given the leave to the employee from the date of the termination of the employment and shall immediately pay to the employee in addition to all other amounts due to the employee, their pay, calculated in accordance with clause 7.1.5, for 4 weeks and also their ordinary pay for any public holiday occurring during such period of 4 weeks.

7.1.4 If the employment of any employee is terminated before the expiration of a full year of employment, such employee shall be paid, in addition to all other amounts due to the employee, an amount equal to 1/12th of their pay for the period of their employment calculated in accordance with clause 7.1.5.

7.1.5 Calculation of annual leave pay

In respect to annual leave entitlements to which clause 7.1 applies, annual leave pay (including any proportionate payments), shall be calculated as follows:

(a) Shift workers – Subject to clause 7.1.5(c), the rate of wage to be paid to a shift worker shall be the rate payable for work in ordinary time

according to the employee’s roster or projected roster, including Saturday, Sunday or public holiday shifts. (b) Leading hands etc. – Subject to 7.1.5(c), leading hand allowances and amounts of a like nature otherwise payable for ordinary time worked

shall be included in the wages to be paid to employees during annual leave. (c) All employees – Subject to the provisions of clause 7.1.5(d), in no case shall the payment by an employer to an employee be less than the

sum of the following amounts:

(i) the employee’s ordinary wage rate as prescribed in clause 5.3 for the period of the annual leave (excluding shift premiums and weekend penalty rates);

(ii) leading hand allowance or amounts of a like nature; (iii) a further amount calculated at the rate of 17 1/2% of the amounts referred to in clauses 7.1.5(c)(i) 7.1.5(c)(ii).

(d) Clause 7.1.5(c) does not apply to: (i) any period or periods of annual leave:

– exceeding 5 weeks in the case of employees employed in a calling where 3 shifts per day are worked over a period of 7 days per week; or

– exceeding 4 weeks in any other case; or

(ii) employers who are already paying an annual leave bonus, loading or other annual leave payment which is not less favourable to employees.

7.1.6 Unless the employee agrees otherwise, the employer must give the employee at least 14 days’ notice of the date from which the employee’s

annual leave will be taken. 7.1.7 Except as provided in clause 7.1.4, it shall not be lawful for the employer to give or for any employee to receive payment in lieu of annual leave. 7.2 Sick leave 7.2.1 Entitlement

(a) Every employee, except casuals, pieceworkers, and school-based apprentices and trainees, is entitled to 8 days’ sick leave for each completed year of their employment with their employer.

(b) This entitlement will accrue at the rate of one day’s sick leave after each 6 weeks of employment. (c) Payment for sick leave will be made based on the ordinary number of hours that would have been worked if the employee were not absent

on sick leave. (d) Sick leave may be taken for part of a day. (e) Sick leave shall be cumulative, but unless the employer and employee otherwise agree, no employee shall be entitled to receive, and no

employer shall be bound to make, payment for more than 13 weeks’ absence from work through illness in any one year. (f) Part-time employees accrue sick leave on a proportional basis.

7.2.2 Employee must give notice. The payment of sick leave is subject to the employee promptly advising the employer of the employee’s absence and its expected duration. 7.2.3 Evidence supporting a claim When the employee’s absence is for more than 2 days the employee is required to give the employer a doctor’s certificate, or other reasonably acceptable evidence, about the nature and approximate duration of the illness.



7.2.4 Accumulated sick leave An employee’s accumulated sick leave entitlements are preserved when:

(a) The employee is absent from work on unpaid leave granted by their employer; (b) The employer or employee terminates the employee’s employment and the employee is re-employed within 3 months; or (c) The employee’s employment is terminated because of illness or injury and the employee is re-employed by the same employer without

having been employed in the interim. The employee accumulates sick leave entitlements whilst absent from work on paid leave granted by the employer. 7.2.5 Workers’ compensation Where an employee is in receipt of workers’ compensation, the employee is not entitled to payment of sick leave. 7.3 Bereavement leave 7.3.1 Full-time and part-time employees Full-time and part-time employees shall, on the death of a member of their immediate family or household in Australia, be entitled to paid bereavement leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to the satisfaction of the employer. 7.3.2 Long-term casual employees

(a) A long-term casual employee is entitled to at least 2 days’ unpaid bereavement leave on the death of a member of the person’s immediate family or household in Australia.

(b) A “long-term casual employee” is a casual employee engaged by a particular employer, on a regular and systematic basis, for several

periods of employment during a period of at least one year immediately before the employee seeks to access an entitlement under clause 7.3.2.

7.3.3 “Immediate family” includes:

(a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and (b) A child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent,

grandparent, grandchild or sibling of the employee or spouse of the employee. 7.3.4 Unpaid leave An employee with the consent of the employer, may apply for unpaid leave when a member of the employee’s immediate family or household in Australia dies and the period of bereavement leave entitlement provided above is insufficient. 7.4 Long service leave All employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2, Part 3, sections 42-58 of the Act as amended from time to time. 7.5 Family Leave The provisions of the Family Leave Award apply to and are deemed to form part of this Award. 7.5.1 It is to be noted that:

(a) part-time work can be performed by agreement in the circumstances specified in the Family Leave Award; (b) a copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act.

7.5.2 The Family Leave Award also provides for the terms and conditions of leave associated with:

(a) Maternity leave (b) Parental leave (c) Adoption leave (d) Special responsibility leave for the care and support of the employee’s immediate family or household.

7.6 Public holidays 7.6.1 All work done by any employee on:

– the 1st January; – the 26th January; – Good Friday; – Easter Saturday (the day after Good Friday);


– Easter Monday; – the 25th April (Anzac Day); – The Birthday of the Sovereign; – Christmas Day; – Boxing Day; or – any day appointed under the Holidays Act 1983, to be kept in place of any such holiday

will be paid for at the rate of double time and a-half with a minimum of 4 hours. 7.6.2 Labour Day All employees (other than casual employees) covered by this Award shall be entitled to be paid a full day’s wages for Labour Day (the first Monday in May or other day appointed under the Holidays Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any employee concerned actually works on Labour Day, such employee shall be paid a full day’s wage for that day and in addition a payment for the time actually worked by the employee at one and a-half times the ordinary rate prescribed for such work with a minimum of 4 hours. 7.6.3 Annual show All work done by employees in a district specified from time to time by the Minister by notification published in the Gazette on the day appointed under the Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal city or town, as specified in such notification of such district shall be paid for at the rate of double time and a-half with a minimum of 4 hours. 7.6.4 Double time and a-half For the purposes clause 7.6, “double time and a-half” shall mean one and a-half day’s wages in addition to the employee’s ordinary time rate of pay or pro rata if there is more or less than a day. All time worked on any of the aforesaid holidays outside the ordinary starting and ceasing times prescribed by this Award for the day of the week on which such holiday falls shall be paid for at double the rate prescribed by the Award for such time when worked outside the ordinary starting and ceasing times on an ordinary working day. 7.6.5 Stand down Any and every employee who, having been dismissed or stood down by the employer during the month of December in any year, shall be re-employed by that employer at any time before the end of the month of January in the next succeeding year shall, if that employee shall have been employed by that employer for a continuous period of 2 weeks or longer immediately prior to being so dismissed or stood down, be entitled to be paid and shall be paid by the employer (at the ordinary rate payable to that employee when so dismissed or stood down) for any one or more of the following holidays, namely, Christmas Day, Boxing Day, and the first day of January occurring during the period on and from the date of the employees dismissal or standing down to and including the date of their re-employment as aforesaid. Each of the holidays prescribed by clause 7.6, or other holidays prescribed as such from time to time by proclamation, shall be of 24 hours’ duration and shall be deemed to occur from the time of commencement of the day shift on the morning of the public holiday to the commencement of the day shift on the next following day. PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK NOTE: No provisions inserted in this Award relevant to this Part. PART 9 – TRAINING AND RELATED MATTERS 9.1 Training program 9.1.1 The parties to this Award acknowledge that varying degrees of training are provided to employees in the Fishing and Seafood Industry via both

internal on-the-job training and also through external training facilities. To this end, the Parties through consultation at all levels shall develop a training program consistent with:

(a) the current and future skill needs of the Industry; (b) the size, structure and nature of the operations of the Industry; (c) the need to develop vocational skills relevant to the industry through both industry courses and courses conducted by accredited educational

institutions and providers.

Accordingly, the parties commit themselves to: (d) developing a more highly skilled and flexible workforce; (e) providing employees with career opportunities through appropriate training to acquire additional skills; (f) developing co-ordinated training programs designed to cater for the new broadbanded Grading Structure with career-path advancement; and (g) removing barriers to the utilisation of skills acquired.

PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES 10.1 Clothing, equipment and tools 10.1.1 The employer shall either provide waterproof aprons and gumboots or pay an allowance at the rate of $1.00 per week for gumboots and 35 cents

per week for aprons.



10.1.2 All employees engaged on the heading and/or grading and/or shelling and/or sorting and/or packing of prawns shall be supplied by the employer, free of charge, with good quality rubber gloves. The number of pairs of rubber gloves supplied to each such employee shall not be less than 2, and shall be sufficient to allow the employees to have a clean dry pair of rubber gloves to don at the commencement of work for the day and at the resumption of work after each meal break.

10.1.3 The employer shall replace, free of charge to the employee, any damaged rubber glove immediately an employee reports such damage. 10.1.4 The employer shall at all times have available for the use of employees the following items:

(a) Barrier cream; (b) Hexacholoraphene (trade name Phisohex) or other suitable chemical, being a disinfectant for the washing of rubber gloves and hands, same

to be approved by the Department of Health. 10.1.5 Suitable facilities shall be provided on the job for drying of gloves after washing. A damaged glove shall be a glove that has been holed so as to

allow entry of any substance to the employee’s hands. 10.1.6 Suitable freezer suits, gloves and boots shall be provided for employees working in freezing rooms. 10.1.7 Head coverings shall be provided free of cost to an employee requested to wear same and the employee shall wear same. 10.1.8 Any protective clothing issued will remain the property of the employer and the employee shall take reasonable care of such clothing (fair wear

and tear excepted), and if the employee fails to take reasonable care of, or fails to return such issue, the employer may recover the value of such clothing from any monies payable to the employee. Any clothing issued may be marked (not disfigured) by the employee for identification purposes.

10.1.9 Boiling water The employer shall provide boiling water for the use of the employees during the meal break or rest pauses. 10.2 First aid The employer shall provide and maintain in a central position at the works so as to be at all times readily available for the use of the employees suitable first-aid equipment and requisites as required by the Workplace Health and Safety Act 1995. PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS Preamble Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are advised to refer to sections 366, 372 and 373 of the Act as amended from time to time. 11.1 Right of entry 11.1.1 Authorised industrial officer

(a) An “Authorised industrial officer” is any Union official holding a current authority issued by the Industrial Registrar. (b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union.

11.1.2 Entry procedure

(a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as:

(i) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and (ii) shows their authorisation upon request.

(b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent.

(c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry. (d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a

trespasser. 11.1.3 Inspection of records

(a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act. (b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee:

(i) is ineligible to become a member of the Union; or (ii) is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or (iii) has made a written request to the employer that they do not want their record inspected.

(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer. (d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by

an authorised industrial officer.


11.1.4 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:

(a) matters under the Act during working or non-working time; and (b) any other matter with a member or employee eligible to become a member of the Union, during non-working time.

11.1.5 Conduct An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry. 11.2 Time and wages record 11.2.1 An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period

for each employee, including apprentices and trainees:

(a) the employee’s award classification; (b) the employer’s full name; (c) the name of the award under which the employee is working; (d) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and

details of work breaks including meal breaks; (e) a full-time, daily or hourly wage rate – details of the wage rate for each week, day, or hour at which the employee is paid; (f) the gross and net wages paid to the employee; (g) details of any deductions made from the wages; and (h) contributions made by the employer to a superannuation fund.

11.2.2 The time and wages record must also contain:

(a) the employee’s full name and address; (b) the employee’s date of birth; (c) details of sick leave credited or approved, and sick leave payments to the employee; (d) the date when the employee became an employee of the employer; (e) if appropriate, the date when the employee ceased employment with the employer; and (f) if a casual employee’s entitlement to long service leave is worked out under section 47 of the Act – the total hours, other than overtime,

worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year. 11.2.3 The employer must keep the record for 6 years. 11.2.4 Such records shall be open to inspection during the employer’s business hours by an inspector of the Department of Industrial Relations, in

accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act. 11.3 Posting of award A copy of this Award shall be exhibited in a conspicuous and convenient place on the premises of the employer. 11.4 Union encouragement Clause 11.4 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union. 11.4.1 Documentation to be provided by employer At the point of engagement, an employer to whom this Award applies shall provide employees with a document indicating that a Statement of Policy on Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by each employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. 11.4.2 Union delegates Union delegates and job representatives have a role to play within a workplace. The existence of accredited union delegates and/or job representatives is encouraged. The employer shall not unnecessarily hinder accredited union delegates and/or job representatives in the reasonable and responsible performance of their duties. 11.4.3 Deduction of union fees Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of union fees for employees who signify in writing to their employer, their desire to have such membership fees deducted from their wages.



11.5 Provision for payroll deductions Deductions from wages may be made from employee’s contributions to sickness and accident funds, medical funds, group assurance or for any other purpose for the benefit of employees for which the consent in writing of the employee concerned has been obtained. The employer shall, on request in writing by any employee, pay to the Union, out of any money due to the employee, in respect of wages, the annual contribution of such employee as a member of the Union.

Schedule

List of employers with 2nd Tier Orders which to Varying Degrees Modify the Provisions of this Award EMPLOYER CASE NO. DATE OF ORDER Permanent Heads of Queensland Government Departments B122/88 1. 8.88 Dated 8 April 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 June 2003

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Industrial Relations Act 1999 – s. 130 – award review

QUEENSLAND FIRE SERVICE INTERIM AWARD – STATE

(No. AR115 of 2002) DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY 8 April 2003

AWARD REVIEW

After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the following Award be made, as from 2 June 2003.

QUEENSLAND FIRE AND RESCUE SERVICE INTERIM AWARD – STATE 2003 PART 1 – APPLICATION AND OPERATION 1.1 Title This Award is known as the Queensland Fire and Rescue Service Interim Award – State 2003. 1.2 Arrangement Subject Matter Clause No. PART 1 – APPLICATION AND OPERATION Title.............................................................................................................................................................................................................................1.1 Arrangement ...............................................................................................................................................................................................................1.2 Date of operation ........................................................................................................................................................................................................1.3 Award coverage..........................................................................................................................................................................................................1.4 Area of operation........................................................................................................................................................................................................1.5 Parties bound ..............................................................................................................................................................................................................1.6 Definitions ..................................................................................................................................................................................................................1.7 PART 2 – FLEXIBILITY Enterprise flexibility...................................................................................................................................................................................................2.1 PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION Disputes and grievance procedures............................................................................................................................................................................3.1 PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Contract of employment.............................................................................................................................................................................................4.1 Part-time employment ................................................................................................................................................................................................4.2 Temporary employment .............................................................................................................................................................................................4.3 Termination of employment.......................................................................................................................................................................................4.4 Termination of employment, introduction of change and redundancy .....................................................................................................................4.5 Performance of higher duties .....................................................................................................................................................................................4.6 Anti-discrimination ....................................................................................................................................................................................................4.7


Subject Matter Clause No. PART 5 – WAGES AND WAGE RELATED MATTERS Classification and pay system ....................................................................................................................................................................................5.1 Generic level descriptors............................................................................................................................................................................................5.2 Salaries .......................................................................................................................................................................................................................5.3 Allowances .................................................................................................................................................................................................................5.4 Payment of wages.......................................................................................................................................................................................................5.5 Occupational superannuation .....................................................................................................................................................................................5.6 PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK Hours of work.............................................................................................................................................................................................................6.1 Overtime .....................................................................................................................................................................................................................6.2 Meal breaks ................................................................................................................................................................................................................6.3 Rest pauses .................................................................................................................................................................................................................6.4 Shift work ...................................................................................................................................................................................................................6.5 Call-back.....................................................................................................................................................................................................................6.6 PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS Annual leave...............................................................................................................................................................................................................7.1 Sick leave ...................................................................................................................................................................................................................7.2 Long service leave......................................................................................................................................................................................................7.3 Family leave ...............................................................................................................................................................................................................7.4 Bereavement leave .....................................................................................................................................................................................................7.5 Public holidays ...........................................................................................................................................................................................................7.6 PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK Fares and travelling ....................................................................................................................................................................................................8.1 PART 9 – TRAINING AND RELATED MATTERS Training, learning and development ..........................................................................................................................................................................9.1 Training arrangements................................................................................................................................................................................................9.2 PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES Uniforms.....................................................................................................................................................................................................................10.1 Amenities and quarters...............................................................................................................................................................................................10.2 PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS Right of entry..............................................................................................................................................................................................................11.1 Time and wages record ..............................................................................................................................................................................................11.2 Union encouragement ................................................................................................................................................................................................11.3 Union delegates ..........................................................................................................................................................................................................11.4 Industrial relations education leave............................................................................................................................................................................11.5 Award posting ............................................................................................................................................................................................................11.6 1.3 Date of operation This Award takes effect from 2 June 2003. 1.4 Award coverage This Award shall apply to employees of the Queensland Fire and Rescue Service whose rates of pay are prescribed herein and to the Commissioner of Fire Service as employer in relation to such employees: Provided that this Award shall not apply to volunteer or auxiliary officers of the Queensland Fire and Rescue Service. 1.5 Area of operation For the purpose of this Award, the Divisions and Districts shall be as follows: 1.5.1 Divisions

Northern Division – That portion of the State along or north of a line commencing at the junction of the sea coast with the 21st parallel of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude due south to 22 degrees 30 minutes of south latitude; then by that parallel of latitude due west to the western border of the State. Mackay Division – That portion of the State within the following boundaries:

Commencing at the junction of the sea coast with the 21st parallel of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due south to 22 degrees of south latitude; then by that parallel of latitude due east to the sea-coast; then by the sea coast northerly to the point of commencement.

Southern Division – That portion of the State not included in the Northern or Mackay Divisions.



1.5.2 Districts

Northern Division: Eastern District – That portion of the Northern Division along or east of 144 degrees 30 minutes of east longitude. Western District – The remainder of the Northern Division. Southern Division: Eastern District – That portion of the Southern Division along or east of a line commencing at the junction of the southern border of the State with 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due north to the southern boundary of the Mackay Division. Western District – The remainder of the Southern Division.

1.6 Parties bound This Award is legally binding upon the employees as prescribed by clause 1.4 and their employer, and the United Firefighters’ Union of Australia, Union of Employees, Queensland, and the Queensland Fire Service Senior Officers’ Association, Union of Employees and their members. 1.7 Definitions 1.7.1 The “Act” means the “Industrial Relations Act 1999” as amended or replaced from time to time. 1.7.2 “Classification Level” shall comprise a number of Pay Points through which employees will be eligible to progress. 1.7.3 “Commission” means the Queensland Industrial Relations Commission. 1.7.4 “Commissioner” means the Commissioner of Queensland Fire and Rescue Service or the Commissioner’s delegate. 1.7.5 “Continuous Shift Work” means a roster pattern that continually provides for work to be perform over a period of 24 hours a day, 7 days per

week, 365 days per year. 1.7.6 “Eligible Employee” means an employee of the Queensland Fire and Rescue Service who is employed under this Award.

1.7.7 “FPO” means Fire Protection Officer. 1.7.8 “Generic Level Descriptor” means a broad statement of the duties, skills and responsibilities indicative of a given Classification Level. 1.7.9 “Ordinary Time Earnings” means the applicable classification rate under this Award plus divisional and district parities and shift and weekend

penalty rates in relation to those employees who are entitled to such penalties. 1.7.10 “Part-time Employee” means an employee engaged as such and appointed to work on a regular basis to work a set amount of hours fewer than

those prescribed for full-time employees. 1.7.11 “Pay Point” “PP” means the specific rate of remuneration payable to employees within a Classification Level. 1.7.12 “Shift Work” means a roster pattern that consistently provides for work to be performed 7 days per week, which may include night shifts, week-

ends and public holidays.

1.7.13 “Superannuation Fund” means “The Queensland Fire and Rescue Services Superannuation Plan – Accumulation Account”, Q Super or Go Super or any other scheme as approved by the Governor in Council in accordance with the Queensland Fire and Rescue Service Act 1990.

1.7.14 “Temporary Employee” means an employee engaged as such in either a full-time or part time capacity for a defined project or a specified period.

1.7.15 “Union” means the United Firefighters’ Union of Australia, Union of Employees, Queensland and/or the Queensland Fire Service Senior

Officers’ Association, Union of Employees. PART 2 – FLEXIBILITY 2.1 Enterprise flexibility 2.1.1 As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible

working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace.

2.1.2 The consultative processes established in an enterprise in terms of this Award may provide an appropriate mechanism for consideration of

matters relevant to this clause. Union delegates at the place of work may be involved in such discussions. 2.1.3 Any proposed genuine agreement reached between an employer and employee/s in any enterprise is contingent upon the agreement being

submitted to the Commission in accordance with the requirements of the Act and is to have no force or effect until approval is given. PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION 3.1 Disputes and grievance procedures 3.1.1 There shall be an effective means of consultation between the Queensland Fire and Rescue Service and its employees and Unions on all matters

of mutual interest and concern, irrespective of whether the matters are likely to give rise to dispute. Particular attention shall be given to both formal and informal means of consultation and information sharing between management and employees.


3.1.2 Failure to observe this fundamental principle of consultation would be contrary to the intention of this procedure.

3.1.3 The objectives of the procedure are to:

(a) promote the prompt resolution of grievances by consultation, co-operation and discussion;

(b) reduce the level of disputation; and

(c) promote efficiency, effectiveness and equity in the workplace.

3.1.4 The relevant Union shall notify the Commissioner in writing of its duly accredited delegates at all levels.

3.1.5 This procedure applies to all industrial matters within the meaning of the Act.

Stage 1 – In the first instance, an employee shall inform such employee’s immediate supervisor of a claim or the existence of a grievance in writing and they shall attempt to resolve the matter. It is recognised that an employee may wish to exercise the right to consult such employee’s Union representative during the course of Stage 1.

Stage 2 – If the claim or grievance remains unresolved, the employee or the local Union representative on the employee's behalf shall refer the matter to the next in line manager. The manager will consult with the parties. The employee may exercise the right to consult or be represented by such employee’s Union representative during the course of Stage 2.

Stage 3 – If the claim or grievance remains unresolved, the employee or the Union on the employee’s behalf, shall refer the matter to the next in line manager (where applicable). The manager will consult with the parties. The employee may exercise the right to consult or be represented by such employee’s Union representative during the course of Stage 3.

Stage 4 – If the grievance is still unresolved, the manager will advise the Commissioner and the aggrieved employee may submit the matter in writing to the Commissioner if such employee wishes to pursue the matter further. If desired by either party, the matter shall also be notified to the Union.

3.1.6 The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise: (a) Stage 1 – Discussions should take place between the employee and such employee’s supervisor within 48 hours and the procedure shall not

extend beyond 7 days.

(b) Stage 2 – Not to exceed 7 days.

(c) Stage 3 – Not to exceed 7 days.

(d) Stage 4 – Not to exceed 7 days (except where Stage 3 is not applicable in which case the period is not to exceed 14 days).

3.1.7 If the matter is still unable to be resolved, the parties may seek the assistance of the Commission.

3.1.8 Until the dispute or grievance is determined (and except when a bona fide safety issue is involved), work shall continue in accordance with normal operational procedures existing before the emergence of the dispute or grievance. No party shall be prejudiced as to the final settlement by the continuation of work.

PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 4.1 Contract of employment Employees may be engaged in either a full-time, part-time, or temporary employment capacity subject to the provisions of the Queensland Fire and Rescue Service Act 1990. 4.2 Part-time employment 4.2.1 Prior to the introduction of part-time employment, consultation shall occur between the parties. The following provisions will apply:

(a) The spread of ordinary hours shall be the same as those prescribed for a full-time employee under this Award.

(b) A Part-time Employee shall be employed for no less than an average of 8 hours and no more than 32 hours per week.

(c) A Part-time Employee shall be paid at the same hourly rate as a full-time employee would have been paid for performing duty at the same Classification Level. A Part-time Employee shall also be entitled to allowances as and where prescribed by this Award and on a pro rata basis where appropriate.

(d) The public holiday provisions of this Award shall apply on a pro rata basis to part time employees.

(e) All leave provisions of this Award applying to full-time employees shall apply pro rata to Part-time Employees.

4.2.2 All time worked outside the ordinary working hours as provided for in clause 4.2.1 and all time worked in excess of the hours as mutually

arranged in clause 4.2.1 will be overtime and paid for at the rates prescribed in clause 6.2 (Overtime). 4.3 Temporary employment 4.3.1 Prior to the introduction of Temporary Employees at Classification Levels FP03 and FP04, consultation shall occur between the relevant parties. 4.3.2 Eligibility for temporary employment will be dependent upon satisfying the competency standard prescribed for the position. Temporary

Employees shall be required to maintain this standard for the duration of the temporary engagement.



4.3.3 A Temporary Employee may be engaged in either a full-time or part-time capacity for a predetermined period which will not usually exceed 6 months.

4.3.4 The method of working ordinary hours shall be the same as those prescribed for a full-time employee under this Award. 4.3.5 All leave provisions of this Award applying to full-time employees shall apply pro rata to Temporary Employees. 4.3.6 Upon permanent appointment, temporary service shall be counted as service:

Provided that no more than 3 months has elapsed between the completion of temporary service and taking up a permanent appointment. 4.4 Termination of employment 4.4.1 Notice by employee

(a) Written notice of resignation of not less than 2 weeks shall be given by the employee. Such 2 weeks shall not include annual eave.

(b) Where 2 weeks’ notice is not given, the equivalent amount of salary shall be forfeited in lieu thereof.

(c) In the case of an employee whose resignation is to take effect less than 2 weeks after it is given, the employee shall forfeit 2 weeks’ salary or such lesser amount as the employer considers to be fair and reasonable.

4.4.2 Notice by the employer

(a) The employer may dismiss an employee only if:

(i) the employee has been given the period of notice required by clause 4.4.2(b), or compensation; or (ii) the employee engages in misconduct of a type that would make it unreasonable to require the employer to continue the employment

during the notice period.

(b) The minimum period of notice is: Period of Continuous Service Period of Notice not more than 3 years............................................................................................. 2 weeks more than 3 years, but not more than 5 years........................................................ 3 weeks more than 5 years ................................................................................................... 4 weeks

(c) In addition to the notice in clause 4.4.2(b) employees over 45 years of age at the time of giving of notice and with not less than 2 years’

continuous service, shall be entitled to an additional week’s notice. (d) Payment in lieu of notice shall be made if the appropriate notice is not given:

Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

(e) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used.

(f) The period of notice in clause 4.4.2 (b) shall not apply in the case of dismissal for misconduct or other grounds that justified instant

dismissal, or in the case of casual or Temporary Employees, or to employees on daily hire, or employees engaged for a specific period of time or for a specific task or tasks.

4.5 Termination of employment, introduction of change and redundancy

Except as provided for in clause 4.4 the Commissioner shall observe the terms and conditions of the Termination of Employment, Introduction of Changes and Redundancy Model Clause contained in the decision of the Full Bench incorporated in the transcript of proceedings of 7 November 2001, in matters following the State Wage Case B882 of 1999, in relation to Principle 12 Award review (Case B1733 of 1999).

The provisions of the clause relating to redundancy will apply except where inconsistent with arrangements contained in a directive issued by the Public Service Commissioner pursuant to section 34 of the Public Service Act 1996.

4.6 Performance of higher duties

4.6.1 When an employee is appointed to relieve in a position at a higher Classification Level, payment shall only be at the higher rate when the period of relieving exceeds two consecutive days or shifts.

4.6.2 Where the period of relieving exceeds 2 consecutive days or shifts, the higher payment shall be at the rate of the first Pay Point in the higher Classification Level and shall be paid for the entire period spent relieving.

4.6.3 Provided that FPO1 and FPO2 employees appointed to relieve at higher Classification Levels shall be paid at the first Pay Point of the higher Classification Level for each full day or shift completed.

4.7 Anti-discrimination

4.7.1 It is the intention of the parties to this Award to prevent and eliminate discrimination as defined by the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999 as amended from time to time which includes:

(a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of the above attributes.

(b) sexual harassment; and (c) racial and religious vilification.


4.7.2 Accordingly in fulfilling their obligations under the disputes avoidance and settling procedures in clause 3.1, the parties to the Award must take

reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects. 4.7.3 Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been

involved in a complaint of unlawful discrimination or harassment. 4.7.4 Nothing in clause 4.7 is to be taken to affect:

(a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; or (b) an employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and

Equal Opportunity Commission/Anti-Discrimination Commission Queensland. PART 5 – WAGES AND WAGE RELATED MATTERS 5.1 Classification and pay system 5.1.1 Payment is determined by the skill level of the role, not the tasks undertaken. Payment does not automatically vary when particular tasks or new

tasks are performed. 5.1.2 An employee’s work role will be outlined in a Position Description. Position Descriptions will be graded against the Generic Level Descriptors

as specified in the classification structure. 5.1.3 Employees temporarily called upon to perform work at a higher Classification Level will attract a pay rate applicable to that level:

Provided they have undertaken and satisfactorily performed work at the higher level for the prescribed minimum period, or longer. 5.1.4 The employer may direct an employee to carry out any duties as are within the limits of the employee’s skill and competency and consistent with

the classification structure. 5.1.5 Where work is restructured to meet business needs or operations expanded into new areas, Position Descriptions will be created and graded

according to the Generic Level Descriptors. The Position Descriptions will detail the general role context and the specific competencies required of employees at the relevant location.

5.1.6 Work will be undertaken within a flexible environment. Prescriptive work schedules, which restrict work options, should not be used. 5.1.7 Movement within and between all levels will be subject to satisfactory performance assessment and completion of specified prerequisites as

detailed in the Generic Level Descriptors. 5.2 Generic level descriptors 5.2.1 Fire Protection Officer – Level 1 (FPO1)

(a) Work level description

Employees at this level are involved in the delivery of operational services. Work routines, methods and procedures are clearly established and there is limited scope for deviation. It would be expected that the range of activities undertaken will be increasingly amended to provide diverse skills sets. Training, both on and off the job, is often a dominant feature of this level.

(b) Level of supervision

Work may initially be performed under close supervision by a more experienced officer; however, this supervision is expected to reduce as experience increases. Employees at this level may operate individually or as a member of a team within a work group.

(c) Characteristics of the level

At this level there are a number of established methods, techniques, and Standard Operating Procedures, which may apply to a work situation or an incident. Employees at this level must function within these established protocols but must also exercise discretion as to determining which matters should be referred to a supervisor for direction. Limited discretion is available for the selection of the appropriate means of completing duties or tasks. Guidance is always available and work outcomes may be closely monitored. Whilst supervision of other employees is not normally a feature at this level, employees would however, be required to assist new staff and trainees (including auxiliaries and volunteers) by providing general information, guidance, training and advice. Employees at this level require the ability to obtain the cooperation and assistance of others in carrying out defined activities. As well as exchanging information, employees must communicate effectively with peers, supervisors and members of the general community during stressful situations.

(d) Duties and skills

Positions at this level may involve an employee in a range of activities including the performance of tasks governed by established procedures, specific guidelines and standardised instructions.



Duties may include:

(i) the use of skills and knowledge associated with handling emergency incidents; (ii) basic administrative duties including computer operation; (iii) carrying out fire prevention, fire safety and fire investigation activities under supervision; (iv) conducting training and public education; (v) station maintenance and equipment testing and maintenance; and (vi) other duties for which officers are suitably trained, skilled and/or qualified.

Employees at this level undertake a range of functions requiring the practical application of acquired skills and knowledge. Technical skills are required in order to safely and effectively operate basic machinery to perform routine and standard functions, and organise duties across a working day to meet regular workload requirements. Supervisory responsibilities may include co-ordination of workflow processes, training of subordinate staff and responsibility of quality of output of the work group. Knowledge and compliance with regulations, codes and specifications shall be required. Duties at this level may include application of technical skills involving design/modification of equipment, research projects, support services, maintenance activities and the collating and analysis of information as required.

(e) Progression within the level

This level contains 5 Pay Points. Progression to Pay Point 4 is compulsory whilst further progression to Pay Point 5 is optional. The minimum period of service required before progression through the Pay Points may occur will be 12 months. Progression between Pay Points for positions at this level will be dependant upon:

(i) completion of predefined components of Q-STEP; (ii) ongoing satisfactory performance; (iii) competent delivery of operational skill requirements; (iv) achievement of necessary accreditations; and (v) satisfactory achievement levels for formal examinations.

Progression to Pay Point 5 will be dependant upon the acquisition of Core Skills for Level 2, which will provide employees with certain necessary skills and abilities to fulfil the basic requirements of a Level 2 position if required to do so. The application of these skills will be required from time to time as circumstances dictate and as part of the officer’s ongoing training and development. From this same point of view, it will be required that skills and knowledge will be maintained and that periodic assessments will be conducted of all employees, including those at the top of the level for this purpose. All employees within this level will be required to continue skills, drills and knowledge maintenance, assessment and appraisal through programmed training provided by either officers on shift (which may include those at the top of this level) or designated training officers. Similarly, regardless of length of service at the level when any new skills or knowledge are introduced, every employee will be required to undertake training and demonstrate the appropriate understanding required. Employees at Pay Point 5 will also assist and relieve FPO Level 2 officers as required.

5.2.2 Fire Protection Officer – Level 2 (FPO2)


Appointment to this level requires proven expertise with demonstrated proficiency in applying established techniques in relation to the delivery of preventative and suppressive fire services. An understanding of the organisation’s functions coupled with detailed knowledge of the work unit’s operations, practices and procedures is necessary for competent performance. Employees at Level 2 will usually be required to undertake Shift Work arrangements, and will have the capacity to provide supervision for Level 1.

(b) Level of Supervision

Employees at this level work under general direction of a Level 3 Officer, but must work with a level of independence, often being the senior operations person on shift at a particular location. The employee will be required to undertake a range of functions, which may require the application of technical skills and experience or the practical application of a high level of skills.


Position objectives are clearly defined, however an employee may need to exercise a level of discretion in localised command situations. Procedures and operating standards are defined through established guidelines, requirements and Standard Operating Procedures, and through recognised techniques and methods associated with fire prevention and suppression activities. A range of varied techniques, systems, methods or processes is available to perform the work, and the employee is expected to understand and to exercise the necessary discretion in their use. Such exercise of discretion takes place from within the framework of learned experience and training.

Issues that cannot be resolved by reference to established practices and Standard Operating procedures would usually be referred to a Level 3 Officer.


At this level there a number of established methods, techniques, and Standard Operating Procedures which may apply to a work situation or an incident. Employees at this level must function within these established protocols but must also exercise discretion as to determining which matters should be referred to a higher level for direction. Employees at Level 2 are required to provide guidance and direction to staff. Limited discretion is available for the selection of the appropriate means of completing duties or tasks. Guidance is usually available and work outcomes will be reviewed regularly. Supervision of other employees is normally a feature at this level, as well as the requirement to assist new staff and trainees (including auxiliaries and volunteers) by providing general information, guidance, training and advice. Positions at this level may have supervisory responsibilities for shift operations of a small unit or fire station. Positions at this level require the ability to obtain the co-operation and assistance of others in carrying out defined activities. As well as exchanging information, employees must communicate effectively with subordinates, peers, supervisors and members of the general community during stressful situations.


Positions at this level may involve an employee in a range of activities including the performance of tasks governed by established procedures, specific guidelines and standardised instructions. A sound knowledge of Standard Operating Procedures is required. Duties may include: (i) supervision and co-ordination of emergency incidents; (ii) developing and conducting training and education programs; (iii) developing, coordinating and conducting fire prevention activities; (iv) project work and implementation of policy and procedures; (v) supervision of employees and work activities, self management and development of subordinates; and (vi) supervision and co-ordination of administrative duties.

Employees at this level undertake a range of functions requiring the practical application of acquired skills and knowledge as well as providing guidance to others in that application. Technical skills are required in order to safely and effectively operate basic machinery to perform routine and standard functions, and organise duties of others across a working day to meet regular workload requirements. Supervisory responsibilities will include co-ordination of workflow processes, training of subordinate staff and responsibility for quality of output of the work group. Knowledge and compliance with regulations, codes and specifications shall be required. Duties at this level may include application of technical skills involving design/modification of equipment, research projects, support services, maintenance activities and the collating and analysis of information as required.


This level contains 3 Pay Points. Appointment to Level 2 will be at Pay Point 1 and subject to having successfully completed pre-defined components of Q-STEP. The minimum period of service required before progression through the Pay Points may occur will be 12 months.

Progression between Pay Points for positions at this level will be dependant upon:

(i) completion of predefined components of Q-STEP; (ii) ongoing Performance Management and Development; (iii) demonstrated capacity to effectively supervise employees; (iv) competent delivery of operational skill requirements; (v) achievement of necessary accreditations; and (vi) satisfactory achievement levels for formal examinations.



Whilst developmental training for progression to Pay Points 2 and 3 is elective, skills maintenance is mandatory as is the Performance Management and Development process. All employees at this level will be required to continue skills, drills and knowledge maintenance, assessment and appraisal, including those at the top of the level. Progression to PP3 will be dependant upon the acquisition of Core Skills for FPO Level 3 which will provide employees with certain necessary skills and abilities to fulfil the basic requirements of a Level 3 position if required to do so. The application of these skills will be required from time to time as circumstances dictate and as part of the officer’s ongoing training and development. From this same point of view it will be required that skills and knowledge will be maintained and that periodic assessments will be conducted of all employees, including those at the top of the level, for this purpose. Similarly, regardless of length of service at the level when any new skills or knowledge are introduced, every employee will be required to undertake training and demonstrate the appropriate understanding required.

Employees at Pay Point 3 will also assist and relieve Level 3 officers as required.



Work at this level requires specialised knowledge in relation to fire prevention and suppression activities. An understanding of the organisation’s functions coupled with detailed knowledge of the work unit’s operations, practices and procedures is necessary for competent performance. The capacity to effectively manage officers at Levels 1 and 2 is a prerequisite of this level.


Employees at this level work under general direction and undertake a range of functions, which may require the application of technical skills and experience or the practical application of a high level of skills. Position objectives are clearly defined. Procedures and operating standards are defined through guidelines, requirements and Standard Operating Procedures, and through recognised techniques and methods associated with firefighting. A range of varied techniques, systems, methods or processes is available to perform the work, and officers are expected to understand and exercise the necessary discretion in their use. Such exercise of discretion takes place from within the framework of learned experience and training. A key feature of this level is the requirement to manage staff through other supervisory levels.


Employees at this level may operate individually or as a member of a team. Supervision of subordinate employees may be a feature of this level. Assistance is usually available if required when problems occur, although problems are usually resolvable by reference to procedures, documented methods and instructions. Whilst there is some scope for exercising initiative in the application of established work practices and procedures, problems can generally be solved by reference to documented methods and instructions. Employees are required to interpret operating policies and Standard Operating Procedures in order to determine the most appropriate course of action. Employees at this level will also start to be concerned with the development of more efficient work practices within the work teams, which they supervise.

Problem resolution is a frequent requirement. Functions at this level include the identification and development of ideas, the detailed analysis of alternative courses of action and their implications, addressing difficulties, problems in the work environment, devising action plans and advancing new approaches to more senior management levels.

Employees at this level are competent to provide authoritative information to less experienced employees within the work team or under their direct supervision. Positions at this level may have command and control responsibility.


Work at this level requires a sound working knowledge of the organisation’s functions and the requirements of the organisation.

A sound knowledge of Standard Operating Procedures is required.

Guidance from more experienced staff is only received for those aspects of the work which involve new or more sophisticated techniques or relate to areas outside the position’s normal span of activity.

Functions of officers at FPO Level 3 may involve the performance of duties associated with varying tasks. These may involve:

(i) project functions;

(ii) specialist functions;

(iii) Area management; and

(iv) supervision of subordinate staff.


Duties performed at this level may include but would not be limited to:

(1) management of emergency incidents; (2) developing and conducting training and education programs; (3) developing, co-ordinating and conducting fire prevention activities; (4) project work and implementation of policy and procedures; (5) management of subordinate staff; and (6) management and co-ordination of administrative duties, including routine budgetary and staffing matters.


This level contains 3 Pay Points. Appointment to Pay Point 1 is dependent upon holding qualification. Qualification is gained by the successful completion of identified training programs, and demonstrated competence in the functions of a Level 3 Officer. This can be undertaken after having achieved Pay Point 3 for FPO Level 2. Progression to Pay Point 2 is subject to satisfactory Performance Management and Development and completion of identified training programs. Progression to Pay Point 3 is dependent upon successful completion of training programs providing Core Skills for FPO4, demonstrated competence in these skills and satisfactory Performance Management and Development. Whilst developmental training for Pay Point 3 is elective, skills, drills and knowledge maintenance and ongoing Performance Management and Development are mandatory for all, including those at the top of the level.

Progression within this level will see a number of changes in the way in which employees carry out their responsibilities:

(i) demonstrated proficiency in application of advanced techniques; (ii) demonstrated ability to effectively assign work to, and check the work of other employees as well as carrying out staff training; (iii) evidence of capacity to effectively co-ordinate activities, not only within the immediate work group, but with other positions or areas

not under the employee’s immediate control, such as attendance at large incidents; and (iv) employees will proactively analyse established procedures and methods, recommending more efficient or effective solutions or

courses of action.

The minimum period of service required before progression through the Pay Points may occur will be 12 months. Progression between Pay Points will be dependent upon:

(1) continuing completion of relevant Q-STEP components and/or other training programs;

(2) ongoing Performance Management and Development;

(3) competent delivery of operational skill requirements;

(4) achievement of necessary accreditation; and

(5) satisfactory achievement levels for formal examinations.

Employees as Pay Point 3 will assist and relieve Level 4 Officers as required.



Work at this level requires specialised knowledge in relation to fire prevention and suppression activities. Where the emphasis of the position is management, key functions will involve planning, organising, directing and controlling the work of subordinate supervisory levels. Extensive knowledge in the area of operations, and advanced management skills would be expected. Officers at this level will provide leadership at a professional level. Positions, which have primary emphasis of a specialist nature, require specialised knowledge of complex and innovative methods and techniques, resulting from experience and/or advanced training. Work is undertaken under limited direction as to work priorities and the detailed conduct of the task. Employees may be responsible for larger work teams, functions or Zone operations. High levels of initiative in accomplishing objectives shall be required to be exercised both on an individual basis and/or in a work team situation.




Work is performed either independently with guidance from superiors only for those aspects of work which involve new or sophisticated techniques or relate to areas outside a position’s normal span of activity. The role spans a range of activities, many of which are complex or specialised in nature. Work may require the modification or adoption of established methods, procedures, systems or policies. Officers at this level will affect the way that work is performed by others, and will be involved in the detail of operational planning.


There is scope for the exercise of initiative in the application of established work practices and procedures. Problem solving and conflict resolution are common requirements at this level. Work demands the identification and development of ideas, the detailed analysis of alternative courses of action and their implications, addressing difficulties, problems in the work environment, devising action plans and advancing new approaches. Employees are required to analyse problems and recommend solutions or alternative courses of action. Employees at this level would be required to lead and motivate employees and to inspire others to co-operate in the achievement of difficult and sometimes conflicting objectives. Positions at this level will be governed by a clear set of objectives and budgets. The performance of employees at this level will be monitored by a more senior officer to ensure the efficient achievement of operational targets. Expenditure will be reviewed regularly. Part of accountability at this level involves the identification of employee development needs, and the implementation of programs to improve staff performance. Many of the activities and responsibilities of this level would usually comprise a total management function.


Duties may include the management of a work team, specialist functions, or group operations with responsibility for the standard of performance, output, completion of work assignments and allocation of resources.

Interpretation of guidelines, policies, Standard Operating Procedures and other relevant material including legislation and awards and the application of sound judgment and discretion will be required in determining solutions to problems.

Duties performed at this level may include but would not be limited to:

(i) operations management and planning;

(ii) management of training delivery and evaluation of work performance;

(iii) financial management for a work team as a distinct budgetary unit;

(iv) control and co-ordination of fire prevention and fire investigation duties;

(v) assets management including vehicles, buildings, equipment, etc within the unit;

(vi) specialist functions as required such as fire safety, research and development and training;

(vii) representation on Local Authority matters such as counter disaster committees; (viii) human resource management; and

(ix) the application of highly developed written and oral communication skills.


This level contains 3 Pay Points.

Appointment to Pay Point 1 is dependent upon holding qualification. Qualification is gained by the successful completion of identified training programs, and demonstrated competence in functions of a Level 4 Officer. This can be undertaken after achievement of Pay Point 3 at FPO Level 3.

Effectiveness at this level can be defined to include:

(i) achievement of agreed performance targets;

(ii) timely delivery of operational planning requirements;

(iii) progress through Q-STEP for the level and management development program; and

(iv) satisfactory ongoing Performance Management and Development.

Progression through Pay Points will be on the basis of successful performance via the Performance Management and Development program.

Employees at FPO Level 4 may be required to assist and relieve FPO Level 5 Officers from time to time. The minimum period of service required before progression through the Pay Points may occur will be 12 months.


5.3 Salaries 5.3.1 The following salaries shall be the fortnightly base rates payable for classifications levels FP01 and FP02 employees in the Eastern District of

the Southern Division: Current Classification Per Fortnight $

FP01 ............................. PP1 ................................................................................................................................................948.00 FP01 ............................. PP2 ............................................................................................................................................ 1,050.00 FP01 ............................. PP3 ............................................................................................................................................ 1,132.00 FP01 ............................. PP4 ............................................................................................................................................ 1,208.00 FP01 ............................. PP5 ............................................................................................................................................ 1,268.00 FP02 ............................. PP1 ............................................................................................................................................ 1,419.00 FP02 ............................. PP2 ............................................................................................................................................ 1,459.00 FP02 ........ .................... PP3 ............................................................................................................................................ 1,507.70

5.3.2 The following salaries shall be the annual rate payable for classifications levels FP03, FP04 and FP05 employees in the Eastern District of the

Southern Division and shall be paid for all purposes of the Award: Classification Salary Per Annum $

FP03 PP1 ..................................................................................................................................................................... 46,176 PP2 ..................................................................................................................................................................... 47,576 PP3 ..................................................................................................................................................................... 48,931

FP04 PP1 ..................................................................................................................................................................... 53,708

PP2..................................................................................................................................................................... 54,891 PP3..................................................................................................................................................................... 56,074

FP05 ..................................................................................................................................................................................... 68,243 5.3.3 The following salaries shall be the fortnightly base rates payable for Classification Levels BAO1 and BAO2 employees in the Eastern District of

the Southern Division. Current Classification Per Fortnight $

BAO1 ...............................................................................................................................................................................2,224.30 BAO2 ...............................................................................................................................................................................2,299.20

5.3.4 The rates of pay in this Award are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration of

General Ruling and earlier Safety Net Adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to give effect to enterprise agreements and over award arrangements. Absorption, which is contrary to the terms of an agreement, is not required.

5.3.5 Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise

agreements, are not to be used to offset arbitrated wage adjustments.

5.3.6 Divisional and District Parities – In addition to the salaries set out in this Award, the following amounts shall be paid to employees who are employed in the Divisions and Districts referred to hereunder:

Per Fortnight $ Southern Division – Western District...................................................................................................................................... 2.10 Mackay Division ...................................................................................................................................................................... 1.80 Northern Division – Eastern District ....................................................................................................................................... 2.10 Northern Division – Western District...................................................................................................................................... 6.50 5.4 Allowances 5.4.1 Mount Isa locality allowance Employees located at Mount Isa shall receive $66.00 per fortnight in addition to their ordinary rates of pay. This amount shall be payable with respect to annual leave, long service leave and all leave with pay, but shall not be included for the purpose of calculating overtime or any penalty payments. 5.4.2 Overtime meal allowance

(a) Where an employee is required by the employer to work overtime for more than one hour immediately before or after the employee’s fixed or recognised working hours, the employer shall provide the employee with either:

(i) a meal; or (ii) an allowance of $7.50.



(b) Where an employee has provided a meal, after having received due notification to work overtime and is subsequently not required to work overtime, the employee shall be entitled to a payment of $7.50 for such meal.

(c) Employees recalled for duty during any normal mealtime in off-duty hours shall be paid a meal allowance of $7.50 for each such recall:

Provided that, for the purposes of clause 5.4.2 only, normal meal times shall be deemed to be 7.00 a.m. to 8.00 a.m., 12.00 p.m. to 2.00 p.m. and 5.30 p.m. to 7.00 p.m. each day.

5.4.3 Aerial appliance driver’s allowance An allowance of 99c per day/shift shall be paid to Level 1 Fire Protection Officers whilst required to take responsibility for a Fire Service Aerial Appliance upon satisfying the following conditions:

(a) The employee must be deemed by the employer to be proficient, in accordance with prescribed criteria, in the operation of the Aerial Appliance; and

(b) The employee may be required to drive the Aerial Appliance in responding to an emergency incident:

Provided that for the purpose of clause 5.4.3, an Aerial Appliance shall be defined as a Turntable Ladder, Hydraulic Platform or High Reach Aerial Appliance.

5.4.4 On call allowance

(a) Where an employee is instructed to be available on call outside ordinary or rostered working hours, such employee shall be paid, in addition to their ordinary salary an allowance based upon the employee’s hourly rate or the hourly rate of the Classification Level FPO2, Pay Point 1, whichever is the higher, and in accordance with the following scale:

(i) Where the employee is on call throughout the whole of a rostered day off or public holiday – 95% of one hour’s pay in respect of

such instances; (ii) Where an employee is on call during the night only of a rostered day off or public holiday – 60% of one hour’s pay per night; and (iii) Where an employee is on call on any other night – 47.5% of one hour’s pay per night. For the purpose of calculating the hourly rate, the divisor shall be based upon a 40 hour week and calculated to the nearest 5 cents. For the purposes of clause 5.4.4, a “night” shall be deemed to consist of those hours falling between 5.00 p.m. and 8.00 a.m. or mainly between such hours.

(b) In the event of an employee on call being recalled to perform duty, such employee shall be paid for the time worked at the prescribed

overtime rate, such time to be calculated as from home and back to home with a minimum payment of 2 hours, except in the case of work performed on a public holiday when the minimum payment shall be 4 hours.

(c) Any overtime payable shall be in addition to the on call allowance. (d) Where an on call employee is recalled to perform work during an off duty period such employee shall be provided with transport to and

from the employee’s home, or be refunded the cost of such transport:

Provided that this payment shall only apply where an employee has made trips to and from work that are additional to travel resulting from such employee’s ordinary hours of work. The provisions of clause 5.4.4 shall will not apply to employees appointed (including temporary appointments) to the FPO5 Classification Level.

5.5 Payment of wages 5.5.1 Payment of wages shall be made fortnightly. 5.5.2 Wages shall be paid by electronic funds transfer or direct deposit to employees’ nominated accounts unless otherwise agreed between the

employer and the employee concerned. 5.6 Occupational superannuation 5.6.1 Contributions

(a) The Queensland Fire and Rescue Service will contribute to the “Superannuation Fund” on behalf of each eligible employee, an amount equal to 3% of ordinary time earnings:

Provided that this payment will not be in addition to contributions currently made by the Commissioner of Fire and Rescue Service to an approved superannuation scheme for full-time and eligible Temporary Employees of the Queensland Fire and Rescue Service.

(b) Eligible employees must have completed a continuous period of 4 weeks’ service before contributions to the Q Super or Go Super funds will commence, provided that on permanent appointment, no eligibility period is required for Q Super.

(c) Subsequent to eligible employees completing the eligibility period, contributions to the superannuation fund are to be retrospective to the employee’s date of commencement.

(d) The Queensland Fire and Rescue Service may suspend for the applicable period, contributions made on behalf of an employee if the employee is absent from the workplace whilst on unpaid leave including unpaid sick leave and unpaid leave of absence. Contributions shall not be suspended for leave of absence on workers’ compensation.

(e) The employer shall remit contributions to the “Superannuation Fund” on a fortnightly basis. (f) The Queensland Fire and Rescue Service will not be required to make any further contributions on behalf of an employee after the end of

the last day from which the employee’s resignation or dismissal becomes effective.


PART 6 – HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK 6.1 Hours of work 6.1.1 Ordinary hours

The ordinary hours of work are an average of 40 per week over a roster cycle, to be worked in accordance with the following:

(a) except by mutual agreement, all ordinary hours are to be worked continuously (exclusive of unpaid meal breaks) within a minimum of 8 hours and a maximum of 14 hours per day;

(b) ordinary hours of work may be performed on any 5 days out of 7 consecutive days or on any 10 days out of 14 consecutive days. Wherever

practicable days off should be taken consecutively; and

(c) a Continuous Shift Work roster provides for a minimum of 8 hours break between the finish of ordinary hours on one day and the commencement of ordinary hours on the next day.

6.1.2 Flexible working hours

(a) Unless otherwise provided in a Shift Work roster employees will work an 8 week 320 hour cycle and the pattern of working hours shall be determined by the employer having due regard to the work requirements and the wishes of the employee.

(b) Consultation regarding such proposed working arrangements will occur with the employee’s Union prior to implementation at the work

location. 6.1.3 Residential training courses Employees attending Queensland Fire and Rescue Service residential training courses may be required to work Monday to Friday inclusive and between 8.00am and 8.00pm: Provided that their ordinary hours shall not exceed 40 in any one week, or 10 in any one day. 6.1.4 Recruit training courses Employees attending Queensland Fire and Rescue Service recruit training courses may be required to work Monday to Friday inclusive and between 8.00am and 5.00pm: Provided that their hours do not exceed 40 in any one week. 6.1.5 Notice to change hours With respect to periods of notice required for attending training, changing shifts and rosters, in most cases such activities will be planned well enough in advance to enable at least 2 weeks’ notice to be given to employees: Provided that receipt of a lesser period of notice in itself will not be an adequate reason for failing to attend such training. 6.2 Overtime 6.2.1 The time an employee is required by the employer to work before or after the employee’s fixed or recognised times for starting or finishing work

on any day, or outside of the employee’s ordinary shift roster, shall be regarded as overtime and shall be paid for at the rate of time and a-half for the first 3 hours on any one day and double time thereafter:

(a) Provided that all overtime for continuous shift workers will be paid at double time.

(b) Provided that calculations for overtime payment are made on the base rates of pay.

6.2.2 Rest period between shifts

(a) If an employee is required to work overtime, the employee will receive 10 consecutive hours off duty between finishing ordinary work on one day and starting ordinary work on the next day without loss of pay for ordinary working time occurring during such absence.

(b) If the employee is instructed to continue or resume work without receiving 10 consecutive hours off duty, the employee will be paid double

time until the employee is released from duty for 10 consecutive hours without loss of pay for ordinary working time during such absence:

Clause 6.2.2 does not apply where the employee is recalled to work overtime and actually works not more than 2 hours overtime. Clause 6.2.2 does not apply where the period between ordinary rostered shifts is 10 hours or less.

6.2.3 Overtime on public holidays All overtime worked by any employee on a public holiday as prescribed in clause 7.6 will be paid at double the usual overtime rate. 6.2.4 Time off in lieu of overtime Subject to the approval of the Commissioner, employees may elect to be compensated by receiving time off in lieu of receiving paid overtime. Time off in lieu will be equivalent to the relevant rate of accrual. Time off in lieu is to be taken within 12 months from the date on which the overtime was worked and at a time agreeable to the employer and the employee. In the case of FP03 and FP04 employees, time off in lieu not accessed within 12 months of accrual shall be foregone unless the employer has prevented it being taken, in which case such time shall be paid for by the employer at the relevant rate of accrual. In the case of FP01 and FP02 employees, time off in lieu not accessed within 12 months of accrual shall be paid for by the employer at the relevant rate of accrual.



6.3 Meal breaks

6.3.1 Employees on Continuous Shift Work will be allowed 60 minutes paid crib time in each day shift and 30 minutes paid crib time in each night shift:

Provided that crib time is taken at such time as not to interfere with the continuity of work where continuity is necessary.

6.3.2 An unpaid meal break of at least 30 minutes’ duration may be prescribed where the Commissioner determines that continuity of work is not necessary. Where agreed between the employer and the employee, the employee may elect to continue an unpaid meal break for a period not exceeding 2 hours’ duration.

6.4 Rest pauses

Each employee shall be entitled to a rest pause of 10 minutes’ duration in the employer’s time in the 1st and 2nd half of the employee’s shift or day’s work. Such rest pauses shall be taken at such times as will not interfere with the continuity of work where continuity is necessary:

Provided that the provisions of clause 6.4 shall not apply in the event of attending fires or other similar emergencies.

6.5 Shift work

6.5.1 Night shift allowance

An employee required to work in accordance with an approved shift roster, shall be paid an allowance of $1.319 per hour for each night shift worked between midnight Sunday and midnight Friday. For the purposes of clause 6.5.3, a night shift shall mean a shift where the majority of ordinary hours fall between the hours of 6.00 p.m. and 6.00 a.m:

Provided that this allowance shall not be paid for “overtime” shifts. 6.5.2 Week-end penalty rates

An employee required to work in accordance with an approved shift roster will be paid week-end penalty rates in accordance with the following:

(a) All ordinary time worked between midnight on Friday and midnight on Saturday is paid for at one and a-half times the base rate of pay; and

(b) All ordinary time worked between midnight on Saturday and midnight on Sunday is paid for at double the base rate of pay.

6.6 Call-back

6.6.1 An employee called back for duty after leaving the employer’s premises shall be paid the appropriate rate for time worked for each call back with a minimum of 2 hours’ payment at overtime rates:

Provided that any subsequent call back which commences within 2 hours of the commencement of the previous call back, shall be deemed to be included in the previous call back.

6.6.2 Clause 6.6.1 does not apply where:

(a) the overtime is continuous with the start or finish of ordinary working time.

(b) it is customary for the employee to return to the employer’s premises to perform a specific job outside the employee’s ordinary working hours.

PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS

7.1 Annual leave

7.1.1 For each full year of employment, an employee shall be entitled to 200 hours leave on full pay exclusive of week-ends, programmed rostered days off and public holidays:

Provided that in the case of shift workers, for each full year of employment, an employee shall be entitled to 200 hours leave on full pay exclusive of public holidays and rostered days off according to the roster on which the employee commenced leave:

Provided that in the case of continuous shift workers, for each full year of employment, an employee is entitled to 200 hours leave on full pay exclusive of rostered days off according to the roster on which the employee commenced leave.

7.1.2 Continuous shift workers shall be entitled to 64 hours additional leave in lieu of double time and a-half for time worked on the public holidays specified in clauses 7.6.1 and 7.6.3. Such leave is exclusive of rostered days off according to the roster on which the employee commenced leave.

7.1.3 All annual leave is paid in advance.

7.1.4 The monetary equivalent of accrued leave, including pro rata accrued annual leave, is paid upon the termination of employment.

7.1.5 Leave of absence without pay in excess of 3 months will not count as service for the purpose of calculating annual leave:

Provided that any absence from work on workers’ compensation does not so reduce the entitlement to leave.

7.1.6 Calculation of annual leave payments

Annual leave payments is calculated in accordance with either:

(a) All employees – subject to clause 7.1.6(b), in no case shall the payment by the employer be less than the sum of the following amounts:

(i) The employee’s ordinary wage rate as prescribed by this Award for the period of annual leave (excluding night shift allowances and weekend penalty rates);

(ii) Divisional and district parities; and (iii) A further amount calculated at the rate of 17 1/2% of (i) and (ii) above.


(b) Shift workers (including continuous shift workers) – the rate payable for working ordinary time according to the employee’s projected

roster, including night shift allowances and weekend penalty rates.

The provisions of clause 7.1.6(a) will not apply to any period of annual leave exceeding 200 hours, which may be accrued in any year. 7.1.7 Recalled to work whilst on annual leave

(a) Each employee has an entitlement to core annual leave and accrued time off in each year of employment;

(b) Leave entitlements for employees will be notionally split into core annual leave and accrued time off;

(c) When an employee is recalled to work while on annual leave for the purpose of maintaining crewing levels, that employee will be deemed to be accessing accrued time off and not core annual leave;

(d) An employee attending training courses or undertaking commercial activities, will also be deemed to be accessing the accrued time off

rather than core annual leave;

(e) Employees will be permitted to access accrued time off for the purposes of being recalled to work to maintain crewing levels; attending training courses or undertaking commercial activities;

(f) The maximum hours of accrued time off available for employees to access for the purposes outlined in clause 7.1.7(e), are 104.3572 per

annum;

(g) Employees will not be permitted to access accrued leave in excess of 104.3572 hours per annum or core annual leave for any of the purposes outlined in clause 7.1.7(e).

(h) Employees will be paid at overtime rates for being recalled to work while accessing the accrued time off component of annual leave, other

than when undertaking commercial activities which will be paid for at the rate agreed between the parties and incorporated in the certified agreement currently binding upon them.

7.2 Sick leave 7.2.1 Entitlements Employees shall be eligible for sick leave for each completed year of employment on the following basis:

(a) 8 shifts for each completed year of employment with the employer where employees work shift work:

Provided that in respect to any completed period of employment of less than one year, an employee shall become entitled to one shift’s sick leave for each month of such period, up to a maximum of 8 shifts.

(b) 10 days in every other case:

Provided that in respect to any completed period of employment of less than one year, an employee shall become entitled to one day’s sick leave for each month of such period, up to a maximum of 10 days.

(c) All sick leave shall be cumulative.

7.2.2 Conditions An employee who is absent from work on account of personal illness or injury shall be entitled to paid leave of absence up to the accumulated

period of leave applicable without loss of pay subject to the following conditions and limitations:

(a) Worker’s Compensation – An employee shall not be eligible for paid leave of absence under clause 7.2 for any period in respect of which the employee is entitled to worker’s compensation.

(b) Notice – An employee shall, within 24 hours prior to the commencement of any such absence or as soon as practicable, inform their immediate supervisor of the inability to attend for duty and as far as practicable, state the nature of the illness or injury and the estimated duration of the absence.

(c) Evidence – Where a sick leave absence exceeds 2 consecutive working days/shifts, an employee shall produce a medical certificate from a

duly qualified medical practitioner, specifying:

(i) the nature of the illness; and (ii) the period or approximate period during which the employee will be unable to work.

7.2.3 Medical examination

The employer may determine that an employee who has been absent from duty on account of illness or injury shall submit for a medical examination to a medical officer of the employer or such other duly qualified medical practitioner as may be approved by the employer:

(a) before resuming duty; and

(b) within a time specified by the employer

In such cases, the employee shall not resume duty until such medical officer has certified the employee is fit for duty.

7.2.4 Unfit to discharge duties

The employer may direct any employee who by reason of any mental or bodily infirmity, may be unfit to discharge, or incapable of discharging the employee’s duties efficiently, to submit for examination by a medical officer as approved by the employer. The costs of such medical examination shall be borne by the employer.



7.2.5 Termination on medical grounds

If such medical officer attended by an employee reports to the employer that such employee is by reason of any such infirmity, other than a temporary infirmity, unfit to discharge or incapable of discharging the full range of the employee’s designated duties, the employer may terminate the employee’s services in accordance with the Code of Practice for Termination on Medical Grounds:

Provided that the employer shall provide the employee with notice in writing that the employer intends to terminate the employee’s services within 14 days unless the employee notifies the employer before the expiration of such 14 days that the employee seeks the matter to be referred to a medical referee under clause 7.2.6.

7.2.6 Referral to medical referee

Where an employee under this Award has submitted for any medical examination by the medical officer of the employer and agreement cannot be reached between the employer and the employee as to such employee’s fitness for duty, the matter shall be referred to a medical referee to be nominated by the parties.

If the parties cannot agree upon one, a medical referee shall be nominated by the Executive of the Division of Workplace Health and Safety. Such medical referee shall give a certificate as to the fitness of the employee for duty and that certificate shall be conclusive evidence as to the matter specified. Except in cases where the decision of the medical referee is favourable to the appellant, the medical expenses incurred in referring the matter to such medical referee shall be borne and discharged by the employee.

7.2.7 Refusal to submit to medical examination

If an employee so called upon to submit to any medical examination under this Award:

(a) does not so submit within the time specified; or (b) refuses to so submit to examination by a medical referee under clause 7.2.6

the employer may terminate the employee’s services on giving the employee 14 days’ notice in writing. 7.2.8 Absenteeism management

(a) Without limiting the employer’s existing rights, where an employee has a proven pattern of recurring sick leave, the employer shall notify the employee and the employee’s Union of same.

(b) The employer shall ensure that the employee is counselled in relation to the employee’s unsatisfactory absence. (c) If a pattern of sick leave continues, the employee may be required to produce a medical certificate for future absences. At the expiration of

a 12 month period, the requirement to provide a medical certificate for all absences will be reviewed. (d) An employee may be required to furnish a satisfactory certificate in respect of any or all sick leave absences should the employer so decide.

7.3 Long service leave 7.3.1 Entitlement

An employee who completes 10 years’ continuous service shall be 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.

7.3.2 Entitlement upon termination

Where an employee completes the 1st or subsequent 10 years’ continuous service and:

(a) terminates that service; or (b) is terminated by the employer for any cause other than serious misconduct; or (c) dies;

the employee shall receive payment in lieu of long service leave not taken, provided that in no instance shall the entitlement for the 1st or subsequent completed period of 10 years’ service be jeopardised by the meaning of this clause.

7.3.3 Entitlement upon death

If an employee who is entitled to any amount of long service leave dies:

(a) before taking accrued long service leave; or (b) after commencing but before completing the taking of accrued long service leave;

the employer shall pay to that employee’s personal representative, a sum equal to payment at the ordinary rate for the period of the amount of long service leave not taken or, as the case may be, the taking of which has not been completed by that employee.

7.3.4 Public holidays

Long service leave is exclusive of any public holiday that occurs during a period of such leave taken.


7.3.5 Period of service

(a) For the purposes of this clause, the continuity of service of an employee is that service as is deemed not to be broken in accordance with the provisions of the Act.

(b) The period of service for the purposes of clause 7.3 shall include any period of continuous service either before or after 16 June 1973 and

except as herein provided the benefits hereby conferred shall be entirely in substitution for and not in addition to any benefits that have accrued to an employee under the previously operative clause.

7.4 Family leave The provisions of the Family Leave Award – State apply to and are deemed to form part of this Award. 7.4.1 It is to be noted that:

(a) part-time work can be performed by agreement in the circumstances specified in the Family Leave Award – State;

(b) a copy of the Family Leave Award – State is required to be displayed in accordance with section 697 of the Act. 7.4.2 The Family Leave Award – State also provides for the terms and conditions of leave associated with:

(a) Maternity leave (b) Parental leave (c) Adoption leave (d) Special responsibility leave for the care and support of the employee’s immediate family or household.

7.5 Bereavement leave 7.5.1 An employee on the death of a member of their immediate family or household in Australia is entitled to paid bereavement leave up to and

including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to the satisfaction of the employer.

7.5.2 The term “immediate family” includes:

(a) a spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and (b) child or an adult child (including an adopted child, a foster child, an ex–foster child, a stepchild or an ex-nuptial child), parent, grandparent,

grandchild or sibling of the employee or spouse of the employee. 7.5.3 An employee with the consent of the employer, may apply for unpaid leave when a member of the employee’s immediate family or household in

Australia dies and the period of bereavement leave entitlement provided above is insufficient. 7.5.4 Death Outside of Australia An employee will, on the death of a member of their immediate family outside Australia and where the employee travels outside Australia to attend the funeral, be entitled to a period not exceeding the number of hours worked by the employee in 2 ordinary days of work without loss of pay on each occasion on the production of satisfactory evidence of the death. 7.6 Public holidays 7.6.1 Where an employee is required to work on:

– the 1st January; – the 26th January; – the 25th April (Anzac Day); – Good Friday; – Easter Saturday (the day after Good Friday); – Easter Monday; – The Birthday of the Sovereign; – Christmas Day; – Boxing Day;

in the case of continuous shift workers payment shall be at the rate of time and a-half with a minimum of 4 hours. In all other cases, payment shall be made at the rate of double time and a half for time actually worked with a minimum of 4 hours’ payment.

7.6.2 Labour Day All employees are entitled to be paid a full day’s wage for Labour Day (the first Monday in May) irrespective of the fact that no work may be performed on such day. An employee who works on Labour Day is paid at the rate of double time and a-half for time actually worked with a minimum of 4 hours payment. Employees rostered off or on annual leave on Labour Day shall be paid an additional 8 hours’ pay or an additional 8 hours’ leave shall be added to their annual leave in lieu thereof. 7.6.3 Annual show All work performed by an employee in the district for which a holiday is gazetted under the Holidays Act 1983 to be kept in relation to the annual agricultural, horticultural or industrial show shall be paid for at the rate of double time and a-half with a minimum of 4 hours:



Provided that in the case of continuous shift workers, the appropriate rate for time worked on such days shall be time and a-half with a minimum of 4 hours payment: Provided that, no employee shall be entitled to receive payment in accordance with clause 7.6.3 for work performed on such a day on more than one occasion in each calendar year. In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an ordinary working day that is to be treated as a show holiday for all purposes. 7.6.4 Penalty rates The additional penalty rates to be paid under clause 7.6 shall be calculated on the base rates of salary. For the purposes of clause 7.6 “double time and a-half” means one and one-half days’ salary in addition to the weekly rate and pro rata if there be more or less than a day. “Time and a half” means one-half days’ salary in addition to the weekly rate or pro rata if appropriate. 7.6.5 Employees who do not work Monday to Friday of each week

Employees who do not ordinarily work Monday to Friday of each week are entitled to public holidays as follows:

(a) A full-time employee is entitled to either payment for each public holidays or a substituted day’s leave. (b) A Part-time Employee is entitled to either payment for each public holidays or a substituted day’s leave provided that the Part-time

Employee would have been ordinarily rostered to work on that day had it not been a public holiday. (c) Where a public holiday would have fallen on a Saturday or a Sunday but is substituted for another day all employees who would ordinarily

have worked on such Saturday or Sunday but who are not rostered to work on such day are entitled to payment for the public holiday or a substituted day’s leave.

(d) Where Christmas Day falls on a Saturday or a Sunday and the public holiday is observed on another day an employee required to work on

Christmas Day (i.e. 25 December) is to be paid at the rate of double time.

Nothing in clause 7.6.6 confers a right to any employee to payment for a public holiday as well as a substituted day in lieu. PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK 8.1 Fares and travelling 8.1.1 Motor vehicle allowance Where employees undertaking official duties use their own motor vehicles an allowance, according to:

(a) the distance actually and necessarily travelled; and (b) the type of vehicle used; and (c) the location of the employee’s normal place of employment;

shall be paid as prescribed under Directive 13/01 Motor Vehicle Allowances, as issued and amended by the Minister of Industrial Relations under section 34 of the Public Service Act 1996.

8.1.2 Allowances for travelling or relieving

An employee:

(a) travelling on official duty shall be paid a travelling allowance; or (b) required to take up duty away from the normal place of employment to relieve another employee or to perform special duties,

is allowed actual and reasonable expenses or allowances for accommodation, meals, and incidental expenses necessarily incurred by the employee. These are prescribed under Directive 3/00 Travelling and Relieving Expenses, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996.

8.1.3 An employee required in the course of the employee’s work to live away from home for a period of not less than 5 consecutive days, and which

would incur a period of time spent travelling, shall be allowed 24 hours free from duty immediately preceding the employee’s departure from home and 24 hours free from duty upon returning home, provided that the employee returned home immediately after the conclusion of the period of duty.

8.1.4 An employee required in the course of the employee’s work to live away from home for a period of not less than 28 consecutive days, shall be

provided with a return journey home for each such period of 28 consecutive days at a time approved by the employer. PART 9 – TRAINING AND RELATED MATTERS 9.1 Training, learning and development 9.1.1 The parties to this Award recognise that in order to increase efficiency and productivity a greater commitment to learning and development is

required. 9.1.2 Accordingly, the parties commit themselves to developing a more highly skilled and flexible workforce and providing employees with career

opportunities through appropriate training to acquire additional skills and knowledge for performance of their duties.

9.1.3 A consultative mechanism and procedures involving representatives of management, employees and Unions shall be established.


9.1.4 Following consultation the Commissioner shall develop a learning and development strategy consistent with:

(a) the current and future needs of the agency; (b) the size, structure and nature of the operations of the agency; (c) the need to develop vocational skills relevant to the Agency through courses conducted wherever possible by accredited educational

institutions and providers.

9.1.5 Learning and development may be both on-the-job or off-the-job and either internal or external to the organisation. 9.1.6 Learning and development provided should assist employees in obtaining knowledge and skills recognised by the Australian National Training

Authority (ANTA).

9.1.7 All such learning and development should be directed at enabling employees to enhance skills relevant to duties to be performed. Employees will be expected to attend scheduled learning and development activities.

9.1.8 Clause 9.1 shall operate as an interim provision and shall be subject to review after 12 months operation. 9.2 Training arrangements In planning and conducting training activities, all employees are to ensure the following principles are observed:

(a) The health and safety of participants and the community is not compromised; (b) Adequate notice, planning and consultation are taken into account; (c) Quality training is provided equitably to all employees; and (d) Operational competency is taken into account.

PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES 10.1 Uniforms 10.1.1 All necessary uniforms and overalls shall be supplied by the employer free of cost to the employee. An employee shall make every reasonable

effort to maintain all such property in a clean and serviceable condition. 10.1.2 The cost of all necessary cleaning of employees’ fire fighting apparel such as turnout coat, overtrousers and gloves shall be borne by the

employer:

Provided that an officer authorised by the employer shall decide when such items require cleaning. 10.1.3 Boots shall be supplied by the employer free of cost to the employee. 10.1.4 Where an employee is able to establish to the satisfaction of the employer, that there is a requirement for boots to be made to measure, the

employer shall provide such boots. 10.2 Amenities and quarters 10.2.1 Hot water showers and a hot water supply shall be provided by the employer for the use of employees engaged in emergency response. 10.2.2 Employees shall not be required to do domestic work in any other officer’s quarters. PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS Preamble Clauses 11.1 and 11.2 replicate legislative provisions contained within the Industrial Relations Act 1999. In order to ensure the currency of existing legal requirements parties are advised to refer to Sections 366, 372 and 373 of that Act as amended from time to time. 11.1 Right of entry

11.1.1 Authorised industrial officer

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

(b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the relevant Union.

11.1.2 Entry procedure

(a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as:

(i) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and (ii) shows the authorisation upon request.

(b) Clause 11.1.2(a) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent.

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

(d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a trespasser.



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

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

(i) is ineligible to become a member of the relevant Union; or

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

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

(d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by

an authorised industrial officer.

11.1.4 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 relevant Union:

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

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

11.1.5 Conduct

An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry. 11.2 Time and wages record 11.2.1 An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period

for each employee, including apprentices and trainees:

(a) the employee’s award classification; (b) the name of the award under which the employee is working; (c) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and

details of work breaks including meal breaks; (d) a weekly, daily or hourly wage rate – details of the wage rate for each week, day, or hour at which the employee is paid; (e) the gross and net wages paid to the employee; (f) details of any deductions made from the wages; and (g) contributions made by the employer to a superannuation fund.

11.2.2 The time and wages record must also contain:

(a) the employee’s full name and address;

(b) the employer’s full name:

(c) the employee’s date of birth;

(d) details of sick leave credited or approved, and sick leave payments to the employee;

(e) the date when the employee became an employee of the employer; and

(f) if appropriate, the date when the employee stopped employment with the employer.

11.2.3 The employer must keep the record for 6 years. 11.2.4 Such records shall be open to inspection during the employer’s business hours by an inspector of the Department of Industrial Relations, in

accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act. 11.3 Union encouragement 11.3.1 The parties recognise the right of individuals to join a Union and will encourage that membership. However, it is also recognised that Union

membership remains at the discretion of individuals. 11.3.2 An application for Union membership and information on the relevant unions will be provided to all employees at the point of engagement. 11.3.3 Information on the relevant Union will be included in induction materials. 11.3.4 Union representative/s will be provided with the opportunity to discuss Union membership with new employees. 11.3.5 Where requested by relevant Unions, the Queensland Fire and Rescue Service will provide payroll deduction facilities for Union subscriptions.


11.4 Union delegates 11.4.1 The parties acknowledge the constructive role democratically elected Union delegates undertake in the workplace in relation to Union activities

that support and assist members. That role will be formally recognised, accepted and supported. 11.4.2 Employees will be given full access to Union delegates/officials during working hours to discuss any employment matter or seek Union advice,

provided that service delivery is not disrupted and work requirements are not unduly affected:

Provided that service delivery and work requirements are not unduly affected, delegates will be provided convenient access to facilities for the purpose of undertaking Union activities. Such facilities include: telephones, computers, e-mail, photocopiers, facsimile machines, storage facilities, meeting rooms and notice boards. It is expected that management and delegates will take a reasonable approach to the responsible use of such facilities for information and communication purposes.

11.4.3 Subject to the relevant employee’s written approval and any confidentiality provisions, delegates may request access to documents and policies

related to a member’s employment. 11.5 Industrial relations education leave 11.5.1 Industrial relations education leave is paid time off to acquire knowledge and competencies in industrial relations. Such knowledge and

competencies can allow employees to effectively participate in consultative structures, perform a representative role and further the effective operation of grievance and dispute settlement procedures.

11.5.2 Employees may be granted up to 5 working days (or the equivalent hours) paid time off (non-cumulative) per calendar year to attend industrial

relations education sessions, approved by the Commissioner (or delegated authority). 11.5.3 Additional leave, over and above 5 working days non-cumulative (or the equivalent hours) in any one calendar year may be granted where

approved structures employees’ training courses involve more than 5 working days (or the equivalent). Such leave will be subject to consultation between the Commissioner (or delegated authority), the relevant Union and the employee.

11.5.4 Upon request and subject to approval by the Commissioner (or delegated authority), employees may be granted paid time off in special

circumstances to attend Management Committee Meetings, Union Conferences, and ACTU Congress. 11.5.5 The granting of industrial relations education leave or any additional special leave should not impact adversely on service delivery, work

requirements or the effectiveness and efficiency of the work unit concerned. At the same time such leave shall not be unreasonably refused. 11.5.6 At the discretion of the Commissioner, employees may be granted special leave without pay to undertake work with their Union. 11.6 Award posting A copy of this Award shall be exhibited in a conspicuous and convenient place on the premises of the employer so as to be easily read by employees. Dated 8 April 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 2 June 2003

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