here - United Firefighters Union Queensland

State of Queensland (Department of Community
Safety - Queensland Fire and Emergency Services) v
United Firefighters' Union of Australia, Union of
Employees, Queensland and Queensland Fire and
Rescue - Senior Officers Union of Employees (No. 2)
[2014] QIRC 224
State of Queensland (Department of Community
Safety - Queensland Fire and Emergency Services)
United Firefighters' Union of Australia, Union of
Employees, Queensland
Queensland Fire and Rescue - Senior Officers
Union of Employees
(Second Respondent)
s 149 Arbitration
23 December 2014
1 February 2013 (Directions Hearing)
10 May 2013 (Mention)
19 June 2013 (Directions Hearing)
24 - 28 June 2013
26 - 29 August 2013
9 - 10 and 25 - 26 September 2013
28 October 2013
1 November 2013
3 December 2013
19 December 2014
Deputy President O'Connor
Deputy President Bloomfield
Industrial Commissioner Knight
1. That a new Determination known as the
"Queensland Fire and Emergency Services Determination 2013" (the 2013
Determination) be made, operative from
8 December 2013 and have a nominal expiry
date of 1 October 2016.
2. That agreed provisions and matters in this
Decision which are the subject of a clear
decision are to operate from Sunday 15
February 2015.
3. The parties are directed to confer about
finalising all provisions of the 2013
Determination and report back to the Full
Bench, on a date to be advised, in mid-late
February 2015.
Act - relationship with s 149(5)(c) - relevance of
State’s financial position and fiscal strategy - impact
of strategy upon Commission’s decision - matters at
issue - dispute resolution and consultative
arrangements - wages - restrictions in present roster
provisions - excessive use of sick leave - excessive
overtime costs - need to reduce reliance on overtime
- desire to reduce cost base and improve flexibility part-time and casual employment options - reserve
roster - aggregate wage rate - employer’s claims
substantially granted - claims for new pay points and
allowances - such claims should be pressed on wholeof-service basis - new Determination to be made parties to firstly confer about agreed provisions duration of Determination to be 2 years 10 months.
Industrial Relations Act 1999, s 3, s 149, s 149(2)(a),
s 149(4), s 149(5),
Liquor Hospitality and Miscellaneous Union,
Queensland Branch, Union of Employees AND
Department of Community Safety (formerly the
Department of Emergency Services) and Another
Origin Energy Electricity Ltd & Anor v Queensland
Competition Authority & Anor [2012] QSC 414
R v Hunt; Ex parte Sean Investments Pty Ltd (1979)
180 CLR 322
State of Queensland (Department of Community
Safety - Queensland Ambulance Service) v United
Voice, Industrial Union of Employees, Queensland
(No. 2) [2014] QIRC 093
Mr A. Herbert, Counsel instructed Mr M. Moy and
Ms L. Bain of McCullough Robertson Lawyers, for
the Applicant.
Mr J. Spreckley with Mr J. Oliver and Mr G. Sottile,
for United Firefighters' Union of Australia, Union of
Employees, Queensland.
Mr A. Short and Mr D. Hermann for the Queensland
Fire and Rescue - Senior Officers Union of
On 28 November 2012 a Member of the Queensland Industrial Relations Commission
(Commission) reached a conclusion that further conciliation between the (then)
Queensland Fire and Rescue Service (later renamed to be Queensland Fire and
Emergency Services) (QFES), United Firefighters' Union of Australia, Union of
Employees, Queensland (UFU), Queensland Fire and Rescue - Senior Officers Union of
Employees (SOU) and a number of other Unions, in connection with their enterprise
bargaining negotiations, was unlikely to result in those negotiations being settled within
a reasonable time. Having reached that conclusion, the Member referred the matter for
Arbitration pursuant to s 149(1)(b) of the Industrial Relations Act 1999 (the IR Act).
After thirteen hearing days over the period from late June 2013 up to and including
3 December 2013 the Full Bench as constituted released a Decision on 9 December 2013
granting all classifications, other than senior officers, covered by the Queensland Fire
and Rescue Service - Certified Agreement 2009 (CA/2009/129) (the 2009 Agreement) a
first wage increase of 2.2% under this Determination operative from 8 December 2013.
In the case of senior officers, the increase awarded was 0.5% - in recognition of the fact
that the Member referring the matter for arbitration had Ordered, as an interlocutory
Order pursuant to s 230 of the IR Act, that senior officers be paid an additional 1.7%
from 15 November 2012. The reasons for that interlocutory Order are set out in the
Member's Statement of 28 November 2012.
This Decision deals with the fifty-one "matters at issue" between the parties to the failed
enterprise bargaining negotiations as recorded in the document marked ID28 in the
proceedings. In accordance with the provisions of s 831 of the IR Act, which came into
effect two days prior to the day on which our Decision was reserved, we are required to
determine the matter by reference to the provisions of s 149 of the IR Act as they stood
prior to the amendment operative from 1 December 2013.
Requirements of s 149
In arbitrating the matter the Commission has the arbitration powers it would have under
s 230 if that section applied to certified agreement negotiations instead of industrial
disputes: s 149(2)(a). Further, in exercising its arbitration powers the Commission is
required to limit its consideration to matters at issue during negotiations for the proposed
agreement: s 149(4).
Section 149(5) provides the following directions to the Commission in considering the
matters at issue:
"(5) In considering the matters at issue, the commission must consider at least the
following (a)
the merits of the case;
the likely effects of the commission's proposed determination, and any
matters agreed before arbitration, on employees and employers who
will be bound by the proposed determination;
the public interest, and to that end the commission must consider (i)
the objects of this Act; and
either (A) for a matter involving a public sector entity - the State's
financial position and fiscal strategy, and the financial
position of the public sector entity; or
for any other matter - the employer's financial position;
and the likely effects of the commission's determination on those
things; and
(iii) the likely effects of the commission's determination on the
economy and the community;
the extent to which the negotiating parties have negotiated in good
Importantly, in terms of the Commission's consideration of the matters before it, the
provisions of s 149(5)(c)(ii) were amended, to that recorded above, with effect from 12
June 2012. At the same time as those amendments were made, the Objects of the IR Act
as set out in s 3 were also amended to include the following provision:
"(p) ensuring that, when wages and employment conditions are determined by
arbitration, the following are taken into account (i)
for a matter involving the public sector - the financial position of the
State and the relevant public sector entity, and the State's fiscal
for another matter - the employer's financial position."
The debate around s 149
The nature of the 2012 amendments to s 149 of the IR Act and their impact on the
Commission's approach to arbitrating matters was the subject of considerable debate
between QFES and UFU. In summary (the written and oral submissions record the full
extent of the debate), the position adopted by each of these parties is set out below.
The gravamen of the amendments to s 149 is that the IR Act explicitly equates the "public
interest" with:
the objects of the Act; and
the State's financial position and fiscal strategy; and
the financial position of the public sector entity concerned.
[10] In determining a matter under s 149 by arbitration the Commission is required to
consider, or take into account, a number of matters. In so doing, it must balance the
competing considerations implicit in the listed matters by reference to the evidence and
submissions presented in the proceedings. Depending upon the facts and evidence,
particular matters which the Commission is required to consider will inevitably be
attributed a far greater practical significance in the proceedings than other matters.
Whilst all relevant matters must be considered, each of those matters will not always
have an equal bearing or impact on the outcome of the proceedings.
[11] Where, as here, a particular consideration (concerning the financial position of the State
and the public sector entity, and the fiscal strategy of the State) is added to the list of
stated mandatory considerations in both s 149(5) and in the objects of the IR Act itself,
that suite of considerations, must, by its very nature, be accorded very significant weight
in the overall assessment and outcome of the arbitration proceedings. In addition, where
the State has:
developed and implemented strict wages policies as part of a package of
fiscal repair measures intended to effect significant changes to the economic
structure of Queensland; and
announced those measures and included them as part of the Government's
plan to restore the State's finances to the desired parameters within a stated
timeframe; and
amended the governing legislation to ensure that such matters are required to
be considered by the Commission in arbitrating wages and conditions for
public sector employees,
it is plain that such considerations must be placed at the forefront of the Commission's
deliberations in these proceedings.
[12] The amendment of s 149(5) of the IR Act, by consciously equating the "public interest"
with the financial position of the State and its agencies and the fiscal strategy of the State,
and explicitly requiring consideration of those matters, is a clear recognition by
Parliament that any untoward or unbudgeted disruption to the financial position or fiscal
strategy of the State would have a direct and indirect effect on the interests of the general
public at large, being the whole population of Queensland.
[13] The "direct" affect will be a reduction in the funds available to provide other services to
the wider community. The "indirect" affect will be the potential undermining of the
Government's wages policy, with the consequences as outlined immediately above, and
also the undermining of enterprise bargaining itself, by raising the precedential
expectations that arbitration (rather than agreement) is a possible means of overcoming
the adherence by the State to the terms of the wages policy implemented for the benefit
of the general community1.
[14] As a consequence, the Commission has a critical role to play in deciding the "big issue"
as to whether or not the State may continue to implement its fiscal strategy in accordance
with its declared terms or whether the UFU/SOU have established a merit case for QFES
employees to be exempted from the constraints of that strategy, and for those employees
to have access to a more substantial proportion of the revenues of the State than the State
itself considers sound or appropriate in light of the existing financial position of the State
and its financial position and fiscal strategies.
[15] The amendments to s 149 should not take the focus of the Commission anywhere else
than may have been the case under previous arbitrations. The Commission has statutory
obligations to discharge and threats by the Government to terminate staff, close services
and the like, fall outside the statutory parameters which guide the Commission's
deliberations. The situation has not changed from previous arbitrations: the Commission
makes its determination, based upon the merits of the case, after which it is up to the
Government to prioritise its expenditure.
[16] UFU disagrees with the submissions of QFES to the effect that the amendments to s 149,
which explicitly require the Commission to consider the State's fiscal strategy and the
State's financial position and the financial position of the public sector entity, now require
the Commission to place those matters at the very forefront of its consideration. While
those matters are mandatory considerations, they have no more weight than any of the
other mandatory considerations and no more weight than any other consideration not
explicitly set out but which the Commission finds to be relevant.
[17] The State's financial position and fiscal strategy and the financial position of QFES have
no more weight than the other matters identified, and not necessarily more weight than
any other relevant matter that the Commission might consider. In this regard, the
authorities clearly indicate that in the absence of a requirement that specified matters are
to be accorded more weight or significance than others, the weight to be given to each
specified matter is to be decided by the decision maker2 3.
Taken from attachment AB1 to Affidavit of Byron Beavers, Exhibit 24.
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at [334] (ID 18 in the proceedings).
Origin Energy Electricity Ltd & Anor v Queensland Competition Authority & Anor [2012] QSC 414 (ID17).
[18] Having regard to the authorities and the terms of s 149(5) of the IR Act, UFU submits
there is no requirement in s 149 that any one of the matters mentioned is to
be accorded more weight or significance by the Commission than any of the
other mentioned matters; and
the weight to be given by the Commission to each of the matters mentioned
is to be determined by the Commission itself in light of its consideration of
the evidence and the submissions made by the parties.
Our conclusions in relation to the debate around s 149
[19] Any consideration of the provisions of s 149 cannot be undertaken in isolation from a
consideration of the relevant objects of the IR Act at s 3. This section sets out 17 objects
of which the following are most relevant to our determination of the matters at issue:
"The principal object of this Act is to provide a framework for industrial relations
that supports economic prosperity and social justice by (a)
providing for rights and responsibilities that ensure economic
advancement and social justice for all employees and employers; and
providing for an effective and efficient economy, with strong economic
growth, high employment, employment security, improved standards,
low inflation and national and international competitiveness; and
ensuring equal remuneration for men and women employees for work
of equal or comparable value; and
helping balance work and family life; and
promoting the effective and efficient operation of enterprises and
industries; and
ensuring wages and employment conditions provide fair standards in
relation to living standards prevailing in the community; and
ensuring that, when wages and employment conditions are determined
by arbitration, the following are taken into account (i)
for a matter involving the public sector - the financial position of
the State and the relevant public sector entity, and the State's
fiscal strategy;
(ii) for another matter - the employer's financial position."
(our emphasis)
[20] After considering the above objects we agree with the observations of the Full Bench4 in
State of Queensland (Department of Community Safety - Queensland Ambulance Service
v United Voice, Industrial Union of Employees, Queensland) (No. 2) [2014] QIRC 093
at [68] where the Full Bench observed "… In our view, the objects of the Act have a
tension between economic considerations and fair standards of wages and conditions for
employees. No one object has a primacy over the other."
[21] We also agree with the observations of the Full Bench in the following paragraph where
they stated "… While the setting of fair wages is an important consideration, the
combination of object (p) and s 149(5)(c)(ii) may be considered to give greater weight to
economic considerations when determining the wages component of a s 149 arbitration",
but would extend the Full Bench's reference to "fair wages" and "wages", respectively,
to include "and employment conditions" in each case.
[22] Given these observations, we have come to the conclusion that in arbitrating the matters
at issue between the parties we are required to consider the particular objects of the Act
mentioned in paragraph [19] but, in doing so, are required to give special attention and
consideration to the issue of how our decision can be accommodated within the State's
financial position and fiscal strategy, and the financial position of QFES.
The State's financial position and fiscal strategy
[23] Extensive evidence about the State's financial position and fiscal strategy was given by
Mr Alex Beavers, Deputy Under Treasurer - Fiscal, Queensland Treasury and Trade, in
the course of which he highlighted a number of findings of the Queensland Commission
of Audit which were contained in its interim report of June 2012. Mr Beavers said that
the Commission's interim report (a copy of which was attached to his affidavit) made a
number of important findings and recommendations which included the following:
Queensland was forecast to record a fiscal deficit of $9.5 billion in 2012-13,
with deficits expected to continue across the forward estimates to 2015-16;
the State's financial position was a result of a lack of fiscal discipline. Since
2005-06 Queensland had been living beyond its means, with expenses growth
significantly outstripping revenue;
Queensland Government debt, which had grown to $64 billion in 2011-12
was projected to rise to $92 billion in 2015-16, reaching $100 billion by
2018-19, unless immediate corrective action was taken;
Queensland's credit rating was downgraded in 2009-10, from AAA to AA,
after a continued increase in borrowing. This followed Queensland's ratio of
debt (net financial liabilities) to revenue rising from below 20% in 2005-06
to a figure projected to reach 100% in 2011-12 and 132% in 2012-13.
Queensland's financial position by 2011-12 was unsustainable. The State
was locked into a debilitating cycle of over-expenditure, ever-increasing
State of Queensland (Department of Community Safety - Queensland Ambulance Service) v United Voice,
Industrial Union of Employees, Queensland (No. 2) [2014] QIRC 093.
levels of debt and crippling increases in debt servicing costs. A major task
of fiscal repair was imperative to prevent further damage to the future
prosperity of the State.
in order to return Queensland to a position of financial strength, the
Commission of Audit recommended a two stage approach, viz:
stabilise the growth in debt and return the budget to General
Government fiscal surplus by 2014-15; and
reduce the accumulated total government debt to restore a AAA credit
rating and provide a buffer to keep that credit rating by reducing the
ratio of debt to revenue by 60% by 2017-18.
in its response to the Audit Commission's interim report tabled in Parliament
on 11 July 2012, the Queensland Government announced its commitment to
achieve a fiscal balance by 2014-15 by achieving $4 billion or more in
savings over 3 years and ensuring debt stabilised at around $85 billion in
2014-15. In order to achieve these targets, the Government outlined four
fiscal principals, as follows:
Principal 1 - Stabilise, then significantly reduce, State debt
Principal 2 - Achieve and maintain a General Government sector fiscal
balance by 2014-15
Principal 3 - Maintain a competitive tax environment for business
Principal 4 - Target full funding of long term liabilities such as
superannuation in accordance with actuarial advice.
Mr Beavers then went onto say:
In framing the 2012-13 Budget, the Government had regard for the
recommendations of the Independent Commission of Audit and made
savings by exiting activities that are not the domain of the Queensland
Government, reduced waste and made efficiencies in Government
activity as well as introduced specifically targeted revenue options.
The total net value of Budget measures between 2012-13 and 2015-16
is $7.766 billion consisting of:
$5.277 billion in expense measures
$0.812 billion in revenue measures
$1.677 billion in capital measures.
With employee expenses accounting for nearly half of Queensland
Government expenditure, reductions in employee expenses were
necessary to reduce the fiscal deficit and stabilise debt. All
departments were requested to make employee expenditure savings,
totalling $4.5 billion across 2012-13 to 2015-16, with Ministers and
Directors-General to determine the specific areas of the departments in
which savings would be made.
Reflecting the Government's fiscal repair efforts, employee expenses
were expected to grow on average 2.5% per annum between 2011-12
and 2015-16, in line with the Government's election commitment. It
was expected that there would be around 10,600 redundancies in 201213. The total reduction in FTE positions attributable to the fiscal repair
measures contained in the 2012-13 Budget was expected to be around
14,000. The difference is attributable to discontinuing temporary
positions and not filling vacant positions."
The expected employee expenses growth of an average of 2.5% per annum
mentioned in paragraph 11 of Mr Beavers' statement is to be compared with
that recorded in the findings of the Commission of Audit, which was to the
effect that over the period 2000-01 to 2010-11 employee expenses increased
by an average 8.7% per annum, comprising growth in employee numbers of
around 3.5% per annum and wages growth (including classification creep) of
around 5.2% per annum.
[24] Mr Beavers also said that ratings agencies take a very keen interest in enterprise
bargaining outcomes and management of employee expenses. They see this as a key test
of a Government's resolve to manage its budgets and achieve its fiscal principals. As
such, it is critical that the Government continues to demonstrate fiscal discipline by
ensuring that expenses are tightly controlled across all public sector functions. Wages
outcomes that exceed budgeted levels in any part of the public sector may cause rating
agencies and financial markets to question the capacity of the Government to apply the
level of expenditure control required to fully implement the State's fiscal strategy. Mr
Beavers also said that economic conditions were softer than expected when the 2012-13
Budget was prepared and that expenditure had also increased beyond that budgeted for
because of the need of the State to respond to various natural disasters.
[25] In concluding his evidence, Mr Beaver's stated:
"38. Any increases in excess of the wages policy will place pressure on the general
applicability of the wages policy itself. Through undermining the credibility
of the wages policy this would similarly undermine the Government's fiscal
strategy and ability to stabilise Queensland's financial position unless
consequential reductions in employee numbers can offset the increase in
[26] Evidence about the State's financial position and fiscal strategy was also provided by
Professor John Quiggin an economist currently employed as a Research Fellow at the
University of Queensland. He had been commissioned by a number of public sector
unions to prepare a report in response to certain questions posed to him which he titled
"Wage and Fiscal Issues in relation to the Queensland Public Service". He also tabled a
self-authored article "Queensland Commission of Audit Interim Report - June 2012: A
Critical Review".
[27] Part of the Brief of Evidence given to Professor Quiggin by those who commissioned the
report was a request for him to analyse, inter alia:
the overall state of the Australian economy;
the overall state of the Queensland economy;
projected movements in the cost of living over the next three years;
a comparison of movements in the Wage Price Index in both the private and
public sectors in Australia and Queensland, respectively;
an analysis of the Queensland Government's fiscal position and policies
taking into account a range of matters including the Commission of Audit
Report; and
undertake a variety of investigations, and provide comment in relation to, the
current fire service levy.
[28] In the course of the conclusions contained in the first Report mentioned above, Professor
Quiggin stated:
contrary to claims made in the Commission of Audit interim report
Queensland does not face a fiscal crisis;
fiscal difficulties in the current budget arise from the fact that the
Government has adopted logically inconsistent goals of maintaining service
standards while cutting taxes and reducing debt;
on balance, the fiscal position in Queensland is similar to that in other States.
The global financial crisis and natural disasters have had some impact on the
State's balance sheet, but net worth remains strongly positive;
the absence of a AAA credit rating has only had a modest impact on
borrowing costs;
the Government's desire to improve its fiscal position by reducing wages
below the level that would be expected on the basis of ordinary wage-setting
processes is no different from that of any other employer seeking to finance
mutually inconsistent objectives at the expense of its employees.
[29] Professor Quiggin also filed a further affidavit in which he commented on the evidence
given by Mr Beavers, during the course of which he made the following points:
the "fiscal balance" measure proposed by the Commission of Audit is not a
standard measure of budget balance. It mixes current and capital expenditure
and takes no account of the value of capital assets;
the standard measure of current budget balance is the operating surplus or
deficit, not the "fiscal balance" as adopted by the State Government;
the Government's focus on gross debt is inappropriate since it is worsened by
the acquisition of assets, even when the value of those assets exceeds their
cost. In any event, the ratio of debt to revenue was projected to peak in 2012
under existing policy settings and was projected by the Audit Commission to
decline from 2012-13.
[30] As interesting as Professor Quiggin's evidence might have been, it was only marginally
relevant in informing us about the financial position of the State and totally irrelevant in
assisting us to identify the State's fiscal strategy. For example, it is not relevant that
Professor Quiggin might not agree with the Government's acceptance of the Audit
Commission's finding that the State's level of debt is too high and that steps should be
taken to stabilise and then reduce it. Equally, it is not relevant that he advocates a
different approach to that chosen by the Government to focus on gross debt levels and
achieving a fiscal balance.
[31] What is relevant is that the Government has decided that the level of debt, and the cost
of servicing it, had reached unacceptable levels and, as a result, has chosen to adopt the
recommendation of the Audit Commission that it should, firstly, stabilise the growth in
debt and return the budget to General Government fiscal surplus by 2014-15 and,
secondly, reduce accumulated total Government debt to restore a AAA rating. To
achieve that result it has committed to four fiscal principles (its fiscal strategy) as
identified above in Mr Beaver's evidence. In addition it has established, as an integral
part of its fiscal strategy, a wages policy which requires agencies to fund any wages
outcome above 2.2% per annum from internal sources, even if this means staff reductions
or reductions in service delivery.
[32] In terms of a summary of our views in relation to the State's financial position and fiscal
strategy and Professor Quiggin's evidence in relation thereto, we adopt the reply
submissions of QFES, as follows:
"127 Professor Quiggin did not contest that there is a very substantial State debt
which, at some indeterminate time in the future, must be repaid by the present
and future generations. Whether or not the Audit Report can be characterised
as presenting State debt in its worst case scenario (and it is submitted that it
did not) the relevant fact for the purposes of these proceedings is that the
State has accepted the advice that the current level of debt is too high to be
carried by the Queensland economy, and ought to be consolidated and
reduced as quickly as is feasible.
128 Having adopted that particular fiscal strategy and the operational steps
needed to implement that strategy, the Commission is required by the Act to
then consider the implications of its decision upon that strategy. It is not
required to consider what Professor Quiggin might think to be a better or
alternative strategy, or to consider the effect of its decision on a strategy that
does not exist.
130 … the submissions to the effect that Professor Quiggin thinks that the
economy is not in poor shape are of no consequence whatever in these
proceedings, so long as the State has accepted that the levels of debt which
do exist are well in excess of safe or acceptable levels and so long as the State
is actually implementing a definite fiscal strategy to reduce that debt.
131 It is not contended by any party or witness that the reduction of State debt is
a bad thing or that it is an unacceptable strategy that should be given short
shrift by the Commission. The speed at which that debt might be reduced is
a matter for political debate, but that debate has been settled by the decision
of the State, and that decision is the factor which must be considered by the
Commission as to its propriety or rationality."
The financial position of QFES
[33] Ms Fiona Burbidge, Acting Chief Finance Officer, Department of Community Safety,
gave evidence about the financial position of QFES. She said that funding for QFES
came from three sources, as follows:
approximately 70% from fire levies collected by local government councils
through rate notices and remitted to QFES;
approximately 19% from the State's Consolidated Fund; and
the remainder from user-pays charges (approximately 10%), grants,
contributions and other revenues.
[34] Average annual growth in QFES operating revenues are forecast to be 3.6% per year over
each of the 2012-13 to 2014-15 budget periods. During this period QFES will be required
to contain its operating expenses, including capital expenditure, within its estimated
funding limits.
[35] The forward estimates for QFES include an increase of 2.2% per annum in wage costs,
including costs directly associated with the aggregation of pay rates and costs associated
with the introduction of a Technical Rescue stream. In light of the Government's wages
policy the above costs will have to be funded internally. There was no capacity for QFES
to seek additional funding to cover any employee-related costs above the 2.2% mentioned
above. Any such costs above those budgeted for would necessitate QFES having to fund
such costs by taking funds presently allocated to other items of expenditure, which could
lead to: additional reductions in employee numbers; reductions in the capital expenditure
program; placing restrictions on the capital expenditure program; placing restrictions on
the purchase of operational equipment; and, service delivery closures.
[36] In a supplementary affidavit Ms Burbidge addressed the funding of QFES following an
announcement in the 2013-14 Queensland State Budget to recast the Urban Fire Levy as
the Emergency Management, Fire and Rescue Levy. This new levy was proposed to
apply to those areas of Queensland that were previously outside an urban fire levy
district, within income gained to be utilised to help offset the cost of provision of
emergency services. Ms Burbidge said that while this change would deliver more income
from non-government sources, it would also have to be utilised to fund the operational
cost of providing emergency management, fire and rescue services, which included
QFES, within the Department of Community Services. Importantly, it would not lead to
a greater level of available income - merely an alteration in the proportions mentioned in
paragraph [33].
The likely effects of the Commission's determination on QFES, its employees, the
economy and the community
[37] In a supplementary affidavit, Mr Beavers referred to a Cabinet Budget Review
Committee (CBRC) Minute, "Fiscal Strategy Relevant to Public Sector Arbitration
Proceedings", which was made known to Queensland Treasury and Trade on 3 May
2013. Because of the way it impacts the environment in which the Full Bench is required
to make this Determination it is necessary to record the full content of the CBRC Minute,
as below:
"Fiscal Strategy Relevant to Public Sector Arbitration Proceedings
This Minute has been prepared at the direction of the Cabinet Budget Review
Committee (CBRC) for the purposes of arbitration proceedings being
conducted (and to be conducted) in 2013 and 2014 in accordance with the
Industrial Relations Act 1999 (the Act).
Section 149(5)(c)(ii) of the Act relevantly provides that for the purposes of
arbitrations under section 149 the Queensland Industrial Relations
Commission (QIRC) must consider inter alia the following:
"… for a matter involving a public sector entity - the State's financial
position and fiscal strategy and the financial position of the public
sector entity; … and the likely effects of the Commission's
determination on those things; …"
This Minute describes those elements of the fiscal strategy of the State which
are considered by CBRC to be relevant to the QIRC arbitrations scheduled
for hearing in 2013 and potentially 2014, and which therefore must be
considered by the QIRC under section 149(5)(c)(ii)(A) of the Act.
This Minute is intended to inform the QIRC, and each of the parties to the
arbitration proceedings, of the content of the State's fiscal strategy for the
purpose of assisting the QIRC (and the parties) to comply with section
149(5)(c)(ii) of the Act.
Queensland's fiscal circumstances have required that the State formulate a
fiscal strategy which includes the adoption of a new set of fiscal principles
aimed at improving the sustainability of the State's finances. With employeerelated expenses accounting for almost half of all General Government
expenses, wages outcomes are critical in the achievement of three of the four
new principles. These are:
stabilise, then significantly reduce, State debt;
achieve and maintain a General Government sector fiscal balance by
2014-15; and
target full funding of long term liabilities such as superannuation in
accordance with actuarial advice.
Accordingly, as a critical part of the fiscal strategy, the State has adopted the
CBRC-approved wages policy for the Queensland public sector, for the
purpose of exercising restraint over employment expenditure. That policy
provides that budget supplementation from the Consolidated Fund to
agencies, for the purpose of meeting the cost of increases to employment
related expenses, is limited to the amount necessary to meet the cost
associated with an increase of 2.2% per annum to existing employment
expenditure as at the date of a determination (excluding the effect of any
interim pay increase agreed to or awarded in association with the arbitration
process), which increase may consist of:
the costs directly associated with the aggregation of existing wages and
allowances, and/or the creation of an aggregated allowance, howsoever
called, in the form proposed by the agency in the arbitration; and/or
increased wage rates to assist in offsetting cost-of-living pressures for
employees; and/or
the costs of implementing such other changes to the employment
arrangements and structures in the agency as are expressly authorised
by the CBRC or the Public Service Commission ("PSC") before the
commencement of the arbitration hearings.
Any additional employment cost which exceeds 2.2% per annum, and which
is imposed upon the agency by or as a consequence of any determination by
the QIRC, will be borne by individual agencies from within their budget
allocation (supplemented by the amount referred to in paragraph 6), and the
agency concerned will be required to otherwise reduce expenditure to meet
any such additional employment cost.
The only exception permitted will be in a case where the authorisation by the
CBRC or the PSC given under paragraph 6(c) above, exempts such
expenditure from the operation of paragraph 6 and 7 of this Minute.
Supplementation may be granted for any such expenditure where it causes
the employment costs of the agency to exceed 2.2%.
As part of the fiscal strategy, an agency will not be permitted by the State to
increase any charges that it may levy or collect for services it provides to the
public, for the purpose of meeting or offsetting any such additional
employment costs.
The State is resolute in strictly implementing this CBRC policy as a key part
of its fiscal strategy. It should be assumed by the QIRC and any party to the
arbitrations that, if employment costs are increased by more than the amounts
described in this Minute, no further supplementation to affected agencies will
be provided by the State to offset that cost. This action is in accordance with
the overall State fiscal strategy which requires the imposition of strict fiscal
discipline upon all public sector entities.
It is also an element of the State's fiscal strategy that savings in employment
or operating costs which are generated by efficiency initiatives, whether
through enterprise bargaining processes, determinations of the QIRC or
general budgetary considerations, are to be directed to reducing overall State
debt, and will not be available as additional supplementation of the budget
allocation to the agency concerned, so as to permit the agency to exceed the
fixed supplementation amounts referred to herein. All such potential savings
have been taken into account by CBRC in formulating its wages policy and
determining the permitted level of supplementation. The only exception to
this position is if, in the context of enterprise bargaining, approval is given to
an entity to offer up to an additional 0.3% wage increase, which amount is
offset by real cashable savings. That circumstance does not apply to QIRC
CBRC authorises Queensland Treasury and Trade and the Public Service
Commission to convey to the QIRC and other relevant parties, the
information contained within this Minute."
[38] In summary the Minute makes the following points:
because employee-related expenses account for almost half of all General
Government expenses, wages outcomes are critical in the achievement of
three of the four principals underpinning the State's fiscal strategy;
as a critical part of the fiscal strategy, the State has adopted the CBRC approved wages policy which provides that budget supplementation from the
Consolidated Fund to agencies for the purpose of meeting the cost of
increases to employment-related expenses is limited to 2.2% per annum on
existing employment expenditure as at the date of a Determination;
any additional employment costs which exceed 2.2% per annum, by or as a
consequence of any determination by the QIRC, will be borne by individual
agencies from within their budget allocation;
as part of the fiscal strategy, an agency will not be permitted to increase any
charges that it may levy or collect or services it provides to the public for the
purpose of meeting or offsetting any such additional employment costs;
savings in employment or operating costs which are generated by
determinations of the QIRC are to be directed toward reducing overall State
debt and will not be available as additional supplementation of the budget
allocation to the agency concerned so as to permit the agency to exceed the
2.2% per annum referred to above.
[39] Consequently, the effect of the above Minute is that while s 149(5)(c)(ii) of the IR Act
does not compel the Commission to apply the Government's position on wages and
employment conditions, the reality is that any increases in wages and employment-
related costs which exceed the figure set out in the Minute will (not might) lead to
reductions in employee numbers in the agency concerned and/or reductions in areas of
service delivery and/or reductions in capital expenditure, and the like. Such outcome is
confirmed in the evidence of Ms Burbidge, Mr Beavers and Mr Shane Donovan, Director
of Employee Relations, Department of Community Safety.
[40] As such, not only will the employer and employees directly concerned suffer a detriment,
any job losses and/or reductions in services and/or reductions in capital expenditure will
have a flow-on effect across the economy and the community. Indeed, the impact on the
economy and community generally as a result of Government decisions to reduce
employee numbers and expenditure levels, of the type referred to by Mr Beavers in his
evidence, was the subject of strong criticism by Professor Quiggin.
[41] It is against the background of the practical realities mentioned above that we proceed to
decide the 51 matters at issue between the parties and which we are required to arbitrate.
[42] The numbering system we have adopted to record our decision in respect of each item in
dispute reflects the order in which matters were dealt with in the QFES arbitration
submissions (ID 41) with the addition of two items dealt with in the submissions of the
parties which are recorded in ID 28 at QFES clauses 4.12 and 4.14, respectively. These
have been numbered as items 18 and 20, with item 19 dealing with clause 4.13 - Leading
[43] However, before turning to the items to be arbitrated it is necessary to address a particular
issue raised by UFU which requires decision.
Extent of the matters at issue
[44] In the course of its submissions UFU raised its concerns that QFES, by canvassing the
Government’s wages policy of 2.2%, was attempting to broaden the matters at issue by
requesting the Commission to take notice of the Government’s wages policy in
circumstances where it had never been raised during the course of the parties’ attempts
to negotiate a new certified agreement. Further, UFU argued that the employer’s last
wages offer had been 2.7% and, on that basis, the Commission could not consider the
current wages policy which “was concocted long after the negotiations for the proposed
agreement had ceased and the matters at issue between the parties were referred to
arbitration”. In UFU’s view consideration of the wages policy would be impermissible.
“A Government agency could alter, or raise, totally new bargaining claims during
arbitration, which were never at issue during proceedings, on the basis that they
purportedly form part of, or relate in some way to, the State’s ‘fiscal strategy’.”.
[45] In its reply submissions QFES rejected UFU’s contentions on two primary grounds:
“40. …Firstly, as the current wages policy is a part, and an essential part, of the
fiscal strategy as described by the CBRC, it is a matter which must be
considered under section 149(5), irrespective of whether it was ever the
subject of specific negotiations between the parties.
The specific requirement for that matter to be taken into account under
section 149(5) displaces entirely the question as to whether it was ever
mentioned in negotiations or formed any part of the discussions between the
parties. It is directly required to be taken into account and that requirement is
not displaced by the terms of section 149(4).
Secondly, the submission is wrong as a matter of fact. The submission
appears to come down to the suggestion that to the extent that here is “ambit”
in these proceedings, in relation to wage increases, the base wage adjustment
ambit range is said to be between 2.7% to 3.75% per annum.
This is a complete misunderstanding of the nature of the proposal put forward
by the QFRS. The offer by the QFRS in the course of the negotiations, so far
as the evidence disclosed it, was a proposal to pay ‘up to’ 2.7%. That was a
maximum payment, not a minimum payment…”.
[46] In support of its submission that the employer’s offer was “up to” 2.7%, QFES referred
to the evidence of Mr Donovan (at T8-9) to the effect that QFES had offered to pay up
to 2.7% if UFU agreed to its claims. “In plain English terms, this means that if there was
any lack of acceptance of any of the proposals on the part of the State, the amount which
would be subsequently agreed would be less than 2.7%. This means that the ambit of the
offer by the employer at that time was between 0% and 2.7%.”.
[47] In the circumstances of this case we do not accept the submissions of UFU about the
employer’s last wage offer “of 2.7%” setting the “base” in terms of the lowest figure we
can decide in arbitrating the matters at issue between the parties. Rather, we agree with
QFES’s reply submissions on this point, as follows:
“47. …the ambit in the proceedings, to the extent that it is necessary to ascertain,
is between 0% and 3.75% per annum.
As submitted in transcript on 1 November 2013, the Industrial Court in the
Sun Metals case decided that the matters in issue for the purpose of section
149(4) is a question of fact to be determined by the Commission. This
requires an ascertainment of precisely what is meant by the ‘matter’. In this
case the ‘matter’ is the quantum of a wage increase in circumstances where
one party was offering ‘up to’ 2.7% subject to the achievement of certain
concessions, and the other party was offering to accept 3.75%.
In those circumstances, the matter in issue was the overall question as to:
whether a wage increase should be granted with or without cost offsets;
what the extent of the wage increase should be; and
what the extent of any offsets should be.
It is artificial and nonsensical to confine the concept of ‘matter’ in those
circumstances as being confined to numerical offers being exchanged
between the parties in circumstances where they were all subject to cost
offsets and concessions that were never made. The only sensible way to
characterise the ‘matter’ which was undoubtedly an issue, is the overall
notion of the quantum and offsets necessary to meet the cost of wage
increases generally, without artificially confining the identity of that ‘matter’
by numbers bandied around by the parties in the proceedings…”.
[48] We also do not accept UFU’s argument that we are not able to take notice of the
Government’s wages policy or to take it into consideration in deciding the matters at
issue between the parties. As highlighted by QFES in its reply submissions (above), and
by this Full Bench earlier in our Decision, the Commission is actually obliged to consider
the State’s financial position and fiscal strategy, an integral part of which is the CBRC –
approved wages policy, in reaching its overall decision in these proceedings. That
obligation is absolute and is not displaced, or otherwise diminished, by the terms of s
Item 1 - Date and period of operation
[49] For reasons set out below we have decided to make a new Determination to apply to:
employees employed by QFES for whom rates of pay, conditions of
employment and entitlements are provided therein; and
those Unions covered by Awards of this Commission identified at clause 1.3
of document ID 28.
[50] The Determination to be made as a result of this Decision will be known as "Queensland
Fire and Emergency Services - Determination 2013" (the 2013 Determination). The date
of operation for the 2013 Determination is 8 December 2013, which is the date from
which the first wage increase was granted. A different operative date will apply to other
matters dealt with in this Decision. The nominal date of expiry of the Determination will
be Saturday 1 October 2016, as recorded below.
Item 2 - Relationship to awards
[51] The parties are unable to agree the full extent of the wording to be included in the
Determination at clause 1.3. In the absence of any real argument on this point we have
decided to adopt the general wording proposed by QFES, with some modification to the
proposed clause 1.3.2 which will read as follows:
"1.3.2 In the event of any inconsistency with any provision in an award listed in
clause 1.3.1, the terms of this Determination will apply to the extent of the
[52] In addition, we note that the parties' reference to the General Stores, Warehousing and
Distribution Award - State 2003 is not relevant on the basis that this Award was made
obsolete on 30 July 2013.
Item 3 - Closed Determination and no extra claims
[53] UFU seeks to include a clause (2.2.3) that allows for changes to be made to employees'
rights and entitlements during the life of the Determination where those changes arise as
a result of:
general rulings, statements of policy and decisions issued by the
any improvements in conditions that are determined on a whole-ofgovernment basis; and
[54] QFES opposes the inclusion of any reference to "decisions" and improvements on a
whole-of-government basis but otherwise agrees with the clause proposed by UFU.
[55] In the absence of any detailed debate on the issue, and noting that s 150(8) of the IR Act
provides that a Determination cannot be amended during its life, we are prepared to
include the clause proposed by UFU subject to:
the deletion of the reference to "decisions" in the first point;
the inclusion of a provision which clearly excludes wage increases arising
from State Wage Case decisions; and
the inclusion of the words "of employment" in the second point after the word
[56] In terms of the disagreement about no extra claims we believe the clause proposed by
QFES (2.2.1) to be more representative of the relevant legislative provisions and will
incorporate it in the Determination.
Item 4 - Dispute resolution
Item 51 - Consultation and dispute resolution
[57] QFES seeks the inclusion of a provision in the Determination which is to apply to any
dispute in relation to the operation or interpretation of the Determination. In proposing
such clause, QFES makes it clear that it opposes the inclusion of compulsory consultative
mechanisms on the basis that QFES and its employees have a long history of co-operating
in matters of consultation and that it should be allowed the freedom to treat its staff
accordingly without imposed and restrictive measures that have the appearance of being
legally enforceable, even if they are no longer useful.
[58] On the other hand, UFU seeks the inclusion of more substantive provisions which are
predicated on the parties adopting a co-operative and consultative approach to preventing
and settling disputes at a state, local and individual level. In particular, UFU seeks the
inclusion of provisions which would have the effect of requiring QFES to participate in
regular "issues forums", which would discuss issues specific to particular employee
groups or workplaces, as well as a requirement for QFES to consult with the relevant
unions about "major issues or common issues affecting a major part of QFES".
[59] UFU submits that while QFES states that it is its intention to continue with existing
consultative arrangements, its claim that such provisions should be removed from the
Determination, as an administrative measure because they are not needed, does not sit
comfortably with its stated intentions. As such, in UFU's view, there should be no
controversy about including the modified consultative and dispute resolution provisions
proposed by the Union. The inclusion of such provision would also act to maintain
"sensible, mature, industrial processes" should QFES change its mind in the future.
[60] In terms of its claim for a specific consultative process to address establishment levels
and staffing issues, UFU highlighted the evidence of Inspector/Area Commander Mark
Gribble who provided evidence about the need to ensure that appropriate staffing
numbers are applied in fire and rescue operations from both a health and safety
perspective and a fire suppression perspective, respectively. In addition, the Union
pointed to the evidence of Station Officer Cameron Corneal who highlighted his concerns
about the lack of 24/7 coverage at the Airlie Beach Fire Station and his unsuccessful
attempts to have the management of QFES address and resolve those concerns.
[61] Although QFES argued very strongly that the Determination should not contain any
provisions which require it to consult with UFU about matters previously canvassed
during the course of issues forums, or about establishment levels and staffing issues, its
principle witness, Acting Deputy Commissioner Mark Roche, acknowledged there would
be no prejudice (T 5-28), nor any problems (T 5-29), if consultative provisions were
contained in the new Determination. Indeed, his commitment, on behalf of QFES, to the
continuation of consultative arrangements extended to including such obligation in a
Standing Order issued by the Fire Service Commissioner, or other document (T 5-29).
[62] The evidence of the employer and Union witnesses points to a long history of
consultation between the parties in terms of managing their relationship and attempting
to address both minor and major matters as they rise. For that reason we are loath to
remove consultative provisions from the new form of industrial instrument which will
regulate the parties' relationship and to, in effect, leave it to the good graces of QFES to
do what it says it intends to do. In our view, employees to be covered by the
Determination are entitled to be aware of their capacity to raise issues with their
employer, through appropriate forums, as well as to know how any grievances or disputes
they might have, either as individuals or as a group, can be raised and addressed.
[63] As such, we have decided that a "hybrid" consultation, complaints management and
grievance procedure should be included in the Determination in a form which reflects the
following aspects:
the continuation of regular "issues forums" at a State level, where important
issues in the parties' relationship can be raised and addressed;
the establishment of appropriate processes to allow the parties to consult each
other on matters affecting the implementation and future operation of this
Determination (this does not necessarily require the creation of a separate
consultative process to that referred to immediately above); and
a disputes resolution process which records how any disputes in relation to
the operation or interpretation of the Determination, as well as any dispute
about any industrial matter, may be progressed.
[64] We envisage that the latter requirement can be accommodated through minimal changes
to the dispute resolution provision proposed by QFES at clause 2.3 of ID 28.
Item 5 - Wages
[65] Each of UFU and SOU seeks wage increases of:
7.5% from 1 July 2013
3.75% from 1 July 2014.
[66] The first increase claimed contemplates 2 x 3.75% annual wage increases to cover the
two year period from 1 July 2012 - 30 June 2014 and is said to reflect the fact that the
last wage increase granted to employees to be covered by the proposed Determination
covered the period 1 July 2011 until 30 June 2012. Each Union also argued that because
of the fact that the last wage increase occurred on 1 July 2011, employees' wages and
salaries had declined and no longer represented fair standards in relation to living
standards prevailing in the community.
[67] In support of its claims UFU called evidence from Professor John Buchannan, Director
of the Workplace Research Centre at the University of Sydney. Professor Buchannan
provided a range of data dealing with movements in average weekly ordinary time
earnings (AWOTE) and the wage price index (WPI), respectively. In relation to
AWOTE, he said that "since 2008 public sector workers in Queensland have fallen
behind their national peers, while earnings in the Queensland private sector continue to
outpace the Australian private sector at large". After comparing both data sets (i.e.
AWOTE and WPI) he opined that "public sector workers generally, and in particular
those in Queensland, have experienced adverse changes relative to their peers in the last
three years."
[68] Reliance was also had on Professor Quiggin's reports in which he said "an annual rate of
wages growth of around 4.5% was justified" (P3 - Exhibit 44) and that "on standard
wage-setting principles, a productivity-based increase is justified" (P37 - Exhibit 46).
His evidence, as well as that given by Professor Buchannan, was relied upon by UFU to
support its claim for a 3.75% per annum wage increase which it argued "is moderate and
well within the wage movement trends in the community."
[69] In addition to pursuing the levels of wage increases mentioned above, SOU also sought
an additional increase for senior officers based on work value grounds. In its submissions
SOU said that the evidence it led during the proceedings showed that, since 2009, there
has been a clear and substantial increase in senior officers' workloads accompanied by,
and attributable to, increases in a variety of matters including: complexity of work;
increased hours of work; additional skills, responsibilities, and accountabilities. There
had also been a substantial decrease in staffing levels which further increased the
workload and hours of work performed by senior officers. In addition to the above
matters, amendments to the Disaster Management Act 2003 in 2010 had seen senior
officers of QFES take a leading role in preparing for, and coordinating responses to,
disasters in Queensland, other States and internationally. In arguing for a wage increase
based upon work value grounds SOU relied upon a number of witness affidavits, details
of which appear at the foot of pages 3, 4 and 5, respectively, of its written outline of
[70] The increases claimed by UFU and SOU were strongly opposed by QFES which argued
that the Commission should not grant a wage increase which exceeded 2.2% per annum,
at 12 monthly intervals, over the proposed 3 year life of the Determination. In doing so,
QFES made extensive reference to the evidence of Mr Beavers and Ms Burbidge as it
related to establishing the financial position of the State Government and of QFES,
respectively, as well as the State's fiscal strategy. In particular, QFES highlighted the
CBRC Minute and QFES's incapacity to fund any increase in employment costs above
2.2% if the Commission was minded to grant an increase above that level.
[71] In that respect, QFES said that if the Commission was considering whether to award a
wage increase in excess of 2.2% per annum it was required to consider the financial
position of the agency concerned and the effect of its decision on the agency. In particular
the Commission was required to understand and accept that QFES would be required by
strict Government policy to sacrifice other programs and/or employment numbers in
order to provide the necessary supplementation of funding to meet any increase in wages
which exceed the Government's wages policy.
[72] QFES also highlighted that the Government's wages policy was not targeted at QFES's
employees. It was part of a wider fiscal strategy which had been decided by the
Government in its role of the manager of the finances of the State in the interest of all
Queenslanders. Such matters were all relevant facts, the impact of which the
Commission was required to consider when determining the quantum of the increase in
wages of employees in all public sector entities, including QFES.
[73] In the concluding parts of its submissions on this topic QFES said:
"108 It is submitted that it would be an extraordinary step for the Commission in
section 149 proceedings to impose an outcome on the State that is a measure
that is directly contrary to the budget and fiscal repair strategies of the State
in its management of the whole economy, and a measure that the State could
not agree to in enterprise bargaining without breaching its own published
109 There is no reason offered by UFU/SOU in these proceedings as to why
QFRS employees should be spared conformity with the wages outcomes
which are intended to assist the fiscal repair measures undertaken by the State
of Queensland for the benefit of all, and which have been accepted by a wide
range of other public sector employees.
110 In these circumstances, it is not productive to debate whether or not the State
can ‘afford’ to pay higher wages than those on offer. Clearly on a whole of
government basis the extra costs involved are not capable of placing the
government of Queensland into financial default. However, that is not the
issue, nor is it the question to be answered.
111 Section 149 of the Act requires the Commission to consider, and to take into
account, the State’s fiscal strategy as a whole, and also the impact of that
strategy on the State agency in question. The fiscal strategy of the State is,
by definition, the strategy which the State adopts to manage the Treasury and
the State economy as a whole. As approximately half of State expenditure is
employment costs, the wages policy is an important tool in the management
of the whole economy.
112 To compromise an important part of that strategy which is being
implemented across the whole public sector, is to potentially damage the
integrity of the whole of that strategy, which it is submitted would be an
inappropriate outcome for the Commission to decide. To consider that
strategy, and to then determine that it can be breached on this occasion
without adverse consequences, or that the expected consequences for the
State and QFRS are tolerable, is a decision within the jurisdiction and power
of the Commission to make, but it is submitted that to accede to the
UFU/SOU request would be to accept an invitation to error of significant
113 Further, the Commission must consider the objectives of that fiscal strategy,
and the State-wide importance of it, together with the implications for that
strategy of ordering a departure from it to advantage the employees of a
relatively small agency such as QFRS.
114 As submitted, the Commission must consider whether the imposition of
further cuts in programs and/or staff, as would be required to pay the higher
wages of existing staff, where there is no capacity on the part of QFRS to
absorb higher wages in its budget, is an appropriate and acceptable outcome
of these proceedings."
[74] Given the content of the CBRC Minute, the persuasive argument of QFES as set out
immediately above and the direct impact any decision we might make to go beyond the
"limit" set out in the Government's wages policy will have on QFES and its workforce,
we are not persuaded to award any increase beyond the 2.2% per annum figure proposed
by QFES but have decided, for a combination of reasons including the operative dates
and duration of the Determination made by another Full Bench in the Ambulance matter5,
that the wage increases that will apply during this Determination will be:
2.2% from Sunday 8 December 2013 (the commencement date of this
2.2% from Sunday 4 January 2015; and
2.2% from Sunday 25 October 2015.
[75] We have also decided that the 2013 Determination will nominally expire on Saturday
1 October 2016. This means that while the first "year" of the Determination will run for
approximately 13 months, the second "year" will run for approximately 10 months, with
the final "year" to run for 11 months.
State of Queensland (Department of Community Safety - Queensland Ambulance Service) v United Voice,
Industrial Union of Employees, Queensland (No. 2) [2014] QIRC 093.
Item 6 - Superannuation
[76] UFU seeks the inclusion of a provision which would require QFES to include the 38 hour
week allowance in its calculation of superannuation contributions. The Union
submission is that because the 38 hour week allowance is paid to employees in lieu of
reducing their ordinary working hours from 40 to 38 per week, and is paid on all leave,
it should be regarded as part of each employee's ordinary wages and, for that reason,
should be superannuable. The claim is primarily opposed by QFES on the basis it is not
supported by any evidence or other relevant material but also on the basis it cannot be
accommodated within the Government's wages policy. Further, QFES submits that the
definition of ordinary time earnings is regulated by federal law and no case has been
made out as to why those provisions should change in relation to employees of QFES.
[77] Given the lack of evidence or submissions in support of the claim, as well as the precedent
it would create if granted, we have decided to reject UFU's claim.
Item 7 - Salary sacrifice
[78] Although the parties are in agreement that the existing clause 3.2 of the 2009 Agreement
should be reflected in the Determination, we require that it be amended to delete the
reference to employees being able to salary sacrifice "up to 100% of salary to
superannuation". While that might have been the case at some point in the past, the
amount an employee may salary sacrifice has been subject to numerous legislative
changes since the 2009 Agreement was negotiated.
[79] The relevant provision to be included in the Determination should reflect that employees
are permitted to salary sacrifice "up to the maximum amount permitted by
Commonwealth superannuation guarantee legislation".
Item 8 - Hours of work and rosters
[80] Except for the process to be adopted for the setting of the pattern of working hours for
employees other than continuous shift workers, these provisions are agreed. The point
of difference between QFES and UFU is that while UFU seeks the inclusion of a
provision which would permit the employer to set the pattern of working hours, that is to
be after "having due regard to the work requirements and the wishes of the employee".
QFES opposes the provision pressed by UFU on the basis it is capable of being
misrepresented as a requirement to consult and in a manner which may give rise to an
attempt by an employee to veto the employer's proposal.
[81] We agree with QFES that the existing provision is capable of being interpreted in the
manner it suggests. Notwithstanding that situation, we are also concerned that adoption
of the words proposed by QFES might lead to situations where working hours
arrangements are changed by local management without consideration of the potential
impact it might have on an individual employee or employees.
[82] In such circumstances, we propose to add the words "after consultation with the affected
employee or employees and, where requested by the employee(s), their Union
representative" after the words proposed by QFES at clause 4.1.4 of ID28.
Item 9 - Flexible work practices
[83] QFES seeks the inclusion of what can only be described as a statement of its intentions
to adopt more flexible work practices in the future by availing itself of a number of
additional provisions which it seeks to have included in the Determination. These new
provisions include the capacity to engage casual employees and to utilise part-time,
temporary and job share arrangements. The proposed provision is opposed by UFU on
the basis it does not prescribe any rights or obligations and is confusing.
[84] We note UFU's submission that the proposed provision is not agreed and also note the
fact that the proposed wording is, in essence, a statement of the employer's intentions to
act in a particular way in the future. In our view, such a provision should not be included
in an arbitrated outcome in the form of a Determination. QFES's proposal is refused.
Item 10 - Establishment levels and staffing issues
[85] UFU seeks the inclusion of a provision which would have the effect of:
requiring QFES to meet with it to discuss staffing levels in all stations and
functional areas with a view to optimising the allocation of resources based
upon current conditions and predicted growth in population, industrial
development and the like; and
requiring QFES to meet with it at least annually to attempt to agree relative
priorities for any changes in existing stations' staffing levels, method of
operation (e.g. 5/7, 24/7), appliance types and the like.
[86] The provision is opposed by QFES on the basis, firstly, there should be no provision in
the Determination which requires QFES to consult with UFU and employees about such
matters and, secondly, there was no intention on the part of QFES to "diminish its current
levels of consultation about resources and establishment levels (that) are a matter of
management prerogative". QFES also submitted that the Full Bench was entitled to rely
upon information within the knowledge of one of its members, from earlier conciliation
proceedings, to inform itself of the current level of consultation that exists within QFES
about establishment levels and staffing issues.
[87] Although one of the members of the Full Bench did recommend to the parties, in a dispute
situation, that they adopt particular processes and procedures in the course of conciliating
that dispute, we are not inclined to incorporate a provision in the Determination which
would have the effect of requiring QFES to consult UFU about matters of the type
pressed in its claim. To do so, we believe, would elevate the recommended steps to a
new status, which could have the effect of causing particular firefighters to believe that
UFU has an equal say, or some right of veto, in the allocation of resources. For example:
after listening to the evidence of Mr Corneal we are somewhat apprehensive that the
inclusion of such provision might actually lead to an increase in disputation about staffing
and resourcing issues rather than helping to reduce them.
[88] In any event, the practical reality is that while QFES management might consult UFUQ
and its members about staffing and resource issues, any recommendations it might make
will always be subject to approval, and perhaps different prioritisation, by the
Government of the day.
[89] Given all of the circumstances this particular claim is refused. However, it should be
possible for the parties to have mature discussions about such matters in the course of
their regular "issues forums", which we have decided should continue (see Item 4 above).
Item 11 - Reserve rosters
Item 13 - Part-time employment
Item 14 - Casual employment
Item 15 - Special flexibility allowance
Item 16 - Aggregate wage
[90] Because the evidence and submissions in relation to these five topics is so inextricably
intertwined we have decided to deal with these items together rather than attempt to deal
with them in a particular order. In summary (the exhibits and transcript (again) contain
all of the relevant evidence and submissions), QFES seeks a raft of changes to the
provisions of the 2009 Agreement, which are captured under three main headings, as
variations to the composition of the Aggregate wage rate presently paid to
many of its employees;
variations to existing certified agreement provisions to facilitate the
implementation of a process for managing overtime costs; and
the introduction of flexible and contemporary employment and work
The nature of, and rationale for, these claims
Aggregate wage rate
[91] Mr Roche said that the proposed Aggregate wage rate would apply to all employees of
QFES covered by the Determination and would incorporate, in a single wage rate, each
staff member's entitlement to the following existing benefits:
base salary;
weekend shift penalties;
night shift penalty;
the 38-hour week allowance;
where relevant, a 2.5% special flexibility allowance;
an average of the existing public holiday penalty payments;
an average of the existing travel allowance payments (where employees are
required to travel to a different work location from that at which they are
normally employed - including officers undertaking relief duties);
an average of the existing meal allowance payments; and
five overtime shifts per annum (totalling 60 hours and based on 5 x 12 hour
shifts) paid at 150% of base salary.
[92] The 2.5% special flexibility allowance is only payable to certain, identified, employees
and is deemed to "buy out" the first two hours of overtime which might be worked in any
one week. Because the allowance does not apply to all employees there would, in fact,
be a different Aggregate wage rate for employees entitled to receive the special flexibility
allowance compared to those that are not. Generally speaking, however, all employees
in the same classification, at the same paypoint level, would receive the same Aggregate
wage rate.
[93] Mr Roche said (at paragraph [12] of Exhibit 9) that QFES sought this outcome "to
improve the utilisation and efficiency of existing resources within current funding and
staffing arrangements, and to provide a platform for the reduction in the current costs of
administration of the Service by:(a)
streamlining administrative processes; and
implementing a process for managing overtime costs that:
equitably distributes overtime across all staff; and
changes the current overtime culture to curb misuse of personal leave."
[94] Adoption of the proposed Aggregate wage rate structure would significantly assist
QFES's plans to streamline administrative processes within the Service because it would
remove the requirement for staff to submit timesheets to Queensland Shared Services
(QSS). Currently there is a requirement for all staff, from a Recruit Firefighter to a Chief
Superintendent, to submit timesheets. The processes required to complete, verify and
process each timesheet was both significant and inefficient and had the potential for
errors and discrepancies. In addition, having fewer matters to input would reduce the
cost of using QSS and would reduce the cost of purchasing a proposed new payroll
Managing overtime costs
[95] Presently, QFES incurred significant costs through overtime payments for a variety of
reasons including the misuse of sick leave entitlements which necessitated replacing an
absent employee with another employee, who received overtime at the rate of double
[96] Mr Roche opined that there was an expectation within many employees in QFES's
workforce that they would be provided with overtime shifts, as of right, as part of their
regular income. This expectation had given rise to the circumstance that overtime shifts
and personal leave entitlements had become the subject of misuse. For example, a
firefighter who took personal leave was paid at ordinary time rates for the period of their
absence but an employee called in to replace that employee was paid overtime at the rate
of double time. This was a win-win for the staff involved but was very costly for QFES,
which was required to expend the equivalent of triple time to cover that shift. It meant,
for example, that an employee called in to work a night shift of 14 hours “benefitted” to
the extent of 28 hours pay.
[97] Currently, the average uptake of personal leave by operations staff was 73.75 hours per
year out of a maximum annual entitlement of 80 hours. This situation occurred in
circumstances where each operational staff member was rostered to attend work, because
of the 10/14 shift roster system, on only 152 days per annum.
[98] The use of personal leave (i.e. sick leave) had increased significantly in recent years, with
the level of absences being particularly bad on Fridays, Saturdays and Sundays, as shown
in Attachment 1 to this Decision and in the table below (both of which have been prepared
from information extracted from Mr Roche's evidence (Attachment MORI to Exhibit
Total Sick Relief Callbacks (Number of shifts)
[99] The data in Attachment 1 shows that the level of personal absences increases significantly
over the Friday night shift, Saturday day shift, Saturday evening shift and Sunday day
shift compared to the rest of the week. Further, the data shows that the level of personal
leave taken in 2012-13 was approaching three times the level of leave taken in 2009-10.
[100] In order to try to counter the (alleged) misuse of personal leave, as well as the inequitable
working of overtime shifts across its workforce, QFES proposed that existing
arrangements be modified so that the Aggregate wage rate payable to each of its
employees would include payment for five overtime shifts (totalling 60 hours and
payable at 150% as opposed to 200%), which would then be "owed" to the Service by
each employee. This would mean that QFES was effectively "pre-purchasing" the ability
to call upon staff to work up to 60 overtime hours before it incurred any additional
liability to pay any further overtime payments. Staff who were not called upon to "repay" all of the 60 hours would not be required to re-pay any "overpayment". However,
shift overruns and other incidental overtime could not be used to offset the pre-purchased
60 hours of overtime. Only time worked on whole shifts (i.e. a day shift of 10 hours or
a night shift of 14 hours) would be counted towards re-payment of the 60 hours of prepaid overtime.
[101] Introduction of such a system, according to Mr Roche, would:
allow QFES to predict and manage its financial obligations in relation to
spread the obligation to fill absences amongst the broader workforce; and
deter the misuse of personal leave and resulting entitlements occurring within
select groups of employees by:o
providing an incentive and requirement for management to spread the
burden of managing personal leave absences across all staff (in that all
staff would be required to fill vacancies created by the absence of other
employees in order to re-pay the pre-purchased overtime); and
reducing the immediate financial incentive for employees to
"exchange" personal leave (so as to access overtime shifts).
Contemporary employment and work practices
[102] Mr Roche said that the current 10/14 roster arrangement required staff to work a rolling
eight day cycle of two day shifts (of 10 hours each) and two night shifts (of 14 hours
each) followed by four days off. This arrangement did not allow QFES to introduce the
following employment arrangements:
casual employment agreements
day shifts only
night shifts only
split shifts; or
job sharing.
[103] Further, because of its rigidity, the current 10/14 rostering model made it difficult for the
Service to accommodate instances where existing staff members required flexible work
arrangements to cater for either short term or long term absences associated with such
matters as: the birth of a child; parenting responsibilities; adjustment due to marital
separations; the desire to reduce working hours leading into retirement; caring
responsibilities for elderly relatives; and reduced hours through injury or illness. In
addition to those matters, the current rostering model limited QFES's ability to manage
staffing levels in cases of unexpected absences and long term absences (both planned and
[104] In order to address some of these issues, which would not eliminate the need for overtime,
QFES proposed a number of initiatives, to be contained in the Determination, which
the introduction of a reserve roster (to be primarily staffed by part-time and
casual employees);
changes to existing part-time employment provisions, which presently
limited such employees to no more than 32 hours per week;
the introduction of provisions dealing with casual employment; and
the introduction of time off in lieu of overtime (TOIL) provisions.
[105] In terms of the proposed part-time and casual employment arrangements, Mr Roche said
that such employees would be trained to the required level to allow them to work as fully
qualified firefighters. Their engagement under the arrangements proposed would provide
increased flexibility in the way QFES was able to roster its workforce, cover absences,
better manage fatigue, attract staff from a broader cross-section of the community and
better manage staff retention by, for example, allowing staff who wished to do so to work
on a part-time or casual basis either permanently or for a particular period to suit their
individual needs.
[106] QFES also proposed the introduction of a reserve roster which would permit deployment
of staff assigned to that roster to the main roster to meet operational requirements as
determined by each region. New full-time staff to a region would be placed on the reserve
roster in the first instance, as a training and orientation strategy, and would be placed into
the main roster as vacancies became available. The primary reason for creation of the
reserve roster was to allow QFES the flexibility to engage part-time and casual staff, and
to utilise them into the main roster as required, in order to reduce the overtime and other
pressures on permanent staff. Without a reserve roster it would be difficult for QFES to
engage part-time and casual employees as such employees would also be required to
work within the confines of the main roster, with its inherent restrictions.
[107] The proposed inclusion of provisions allowing for TOIL was designed to complement
the other contemporary employment options mentioned above and would only work if
those other provisions were included in the 2013 Determination. For example, in order
to allow Station Officers and firefighters to access TOIL, QFES needed to be able to
replace them by calling up firefighters from its reserve roster. Absent a reserve roster,
QFES would not be able to offer TOIL because replacement employees would have to
be paid at the established overtime rate of double time.
The attitude of UFU towards the QFES claims
[108] UFU was strongly opposed to the degree, extent and content of all of the changes
proposed by QFES, but most particularly:
its claims in relation to the engagement of casual employees to create some
form of reserve roster;
the proposal to pre-purchase 5 overtime shifts (i.e. 60 hours of overtime); and
the inclusion of travel time (by way of an average payment) in the calculation
of the Aggregate wage.
[109] In support of its case opposing the employer's proposals UFU called evidence from a
large group of witnesses, including Messrs Ryan, Guse, Andrews, Raverty, Shipp and
Watts. Their evidence, as a group, traversed the whole spectrum of QFES's claims,
although some witnesses only commented on one or two individual items within their
particular knowledge.
[110] Evidence was also called from two female firefighters, Ms Louise Galloway and Ms
Melinda Sharpe, both of whom expressed their particular satisfaction with the current
10/14 roster arrangements. They also expressed their concern about the employer's
proposal to pre-purchase five overtime shifts which they could be required to re-pay with
little or no notice and the difficulties such a situation would create.
[111] The UFU also called evidence from Dr Iain Campbell in connection with the proposed
introduction of casual employees into the Fire Service and Mr John McGuiness, a
Chartered Accountant, in relation to the employer's costings of its proposals.
[112] The Union was particularly critical of QFES's proposed changes to the structure of the
Aggregate wage rate, describing the proposal as naïve. It also suggested that the evidence
established that the employer had exaggerated the labour costs and processes involved in
administering its current pay arrangements. For example, Mr Watts said that he was paid
his usual fortnightly pay irrespective of whether he submitted timesheets or not and that
this was the norm within QFES. He also said that the pay system could be simplified if
it operated on an "exceptions" basis, which meant that employees would receive their
usual wage rate unless they submitted a timesheet claiming overtime, meal payments or
some other entitlement, or they were absent from work for some reason.
[113] However, irrespective of whether their evidence covered only one, some, or most of the
employer's proposals in relation to the Aggregate wage rate, the employee witnesses, as
a group, were most critical of:
the proposed provisions which could see QFES pre-purchasing five overtime
shifts, which staff would then be required to re-pay;
the proposal to average out travel time and to pay that item of reimbursement
uniformly across the workforce; and
the proposal to average meal overtime payments and to pay those on a
standard fortnightly basis across QFES.
[114] In addition to those matters, virtually every Union witness expressed serious reservations
about the employer's proposal to engage firefighters on a casual basis. A significant
reason for their opposition to such concept was their concern about the lack of training,
skills and relevant experience of employees who might be called upon to work only a
few hours or a few days in each pay period.
[115] However, foremost in their list of concerns was the fact that fire fighting is an inherently
dangerous occupation and that each crew member on a fire unit needed to have total
confidence that every other member of the crew knew what they were doing and how
they should undertake their individual role in a given situation.
[116] Many witnesses expressed the view that such confidence generally only came about after
a crew had worked together for some considerable time and, as a result, understood the
level of each crew member's training and competency. The witnesses generally opined
that they would feel uncomfortable being put into a fire fighting situation with a casual
employee who they had not worked with before and whose level of training and
experience they knew nothing about. Several examples of incidents where full-time
firefighters had been required to work with inexperienced firefighters were provided to
emphasise the point.
[117] In terms of particular components of QFES's proposed Aggregate wage rate, Mr
Andrews, a Station Officer who undertook relief duties, gave evidence about the extent
to which he would be disadvantaged if the employer's proposal to average travel time
payments was introduced. Although "based" at Maroochydore he had been called upon
to relieve in three other fire stations (Noosa, Nambour and Caloundra) for a period of 18
months, as a Station Officer and as a BAO, in the approximate two year period prior to
the date on which he prepared his Affidavit. During this time he had been required to
undertake significant travel.
[118] Evidence about the impact of the employer's proposal regarding the averaging of travel
time was also given by Mr Shipp, another Station Officer. He gave evidence that in his
role of undertaking holiday relief on the D Shift he had worked at seven different stations
in the Brisbane region during the first half of 2013 and that during the second part of that
year he was programmed to work at nine different stations in a relief capacity, as well as
being programmed to attend five stations to facilitate training in his capacity as a First
Aid Trainer. He said that in the 12 months prior to lodging his affidavit he had travelled
over 2,000 claimable kilometres in the course of undertaking his relief and/or facilitator
duties and had been paid an amount slightly in excess of $1500 in mileage payments. He
opined that if he received only an average of the travel payments made across the whole
of the Service he would be significantly financially disadvantaged across the course of a
Our conclusions in relation to the five Items
[119] Our consideration of the evidence and submission leads us to conclude that we should
grant, in principal at this stage, many aspects of the employer's claims, and which are
recorded at clauses 4.3 to 4.10, inclusive, in ID 28. Aspects of the proposed provisions
which we do not intend to grant are:
the inclusion in the propose Aggregate wage rate of the averaged travel time
payments and averaged meal allowance payments, respectively, which are to
be paid on an "as-earned" basis;
the proposed clause 4.10.8, which would have the effect of excluding, or at
least limiting, the capacity of employees in receipt of the 2.5% flexibility
allowance to pursue increases in work value based upon changes in their
work, or the skills, knowledge and training required to undertake it, which
might occur during the life of the Determination.
[120] We also propose to only partially grant QFES's claim concerning its propose “prepurchase” of overtime shifts and to limit such pre-purchase to a maximum of 42 hours which equates to three 14 hour shifts. Further, we do not propose that the provisions in
the 2013 Determination will actually reference any particular number of shifts but, rather,
should only reference the 42 hours we have determined. In line with the employer's
proposal, we do not envisage that such hours can be offset by shift over-runs and the like.
The 42 hours should relate to complete shifts unless a particular firefighter becomes ill
or is injured in the course of a particular shift, in which case his or her replacement can
choose to have the hours they might be asked to work (as a replacement employee) offset
against the 42 hour pre-purchase. In terms of its actual workability, because shift lengths
are generally 10 or 14 hours, the situation might arise where an employee who has
previously worked 3 x 10 hour shifts might be called upon to work a 14 hour shift. If
that be the case, 12 of the 14 hours could be utilised to offset the number of hours still
"owing" to the employer, with the remaining two hours paid at the usual overtime rate of
double time.
[121] In relation to our decision to approve the inclusion of provisions in the 2013
Determination allowing QFES to engage casual employees in urban areas, as well as the
existing rural locations, we query the proposed Aggregate wage rate calculation set out
at clause 4.8.2 of ID 28. Notwithstanding QFES’s desire to simplify its payroll system,
we generally question the recorded calculation and ask the parties to discuss the relevant
rate in the course of the discussions we have directed are to take place below, at paragraph
[122] Our reasons for deciding to substantially grant the claims pressed by QFES are many and
varied and include:
the restrictive nature of the 10/14 roster system, which requires employees to
be engaged for a 10 or 14 hour period;
the present limitation on QFES's capacity to engage part-time employees
such that the maximum hours restriction precludes the possibility that a parttime employee might be utilised to replace an absent employee on a typical
roster of 2 x 10 and 2 x 14 hours (a total of 48 hours) unless the employee is
paid 16 hours overtime at double rates;
the total absence of any capacity to engage employees in an urban area on a
casual basis – such that even "retired" firefighters who might wish to make
themselves available for work on one or two days or evenings each week
cannot be employed;
the present requirement to “back-fill” any vacancies by (usually, but not
always), an existing full-time employee on overtime rates of double time;
the commitment of QFES that all casual and part-time employees will be
required to undertake the same training as that presently required of full-time
firefighters coupled with its commitment to ensuring that such employees
maintain competency to enable them to undertake the duties expected of (at
least) a Recruit Firefighter;
the benefits attached to simplifying the system of payment of fortnightly
wage rates by, for example, the inclusion of new components representing
average public holiday payments and the pre-purchased overtime amount of
42 hours;
the unsatisfactory (and worsening) predilection of employees to take personal
leave - especially on a Friday, Saturday or a Sunday - as shown in the table
referred to above and in Attachment 1 to this Decision;
the need to attempt to address that current unsatisfactory situation by
reducing the incentive for employees to "shift swap" by availing themselves
of personal leave which then provides an opportunity for a colleague to earn
double time by replacing them;
facilitating a reduction in that activity, and the resultant cost to QFES, by the
establishment of a reserve roster which will enable the employer to replace
an absent employee at single time rates, rather than at overtime rates;
providing opportunities for employees to accumulate TOIL which they can
later use to enable them to attend important personal events without the need
to, or the pressure from other family members to, "call in sick" for that day
or shift; and
facilitating the employer's attempts to address the overtime and "sickie"
culture that the data attached to exhibit 11 demonstrates, thereby reducing its
cost structure;
the general “opening up” of employment opportunities by expanding the
options available to persons who might wish to become (or remain)
firefighters but for whom the 10/14 roster system is not suitable; and
our assessment that the proposed overtime rate of 150% seems reasonable
and appropriate given the fact that all relevant employees will have 42 hours
(at 150%) included in the Aggregate wage rate which they will have up-front
use of and will not be required to re-pay if not called upon to work 42 hours
in “overtime” shifts.
[123] We stress that our decision "in principal" does not mean that we have endorsed or
approved every provision in QFES's claim. This is because we have generally only heard
evidence and argument about the overall claims without much evidence about the specific
detail of the individual elements of each particular claim (an example being the notice
period for a change of roster set out in QFES’s claimed clause 4.4.2). As such, we
propose to direct the parties to confer about the content of the proposed Determination,
in light of our Decision and comments above, and attempt to agree the necessary
provisions to give effect to our decisions.
[124] In this respect, we propose to list the matter for Report Back on a date to be set in midlate February 2015 when the parties can report on progress towards finalising the terms
of the Determination. Depending upon the parties' success in agreeing the terms of
relevant provisions it might be that we list the matter for a further Report Back or, if it is
clear that particular elements cannot be agreed, further arbitration in respect of those
unresolved matters.
Item 12 - Time off in lieu of overtime (TOIL)
[125] QFES presses for the inclusion of a new clause 4.6 which would permit an employee to
elect to take time off in lieu of overtime (TOIL) on a time for time basis within 8 weeks
of its accrual. In giving evidence in support of this claim Mr Roche said that the option
of accessing TOIL would be at an individual employee's election, subject to authorisation
by their supervisor/manager, and was designed to provide increased flexibility in the way
overtime might be dealt with.
[126] Mr Roche also said that the proposed provision would only be workable if QFES was
able to engage an officer from its reserve roster to fill the vacancy created by the
circumstance of another officer accessing TOIL. Absent the capacity to utilise someone
from the reserve roster there would be no benefit whatsoever in offering TOIL because
it would be necessary to replace an absent employee from within the full-time staff
complement at the rate of double time.
[127] We have decided to grant QFES's claim for the introduction of a TOIL provision for
several reasons, including:
it will provide an additional option to all employees as to whether they would
prefer time off in lieu or overtime payments. For example, an employee who
has accrued 10 or 14 hours of TOIL might decide to utilise that time to attend
a personal and/or family event that they might otherwise have to miss;
it has the potential to reduce the number of sick day absences claimed by
employees who have no other way of attending such personal events unless
they "go sick";
it has the capacity to make available additional employment opportunities for
employees on the reserve roster we have decided to introduce; and
it has the added benefit of reducing the cost structure of QFES.
[128] Importantly, no employee can be forced to take TOIL. Whether they access that option
will be dependent upon their own circumstances and decisions. This fact has been
significant in our consideration of this claim.
Item 13 - Part-time employment (see Item 11)
Item 14 - Casual employment (see Item 11)
Item 15 - Special flexibility allowance (see Item 11)
Item 16 - Aggregate wage (see Item 11)
Item 17 - Rescue technician's allowance
[129] The parties to the proposed Determination have agreed upon the creation of a Rescue
Technician Stream which is designed to recognise the additional skills and qualifications
held by firefighters and Station Officers trained in advanced rescue competencies. The
agreed levels within the stream require an advanced level of training in technical rescue
disciplines. Relevantly, trained technicians will receive a higher classification and rate
of pay at all times they hold the requisite qualifications and are available to be deployed
to undertake such work.
[130] However, in addition to the creation of the new stream, both UFU and SOU have sought
the granting of a rescue technician's allowance to be paid to employees who hold Level
1 accreditation. The UFU claim is as follows:
"Officers who hold the Level 1 rescue qualifications in trench, confined space,
swift water, vertical rescue and urban search and rescue (USAR) will be paid an
allowance of $10.00 per shift when performing such work."
[131] The claim by SOU is identical to that above but also seeks an additional provision as
"Senior officers who hold the Level 2 or 3 rescue qualification in urban search and
rescue (USAR) will be paid an allowance of $20.00 per shift when they are
performing such rescue work."
[132] The UFU claim is opposed by QFES which argues that all firefighters and Station
Officers have been trained as Level 1 rescue technicians since 1999 and that their wage
rates and salary levels, as well as those of senior officers, have been calculated since that
date on the understanding that training and working as a Level 1 rescue technician forms
part of the ordinary duties of a firefighter and Station Officer. Further, Mercer Human
Resource Consulting undertook a job evaluation of operational firefighter classifications
in 2007 as a consequence of the 2006 enterprise bargaining agreement. One of the key
accountabilities of a firefighter recorded by Mercer was the need for all levels of
firefighter to "respond to fire, road accident, rescue/entrapments, technical rescues,
hazardous materials and other emergency incidents." Indeed, Mercer also recorded (at
page 35 of its Report):
"…The changed nature of the environment in which firefighters and Station
Officers work has seen greater demand for road accident retrieval service
(including Ambulance assists) and other forms of rescue which have become a
recognised responsibility of the QFRS. These include, for example, urban search
and rescue, vertical rescue and swift water rescue."
[133] Importantly, in the QFES submission, following a job evaluation of the positions to be
covered by the Determination, Mercer undertook a remuneration analysis which
ultimately resulted in significant pay increases for all ranks. As such, it was not
permissible for UFU and SOU to attempt to separate out from the classifications
evaluated by Mercer one of the constituent parts which was considered by them as part
of the overall job evaluation and salary analysis and to try to claim additional
remuneration for a single activity as and when it was performed.
[134] In respect of the SOU claim for a higher level allowance to be paid to senior officers
holding a Level 2 or 3 USAR qualification when they were called upon to perform such
work, QFES submitted that the evidence from Mr Cawcutt, a SOU witness, was to the
effect that senior officers do not actually perform technical rescue Level 2 or 3 tasks, in
that they are only called upon to supervise employees who were performing such duties.
Further, QFES noted that Mr Cawcutt's evidence was to the effect that the claimed
payment was not intended to be paid only when senior officers performed technical
rescue Level 2 or 3 work but, rather, was intended to confer an ongoing entitlement to
the allowance in recognition of the fact the senior officer might hold the requisite
[135] After considering all of the evidence, including that given by UFU witnesses Paff, Watts
and Cullen, we are not persuaded to grant the claim for the $10.00 per day allowance to
be paid to firefighters, Station Officers and senior officers who hold the Level 1 technical
rescue qualification. Not only would payment of such allowance involve a double
counting of a matter already taken into consideration in the setting of appropriate wage
rates for the various levels of officer, paying a particular allowance to officers who
undertake additional training to add to, replace or update their suite of skills creates a bad
precedent and is contrary to the general practices and processes involved in the
determination of appropriate remuneration levels for staff such as firefighters.
[136] For example, payment of an allowance to a particular group of employees who might
have undertaken some additional training could lead to situations where other employees
actively compete with each other for an opportunity to undertake the same training so
that they can receive additional income. As such, they could potentially become angry
and/or disenchanted if they are not able to undertake the relevant training as soon as they
might wish. Further, it could also lead to situations where employees actively decline to
participate in training to improve and/or update their skills unless they receive an
additional allowance or increased remuneration for doing so.
[137] Our view, which is reflected elsewhere in this Decision, is that all employees are expected
to undertake, and fully participate in, all and any training which is relevant to improving
their current skills - whether this be by way of new and additional skills, a different way
of undertaking tasks they might previously have undertaken or other changes based upon
changes in equipment and/or technology. Any such changes can be taken into account
in periodic "work value assessments" of the relevant employees.
[138] We have also decided to refuse the SOU claim for an additional allowance to be paid to
senior officers who hold Level 2 or 3 qualifications. On the evidence presented senior
officers, although they might be trained to those levels, are not actually called upon to
utilise their training in the performance of their day to day duties. In any event, for
reasons identical to those expressed immediately above, we would have refused the claim
for an individual allowance based on the holding of a particular qualification and/or
Item 18 - Progression through paypoints whilst on higher duties
Item 19 - Leading firefighters
Item 20 - Functional dayworkers overtime
[139] The document said to identify the areas of agreement and matters in dispute (ID 28),
which was prepared by QFES, suggests that clause 4.12 - Progression through paypoints
whilst on higher duties and clause 4.14 - Functional dayworkers overtime, respectively,
were agreed, subject to the employer's claims involving an Aggregate wage. Further,
QFES submits that its claim in relation to leading firefighters (at clause 4.13) should be
granted on the basis there was no counter proposal advanced by UFU.
[140] In its submissions (at paragraph [681]) UFU opposed each of the above provisions on the
basis they were not matters at issue during the negotiations. In advancing this point the
Union relied upon its cross-examination of Mr Donovan (T 8-11 and 12) to the effect that
while these matters - which came from previous certified agreements - had been
canvassed with the Union previously they had not been talked about during the
unsuccessful negotiations for a new certified agreement. In Mr Donovan's view the
matters were uncontroversial and their inclusions was simply a tidy up exercise.
[141] We are somewhat confused about the actual status of these three matters. On the one
hand we have ID 28, which suggests that two of the items are substantially agreed. On
the other hand we have the submissions of UFU, which appear to be supported by the
evidence of Mr Donovan. However, in contradiction of the submissions of UFU, and the
evidence of Mr Donovan, a copy of a proposed certified agreement forwarded to the
Union by Mr Carthew of QFES under cover of email dated 12 September 2012 (Exhibit
30) clearly records each of the three matters under discussion as clauses 4.4 - 4.6,
inclusive, in a proposed new certified agreement. Accordingly, given the circumstances,
we are not inclined to include the proposed clauses 4.12 or 4.14, respectively, unless
there is agreement between the parties. In this respect, we note that the 2009 agreement
included very similar provisions (see clause 4.4) to those proposed by QFES.
[142] We are also not of a mind to include clause 4.13 - Leading Firefighters, which was
proposed by QFES. While QFES has pressed us to include that provision on the basis
that UFU did not advance a counter proposal such a submission is a two edged sword. If
we adopt that approach for one party it would necessarily mean that we would have to
adopt the same approach for the other party. This would lead to a situation where we
were making a bargain for the parties, which is not permitted6, rather than deciding each
matter at issue consistent with the provisions of the legislation and after due and proper
consideration of the evidence and submissions placed before us.
Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Department of
Community Safety (formerly the Department of Emergency Services) and Another (CA/2008/317) - Decision
Item 21 - Community safety activities
Item 22 - Commercial activities
[143] QFES presses for the inclusion of two provisions which record that the rate of pay for its
employees engaged in community service activities and commercial activities is to be at
the rate of time and a half, on designated rates, whenever they are so engaged.
Relevantly, each item is pressed on the basis that UFU has not advanced any counter
proposal to the claim.
[144] For the reasons outlined immediately above we have also decided not to grant each of
these claims. However, they can be included in the Determination if there is agreement
between the parties.
Item 23 - Aerial driver/s appliance allowance
[145] The parties have agreed to include two allowances in the Determination to recognise the
skill and competence required for firefighters called upon to operate Telescopic Aerial
Pumpers (TAPs) and High Aerial Appliances (Brontos), respectively, but do not agree in
relation to whether that payment should be extended to Station Officers. In addition,
there is some minor disagreement about the introductory words leading into the
identification of the quantum of allowance to be paid to TAPs and Brontos operators,
[146] In opposing the extension of the allowances to Station Officers, Mr Roche said it had
been a longstanding practice of QFES not to extend payment of the aerial allowance to
Station Officers, a position which had been supported by the Commission in several
disputes. Station Officers were remunerated at a higher level than other fire fighting staff
for a variety of reasons, including the holding of a number of different qualifications and
competencies which might differ from station to station depending upon the equipment
[147] In support of its claim that the allowances be extended to Station Officers, UFU referred
to the evidence of Stephen Scanlan whose affidavit set out the history of the use of aerial
equipment in Queensland from the late 1960s/early 1970s to the present time. Mr
Scanlan said he had a long working history with QFES and had held the positions of:
Senior Firefighter; Acting Station Officer; Aerial Operator; Aerial Trainer/Assessor;
Commissioner's Representative for the State Appliance Prototype Program; and
Development Officer for the Aerial Training Module.
[148] According to the history recounted by Mr Scanlan, a special allowance for operators of
aerial equipment was introduced in mid-1997 following negotiations between the Union
and the then Commissioner. The final outcome was that only those aerial operators who
held the Workplace Health and Safety "elevated work platform licence" would be paid
the aerial allowance. Station Officers were excluded from receiving the allowance
because they were not permitted to operate aerial appliances. In addition, only those
officers who maintained their qualifications were able to exercise "any authority or
supervisory functions over aerial appliances".
[149] In Mr Scanlan's opinion, UFU's claim was justified because the capacity of a Station
Officer to maintain a qualification involved their participation in an ongoing training and
assessment program, as well as the fact that they had to maintain those skills at a standard
above a "normal" Station Officer (T 8-95), albeit that it "would take an extreme set of
circumstances for them to actually take charge" as the operator of an aerial appliance.
Mr Scanlan said the allowance should be paid to all Station Officers who were certified
to use an aerial appliance, even if they never used it, provided there was such an appliance
in the station to which they were allocated.
[150] We have decided to refuse UFU's claim for the aerial appliances allowances to be
extended to Station Officers. The evidence of Mr Roche (Exhibit 11, from paragraph
[95] onwards) was to the effect that Station Officers are required to undertake a variety
of functions in the performance of their role. This includes leading and managing their
crews at incidents and leading and directing staff during both operational and nonoperational activities (paragraph [116] of Exhibit 11). In regions outside Brisbane and
the South-East, Station Officers have to be qualified and capable of operating aerial
appliances at their station (paragraph [121] of Exhibit 11). This evidence was confirmed
by Mr Scanlan (at T -96 and 98), although he advocated for officers capable of operating
the aerial appliances to receive additional remuneration because of the "special"
requirements and qualifications involved.
[151] In our view, it would be completely contrary to normal practices to start to introduce
particular allowances to Station Officers who might be called upon to be familiar with,
and possibly operate, particular pieces of specialist equipment simply because such
equipment is located in a station to which they are assigned. The nature and range of the
overall duties of Station Officers require that the remuneration levels for that
classification of employee to be determined on a "whole-of-service" basis rather than
station by station.
Item 24 - Adjustment to allowances
[152] Clause 4.8 of the 2009 Agreement relevantly provides:
"Telescopic Aerial Pumper, Aerial Appliance and other trade allowances relating
to how work is performed will be adjusted in accordance with State Wage Case
decisions or General Rulings handed down by the Queensland Industrial Relations
Commission. Adjustments will take effect on the operative date of such decisions."
[153] In ID 28 QFES is recorded as seeking a replacement provision, which reads:
"Telescopic Aerial Pumper and Aerial Appliance allowances relating to how work
is performed will be adjusted in accordance with State Wage Case decisions or
General Rulings handed down by the Queensland Industrial Relations
Commission. Adjustments will take effect on the operative date of such decisions."
[154] UFU seeks different wording, as follows:
"Work related allowances will increase by an equivalent amount to the percentage
increase to work related allowances as determined by the Queensland Industrial
Relations Commission State Wage Case increases and from the date of the QIRC
determined increases."
[155] Notwithstanding that UFU's submissions highlighted the difference between the existing
clause and that proposed by QFES - where the words "and other trade" were missing -
the employer's Reply submission asserted that the provisions it proposed simply reflected
the existing terminology and that no case had been made out "for the adoption of any
form of words other than that applied (for) by the employer".
[156] On the basis that both QFES and UFU seek to continue the practice of adjusting relevant
allowances to reflect State Wage Case decisions, and that neither party has advanced any
particular argument to support any alteration to the present wording, we have decided
that the Determination will include essentially the same wording contained at clause 4.8
of the 2009 Agreement, the only difference being the removal of the word "trade" - which
we believe is confusing.
Item 25 - Compressed air foam systems allowance
[157] UFU seeks the inclusion of an allowance of $10.00 per shift payable to all officers whose
duties entail the operation of Compressed Air Foam Systems (CAFS). As we understand
it, the allowance would be payable to each of the four officers assigned to each of two
specially fitted CAFS vehicles whenever they are called upon to apply compressed air
foam in a particular fire situation.
[158] In support of its claim UFU led evidence from Station Officers Raffel and Watts,
respectively. Mr Raffel gave extensive evidence about the history of introduction of
CAFS into QFES, the difference between CAFS Units and other fire fighting units, the
training requirements for operators of CAFS-fitted vehicles, complexities associated with
the operation of CAFS-fitted vehicles and examples of incidents where CAFS has been
[159] Mr Raffel said that CAFS is a method of producing fire fighting foam by the introduction
of air into a foam solution (water plus foam concentrate) just before it leaves the pump
delivery outlet. This produces a more consistent bubble size which improves the
extinguishing efficiency of the foam. The overall effect is to increase the extinguishing
potential of a given quantity of water by approximately seven fold. CAFS is particularly
well suited to fire fighting situations where water supplies are limited and the successful
extinguishment is heavily reliant on the available on-board water supplies, examples
being motorways and deep-seated fires in large piles of material such as mulch, compost
and grain storage areas.
[160] Officers had to attend an intensive two day training program in order to understand the
differences between the CAFS units and other QFES pumpers, as well as to learn how to
correctly mix the water and foam solution to achieve the required consistency of foam.
This involved the use of 10 leavers on the pump whereas on a traditional pump there
were only four leavers. Mr Raffel opined that payment of an additional allowance to
firefighters trained to operate the CAFS pumpers was warranted because of the enhanced
capacity of firefighters assigned to the CAFS-fitted vehicles to understand when to apply,
or not apply, different types of foam to a fire as well as the additional complexities
attached to the operation of the CAFS units.
[161] Mr Watts was the Union representative during the consultation phase for the introduction
of CAFS into QFES. He said that CAFS-fitted vehicles are distinguishable from other
fire appliances as the tolerances for errors by the pump operator are very low. If the
operator makes a mistake the results can range from no foam being produced to
firefighters being injured, either by poor foam production or injury through excessively
high pressures causing equipment failure. Further, the CAFS units have a range of
additional components and operator tasks over and above regular pumpers. This adds to
the complexity of the operation and the skills required. A CAFS operator needs to be
able to manage variables and contingencies that arise on the fire ground and rapidly
anticipate and troubleshoot any problems with the CAFS application, such as "too wet"
or "too dry" foam.
[162] Assistant Commissioner Mitchel disputed much of the evidence provided by Mr Watts,
stating that it was his view that the additional or different skills associated with CAFS
did not constitute significant change to the general skill-set required of a qualified
firefighter. He also took issue with the evidence of Mr Raffel, saying that while CAFS
is a different type of foam to other foam products used by QFES, and has some
differences in how it is produced, the Service's training program was comprehensive and
all operators had been taught the necessary skills to utilise CAFS safely, just as with all
other situations where new systems or skills were to be applied. Further, QFES had been
using foam systems for at least 60 years with CAFS being just the latest. While it was
different to previous foam delivery systems it was not so significantly different "that the
skills learned to operate the system stand outside the usual skills associated with those
expected of a professional firefighter."
[163] Mr Mitchel also opined that there was no warrant for introducing the special allowance
claimed for firefighters manning the CAFS units. CAFS was simply the latest in a
developing series of products and devices designed to make fire fighting more effective
and safer. All such products and devices must be the subject of training, and all require
some skill to operate, but the introduction of this device does not involve any significant
increase in skill on the part of QFES staff. The fact that it is slightly different from other
foam systems, each of which have their own characteristics and require particular skills,
does not mean that this device warrants payment of a special allowance to the user.
[164] Mr Mitchel was critical of the position adopted by UFU in relation to the roll-out of
CAFS which, he said, had been limited to a trial of CAFS on two appliances only as a
result of a claim by the Union for an additional payment to the operators of such units.
This had held up the wider implementation of CAFS for over four years, which was most
regrettable. He said if QFES acceded to the claim it would create a dangerous precedent.
"QFES would be at risk of being effectively blackmailed into paying an extra allowance
to employees every time a new and better piece of equipment was introduced, as the price
of being permitted to bring that equipment online".
[165] In the course of its submissions on this topic, QFES was particularly critical of the
"smoke and mirrors" approach taken by the UFU in its pursuit of this claim. Not only
had it attempted to tease out of the overall duties of a professional firefighter a single
strand of activity on a single piece of equipment, when the overall duties of a professional
firefighter had previously been taken into account in the Mercer Report, it had failed to
provide the Full Bench an "equally spectacular display of the use of any of the other foam
systems operated by QFES for many decades without the payment of any form of
allowance". (This was a reference to a demonstration of the application of foam to a car
fire by a CAFS unit during inspections).
[166] Finally, QFES said:
"307 For these reasons, the claim for a special allowance on account of being
trained to use this piece of equipment which, if it succeeds, will be the first
in a very long series of such similar claims in the future, should be firmly
rejected. It is a fundamental feature of the training and duties of a firefighter
to adapt to systems of this kind and to learn and embrace them. To reject
them on account of a claim for more money to perform the existing range of
duties is an approach which the Commission should stand firmly against."
[167] For reasons outlined elsewhere in this Decision and below, and also for reasons of merit,
we are not prepared to grant the claim for a special CAFS allowance.
[168] While the two CAFS units might be new to QFES, and the skills and techniques involved
in operating the associated equipment might also be new and different to other foam
producing equipment on QFES vehicles, our consideration of the evidence leads us to
conclude that there is nothing so special or different about the CAFS units which would
warrant the introduction of some special payment to the operators involved.
[169] Even if there was something special or different involved in the use of the CAFS vehicles
we would not have been inclined, on this occasion, to "reward" the behaviour recorded
in Mr Mitchel's evidence, which has seen the roll-out of the CAFS units held up for a
number of years. As stated elsewhere in this Decision, the appropriate way to have any
new skills recognised and rewarded is not through claims for additional payments to
operators or users of new pieces of plant and/or equipment but, rather, through the
practice of readily adopting new equipment, products and technologies as they are
introduced and to seek to have the additional skills acquired by firefighters, as a group,
recognised and rewarded through periodic work value cases.
Item 26 - Deployment
Item 36 - Deployment - communications centres
[170] QFES presses for the inclusion of its proposed clause 4.19.1 on the basis there has been
no counter proposal put by UFU or SOU. However, all of its other claimed provisions
in clause 4.19 are in dispute.
[171] Included in the clause sought by QFES is a provision (at 4.19.10) which would permit
officers recalled from annual leave or long service leave to attend critical incidents (such
as the January 2011 flood events) to have the option of having their leave re-credited in
lieu of being paid at overtime rates. In the case of annual leave, officers would also have
the option of adding the re-credited time to the end of the leave block from which they
were recalled. Although UFU did not lead any evidence in support of or in opposition to
these proposals, two witnesses called by SOU, Area Commander David Hermann and
Acting Chief Superintendent Kevin Walsh, were both strongly opposed to the proposed
[172] Mr Hermann said that officers under his command were rostered to blocks of annual
leave "years in advance" and any proposal which would allow officers to take additional
(re-credited) leave at the end of their scheduled block of leave, or at a later time, would
be very difficult to implement. Further, it was unlikely to achieve any financial savings
because any officer who took leave at a later time would need to be replaced on their
shift by another officer, usually at overtime rates. Mr Walsh said that when firefighters
graduated from the academy they were placed into a designated annual leave block,
numbered 1 to 7, and took their six weeks leave across a rolling roster according to their
allocated block.
[173] Mr Walsh also said that knowledge of when officers would be at work or on leave
provided QFES with knowledge about when they would be able to participate, for
example, in training courses and other matters requiring scheduling. Because of the
certainty provided by the existing arrangements, staff on holidays were those who were
primarily targeted to go on deployment. If there was an option for officers to defer or recredit their leave this would have significant service-wide implications. One such
implication was that federal government funding under the National Disaster Relief and
Recovery arrangements only covered reimbursement for overtime and not normal wages.
More importantly, from Mr Walsh's perspective, it was the difficulty of trying to manage
the allocation and re-allocation of resources to try to accommodate out-of-block leave
arrangements which led him to oppose the proposed provision.
[174] In its Reply submissions, UFU supported continuation of the existing provisions in the
2009 Agreement and suggested that QFES had not produced any evidence to support any
changes to those provisions.
[175] In line with our decision in respect of Item 12 - TOIL, we have decided to approve
QFES's proposed clause 4.19.10, notwithstanding the strong opposition to it by Messrs
Hermann and Walsh, on the basis that:
any election to seek to have leave re-credited will be voluntary;
it is important for workplace health and safety and personal welfare reasons
that employees be able to take annual leave rather than just receiving
additional income;
inclusion of the provision could lead to additional employment opportunities
for employees on the reserve roster; and
it will help reduce QFES's cost structure.
[176] However, in the circumstances where QFES has not advanced any material which would
support any alteration to the other existing provisions, we are inclined - with one caveat
- to decide that the existing provisions of clause 4.3 of the 2009 Agreement should be
included in the Determination. The caveat is that the provision should be expanded to
refer not only to intra-state or inter-state deployments but also to those deployments
which are made to overseas destinations.
Item 27 - 38 hour week allowance
[177] Although this provision was previously in dispute, QFES has subsequently accepted the
proposed UFU clause about this matter. Consequently, UFU's claim is approved and will
be incorporated into the Determination.
Item 28 - BAO, on-call and non-standard hours of work
[178] QFES seeks to vary the existing certified agreement provision by removing the
requirement that the relevant Deputy Commissioner consult UFU and affected Building
Approval Officers (BAOs) before implementing a regional on-call arrangement for such
BAOs. In its submissions, QFES said that all impediments to management prerogative
should be removed from the industrial instrument in circumstances in which they are
neither necessary nor appropriate to safeguard the interest of employees. This is said to
be on the basis that the evidence concerning consultation generally establishes that QFES
has a history and practice of consulting with its workforce in the management of its
organisation, irrespective of any legally enforceable obligation to do so.
[179] In the circumstances, and in light of our decisions on consultation elsewhere in this
Decision, we have decided to include a provision in the determination to the effect that
the on-call arrangements will be determined on a region-by-region basis "by the Deputy
Commissioner after consultation with the affected employee or employees and, where
requested by the employee(s), their Union representative."
Item 29 - Senior officers, hours of duty
[180] QFES and SOU have reached agreement about the provisions of clause 6.1 in ID 28. As
such, this clause is approved for inclusion in the Determination.
Item 30 - Senior officers, programmed day off
[181] QFES and SOU have reached agreement that senior officers who are currently working
a 38-hour week should be allowed to work a 40-hour week and accrue 2 hours per week
toward a programmed day off to be taken once every 28 calendar days or at another time
agreed with the senior officer's manager. The agreed provision is to be included in the
Item 31 - Senior officers, on call arrangements and non-standard hours of work
[182] QFES and SOU have reached agreement about this provision, which is recorded at clause
6.3 of ID 28. On the basis of such agreement this clause will be included in the
Item 32 - Senior officers, additional leave for duty manager officers working the
continuous shift roster
[183] QFES and SOU have also reached agreement about this provision, clause 6.5 in ID 28,
which will be included in the Determination.
Item 33 - Senior officers, additional paypoints
[184] SOU seeks the inclusion of additional paypoints for senior officers, who occupy the
positions of Inspector, Superintendent and Chief Superintendent, respectively, on the
ground of improving parity in the take-home pay situation of such officers (especially
Inspectors) and the staff they supervise. In particular, SOU referred to the evidence of
Messrs O’Neill, Cawcutt, Mutzelberg, Byatt, Gresty and Hackett, who said that the poor
remuneration levels of senior officers had a considerable impact on QFES’s ability to
recruit Station Officers and others into those roles. However, this evidence was disputed
by Mr Roche who said QFES had no difficulty recruiting staff into its senior ranks.
[185] Mr Cawcutt’s evidence was to the effect that the base salary of an Inspector was now
only 5% above that of a Station Officer and that this difference was wiped out whenever
a Station Officer worked overtime because Inspectors, as with other senior officers,
received no extra remuneration for working additional hours. In this respect, SOU
referred us to the evidence of its witnesses who testified that they consistently worked in
excess of 40 hours a week without any additional compensation.
[186] In addition to its arguments about senior officers’ incomes reducing over time in
comparison to their subordinates, SOU also relied upon the evidence of Mr Cawcutt to
the effect that equivalent level staff in the Queensland Ambulance Service (QAS), the
Queensland Police Service (QPS) and interstate Fire Services were better remunerated
than senior officers employed by QFES.
[187] Given the nature of these proceedings, which provided very little opportunity to analyse
the nature and scope of the duties of senior officers under the current [new] rank structure
as compared to the previous structure, and the strictures imposed on us by the CBRC
Minute referred to above, we have decided not to grant SOU’s claim. However in an
endeavour to try to accommodate both the interests of QFES and senior officers we would
strongly encourage the respective parties to jointly examine the level of the overall
remuneration package of senior officers employed by QFES compared to comparable
levels of senior officers employed by QPS and QAS and the “margin” between the pay
levels of such senior officers and their subordinates. Information of this type, as well as
the potential assessment of the work performed by senior officers within QFES by an
organisation like Mercer, might help the parties reach an agreed, or partially agreed
position in the lead up to the negotiation of a Certified Agreement in late 2016.
Item 34 - Communications centres - pattern of work
[188] QFES seeks to amend the existing provision which requires it to have "due regard to the
work requirements and the wishes of the employee" when determining the pattern of
working hours for other than continuous shift workers. This alteration is opposed by
[189] Reflecting our decisions elsewhere on consultation, we determine that the words "and the
wishes of the employees" be deleted and replaced with "and after consultation with the
affected employee or employees and, where requested by the employee(s), their Union
Item 35 - Communications centres - 38 hour week allowance
[190] QFES and the UFU are in agreement about the terms of this provision. As such, it shall
be incorporated into the Determination.
Item 36 - Communication centres - deployment (see Item 26)
Item 37 - Rural flexibility allowance
[191] QFES seeks to include the provisions of clause 7.1 of the 2009 Agreement which provide
for additional compensation to Rural Fire Management Officers working nights and
[192] Although the provisions provide for additional payments to the employees affected, UFU
has not indicated whether it wishes to continue the existing provisions in the 2013
Determination or whether it opposes the inclusion of such provisions.
[193] Given our awareness of the interest of Together Queensland, Industrial Union of
Employees in other matters in the Commission involving Rural Fire Management
Officers it might be the case that UFU has not expressed a view in relation to the matter
for the reason that such persons are not its members. Accordingly, in the circumstances,
we neither approve nor refuse QFES's request to continue this provision. However, if
the Commission is advised that the relevant parties agree to the continuation of the
provisions dealing with the rural flexibility allowance it will be included in the 2013
Item 38 - Job evaluation
[194] Although it was not the subject of any evidence and/or submissions, the contents of ID
28, as well as a topic heading in the employer's outline of submissions, both indicate that
we are being called upon to decide a dispute between QFES and the Automotive, Metals,
Engineering, Printing and Kindred Industries Industrial Union of Employees,
Queensland about how any disagreement regarding an internal assessment for movement
within the FC classification structure should be dealt with.
[195] Given the absence of argument and evidence about this matter we are only prepared to
incorporate those provisions which are agreed between QFES and the Union. As such,
the employer's proposal, which mirrors the first two sentences of the Union's proposal,
will be incorporated into the Determination. The additional sentence claimed by the
Union is not granted.
Item 39 - Deployment conditions for rural fire management and maintenance
[196] QFES presses for the inclusion of a proposed Part 11 of the Determination which would
contain provisions setting out the deployment conditions for rural fire management and
maintenance services in the event employees are sent to locations to assist with critical
incidents that may arise intra-state, inter-state or internationally. In doing so, it highlights
that no other party to the proceedings advanced any counter proposal.
[197] Although we understand that this claim was a matter at issue during the course of the
parties' negotiations, we have no information before us to enable us to decide what
impact, if any, the proposed provisions will have on existing arrangements. In those
circumstances we neither approve nor reject the proposed provision and leave it to the
parties to discuss whether the provision is to be included in the Determination. If there
is agreement, the provision will be included. If there is not, it will not be.
Item 40 - Work health and safety
[198] UFU seeks the inclusion of comprehensive provisions dealing with workplace health and
safety which would see the establishment of a Workplace Health and Safety Committee
comprised of an equal number of employer and union representatives. In addition, all
elected workplace health and safety representatives (HSRs) and deputy health and safety
representatives (DHSRs) would be entitled to participate in meetings of the Committee.
Further, the proposed provisions would require QFES to provide all HSRs and DHSRs
the necessary time and resources to undertake their roles in accordance with the
provisions of the Workplace Health and Safety Act 2011 and allow HSHR and DHSRs
to attend a range of courses relevant to their roles, without loss of pay, upon giving 14
days' notice to QFES.
[199] The proposed clause would commit QFES to providing "a workplace free from health,
safety or environmental risks" and to promoting "a framework for continuous
improvement and progressively higher standards in the prevention and management of
situations that cause injury or illness in the workplace."
[200] QFES opposes the claimed provisions.
[201] Given the prescriptive nature of the claim, QFES's opposition to it and the general
regulation of workplace health and safety matters via the Workplace Health and Safety
Act 2011, we have decided not to include any provisions dealing with workplace health
and safety in the Determination. This is not to suggest that the topic is not important. It
clearly is. However, the absence of clear agreement on how workplace health and safety
issues might best be addressed in such a hazardous occupation as fire fighting causes us
to be very circumspect about deciding what the appropriate provisions dealing with such
matters should look like.
[202] For that reason, we propose to leave it to the parties to discuss, again, whether they can
reach agreement on this point and, if they can, to also decide whether the terms of their
agreement should be contained in the Determination or elsewhere, especially given that
a Determination cannot be amended during its life (see s 150(8)(b)).
Item 41 - Additional pay points - Senior Firefighters and First Class Firefighters
[203] UFU seeks the introduction of an additional paypoint for the classifications of Senior
Firefighter and First Class Firefighter, respectively. It is proposed that the additional
paypoint be set at 3.5% above paypoint 1 and applied to officers classified at the
respective levels after 5 years' experience in the role. In support of this claim UFU called
evidence from Messers Cross, Watts, Ryan and Ruig.
[204] Mr Cross has been a Senior Firefighter for 15 years. His evidence was that he had elected
not to progress to a Station Officer position as he believed it was less "hands-on" and
involved more of a management role. He opined that the role of experience in shaping a
capable firefighter is critical and that he had frequently utilised his 33 years of experience
to rapidly assess steps which had to be taken to control a particular situation and what
the possible risks might be. As an experienced firefighter he carried out a critical role in
mentoring less experienced firefighters, even if they were at the same classification level.
He had commonly heard the most experience firefighter on a fire fighting vehicle or in
the station referred to as the "senior man". In his experience there was a senior man on
each shift at every station.
[205] Mr Cross also referred to changes which he said had occurred in his work over the past
6 years or so which included: increased paperwork and data entry; increased frequency
of being required to act as a Station Officer; an increase in non-operational workload; an
increase in additional work such as coordinating training, inspection of premises and
maintenance and inspection reports; larger intakes of new firefighters and an increased
mentoring role.
[206] Messers Watts and Ryan gave evidence designed to generally support that advanced by
Mr Cross. They spoke about situations they had witnessed where senior personnel would
provide advice and guidance to less experienced Station Officers and other firefighters
during fire fighting operations. They opined that more experienced firefighters took on
an informal leadership and mentoring role and kept a watch over less experienced
firefighters on the fire ground.
[207] Mr Ruig said that experienced firefighters with considerable periods of service were
generally referred to as the "senior man" or "senior hand". He claimed that these
firefighters are expected to assume a significant degree of responsibility and to mentor
and advise lesser experienced firefighters. As a senior First Class Firefighter he was
called upon to mentor other firefighters, while on the fire ground he was relied upon by
others to ensure that lesser experienced personal were safe. In that respect, he was
frequently told not to let a more junior firefighter out of his sight.
[208] Mr Ruig also said that as a result of his extensive exposure to a multitude of situations
and hazards he knew what to look for and to expect. He found lesser experienced
firefighters often did not identify the hazards they might encounter as they had not seen
them before. By contrast, he was able to anticipate, for example, the likelihood of flash
overs or back drafts. During road accident rescue work he was able to impart his
considerable experience to others, including how to deal with the situation of
encountering deceased persons. He was frequently able to guide the mental health needs
of junior or inexperienced firefighters because they felt comfortable with his position and
role in the crew.
[209] UFU's claim for the additional paypoints was opposed by QFES for a variety of reasons
including the absence of objectively verifiable criteria against which it could be
established whether an individual firefighter had attained any particular level of
expertise, other than by the passage of time. Further "there is no basis on the evidence
for suggesting that all senior firefighters who have attained five years' experience thereby
pass some invisible line in which they become mentors, guides or protectors of other
firefighters, other than as an intrinsic and fundamental part of the work which they all
do." Further, QFES argued that there is no objectively verifiable means of ascertaining
whether any of the firefighters with more than five years' experience perform any
mentoring functions at all which might be described as more or different from those
which they performed before the fifth anniversary of appointment to their classification.
[210] QFES also referred to the evidence of Mr Roche in relation to both claims, during the
course of which he indicated there was no discernable difference between the duties
undertaken by Senior Firefighters and First Class Firefighters, before 2007, when Mercer
undertook its work evaluation, and after that date. Further, the duties referred to in the
affidavits of Messers Watts, Ryan and Ruig were consistent with those duties that QFES
reasonably expected its First Class Firefighters to perform from time to time and which
had been part of those duties for many years. Similar comments were made in respect of
the witnesses who gave evidence about the duties of a Senior Firefighter.
[211] We have decided to reject UFU's claims for the additional paypoints. The evidence
simply does not establish any discernable difference between the duties of Senior
Firefighters and First Class Firefighters between, or prior to, 2007 and the present time.
All that the evidence does is confirm:
that exposure to different fire fighting and rescue operations over many years
allows an officer to draw on their experience whenever they encounter a new
situation; and
that other employees might expect, or seek to, use that level of experience to
deal with a situation they might not have encountered before and/or improve
their own knowledge base.
[212] With great respect to the witnesses who gave evidence, there is nothing special or unique
about their situation. A carpenter, plumber, electrician, or even an airline pilot, with
many years of experience would be able to recount similar experiences about how they
have been able to draw on their exposure to previous situations to help them deal with
any new situation which might arise and that other employees might seek to draw on that
level of experience. However, none of those occupational groups receive additional
remuneration on the sole basis of length of employment in the performance of their
particular role. In pay structures based upon time served the wage rate of less
experienced staff are necessarily lower than those with more experience. If we had been
of a mind to consider these claims we would also have had to consider what (lower) wage
rates should be paid to those officers in each role with less than 5 years’ experience.
Item 42 - Additional pay point - Building Approval Officers (BAO's)
[213] UFU seeks an seeks an additional paypoint, set at 3.5% above BAO2, for BAOs who
possess a Graduate Diploma of Fire Safety on the basis of the extra skills and capacities
the holder of such diploma brings to the role of Building Approval Officer. In support
of its claim UFU called Mr Ken Clark who gave evidence about the additional skills and
knowledge he was able to bring, as the holder of a Graduate Diploma, to the performance
of his role above that exhibited by other BAOs who only possessed a Graduate
Certificate. In particular, Mr Clark opined that a BAO who held a Graduate Diploma
possessed a far greater depth of understanding of fire safety installations and services
than other BAOs and allowed that person to establish, for example, if a particular fire
safety solution, especially an alternative solution to that generally prescribed, was
designed in accordance with legislative requirements. In addition, by having a more indepth knowledge of fire engineering principals, such a person provided stakeholders with
more relative and comprehensive advice in a significantly shorter timeframe.
[214] Finally, Mr Clark opined "the Graduate Diploma facilitates BAOs to perform other tasks
that can generate additional revenue for the QFES, as well as greatly increasing a BAO's
capacity in all tasks in their role description".
[215] QFES opposed UFU's claim on the basis Mr Clark had elected to undertake further study
to improve his knowledge in circumstances where the additional qualification he had
obtained (the Graduate Diploma) was not requested or required by QFES and, relevantly,
was not mandated in his role statement. In opposing the claim, QFES called evidence
from Mr Roche and Mr Steven McKee, Executive Manager, Fire Engineering Command,
State Community Safety Operations Branch of QFES. Mr McKee is a Registered
Professional Engineer of Queensland and a Chartered Fire Engineer with the Institution
of Fire Engineers. In addition to his Bachelor's Degree he held a Post-Graduate Diploma
in Building Fire Safety and Risk Engineering from Victoria University.
[216] After providing evidence about the nature of the work undertaken by BAO1 and BAO2
employees Mr McKee said:
"25 I am aware that several BAO2 employees have completed a Graduate
Diploma in Building Fire Safety and Risk Engineering from Victoria
University. Whilst it is expected that those employees who have completed
a Graduate Diploma will have an enhanced level of fire safety engineering
knowledge and capability above those who have only completed a Graduate
certificate, this additional knowledge and capability will not change the
employee's prescribed duties or responsibilities.
Regardless of whether an employee holds a Graduate Diploma or a Graduate
Certificate, the Building Approval Officer will still be required to undertake
the same prescribed tasks, perform the same prescribed duties and display the
same minimum competencies.
Completing a Graduate Diploma will not allow the employee to undertake
duties above that of a BOA2 that involve the provision of 'professional
engineering services' unless and until the Graduate Diploma qualifies the fire
officer to become a Registered Professional Engineer in Queensland, and is
appointed to a position that has those duties and accountabilities."
[217] In the course of his evidence (T4-65) Mr McKee said it was not the role of BAOs "to
interrogate the nuts and bolts of the engineering" of any alternative fire solutions, that
was the role of an engineer. "If they were to do that they may stray into the realms of
doing engineering and that's not, you know, their role. And in Queensland you have to
be a registered engineer to do engineering and that's why everybody has got their role.
The BAO has got their role and the engineers have got their role".
[218] After considering the evidence, especially that given by Mr McKee, we have decided to
refuse UFU's claim for an additional paypoint. In doing so, we agree with the
submissions of QFES which were to the effect that an employee is not at liberty to impose
a particular qualification on an employer, in the sense of demanding a higher rate of pay
for a qualification that the employer does not want or need for someone to perform the
role in question. To borrow the employer's example "If a qualified fire engineer applied
for and was appointed to the BAO role, that person would not be entitled to a higher
salary for a role that is other than the role which the employer requires of them".
Item 43 - Additional provisions for BA hazmat / safety equipment officers
[219] UFU seeks the inclusion in the Determination of a new stream, which has a similar
structure to the agreed rescue technician stream, which is said to be needed to recognise
the specialist skills and training of safety equipment officers. Evidence in support of this
claim was provided by Station Officer Andrew Berrill (Exhibits 50 and 51).
[220] Mr Berrill is one of three Special Operation Response Team members at Cannon Hill
who work within the Breathing Apparatus Hazmat Unit (BAHU), and whose role title is
Safety Equipment Officer (SEO). The duties of the 3 x SEOs include responding to
incidents which require breathing apparatus and associated equipment and/or hazardous
material (hazmat) equipment; delivering of training to QFES and other emergency
services’ staff in connection with breathing apparatus and hazmat; servicing and
maintaining breathing apparatus, hazmat suits and gas detection equipment; and project
management associated with such matters as identifying new equipment and/or processes
to enhance service delivery.
[221] Mr Berrill said that while he was remunerated at the rank of Station Officer, paypoint 2,
the nature of the duties he undertook as an SEO had not been considered by Mercer
during its 2007 evaluation of roles within QFES. Before that time, and subsequently,
there had been many changes in the nature of his work including: the introduction of
negative pressure masks in 2009 which had to be individually face fitted; the purchase of
additional maintenance equipment in 2011 to enable in-house servicing of four gas
detectors; the start of the roll-out of hazmat support vehicles (largely breathing apparatus)
in 2011; becoming part of the international USAR deployment taskforce team during
2012 and, in this role, conducting field calibrations and servicing of equipment - thus
enabling the functionality of the equipment to continue during deployment; the purchase
of hazardous transfer equipment during 2012 which provided a capacity for hazardous
liquids to be decanted from damaged vessels to a recovery vehicle, and so on.
[222] Mr Berrill generally opined that the role he and the other SEO's undertook was a
specialist role which required recognition, including the rank structure set out in the UFU
claim. Such structure would accommodate decisions announced by QFES which would
see the commissioning of new vehicles and equipment and the engagement of specialist
additional staff at Cannon Hill. There was also an expectation of increased chemistrybased training and incident specific equipment, with movement towards further in-house
maintenance of equipment as a cost saving measure.
[223] The Union's claim for an additional stream and classification structure was opposed by
QFES. In particular, QFES was critical of the approach adopted by UFU in its attempt
to have the Commission re-arrange the structures of QFES to create a stream that did not
exist, as well as classifications that did not exist. It might have been different if QFES
had created such a stream, in that the Commission could have been asked to rule upon
the appropriateness of remuneration levels and the like within the stream, "but to create
the stream is to re-design the QFES business operation, which simply can't be done."
[224] QFES also highlighted that Mr Berrill held the substantive rank of Station Officer and,
like a number of other persons who held that substantive rank, was required to work in
some speciality area of QFES's overall operations. While he was performing in his
specialist role he was not required to perform his general Station Officer duties. Further,
the evidence did not provide any comparison between the duties, skills and
responsibilities of a Station Officer compared to those undertaken by Mr Berrill and his
colleagues as SEOs. As such, there was no basis upon which the Commission could
determine that the work being undertaken by SEOs should be paid at a higher level than
the classification at which they were already being paid.
[225] We are not prepared to grant the claim advanced by UFU. This is for a number of
reasons, including:
there has been no evidence given about the differences between duties
undertaken by staff such as Mr Berrill and other Station Officers;
it would be highly unusual for the Commission to decide to establish a
specialist stream within a particular workforce, in the face of employer
opposition to such step, during a s 149 arbitration;
although Mr Berrill is currently working in a specialise role he, and his
colleagues, could be transferred back to normal Station Officer duties at any
point in time; and
any changes in the nature of the work performed by a particular classification
of employees (in this case Station Officers) should be assessed on a wholeof-service basis rather than by setting different wage rates for individual
employees, or groups of employees, while they are assigned to a "specialist"
role for a period of time.
Item 44 - Fire Investigators' pay level
[226] UFU seeks the creation of a new minimum pay rate for officers who undertake fire
investigations (Fire Investigators) such that it is equivalent to that of a BAO1. In pressing
this claim UFU argued that Fire Investigators received no additional remuneration to
recognise their fire investigation training and expertise and that the nature of their role
demands that they should receive additional compensation, equivalent to that paid to a
[227] Evidence and material in support of the Union's claim was provided by Mr Christopher
Markwell who is employed in the specialist role of Fire Investigation Officer. He said
that QFES has a legislative obligation under the Fire and Rescue Service Act 1990 to
conduct fire investigation activities to determine the origin and cause of fire incidents.
These are conducted to identify unsafe equipment, work practices, building design or
malicious activity within the community. The outcomes of such investigations are used,
amongst other purposes, to develop public safety information packages to educate and
increase awareness in fire safety practices within the community.
[228] The development of a formalised fire investigation capability began in 1994 under the
predecessor of QFES. The Fire Investigation Research Unit (FIRU) was introduced in
1995 and renamed as the Fire Investigation Unity (FIU) in 2009. As a result of
developments over the years FIU has designed and developed training courses to fulfil
the requirement for fire investigations capability within QFES. The course is conducted
in components across a 12 month time frame and consists of:
a six month distance education component;
a three week residential stage;
a four month regional based practical investigation component; and
a further one week residential stage.
[229] The training package has achieved national recognition to the degree that other State Fire
Services regularly send participants to the FIU conducted course. The FIU course, which
leads to successful participants receiving a Statement of Attainment, is recognised by the
Charles Sturt University which grants a 50% credit towards the Graduate Certificate in
Fire Investigation offered by that University and a 25% credit towards its Graduate
Diploma in Fire Investigation.
[230] In addition to dealing with the history of fire investigation within QFES and the number
of fire investigations undertaken during the 12 year period 2002-2012, Mr Markwell
identified the nature of the duties undertaken by a Fire Investigator in Queensland, some
of whom were engaged full-time in the role while others only undertook the work on an
"as required" basis. At the time he prepared his affidavit there were 80 Fire Investigators
in Queensland whose qualifications were contemporary, with approximately 30 of those
having achieved their qualifications within the last three years. Since 1994 the FIU had
trained approximately 120 QFES officers in fire investigation.
[231] Mr Markwell also provided a comparison between the training, assessment, role,
responsibilities and duties of a BAO1 and opined that the comparison provided
justification for UFU's claim that Fire Investigators should be paid at the same wage level
as a BAO1. He also said that Mercer did not look at the work of Fire Investigation
Officers in 2007, and that, as a result, the work of he and his colleagues had never been
properly evaluated.
[232] UFU's claim that full-time Fire Investigators be paid at the equivalent to the BAO1 rate
was opposed by QFES, primarily through the evidence of Mr Roche. He said that while
QFES was undertaking work to develop an Advanced Diploma package it did not require
an employee to have completed an Advanced Diploma in order to be a Fire Investigator.
He also said that UFU's claim failed to take into consideration the additional benefits Fire
Investigators received above that of a BAO1. For example, Fire Investigators such as
Mr Markwell received:
an allowance whilst on call;
overtime at the rate time and one-half;
a 2.5% flexibility allowance, which also compensated the Fire Investigator
for the first two hours of overtime; and
overtime penalties generally.
[233] By contrast, the payscales for a BAO1 differed in that they:
received a 20% loading to be on call for 1 week in every 4, but received no
additional payment for their attendance at any incident during the on call
period; and
did not receive payment for overtime worked outside their normal hours of
duty being required, instead, to accrue TOIL at single time rates.
[234] In addition, Mr Roche strongly disputed the comparative table in which Mr Markwell set
out the training requirements, duties and the like of a Fire Investigator compared to those
of a BAO1. He said "these tables do not provide an accurate account of the training and
assessment as well as the roles and responsibilities of the BAO1 and Fire Investigator.
They appear to be an unbalanced appraisal and distorted to support his argument… I do
not consider that there is any justification to suggest that the performance of that position
has changed in recent years, and certainly not so as to warrant a reclassification to
[235] Our consideration of Mr Markwell's evidence, as well as our exposure to him during the
inspections, leads us to conclude that he is a very dedicated and enthusiastic officer who
is totally committed to the role he undertakes. However, more than enthusiasm and
dedication is required to meet the criteria against which we are required to evaluate the
Union's claim for a higher wage rate to be paid to him and his two colleagues.
[236] On the evidence presented we have no way of being able to identify the relative value of
the work undertaken by Fire Investigators, such as Mr Markwell, with that undertaken
by BAO Level 1 employees. Further, we do not have any clear evidence before us which
would enable us to evaluate any changes in work value for Fire Investigators since their
last (reasonably significant) wage increase in 2007.
[237] Quite apart from these considerations, we are (as explained elsewhere in this Decision)
reluctant to consider setting a new wage rate for an individual group of employees who,
while appointed to perform a particular specialist role at the moment, appear to be, yet
again, classified at the Station Officer level. As such, granting an individual rate of pay
to such group would simply create a "silo" or "box" within the overall structure of QFES,
with all of the problems that type of situation brings. Employees in silos or boxes are
reluctant to be moved out of their specialist roles because their pay rates alter. Any
reluctance by individuals to move back to their substantive level reduces the
opportunities available to other employees to move into new and/or different roles.
Rather than leading to an expansion of skills, including having trained back-up staff,
across an organisation such as QFES, such a practice tends to lead to an overall reduction
in skills which, while it might not have an immediate effect, can ultimately impact the
overall responsiveness of the particular organisation.
[238] Accordingly, for the foregoing reasons, we formally refuse this claim.
Item 45 - Senior communications officers' paypoint
[239] UFU seeks the introduction of a new Communications Officer paypoint between levels
FCO1.4 and FCO2.1 to apply to a new role described as "Senior Communications
Officer". In advancing this claim UFU relied upon the evidence of four witnesses
(Docherty, Girgenti, Carney and Taylor), stating that their evidence established:
there is an operational gap between the highest level of Communications
Officer (FCO1.4) and a Communications Supervisor (FCO2.1);
a number of more experienced Communications Officers are increasingly
being called upon to perform tasks which fall outside of their role description;
introduction of the senior communications role will prepare Communications
Officers to advance to Supervisor or acting manager levels; and
a number of centres did not have Supervisors as a result of which senior
Communications staff, because of their significant experience, became "defacto" Supervisors, although not appointed as such.
[240] The UFU claim was opposed by QFES which argued:
it was the witnesses' own assessment that the work they performed went
beyond the requirements of their position description;
the additional paypoint would create a supervisory role which each witness
understood QFES did not want and had assessed as not been required; and
each of the witnesses had successfully performed the role of acting manager
in the past, and been remunerated for working at that level, notwithstanding
the absence of the claimed additional paypoint.
[241] In addition, QFES noted that the witnesses (and UFU) still pressed for the introduction
of the new paypoint notwithstanding their knowledge that QFES had assessed the need
for a supervisory position of the kind claimed and had decided that no position of that
type was required.
[242] Notwithstanding the passion with which each of the witnesses who gave evidence on this
topic pressed for the new classification and paypoint to be introduced, we are not
prepared to interfere with the decision taken by QFES, after assessment, that a position
of the type claimed is not required in the relevant communications centres.
[243] It is part and parcel of any classification structure that there will be a spread of skills and
experience between employees classified at the same level. In that respect, it is a natural
consequence of that circumstance that some more "senior" people in a particular role will
be called upon to exercise additional responsibilities or provide guidance and/or some
"direction" to less experienced staff from time to time and as circumstances dictate.
[244] However, that fact does not justify a higher rate of pay for the people concerned. This is
because pay rates usually reflect the range of skills and/or experience of the people who
undertake a particular role. If this was not the case then two, three or more classification
levels might be necessary to cover the range of skills and experience which are held by
individual employees ostensibly performing the same role. While industrial tribunals
might have adopted that approach in the past (where, for example, the Metal Trades
Award 1952 had over 350 individual classifications of employee) that approach has long
since passed (the metal industry award now only has 14 classifications).
Item 46 - Employment security
[245] QFES opposes UFU's claim to retain clauses 2.3.1, 2.3.3 and 2.3.4, respectively, from
the 2009 Agreement on the basis that such provisions offend s 691C of the IR Act.
[246] While not obviously apparent, in that the term “industrial instrument” in the IR Act does
not include a Determination, the adoption (at s 691A) of the definition of the same term
from the Public Service Act 2008 has the effect that s 691C also applies to Determinations
made under s 149. Accordingly, we are required to refuse UFU’s claim on the basis the
provisions it proposes be included in the 2013 Determination are non-allowable.
Item 47 - Permanent employment
[247] For reasons identical to those recorded in the previous Item we refuse UFU's claim that
clause 2.4 - Permanent Employment of the 2009 Agreement be replicated in this
Item 48 - Work and family life balance
[248] UFU seeks to replicate the provisions of clause 2.5 of the 2009 Agreement in the
Determination. Relevantly, this clause provides:
"To balance work and family life the following provisions are available subject to
service delivery requirements and financial considerations:
Extension of purchased leave arrangements to purchase up to six (6)
weeks purchased leave per year; and
Introduction of half pay recreation leave subject to Chief Executive
Officer discretion."
[249] The inclusion of such provision is opposed by QFES which relies upon the evidence of
Mr Donovan to the effect that the employer is opposed to the inclusion of provisions
which restrict its ability to legitimately manage its business and to implement reforms
consistent with Government requirements. In particular, QFES is opposed to the
inclusion of matters, such as the clause claimed by UFU, which might need to be adjusted
from time to time as circumstances require.
[250] Given QFES's objection to the inclusion of this provision and the absence of any evidence
in relation to it we are not inclined to include it in 2013 Determination. This is because
we have no way of knowing whether such provision is a reflection of existing policies,
in which case there will be no detriment to the employees covered by the Determination,
or whether they were provisions peculiar to the 2009 Agreement. If it is the latter
situation, the employer's agreement to the inclusion of such provisions has now been
Item 49 - Conversion of casual communications officers to permanent part-time
[251] UFU also seeks the inclusion of the provisions of clause 6.7 of the 2009 Agreement which
records QFES's commitment to maximising permanent employment and job security and
other matters designed to increase permanent employment. The inclusion of such items
is opposed by QFES on the basis they offend the provisions of s 691C of the IR Act.
[252] For the reasons recorded under item 46 we refuse the claim. In any event, we also note
that the provisions sought to be continued are largely unenforceable because they are
generally statements of intention rather than ones which bestow actual rights on
Item 50 - Extra - ordinary hours of duty
[253] UFU also seeks to include clause 4.7.5 from the 2009 Agreement in the Determination.
The introductory paragraph of this provision records that it is "an interim arrangement
pending the development of a Departmental or whole-of-government employment
arrangement relating to emergency services deployments."
[254] Unfortunately, no evidence was produced by either party in connection with this matter.
As such, we are not able to establish whether it is necessary to include comparable
provisions in the 2013 Determination or whether the other provisions of the
Determination will suffice to deal with any emergency deployment.
[255] In the absence of any agreement between the parties in relation to this matter we are not
presently inclined to include it in the Determination. However, if the parties agree to the
inclusion of the previous provisions, or some modification to them, we are prepared to
include them in the ultimate Determination we will issue.
Item 51 - Consultation and dispute resolution (see Item 4)
Finalisation of the Determination
[256] As mention in paragraph [124] above, we direct the parties to confer about finalising the
terms of the proposed 2013 Determination, in light of the contents of this Decision, and
to report back to this Full Bench on a date to be set in mid-late February 2015. The dates
of that Report Back Hearing will be advised to the parties in early January 2015.
[257] Clauses which are agreed between the parties or which are the subject of clear decision
by the Commission (other than wage increases) will have an operative date of Sunday 15
February 2015. Clauses which require further discussion and/or which will be the subject
of report back in mid-late February, as discussed immediately above, will have an
operative date as agreed between the parties or by later decision of the Commission,
whichever is relevant.
[258] We determine and Order accordingly.
Night Total
Night Total
Day Night Total
1457 1406 2863
Day Night Total
1393 1378 2771
Day Night Total
1526 1526 3052
Sick Relief Callbacks per Day and Night (and Totals) - in Graph Form
Attachment 1
Sick Relief Callbacks per Day and Night (and Totals) – Raw Data