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Vol. 174

FRIDAY, 24 OCTOBER, 2003

No. 8

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 Industrial Relations (Tribunals) Rules 2000 NOTICE The following Agreements have been certified by the Commission: No/s CA453/03 Title Banana Shire Council State Enterprise - Certified Agreement 2003 Certified on and certificate issued 14/10/03 Cancelling CA156/02

G.D. SAVILL Acting Industrial Registrar ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 ­ s. 341(1) ­ appeal against decision of industrial commission Orchid Avenue Realty Pty Ltd t/as Ray White Surfers Paradise AND Julianne Lois Percival (No. C63 of 2003) PRESIDENT HALL DECISION By an application under Part 2 of Chapter 5 of the Industrial Relations Act 1999 (No. B2010 of 2002) Julianne Lois Percival sought reinstatement to her former position as a real estate salesperson with Orchid Avenue Realty Pty Ltd t/as Ray White Surfers Paradise. By an application under s. 331(b) of the Industrial Relations Act 1999 (No. B646 of 2003), Orchid Avenue Realty Pty Ltd sought the dismissal of Ms Percival's reinstatement application. By a decision of 30 July 2003, now reported 173 QGIG 1262, the Commission dismissed the application pursuant to s. 331(b). This is an appeal against that decision of the Commission. In short form, the grounds of appeal are ­ (a) the Commission erred in law and/or exceeded jurisdiction in failing to find that s. 164 of the Property Agents and Motor Dealers Act 2000 required it to dismiss the reinstatement application; (b) the Commission erred in law and/or exceeded jurisdiction in failing to find that s. 161 or, in the alternative, s. 160 of the Property Agents and Motor Dealers Act 2000 required the Commission to dismiss the application for reinstatement; and (c) the Commission erred in law and/or exceeded jurisdiction in failing to find that s. 164 or the combined effects of ss. 164, 160 and 161 of the Property Agents and Motor Dealers Act 2000 (or some of them) were such as to deprive the Queensland Industrial Relations Commission of jurisdiction to receive and/or hear the application for reinstatement. I accept the submission of counsel for the appellant that this is not a case which tests the boundaries of s. 331(b). 14 October 2003

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In Nugent v. Aromas Pty Ltd (1996) 153 QGIG 630 I accepted that in exercising the power at s. 331(b) (then the power at s. 90(1)(b) of the Industrial Relations Act 1990) respect should be given to the general principle enunciated by O'Connor J in Burton v. The President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92 that: "Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.". I continue to adhere to that view. I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. However, where a matter of construction is capable of finally resolving the matter, it seems to me that the exercise of construction should be undertaken notwithstanding that extensive argument may be necessary to demonstrate that the case of the applicant is so clearly untenable that it cannot possibly succeed, compare Queensland University of Technology v. Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 QdR 259 at 265 per Holmes J (with whom Davies JA and Mullins J agreed) and General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. That is particularly so when the matter goes to jurisdiction, Stevenson v. Barham (1976-1977) 136 CLR 190 at 202 to 203 per Mason and Jacobs JJ. I turn then to the first ground of appeal. The case developed before the Commission was that s. 164 of the Property Agents and Motor Dealers Act 2000 prohibited contracts of employment between real estate agents and uncertified real estate salespersons. Particular reliance was placed upon the words of the section, "a real estate agent must not employ" and the definition of "employ" at Schedule 3 of the Act as including "engage on a contract for services or commission and use the services of, whether or not for reward". It is submitted that the error in the Commission's ruling upon that submission is to be found in the following passages: "The respondent principally relied on the case of Mahmoud v Ispahani [1921] 2 KB 716, in support of the contention that the application in B2010 of 2002 should be dismissed, on the grounds that the contract of employment was prohibited by statute and therefore illegal. The facts in Mahmoud v. Ispahani were that the plaintiff agreed to sell linseed oil to the defendant, who refused to take delivery and was sued for non-acceptance. A statutory order provided that no persons should buy or sell certain articles, including linseed oil, except under and according to the terms of a license. The defendant untruthfully alleged that he had a license and the plaintiff believed him. Although innocent, the plaintiff failed in his action on the basis that the contract was prohibited. I am of the view that the decision in Mahmoud v Ispahani [1921] 2 KB 716 is not the most appropriate starting point for consideration of the question of whether the contract of employment between the applicant and the respondent was illegal. That decision has been seriously questioned by a number of leading authors: (see for example Carter and Harland, Cases and Materials on Contract Law in Australia, 3rd edition, Butterworths, Sydney, 1998, p. 516, who state that it is doubtful whether Mahmoud v Ispahani is a case where the statute in question rendered the contract illegal and Greig and Davis The Law of Contract, Law Book Company Ltd, Sydney, 1987 p. 1117 where that case is described as `misplaced judicial zeal' in divining the intention of the legislation). The High Court in Bradshaw v Gilberts (Australasian) Agency (Vic) Pty Ltd (1952) 86 CLR 209, endorsed the decision Mahmoud v. Ispahani. However, a lot of water has gone under the bridge since that time and there has been a swing in judicial decision making away from the approach of being too ready to imply a Parliamentary intention to render contracts illegal, from the words of a statute. This swing is apparent in recent decisions of the High Court relating to illegal contracts which were conveniently summarised by Olsson J in Riley v WorkCover/Allianz Australia (Robinvale Transport Group (SA) Pty Ltd (South Australian Workers Compensation Tribunal 79 22 August 2002). In that decision, Olsson J pointed to the reasoning of the High Court in Nelson v Nelson (1995) 184 CLR 538 (`Nelson') and Fitzgerald v F J Leonhardt Pty Limited (1997) 189 CLR 215 (`Fitzgerald') as being patently in discord with the proposition that whenever performance of work under a contract of service is illegal, then ipso facto, there is necessarily an implication that that contract itself is void. The decision of Dawson and Toohey JJ in Fitzgerald, pointed to the judgment of Gibbs ACJ (as he then was) in Yango Pastoral Co Pty Ltd v First Chicago Australia Pty Ltd (1978) 139 CLR 410 (`Yango') as a convenient starting point for consideration of an argument about illegal contracts. In his judgment (at 413) Gibbs ACJ identified four ways in which the enforceability of a contract may be affected by a statutory provision rendering particular conduct unlawful: (1) (2) (3) (4) the contract may be to do something which the statute forbids; it may be one which the statute expressly or impliedly forbids; though lawful on its face, it may be made in order to effect a purpose which the statute renders unlawful; or though lawful according to its own terms, it may be performed in a manner which the statute forbids.

The contention of the respondent in this case is in effect, that the contract between it and the applicant falls into the second category identified by Gibbs ACJ. Whether that is so, is a question of statutory construction. As Gibbs AJC (sic) said in Yango (at 413-4): `...the test is whether the contract is prohibited by the statute. When a statute imposes a penalty upon the making or performance of a contract, it is a question of construction whether the statute intends to prohibit the contract in this sense, that is, to render it void and unenforceable, or whether it intends only that the penalty for which it provides shall be inflicted if the contract is made or performed. The question is whether a statute on its proper construction, intends to vitiate a contract made in breach of its provisions, is one which must be determined in accordance with the ordinary principles that govern the construction of statutes.' ". In re Mahmoud and Ispahani [1921] 2 KB 716 must be the starting point. The decision is authority for the following propositions: (a) where a contract is expressly or implicitly prohibited by statute, no court will lend its assistance to give it effect. For these purposes a contract is prohibited by statute though the statute inflicts a penalty only because the penalty implies a prohibition; (b) it is irrelevant that the court's knowledge of the illegality comes from the party who was guilty of the illegality. A court will not sit to enforce an illegal contract. There is no question of estoppel. For the protection of the public the court will refuse to enforce the contract. As the Commission correctly noted, in Bradshaw v. Gilbert's (Australian) Agency (Vic.) Pty Ltd (1952) 86 CLR 209 at 219 Dixon CJ and Taylor J followed In Re Mahmoud and Ispahani [1921] 2 KB 716 on the first point. It was also followed on both points by the New South Wales Court of Appeal in Le Feuvre v. Haddin (1969) 72 SR (NSW) 68 at 76 per Wallace P and at 83 per Walsh JA (with both of whom Holmes JA agreed), and on the second point by the Privy Council in Chai Sau Yin v. Liew Kwee Sam [1962] AC 304 at 311 and 313. Additionally, the case was treated as authority for the proposition that a plaintiff's ignorance is irrelevant in Pretorius Pty Ltd v. Muir and Neil Pty Ltd [1976] 1 NSWLR 213 at 217 per Yeldham J. The two propositions in In re Mahmoud and Ispahani [1921] 2 KB 716 were, I should add, propositions earlier recognised by the High Court of Australia in Roach v. Bickle (1915) 20 CLR 663 at 667 per Isaacs and Gavan Duffy JJ.

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The Commission was correct to notice that Greig and Davis, The Law of Contract, Law Book Company Ltd, 1987, at 1117 describe In re Mahmoud and Ispahani [1921] 2 KB 716 as "misplaced judicial zeal". However, the description has been the subject of judicial criticism. In Fitzgerald v. F J Leonhardt Pty Ltd (1996-1997) 189 CLR 215 at 243-244 Kirby J observed: "Some academic commentators have discerned in earlier cases a `misplaced judicial zeal' in deriving from the sparse language of legislation a purpose to strike at private contractual arrangements.* They criticise the reliance on fictions of `legislative intention' where the legislation in question makes no express provision with respect to contracts. They suggest that implied illegality of contracts should be abandoned, obliging Parliament (if that be its purpose) to make express provision in that regard. But this approach would be contrary to long-established doctrine and to the commonplace that legislation, typically expressed in brief language, may contain implications which are to be derived from its express terms. The duty of courts remains, where legislation is involved, to give meaning to the imputed purpose of Parliament as found in the words used. It would be artificial to expel implications from the task of legislative construction where they remain an established feature of the interpretation and application of legislation generally.". [Footnotes omitted. * The footnote referred to Greig and Davis ibid]. Yango Pastoral Co Pty Ltd v. First Chicago Australia Ltd (1978) 139 CLR 410 was not a case in which the contract was expressly or impliedly prohibited by statute. There was some discussion of the case in which the making of the contract was prohibited by statute. At 413 Gibbs ACJ commented: "It is often said that a contract expressly or impliedly prohibited by statute is void and unenforceable. That statement is true as a general rule, but for complete accuracy it needs qualification, because it is possible for a statute in terms to prohibit a contract and yet to provide, expressly or impliedly, that the contract will be valid and enforceable. However, cases are likely to be rare in which a statute prohibits a contract but nevertheless reveals an intention that it shall be valid and enforceable, and in most cases it is sufficient to say, as has been said in many cases of authority, that the test is whether the contract is prohibited by the statute. Where a statute imposes a penalty upon the making or performance of a contract, it is a question of construction whether the statute intends to prohibit the contract in this sense, that is, to render it void and unenforceable, or whether it intends only that the penalty for which it provides shall be inflicted if the contract is made or performed.". The final sentence is the sentence quoted by the Commission. It is part of a passage directed at the "rare" case in which the statute prohibiting the contract manifests an intention that the contract is to be valid and enforceable; a situation recognised over thirty years earlier in Bassin v. Standen (1945) 46 SR (NSW) 16 at 19 per Jordan CJ (with whom Halse Rogers and Roper JJ agreed). It is to be noticed that at 430 of the report of Yango Pastoral Co Pty Ltd v. First Chicago Australia Ltd, Jacobs J referred to In re Mahmoud and Ispahani [1921] 2 KB 716 with obvious approval. Fitzgerald v. F J Leonhardt Pty Ltd (1996-1997) 189 CLR 215 was not a case about making a contract prohibited by statute. It was a case about a lawful contract performed in a manner which the law prohibits. One of the two Justices upon whose decision the Commission purported to rely (viz. Dawson J) had, in Australian Broadcasting Corporation v. Redmore Pty Ltd (1989) 166 CLR 454 at 463 expressly approved of Chai Sau Yin v. Liew Kwee Sam [1962] AC 304 and In re Mahmoud and Ispahani [1921] 2 KB 716. In any event in Sutton v. Zullo Enterprises Pty Ltd [2000] 2 QdR 196 at 202-3 McPherson JA, with the apparent concurrence of Pincus JA and Jones J said: "[2] There are two questions. One is the impact of s. 421(1) of the Queensland Building Services Authority Act 1991 on the enforceability of a contract to carry out building work. The other is the effect of s. 42(3) of the Act on the respondent's right, independently of contract, to recover restitution for such work. [3] Section 42(1) provides that a person must not carry out, or undertake to carry out, building work unless that person holds a contractor's licence of the appropriate class under the Act. The statutory provision embodies two separate and distinct prohibitions. One is that a person must not `undertake' to carry out building work unless appropriately licensed. The other is that such a person must not `carry out' building work. The first of these two prohibitions is directed at an element in the formation or making of a contract to do building work. One cannot (except perhaps in a case of a rare and most unusual kind) make a contract to do building work without at the same time `undertaking' to carry out that work. The second of the two prohibitions is directed not at the making or formation of the contract but at its performance. A person who is not appropriately licensed is prohibited from carrying out a contract to do building work. Indeed, the prohibition applies whether or not there is any contract at all to do the work. Carrying out such work is prohibited by s. 42(1) irrespective of whether it is done gratuitously or without any binding obligation. [4] The next question concerns the consequence or effect of these statutory prohibitions. Turning to the first of them, it would be surprising if, having prohibited the making of such a contract, the legislature had not also intended that it should be unenforceable. This conclusion is not founded on the circumstance that, by s. 42(7), a person contravening s. 42 commits an offence, although it provides additional support for such a legislative intention. Even if it were not an offence for an unlicensed person to `undertake' to do building work, the result would in my opinion probably be the same. When Parliament prohibits the very process of formation of a contract, it scarcely lies with the courts to ignore that prohibition and enforce the contract despite the express legislative embargo on its being made at all. At least that is so where the party seeking to enforce it is the person who contravened the prohibition, which is so here. Whether the other party is also disabled from enforcing it is perhaps another matter. The decision in Re Mahmoud & Ispahani [1921] 2 K.B. 716, which has provoked the ire of some textwriters on the subject, is authority that even the other, and it may be innocent, party to the contract is also precluded from enforcing it; but it is a question that may in the end depend on the weight to be given to the fact that here the prohibition in s. 42(1) is directed only to the person `undertaking' to carry out the building work. In this instance, however, it is not something that calls for decision now, and it may be left for future consideration.". As to the first limb of the decision in In re Mahmoud and Ispahani [1921] 2 KB 716, save for the qualification recognised by Gibbs ACJ in Yango Pastoral Co Pty Ltd v. First Chicago Australia Ltd (1978) 139 CLR 410 at 413 and discussed above, the decision in Sutton v. Zulllo Enterprises Pty Ltd [2000] 2 QdR 196 is decisive. It is a function of the Court of Appeal to give guidance to inferior tribunals such as this Court, and the Queensland Industrial Relations Commission about the view to be preferred and applied in controversial areas of the law. The second limb of the decision In re Mahmoud and Ispahani [1921] 2 KB 716 was not plainly adopted. However, it was not doubted. The final two sentences at para [4] in Sutton v. Zullo Enterprises Pty Ltd [2000] 2 QdR 196 seem to be no more than a recognition that because the starting point is a statute and a valid statute always prevails over common law principle, there may be cases in which the second limb of In re Mahmoud and Ispahani [1921] 2 KB 716 may be modified or ousted. Fundamentally, that is the basis of the exception recognised by Gibbs ACJ in Yango Pastoral Co Pty Ltd v. First Chicago Australia Ltd (1978) 139 CLR 410 at 413. It seems to me, with respect, that there is much to be said for the view of Jordan CJ in Bassin v. Standen (1945) 46 SR (NSW) 16 at 19 that the common law rules about illegality in the making and performance of contracts are but prima facie rules which will yield to statutory intent. I note that in Burmic Pty Ltd v. Goldview Pty Ltd [2002] QCA 479, a case involving a contract to do an unlawful act, McPherson JA (with whom Cullinane and Holmes JJ agreed), immediately after referring to Sutton v. Zullo Enterprises Pty Ltd [2000] 2 QdR 196, observed: "If the contract is affected by illegality in the way it is here, neither party may sue to enforce it, whether to recover damages or obtain specific performance or any other form of relief that the law provides.". I turn then to s. 164 of the Property Agents and Motor Dealers Act 2000. Section 164 provides: C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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Employment of persons in real estate business

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(1) A real estate agent must not employ, as a real estate salesperson, a person the agent knows, or ought to know, does not hold a registration certificate as a real estate salesperson. Maximum penalty ­ 200 penalty units. (2) A principal licensee who is an individual and carries on the business of a real estate agent must not employ, as a real estate salesperson for the business, himself or herself or another individual with whom the principal licensee carries on business as a real estate agent. Maximum penalty ­ 200 penalty units. (3) A principal licensee that is a corporation and carries on business as a real estate agent must not employ an executive officer of the corporation as a real estate salesperson for the business. Maximum penalty ­ (a) for an individual guilty under chapter 2 of the Criminal Code of an offence or for section 59158 ­ 200 penalty units; or (b) for a corporation ­ 1 000 penalty units.". "Employ" is defined by the "Dictionary" at Schedule 2 to include "engage on a contract for services or commission and use the services of, whether or not for reward". I accept, and it is not as I understand it a matter of contention, that because the definition is inclusive, "employ" should also be treated as having its normal and ordinary meaning of "engage on a contract of service". However, it seems to me that the inclusive definition makes clear that s. 164 is concerned to prohibit the use of the services of a person who does not hold a registration certificate as a real estate salesperson. Such a construction is suggested also by s. 93. Section 93 explains what each of the certificates under the Act authorises. Materially a real estate salesperson's certificate authorises "any activity that may be performed by the real estate agent who employs the holder". (emphasis added) Further, by s. 92(2) a registration certificate may be issued on a condition limiting or prohibiting an otherwise lawful activity. And the objects of the Act are to be achieved mainly by setting a legislative framework within which persons performing activities for licensees may lawfully operate, and providing protection for consumers in their dealings with licensees and their employees. (emphasis added) All of that is of some moment here. On no view of the evidence before the Commission on the s. 331(b) application did the contract between Ms Percival and Orchid Avenue Realty Pty Ltd require or authorise Ms Percival to perform any of the activities of a real estate agent which might have been performed by Orchid Avenue Realty Pty Ltd. Ms Percival exhibits to her affidavit what appears to be a complete written contract of employment. Whilst the agreement purports to have been made on 2 April 2002, by clause 1.1 "... the Employer agrees to employ the Salesperson in the Employer's business commencing on the 15th day of April 2002." Amongst other things Ms Percival says that the time lag was to enable her to complete an REIQ Course which she mistakenly, on the advice of Orchid Avenue Realty Pty Ltd's personnel officer, believed was all that was required. Mr Paul William Sinclair, the operations manager for Orchid Avenue Realty Pty Ltd, whose affidavit was tendered by the Company deposes at paragraph 6: "I know she was employed by Orchid Avenue Realty Pty. Ltd. From 15 April 2002 to 4 December 2002. She was employed as a Real Estate Salesperson subject to her obtaining a Salespersons Certificate as required by the Act.". [I note without comment that Mr Sinclair exhibits the same written agreement as Ms Percival and that Senior Counsel for Ms Percival contemplates an argument about implied terms.] On that material Orchid Avenue Realty Pty Ltd cannot justify a finding that any "activity" was to occur prior to 15 April 2002 (at the earliest). That is of some moment. It is clear that on 2 April 2002 Orchid Avenue Realty Pty Ltd knew that Ms Percival did not hold a registration certificate as a real estate salesperson. However, I have been quite unable to identify any material upon which a finding might be made that on 15 April 2002 Orchid Avenue Realty Pty Ltd had actual knowledge that Ms Percival did not hold a registration certificate. The case would fall within s. 164(1) if Orchid Avenue Realty Pty Ltd ought to have known that Ms Percival did not hold a registration certificate. The expression "ought to know" is not without its difficulties. In Bank of New Zealand v. Fiberi Pty Ltd (1993) 14 ACSR 736 at 750 to 751 in dealing with s. 68A of the Companies (NSW) Code Priestley JA (with whom Clarke JA agreed) said: "...the relevant words of s 68A(4) are: Notwithstanding subsection (1), a person is not entitled to make an assumption referred to in subsection (3)... if ­ (a) ... ; or (b) his connection or relationship with the company is such that he ought to know that the matter that, but for this subsection, he would be entitled to assume is not correct ... The meaning of the words `ought to know' in para (b) is a matter of some difficulty in that, it seems to me, the words can reasonably be read as carrying various meanings, not all markedly dissimilar from one another, but some having different consequences from others in the circumstances of the present case. One possible meaning of the words is that the person in question, because of facts actually in that person's possession should have realised the true position about the matter assumed. A second possible meaning is that the person in question was under some kind of obligation to inform himself or herself about the facts of the matter assumed. A third possible meaning is that the person in question would reasonably be expected, in the particular circumstances of that person in relation to the assumption being made, to know the true position about the matter assumed. There are other possibilities. For instance, the first possibility is itself capable of various meanings, depending on what is `possession', a word which could pose difficulties when the person in question is a corporation whose only reality is as a legal entity. However, the three possibilities I have selected seem to me to be the three approaches to the meaning of the words most material for present purposes. It is the third possibility which to my mind fits best with the context in which the words appear. This is particularly so because the matter which the person ought to know is something that he ought to know because of `his connection or relationship with the company'. This seems to me to indicate that a judge considering whether s 68A(4)(b) applies to the facts of a case is required to look at the person in question, consider the full factual circumstances of that person's connection or relationship with the company in regard to the particular matter in question and then decide whether in those circumstances that person acting reasonably would know the true position about the matter assumed.".

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The context here is quite different. Given that s. 164 creates an offence, both considerations going to the construction of penal statutes and the ease with which the Legislature might have imposed an absolute liability subject to a defence of reasonable diligence suggest that "ought to know" has the first of the three possible meanings suggested by Priestley JA viz the real estate agent because of facts in the agent's possession ought to realise that the person did not have a registration certificate. Whatever the position may be at trial, and I express no view about whether knowledge spread over various minds within the structure of Orchid Avenue Realty Pty Ltd may be aggregated, on the hearing of the application under s. 331(b) a finding that the Company ought to have known that Ms Percival did not have a registration certificate was not reasonably open on the (properly) limited evidentiary material. The problem is the paucity of evidence about what facts were known to the Company. Mr Sinclair's affidavit does not touch on the issue. Ms Percival's affidavit provides a basis for speculation about the assumption and opinions which were in the personnel officer's mind, but what was in the personnel officer's mind seems to have been driven by a misunderstanding of the scheme for the registration of salespersons. One needs to know the facts in the Company's possession to assess whether a reasonable person in the Company's position would have realised that Ms Percival did not have a registration certificate on 15 April 2002. The statements attributed by Ms Percival to Scott Harman avail Orchid Avenue Realty Pty Ltd not at all. A reasonable person, who should not be treated as having a flawed understanding, would not realise that a person who was to take the course required of applicants for registration before starting work, would omit to seek registration before starting work. Section 164 has been raised in civil proceedings. But the section creates a serious offence and breach should not lightly be inferred, Briginshaw v. Briginshaw (1938) 60 CLR 336. The conclusion that the Company ought to have realised that Ms Percival had no registration certificate is a step too far. I accept the submission of counsel for Orchid Avenue Realty Pty Ltd that at common law "The word `employ' does not necessarily mean employed in actual work ... but may be fulfilled by keeping him in service.", Emmens v. Elderton [1852-53] IV HLC 624 at 654 per Wightman J. But such arrangements are "to say the least not usual.", Automatic Fire Sprinklers Pty Ltd v. Watson (1946) 72 CLR 435 at 465 per Dixon J. I am unwilling to give "employ" at s. 164 a meaning which is appropriate only in atypical circumstances and which is not suggested by the Property Agents and Motor Dealers Act 2000 itself. It must be borne in mind that if a person without a registration certificate employed under a "dormant" contract commences to act as a real estate salesperson, perhaps without his employer's knowledge, the employee will attract liability under s. 161. In my view the contract of employment has not been shown to be prohibited by s. 164. The first ground of appeal must fail. I turn then to the second ground of appeal. Sections 160 and 161 of the Property Agents and Motor Dealers Act 2000 provide as follows: "160 Acting as real estate agent (1) A person must not, as an agent for someone else for reward, perform an activity that may be done under the authority of a real estate agent's licence unless the person­ (a) holds a real estate agent's licence and the performance of the activity is authorised under the person's licence; or (b) is otherwise permitted under this or another Act to perform the activity. Maximum penalty­200 penalty units or 2 years imprisonment. (2) A person must not act as a real estate agent unless­ (a) the person holds a real estate agent's licence and the act is done under the authority of the person's licence; or (b) the act is otherwise permitted under this or another Act. Maximum penalty­200 penalty units or 2 years imprisonment. (3) Without limiting the ways a person may act as a real estate agent, a person acts as a real estate agent if the person­ (a) performs an activity mentioned in section 128(1); or (b) advertises or notifies or states that the person­ (i) (ii) performs an activity mentioned in section 128(1); or is willing to perform an activity mentioned in section 128(1); or

(c) in any way holds out as being ready to perform an activity mentioned in section 128(1). (4) However­ (a) a person does not act as a real estate agent only because the person­ (i) collects rents for a real estate agent as an employee of the agent; or (ii) collects rents for the service provider for a residential service, as an employee of the service provider, if the rents are collected in the course of the conduct of the service; and (b) a lawyer does not act as a real estate agent only because the lawyer collects rents in the lawyer's practice if the lawyer complies with the requirements of the Trust Accounts Act 1973 in relation to the rents. 161 Pretending to be a real estate salesperson

A person must not hold out that the person is a real estate salesperson unless the person holds a registration certificate (real estate salesperson). Maximum penalty­200 penalty units. (2) A person does not act as a real estate salesperson only because the person collects rents for a real estate agent as an employee of the agent.". It is necessary, to begin with, to refer to the way in which the Commission dealt with s. 161. The Commission observed, inter alia: "On the evidence before me at this point, it is far from clear that the applicant has breached the provisions of s. 161 of the Property Agents and Motor Dealers Act 2000. That section is headed `Pretending to be a real estate salesperson', and goes on to provide that a person must not `hold out' that the person is a real estate salesperson unless the person holds a registration certificate. In short, s. 161 is capable of being interpreted so that intent is relevant. The applicant's affidavit goes to intent, and contains material which might be raised as a defence to any claim of illegality on her part or which might also be the basis of an argument that the respondent has engaged in illegal conduct to a greater degree than the applicant.". C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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Plainly enough, if there was a triable issue, the application under s. 331(b) could not succeed. The proposition that "intent is relevant" is, however, quite contentious. If no more is meant than that the breach must arise out of volitional conduct, the proposition advanced by the Commission is quite uncontroversial, though I must confess that I am unable to find anything in the materials before the Commission to make an issue of volition. If, however, the Commission meant to suggest that something in the nature of wilful false pretence or consciousness of wrongdoing is required, it is not immediately obvious that the proposition is consistent with authority. In the context of legislation designed to stop unqualified persons from posturing as professionals, the expression "pretend to be" has traditionally been treated as a prohibition on putting oneself forward as a professional, holding oneself out as a professional or representing oneself as a professional, see O'Connell v. Culley and Others [1927] VLR 502 at 508 (Full Court), Johnston v. Collins [1932] VLR 66 at 68 per Lowe J, Horseman v. Nairn [1926] SASR 1 at 5 per Murray CJ and Kugelman v. Lenthall [1932] SASR 167 at 171 per Napier J. Further, there is force in the argument that s. 161(2) indicates that a person who acts as a real estate salesperson holds himself out as a real estate salesperson. Given that argument has not been squarely joined on the point, I expressly refrain from deciding it. It is sufficient to say that whilst I accept that the heading forms part of the section, s. 35C(1) of the Acts Interpretation Act 1954, I have reservations about whether "pretending" involves obliquity. It is unnecessary to determine the point about "intent" because the second ground of appeal may be dealt with on broader grounds. The essence of the second ground of appeal is that the reinstatement application should be disposed of under s. 331(b) because of illegality in the performance of the contract of employment between Ms Percival and Orchid Avenue Realty Pty Ltd. The case in which the contract is unlawfully performed (I put aside contracts to perform an illegal or which necessarily require performance of an illegal act) has always been distinguished from the case in which formation of the contract is prohibited, compare Yango Pastoral Co Pty Ltd v. First Chicago Australia Ltd (1978] 139 CLR 410 at 413 per Gibbs ACJ, at 126 per Mason J, at 127 per Jacobs J, Fitzgerald v. F J Leonhardt Pty Ltd [1996-1997] 189 CLR 215 at 219 to 220 per Dawson and Toohey JJ, at 226 per McHugh and Gummow JJ and at 242 per Kirby J. The general approach to contracts unlawfully performed was summarised by Kirby P in Hurst v .Vestcorp Ltd (1988) 12 NSWLR 394 at 411 as follows: "1. The fact that a transaction is made which results from or involves a breach of the requirement of statute may result in a conclusion that the transaction itself is illegal such that, to give effect to the statute, a court will decline to enforce the transaction or will treat it as void; 2. Such a result will not, however, always follow. Because statutes rarely provide, in terms, for the effect of the breach of their provisions upon such transactions, it is for the court, in applying the potentially crude instrument of the doctrine of illegality, to determine the imputed legislative intention. It must do so from the language, history and apparent policy of the statute: the court necessarily filling the gaps left by the legislature; 3. In reaching its conclusion, the court will consider the extent to which the statute itself already provides adequately for securing the attainment of its apparent objects and for punishing breaches of and non-compliance with its terms. It will also have regard to the possible consequences upon innocent third parties of a rigorous application of the principles as to illegality; and 4. Because of the sometimes drastic consequences of the application of the doctrine of illegality upon transactions, the proscription may not be extended beyond those transactions which are clearly in breach of the statute, lest, by casting the net more widely, serious injustice may be done to third parties beyond that necessary to give effect to the presumed legislative intention.". However, out of prudence I add ­ (a) whilst it is sometimes said that a contract is illegal if its performance involves breach of a statute passed for the protection of the public, the proposition is too broad as the purpose of the statute may be adequately served by imposition of a penalty, Fitzgerald v. F J Leonhardt Pty Ltd (1996-1997) 189 CLR 215 at 220 per Dawson and Toohey JJ; and (b) one must consider whether the sanction of refusing to enforce rights is not disproportionate to the seriousness of the unlawful conduct, Nelson v. Nelson (1993) 184 CLR 538 at 613 per McHugh J. Here, there is no reason to think that the very substantial penalties provided for by ss. 160 and 161 will not deter unlicensed or unregistered persons from acting as real estate agents or holding themselves out as real estate salespersons. Whatever the case might be where an unlicensed estate agent attempts to recover commission or a registered real estate agent attempts to recover commission based upon services rendered by an unregistered salesperson, as to which see generally Greg Roughsedge Realty Pty Ltd v. R J and S B Whitecross [2001] QCA 426, I can see no justification for denying enforceability of the contract between a real estate licensed agent and an unregistered salesperson in order to provide an additional sanction. The consequences of adoption of the additional sanction are potentially capricious. An entirely innocent licensed real estate agent might be denied the opportunity to enforce undertakings about confidentiality against a devious and unscrupulous unregistered salesperson. An unscrupulous real estate agent might pay an unregistered real estate salesperson less than the agreed rate. The consequences of the adoption of such a sanction might also be entirely disproportionate to the unlawful conduct, e.g. the loss of rights under the Workers' Compensation and Rehabilitation Act 2003, compare Nonferral (NSW) Pty Ltd v. Taufia (1998) 43 NSWLR 312 (CA) and Australian Meat Holdings Pty Ltd v. Kazi [2003] QSC 225 (Mullins J). In declining to exercise judicial authority to enforce an unlawful contract the common law courts genuflect to the authority of the legislature. It is quite another matter to treat a legislative declaration that conduct is unlawful as depriving persons of rights vested under statutes with quite different policy objectives. In my view, neither s. 161 nor s. 160 of the Property Agents and Motor Dealers Act 2000 required the Commission to dismiss the application for reinstatement. I reject the second ground of appeal. The core of the third ground of appeal is the proposition that it cannot be unfair within the meaning of s. 73 of the Industrial Relations Act 1999 to dismiss an employee which s. 164 requires the employer not to have in the employer's service. For reasons earlier developed, it seems to me that there is nothing in s. 164 to prohibit employment of a real estate person who does not hold a registration certificate so long as that person is neither required nor authorised to perform the work of a real estate salesperson. In those circumstances, I cannot say that it could not in any case be unfair within the meaning of s. 73 to dismiss a real estate salesperson who did not have a registration certificate. The circumstance that an employee is found not to have a registration certificate and the terms of s. 164 will always be relevant. However, given that the transfer to other duties with the consent of the employee does not necessarily rupture the relationship of employer and employee, compare Advertiser and Newspapers Pty Ltd v. Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240, it seems to me that there will be cases in which the fair course will be to allocate the unregistered salesperson to other duties or (by consent) grant leave of absence to the employee so that certification may be obtained. Since the matter is to go back to the Commission, I should perhaps add that the third ground of appeal seems to assume that s. 164 creates a continuing offence rather than an offence committed when the contract is first made or (more accurately) first implemented by the performing of the work of a real estate salesperson. For the above reasons I dismiss the appeal. I reserve all questions of costs. Dated 14 October 2003. D.R. HALL, President. Appearances: Mr K. Watson of counsel, directly instructed by Bruce Siebenhausen & Associates, for the appellant. Mr J.A. Griffin QC and Mr R. Clutterbuck, instructed by Cranston McEachern Solicitors, for the respondent.

Released: 14 October 2003

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 74 ­ application for reinstatement

649

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Brisbane City Council (No. B755 of 2003) DEPUTY PRESIDENT SWAN DECISION This application is made by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (the Union) on behalf of its member Mr Kallum Trass who claims to have been unfairly dismissed by his former employer, the Brisbane City Council (the respondent/Council). Mr Trass had been employed, full time, as a Coach and Motor Body Builder by the Council from October 1999 to 11 April 2003 under the Engineering Award ­ State (the Award). Prior to that period of employment, from 1989 to 1993, Mr Trass had completed an apprenticeship with the same employer. During the second period of employment and at the time of his dismissal, he was also the Health and Safety representative for his particular work area. The material facts of the application disclose the following information: In March 2003, Mr Trass had been counselled by his employer for being suspended on the roof of a bus with a safety harness which had been incorrectly "tied off" with cable ties. The applicant says he had done this because he had been uncomfortable with the retractor pulling him back with a force of approximately 3.5 kg. He states that his actions on this occasion did not impede the safety effectiveness of the harness. However, when the matter was brought to his attention by his employer, he claims to have rectified the situation immediately. On 1 April 2003, the employer alleged that the applicant was aloft without a proper safety harness in that it had not been connected to the retractor off the roof, but instead connected to ropes suspended from the roof of the workshop. The applicant denied that this had occurred and says that at all times he was properly suspended using the retractor. The employer also states that the applicant, upon being discovered in this situation, was told not to remove the ropes from the roof of the workshop as it would be unsafe. The applicant denies that he was told this. The applicant proceeded to remove the ropes using hooks provided for that purpose, but states that at no time did he act in an unsafe manner. On the following day, the applicant was asked to respond to the allegations which had been made by the employer concerning the events of 1 April 2003. The applicant provided a written response and was dismissed from his employment on 15 April 2003. In its letter of termination to the applicant, the Council made reference to the following matters: · · · · that the applicant's behaviour and actions constituted both serious misconduct and poor performance; that safety procedures had been ignored and the applicant had wilfully failed to obey reasonable directions from supervisors; that through the applicant's actions, he had exposed himself to danger of serious injury; that: "On Tuesday 1 April you were observed by your supervisor, Mr Garth Thom, working on the roof of a bus at the Toowong Workshops without the height safety equipment correctly fitted. Specifically, the static line safety retractor was not fitted to the harness. In addition two ropes suspended from the workshop roof support were secured to the safety harness that you were wearing. You were later instructed by Garth Thom not to remove the ropes from the workshop roof support as he was concerned that this action may create a further safety hazard. The instruction not to remove the ropes was again given to you by your Leading Hand, David Bowden. The following morning Garth Thom observed that the ropes had been removed.". · · · · that two supervisors had observed the actions of the applicant and, on the balance of probabilities, the Council determined to accept the statements of the two supervisors as representing an accurate description of events; that the Council also referred to the fact that in March 2003, the applicant had been counselled on the correct operation of the Static Line Safety Retractor and advised that in no circumstances was safety equipment to be altered in any way; that because the applicant was the nominated safety representative in his work area, the Council was satisfied that the applicant possessed the appropriate training with regard to Brisbane Transport Workplace Health and Safety Policies; and that the applicant was in direct contravention of clause 36(c) of the Queensland Workplace Health and Safety Act 1995. 13 October 2003

In support of its claim, the Union called Mr Christopher Blades who is the Workplace Health and Safety Co-ordinator at Brisbane Transport. This position has been held for approximately two years. Mr Blades stated that, after Mr Trass' employment had been terminated, the Union had raised concerns generally regarding the use of the Safety Line Retractor System but that the manufacturer had been unable to identify any particular problems which required remedial action. The issues raised centred upon the basic concept that in the case of an employee falling, that person would be caught prior to hitting a lower surface. The first incident involving Mr Trass, as witnessed by Mr Blades, occurred on 11 March 2003 when Mr Trass was observed incorrectly wearing his protective equipment. Mr Trass was told to rectify this situation and did so. The ramifications, had there been a fall, were that the applicant would have hit the concrete floor prior to the fall arrest system becoming active. A further incident involving Mr Trass related to the allegation that he had attached ropes to the "D" rings on the side of the fall arrest harness. This practice was in direct conflict with safety requirements. Were a fall to occur, in this instance, then the likely outcome would result in personal damage to the applicant. Mr Garth Thom, the Bus Build Supervisor at the Toowong Bus Workshop, gave the following evidence. He had occupied the abovementioned position for approximately two years. He had also been employed by the employer for approximately 10 years and had held the positions of Coach Builder Tradesman and Leading Hand. In all, with prior employment considered, Mr Thom had some 26 years experience in the bus building industry. It was claimed that, approximately once per month, Mr Thom would have to raise issues of concern with the applicant. Mr Thom stated that: "He was not a model employee and would often push the envelope of what was appropriate behaviour.". C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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All employees were required to comply with safety requirements when working on a bus roof. This involved correctly wearing a safety harness at all times. In March 2003, a Safety Audit was conducted at this site and Mr Thom had been advised that there had been a breach in the use of a retractor by Mr Trass. Mr Trass had acknowledged this and it had appeared that the problem had been appropriately addressed at that time. On 1 April 2003, whilst observing a bus bay where the applicant was working, Mr Thom noticed that ropes had been attached to the internal roof structure of the building. The ropes were hanging down either side of the bus upon which Mr Trass was working. Upon enquiry, Mr Thom had been advised that the ropes were being used for the purpose of keeping the airlines out of the Sikaflex sealer which was being used by the applicant. Mr Thom accepted that explanation. Later that same day, Mr Thom said that: "I saw Mr Trass standing on the bus facing towards the front of the bus with his back towards me. I immediately saw that he did not have the retractor hooked onto the harness in the centre of his back. I also saw that he had one rope hooked to his right side securing D on his safety harness and he was trying to either connect or disconnect the other rope to his left hand side securing D of his harness. These ropes are not part of the safety retractor system, but are the ropes he had indicated were to keep the air-hose out of the Sikaflex.". Upon observing this, Mr Thom told Mr Trass to remove the ropes from his harness and from the roof. Some moments later, he realised that the ropes were too high and he decided to tell Mr Trass to leave the ropes secured to the roof until the following day when a scissor lift would be used to remove them. The same directive was given to Mr David Bowden, (Leading Hand of the Paint and Panel, Bus Build Section). On the following morning, 2 April 2003, Mr Thom discovered that the ropes had been removed. Mr Trass did not inform Mr Thom why he had failed to follow instructions. Mr Thom subsequently wrote a report of the incident and provided it to his Manager, Mr Gary Moroney. That day a meeting was convened at which the Human Resources Manager, a Human Resources graduate, the applicant, the Union representative and Mr Thom were present. Mr Trass denied that the events so described above had occurred and alleged that Mr Thom had a grudge against him. Mr Thom believed that the applicant adopted what could be described as a flippant approach to issues, stating, at various intervals during the interview that it was okay to "fuck about" at work. The applicant also had attached to his belt a bell which rung whenever he lent over. Mr David Bowden gave evidence to the effect that, after Mr Thom had advised him that he had told Mr Trass not to remove the ropes, he had observed Mr Trass getting a long hook and removing the ropes from the roof. Mr Bowden approached Mr Trass and told him that he was not permitted to remove the ropes, but Mr Trass said that he was aware of that, but continued to do so nonetheless. Mr Bowden told Mr Trass that his actions would cause trouble, but that Mr Trass seemed more concerned about Mr Welsh (Workshop Manager at the Toowong Bus Workshop), seeing the ropes than he was about Mr Thom's instructions. Evidence given by Mr Gary Moroney (Bus Build Manager at Brisbane Transport) related to discussions he had with Mr Thom concerning Mr Trass' behaviour. Mr Moroney states that: "During the morning it appeared that Mr Trass showed no concern that he had breached safety standards or disobeyed a directive. I was advised by workshop staff that Mr Trass was walking around the section with a bicycle bell attached to his belt and occasionally honking a small horn in his pocket.". A further incident which had occurred immediately after the termination of employment had occurred, was referred to by witnesses for the respondent. It related to Mr Trass taking with him, upon leaving the employer's premises, his tools which were contained within a Council tool trolley. Mr Trass had been advised not to take Council property with him upon leaving the workplace, however, this instruction was ignored. Sometime later, Mr Blades intervened and the trolley was retuned. Mr Michael Welsh made reference to Mr Trass' behaviour and dress on the occasion of one counselling session where Mr Trass: "...had wetted and combed his hair in a strange style, and had the comb protruding from his pocket. He also had glasses with eyeballs on the lenses in his top pocket, and wore a makeshift tie fashioned from a piece of scrap material.". Given that Mr Trass had recently been counselled regarding the wearing of safety harnesses, Mr Welsh was concerned that a further incident had occurred around a similar type of incident. After the meeting previously referred to, a process was followed by the employer whereby Mr Trass was provided with a show cause letter to which he responded. Mr Welsh, after a discussion with Mr Greg Newman (Human Resources Manager for Brisbane Transport), formed the view that the response was not sufficient. The matter went to the Divisional Manager of Brisbane Transport for final determination. That final determination endorsed the views held by Mr Welsh and Mr Newman. There are a number of difficulties facing the applicant in this matter which have not been overcome after considering the totality of the evidence given. The first relates to the applicant's belief that he could adjust the safety rules in order to facilitate his particular concerns. The applicant held the position of Workplace Health and Safety Representative and was more than aware of health and safety requirements when using particular equipment. He had been on warning regarding one infringement in this area. The fact that the second incident occurred so quickly after the first, quite rightly gave the employer cause for concern. The weight of evidence goes against the applicant in terms of the second incident. While Mr Thom had seen the second incident (regarding the manner in which the ropes were being used), there is compelling evidence that immediately after seeing this incident, Mr Thom related a similar version of events to others. There is more than Mr Thom's evidence that the applicant was directed not to remove the ropes after the incident. I have no reason to disregard that evidence. There is sufficient corroboration of events as to persuade me that these witnesses were telling the truth. From the evidence before me, it appears that the applicant displayed a somewhat cavalier approach to his employment, especially when it came to direction. In terms of his personal habit of displaying and using bells and whistles on his person around the workplace, he appears not to have been reprimanded for this and, irrespective of the employer's "after the event" concern, the reality is that the employer condoned this practice. In any event, it might have provided light relief from the arduous task of bus building. The "cavalier" approach I refer to relates more to an apparent disregard for clear direction from the employer and certainly a disregard for applicable safety rules. Section 36 of the Workplace Health and Safety Act 1995 states that "A worker or anyone else at a workplace has the following obligations at a workplace ­ ... (c) not to wilfully or recklessly interfere with or misuse anything provided for workplace health and safety at the workplace...". This provision of the Act was not adhered to by the applicant. The applicant, who, in conjunction with his normal employment duties, was the Workplace Health and Safety Representative for his section of the workplace, was in the position to be more than aware of his responsibilities. To have his work behaviour seriously questioned by his employer on two occasions, over a short period of time, is telling.

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

651

The matters in question were not trivial ­ they related to serious health and safety issues. To further compound the applicant's problems, I accept that he deliberately ignored a direct instruction from his supervisor not to remove the ropes on the occasion of the second incident. There is little in the evidence of any other witness to support the applicant's actions. There were processes in place for the applicant to raise any concerns he believed he had with regard to the equipment which he was required to use. He states that he had done this, but there is no documented record that the matter was raised at appropriate Workplace Health and Safety meetings. The actions of the employer in terminating the employment of the applicant have not been harsh or unreasonable. I dismiss the application. Order accordingly, D. A. SWAN, Deputy President Hearing Details: 2003 28 and 29 August Appearances: Mr E. Moorehead and with him Ms K. Allen, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland on behalf of the Applicant. Ms K. Odgaard and with her Mr B. Miers for Brisbane City Council.

Released: 14 October 2003 ########################################################################################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 Industrial Relations (Tribunals) Rules 2000 ­ r. 201 George Stephenson AND CSR Limited (No. B1050 of 2001) DEPUTY PRESIDENT BLOOMFIELD 8 October 2003

Rule 201 of the Industrial Relations (Tribunals) Rules 2000 ­ Explanation for delay ­ Prejudice to application ­ Competing issued weighed ­ Case not made out ­ Request for order to be allowed to proceed refused. DECISION This decision is in relation to an application made pursuant to Rule 201 of the Industrial Relations (Tribunals) Rules 2000 in which Mr George Stephenson (the Applicant) seeks an Order of the Commission to allow him to take further action in connection with his application made pursuant to s. 276 of the Industrial Relations Act 1999 (the Act). Rule 201 is, relevantly, in the following terms: "201 (1) Lapse of proceedings after 1 year's delay This rule applies if ­ (a) an application has been filed in the registry; and (b) no action has been taken for 1 year since the last action was taken in the application. A party may only take further action with an order of the court, commission or registrar. An application for an order under subrule (2) must ­ (a) be in the approved form; and (b) state the steps taken in the proceedings; and (c) explain the circumstances of the delay; and (d) state the steps (including a timetable) proposed to be taken to progress the proceedings; and (e) state any prejudice suffered or likely to be suffered by another party to the proceeding if the proceedings are struck out; and (f) state the merits of the proceedings; and (g) state why the court, commission or registrar should make the order despite the delay.

(2) (3)

...". In compliance with the Rules the Applicant provided the following general chronology and explanation: · · · · · · · · · · · · · · · · · · · an application was instituted on the Applicant's behalf pursuant to s. 276 of the Act by a firm of Brisbane based solicitors on 8 June 2001; a conference was conducted in the Commission on 8 August 2001. This was attended by the Applicant and his Brisbane solicitor; a further conference was convened by the Commission on 21 January 2002. The matter did not settle; because the Applicant was concerned about certain aspects of his representation ­ including issues he had regarding communication ­ he consulted his current solicitors in Toowoomba in or about May 2002; in June 2002 his Brisbane solicitors advised his new solicitors they would only release the file once their account was paid in full; on 5 July 2002 the Toowoomba solicitors wrote to the Brisbane solicitors querying the fee agreement and the amount claimed; a follow-up letter was sent on 20 July 2002; on 30 January 2003 the Toowoomba solicitors received the file from the Brisbane solicitors. The file did not include a number of important documents ­ including a copy of the application or copies of the contracts upon which the s. 276 application was based; after representations by the Toowoomba solicitors the balance of the file was forwarded in late February 2003; the Applicant's delay had been caused, to a large extent, by the former solicitors claiming a lien over the file; the general principles associated with explanation for delay are set out in Breust v Qantas Airways Limited (1995) 149 QGIG 777; the Applicant is currently working in Brisbane and has had difficulty liaising with the Toowoomba solicitor so that he could provide a detailed statement setting out the facts and circumstances surrounding the claim. Such a statement has never been taken in the past; as a result of a recent injury to his leg the Applicant has been off work and was only able to attend at the Toowoomba solicitors on 15 May 2003 for the purpose of providing the statement referred to immediately above; throughout the matter the Respondent has been aware of the Applicant's intention to pursue the claim. In particular, the Respondent was advised by the Brisbane solicitors on 25 September 2001 of the Applicant's intention to have this matter determined at trial; having regard to the nature of the claim it is unlikely that any prejudice will be suffered by the Respondent if the matter were to proceed to trial; on 19 May 2003 the Toowoomba solicitors took steps to inform the Respondent's solicitor of their appointment and to request the Commission to re-list the matter; the application under Rule 201 was lodged on 27 June 2003; the application has good prospects of success (see similar cases Wilson v TNT Australia (2001) 168 QGIG 16 and Kevin Gleeson v Gold Coast Bakeries (2001) 166 QGIG 354); and the matter is now ready for trial. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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The solicitors for the Respondent opposed the application. It was observed that the last step taken in the action was 21 January 2002 and that the application pursuant to Rule 201 was lodged 17 months after that event. Mr Wells, who represented the Respondent, raised a number of points during the course of his submissions in opposition to the application, summarised as follows: · · · · · · · · · · the onus is on the Applicant to demonstrate that his application should be allowed to proceed notwithstanding the delay (Rich v Chubb Protective Services (2001) 167 QGIG 159at 160; Brisbane South Regional Health Authority v Taylor (1969) 180 CLR 541 at 554 per McHugh J); the Commission must be positively satisfied that the prescribed period should be extended. The prima facie position is that time limits should be complied with unless there is an acceptable explanation for the delay (Smith v The Austotel Group of Companies (1997) 154 QGIG 242; Hunter Valley Developments v Cohen (1984) 3 FCR 344); the general principles associated with the Commission's exercise of discretion in extension of time matters are set out in Breust v Qantas Airways Limited (1995) 149 QGIG 777. Although these principles have generally been accepted as applying to applications made under s. 74 of the Act they have also been extended to other extension of time matters (Hall P in Rich v Chubb Protective Services (2001) 167 QGIG 159); a delay of 5 months is a substantial delay in the context of a time limit of 12 months; the Applicant failed to explain particular delays in the progress of his application. Time passing between 22 July 2002 and 30 January 2003 is entirely unexplained; the claim that the Applicant was delayed by work commitments is hollow. No evidence is put forward to explain why work commitments prevented him from giving proper instructions over so long a period; contrary to the Applicant's solicitor's assertion that the Respondent had been put on notice in September 2001 of the Applicant's intention to pursue the matter, the Applicant had done nothing to alert the Respondent that he intended to pursue the application after the last conciliation conference held in January 2002; the Respondent was entitled to assume, given the lack of contact from the Applicant or his solicitor, that the Applicant had determined not to pursue the matter; in cases where there is a delay, whether the Respondent was kept aware of the claim is a significant consideration (Coyne v Ansett (unreported) IRC, Full Court, 24 September 1996; Hunter Valley Developments v Cohen (1984) 3 FCR 344; Johnson v Discovery Bay Developments (1996) 151 QGIG 1010); and unless merits are clear they are difficult to take into account at this stage. At best, merits are neutral for the purposes of consideration of the application pursuant to Rule 201.

Mr Wells also indicated that it had been difficult to fathom the nature of the Applicant's claim. The application implied there was only one contract between the parties extending from 1995 to 2000. The reality was quite different. There were a series of contracts, the first of which expired on 30 June 1999. This contract was followed by a series of month to month contracts ending in September 2002. The contract alleged to be unfair, which involved the payment of goodwill, expired prior to the commencement of the Industrial Relations Act 1999 and is not subject to review under s. 276 (Dickens v Herald and Weekly Times (1994) 56 IR 366; Gerrard v Mayne Nickless (1996) 135 ALR 494). Conclusion After considering the competing submissions I have decided not to exercise my discretion to grant an order allowing the Applicant to proceed to prosecute his application. The application was originally lodged on 14 June 2001. There was a preliminary hearing before a Member of the Commission on 6 July 2001 and a conference before another Member of the Commission on 8 August 2001. That conference was followed by a second conference on 21 January 2002. There was no further progress in relation to the matter until 26 June 2003 when the application, the subject of these proceedings, was received from the Applicant's Toowoomba based solicitors. Although some of the 17 month delay is explained by the Applicant there are a number of periods where there is simply no explanation for the Applicant's failure ­ either personally or through his solicitors ­ to attempt to progress the matter. Firstly, there is the 4 months which elapsed between the second Commission conference in January 2002 and the Applicant's visit to the Toowoomba based solicitors. Secondly, there is the extensive delay between July 2002, after the initial flurry of correspondence between solicitors, and 30 January 2003 when part of the Applicant's file was received by his new Toowoomba based solicitors. Thirdly, there is the very unsatisfactory explanation about the 4 month delay between 28 February 2003, when the complete file was received in the Toowoomba based solicitor's office, and 26 June 2003 when the current application was lodged. The current solicitors do not go so far as to submit that there has been representative error in relation to the prosecution of the application. The closest they go is to argue that the delay has been caused, to a large extent, by the claiming of a lien over the file by the Applicant's former solicitors. However, any such lien only covered the period June 2002 until February 2003 and does not explain the lack of progress in the matter between January 2002 and June 2002 nor the further delay between 28 February 2003 and 26 June 2003. Much of the latter delay is said to be associated with the fact that the Applicant could not visit his Toowoomba based solicitors because of work commitments and an injury to his leg. However, the duration of the injury was not stated nor was the reason for the 6 week delay between the giving of instructions on 15 May 2003 and the lodgement of the application on 26 June 2003. In my decision in Maller v Suncorp Metway QIDC Staff Pty Ltd (2000) 163 QGIG 281 I canvassed, at some length (at pages 283/284), the Commission's attitude towards representative error. In that decision I observed that whilst the Commission was generally loath to cause the sins of a representative to be visited upon an applicant it was nonetheless clear that the behaviour of an applicant could not be ignored even where an agent was involved. In that regard no explanation has been given about why the Applicant did not attempt to move the case along. It is clear that my decision in this case will have harsh consequences for the Applicant in that he will be prevented from pursuing his s. 276 unfair contract application. However, Rule 201 is designed to ensure that matters lodged in the Commission are progressed within a reasonable timeframe and to ensure that where there is a delay there is a proper explanation for that delay. Further the matter must be ready to proceed to trial within a reasonable time after any order allowing an Applicant to proceed is given. Here, while the Applicant asserts that the matter is ready to proceed to trial, the Respondent claims that they do not yet understand the nature of the Applicant's application. For instance, they state that whilst the Applicant alleges that the contract complained of ran from 1995 to 2000 the reality is quite different. The Respondent states that the contract complained of expired prior to the commencement of the Industrial Relations Act 1999 and is not subject to review (Dickens v Herald and Weekly Times (supra) and Gerrard v Mayne Nickless (supra)).

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

653

Whilst the Respondent did not state as much, it seemed to be foreshadowing an application to have the Applicant's ability to progress the matter determined as a preliminary point prior to any consideration of the merits of the application. Be that as it may, the general rule associated with extension of time applications (and I view this matter as analogous to an extension of time application although, strictly, it is not) is that the Commission has been generally loathe to take merits into account unless they are absolutely clear (see for example the analysis of cases by Linnane VP in Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20). However, I have not taken that possible future scenario into account into deciding the matter. I have based my decision largely around the Applicant's failure to explain the very substantive delay in prosecution of the matter whilst also considering, and weighing up, the prejudice he will suffer if the matter is not allowed to proceed. In the end result however, I am not persuaded that the Applicant has established that this is a case in which the Commission should exercise its discretion to issue the appropriate order to allow the substantive application to proceed. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2003 5 August Appearances: Mr P. Russell, of Clewett Corser & Drummond, for the Applicant. Mr J. Wells, of Allens Arthur Robinson, for the Respondent.

Released: 8 October 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s.74 ­ application for reinstatement Keith William Warry AND Lombard The Paper People (No. B997 of 2003) COMMISSIONER BLADES Unfair dismissal ­ Performance issues ­ Lack of procedural fairness ­ Compensation awarded. DECISION The applicant claims he was unfairly dismissed from the employment of Lombard The Paper People and brings this action seeking reinstatement or compensation. Mr Warry was the only witness. The respondent did not file any material and appeared only to cross-examine the applicant and make submissions. The applicant commenced employment for the respondent on 14 January 2002 and his services were dispensed with on 30 May 2003. He was a sales representative. He was warned about a lack of performance on 24 September 2002. When he was dismissed he was told that the reasons for the dismissal were that sales in his area had not risen substantially in the 16 months that he was employed and that he was not suited to the industry. Mr Royce claims that the reason was an invalid reason because it was discriminatory and sought a penalty. The applicant had been on WorkCover for two months of that 16 months and because the respondent referred to sales over the full 16 months, the applicant was therefore indirectly discriminated against because it did not take account of the two months he had off work. I reject that contention. The reason for the dismissal was advised to the applicant at the time and no inference can reasonably be inferred or at all that his absence on two months WorkCover had anything to do with the dismissal. The applicant's evidence was that it was part of his job to introduce new business. He tendered to the Commission a document containing 23 names of clients he claimed were new business introduced over the 16 months of the employment. It was clear that some on the list were not regular customers, some did not order at all and some were pre-existing customers under a different format. It might be inferred that the applicant did not really live up to the requirement to introduce new business to a company which had some 600 accounts. Be that as it may, the respondent has conceded that when the termination was affected, it did not strictly follow the letter of the law. The applicant was called in to the Manager's office and advised that he was to be "finished up". He was given the reasons for the dismissal but the real concern under the provisions of s. 77 of the Industrial Relations Act 1999 was the failure of the employer to give the applicant an adequate opportunity to respond to and correct the alleged lack of performance. When the applicant was warned about his performance on 24 September 2002, it was indicated to him that there would be a review by 30 November 2002. He was never told whether he achieved a budget and did not know what he was supposed to achieve. After the meeting of 24 September, no further issues were raised with him. No review was conducted and he was of the view that all was in order and that there were no longer any problems with performance. It is because of those circumstances that I am satisfied, on the balance of probabilities, that the dismissal of the applicant was harsh unjust or unreasonable. The applicant has since obtained permanent full-time sales work. The respondent has lost a significant account and no position exists for the reinstatement of Mr Warry. It is therefore in my view not appropriate to order reinstatement or re-employment. Mr Royce seeks an order for compensation upwards of $9,000. The applicant claimed that he was not told whether he had been paid any money in lieu of notice and he insisted that he received no breakdown of the $4,000.35 paid to him when he was terminated. However, after some questioning by the Commission, a document was produced from Mr Royce's file which was clearly a pay slip and which provided for what appears to have been 76 hours' notice. The applicant agreed that it did reflect 2 weeks' notice as the employer was alleging. The pay slip, Exhibit 3, when the various items were collated (a simple exercise), amounted to 2 cents over the $4,000.35, the 37 having probably been rounded down to 35. I was not particularly impressed by the claim that the respondent had not provided a full breakdown of the payment. The applicant was unemployed for 8 weeks. In his new position, he earns more from base salary than he had earned in his previous position, to the extent of $38.45 per week. Mr Royce sought that commission payments with the respondent also be taken into account. However, the new position also contains a commission package and no allowance has been made for that in the submission. Nor has there been any evidence as to the amount of that commission. In the circumstances, I am unable to take commission payments into account in respect of future loss of earnings. There is no evidence that there is any future loss. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc 10 October 2003

654

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

There is no evidence as to the value of the use of the vehicle that was provided to the applicant. He was provided with a company car but the employment contract prohibits private use on weekends, public holidays and on annual leave. The private benefit to the applicant must have been minimal. The other matter that Mr Royce seeks me to consider in assessing compensation is that the respondent paid the first $90 of the applicant's mobile telephone bill. The extent of any private benefit is not revealed and it is assumed that the telephone would have been used for business calls in addition to any private calls. An employee who has been unfairly dismissed is entitled by way of compensation, to an amount to restore the employee, so far as possible, to the financial position in which he would have been but for the dismissal. The Commission must take into consideration any monies paid to the applicant at the time of his dismissal. In this case, the applicant was out of work for 8 weeks and received 2 weeks in lieu of notice. He is entitled to 6 weeks compensation being the amount he has lost. His base salary plus commission is assessed at $619.25 per week. I order that the respondent pay to the applicant the sum of $3,715.50 within 21 days of the date of release of this decision. Mr Royce foreshadowed an application for costs. That was not dealt with. I direct that if there is to be an application for costs, that it be in writing and delivered to the Commission within 14 days of the date of release of this decision. Further directions will then issue. B.J. BLADES, Commissioner. Hearing Details 2003 9 October Appearances: Mr S. Royce, Australian Industrial Reinstatement Services, for the Applicant. Ms V. Lincoln, Printing Industries Association of Australia, with her Mr A. Hyman, for the Respondent.

Released: 10 October 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 74 ­ application for reinstatement Gaetan d'Hotman de Villiers AND Texport International Pty Ltd (No. B993 of 2003) COMMISSIONER THOMPSON 9 October 2003

Application for reinstatement ­ Withdrawal of representation for the respondent ­ Witness evidence ­ Evidence unchallenged ­ Invalid reason ­ Dismissal harsh, unjust and unreasonable ­ Reinstatement/re-employment impracticable ­ Compensation awarded. DECISION Background An application was filed by Mr Gaetan d'Hotman de Villiers (the applicant) with the Industrial Registrar on 16 June 2003 alleging that his employment had been terminated by Texport International Pty Ltd (the respondent) in a harsh, unjust and unreasonable manner. The matter was set down for hearing on 15 and 16 September 2003. At the commencement of the hearing on 15 September 2003, Mr John Sneddon, of Shand Taylor Lawyers, entered an appearance in the proceedings and sought the leave of the Commission to withdraw as the Solicitor for the respondent. Mr Sneddon advised that, late on Friday 12 September 2003, his firm had received notification from a Mr Morgan Lane of Worrells Chartered Accountants that he had been appointed Administrator of the respondent company. Mr Sneddon had sought, from the accounting firm, written confirmation of the appointment but had not received such correspondence at the time of his appearance before the Commission. Mr D. Gardiner of Counsel, on behalf of the applicant, stated he had not seen any official documentation relating to the respondent being placed in voluntary administration. He did, however, make submissions to the Commission that there was a distinction to be drawn between Voluntary Administration and Administration that occurs pursuant to an Order of the Supreme Court. The Commission raised with the parties the matter of taking the application forward (on the day) and identified the failure of the respondent to provide statements of evidence from witnesses that would be relied upon in the hearing, therefore failing to comply with the Directions Orders of 5 August 2003. Mr Sneddon, seeking to assist the Commission, indicated that he had experienced difficulties in receiving instructions from the respondent in the period leading up to the hearing. In response to points raised by Mr Gardiner, at page 3, line 18 of transcript, Mr Sneddon stated: "Mr Lane, I do know, has been aware of these proceedings for I'd say approximately one fortnight, however I haven't been party to any of the machinations over the last week, between Mr Land and the directors of the respondent, all I know is that Mr Lane wasn't appointed until ­ or we weren't notified of the appointment until 4.20 on Friday afternoon. . .". The Commission, on the suggestion of Mr Gardiner, stood the matter down for a short period to allow Mr Sneddon to make inquiries as to whether the Administrator had an intention to appear in the proceedings (on the day).

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

655

On resumption of the proceedings, Mr Sneddon informed the Commission that he had made contact with Mr Lane of Worrells Chartered Accountants. There would not be an appearance by the Administrator in the proceedings and Mr Lane had raised that his understanding was that "under the Corporations Act that upon his appointment proceedings are stayed.". Mr Sneddon further informed the Commission that the Administrator would object to the matter proceeding in the absence of the respondent. Mr Gardiner submitted that the Directions Orders had been complied with by the applicant, and that they were fully prepared to proceed with the matter. Not to proceed, it was argued, would greatly prejudice the applicant, who is a 68 year old man, not in the greatest of health, and of limited means. The Commission, at page 8, line 30 of transcript, determined that the matter proceeds and the reasons for such a decision: "Well, I've heard the submissions that have been made today by both Mr Gardiner and by yourself, Mr Sneddon. I can fully understand the difficulties that the applicant is now faced in some respects in that they've complied with the directions orders, they've prepared the affidavits and provided them to the respondent and to the ­ and to the Commission. In terms of the Commission the affidavits were, as I understand it, provided within the time frames that had been established and I can see that there's a ­ if the matter was not to proceed today then the applicant is out of pocket at least for today in terms of representation and they we'd have to go through another set of directions orders and I'm not confident even based upon what's been said today that the matter from the respondent's perspective would necessarily change. And I'm not convinced that I ought to do anything to alter the dates that have been set for hearing in respect of this matter. On that basis I am going to allow the applicant to continue with the matter today, albeit it will be uncontested. I understand you've got no instructions to act on behalf of the administrator in respect of this matter.". Mr Sneddon was granted leave to withdraw. Applicant Evidence supportive of the applicant was given to the Commission from the applicant and Ms Rosemay d'Hotman de Villiers (applicant's wife). Mr de Villiers, who gave his age of 68 years, gave evidence that he was approached by Mr Eric Quevauvilliers, whom he described as a long-term friend and associate, in 1999 and offered a position as Export Manger with Texport International. Verbal agreement was reached between the parties for a salary package of $60,000 per annum, inclusive of superannuation, which took the form of "salary sacrifice". The agreement was never formalised in a written agreement, nor was an employment contract entered into by the parties. The first few years of the employment arrangement were uneventful, with the applicant exceeding the annual quotas set by the employer. In 2002, the wage component of his salary package was increased by an amount of $5,000 per annum. On 24 April 2003, the applicant injured his knee whilst preparing some orders and, thinking that the injury was of a relative minor nature (sustained a small bruise), he did not bother to report the matter to his employer. That evening, the pain became unbearable, with the applicant giving evidence of his attendance at Logan Hospital. Upon his arrival, an X-ray was taken of his knee and despite waiting until late, he was unable to see a Doctor. The following day (Anzac Day) he was visited at home by a GP, and later presented himself at the Mater Hospital where his knee was X-rayed, at which time he was given a Workers' Compensation Medical Certificate. There was a requirement for the respondent's WorkCover Policy Number to be included on the certificate and the applicant requested his daughter to contact the respondent to obtain the relevant details. At paragraph 36 of his affidavit, he stated: "On Saturday the 26th of April 2003, I received a phone call at home from Eric Quevauvilliers in response to the message my daughter had left. He asked me what was wrong and I told him what had happened. I asked him about the Workers Compensation/WorkCover Number. He told me the company never had WorkCover Insurance and that they didn't need it. I wasn't aware of the laws in relation to WorkCover Insurance and didn't say anything else about it at this time. I did tell Eric that I was incapacitated and in bed and had a Medical Certificate requiring me to refrain from work until 30 April 2003. I told him I would send him a copy on Monday 28 April 2003 and I did.". The applicant continued to receive medical treatment for his injury and, on 2 May 2003, he was contacted by Mr Quevauvilliers, where it was agreed that the respondent would visit the applicant at home later that day. At the meeting, which was also attended by Mr Jean Marcel, the applicant said that he was advised "not to tell WorkCover too much about the company because they would think the company was `very big'.". On 20 May 2003, the applicant, who had returned to work, was approached by Mr Quevauvilliers and told that, as a result of his application for WorkCover benefits, the company had now been exposed to a possible law suit. The respondent offered to pay the medical expenses incurred by the applicant (at that time totalling $673.95), but no more as their "purse was not a bottomless pit". Such payment was conditional upon the withdrawal of the WorkCover claim. A cheque for the expenses was provided to the applicant, along with a letter which in part stated: "In an endeavour to resolve the matter of your claim, the company without any admission of liability is prepared to make a payment to you in the sum of $693.75 to afford you the opportunity to satisfy certain outstanding medical accounts and pharmaceutical expenses. Your acknowledgement and banking of the enclosed cheque will confirm the finality of this matter. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

656

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

The payment is being made by the company to you ex gratia and in good faith and in full and final satisfaction of any claim you may now or hereafter have against the company for the alleged accident (which the company does not admit).". The applicant did not bank the cheque due to concerns he held regarding the content of the accompanying letter and, on 27 May 2003, he was fronted by Mr Quevauvilliers and given until 4.00 p.m. that afternoon to advise of his preparedness to bank the cheque or otherwise. At around 1.30 p.m. (prior to the 4.00 p.m. deadline), a meeting was held with Mr Quevauvilliers and Mr Marcel, where the applicant was informed that his actioning of his WorkCover claim had exposed the company to a fine of between $50,000 and $100,000, and that the company would be closing down. The applicant was directed to immediately leave the premises. At paragraph 57 of his affidavit, the applicant gave the reasons he believed were behind his termination: "I believe that Eric Quevauvilliers unlawfully and wrongfully dismissed me, both on moral grounds and in breach of the legislative requirements of the Queensland State Government. I was not given two weeks notice as per statutory requirements in order to get my affairs in order and to arrange substitute and alternative income for my wife and I.". Further, in evidence, the applicant stated that he was participating in a Commonwealth Government incentive scheme where persons working between 65 and 70 years of age received a tax free payment of $20,000 upon reaching the age of 70. This opportunity had now been denied to him on the basis of his termination. The applicant, in response to questioning from the Commission, indicated that he had been receiving WorkCover payments (backdated) for his injury. The evidence from Ms d'Hotman de Villiers, in essence, "backed up" that evidence given by her husband. In particular, she referred, in detail, to the discomfort caused to her husband as a result of his injury, and of her involvement in the treatment of the injury. Evidence relating to phone calls received by her husband from Mr Quevauvilliers was , in the main, of a "hearsay" nature and, as such, not helpful to the Commission. She recalled discussions with her husband on whether to bank the cheque given to him for his medical expenses, and of the concerns they had for the content of the letter attached to that cheque. Final Submissions Mr Gardiner, on behalf of the applicant, provided verbal submissions supportive of the application. Matters covered included: · · applicant was a diligent and conscientious employee. reinstatement not practicable · due to size of the business · business being in voluntary administration; termination harsh, unjust and unreasonable in that the applicant did nothing to warrant his dismissal; dismissal for an invalid reason in accordance with s.73(2)(e) of the Act in that he filed a claim with WorkCover for an injury sustained at work and for which there was an entitlement as a matter of Law; compensation sought · lost income (tax free government subsidy scheme) ­ $16,000 · six (6) months wages ­ $32,500 · sanctions for unfair dismissal ­ invalid reason s. 80(1) and (2) of the Act ­ 135 penalty units; costs · respondent's failure to lodge a defence was an indication that they did not intend to resist the claim yet the applicant, a person of limited means, was forced to incur costs to carry the application through to a conclusion; and authorities relied upon by the applicant were · Chenery v Klemzig Nursing Home (1998) 55 SAIR 554 · Barsha v Motor Finance Wizard Sales Proprietary Limited (2002) (No. B492/02).

· · ·

·

·

Conclusion In determining this application, the Commission could only consider the evidence and submissions advanced in support of the application, due to the failure of the respondent to participate in the proceedings. The respondent company, on 12 September 2003, passed a resolution to appoint a Voluntary Administrator, one working day prior to the date set for hearing of the application. The Administrators failed to appear at the hearing, and advised the Commission by facsimile at 10.39 a.m. on 15 September 2003 (part way through the hearing) of their appointment. The respondent had previously failed to comply with the Directions Order of 5 August 2003 to supply both documents and statements of evidence which, in the view of the Commission, was a clear indication of their intentions not to participate in the proceedings. The Commission accepted the argument advanced by the Counsel for the applicant to proceed in the absence of the respondent.

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

657

The evidence of the applicant, which was unchallenged, painted quite a convincing picture of an elderly participant in the workforce who had, since 1999, and until his termination on 27 May 2003, served his employer well and had not given cause for his conduct or performance to be raised in any negative form. It appears that the applicant's decision to lodge a WorkCover claim for an injury sustained at work triggered a series of reactions from the respondent which, on the evidence, were formed for the reason that the respondent had no WorkCover policy. In accepting the evidence of the applicant, it was clear that his failure to accept reimbursement of medical expenses (outlays) for his injury, and withdraw the WorkCover claim, had been the sole basis upon which his employment had been terminated. The dismissal clearly fits into the category of harsh, unjust and unreasonable. In considering the argument that the termination was for an invalid reason in accordance with s. 73(2)(e) of the Act which states: "filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities. . .", I have formed the view that, in the lodgement of a WorkCover claim, the applicant was taking part in proceedings against an employer and the evidence that the respondent had not taken out a WorkCover policy seemingly fits into the area of an "alleged violation" and, therefore, I have concluded that the termination was for an invalid reason. Remedy For a variety of reasons, the Commission deems the reinstatement or re-employment of the applicant, for all intents and purposes, to be impracticable and, as such, would make no such order. The consideration of compensation, in line with s. 79 of the Act would, in the circumstances, be the appropriate remedy. In determining such an amount, the Commission, because of limitations arising from the Act, cannot give consideration to compensating the applicant for the $16,000 loss of income from his now non-participation in the Commonwealth based incentive scheme for persons remaining in employment between the ages of 65 and 70 years. In respect of the claim for the maximum payment of six (6) months wages at the rate immediately applicable at the time of dismissal, the Commission is unwilling to award the said claim based upon the decision of Norton Tool Co Ltd v Tewson (1973) 1 All ER 183 as included in McCombe v Carter and Scott Civil Engineering Contractors (No. B157 of 1997) Bloomfield C: "That leaves the matter of possible compensation. The purpose of compensation is to compensate an unfairly dismissed employee for his/her loss and not to award a bonus (Norton Tool Co Ltd v Tewson (1973) 1 All E R 183;. Bechara v Healy and Co (1996) AILR 3-312). As observed above, Mr McCombe has been unfit for work since the day of his dismissal. He has thus suffered no loss in that he would not have been able to work had he not been unfairly dismissed. Accordingly, he is not entitled to receive any compensation (see also dicta of Bougoure C in Cowan v BBC Hardware Limited, Hervey Bay (1997) 155 QGIG 429 at 431). If I attempted to award him any compensation I would be providing him with a bonus.". The acceptance of the applicant's WorkCover claim has meant that he would have received 85% of his income for a period of 26 weeks and to adequately apply the provisions of the Act and not award a bonus as such, the Commission concludes that an amount equal to the 15% to reach the level of his normal wage should be awarded for a period of six (6) months. The calculation of that amount is $4,875. In relation to the termination being for an invalid reason, s. 80 of the Act provides for an order in favour of the applicant, as described: "Sanctions for unfair dismissal ­ invalid reason (1) If satisfied an employer has dismissed an employee for an invalid reason, the commission may order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units. (2) The commission may made the order in addition to an order for reinstatement, re-employment or compensation.". Having considered the severity of the respondent's actions in terminating the applicant for the lodging of a WorkCover claim, which is the lawful right of any employees in the State of Queensland, I order that the respondent pay to the applicant a monetary amount equal to 100 penalty units. The current value of a penalty unit is $75.00, which brings amount payable to $7,500. The respondent is therefore ordered to pay the applicant a gross amount of $12,375 ($4,875 and $7,500) twenty-two (22) days after the release of this decision. Income tax is to be deducted at the appropriate rate. Costs The scope for awarding costs is defined at s. 335 of the Act: "335 Costs (1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied ­ (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement ­ the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application. (2) In making an order, the court or commission may order a party to pay another party an amount reasonable payable to a person, who is not a lawyer, for representing the other party.". It would be my view that, for the applicant to be successful with a claim for costs, it would have to be evidenced that the respondent had, through an unreasonable act or omission, caused the applicant to incur costs beyond what could be regarded as reasonable. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

658

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

The failure of the respondent to comply with the Directions Order or attend the hearing, whilst unusual and somewhat irresponsible, did not necessarily add to the costs that would have ordinarily been expended in prosecuting the application. The application for costs is therefore rejected. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2003 15 September Appearances: Mr D. Gardiner, of Counsel, instructed by Mr A. Palella of Palella Humphries and Venardos, for the Applicant. No appearance by Respondent. Released: 10 October 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 156 ­ certification of an agreement Australian Hardboards Limited AND The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Another (CA408 of 2003) AUSTRALIAN HARDBOARDS LIMITED ­ CERTIFIED AGREEMENT 2003-2005 COMMISSIONER BLADES REPORT ON DECISION (as edited) In giving his decision from the Bench on 9 October 2003, Commissioner Blades said: "This is an application by Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers for the certification of the Australian Hardboards Limited ­ Certified Agreement 2003-2005. The certification is supported by The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and The Electrical Trades Union of Employees of Australia, Queensland Branch, who are both parties to the Agreement. The Agreement does not contain a list of proposed wage rates. Rather, in Attachment 1, it indicates that the Labour Hire Agreement engineering contract rates will be defined in the attachment, and as an example provides "Period 1 ­ C10 rate as specified in the 200AHL site wage rates". Any Industrial Inspector attempting to identify the rate of pay applicable to that particular employee would have some difficulty in doing so. Any employee or prospective employee would equally have similar difficulty, if not find it impossible. The Certified Practice Note No. PN6, operative from 15 August 2003, is not binding upon the Commission. It provides: `This practice note operates subject to the unfettered and overriding discretion of the Member of the Commission who has been allocated a certified agreement for certification.'. The note also provides in clause 4: `Where an agreement provides for an increase(s) in wages or salaries during the life of the Agreement, a table showing the date of the increase and the wage or salary rate payable from that date is to be included in either the body of the Agreement or attached as a schedule to the Agreement. A wage or salary schedule attached to the Agreement will be available for public search.'. Mr Heather has now submitted a schedule of the rates but seeks to retain the rates as confidential and has requested non-disclosure of those rates. He says that there is intense competition in getting hold of labour into the various factories and the general strategy of employers is to withhold the wage rates from the public domain. He relies upon the provisions of s.320 of the Industrial Relations Act 1999 (the Act) that `the commission is not bound by technicalities, legal forms or rules of evidence ...'. Both Unions seek that the rates be in a published scheduled to the document. With respect, I do not consider that the provisions of s. 320 of the Act authorise the Commission to withhold the rates from public scrutiny. Nor is any such authority to be found in s. 679 of the Act. The reason for the disclosure of the wage rates is apparent. In my view, no reason has been shown why the Practice Note should be disregarded, even if there is some power to order that the rates be prohibited from search or disclosure. It seems that the Practice Note has been devised to overcome what was hitherto been somewhat of a problem for those entitled to seek the wages information. I therefore order that the Agreement be amended by inserting in lieu of the current Attachment 1, the Wages Schedule that is now provided. I have considered also the Affidavit of Janine Mavis Wall, and taking into consideration the submissions of the parties, I am satisfied that the `no disadvantage test' has been met, that there is no impediment to the certification of the Agreement and I order that it be certified on and from today's date.". Dated 10 October 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Hearing Details: 2003 8 and 9 October Appearances: Mr O. Heather, Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, for Australian Hardboards Limited. Ms K. Inglis, for The Electrical Trades Union of Employees of Australia, Queensland Branch. Mr K. Allen, for The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. 10 October 2003

Released: 10 October 2003

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

QUEENSLAND INDUSTRIAL REGISTRAR Industrial Relations Act 1999 ­ s. 482 ­ arrangement for conduct of elections

659

The Registered and Licensed Clubs Association of Queensland, Union of Employers (No. Q28 of 2003) REGISTRAR EWALD Conduct of Election ­ Prescribed Information ­ Method of Election ­ Electoral Commission to Conduct Election. DECISION On 8 October 2003 The Registered and Licensed Clubs Association of Queensland, Union of Employers lodged in the Registry under the Industrial Relations Act 1999 the information as prescribed in section 36(1) of the Industrial Relations Regulation 2000 in relation to its request for the conduct of an election by the Electoral Commission of Queensland for the following Office: Office Zone Representative Wide Bay Zone Reason for Election The Industrial Organisation advises that a casual vacancy has arisen in the above position Method of Elections I am satisfied the method of election for Zone Representative is by a direct vote by secret postal ballot of the members of the particular zone. Conduct of Elections I have considered the request, the Act and Rules, and I am satisfied that an election is required to be held under the rules for the position of office set out above. Under section 482 of the Industrial Relations Act 1999, I am making arrangements for the conduct of the election for the above Zone Representative of The Registered and Licensed Clubs Association of Queensland, Union of Employers by the Electoral Commission of Queensland. Dated 10 October 2003. E. EWALD, Industrial Registrar. Released: 10 October 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 CLERICAL EMPLOYEES' AWARD ­ PERMANENT BUILDING SOCIETIES ­ STATE 2003 (Gazette 10 October 2003) (AR160 of 2002) DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY AWARD REVIEW (Correction of Error) WHEREAS an error occurred in the Award as published in the Queensland Government Industrial Gazette of 10 October 2003, Vol. 174, No. 6, pages 493-510, the following correction is made to be effective as from 15 September 2003: 1. By deleting the heading "5.1.5 Divisional and district allowances" from where it appears in clause 5.1 and inserting the heading "5.1.6 Divisional and district allowances" in lieu thereof. Dated 14 October 2003. G.D. SAVILL, Acting Registrar. ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 125 ­ application for amendment The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B1401 of 2003) FORESTRY EMPLOYEES' AWARD ­ DEPARTMENT OF PRIMARY INDUSTRIES 2003 COMMISSIONER FISHER 14 October 2003 C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc 14 October 2003 1 Number of Positions 10 October 2003

660

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

AMENDMENT (Correction of Error)

24 October, 2003

WHEREAS an error occurred in the amendment of the abovementioned Award as published in the Queensland Government Industrial Gazette of 10 October 2003, Vol. 174, No. 6, page 481, the following correction be made and to be effective as from 19 September 2003: By deleting the phrase "clause 8.2.2(b)" in item one and inserting the phrase "clause 8.3.1(b)" in lieu thereof. Dated 14 October 2003. By the Commission, [L.S.] G.D. SAVILL, Acting Industrial Registrar. Operative Date: 19 September 2003 Amendment ­ Allowances ­ COE Released: 14 October 2003

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relation Act 1999 ­ s. 130 ­ award review AWARD FOR EMPLOYEES IN THE INTELLECTUAL HANDICAP SERVICE ­ DEPARTMENT OF HEALTH (No. AR228 of 2002) DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY AWARD REVIEW After reviewing the above Award as required by section 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the following Award be made, as from 29 September 2003. AWARD FOR EMPLOYEES IN DIRECT CLIENT SERVICES ­ DISABILITY SERVICES QUEENSLAND 2003 PART 1 ­ APPLICATION AND OPERATION 1.1 Title

29 July 2003

This Award is known as the Award for Employees In Direct Client Services ­ Disability Services Queensland 2003. 1.2 Arrangement Clause No.

Subject Matter PART 1 ­ APPLICATION AND OPERATION

Title......................................................................................................................................................................................................................1.1 Arrangement ........................................................................................................................................................................................................1.2 Award coverage...................................................................................................................................................................................................1.3 Date of operation .................................................................................................................................................................................................1.4 Parties bound .......................................................................................................................................................................................................1.5 Definitions ...........................................................................................................................................................................................................1.6 PART 2 ­ FLEXIBILITY Enterprise flexibility............................................................................................................................................................................................2.1 Procedures to implement facilitative Award provisions.....................................................................................................................................2.2 PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION Prevention and settlement of disputes.................................................................................................................................................................3.1 Employee grievance procedures .........................................................................................................................................................................3.2 PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Contract of employment......................................................................................................................................................................................4.1 Termination of Employment, Introduction of Change and Redundancy ...........................................................................................................4.2 Part-time employees............................................................................................................................................................................................4.3 Casual employees ................................................................................................................................................................................................4.4 Anti-discrimination .............................................................................................................................................................................................4.5 PART 5 ­ WAGES AND WAGE RELATED MATTERS Salaries ................................................................................................................................................................................................................5.1 Performance of higher duties ..............................................................................................................................................................................5.2 Escort duty...........................................................................................................................................................................................................5.3 Locality allowance ..............................................................................................................................................................................................5.4 Clothing allowance..............................................................................................................................................................................................5.5

24 October, 2003

Subject Matter

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Clause No.

661

PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK Hours of duty.......................................................................................................................................................................................................6.1 Meal times and rest pauses..................................................................................................................................................................................6.2 Extra payments for weekend work......................................................................................................................................................................6.3 Early payment for afternoon and night shifts .....................................................................................................................................................6.4 Overtime ..............................................................................................................................................................................................................6.5 Meal allowance....................................................................................................................................................................................................6.6 PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS Sick leave ............................................................................................................................................................................................................7.1 Bereavement leave ..............................................................................................................................................................................................7.2 Annual leave........................................................................................................................................................................................................7.3 Long service leave...............................................................................................................................................................................................7.4 Family leave ........................................................................................................................................................................................................7.5 Special leave........................................................................................................................................................................................................7.6 Public holidays ....................................................................................................................................................................................................7.7 PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK No provisions inserted in this Award relevant to this Part. PART 9 ­ TRAINING AND RELATED MATTERS Training, learning and development ...................................................................................................................................................................9.1 PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES Workplace health and safety ..............................................................................................................................................................................10.1 PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Right of entry...................................................................................................................................................................................................... 11.1 Time and wages record ...................................................................................................................................................................................... 11.2 Union delegates .................................................................................................................................................................................................. 11.3 Union encouragement ........................................................................................................................................................................................ 11.4 Industrial relations education leave.................................................................................................................................................................... 11.5 Applicable rates of pay for employees covered by this Award ...................................................................................................................... Schedule 1.3 1.3.1 Award coverage This Award applies to employees engaged in residential care facilities operated by Disability Services Queensland, in the State of Queensland whose salaries are fixed by this Award and who are for the purposes of this Award engaged pursuant to section 112 the Public Service Act 1996 and for those other persons who were employees of the Public Service at the date of the commencement of the Public Service Act 1996. The provisions of the Public Service Act 1996 and the Regulations made pursuant to that Act shall apply to employees where applicable and should be read in conjunction with this Award. Date of operation

1.3.2

1.4

This Award takes effect from 29 September 2003. 1.5 Parties Bound

This Award is binding on employees as prescribed in clause 1.3 and the chief executive of Disability Services Queensland, and on The Australian Workers' Union of Employees, Queensland and on the Queensland Public Sector Union of Employees and the members of those Unions. 1.6 1.6.1 1.6.2 1.6.3 1.6.4 1.6.5 1.6.6 1.6.7 1.6.8 Definitions The "Act" means the Industrial Relations Act 1999 as amended or replaced from time to time. "Classification Level" ­ comprises a number of paypoints in a particular stream through which employees will be eligible to progress. "Commission" means the Queensland Industrial Relations Commission. "Direct Services Support Officer" means an employee principally employed to provide administrative and other support to staff and clients of Disability Services Queensland necessary to ensure the effective operation of accommodation services, particularly outside regular office hours. "Generic Level Statement" means a broad, concise statement of the duties, skills and responsibilities indicative of a given Classification Level. "Increment" means for all employees an increase in salary from one paypoint to the next highest paypoint. "Majority of Employees Concerned " means 50 % plus one of the employees in the Work Unit. "Paypoint" ­means the specific rate of remuneration payable to employees within a Classification Level. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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1.6.9 1.6.10 1.6.11 1.6.12 1.6.13

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

"Residential Care Officer (Training)" means any person accepted as a student to undertake the Certificate III in Community Services (Disability Work) or other approved equivalent qualification. "Residential Care Officer" means an employee who has completed the Certificate III in Community Services (Disability Work) or an approved equivalent qualification and who has been appointed as such. "Residential Duty Officer" means an employee principally employed to provide an administrative oversight of the Residential Centre during the hours where the senior administrative personnel of the centre are not on duty. "Shift Work" means work done by separate relays of employees working recognised hours, preceding, during or following the ordinary working hours on a regular rotating basis provided on a shift roster. "Union" means The Australian Workers' Union of Employees, Queensland or the Queensland Public Sector Union of Employees.

PART 2 ­ FLEXIBILITY 2.1 2.1.1 Enterprise flexibility As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace. The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions. Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given. Procedures to implement facilitative Award provisions

2.1.2 2.1.3 2.2

Wherever facilitative provisions appear in this Award which allow for determination of the conditions of employment by agreement between the chief executive and the Union or the chief executive and the majority of employees affected, the following procedures apply: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 Facilitative Award provisions can be negotiated between management and employees who are directly affected by such proposals or between management and the Union depending upon the particular Award provisions. Employees may be represented by their local Union delegate/s and shall have the right to be represented by their local Union official/s. Facilitative award provisions can only be implemented by agreement. In determining the outcome from facilitative provisions, neither party should unreasonably withhold agreement. Agreement is defined as obtaining consent of greater than 50% of employees directly affected or of the Union depending upon the particular Award provisions. Where a provision refers to agreement by the majority of employees affected, all employees directly affected shall be consulted as a group. Should the consultation process identify employees with specific concerns which relate to either equity or occupational health and safety issues such concerns may be catered for on an individual basis subject to operational requirements. Any agreement reached must be documented, and shall incorporate a review period. Where the agreement relates to either the working of ordinary hours on other than a Monday to Friday basis, the introduction of Shift Work or change to the shift roster the relevant Unions are to be notified in writing at least one week in advance of agreement being sought.

2.2.7 2.2.8

PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION 3.1 Prevention and settlement of disputes

The objectives of this procedure are the avoidance and resolution of any disputes over matters covered by this Award, by measures based on the provision of information and explanation, consultation, co-operation and negotiation. 3.1.1 Subject to legislation, while the dispute procedure is being followed, normal work is to continue except in the case of a genuine safety issue. The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work. There is a requirement for management to provide relevant information and explanation and consult with the appropriate employee representatives. In the event of any disagreement between the parties as to the interpretation or implementation of this Award, the following procedures shall apply: (a) the matter is to be discussed by the employee's Union representative and/or the employee(s) concerned (where appropriate) and the immediate supervisor in the first instance. The discussion should take place within 24 hours and the procedure should not extend beyond 7 days; (b) if the matter is not resolved as per clause 3.1.3(a), it shall be referred by the Union representative and/or the employee(s) to the appropriate management representative who shall arrange a conference of the parties to discuss the matter. This process should not extend beyond 7 days; (c) if the matter remains unresolved it may be referred to the chief executive officer or nominee for discussion and appropriate action. This process should not exceed 14 days; (d) if the matter is not resolved then it may be referred by either party to the Commission for conciliation.

3.1.2 3.1.3

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3.1.4

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

663

Nothing contained in this procedure shall prevent Unions or the Queensland Government from intervening in respect of matters in dispute, should such action be considered conducive to achieving resolution. Employee grievance procedures

3.2

The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion; to reduce the level of disputation; and to promote efficiency, effectiveness and equity in the workplace. 3.2.1 3.2.2 This procedure applies to all industrial matters within the meaning of the Act. Stage 1: In the first instance the employee shall inform such employee's immediate supervisor of the existence of the grievance and they shall attempt to solve the grievance. It is recognised that an employee may exercise the right to consult such employee's Union representative during the course of Stage 1. Stage 2: If the grievance remains unresolved, the employee shall refer the grievance to the next in line management ("the manager"). The manager will consult with the parties. The employee may exercise the right to consult or be represented by such employee's Union representative during the course of Stage 2. Stage 3: If the grievance is still unresolved, the manager will advise the chief executive and the aggrieved employee may submit the matter in writing to the chief executive of the organisation if such employee wishes to pursue the matter further. If desired by either party, the matter shall also be notified to the Union. The chief executive shall ensure that: (a) the aggrieved employee or such employee's Union representative has the opportunity to present all aspects of the grievance; (b) the grievance is investigated in a thorough, fair and impartial manner. 3.2.6 3.2.7 The chief executive may appoint another person to investigate the grievance. The chief executive may consult with the Union in appointing an investigating employee. The appointed person shall be other than the employee's supervisor or manager. If the matter is notified to the Union, the investigating employee shall consult with the Union during the course of the investigation. The chief executive shall advise the employee initiating the grievance, such employee's Union representative and any other employee directly concerned of the determinations made as a result of the investigation of the grievance. The chief executive may delegate such chief executive's grievance resolution powers under clause 3.2 to a nominated representative. The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise: (a) Stage 1 discussions should take place between the employee and such employee's supervisor within 24 hours and the procedure shall not extend beyond 7 days. (b) Stage 2 is not to exceed 7 days. (c) Stage 3 is not to exceed 14 days. 3.2.10 3.2.11 If the grievance is not settled the matter shall be referred to the Public Service Commissioner or the Commission by the employee or the Union, as appropriate, in accordance with the respective jurisdictions of the tribunals. Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work. Where the grievance involves allegations of sexual harassment, an employee may commence the procedure at Stage 3.

3.2.3

3.2.4

3.2.5

3.2.8 3.2.9

3.2.12

PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 4.1 4.1.1 Contract of employment Subject to the provisions of the Public Service Act 1996, and except in the case of casual employees, at least 2 weeks' notice or the equivalent of 2 weeks' notice shall be given by either side on the termination of service or 2 weeks or the equivalent of 2 weeks' salary allowed or forfeited in lieu thereof, except in cases of misconduct, dishonesty, drunkenness or insubordination, when an employee shall be subject to instant dismissal: Provided that if a temporary employee is informed at the time of their engagement that same will not exceed 4 weeks, such employee may be given one day's notice of the termination of their employment. 4.1.2 Notwithstanding clause 4.1.1, except in the case of casual employees, in order to terminate the employment of an employee the employer shall give the following notice: Period of Continuous Service Period of notice

more than 3 years, but not more than 5 years........................................................ 3 weeks more than 5 years ................................................................................................... 4 weeks 4.1.3 4.1.4 In addition to the notice in clauses 4.1.1 and 4.1.2, employees over 45 years of age at the time of giving of notice and with not less than 2 years' continuous service, shall be entitled to an additional week's notice. Payment in lieu of notice prescribed in clauses 4.1.1, 4.1.2 and 4.1.3 shall be made if the appropriate notice is not given: Provided that employment may be terminated by part of the period of notice specified and part payment thereof. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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4.1.5

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

An employee whose employment is terminated according to the provisions of clause 4.1 is entitled to salary and all other monies due up to the time of such termination. It is not lawful for the chief executive to offset notice of termination against any period of annual leave or part thereof. Clause 4.1 shall be read subject to the relevant provisions of the Act. Termination of Employment, Introduction of Change and Redundancy Except as provided for in clause 4.1, the chief executive shall observe the terms and conditions of the Termination of Employment, Introduction of Changes and Redundancy Model Clause contained in the decision of the Full Bench incorporated in the transcript of proceedings of 7 November 2001, in matters following the State Wage Case B882 of 1999 and B888 of 1999, in relation to Principle 12 Award Review (Case B1733 of 1999). The provisions of the clause relating to Redundancy will not apply to the extent that the provisions of the redundancy arrangements are contained in a Directive issued by the Public Service Commissioner pursuant to section 34 of the Public Service Act 1996. Part-time employees

4.1.6 4.1.7 4.2 4.2.1

4.2.2 4.3

"Part-time employee" means an employee other than a "casual employee" as defined, who is engaged to work regular hours each work cycle and whose ordinary daily working hours are worked continuously inclusive or exclusive of meal times according to operational requirements: Provided that the total of such hours per engagement in each work cycle be less than the ordinary working hours of a full-time employee. The following conditions shall be applicable to part-time employees ­ 4.3.1 4.3.2 4.3.3 The spread of ordinary working hours shall be the same as those prescribed for a full-time employee under this Award; A part-time employee shall be paid at the same hourly rate as a full-time employee would be paid for performing duty in the same classification level. A part-time employee shall be also entitled to any applicable allowances on a proportionate basis; The public holiday provisions of this Award shall apply, provided that payment shall only be made for hours actually worked. Further a part-time employee who usually works on a day of the week on which a public holiday falls and who is not required to work on that day shall be paid for the hours which would otherwise have been worked on that day. The working of hours in excess of the fixed hours determined under the terms of a part-time appointment should be restricted to exceptional circumstances. Where it is essential for an officer to work beyond the daily approved part-time hours and the total number of hours worked is less than the ordinary full-time hours of duty for the office, an officer may, at the discretion of the chief executive, either: (a) accrue time in lieu (where applicable) for the actual time worked in excess of the stipulated part-time hours; or (b) receive payment at the ordinary hourly rate for the actual time worked in excess of the stipulated part-time hours. The additional hours so worked is taken into account in the pro rata calculation of all entitlements. 4.3.6 4.4 4.4.1 All provisions of this Award applicable to a full-time employee shall apply pro-rata to a part-time employee. Casual employees "Casual Employee" means an employee other than a part-time employee as defined, who is engaged as such and is paid on an hourly basis to work less than the ordinary working hours of a full-time employee: Provided that the engagement of casual employees shall not be utilised by the employer to permanently fill any full-time or part-time position. 4.4.2 A casual employee is paid 23% in addition to the ordinary Award rates of pay for the class of work upon which such employee is engaged. Each daily engagement shall stand alone, with a minimum payment as for 2 hours' work made in respect to each engagement. Where applicable, a casual employee shall be further entitled to the provisions of overtime, weekend penalty rates and payment for work performed on public holidays. Provided also that in addition to the provisions of clause 4.4.2, a casual employee shall be further entitled to payment of any applicable Award allowances (excluding locality allowance), based pro rata on the number of hours worked in relation to the ordinary hours of the Award classification. Except in accordance with clauses 4.4.2 and 4.4.3, a casual employee shall not be entitled to any other Award payment. Anti-discrimination It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999 as amended from time to time, which includes: (a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of the above attributes; (b) sexual harassment; and (c) racial and religious vilification. 4.5.2 Accordingly in fulfilling their obligations under the disputes avoidance and grievance settling clauses, the parties to this Award must take reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects.

4.3.4 4.3.5

4.4.3

4.4.4 4.5 4.5.1

24 October, 2003

4.5.3

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

665

Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment. Nothing in clause 4.5 is to be taken to affect: (a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; (b) an employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and Equal Opportunity Commission/Anti-Discrimination Commission Queensland.

4.5.4

PART 5 ­ WAGES AND WAGE RELATED MATTERS 5.1 5.1.1 Salaries The salaries of employees covered by this Award are prescribed in Schedule A: Residential Care Officer (Training) Residential Care Officer Residential Duty Officer Direct Services Support Officer 5.1.2 Payment of salaries shall be by electronic funds transfer on a fortnightly basis: Provided that payment other than this method shall be at the discretion of the employer. 5.2 5.2.1 Performance of higher duties Extra remuneration on the conditions prescribed in Directive 11/01 Higher Duties Allowance, issued in accordance with section 34 of the Public Service Act 1996 existing at the date of this Award and any amendments thereto, shall apply to employees or classes of employees whose salaries are determined under this Award: Provided that the extra remuneration provided by Directive 11/01 is paid to employees who fill the office temporarily for at least 3 consecutive shifts. 5.3 5.3.1 Escort duty Employees when engaged in accompanying residents to and from outings, social functions, etc., shall be allowed cost of necessary conveyance and all reasonable out of pocket expenses. Locality allowance The conditions and entitlements of locality allowances paid to employees who are appointed to work at named centres are prescribed under Directive 19/99 Locality Allowances, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996. Clothing maintenance allowance Direct Service Support Officers, Residential Duty Officers, Residential Care Officers and Residential Care Officers (Training), shall be paid a clothing allowance of $5.00 per week. Level 2 Level 3 Level 4 Level 4 Operational Stream Operational Stream Operational Stream Operational Stream

5.4 5.4.1

5.5 5.5.1

PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK 6.1 6.1.1 Hours of Duty Subject to the exceptions provided in clause 6.1, the ordinary hours of work is an average of 38 per week, to be worked on one of the following bases: (a) 38 hours within a work cycle not exceeding 7 consecutive days; or (b) 76 hours within a work cycle not exceeding 14 consecutive days; or (c) 114 hours within a work cycle not exceeding 21 consecutive days; or (d) 152 hours within a work cycle not exceeding 28 consecutive days. 6.1.2 The ordinary hours of work shall not exceed 12 hours per day Monday to Sunday inclusive: (a) Provided that where the ordinary working hours are to exceed 8 on any day, the arrangement of hours shall be subject to the agreement of the employer and the Majority of Employees Concerned , and worked within acceptable health and safety standards. (b) The daily spread of hours for employees other than shift workers is exclusive of meal times and is worked between the hours of 6.00 a.m. and 6.00 p.m. (c) The ordinary hours of shift workers is inclusive of meal times. 6.1.3 6.1.4 The ordinary starting and finishing times of various groups of employees or individual employees may be staggered provided there is agreement between the employer and the Majority of Employees Concerned . Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks to maximise available working time. Preparation for starting and finishing work, including personal clean up, is in the employee's time. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

666

6.1.5

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Implementation of the 38 hour week

24 October, 2003

(a) The 38 hour week is implemented on one of the following bases, most suitable to each location, after consultation with, and giving reasonable consideration to the wishes of the employees concerned: (i) by employees working less than 8 ordinary hours each day; or (ii) by employees working less than 8 ordinary hours one or more days each work cycle; or (iii) by fixing one or more work days on which all employees will be off during a particular work cycle subject to the conditions prescribed in clause 6.1. (iv) by rostering employees off on various days of the week during a particular work cycle, so that each employee has one work day off during that cycle, subject to the conditions prescribed in clause 6.1. 6.1.6 Subject to the provisions of clauses 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.1.5, the employer and the employees may agree that the ordinary hours of work are to exceed 8 hours on any day, thus enabling more than one work day to be taken off during a particular work cycle. Rostered days off Notwithstanding any other provisions in clause 6.1, where the arrangement of ordinary hours of work provides for a rostered day off, the employee shall only have an entitlement to a maximum of 10 rostered days off per annum subject to the following conditions: (a) That the employee shall be allowed to access that entitlement only in either two 5 day blocks or one 10 day block provided that this entitlement may be attached to a period of annual leave at the employer's discretion. (b) That each annual entitlement of 10 rostered days off is non-cumulative and must be availed of within 18 months of the date of accrual of the first rostered day off unless otherwise approved by the employer. (c) That such leave does not attract any entitlement to annual leave loading. (d) That there is no provision for the payment in lieu of this entitlement except in circumstances where a person resigns, retires or is terminated and cannot be reasonably expected to access their entitlement. The arrangements outlined above may be varied following negotiations between the employer and the relevant Unions. 6.1.8 38 hour week ­ procedures for discussions (a) Subject to clause 6.1.1 the employer and all employees concerned in each establishment shall consult over the most appropriate means of implementing and working a 38 hour week. (b) The objective of such consultation is to reach agreement on the method of implementing and working the 38 hour week in accordance with clause 6.1. (c) The outcome of such consultation shall be recorded in writing. (d) Notwithstanding the consultative procedures outlined above, and notwithstanding any lack of agreement by employees, the employer shall have the right to make the final determination as to the method by which the 38 hour week is implemented or worked from time to time. (e) Subject to clause 6.1.1 different methods of implementation of the 38 hour week may apply to individual employees, groups or sections of employees in each location concerned. 6.1.9 6.1.10 An employee shall be allowed not less than 10 hours off duty between shifts. A fortnightly roster setting out the employee's days of duty and starting and finishing times on such days shall be displayed in a place conveniently accessible to employees at least 3 days before the commencement of each fortnight. The employer shall give 24 hours' notice of any change to an employee's rostered hours or double time shall be paid for that employee's next shift. Notwithstanding anything contained above, an employee shall work such time beyond 8 hours as shall be necessary for the changing of shifts and shall not receive extra payment for such time to a maximum of 15 minutes. Any time worked beyond 15 minutes on a change of shift shall be payable at overtime rates. Meal times and rest pauses Meal times (a) In the case of shift workers, each employee is allowed a crib break of 30 minutes, which is to be taken at such time as will not interfere with continuity of work, and no deduction is made therefore from the employee's wages. (b) In the case of other employees, not less than 30 minutes or more than one hour shall be allowed between the 4th and 6th hours from commencement of daily duty for a meal break where the ordinary working hours are exclusive of meal times. By agreement the meal break may be taken prior to the 4th hour. 6.2.2 Rest pauses

6.1.7

6.1.11

6.1.12

6.2 6.2.1

Every employee is entitled to a rest pause of 10 minutes' duration in the employer's time in the first and second half of the working day. Such rest pauses are to be taken at times to suit the convenience of the employer and so as not to interfere with the continuity of work where work is necessary:

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Provided that the employer may determine that the rest pauses may be combined into one 20 minute rest pause to be taken in the first part of the ordinary working day. 6.3 Extra payments for weekend work

All time worked up to 8 hours in any one shift between midnight Friday and midnight Saturday, shall be paid at one and a-half times the ordinary rate and between midnight Saturday and midnight Sunday, shall be paid at the rate of double time. Where more than 8 hours are worked in any one shift during the above period, double ordinary rates shall be paid for all time in excess of 8 hours. 6.4 Payment for afternoon and night shifts

15% in addition to ordinary rates for each shift shall be paid to afternoon and night shift workers, for work performed between the hours of 4 p.m. and 8 a.m. the following day. This extra shift rate shall not apply to shift work performed on Saturday and Sunday where extra payments in terms of clause 6.3 are made. 6.5 6.5.1 Overtime All time worked in excess of ordinary hours of duty is paid for as follows: (a) All time worked in excess of or outside of the hours prescribed is deemed overtime and paid for at the rate of double time for shift workers; (b) Employees other than shift workers shall be paid for overtime at the rate of time and a-half for the first 3 hours' overtime in any one day and at the rate of double time after 3 hours' overtime in any one day; (c) Employees other than shift workers required to work on the first rostered day off shall be paid at one and a-half times the ordinary rate for the first 3 hours and double time thereafter, with a minimum of 3 hours; (d) Employees other than shift workers required to work on the second rostered day off shall be paid at the rate of double time: Provided that a minimum of 3 hours' work or payment is made to employees other than shift workers called upon to work overtime on their days off. 6.5.2 Where an employee is recalled to perform duty after completing their normal shift or on any rostered day off the employee is paid overtime rates for such duty with a minimum payment of 2 hours at overtime rates. If the duty performed on recall is less than 4 hours, overtime is calculated as from home and back to home. 6.5.3 Notwithstanding any other provision in clause 6.5, employees who perform work outside the prescribed hours may, by mutual agreement with the supervisor be compensated by way of accrued time on a time for time basis. When applying clause 6.5.3, genuine consultation is to occur between the relevant supervisor and employee free from duress. The provisions of clause 6.5.3 do not apply to any work performed on a Saturday, Sunday or a public holiday. 6.6 6.6.1 Meal allowance If called upon to work overtime for 2 hours without receiving notice of such overtime on the previous day, employees shall be paid an allowance of $10.00 for a meal or shall be supplied by their employer with a reasonable meal in lieu of such payment. When an employee has provided himself with customary meals because of receipt of notice of intention to work overtime, he shall be entitled to an allowance of $10.00 for each meal so provided in the event of the work not being performed or ceasing before the respective meal times. PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 7.1 7.1.1 Sick leave Sick leave (leave of absence on account of illness) on full salary will accumulate at the rate of 10 working days for each completed year of service and a proportionate amount for an incomplete year of service. Leave may be taken for part of a day. Entitlement to sick leave is conditional on the employee promptly notifying the employer of their absence and of its expected duration. An application for sick leave of more than 3 days is to be supported by a medical certificate or any other evidence that is acceptable to the employer. The entitlements for sick leave are prescribed under Directive 8/01 Sick Leave, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996. Bereavement leave Employees are granted bereavement leave on full salary on the death of a member of the employee's immediate family or household. "Immediate family" includes: The employee's spouse; C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

7.1.2 7.1.3 7.1.4

7.1.5 7.2 7.2.1 7.2.2

668

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

A child, ex-nuptial child, step-child, adopted-child, ex-foster child of the employee; Parent, grandparent, grandchild, sister or brother of the employee and of the employee's spouse; Step-father, step-mother, half-brother, half-sister, step-brother and step-sister of the employee.

"Spouse" of an employee includes: 7.2.3 A former spouse; and A defacto spouse, including a spouse of the same sex as the employee.

The entitlements for bereavement leave are prescribed under Directive 03/02 Bereavement Leave, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996. Annual leave Every employee (other than a casual or part-time employee) shall at the end of each year of such employee's employment be entitled to annual leave on full pay of 152 hours (4 weeks). Where work is performed on a continuous shift work basis over a period of 7 days per week and the employees engaged in such work perform their duties in the varying shifts allocated in rotation by the officer duly authorised in that regard, every employee so engaged in shift work who has completed a full year of employment shall be allowed additional annual leave at the rate of 38 hours (1 week) per year in respect of the period during which such shifts have been worked by the employee. Any period of annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave. If the employment of any employee is terminated before the expiration of full year of employment, such employee shall be allowed a pro rata payment, proportional to the period of service, calculated in accordance with clause 7.3.6. All employees not engaged in continuous shift operations shall have their annual leave entitlement debited by the number of ordinary hours they would have worked between Christmas Day and New Year's Day inclusive when there is a compulsory closure of Government Establishments over the Christmas/New Year period. Calculation of annual leave pay

7.3 7.3.1

7.3.2

7.3.3 7.3.4

7.3.5

7.3.6

In respect to annual leave entitlements annual leave pay (including any proportionate payments) shall be calculated as follows: (a) Shift workers ­ Subject to clauses 7.3.6 (c) and 7.3.6 (d) the rate of wage to be paid to a shift worker shall be the rate payable for work in ordinary time according to the employee's roster or projected roster, including Saturday, Sunday or public holiday shifts. (b) All employees ­ Subject to clauses 7.3.6 (c) and 7.3.6 (d), in no case shall the payment by an employer to an employee be less than the sum of the following amounts; (i) (ii) The employee's ordinary wage rate as prescribed by the Award for the period of the annual leave (excluding shift premiums and weekend penalty rates); A further amount calculated at the rate of 17.5% of the amounts referred to in clause 7.3.6 (b)(i).

(c) Clause 7.3.6 (b) shall not apply to any period or periods of annual leave exceeding: (i) (ii) 190 hours (5 weeks) in the case of employees employed in a calling where 3 shifts per day are worked over a period of 7 days per week; or 152 hours (4 weeks) in any other case.

(d) Clause 7.3.6 (b) shall not apply to employers (and their employees) who are already paying (or receiving) a annual leave bonus, loading or other annual leave payment which is not less favourable to employees. 7.3.7 Leave debits

Leave debits will be equivalent to the ordinary hours employees would have worked had they not been on paid leave. Such leave will therefore be paid and debited on the basis of hours actually taken. 7.3.8 7.4 7.4.1 7.4.2 7.4.3 7.5 7.5.1 7.5.2 Nothing contained in clause 7.3 shall entitle any employee to annual leave in excess of 190 hours (5 weeks) leave in each year. Long Service Leave Employees who complete 10 years' continuous service are entitled to long service leave at the rate of 1.3 weeks on full pay for each year of continuous service and a proportionate amount for an incomplete year of service. After 7 years' continuous service employees are entitled to a proportionate payment (calculated on a pro rata basis for 7 years' continuous service) in specified circumstances relating to the termination of employment and parental leave. The entitlements to long service leave are prescribed under Directive 1/01 Long Service Leave, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996. Family Leave The provisions of the Family Leave Award ­ Queensland Public Sector (including special responsibility leave) apply. The entitlements to family leave include: (a) Maternity leave (b) Spousal leave;

24 October, 2003

(c) Pre-natal leave;

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

669

(d) Pre-adoption leave; and (e) Adoption leave. Conditions are found in Directive 3/01 Parental Leave, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996. 7.6 7.6.1 Special leave The provisions of Directive 10/01 apply, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996. Employees may be granted special leave of absence either on full salary or without salary. The grounds under which special leave of absence may be granted include: Emergency/compassionate grounds, Flood, cyclone etc, Reserve forces training, Emergency management courses, Attendance at emergencies, Blood donors, Pre-retirement seminars, If elected to local Government or ATSIC, and Declared emergency situation or state of disaster. 7.7 7.7.1 Public holidays All work done by any employee on the following public holidays is paid for at the rate of double time and a-half with a minimum of 4 hours: ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ 7.7.2 1 January; 26 January; Good Friday; Easter Saturday (the day after Good Friday); Easter Monday; 25 April (Anzac Day); The Birthday of the Sovereign; Christmas Day; Boxing Day; or any day appointed under the Holidays Act 1983, to be kept in place of any such holiday

Labour Day

All employees covered by this Award are entitled to be paid a full day's wage for Labour Day (the first Monday in May or other day appointed under the Holidays Act 1983 to be kept in place of that holiday) irrespective of the fact that no work may be performed on that day, and if any employee actually works on such day, the employee will be paid a full day's wage for that day and in addition a payment for the time actually worked by them at one and a-half times the ordinary rates prescribed for such work with a minimum of 4 hours. 7.7.3 Annual show

All work done by employees in a district specified from time to time by the Minister for Industrial Relations, by notification published in the Gazette on the day appointed under the Holidays Act 1983 to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held in the principal city or town as specified in such notification of such district is paid for at the rate of double time and a-half with a minimum of 4 hours. 7.7.4 Where an employee is rostered off on any public holiday such employee will be paid an additional day's wage, for each such day on which they are rostered off. Double time and a-half

7.7.5

For the purpose of clause 7.7, where the rate of wages is a weekly rate, "double time and a-half" meansone and a-half day's wages in addition to the prescribed weekly rate pro rata if there is more or less than a day. 7.7.6 Substitution

Where there is agreement between the Majority of Employees Concerned and the employer, and subject to statutory limitations, other ordinary working days may be substituted for public holidays specified in clause 7.7. Provided that where an employee is subsequently required to work on such substituted days, the employee is paid the rate applicable for the holiday that has been substituted. PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK No provisions inserted in this Award relevant to this Part. PART 9 ­ TRAINING AND RELATED MATTERS 9.1 9.1.1 Training, learning and development The parties to this Award recognise that in order to increase efficiency and productivity a greater commitment to learning and development is required.

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9.1.2

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Accordingly, the parties commit themselves to developing a more highly skilled and flexible workforce and providing employees with career opportunities through appropriate training to acquire additional skills and knowledge for performance of their duties. Within each agency a consultative mechanism and procedures involving representatives of management, employees and public sector unions shall be established as determined by the chief executive having regard to the size, structure and needs of that agency. Following consultation the chief executive shall develop a learning and development strategy consistent with: (a) the current and future needs of the agency; (b) the size, structure and nature of the operations of the agency; (c) the need to develop vocational skills relevant to the Agency through courses conducted wherever possible by accredited educational institutions and providers.

9.1.3

9.1.4

9.1.5 9.1.6 9.1.7

Learning and development may be both on-the-job or off-the-job and either internal or external to the organisation. Learning and development provided should assist employees in obtaining knowledge and skills recognised by the Australian National Training Authority (ANTA). All such learning and development should be directed at enabling employees to enhance skills relevant to duties to be performed. Employees will be expected to attend scheduled learning and development activities.

PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES 10.1 Workplace Health and Safety

The provisions of relevant workplace health and safety legislation apply. PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Preamble Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are advised to refer to sections 366, 372 and 373 of the Act as amended from time to time. 11.1 11.1.1 Right of entry Authorised industrial officer (a) An "Authorised industrial officer" is any Union official holding a current authority issued by the Industrial Registrar. (b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union. 11.1.2 Entry procedure (a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as: (i) (ii) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and shows their authorisation upon request.

(b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent. (c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry. (d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a trespasser. 11.1.3 Inspection of records (a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act. (b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee: (i) (ii) (iii) is ineligible to become a member of the Union; or is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or has made a written request to the employer that they do not want their record inspected.

(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer. (d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by an authorised industrial officer. 11.1.4 Discussions with employees

An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the Union: (a) matters under the Act during working or non-working time; and (b) any other matter with a member or employee eligible to become a member of the Union, during non-working time.

24 October, 2003

11.1.5 Conduct

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

671

An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry. 11.2 11.2.1 Time and wages record An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period for each employee, including apprentices and trainees: (a) the employee's award classification; (b) the employer's full name; (c) the name of the award under which the employee is working; (d) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and details of work breaks including meal breaks; (e) a weekly, daily or hourly wage rate ­ details of the wage rate for each week, day, or hour at which the employee is paid; (f) the gross and net wages paid to the employee; (g) details of any deductions made from the wages; and (h) contributions made by the employer to a superannuation fund. 11.2.2 The time and wages record must also contain: (a) the employee's full name and address; (b) the employee's date of birth; (c) details of sick leave credited or approved, and sick leave payments to the employee; (d) the date when the employee became an employee of the employer; (e) if appropriate, the date when the employee ceased employment with the employer; and (f) if a casual employee's entitlement to long service leave is worked out under section 47 of the Act ­ the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year. 11.2.3 11.2.4 The employer must keep the record for 6 years. Such records shall be open to inspection during the employer's business hours by an inspector of the Department of Industrial Relations, in accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act. Consistent with Ministerial Directive 12/01 Attendance ­ Recording, Reporting and Public Holidays, a chief executive may specifically exempt those employees who have been, or who are a class of office from a system for recording starting and finishing times, meal breaks and absences from duty. Union delegates The parties acknowledge the constructive role democratically elected Union delegates undertake in the workplace in relation to Union activities that support and assist members. That role will be formally recognised, accepted and supported. Public sector employees will be given full access to Union delegates/officials during working hours to discuss any employment matter or seek Union advice, provided that service delivery is not disrupted and work requirements are not unduly affected. Provided that service delivery and work requirements are not unduly affected, delegates will be provided convenient access to facilities for the purpose of undertaking Union activities. Such facilities include: telephones, computers, e-mail, photocopiers, facsimile machines, storage facilities, meeting rooms and notice boards. It is expected that management and delegates will take a reasonable approach to the responsible use of such facilities for information and communication purposes. Subject to the relevant employee's written approval and any confidentiality provisions, delegates may request access to documents and policies related to a member's employment. Union encouragement The parties recognise the right of individuals to join a union and will encourage that membership. However, it is also recognised that union membership remains at the discretion of individuals. An application for Union membership and information on the relevant Union/s will be provided to all employees at the point of engagement. Information on the relevant Union/s will be included in induction materials. Union representative(s) will be provided with the opportunity to discuss union membership with new employees. Where requested by public sector Unions, agencies and public sector units will provide payroll deduction facilities for Union subscriptions. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

11.2.5

11.3 11.3.1

11.3.2

11.3.3

11.3.4

11.4 11.4.1

11.4.2 11.4.3 11.4.4 11.4.5

672

11.5 11.5.1

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Industrial relations education leave

24 October, 2003

Industrial relations education leave is paid time off to acquire knowledge and competencies in industrial relations. Such knowledge and competencies can allow employees to effectively participate in consultative structures, perform a representative role and further the effective operation of grievance and dispute settlement procedures. Employees may be granted up to 5 working days (or the equivalent hours) paid time off (non-cumulative) per calendar year, approved by the chief executive (or delegated authority) of the agency, to attend industrial relations education sessions. Additional leave, over and above 5 working days non-cumulative (or the equivalent hours) in any one calendar year may be granted where approved structured employees' training courses involve more than 5 working days (or the equivalent). Such leave will be subject to consultation between the chief executive (or delegated authority) of the agency, the relevant Union and the employee. Upon request and subject to approval by the chief executive (or delegated authority) of the agency, employees may be granted paid time off in special circumstances to attend Management Committee Meetings, Union Conferences, and ACTU Congress. The granting of industrial relations education leave or any additional special leave should not impact adversely on service delivery, work requirements or the effectiveness and efficiency of the agency/work unit concerned. At the same time such leave shall not be unreasonably refused. At the discretion of the chief executive of the agency/public sector unit concerned, public sector employees may be granted special leave without pay to undertake work with their Union.

11.5.2

11.5.3

11.5.4

11.5.5

SCHEDULE A Applicable Rates of Pay for Employees covered by this Award Allocation to the Operational Services Stream includes the occupational groups as prescribed in the Translation Manual for the New Classification and Remuneration System or as prescribed in clause 5.1.1 of this Award. Operational Stream Level Pay Point Total Wage Rate Per Fortnight

$ OO4 ............................................................... 4........................................................................................ 1305.50 OO4 ............................................................... 3........................................................................................ 1272.20 OO4 ................................................................2 ....................................................................................... 1238.70 OO4 ................................................................1 ....................................................................................... 1205.30 OO3 ................................................................4 ....................................................................................... 1160.70 OO3 ................................................................3 ....................................................................................... 1136.80 OO3 ............................................................... 2........................................................................................ 1116.80 OO3 ................................................................1 ....................................................................................... 1092.80 OO2 ................................................................4 ....................................................................................... 1074.50 OO2 ................................................................3 ....................................................................................... 1039.40 OO2 ............................................................... 2........................................................................................ 1008.10 OO2 ................................................................1 ......................................................................................... 976.90 NOTE The rates of pay in this Award are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments. Dated 29 July 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar

Operative Date: 29 September 2003

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 130 ­ award review BRISBANE CITY COUNCIL ­ BUS TRANSPORT EMPLOYEES' AWARD (No. AR159 of 2002) DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY AWARD REVIEW After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the following Award be made, as from 29 September 2003.

29 July 2003

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

BRISBANE CITY COUNCIL ­ BUS TRANSPORT EMPLOYEES' AWARD 2003

673

PART 1 ­ APPLICATION AND OPERATION 1.1 Title

This Award is known as the Brisbane City Council Bus Transport Employees' Award 2003. 1.2 Arrangement Clause No.

Subject Matter PART 1 ­ APPLICATION AND OPERATION

Title............................................................................................................................................................................................................................ 1.1 Arrangement .............................................................................................................................................................................................................. 1.2 Award coverage......................................................................................................................................................................................................... 1.3 Date of operation ....................................................................................................................................................................................................... 1.4 Definitions ................................................................................................................................................................................................................. 1.5 Parties bound ............................................................................................................................................................................................................. 1.6 Leave reserved........................................................................................................................................................................................................... 1.7 PART 2 ­ FLEXIBILITY Enterprise flexibility.................................................................................................................................................................................................. 2.1 PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION Grievance and dispute settlement procedure ............................................................................................................................................................ 3.1 PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Employment categories ............................................................................................................................................................................................. 4.1 Casual employment ................................................................................................................................................................................................... 4.2 Permanent part-time bus operator or conductor........................................................................................................................................................ 4.3 Anti-discrimination ................................................................................................................................................................................................... 4.4 Termination of employment...................................................................................................................................................................................... 4.5 Continuity of service ­ transfer of calling ................................................................................................................................................................ 4.6 PART 5 ­ WAGES AND WAGE RELATED MATTERS Wages ........................................................................................................................................................................................................................ 5.1 Classification definitions........................................................................................................................................................................................... 5.2 Progression ................................................................................................................................................................................................................ 5.3 Articulated bus allowance ......................................................................................................................................................................................... 5.4 Waiting time .............................................................................................................................................................................................................. 5.5 Waiting time functions .............................................................................................................................................................................................. 5.6 Times for signing on or off ....................................................................................................................................................................................... 5.7 Dirty work ................................................................................................................................................................................................................. 5.8 Work in rain............................................................................................................................................................................................................... 5.9 Dirty toilets................................................................................................................................................................................................................ 5.10 Signing on and off at home yard or garage............................................................................................................................................................... 5.11 Employees called to head office ............................................................................................................................................................................... 5.12 PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK Hours ......................................................................................................................................................................................................................... 6.1 Extra payments for afternoon and night shift ........................................................................................................................................................... 6.2 Special night allowance............................................................................................................................................................................................. 6.3 Overtime .................................................................................................................................................................................................................... 6.4 Distribution................................................................................................................................................................................................................ 6.5 Meal time................................................................................................................................................................................................................... 6.6 Minimum hours ......................................................................................................................................................................................................... 6.7 Reporting for duty ..................................................................................................................................................................................................... 6.8 Day off....................................................................................................................................................................................................................... 6.9 Saturday and Sunday time......................................................................................................................................................................................... 6.10 Spread of hours.......................................................................................................................................................................................................... 6.11 Interval between shifts .............................................................................................................................................................................................. 6.12 Cancelled work.......................................................................................................................................................................................................... 6.13 Late services .............................................................................................................................................................................................................. 6.14 PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS Annual leave.............................................................................................................................................................................................................. 7.1 Public holidays .......................................................................................................................................................................................................... 7.2 Family leave .............................................................................................................................................................................................................. 7.3 Bereavement leave .................................................................................................................................................................................................... 7.4

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Subject Matter

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Clause No.

PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK Travelling time .......................................................................................................................................................................................................... 8.1 PART 9 ­ TRAINING AND RELATED MATTERS Training ..................................................................................................................................................................................................................... 9.1 PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES Change money........................................................................................................................................................................................................... 10.1 Sanitary accommodation ........................................................................................................................................................................................... 10.2 Uniforms.................................................................................................................................................................................................................... 10.3 Notice to be measured ............................................................................................................................................................................................... 10.4 Overalls...................................................................................................................................................................................................................... 10.5 Accident reports ........................................................................................................................................................................................................ 10.6 PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Right of entry............................................................................................................................................................................................................. 11.1 Time and wages record ............................................................................................................................................................................................. 11.2 Union encouragement ............................................................................................................................................................................................... 11.3 Award posting ........................................................................................................................................................................................................... 11.4 Service standards Schedule 1 Times for signing on and signing off ................................................................................................................................................................ Schedule 2 1.3 Award coverage

This Award applies within the area of the Brisbane City Council Regional Bus Operations, to those employees of the Brisbane City Council (Brisbane Transport) who are employed in cleaning, maintenance, shunting, driving or conducting activities. 1.4 Date of operation

This Award takes effect from 29 September 2003. 1.5 1.5.1 1.5.2 1.5.3 1.5.3 1.6 Definitions The "Act" means the Industrial Relations Act 1999 as amended or replaced from time to time. The "Commission" means the Queensland Industrial Relations Commission. The "Council" means the Brisbane City Council (Brisbane Transport) "Union" means the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch. Parties bound

This Award is legally binding upon the employees as prescribed by clause 1.3 and their employers, and the Union and its members. 1.7 Leave reserved

Leave is reserved to the parties regarding the following matters: 1.7.1 1.7.2 1.7.3 1.7.4 1.7.5 1.7.6 Waiting time functions Work in rain Hours Mealtime Saturday and Sunday time Annual leave

PART 2 ­ FLEXIBILITY 2.1 2.1.1 Enterprise flexibility As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace. The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions. Any proposed genuine agreement reached between an employer and employee/s in an enterprise is contingent upon the agreement being submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given.

2.1.2 2.1.3

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

675

PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION 3.1 Grievance and dispute settling procedure

Through this procedure the parties aim to avoid industrial disputes, or where a dispute occurs, to provide a means of settlement based on consultation, cooperation and discussion and the avoidance of interruption to work performance. 3.1.1 3.1.2 During any dispute, other than a Workplace Health and Safety matter, the status quo existing immediately prior to the matter giving rise to the dispute will remain and work shall continue as it was prior to the dispute without stoppage or the imposition of any ban, limitation or restriction. No party shall be prejudiced as to final settlement by the continuance of work in accordance with clause 3.1. Notwithstanding any other provisions having application to the Council, any grievance or dispute shall be handled as follows: Stage 1 ­ Discussions between the employee/s and team leader and at the request of the relevant Union, shop steward/delegate. Stage 2 ­ Discussions involving the employee/s, the shop steward/s and relevant Union secretary/organiser or nominated delegates with the relevant line manager and an HR consultant or other person nominated by the manager, employment arrangements. Stage 3 ­ Discussions involving relevant Union secretary/organiser or nominated delegates with divisional manager and manager, employment arrangements or nominated delegate. 3.1.3 3.1.4 A dispute shall not be referred to the next stage until a genuine attempt to resolve the matter has been made at the appropriate level. There shall be a commitment by the parties to achieve adherence to this procedure, including the earliest possible advice by one party to the other of any issue or problem which may give rise to a grievance or dispute. Throughout all stages of the procedure, all relevant facts shall be clearly identified and recorded. Sensible time limits shall be allowed for the completion of the various stages of the discussions. Discussions outlined in stages 1 and 2 of clause 3.1.2 should, if possible, take place within 24 hours after the request of the employee or the employee's representative. At least 7 days should be allowed for all stages of the discussions to be finalised. Emphasis shall be placed on a negotiated settlement. However, if the negotiation process is exhausted without the dispute being resolved, the parties shall jointly or individually refer the matter to the Commission for resolution. In order to allow for peaceful resolution of grievances, the parties shall be committed to avoid stoppages of work, lockouts or any other bans or limitations on the performance of work, while the procedures of negotiation and conciliation are being followed. The parties shall ensure that all practices applied during the operation of the procedure are in accordance with safe working practices and consistent with established custom and practice at the workplace.

3.1.5

3.1.6 3.1.7 3.1.8

PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 4.1 4.1.1 Employment categories Employees covered by this Award shall be advised in writing of their employment category upon appointment. An acknowledgment of receipt should be in writing. Employment categories are: (a) full-time; (b) casual (as prescribed in clause 4.2); (c) permanent part-time bus operator or conductor (as prescribed in clause 4.3). 4.2 4.2.1 4.2.2 4.2.3 4.2.4 4.2.5 4.2.6 Casual employment A casual employee is an employee who is engaged on an hourly basis. A casual employee will be engaged for a minimum period of work of 2 hours duration and will only be paid for work performed. There will be a maximum of 2 work periods each day. A work period shall be deemed not to be ended by the taking of a meal break, if the employee resumes work immediately following such break. Casual employees can perform work to a maximum of 32 hours per week averaged over a 12 month period. Casual employees will be paid a loading of 23% in lieu of annual leave and sick leave. Casual employees will be paid overtime at the rate of time and a-half for all hours worked in excess of 62 hours in a pay fortnight, except that hours worked where the employee is engaged in training will be paid as Stand Alone time and not considered for the purpose of calculation of this overtime payment. Permanent part-time bus operator or conductor A permanent part-time bus operator or conductor is a full-time employee whose ordinary rostered working hours shall not be less than 12 hours or more than 32 hours per week. A part-time bus operator or conductor shall be rostered to work a minimum of 3 hours per work period. For the purposes of clause 4.3, a work period shall be deemed not to be ended by taking of a meal break, if the employee resumes work immediately following such break.

4.3 4.3.1 4.3.2 4.3.3

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4.3.4 4.3.5 4.3.6

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

A meal break shall not be taken until at least 2 hours have been worked within a rostered period of work and must be taken within 5 hours of commencing work provided it is practical to do so. A part-time employee shall be entitled to a meal break of not less than 30 minutes nor more than 55 minutes. Upon engagement, the employer and the part-time employee shall agree in writing to the usual number of ordinary hours to be worked each week, provided that the agreed number of hours may be varied by further agreement or by the employer upon giving 21 days' notice to the employee where changes to available work have occurred. Any variation to the number of hours to be worked in clause 4.3.6 shall be recorded in writing. A part-time employee shall be paid for each hour of ordinary time worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. All time worked in excess of the agreed rostered hours will be paid as overtime. The maximum agreed rostered hours per day will be 8 hours. Overtime will be paid on a daily basis and shall be paid at the rate of time and a-half for the first 3 hours and double time thereafter. Subject to clause 4.3, all allowances which apply to full-time bus operators or conductors shall apply to part-time employees subject to the same conditions, on the following basis: (a) Weekly and daily allowances shall be paid on a pro-rata basis. (b) Hourly rate allowances shall be paid on the same basis as full-time bus operators or conductors.

4.3.7 4.3.8 4.3.9 4.3.10

4.3.11 (a) Where a public holiday falls on a day upon which a part-time employee is rostered to work, that employee shall be paid the number of hours that the employee was rostered on that day. (b) A part-time employee's regular roster shall not be altered to avoid the obligation of clause 4.3.11(a) above. 4.3.12 4.3.13 4.4 4.4.1 A part-time employee shall be entitled to annual leave which shall accrue in the proportion of the actual ordinary hours worked per week to the full-time ordinary weekly wage prescribed for the appropriate classification in this Award based upon a standard 4 weeks' annual leave period. Part-time bus operators will be eligible for progression between classifications as provided for in clauses 5.2 and 5.3 of this Award. Part-time bus operators must accrue 1976 hours of ordinary time worked or approved paid leave for attainment of each pay point increment. Anti-discrimination It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999 as amended from time to time, which includes: (a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of any of the above attributes; (b) sexual harassment; and (c) racial and religious vilification. 4.4.2 4.4.3 4.4.4 Accordingly, in fulfilling their obligations under the grievance and dispute settling procedure in clause 3.1, the parties to this Award must take reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects. Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment. Nothing in clause 4.4 is to be taken to affect: (a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; (b) an employee, employer or registered organization, pursuing matters of discrimination, including by application to the Human Rights and Equal Opportunity Commission/Anti-Discrimination Commission Queensland. 4.5 4.5.1 Termination of employment Statement of employment

The employer shall, in the event of termination of employment, provide upon request to the employee who has been terminated a written statement specifying the period of employment and the classification or type of work performed by the employee. 4.5.2 Termination by employer (a) In order to terminate the employment of an employee the employer shall give the following notice: Period of Continuous Service Period of Notice

not more than 1 year .............................................................................................. 1 week more than 1 year, but not more than 3 years ......................................................... 2 weeks more than 3 years, but not more than 5 years........................................................ 3 weeks more than 5 years................................................................................................... 4 weeks (b) In addition to the notice in clause 4.5.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years' continuous service, shall be entitled to an additional week's notice. (c) Payment in lieu of notice shall be made if the appropriate notice is not given: Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

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(d) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used. (e) The period of notice in clause 4.5.2(a) shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal, or in the case of casual employees or employees engaged for a specific period of time or for a specific task or tasks. 4.5.3 Termination by employee

When an employee has been 3 months in the service of the employer, one week's notice in writing of the termination of employment shall be by the employee or in lieu thereof a maximum of one week's wages shall be paid or forfeited. 4.6 Continuity of service ­ transfer of calling

In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act as amended from time to time. PART 5 ­ WAGES AND WAGE RELATED MATTERS 5.1 Wages Per week $ Bus assistant level 1 ................................................................................................ 439.00 Bus assistant level 2 ................................................................................................449.00 Bus assistant level 3 ................................................................................................459.00 Bus conductor 4 ......................................................................................................444.00 Bus operator level 1 ................................................................................................481.20 Bus operator level 2 ................................................................................................491.40 Bus operator level 3 ­ pay point 1 ..........................................................................496.60 Pay point 2 ..............................................................................................................501.70 Bus operator level 4 ­ pay point 1 ..........................................................................511.90 Pay Point 2...............................................................................................................517.00 Pay Point 3...............................................................................................................522.10 Pay Point 4...............................................................................................................527.30 Pay Point 5...............................................................................................................533.40 The rates of pay in this Award are intended to include the arbitrated wage adjustment payable under the 1 September 2001 Declaration of General Ruling and earlier Safety Net Adjustments and arbitrated wage adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreement, Queensland workplace agreements, award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments. 5.2 5.2.1 Classification definitions Bus Assistant Level 1 ­ The Bus Assistant Level 1 would be expected to provide an effective service in the depot to enable the safe and efficient operation of Council buses. Assistants work under close direction and perform clearly defined, routine functions. Assistants will be responsible for the timeliness and quality of their own work, with instruction and assistance being readily available. At this entry level it is expected that the assistant would participate in all necessary training associated with the role. The role would typically include the use of skills in such areas as: ­ ­ ­ ­ 5.2.2 general area cleaning and maintenance; operating departmental radio networks; signalling drivers who are manoeuvring vehicles in Depot yard; and performing various administrative procedures.

Bus Assistant Level 2 ­ The Bus Assistant Level 2 would be expected to provide an effective service in the depot to enable the safe and efficient operation of Council buses. Assistants work under direction and perform functions defined by well established routines and procedures. Assistants will be responsible for managing the timeliness and quality of their own work, with instruction and assistance being readily available. Progression to this level requires satisfactory attainment of skills required for a Bus Assistant Level 1, with competency confirmed. At this level it is expected that the assistant would participate in all necessary training associated with the role. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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In addition to the skills acquired in Bus Assistant Level 1, this role would typically include the use of skills in such areas as: ­ ­ ­ ­ ­ ­ 5.2.3 operating all types of buses and depot vehicles within the depot; inspecting and checking tyres on buses and depot vehicles; performing service and support duties such as fuelling; carrying out minor body and electrical repairs; recording fuel and oil quantities on computer; and general cleaning on all types of buses and depot vehicles.

Bus Assistant Level 3 ­ The Bus Assistant Level 3 would be expected to provide an effective service both within the depot environment and other areas as required, to enable the safe and efficient operation of Council buses. Assistants work under routine direction and perform functions of increasing complexity defined by established routines, procedures and guidelines. Assistants will be responsible for managing the timeliness and quality of their own work, with limited scope to exercise initiative in the application of established work procedures, with instruction and assistance being available. Progression to this level requires satisfactory attainment of skills required for a Bus Assistant Level 2, with competency confirmed. At this level it is expected that the assistant would participate in all necessary training associated with the role. In addition to the skills acquired in Bus Assistant Level 2, this role would typically include the use of skills in such areas as: ­ ­ ­ ­ ­ ­ ­ operating all types of vehicles on the road; performing grease and oil changes; determining correct oils for buses; removing, replacing, repairing, re-grooving, sending tyres for re-treading; courier; placing advertisements on buses; and steam cleaning.

A bus licence is a pre-requisite for this position. 5.2.4 Bus Conductor ­ The Conductor would be expected to provide an effective ticketing service and effective customer relations' service in all contacts with the Council's bus passengers and general public. Conductors work under routine direction and perform functions defined by established routines and procedures. Conductors will be responsible for managing the timeliness and quality of their own work, with scope to exercise initiative in the application of established work procedures and guidelines, with instruction and assistance being available. At this level it is expected that the conductor would participate in all necessary training associated with the role. The role would typically include the use of skills in such areas as: ­ ­ ­ ­ ­ 5.2.5 operating and issuing tickets; ensuring correct revenue collected; balancing and accounting for all tickets to ensure correct money has been received; liaising and communicating with passengers, general public and Council staff to provide information and directions to maintain a good "public face" for the Council; and carrying out and performing various administrative procedures.

Bus Operator Level 1 ­ The Bus Operator Level 1 would be expected to provide to customers and the public a quality transportation service through the safe and efficient operation of Council buses. Work roles initially involve officers in extensive on-the-job training and may be amended to provide operators with an appropriate breadth of experience within the operations area. Operators perform clearly defined, routine functions which require the practical application of basic skills and knowledge. Operators work under close guidance with instruction and assistance being readily available. Operators will be responsible for the timeliness and quality of their own work. At this entry level it is expected that the operator would participate in all necessary training associated with the role. The role would typically include the use of skills in such areas as: ­ ­ ­ ­ ­ ­ ­ operating all types of buses; operating and issuing tickets; balancing and accounting for tickets and revenue; practising basic customer relations when providing information to passengers and general public; inspecting and monitoring general conditions of buses; performing basic mechanical support duties; cleaning;

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reporting and recording information; and liasing with Bus Control and Council staff using various methods.

A bus licence is a pre-requisite for this position. 5.2.6 Bus Operator Level 2 ­ The Bus Operator Level 2 would be expected to provide to passengers and the public a quality transportation service through the safe and efficient operation of Council buses. Operators will be expected to have an understanding of operational work practices and procedures, roles may be amended to provide operators with additional experience within the operations area. Operators perform defined, routine functions which require the application and continuing development of acquired skills and knowledge. Operators work under regular guidance with instruction and assistance being readily available. Operators will be responsible for the timeliness and quality of their own work. Progression to this level requires satisfactory completion of one year as a Bus Operator Level 1, with competency confirmed. At this level it is expected that the operator would participate in all necessary training associated with the role. In addition to the skills acquired in Bus Operator Level 1, this role would typically involve the use of skills in such areas as: ­ ­ ­ ­ operating all types of buses to comply with Defensive Driving Skill/Techniques under all road conditions; practising effective customer relations when communicating with passengers and general public including managing difficult customers; identifying minor mechanical/operating faults; and administering First Aid Techniques.

A bus licence is a pre-requisite for this position. 5.2.7 Bus Operator Level 3 ­ The Bus Operator Level 3 would be expected to provide to passengers and the public a quality transportation service through the safe and efficient operation of Council buses. Operators will be expected to have a sound understanding of operational work practices and procedures; roles may be amended to enable the application and further development of skills and knowledge appropriate to the operations area. Operators perform activities of increasing complexity and have some scope to exercise initiative in the application of established work procedures. In addition, operators may instruct other employees including on-the-job training. Operators work under more routine direction and may receive guidance on the broader aspects of their work. Operators will be responsible for managing the timeliness and quality of their own work to achieve work role objectives. Progression to this level requires satisfactory completion of one year as a Bus Operator Level 2, with competency confirmed. The same process is followed in determining progression to the higher pay point in Level 3 a year later. At this level it is expected that the operator would participate in all necessary training associated with the role. In addition to the skills acquired in Bus Operator Level 2, this role would typically include the use of skills in such areas as: ­ ­ ­ ­ ­ ­ operating the tram bus on "City Sights" service; sound knowledge of the routes of other depots; instructing new drivers in route and bus operations; inducting new drivers to aspects of depot operations and information; communicating with all types of customers with an advanced degree of courtesy and accuracy of information; and carrying out duties associated with passenger surveys and service monitoring.

A bus licence is a pre-requisite for this position. 5.2.8 Bus Operator Level 4 ­ The Bus Operator Level 4 would be expected to provide to passengers and the public a quality service through the safe and efficient operation of Council buses. Operators will be expected to have a good understanding of operational work practices and procedures; roles may be amended to enable the application and further development of skills and knowledge appropriate to the operations area. Operators perform more complex activities and may be required to contribute knowledge and exercise initiative in the application and establishment of work procedures. In addition, operators may instruct other employees including on-the-job and more structured training. Operators work under more routine direction and may receive guidance on the broader aspects of their work. Operators will be responsible for managing and planning the timeliness and quality of their own work to achieve work role and area objectives. Progression to this level requires satisfactory completion of 2 years as a Bus Operator Level 3, with competency confirmed. The same process is followed in determining annual progression to higher pay points in the Level 4 scale. At this level it is expected that the operator would participate in all necessary training associated with this role. In addition to the skills acquired in Bus Operator Level 3, this role would typically include the use of skills in such areas as: ­ ­ ­ ­ ­ inducting new drivers including on-the-job experience to correctly assimilate tickets, money, route and administrative procedures; instructing new drivers at the driver training school; conducting "Lookabout" Tours; driving routes in other depots to cover bus schedules; and assisting in preparing rosters and amendments.

A bus licence is a pre-requisite for this position. 5.3 5.3.1 Progression Progression between classification levels will be in accordance with the performance appraisal mechanism, service standards and work skills as outlined in the Schedule 1 to this Award. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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5.3.2

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The complete work skill profiles, training, anomaly handling and any other such arrangements which emerge as a result of this structure shall be contained in a jointly developed classification and training manual. Disputes that may arise as a result of clause 5.3 shall be handled in the first instance by the grievance and disputes procedure in clause 3.1. Articulated bus allowance In addition to the above rates of wages, bus operators, and bus assistants doing bus changing, shall be paid an allowance of 2.3% of the particular employee's base rate calculated as a weekly amount for each shift during any part of which the bus assistant drives an articulated bus in revenue service. This allowance shall be paid at the rate applicable to the day for Saturdays, Sundays, public holidays and work performed on rostered days off. For the purposes of clause 5.4.1 the words "in revenue service" means "in traffic", i.e. whenever the vehicle is being operated on public roads.

5.3.3 5.4 5.4.1

5.4.2

5.5

Waiting time

All waiting time except that prescribed in clause 5.6.2 shall be regarded as time worked. 5.6 5.6.1 5.6.2 Waiting time functions Bus operators and conductors on duty shall be paid whilst waiting at sports, races or other public functions, but must remain with their buses. Bus operators and conductors who operate special bus services to such functions or to holiday or seaside resorts or in connection with similar services where the said services terminate outside the boundaries of the City of Greater Brisbane and the employee concerned is not required to remain in attendance at the bus from the time of booking off after arrival at and booking on before departure from such functions, seaside or holiday resort or similar service, the period between the times referred to shall be paid for at not less than half of the employee's ordinary rate as prescribed by clause 5.1 of this Award. Time so paid for shall be treated as passive time and shall not be considered in calculating overtime: Provided that such bus operators and conductors shall not be required to operate such special bus services on their days off. 5.7 Times for signing on or off

The times to be allowed in the employer's time to bus operators and/or conductors who are required to sign on and sign off, shall be according to those set out in the table attached as in Schedule 2 to this Award. 5.8 Dirty work

A bus assistant, who is required to clean the interior or exterior of a bus which has become insanitary due to misuse by some person or persons to an extent which, in the opinion of the foreperson merits the payment of dirt money, shall be paid $1.22 extra for each such vehicle cleaned. In all cases the cleaner shall draw the attention of the foreperson to the condition of the bus before it is cleaned. 5.9 5.9.1 5.9.2 Work in rain When an employee is required to perform work in the rain and by doing so the employee's clothes get wet, shall be paid double rates for all work so performed. Such payment shall continue until such time as the employee finishes work or is able to change into dry clothing: Provided that payment as prescribed shall not be made when protective clothing is provided by the employer. 5.10 Dirty toilets

Employees required to clean toilets in the depot shall be paid an allowance of 68 cents per day extra. 5.11 Signing on and off at home yard or garage

Except as provided for in clause 5.6.2 a bus operator and conductor shall sign on and off at the garage to which the bus operator and conductor is attached for the time being. 5.12 Employees called to head office

When any employee is called to the head office of the employer or elsewhere to answer a charge of carelessness or otherwise, or a complaint in connection with the employer's business the employee shall be paid at ordinary time rate of pay for the time occupied in travelling between the yard, garage, or depot to which the employee is attached or at which the employee is paid and to head office, in addition to the time detained at the head office, except in cases where in the opinion of the General Manager the charge or complaint against the employee is substantiated. All time allowed under clause 5.12 shall be claimed on the usual time sheet. PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK 6.1 6.1.1 6.1.2 Hours The ordinary weekly working hours of bus operators and conductors shall not exceed 38 hours. The ordinary daily working hours of bus operators and conductors shall not exceed 7 hours and 36 minutes and the ordinary hours of duty shall not be less than 7 hours on any shift. The ordinary working hours of other employees shall not exceed 38 hours in any one week or 7 hours 36 minutes in any one day: Provided that by agreement between the Union and the Council the ordinary hours may be worked over a fortnightly period on 9 consecutive working days, and not more than 8 hours 27 minutes shall be worked on any such day at ordinary rates.

6.1.3

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Shift workers ­ Bus garage employees (a) Subject to the following provisions, the ordinary hours of work for shift workers in bus garages shall not exceed 38 hours per week. (b) The ordinary hours of work referred to in clause 6.1.4(a) may be exceeded in any week or weeks subject to the total ordinary hours worked during any roster period not exceeding that number of hours ascertained by multiplying the number of weeks in the roster period by 38. (c) The ordinary hours of work referred to in clause 6.1.4(a) may be worked according to a roster agreed upon between the Union and the Council to suit the needs and circumstances of each establishment. (d) Shift workers in bus garages shall be allowed a crib break of 30 minutes during each shift for which no deduction of pay shall be made: Provided that such break shall be taken at a time and in such manner that will not interfere with continuity of work where continuity is necessary.

6.2 6.2.1

Extra payments for afternoon and night shift Bus garage employees who are required to work shift work shall be paid: (a) Afternoon shift (b) Night shift 12.5% or $9.70 per shift (whichever is the greater) 15% or $9.70 per shift (whichever is the greater)

For the purposes of this Award payments available from 1 November 2001, shall apply from the rolling over of the special shift allowance of 144% Friday night into this Award. 6.3 6.3.1 Special night allowance Employees other than bus garage employees shall be entitled to an allowance of $1.6375 per hour from 1 November 2000, for all ordinary time worked between the hours of 6.00 p.m. and 7.00 a.m. and payable at ordinary rates. Broken parts of an hour of less than 30 minutes on any shift shall be disregarded and 30 minutes to 59 minutes shall be paid for as an hour: Provided that where overtime or penalty rates are payable the above special allowance shall not be payable: Provided further that this allowance shall be indexed by 6.3.2 6.4 12.5% of the base ordinary rate of a Bus Operator Level 1 from 1 November 2001.

This allowance shall be assessed by these percentages on any movements in the Bus Operator Level 1 rate of pay and adjusted accordingly. Overtime

All time worked in excess of the ordinary working hours prescribed by clause 6.1 shall be deemed to be overtime and shall be paid for at the rate of time and a-half for the first 3 hours and double time thereafter: Provided that any employee referred to in clauses 6.1.3 and 6.1.4 who works a fortnightly period of 9 consecutive working days and is required to work on their agreed day off shall be paid the overtime rates prescribed on Mondays to Fridays in this Award. 6.5 Distribution

All work and overtime shall, as far as reasonably practicable be so arranged as to ensure equal distribution of same. 6.6 6.6.1 Meal time All bus operators and conductors shall be entitled to a meal time of not less than 40 minutes nor more than 55 minutes for which payment shall not be made, and in cases where the distance exceeds 91.4 metres such meal time shall be exclusive of time occupied in walking from the relief point to the nearest established dining room provided by the employer. In cases of emergency brought about by unforeseen circumstances beyond the control of the employer, such meal time may be reduced to 30 minutes. As far as reasonably practicable an employee shall not be required to work more than 5 hours without a meal time. Where practicable, such meal time shall not be given until 3 1/2 hours have been worked on the early shift and 3 hours on the late shift. 6.6.4 Employees other than bus operators and conductors, shall be entitled to a meal time of not less than half an hour or more than one hour (as may be mutually agreed upon) each day. When any bus operator or bus conductor is required to report for extra work, in addition to the employee's rostered work, without receiving notice on the previous day, and the break between signing off and signing on is less than 2 hours, the employee shall be paid a meal allowance of $7.50. When any bus operator or bus conductor is required to continue working after the employee's rostered finishing time, without receiving notice on the previous day, and as a result of such extra work is relieved for a meal, the employee shall be paid a meal allowance of $7.50. Minimum hours Bus operators and conductors who avail themselves of all work offered shall be paid a minimum of 38 hours at the ordinary time rate of pay for each week's service, excluding the additional rate for overtime or for work performed on Sundays, holidays, or on their days off.

6.6.2

6.6.3

6.6.5

6.6.6

6.7 6.7.1

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6.7.2

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Any employee subject to clause 6.7 who absents themself from work owing to illness or accident, proof of which shall rest on such employee, shall be regarded as having released the employer from the obligation to pay the equivalent for such hours absent to the extent of 7 hours 36 minutes for each day not worked. Except as provided in clause 6.10, any bus operator or conductor who carries on work referred to in clause 5.6.2 shall be entitled to a minimum of 7 hours 36 minutes pay for each day at the appropriate rate for that day. Passive time and any time necessary to make up the equivalent of 7 hours 36 minutes at the current rate for the day shall not be taken into account in calculating overtime. Reporting for duty Except as provided for in clause 6.7.3 any employee who reports for duty in accordance with instructions but is then not required for duty shall be paid for not less than half of the ordinary daily hours as prescribed in clause 6.1.2 unless at least 2 hours' notice was given at the employee's place of residence that the employee was not required for duty. For the purpose of calculating overtime when payment is made for the duration of hours provided in clause 6.8.1 such duration of hours shall be regarded as work. In calculating the length of break between shifts, the time of signing off shall be taken. Any employee required to report on more than one occasion on one day shall receive payment for not less than 8 hours calculated at ordinary rates, except on Sundays when the employee shall receive payment for not less than 6 hours calculated at the rate of time and a-half. Any employee who is required to report on more than one occasion on any of the public holidays mentioned in clause 7.2 shall receive payment for not less than 6 hours calculated at the rate of double time. Day off Except as otherwise provided, bus operators and conductors shall be entitled to 2 consecutive days off without pay in each week: Provided that, where the principle of 2 days off consecutively does not permit of balanced rostering, on each day, and balance could be achieved by separation of the days off, the principle of separated days off may be applied to obtain balance.

6.7.3

6.8 6.8.1

6.8.2 6.8.3 6.8.4 6.8.5 6.9 6.9.1

6.9.2 6.9.3 6.9.4

All other employees, shall be entitled to 2 days off without pay in each week, and, as far as reasonably practicable, the days off shall be consecutive. Any of the above employees required to work on any day off, shall be given not less than 24 hours' notice except under emergent conditions beyond the control of the employer, and shall be paid at overtime rates for such work as provided hereunder. Except as provided in clause 6.9.7, any employee who works on the employee's day off from Monday to Friday and who receives not less than 24 hours' notice of such work shall be paid time and a-half rates for a period of 6 hours spread over a time not exceeding 8 hours from the time of signing on and double time for any period after 8 hours from the time of signing on. Any employee who is required to work on the employee's day off, on a Saturday or Sunday, and who receives not less than 24 hours' notice, shall be paid double time with a minimum of 6 hours. Except as provided in clause 6.9.7, any employee who works on the employee's day off from Monday to Friday, and who receives less than 24 hours' notice of such work, shall be paid double time for a period of 6 hours spread over a time not exceeding 8 hours from the time of signing on and double time and a-quarter for any period after 8 hours from the time of signing on. Any employee who is required to work on the employee's day off, on a Saturday or Sunday and who receives less than 24 hours' notice shall be paid double and a-quarter with a minimum of 6 hours. If an employee's day off falls on a holiday on which double time rates are paid, the employee shall be entitled to receive double time and a-half for the time worked with a minimum of 6 hours. Clauses 6.9.4, 6.9.5 and 6.9.6 shall not apply to an employee who works a late time-table on the day prior to the employee's day off when such late time-table extends beyond midnight into the morning of the day off; but an employee who works a late time-table on the employee's day off, when such late time-table extends beyond midnight into the morning after the day off shall be paid in accordance with the provisions of clauses 6.9.4, 6.9.5 and 6.9.6 to the end of such late time-table. Any employee who has a single day off is not expected to be worked past 9.00 p.m. the night preceding the single day off. Saturday and Sunday time Time worked on Saturdays shall be paid for at the rate of time and a-half. Time worked on Sundays shall be paid for at the rate of double time. Spread of hours All duty performed by bus operators and conductors (other than casual employees) on broken shifts outside a spread of 9 1/2 consecutive hours in any one day shall be paid at the following rates: Between 9 1/2 hours and 10 1/2 hours ....................................................................time and a-half After 10 1/2 hours....................................................................................................double time

6.9.5

6.9.6 6.9.7

6.9.8 6.10 6.10.1 6.10.2 6.11

6.12

Interval between shifts

Except by mutual consent between an employee and the employer or between the Union and the employer, all employees shall have a break of at least 10 hours between the finishing of one day's work and the commencing of another day's work. 6.13 Cancelled work

Where a bus operator's work is cancelled, and the employee has not been given 2 hours' notice of such cancellation, the employee shall be entitled to receive 2 hours' pay.

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6.14 Late services

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

683

Any bus operator or conductor who is required to continue working after 1 a.m. shall be entitled to payment at the rate of time and a-half for time worked after 1 a.m. PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 7.1 7.1.1 7.1.2 Annual leave Employees who have completed 12 months employment shall be entitled to an annual leave on full pay of 4 weeks. Such annual leave shall be exclusive of any public holiday which may occur during the period of that annual leave and shall be paid by the employer in advance: (a) In the case of any and every employee in receipt immediately prior to that leave of ordinary pay at a rate in excess of the ordinary rate payable under this Award at that excess rate; and (b) In every other case, at the ordinary rate payable to the employee concerned immediately prior to that leave under this Award: Provided that notwithstanding anything contained herein, bus operators, bus conductors and bus assistants required to work on a night shift roster, shall be entitled to one week's annual leave in addition to the annual leave prescribed, and such additional annual leave shall be in lieu of public holidays which might occur during the period of such annual leave and compensation for the unusual conditions of employment attending the operation of buses. 7.1.3 If the employment of any employee other than a bus operator or bus conductor or bus assistant required to work a night shift roster is terminated at the expiration of a full year of employment, the employer shall be deemed to have given the leave to the employee from the date of the termination of the employment and shall forthwith pay to the employee, in addition to all other amounts due to the employee for 4 weeks, ordinary pay for any public holiday occurring during such period of 4 weeks. If the employment of any employee is terminated before the expiration of a full year of employment such employee shall be paid, in addition to all other amounts due, an amount equal to 1/9th of the employee's ordinary pay for the period of employment if the proviso in clause 7.1.2(b) applies to the employee, and 1/12th of the employee's ordinary pay for the period of employment in all other cases. Loading on annual leave ­ Bus operators and bus conductors shall be paid a loading of 20% on 4 weeks annual leave falling due, calculated on the rate of wage prescribed in clause 5.1. (a) Bus assistants required to work night shift: (i) For each employee a total amount of annual leave pay shall be calculated for 4 or 5 weeks as the case may be, based on the rate payable for ordinary time according to the employee's roster or projected roster, including Saturday, Sunday or holiday shifts and allowances prescribed in clauses 6.2 and 6.3. (ii) For each employee a loading of 17.5% on 4 or 5 weeks annual leave as the case may be, shall be calculated on the rate of wage prescribed by clause 5.1. (iii) Whichever loading reflected by 7.1.5(a)(i) or 7.1.5(a)(ii) is the greater shall be paid to the employee for annual leave falling due. (b) Other employees shall be paid a loading of 17.5% per centum on 4 weeks annual leave falling due calculated on the rate of wage prescribed by clause 5.1. (c) If the employment of any employee other than a bus operator or bus assistant is terminated before the expiration of a full year of employment such employee shall be paid, in addition to payments prescribed in clause 7.1.4 an amount equal to 17.5% of 1/12th of the employee's earnings for the period of employment calculated at the rate of wage prescribed by clause 5.1. (d) If the employment of a bus operator or a bus assistant is terminated before the expiration of a full year of employment such employee shall be paid, in addition to payments prescribed in clause 7.1.4 an amount equal to 20% of 1/12th of the employees earnings for the period of employment calculated at the rate of wage prescribed by clause 5.1. 7.1.6 7.2 7.2.1 Calculation of such entitlements to annual leave of employees shall be in hours as agreed between the Union and the Council. Public holidays All work done by any employee on: ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ the 1st January; the 26th January; Good Friday; Easter Saturday (the day after Good Friday); Easter Monday; the 25th April (Anzac Day); Labour Day The Birthday of the Sovereign; Christmas Day; Boxing Day; or any day appointed under the Holidays Act 1983, to be kept in place of any such holiday

7.1.4

7.1.5

will be paid for at the rate of double time and a-half with a minimum of 4 hours. 7.2.2 7.2.3 Clause 7.2.1 shall not apply to a bus operator or conductor who works a late time-table on the day prior to any of the public holidays in clause 7.2.1 when such late timetable extends beyond midnight into the morning of any of the said holidays. A bus operator or conductor who works a late time-table on any of the said holidays, when such late time-table extends beyond midnight into the morning after any of the said holidays, shall be paid in accordance with the clause 7.2.1 to the end of such late time-table. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

684

7.3 Family leave

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

The provisions of the Family Leave Award apply to and are deemed to form part of this Award. 7.3.1 It is to be noted that: (a) Part-time work can be performed by agreement in the circumstances specified in the Family Leave Award; (b) A copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act. 7.3.2 The Family Leave Award also provides for the terms and conditions of leave associated with: (a) Maternity leave (b) Parental leave (c) Adoption leave (d) Special responsibility leave for the care and support of the employee's immediate family or household. 7.4 7.4.1 Bereavement leave Full-time and part-time employees

Full-time and part-time employees shall, on the death of a member of their immediate family or household in Australia, be entitled to paid bereavement leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in 2 ordinary days of work. Proof of such death is to be furnished by the employee to the satisfaction of the employer. 7.4.2 Long-term casual employees (a) A long-term casual employee is entitled to at least 2 days unpaid bereavement leave on the death of a member of the person's immediate family or household in Australia. (b) A "long-term casual employee" is a casual employee engaged by a particular employer, on a regular and systematic basis, for several periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under clause 7.4.2. 7.4.3 "Immediate family" includes: (a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the employee; and (b) A child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee. 7.4.4 Unpaid leave

An employee with the consent of the employer, may apply for unpaid leave when a member of the employee's immediate family or household in Australia dies and the period of bereavement leave entitlement provided above is insufficient. PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK 8.1 Travelling time

Travelling time shall be paid for at ordinary rates, and shall be included for the purpose of calculating overtime. PART 9 ­ TRAINING AND RELATED MATTERS 9.1 9.1.1 Training The parties to this Award recognise that in order to increase the efficiency, productivity and competitiveness of the Council, a greater commitment to training and skill development is required. Accordingly, the parties commit themselves to: (a) developing a more highly skilled and flexible workforce; (b) providing employees with career opportunities through appropriate training to acquire additional skills and; and (c) removing barriers to the utilisation of skills acquired. 9.1.2 Following proper consultation, the Council shall develop a training programme consistent with: (a) The current and future skill needs of the Council; (b) The size, structure and nature of the operations of the Council; and (c) The need to develop vocational skills relevant to the Council through courses conducted by accredited educational institutions and providers. PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES 10.1 Change money

The employer shall provide $8 change money for the performance of the employee's duty, to any bus operator or conductor issuing tickets provided that the employee shall produce same when called upon to do so by an officer of the employer.

24 October, 2003

10.2

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

685

Sanitary accommodation

When the return run is more than 20 minutes, suitable sanitary accommodation shall be provided at all termini. 10.3 10.3.1 Uniforms On entering the service, and at intervals thereafter, bus operators and conductors shall receive an issue of uniforms as mutually agreed between the Union and the Council from time to time. In the event of disagreement over any proposed changes to issue of uniforms, such matters shall be dealt with under the grievance and dispute settlement procedure in clause 3.1 Such uniforms shall remain the property of the Council and shall be returned to the Council on demand, in good order and condition subject to fair wear and tear: Provided that any bus operator or conductor who resigns within 6 months of engagement, and who had been issued with new uniforms shall pay to the Council, or forfeit from any monies due to the employee by the Council, the value of the uniforms issued to them. 10.4 Notice to be measured

10.3.2

10.3.3

Any bus operator or conductor entitled to receive a uniform shall have arranged by the Council to be measured for same at least 30 days before the issue is due, to allow the issue to be supplied by the prescribed time. 10.5 Overalls

Bus assistants shall be supplied with 2 suits of overalls or one suit of overalls and one pair of oilskin trousers annually. 10.6 Accident reports

For making out a No. 1 accident report in the employee's own time, any bus operator or conductor shall be allowed 15 minutes at the ordinary rate, where it is essential that the report be made in the employee's own time. PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Preamble Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are advised to refer to sections 366, 372 and 373 of the Act as amended from time to time. 11.1 11.1.1 Right of entry Authorised industrial officer (a) An "Authorised industrial officer" is any Union official holding a current authority issued by the Industrial Registrar. (b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union. 11.1.2 Entry procedure (a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as: (i) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and (ii) shows their authorisation upon request. (b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent. (c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry. (d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a trespasser. 11.1.3 Inspection of records (a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act. (b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current employee except if the employee: (i) is ineligible to become a member of the Union; or (ii) is a party to a QWA or ancillary document, unless the employee has given written consent for the records to be inspected; or (iii) has made a written request to the employer that the employee does not want that employee's record inspected. (c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer. (d) A person must not coerce an employee or prospective employee into consenting, or refusing to consent, to the inspection of their records by an authorised industrial officer. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

686

11.1.4

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Discussions with employees

24 October, 2003

An authorised industrial officer is entitled to discuss with the employer, or a member or employee eligible to become a member of the Union: (a) matters under the Act during working or non-working time; and (b) any other matter with a member or employee eligible to become a member of the Union, during non-working time. 11.1.5 Conduct

An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry. 11.2 11.2.1 Time and wages record An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period for each employee, including apprentices and trainees: (a) the employee's award classification; (b) the employer's full name; (c) the name of the award under which the employee is working; (d) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and details of work breaks including meal breaks; (e) a weekly, daily or hourly wage rate ­ details of the wage rate for each week, day, or hour at which the employee is paid; (f) the gross and net wages paid to the employee; (g) details of any deductions made from the wages; and (h) contributions made by the employer to a superannuation fund. 11.2.2 The time and wages record must also contain: (a) the employee's full name and address; (b) the employee's date of birth; (c) details of sick leave credited or approved, and sick leave payments to the employee; (d) the date when the employee became an employee of the employer; (e) if appropriate, the date when the employee ceased employment with the employer; and (f) if a casual employee's entitlement to long service leave is worked out under section 47 of the Act ­ the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year. 11.2.3 11.2.4 The employer must keep the record for 6 years. Such records shall be open to inspection during the employer's business hours by an inspector of the Department of Industrial Relations, in accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act. Union encouragement

11.3

Clause 11.3 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of Policy on Union Encouragement (reported 165 QGIG 221) that encourages an employee to join and maintain financial membership of the Union. 11.3.1 Documentation to be provided by employer

At the point of engagement, an employer to whom this Award applies shall provide employees with a document indicating that a Statement of Policy on Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by each employee. The document provided by the employer shall also identify the existence of a Union encouragement clause in this Award. 11.3.2 Union delegates

Union delegates and job representatives have a role to play within a workplace. The existence of accredited Union delegates and/or job representatives is encouraged. The employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their duties. 11.3.3 Deduction of union fees

Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of Union fees for employees who signify in writing to their employer, their desire to have such membership fees deducted from their wages.

24 October, 2003

11.4 Award posting

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

687

The Council must display a copy of this Award in a conspicuous place in each operations centre where employees can easily read it. SCHEDULE 1 ­ Service standards 1. 1.1 1.1.1 SERVICE STANDARDS Reliability Operating staff are expected to be punctual. Subject to late running beyond the operators control, runs are expected to leave on time from the depot and operate in accordance with the timetable. Within approved leave and approved purposes. Measurement

1.1.2

Operating staff are to attend work as rostered. Presentation Operating staff are expected to present themselves in a neat and tidy way and in the appropriate Council uniform. Bus signage is to be correct.

1.2 1.2.1

Based on reports from the public and/or staff.

1.2.2

Based on reports from the public and/or staff.

1.3 1.3.1

Courtesy Operating staff are expected to be courteous and helpful to customers and other employees. Safety Operating staff are expected to drive in a safe and responsible way. Operating staff are to fulfil their requirements in regard to correct accident procedures. Revenue protection Operating staff are expected to apply the correct fare structure. Operating staff are expected to pay in the correct amount. WORK SKILLS Bus assistant * * * * * * * * * * * * * * Cleaning and maintaining amenities. Operating departmental radio networks. Guiding drivers. Completing paperwork associated with the job. As for Level 1. Fuelling buses and checking tyres. Operating all types of vehicles within depot. As for Level 2. Operating all types of vehicles on the road. Courier duties. Performing grease and oil changes. Minor mechanical duties. Tyre fixing. Steam cleaning. Based on reports from the public and/or staff. Weekly reconciliation in accordance with existing standards. Based on reports from the public and/or staff. Based on reports from the public and/or staff. Based on reports from the public and/or staff.

1.4 1.4.1

1.4.2

1.5 1.5.1 1.5.2 2. 2.1

LEVEL 1

LEVEL 2

LEVEL 3

2.2

Bus operators * * * * * Operate all types of buses. Knowledge of fare and ticket systems. Exercise customer relations. Ensuring bus is O.K. for traffic. As for Bus Assistant 1­3. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

LEVEL 1

688

LEVEL 2 * * * * * * * * * * * * *

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

As for Level 1. Diagnosing minor bus faults. Administer First Aid. As for Level 2. Operate trambus/special vehicles. Knowledge of other depot routes. Instructing new drivers re depot operations. Advanced customer relations. On bus service/patronage checks. Assisting staff roster preparations. As for Level 3. Driver instruction. Driving routes at other depots.

24 October, 2003

LEVEL 3

LEVEL 4

3.

TRAINING

Condition: Certification that training has been undertaken and skills obtained. 3.1 Bus assistant * * * * * * * 3.2 Training in operational equipment. Training in use of radio. Fuel scan computer training. Identification of tyre wear leading to tyre fixing. Driver training leading to licence. On-the-job training for oiling and greasing. On-the-job training for mechanic/steam cleaning.

Bus operator * * * * * * * * * * * * As per bus assistant. Driver training leading to licence. Instruction and practice in fare and ticket systems. Customer relations training. Advanced customer relations training. Instruction and practice on check list for O.K. buses. Instruction and practice on check list for identifying minor faults. Formal training in first aid. Knowledge of Citysights and commentary technique. Train the trainer. Advanced driver training. Roster preparation ­> advance training.

4.

PERFORMANCE APPRAISAL

Purpose of appraisal: To discuss with the operators their achievements in regard to service standards and work skills relevant to their appropriate level. Bus operator/assistant Level 1 Level 2 Level 3 Level 4 Work review each 4 months Work review each 6 months Work Review annually As required by either party and beyond. Operations manager Operations manager Operations manager Operations manager

SCHEDULE 2 ­ Times for signing on and signing off Monday to Sunday Sign on (Mins) Bus operators When operating with the assistance of a conductor and having no cash or ticket to pay in .............................................................................................................................................10 When operating without the assistance of a conductor....................................................................................................................................15 When operating without the assistance of a conductor and bringing the bus back to the garage at the end of the employee's day's work ...................................................................................................................................................15 Provided that a bus operator who commences duty with a conductor and is required to carry on as a one-person bus operator during any part of the bus operator's shift shall receive the same signing on and off time as a one-person bus operator. Sign off (Mins)

7 13

18

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

13

689

Bus conductors ..................................................................................................................................14 Bus operators or conductors When taking a bus out of or bringing a bus into the garage when called upon to do any extra work ...............................................................................................................................5 When not required to take a bus out of or bring a bus into the garage when called upon to do any extra work .......................................................................................................2 Dated 29 July 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

5

2

Operative Date: 29 September 2003

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 130 ­ award review DIVERSIONAL THERAPY ­ AWU ­ INDUSTRIAL AGREEMENT (No. AR22 of 2003) DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY AWARD REVIEW After reviewing the above Agreement, which by a decision of the Commission on 4 July 2003 has the effect of an award, pursuant to section 130 of the Industrial Relations Act 1999, this Commission orders that the Agreement be repealed and the following Award be made, as from 6 October 2003. DIVERSIONAL THERAPISTS AWARD ­ STATE 2003 PART 1 ­ APPLICATION AND OPERATION 1.1 Title

9 September 2003

This Award is known as the Diversional Therapists Award ­ State 2003. 1.2 Arrangement Clause No.

Subject Matter PART 1 ­ APPLICATION AND OPERATION

Title.............................................................................................................................................................................................................................1.1 Arrangement ...............................................................................................................................................................................................................1.2 Award coverage..........................................................................................................................................................................................................1.3 Area of operation .......................................................................................................................................................................................................1.4 Date of operation ........................................................................................................................................................................................................1.5 Definitions ..................................................................................................................................................................................................................1.6 Parties bound ..............................................................................................................................................................................................................1.7 PART 2 ­ FLEXIBILITY Enterprise flexibility...................................................................................................................................................................................................2.1 PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION Consultative mechanisms and procedures in the workplace .....................................................................................................................................3.1 Grievance and dispute settling procedure ..................................................................................................................................................................3.2 PART 4 ­ EMPLOYER AND EMPLOYEE'S DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Employment categories ..............................................................................................................................................................................................4.1 Multi-skilling..............................................................................................................................................................................................................4.2 Part-time employees...................................................................................................................................................................................................4.3 Anti-discrimination ....................................................................................................................................................................................................4.4 Termination of employment.......................................................................................................................................................................................4.5 Introduction of Changes .............................................................................................................................................................................................4.6 Redundancy ................................................................................................................................................................................................................4.7 Trainees ......................................................................................................................................................................................................................4.8 Continuity of service ­ transfer of calling .................................................................................................................................................................4.9 C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

690

Subject Matter

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Clause No.

PART 5 ­ WAGES AND WAGE RELATED MATTERS Definitions of classifications......................................................................................................................................................................................5.1 Wages ........................................................................................................................................................................................................................5.2 Junior employees........................................................................................................................................................................................................5.3 Payment of wages.......................................................................................................................................................................................................5.4 Savings Clause ...........................................................................................................................................................................................................5.5 Progression/Re-classification.....................................................................................................................................................................................5.6 Allowances .................................................................................................................................................................................................................5.7 Superannuation...........................................................................................................................................................................................................5.8 PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEK-END WORK Hours of work.............................................................................................................................................................................................................6.1 Other hours by award .................................................................................................................................................................................................6.2 Overtime .....................................................................................................................................................................................................................6.3 Meal breaks ................................................................................................................................................................................................................6.4 Rest pauses .................................................................................................................................................................................................................6.5 PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS Annual leave ...............................................................................................................................................................................................................7.1 Sick leave ...................................................................................................................................................................................................................7.2 Bereavement leave .....................................................................................................................................................................................................7.3 Long service leave......................................................................................................................................................................................................7.4 Family leave ...............................................................................................................................................................................................................7.5 Public holidays ...........................................................................................................................................................................................................7.6 PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK No provisions inserted in this Award relevant to this Part. PART 9 ­ TRAINING AND RELATED MATTERS Commitment to training and careers .........................................................................................................................................................................9.1 PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES No provisions inserted in this Award relevant to this Part. PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Right of entry..............................................................................................................................................................................................................11.1 Time and wage records ..............................................................................................................................................................................................11.2 Union encouragement ................................................................................................................................................................................................11.3 Posting of award.........................................................................................................................................................................................................11.4 Reserved matters ........................................................................................................................................................................................................11.5 1.3 1.3.1 Award coverage This Award applies to Employees who are engaged by members of ANHECA(Q) and ACQI as diversional therapists and for whom classifications and rates of pay are prescribed by this Award in the provision of activities which are designed to enhance the psychological, spiritual, social and physical well being of Individual aged persons accommodated in nursing homes, hostels, retirement villages and garden settlements: Provided that this Award does not apply to: (a) Members of religious orders. (b) Employees covered by the Nurses' Aged Care Interim Award ­ State who shall be deemed to include Employees who do not possess an Associate Diploma or higher qualification in Diversional Therapy or similar, and who develop and/or provide Nursing and therapeutic activities for residents and whose work is immediately supervised by a Registered Nurse. (c) Furthermore persons employed at the date of this Award pursuant to the Nurses' Aged Care Interim Award ­ State performing work which may be encompassed by this Award shall not be transferred to this Award except by mutual consent. (d) Qualified Recreational Officer who holds an Associate Diploma in Recreation or leisure studies higher qualification. (e) Unqualified Recreational Officer, at the time of the making of this Award, who held a position of recreational officer. 1.4 Area of operation

For the purposes of this Award, the Divisions and Districts shall be as follows: 1.4.1 Divisions

For the purposes of this Award the following divisions shall apply: (a) Northern Division That portion of the State North of a line commencing at the junction of the 21st parallel of south latitude with the sea-coast; then by that parallel of latitude due west to 147 degrees of east longitude; then by that degree of east longitude due south to 22 degrees 30 minutes of south latitude; then by that parallel of latitude due west to the western border of the State, including all islands north of the 21st parallel of south latitude which are within the State of Queensland.

24 October, 2003

(b) Mackay Division

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

691

That portion of the State within the following boundaries: Commencing at the junction of the sea-coast with the 21st parallel of south latitude; then by that parallel of latitude due west to 147 degrees east longitude; then by that meridian of longitude due south to 22 degrees of south latitude; then by that parallel of latitude due east to the sea-coast; then by the sea-coast northerly to the point of commencement; and including all islands situated between the 21st and 22nd parallels of south latitude and within the State of Queensland. (c) Southern Division That portion of the State not included in the Northern or Mackay Divisions and excluding that area within the following boundaries: Commencing at Point Danger and bounded thence by the Southern boundary of the State westerly to 151 degrees of east longitude; then by meridian of longitude bearing true north to 24 degrees 30 minutes of south latitude thence by that parallel of latitude bearing true east to the sea-coast; and then by the sea-coast southerly to the point of commencement. 1.4.2 Districts

For the purposes of this Award the following districts shall apply: (a) Northern Division Eastern District That portion of the above area along or east of 144 degrees 30 minutes of east longitude. Western District That portion of the above area west of 144 degrees 30 minutes of east longitude, including Thursday Island. (b) Southern Division Eastern District That portion of the Southern Division along or east of a line commencing at the junction of the southern border of the State with 150 degrees of east longitude; thence by that meridian of longitude due north to 25 degrees of south latitude; thence by that parallel of latitude due west to 147 degrees of east longitude; thence by that meridian of longitude due north to the southern boundary of the Mackay Division. Western District The remainder of the Southern Division. 1.5 Date of operation

This Award takes effect and has the force of law from 6 October 2003. 1.6 Definitions

For the purpose of this Award: 1.6.1 1.6.2 The "Act" means the Industrial Relations Act 1999 as amended or replaced from time to time. Casual Employee" means an Employee engaged as such for not more than 76 hours in any fortnight and who is employed by the hour with a minimum of 2 hours pay or payment therefore for each engagement. "Commission" means the Queensland Industrial Relations Commission. "Employee" includes any person employed by the employer but shall not include members of a Religious Order participating in the work of the employer under a contract for services between the employer and that person, or the Church or an Order. "Level" means the skill and wages grade to which an Employee is assigned, and shall also include any one or more functions defined in any lower level of any if required. "Occupational Superannuation Fund" means the appropriate Fund referred to in clause 5.8 (Occupational Superannuation). "Union" means The Australian Workers' Union of Employees, Queensland. Parties bound

1.6.3 1.6.4

1.6.5

1.6.6 1.6.7 1.7

This Award is legally binding upon the Employees as prescribed by clause 1.3 and their employers, and The Australian Workers' Union of Employees, Queensland and its members. PART 2 ­ TERMS AND CONDITIONS OF EMPLOYMENT 2.1 2.1.1 Enterprise flexibility As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace. The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

2.1.2

692

2.1.3

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Any proposed genuine agreement reached between an employer and Employee/s in an enterprise is contingent upon the agreement being submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given.

PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION 3.1 3.1.1 Consultative mechanisms and procedures in the workplace The development of effective ongoing participation/consultative practices is important in the process of award restructuring and can lead to advantages for both the employer and Employees. It is therefore desirable that participative/consultative mechanisms, established at the local level be continued. (a) Consultative mechanisms/practices shall be implemented where agreement exists between employers and Employees. (b) The form, structure and method of implementing consultative mechanisms/practices shall be as determined at the local level through negotiations between the employer, Employees and the Union consistent with agreed consultative models, provided however that the Union shall be represented in the consultative process by a duly elected job representative. (c) The Union agrees that at the local level where agreed consultative mechanisms/practices are in place to allow through the consultative process the application of designated Award conditions in a more flexible manner. The Union shall be party to any agreement where the Employees genuinely agree. (d) The process of consultative practices is a mechanism through which employers can be involved in and positively contribute towards managements' decision making process. All decisions are encouraged to be reached through consultative mechanisms/practices, however, managerial prerogative is acknowledged. 3.2 Grievance and dispute settling procedure

The matters to be dealt with in this procedure shall include all grievances or disputes between an Employee and an employer in respect to any industrial matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to a single Employee or to any number of Employees. 3.2.1 In the event of an Employee having a grievance or dispute the Employee shall in the first instance attempt to resolve the matter with the immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns alleged actions of the immediate supervisor the Employee/s may bypass this level in the procedure. If the grievance or dispute is not resolved under clause 3.2.1, the Employee or the Employee's representative may refer the matter to the next higher level of management for discussion. Such discussion should, if possible, take place within 24 hours after the request by the Employee or the Employee's representative. If the grievance involves allegations of unlawful discrimination by a supervisor the Employee may commence the grievance resolution process by reporting the allegations to the next level of management beyond that of the supervisor concerned. If there is no level of management beyond that involved in the allegation the Employee may proceed directly to the process outlined at clause 3.2.5. If the grievance or dispute is still unresolved after discussions mentioned in clause 3.2.2, the matter shall, in the case of a member of the Union, be reported to the relevant officer of the Union and the senior management of the employer or the employer's nominated industrial representative. An Employee who is not a member of the Union may report the grievance or dispute to senior management or the nominated industrial representative. This should occur as soon as it is evident that discussions under clause 3.2.2 will not result in resolution of the dispute. If, after discussion between the parties, or their nominees mentioned in clause 3.2.4, the dispute remains unresolved after the parties have genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Commission in accordance with the provisions of the Act. Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue. The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed. All parties shall give due consideration to matters raised or any suggestion or recommendation made by the Commission with a view to the prompt settlement of the dispute. Any Order or Decision of the Commission (subject to the parties' right of appeal under the Act) will be final and binding on all parties to the dispute. Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.

3.2.2

3.2.3

3.2.4

3.2.5

3.2.6 3.2.7 3.2.8 3.2.9 3.2.10

PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 4.1 4.1.1 Employment categories Employees covered by this Award shall be advised in writing of their employment category upon appointment. Employment categories are: (a) full-time; (b) part-time (as defined in clause 4.3); or (c) casual (as defined in clause 1.6.2). 4.2 Multi-skilling

In recognition of the operational and efficiency requirements of the employer, and to create more varied, and interesting work, it shall be a condition of employment, subject to appropriate training and competency, that each Employee shall be available to work as required on any work within the Employee's skill, competence and training consistent with the classification structure of this Award (subject to prevailing statutory requirements) and that each Employee shall acquire the skills and learn any other job as directed and shall provide instruction and or training as appropriate to another Employee as required.

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

693

Any directions issued by an employer pursuant to the provisions of clause 4.2 shall be consistent with the employer's responsibilities to provide a safe and healthy working environment. 4.3 4.3.1 Part-time employees "Part-time Employee" means an Employee, other than a "Casual Employee" as defined in clause 1.6.2, who is engaged to work rostered regular hours each fortnight with a minimum engagement of 15 hours per fortnight. Such roster shall show the starting and ceasing times and the days upon which an Employee is engaged to work as well as the number of hours to be worked each fortnight. The ordinary daily working hours shall be worked continuously, excluding meal breaks, and shall not be less than 3 hours or more than 8 hours on any day. A part-time Employee shall be paid the hourly rate prescribed by the Award and in addition shall be entitled to a pro rata payment of an allowance where appropriate. A part-time Employee shall be entitled to pro rata annual leave, sick leave, long service leave, bereavement leave and all public holidays on the same basis as full-time Employees on which the Employee would have otherwise worked in accordance with clause 4.3.1. When a public holiday occurs during a period of the Employee's annual leave, there shall be added to the Employee's annual leave an extra day for each such day so occurring. A part-time Employee who works more than the ordinary hours prescribed in clause 6.1, shall be paid overtime in accordance with clause 6.3. Subject to the provisions contained in clause 4.3, all other provisions of the Award relevant to full-time Employees shall apply to part-time Employees. The employer will advise all Employees, upon engagement, that in the event of changed resident utilisation or services it becomes necessary for the employer to reduce the working hours of part-time Employees who have completed one year's service, or less than one year's service, with that employer, one week's notice shall be provided and a further week for each subsequent year of service, provided that no employer shall be required to give more than 4 weeks' notice of the intended reduction in working hours. Anti-discrimination It is the intention of the parties to this Award to prevent and eliminate discrimination as defined by the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999 as amended from time to time which includes: (a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of the above attributes; (b) sexual harassment; and (c) racial and religious vilification. 4.4.2 Accordingly in fulfilling their obligations under the grievance and disputes settling procedure in clause 3.2, the parties to this Award must take reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects. Under the Anti-Discrimination Act 1991 it is unlawful to victimise an Employee because the Employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment. Nothing in clause 4.4 is to be taken to affect: (a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; or (b) an Employee, employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and Equal Opportunity Commission/ Anti-Discrimination Commission Queensland. 4.5 4.5.1 Termination of employment Statement of employment

4.3.2

4.3.3

4.3.4

4.3.5 4.3.6

4.3.7

4.4 4.4.1

4.4.3

4.4.4

The employer shall, in the event of termination of employment, provide upon request to the Employee who has been terminated a written statement specifying the period of employment and the classification or type of work performed by the Employee. 4.5.2 Termination by employer (a) In order to terminate the employment of an Employee the employer shall give the following notice: Period of Continuous Service Period of Notice

not more than 1 year ..............................................................................................1 week more than 1 year, but not more than 3 years ......................................................... 2 weeks more than 3 years, but not more than 5 years........................................................ 3 weeks more than 5 years .................................................................................................. 4 weeks (b) In addition to the notice in clause 4.5.2(a), Employees over 45 years of age at the time of giving of notice and with not less than 2 years' continuous service, shall be entitled to an additional week's notice. (c) Payment in lieu of notice shall be made if the appropriate notice is not given: Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

694

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

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

24 October, 2003

(e) The period of notice in clause 4.5.2(a) shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal, or in the case of casual, or seasonal Employees, or to Employees on daily hire, or Employees engaged for a specific period of time or for a specific task or tasks. 4.5.3 Notice of termination by employee

The notice of termination required to be given by an Employee shall be one week, or payment forfeited in lieu thereof. 4.6 4.6.1 Introduction of changes Employer's duty to notify (a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the employer shall notify the Employees who may be affected by the proposed changes and their Union. (b) "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer s workforce or in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs: Provided that where this Award makes provision for alteration of any of the matters referred to in clause 4.6.1(b) an alteration shall be deemed not to have significant effect. 4.6.2 Employer's duty to discuss change (a) The employer shall discuss with the Employees affected and their Union, inter alia, the introduction of the changes referred to, the effects the changes are likely to have on Employees and measures to avert or mitigate the adverse effects of such changes on Employees. (b) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 4.6.1. (c) For the purpose of such discussion, the employer shall provide in writing to the Employees concerned and their Union, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on Employees, and any other matters likely to affect Employees: Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the employer's interests. 4.7 4.7.1 Redundancy Discussions before terminations (a) Where an employer has made a definite decision that the employer no longer wishes the job the Employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the employer shall hold discussions with the Employees directly affected and where relevant, their Union. (b) The discussions shall take place as soon as it is practicable after the employer has made a definite decision which will invoke clause 4.7.1, and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate the adverse effects of any terminations of the Employees concerned. (c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to the Employees concerned and their Union, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of Employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be carried out: Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the employer's interests. 4.7.2 Transfer to lower paid duties

Where an Employee is transferred to other duties for reasons set out in clause 4.7.1, the Employee shall be entitled to the same period of notice of transfer the Employee would have been entitled to if the Employee's employment had been terminated, and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rates for the number of weeks of notice still owing. 4.7.3 Time off during notice period (a) Where a decision has been made to terminate an Employee in the circumstances outlined in clause 4.7.1, the Employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment. (b) If the Employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the Employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the Employee shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient. 4.7.4 Notice to Centrelink

Where a decision has been made to terminate Employees in the circumstances outlined in clause 4.7.1 the employer shall notify Centrelink thereof as soon as possible giving relevant information including a written statement of the reasons for the terminations, the number and categories of the Employees likely to be affected and the period over which the terminations are intended to be carried out.

24 October, 2003

4.7.5 Severance pay

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

695

In addition to the period of notice prescribed for ordinary termination in clause 4.5.2, and subject to further order of the Commission, an Employee whose employment is terminated for reasons set out in clause 4.7.1 shall be entitled to the following amounts of severance pay: Period of Continuous Service Severance Pay

1 year or less ............................................................................................... nil 1 year and up to the completion of 2 years................................................. 4 weeks' pay 2 years and up to the completion of 3 years ............................................... 6 weeks' pay 3 years and up to the completion of 4 years ............................................... 7 weeks' pay 4 years and over .......................................................................................... 8 weeks' pay "Weeks' pay" means the ordinary time rate of pay for the Employee concerned. 4.7.6 Superannuation benefits

Subject to further order of the Commission where an Employee who is terminated receives a benefit from a superannuation scheme, such Employee shall only receive under clause 4.7.5 the difference between the severance pay specified in that clause and the amount of the superannuation benefit such Employee receives which is attributable to employer contributions only. If this superannuation benefit is greater than the amount due under clause 4.7.5 then the Employee shall receive no payment under that clause. 4.7.7 Employee leaving during notice

An Employee whose employment is terminated for reasons set out in clause 4.7.1 may terminate such employment during the period of notice, and, if so, shall be entitled to the same benefits and payments under clause 4.7 had such Employee remained with the employer until the expiry of such notice: Provided that in such circumstances the Employee shall not be entitled to payment in lieu of notice. 4.7.8 Alternative employment

An employer, in a particular case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an Employee. 4.7.9 Employees with less than one year's service

Clause 4.7 shall not apply to Employees with less than one year's continuous service and the general obligation on employers should be no more than to give relevant Employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the Employees of suitable alternative employment. 4.7.10 Employees exempted

Clause 4.7 shall not apply: (a) Where employment is terminated as a consequence of misconduct on the part of the Employee; (b) to Employees engaged for a specific period of time or for a specified task or tasks; or (c) to Casual Employees. 4.7.11 Employers exempted

Subject to an order of the Commission, in a particular redundancy case, clause 4.7 shall not apply to employer s who employ less than 15 people. 4.7.12 Incapacity to pay

An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription varied on the basis of the employer's incapacity to pay. 4.8 Trainees

Trainees are engaged under this Award, except as varied from time to time by the Order for Apprentices' and Trainees' Wages and Conditions (Excluding Certain Queensland Government Entities). 4.9 Continuity of service ­ transfer of calling

In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act as amended from time to time. PART 5 ­ WAGES AND WAGE RELATED MATTERS 5.1 Definitions of classifications

Employees covered by this Award are to be classified into one of the following classification and wage levels and remunerated accordingly: 5.1.1 "Level One" ­ This level applies to an Employee appointed on probation who has no experience or qualifications in diversional therapy and who undertakes accredited training (where available) in workplace health and safety, workplace communication, conditions of employment, training and career path opportunities, work and document procedures, workplace equity and anti-discrimination and quality control/assurance. An Employee at this level performs routine duties to the level of their training in the aged care industry and performs: (a) simple, repetitive tasks; C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

696

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

(b) exercises minimal judgement; (c) works under continuous supervision.

24 October, 2003

An Employee shall remain at this level until competent in the skill areas above or until the Employee has worked full-time for 6 months. The following are examples of skills or activities characteristic of this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience: · · · 5.1.2 Care and maintenance of resources e.g. ­ equipment, plants, pets. Assist in daily programs e.g. ­ setting up required equipment. Assist clients participation in programs.

"Level Two, Step 1" ­ This level applies to an Employee who: (a) demonstrates competencies above Level One or continues employment after 6 months probation; (b) may be undertaking some training assessment for current competencies from an accredited training program in the area of aged care and/or diversional therapy with Certificate IV outcome under the Australian Qualifications Framework. An Employee performs work above the skills of Level One and within the limits of their training and experience to: (i) perform tasks under routine direction in accordance with strictly defined procedures; (ii) exercise limited discretion within defined procedures; (iii) apply basic quality control and assurance requirements. The following are examples of skills or activities characteristic of this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training an experience: Assist clients and the program organisers in group and individual general programs. Identifies clients basic needs and displays tactile awareness. Assist program organiser in running general Diversional Therapy programs. Identify and assist clients with basic needs to participate in both group and individual general diversion therapy programs. Identify and assist clients with basic needs to participate in diversional therapy programs. Correctly set up equipment and venue for diversional therapy programs.

5.1.3

"Level Two, Step 2" ­ This level applies to an Employee who: (a) Demonstrates competence above those of Level Two, Step 1; (b) May have completed or be assessed for current competencies equivalent to 40% of whole off-the-job training modules and the relevant onthe-job skills from an accredited training program in the area of aged care and/or diversional therapy with Certificate IV outcome under the Australian Qualifications Framework. The Employee may be undertaking further training. An Employee performs work above the skills of Level Two, Step 1, within the limits of their training and experience to: (i) perform tasks under general direction in accordance with defined procedures; (ii) exercise limited discretion within procedures; (iii) apply quality control and assurance requirements. The following are examples of skills or activities characteristic of this Level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience: Conduct general diversional therapy programs for groups and individuals. Identify and cater for clients diversional therapy needs in relation to their disability, interests and social history. Undertake office duties and public contact in relation to diversional therapy programs.

5.1.4

"Level Three, Step 1" ­ This level applies to an Employee who: (a) Demonstrates competence in skills above those of Level Two, Step 2; (b) Has completed or been assessed for current competencies equivalent to 71% or whole off-the-job training modules and the relevant on-thejob skills form an accredited training program in the area of aged care and/or diversional therapy with Certificate IV outcome under the Australian Qualifications Framework. The Employee may be undertaking further training. An Employee performs work above the skills of Level Two, Step 2 within the limits of their training an experience to: (i) (ii) work from complex instructions and procedures; understand and apply quality control techniques and procedures and be accountable and responsible for their output and/or work areas;

24 October, 2003

(iii) (iv) (v) (vi)

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

697

co-ordinate work in a team environment or work individually, without direct supervision; provide training on a periodic basis; assist with the provision of support services; exercise well developed levels of communication;

(vii) perform work under limited supervision either individually or in a team environment. The following are examples of skills or activities characteristic of this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience. Be able to take responsibility for part of the diversional therapy program. Be able to execute part of the diversional therapy program. 5.1.5 "Level Three, Step 2" ­ This level applies to an Employee who: (a) demonstrates competence in skills above those of Level Three, Step 1 and has greater responsibility; (b) shall have completed or be assessed for current competencies equivalent to 71% of whole off-the-job training modules and the relevant onthe-job skills from an accredited training program in the area of aged care and/or diversional therapy with Certificate IV outcome under the Australian Qualifications Framework. The Employee may be undertaking further training. An Employee performs work above the skills of Level Three, Step 1 within the limits of their training and experience to: (i) (ii) (iii) (iv) (v) (vi) work from complex instructions and procedures; understanding and apply quality control techniques and procedures and be accountable and responsible for their output and/or work areas and that of others; co-ordinate work in a team environment or work individually, with only general supervision; plan and provide training on a periodic basis; assist with the provision of support services; exercise well developed levels of communication;

(vii) identify and solve procedural problems; (viii) be responsible for assuring the quality/service and productivity of their own work; (ix) (x) supervise the work of others; and perform lower level tasks.

The following are examples of skills or activities characteristic or this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience: Assist in planning general diversional therapy programs for groups and individuals. Co-ordinate and organise individual activities for groups and individuals. Demonstrates ability to collate data with a view to identifying and responding to clients individual needs. Be able to execute part of the diversional therapy program. Completes documentation to meet workplace requirements. 5.1.6 "Level Four, Step 1" ­ This level applies to an Employee who: (a) Demonstrates competencies above those of Level Three, Step 2 and has appropriate experience in the field to enable the duties of the position be carried out; (b) Shall have completed or be assessed for current competencies equivalent to all training modules and relevant on-the-job skills from an accredited training program in the area of aged care and/or diversional therapy with Certificate IV outcome under the Australian Qualifications Framework. The Employee may be undertaking further training. An Employee performs work above the skills of Level Three, Step 2 within the limits of their training and experience to: (i) (ii) be accountable and responsible for workplace output; understand and put in place quality control techniques and procedures and be accountable and responsible for their output and/or work areas and those of others; work without supervision within the operational guidelines of the employer; understands the employer's entire operation; plan, develop and establish training according to employer guidelines; C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

(iii) (iv) (v)

698

(vi) (vii)

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

exercise well developed levels of communication and analytical skills; undertake specialised work as a diversional therapist and provide para-professional care for clients;

24 October, 2003

(viii) supervise the work of others; and (ix) perform lower level tasks.

The following are examples of skills or activities characteristic of this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience. Ensure the maintenance of documentation as required by legislation. Plan diversional therapy program for groups and individuals. Organise volunteer programs, provides training for and facilities meetings and support groups. Maintain budget records. 5.1.7 "Level Four, Step 2" ­ This level applies to an Employee who: (a) demonstrates competencies above those of Level Four, Step 1; (b) shall have completed or be assessed for current competencies equivalent to all training modules and relevant on-the-job skills form an accredited training program in the area of aged care and/or diversional therapy with Certificate IV outcome under the Australian Qualifications Framework. The Employee may be undertaking further training; and (c) may have recognised specialist qualifications at Certificate level 3 or 4 in any area of dementia, neurological disorders, intellectual impairment, music, art, massage or another qualification related to the work of diversional therapy. An Employee performs work above the skills of Level Four Step 1 within the limits of their training and experience to: (i) (ii) be accountable and responsible for workplace output; understand and put in place quality control techniques and procedures and be accountable and responsible for their output and/or work areas and those of others; work without supervision within the operational guidelines of the employer; understands the employer's entire operation; plan, develop and establish training according to employer guidelines; exercise well developed levels of communication and analytical skills;

(iii) (iv) (v) (vi)

(vii) undertake specialised work as a diversional therapist and provide para-professional care for clients; (viii) supervise the work of others; and (ix) perform lower level tasks.

The following are examples of skills or activities characteristic of this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience: develop and conduct diversional therapy programs in specific areas like music therapy, aroma therapy, massage therapy and art therapy. develop and conduct diversional therapy programs in specific disability areas like dementia, neurological disorders, intellectual impairment etc. 5.1.8 Level Five, Step 1" ­ This level applies to an Employee who: (a) Demonstrates competencies above those of Level Four, Step 2; (b) Shall have completed or be assessed for current competencies equivalent to all training modules and relevant on-the-job skills form an accredited training program in the area of aged care and/or diversional therapy with Diploma outcome under the Australian Qualifications Framework. The Employee may be undertaking further training. An Employee performs work above the skills of Level Four Step 2 within the limits of their training and experience to: (i) (ii) (iii) (iv) (v) (vi) be accountable and responsible for workplace output; understand and put in place quality control techniques and procedures and be accountable and responsible for their output and/or work areas and those of others; work without supervision within the operational guidelines of the employer; understand the employer's entire operations; plan, develop and establish training according to employer guidelines; exercise high levels of communication and analytical skills;

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

699

(vii) undertake and oversee specialised work as a diversional therapist and provide para-professional care for aged persons; (viii) supervise the work of others; and (ix) perform lower level tasks.

The following are examples of skills or activities characteristic of this level. An Employee may be required to undertake some or all of these examples and others within the limits of their training and experience: Oversee, develop and review diversional therapy program and outcomes. Plan, develop and implement workplace documentation. Identify and cater for complex needs of clients, volunteers and other Employees. Plan, develop and coordinate volunteer participation programs, volunteer training programs and volunteer support systems. 5.2 5.2.1 Wages The minimum wages payable at the following Levels shall be: Level Adults per week $ Relativity % 80 87 94 100 104 108 110 114

Level One ................................................................................................................ 456.80 Level Two Step 1....................................................................................................................... 486.00 Step 2....................................................................................................................... 515.20 Level Three Step 1....................................................................................................................... 542.20 Step 2....................................................................................................................... 558.90 Level Four Step 1....................................................................................................................... 575.60 Step 2....................................................................................................................... 583.90 Level Five Step 1....................................................................................................................... 598.60 Level Six Leave reserved

Note 1: The rates of pay in this Award are intended to have effect from 1 September 2003 and include the arbitrated wage adjustment payable under the 1 September 2003 Declaration of General Ruling and earlier Safety Net Adjustments. (Disputed cases are to be referred to the Vice President.) This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed by the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, Award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under the previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments. Overaward Payment ­ `Overaward' payment is defined as the amount in rates of pay which an Employee would receive in excess of the minimum award wage as prescribed in this Award for the classification in which such Employee is engaged which applied immediately prior to the date of operation of this Award: Provided that this definition shall exclude overtime, shift allowances, penalty rates, expense related allowances, industry allowances, disability allowances, vacation allowances, special rates or allowances, responsibility allowances, or any other ancillary payments of a like nature described by this Award. 5.2.2 5.3 5.3.1 The ordinary hourly rate of pay is determined by dividing the appropriate weekly rate prescribed by 38. Junior employees The minimum rates of wages for junior Employees shall be the undermentioned percentages of the appropriate adult level/step rate for the work performed: Percentage of Adult Rate Under 18 years of age ............................................................................................... 65% 18 and under 19 years of age .................................................................................... 75% Thereafter ................................................................................................................. 100% Junior rates shall be calculated in multiples of 10 cents with any result of 5 cents or more being taken to the next highest 10 cent multiple. 5.3.2 Proportion of juniors

The proportion of junior Employees to adult Employees employed shall be a minimum of one junior to one adult Employee. 5.4 Payment of wages

All wages shall be paid in full each fortnight by electronic funds transfer (EFT) directly into the Employee's account in any financial institution nominated by the Employee, which has that facility without cost to the Employee or by cheque or cash as arranged at the time of engagement. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

700

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Casual work may by mutual consent be paid for as above or at the termination of each engagement: Provided that payment may be made by EFT directly into the Employee's account in any financial institution nominated by the Employee, which has that facility without cost to the Employee. When notice of termination of employment has been given by an Employee or an Employee's services have been terminated by an employer, payment of all wages and other monies due shall be made at the Employee's normal place of employment prior to the Employee leaving such place of employment or by EFT into the Employee's account. If an Employee is kept waiting for more than 15 minutes after termination of employment such Employee shall be paid overtime rates for waiting time: Provided where an Employee is dismissed for misconduct such Employee shall be paid within 24 hours, week-ends and public holidays excluded, from the time of dismissal. 5.5 Progression/Re-classification

Progression through Levels One to Three inclusive shall be automatic subject to the Employee having successfully completed the appropriate training modules associated with the functions encompassed by the higher level. An Employee failing to obtain the necessary standard of training, experience or skill necessary to advance to Level Two or Three may seek the assistance of The Diversional Therapy Association of Queensland Inc. to negotiate a further training period. Progression of Employees to, and beyond Level Four and through levels shall be subject to negotiation and assessment which shall include qualifications, additional work experience, length of service and aptitude. 5.6 Savings Clause

No Employee shall suffer a reduction in wages and conditions (including overaward) as a result of the introduction of this Award. 5.7 5.7.1 Allowances Divisional and district allowances

Adult Employees in the Mackay Division shall be paid 90c per week and adult Employees in the Eastern Division of the Northern Division shall be paid $1.05 per week in addition to the rates prescribed in clause 5.2. Adult Employees in the Western District of the Southern Division shall be paid $1.05 per week and adult Employees in the Western District of the Northern Division shall be paid $2.20 per week in addition to the rates prescribed for the corresponding Eastern District. 5.7.2 Late work allowance

All Employees who work ordinary hours between 6.00 p.m. and 6.00 a.m. shall be paid $0.94 per hour so worked. This allowance shall not be paid when an Employee is entitled to receive the Saturday/Sunday rates prescribed by clause 5.7.8. 5.7.3 Uniform and laundry allowance (a) Where Employees are required to wear a uniform or any other distinctive type of clothing, such uniform or clothing shall be supplied, maintained, and laundered at the employer's expense, and shall be the property of such employer. (b) Where uniforms or clothing are not supplied or laundered by the employer as required by clause 5.7.3 (a), the following allowances shall be paid: (i) Employees who supply their own uniforms or clothing shall receive an allowance at the rate of $159.00 per annum, which shall be paid on a pro rata basis each pay day; (ii) Employees required to launder their own uniforms or clothing shall be paid $3.70 per fortnight. 5.7.4 "HR"or "LR" Class driver's license

Where an employer requires an Employee to hold a "HR" or "LR" Class driver's license the Employee shall be paid, in addition to the rates of wages prescribed in clause 5.2.1, $29.60 per fortnight. 5.7.5 Casual employees

A Casual Employee shall be paid the hourly rate prescribed by the Award plus an additional 23 % per hour and shall be further entitled to a pro rata payment of any applicable allowances. 5.7.6 Meal allowance

Where an Employee who works sufficient overtime to accrue a meal break as provided in clauses 6.3.2 and 6.3.3, such Employee shall be paid the sum of $7.50 as meal money or as an alternative, the employer shall supply free to such Employee a suitable meal in respect of each meal break provided for herein. 5.7.7 Supervisory allowance

Employees, appointed as supervisors shall be paid, in addition to the prescribed rates, the amount of $0.41 per hour. 5.7.8 Saturday and Sunday rates

All time worked by Employees within their ordinary working hours as prescribed in clauses 6.1 and 6.2, between midnight Friday and midnight Sunday, shall be paid for at the rate of time and a-half: Provided that in the case of a Casual Employee, the additional half time payment shall be exclusive of the casual loading.

24 October, 2003

5.7.9 On-call duty allowance

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

701

(a) Where an Employee is required to sleep overnight on the employer's premises for a period not exceeding 8 hours, an allowance of $7.00 shall be paid in respect of each such instance in addition to any other payments. (b) An Employee on-call shall be provided with at least 4 hours work or payment therefore, for each instance where the Employee is required to remain on-call. Such work shall be performed immediately before or immediately after the on-call period. Any payment prescribed by clause 5.7.9 shall be in addition to any other payments prescribed under this Award: Provided that by agreement between the employer and Employee a flat allowance of $25.00 per night can be paid in lieu of any payments prescribed in clauses 5.7.9 (a) and 5.7.9 (b): Provided further that by agreement between the employer and Employee, the provisions of meals and accommodation free of charge may be substituted in lieu of any payments prescribed in clause 5.7.9. 5.7.10 Transport

Where an Employee (other than a casual) is required to use their own transport, the Employee shall be paid a vehicle allowance of $0.2433 per kilometre. 5.7.11 Travelling

An Employee who travels on official business shall be reimbursed reasonable expenses for accommodation, food, conference fees, etc. and incidental expenses. Such reimbursement shall be by mutual agreement between the employer and Employee and agreed to prior to the expense/s being incurred. 5.8 Superannuation

In addition to the rates of pay prescribed by clauses 5.2 and 5.3 of this Award, all Employees shall be entitled to occupational superannuation provisions as prescribed in clause 5.9. 5.8.1 Definitions (a) "The Fund" means SUNSUPER as well as any other occupational superannuation scheme offered by the employer, and approved in accordance with the Commonwealth Operational Standards for Occupational Superannuation Funds. (b) "Contributory wage" means: ­ the ordinary weekly rate of pay applicable to each Employee's level/step; or ­ the weekly rate of pay prescribed by clauses 5.2 and 5.3; or ­ the hourly rate of pay for part-time Employees as prescribed by clause 4.3.3; or ­ the hourly rate of pay for Casual Employees as prescribed by clause 5.8.6. (c) "Eligible Employee" means any Employee who has been employed by the employer during 4 consecutive weeks. On completion of the qualifying period, superannuation contributions shall be made retrospectively to the commencement of that period. (d) The employer and Employee may agree to have the Employee's superannuation contributions made to an approved superannuation fund, other than those specified in clause 5.9: (i) (ii) (iii) Any such agreement must be recorded in writing and signed by the employer and Employee and kept on the Employee's file. A person must not coerce someone else to make an agreement. Such agreement, where made, will continue until such time as the employer and Employee agree otherwise, and shall be made available to relevant persons for the purposes of sections 371 and 373 (inspection of time and wage records) of the Act. Any dispute arising out of this process will be handled in accordance with the grievance and dispute settling procedure as contained in clause 3.2.

(iv)

5.8.2

Freedom of choice

Each Employee shall be given equal access to information regarding SUNSUPER as well as such other approved occupational superannuation schemes made available by the employer for the Employee's consideration, in order that the Employee is able to make an informed choice as to which occupational superannuation scheme the Employee wishes the employer to contribute the amount specified in clause 5.8.3. 5.8.3 Contributions

The employer shall contribute on behalf of each eligible Employee as defined in clause 5.8.1(c) an amount calculated at 3% of the Employee's contributory wage, into an approved occupational superannuation fund, as defined in clause 5.8.1: Provided that in any instance where the amount as calculated above represents less than $5.00 per fortnight no contribution will be payable by the employer: Provided further that the employer shall not be required to pay superannuation contributions on behalf of any eligible Employee during any unpaid absences except in the case of absence on workers' compensation. In the case of workers' compensation the employer shall contribute whenever the Employee is receiving by way of workers' compensation any amount of money not less than the Award rate of pay.

C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

702

5.8.4

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

The obligation upon an employer to make occupational superannuation contributions under clause 5.9 shall be in addition to, and distinguishable from, any contributions being made by such an employer in accordance with the rules of any other particular scheme, prior to the commencement of this Award. Cessation of contributions

5.8.5

The employer shall not be required to make any further contributions on behalf of any Employee after the end of the last day from which the Employee's resignation or dismissal becomes effective. PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEK-END WORK 6.1 6.1.1 Hours of work Operation of 38 hour week (a) Subject to clause 6.1.2 (Implementation of a 38 hour week), and subject to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week, to be worked on one of the following bases: (i) 38 hours within a cycle not exceeding 7 consecutive days; or (ii) 76 hours within a work cycle not exceeding 14 consecutive days; or (iii) 114 hours within a work cycle not exceeding 21 consecutive days; or (iv) 152 hours within a work cycle not exceeding 28 days. (b) The ordinary hours of work shall not exceed 10 hours per day. (c) Where necessary, Employees shall commence their ordinary hours and breaks at different times to ensure continuity of service. (d) The ordinary starting and finishing times may be altered to suit geographic, safety, climatic or traffic conditions by the employer with the agreement of the majority of Employees concerned: Provided that any such altered starting and finishing time will not invoke any penalty payment that would not be payable if the Award spread of hours was observed. (e) Employees are required to observe the nominated starting and finishing times for the work day, including designated breaks to maximise available working time. Preparation for work and cleaning up of the Employee's person shall be in the Employee's time. (f) Where a rostered day falls on a public holiday, the following day may be taken where practicable in lieu thereof or the Employee and the employer may agree to an alternative day off duty as substitution. (g) Pay averaging Employees shall be entitled to a week's wages in accordance with clauses 5.2 and 5.3 for each week of the cycle. (h) The entitlement to a rostered day off on full pay shall be subject to the following: (i) Each day of paid leave taken (not including annual leave, long service leave) and any public holiday occurring during any cycle of 4 weeks shall be regarded as a day worked for accrual purposes. (ii) An Employee who has not worked a complete 4 week cycle in order to accrue a rostered day off shall be paid a pro rata amount for credits accrued for each day worked in such cycle payable for the rostered day off (i.e. an amount of 24 minutes for each 8 hour day worked or 2 hours for each 40 hours worked). For the purposes of clause 6.1.1(h), "worked" includes paid leave referred to in clause 6.1.1(h)(i). (i) Sickness on a rostered day off which has resulted from the 19 days month work cycle Where an Employee is sick or injured on their rostered day off the Employee shall not be entitled to sick pay nor shall their sick pay entitlement be reduced as a result of the sickness or injury on that day. (j) Payment of wages In the event that an Employee by virtue of the arrangement of the Employee's ordinary working hours is rostered off duty on a day which coincides with pay day, such Employee shall be paid no later than the working day immediately following such pay day. 6.1.2 Implementation of a 38 hour week (a) The 38 hour week shall be implemented on one of the following bases, most suitable to each location, after consultation with and giving reasonable consideration to the wishes of the Employees concerned: (i) by Employees working less than 8 ordinary hours each day; or (ii) by Employees working less than 8 ordinary hours on one or more days each work cycle; or (iii) by fixing one or more work days on which all Employees will be off during a particular work cycle; or (iv) by rostering Employees off on various days of the week during a particular work cycle, so that each Employee has one work day off during that cycle. (b) Subject to clause 6.1.2, Employees may agree that the ordinary hours of work are to exceed 8 on any day, thus enabling more than one work day to

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

703

be taken off during a particular work cycle. (c) Notwithstanding any other provision in clause 6.1.2, where the arrangement of ordinary hours of work provides for a rostered day off, the employer and the Employee concerned, may agree to accrue up to a maximum of 5 rostered days off. Where such agreement has been reached, the accrued rostered days off shall be taken within 12 calendar months of the date on which the first rostered day off was accrued. Consent to accrue rostered days off shall not be unreasonably withheld by either party. (d) Different methods of implementation of the 38 hour week may apply to individual Employees, groups or sections of Employees in each location concerned. 6.1.3 Procedure for discussions ­ 38 hour week (a) The employer and all Employees concerned in each establishment shall consult over the most appropriate means of implementing and working a 38 hour week. (b) The object of such consultation shall be to reach agreement on the method of implementing and working the 38 hour week in accordance with clause 6.1. (c) The outcome of such consultation shall be recorded in writing. (d) In cases where agreement cannot be reached as a result of consultation between the parties, either party may request the assistance or advice of their relevant Employee or employer organisation. (e) Notwithstanding the consultative procedures outlined above, and notwithstanding any lack of agreement by Employees, the employer shall have the right to make the final determination as to the method by which the 38 hour week is implemented from time to time. (f) After implementation of the 38 hour week, upon giving 7 days' notice, or such shorter period as may be mutually agreed upon, the method of working the 38 hour week may be altered, from time to time, following negotiations between the employer and Employees concerned, utilising the foregoing provisions of clause 6.1.3, including 6.1.3(e). 6.1.4 Broken shifts may be permitted and shall only be worked where there is mutual agreement between the employer and the Employee. When such shift is rostered a total of 8 hours only shall be worked and each portion of the shift shall be of 4 hours' duration and shall be worked within a spread of 12 hours. A roster setting out the Employee's days off duty and starting and finishing times on such days shall be displayed in a place conveniently accessible to Employees at least 3 days before the commencement of each week. Rosters shall provide a minimum of 10 hours break between the finish of ordinary hours on one day and the commencement of ordinary hours on the following day. Other hours by agreement

6.15 6.1.6 6.2

Notwithstanding the provisions of clause 6.1, Employees may be required to work in accordance with such other hours of work as are mutually agreed upon, in writing, between the employer and the Employee. 6.3 6.3.1 Overtime (a) All time worked in excess of the ordinary working hours or outside of the spread of hours shall be deemed to be overtime and, except in the case of shift workers, shall be paid for at the rate of time and a-half for the first 3 hours on any one day and double time thereafter. All overtime worked by shift workers shall be paid for at the rate of double time. Double time shall be paid for all work performed outside of the ordinary working hours or outside of the spread of hours on a Sunday or during a meal period. Such payments shall be in addition to the actual or ordinary weekly wage paid to each Employee. (b) Subject to mutual agreement in writing between the employer and the Employee, an Employee may be compensated for working overtime in lieu of payment by being allowed time off at the following rate: (i) the first 3 hours of overtime in any one week may be taken at the rate of time worked for time taken; (ii) any period in excess of 3 hours overtime in any one week may be taken off at a rate equivalent to the prescribed overtime penalty. Should overtime in excess of 3 hours be consecutively worked on any one engagement, such excess overtime shall be taken or paid at the rate of double time: Provided that an Employee shall be required to clear accumulated time off in lieu within 3 months of the overtime being performed. If the employer is unable to release the Employee accordingly, then at the time of termination for any reason by either party, the Employee shall be paid for the overtime worked at the appropriate overtime rate. (c) Subject to prior approval by the employer, an Employee may be granted time off notwithstanding that such time has not been worked as overtime in accordance with clause 6.3.1(a). The employer shall pay the Employee's wages as if the Employee worked ordinary hours during such time off: Provided that the period of time off shall be made up in accordance with clause 6.3.1 through authorised overtime worked, within 4 weeks of the time off being taken, or the Employee's pay shall be reduced by the amount of such time off taken. 6.3.2 Any Employee who is required to begin working 2 hours or more prior to the ordinary starting time shall be allowed 30 minutes for a meal at or before the normal starting time, for which no deduction of pay shall be made. In the event of an Employee beginning at work prior to the usual starting time without taking the meal break of 30 minutes and continuing working, the Employee shall be regarded as having worked thirty minutes more than the time worked and shall be paid for an extra 30 minutes at the rate of double time. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

704

6.3.3

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Any Employee who is required to continue working for more than one hour after the ordinary ceasing time shall be allowed 30 minutes for a meal after the first hour worked. A further 45 minute meal break after each additional further 4 hours worked shall be allowed, for which no deduction of pay shall be made. In the event of an Employee remaining at work after the usual ceasing time without taking the initial meal break of 30 minutes and continuing at work for a period of 3 hours or more, the Employee shall be regarded as having worked 30 minutes more than the time worked and shall be paid for an extra 30 minutes at the rate of double time.

6.3.4

Meal allowance ­ Where an Employee who works sufficient overtime to accrue a meal break as provided in clauses 6.3.2 and 6.3.3, such Employee shall be paid the sum of $7.50 as meal money or as an alternative, the employer shall supply free to such Employee a suitable meal in respect of each meal break. Where an Employee has been previously notified of the requirement to work overtime and such overtime is not then worked, in the event of the Employee having provided a meal as a result thereof, the Employee shall be paid the $7.50 meal allowance as provided in clause 6.3.4 notwithstanding the fact that no such overtime is worked. Any Employee recalled to work overtime after having left the employer's premises shall be paid for not less than 2 hours at overtime rates in respect of each such recall: Provided that the provisions of clause 6.3.6 shall not apply where such overtime is worked continuously with ordinary hours of work.

6.3.5

6.3.6

6.3.7 6.3.8

When an Employee having worked overtime, finishes work at a time when the usual means of transport is not available, the employer shall provide equivalent safe alternate transport, without cost, to the Employee's residence. An Employee who works so much overtime between the termination of ordinary work on one day and the commencement of work on the next day, that the Employee has not had at least 10 consecutive hours off duty between those times shall, subject to clause 6.3.8, be released after completion of such overtime until the Employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instructions of the employer such Employee resumes or continues work without having had such 10 consecutive hours off duty, the Employee shall be paid double rates until released from duty for such period and the Employee shall be entitled to be absent until receiving 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. Meal breaks Full-time Employees shall be entitled to a daily meal break of not less than 30 minutes nor more than one hour's duration, to be taken between 4 and 6 hours after the commencement of work, or as at any other time as has been mutually agreed between the employer and the majority of Employees. Part-time Employees and Casual Employees who are engaged to work for more than 5 hours a day shall be entitled to a meal break of not less than 30 minutes nor more than one hour's duration. All work performed during a recognised meal break shall be deemed overtime and shall be paid for at the rate of double time. Such rate shall be continued until a break of the usual duration for a meal is allowed. Rest pauses Full-time Employees shall receive a rest pause of 10 minutes' duration in the first half and the second half of each day worked. Part-time and casual employees

6.4 6.4.1

6.4.2 6.4.3 6.5 6.5.1 6.5.2

Part-time and Casual Employees who work a minimum of 4 consecutive hours, but less than 8 consecutive ordinary hours on any one day shall receive a rest pause of 10 minutes' duration. Employees who work a minimum of 8 consecutive ordinary hours (excluding the meal break) on any one day shall receive a rest pause of 10 minutes' duration in the first half and the second half of the period worked. Rest pauses shall be taken in the employer's time and shall be taken at times to suit the convenience of the employer and so as not to interfere with the continuity of work where continuity, in the opinion of the employer is necessary: Provided that where, at the employer's discretion, having regard to the Employee's health and welfare as well as taking into account peak periods of work load, one rest pause of 20 minutes in the first part of the working day may be substituted. PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 7.1 7.1.1 Annual leave Every full-time and part-time Employee, shall at the end of each calendar year of employment, be entitled to annual leave on full pay as follows: (a) Not less than 190 hours if regularly rostered to work on public holidays; (b) Not less than 152 hours in any other case. 7.1.2 7.1.3 An Employee whose employment is terminated prior to the expiration of a full year of employment shall be entitled to a pro rata equivalent of annual leave as provided for in clause 7.1.1. Notice of annual leave Unless otherwise agreed between the employer and Employee, at least 4 weeks' notice prior to the time which the annual leave is to commence, will be given. 7.1.4 Leave may be taken in parts Annual leave by mutual agreement between the employer and Employee may be taken in one or more parts, provided that 38 hours' entitlement shall be available in single day periods.

24 October, 2003

7.1.5

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

705

Payment of wages when employee is proceeding to annual leave (a) Where an Employee is proceeding to annual leave of more than 38 hours' duration, after completing work on a Saturday, Sunday or public holiday, the Employee's entitlements shall be made up to, and include, annual leave entitlements and payments for all work completed on the last week day of duty. (b) Employees proceeding to annual leave on a week day (public holidays excluded) shall have their entitlements made up to, and include, payment for all work completed on the day of departure. (c) Payment for any work withheld will be available to the Employee, no later than the conclusion of the first day of work after returning from leave. Where pay is customarily made by electronic transfer, any adjustment that is necessary will be made at the next regular pay transfer.

7.1.6

Calculation of annual leave pay Annual leave pay for full-time and part-time Employees shall be calculated as follows: (a) The Employee's ordinary wage rate, as prescribed in clause 5.2 and 5.3, for the period of the annual leave (excluding late work premiums and week-end penalty rates); plus (b) allowance/s, if applicable; plus (c) uniform allowance, if applicable; together with a further 17.5% of the amount referred to in clauses 7.1.6 (a) and 7.1.6(b). The 17.5% additional payment shall relate to: (i) 152 hours in the case of Employees entitled to 190 hours annual leave, as set out in clause 7.1.1(a); or (ii) 152 hours in the case of other Employees. A part-time Employee shall be entitled to pro rata annual leave on the same basis as full-time Employees. Where a public holiday occurs during a period of the Employee's annual leave, there shall be added to the Employee's annual leave an extra day for each such day so occurring.

7.1.7

Accrual of annual leave Should an Employee have not taken annual leave as it falls due from time to time, such annual leave, by mutual arrangement, may be accrued for a period not exceeding 2 years. Leave accrued and not taken within a 2 year period will be deemed to have been taken.

7.2 7.2.1

Sick leave Entitlement (a) Every Employee, except casuals, pieceworkers, and school-based apprentices and trainees, is entitled to 60.8 hours' sick leave for each completed year of their employment with their employer. (b) This entitlement will accrue at the rate of 7.6 hours' sick leave after each 6 weeks of employment. (c) Payment for sick leave will be made based on the ordinary number of hours that would have been worked by the Employee if the Employee were not absent on sick leave. (d) Sick leave may be taken for part of a day. (e) Sick leave shall be cumulative, but unless the employer and Employee otherwise agree, no Employee shall be entitled to receive, and no employer shall be bound to make, payment for more than 13 weeks' absence from work through illness in any one year. (f) Part-time Employees accrue sick leave on a proportional basis.

7.2.2

Employee must give notice

The payment of sick leave is subject to the Employee promptly advising the employer of the Employee's absence and its expected duration. 7.2.3 Evidence supporting a claim

When the Employee's absence is for more than 2 days the Employee is required to give the employer a doctor's certificate or other reasonably acceptable evidence about the nature and approximate duration of the illness. 7.2.4 Accumulated sick leave An Employee's accumulated sick leave entitlements are preserved when: (a) The Employee is absent from work on unpaid leave granted by the employer; (b) The employer or Employee terminates the Employee's employment and the Employee is re-employed within 3 months; or (c) The Employee's employment is terminated because of illness or injury and the Employee is re-employed by the same employer without having been employed in the interim. The Employee accumulates sick leave entitlements whilst absent from work on paid leave granted by the employer. 7.2.5 Workers' compensation

Where an Employee is in receipt of workers' compensation, the Employee is not entitled to payment of sick leave. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

706

7.3 7.3.1 Bereavement leave

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Full-time and part-time Employees shall on the death of a member of their immediate family or household in Australia be entitled to paid bereavement leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the Employee in 2 ordinary days of work. Proof of such death is to be furnished by the Employee to the satisfaction of the employer. Long-term casual employees (a) A long-term Casual Employee is entitled to at least 2 days' unpaid bereavement leave on the death of a member of the person's immediate family or household in Australia. (b) A "long-term Casual Employee" is a Casual Employee engaged by a particular employer, on a regular and systematic basis, for several periods of employment during a period of at least 1 year immediately before the Employee seeks to access an entitlement under clause 7.3.2.

7.3.2

7.3.3

"Immediate family" includes: (a) a spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the Employee; and (b) child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent, grandparent, grandchild or sibling of the Employee or spouse of the Employee.

7.3.4 7.3.5

An Employee with the consent of the employer, may apply for unpaid leave when a member of the Employee's immediate family or household in Australia dies and the period of bereavement leave entitlement provided in clause 7.3.1 or 7.3.2 is insufficient. The Employee shall be entitled to a maximum of 2 days' leave without loss of pay on each occasion and on the production of satisfactory evidence of the death outside Australia of an Employee's spouse, father or mother, and where such Employee travels outside of Australia to attend the funeral. Long service leave

7.4

All Employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2, Part 3, sections 42-58 of the Act as amended from time to time. 7.5 Family leave

The provisions of the Family Leave Award apply to and are deemed to form part of this Award. 7.5.1 It is to be noted that: (a) part-time work can be performed by agreement in the circumstances specified in the Family Leave Award; (b) a copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act. 7.5.2 The Family Leave Award also provides for the terms and conditions of leave associated with: (a) Maternity leave (b) Parental leave (c) Adoption leave (d) Special responsibility leave for the care and support of the Employee's immediate family or household. 7.6 7.6.1 Public holidays All work completed by a full-time or part-time Employee on: ­ ­ ­ ­ ­ ­ ­ ­ ­ the 1st January; the 26th January; Good Friday; Easter Monday; the 25th April (Anzac Day); The Birthday of the Sovereign; Christmas Day; Boxing Day; or any day appointed under the Holidays Act 1983, to be kept in place of any such holiday shall be paid for at the rate of time and a-half with a minimum ­payment of 4 hours.

7.6.2

Labour Day

All full-time and part-time Employees shall be entitled to be paid a full day's wage for Labour Day (the first Monday in May or other day appointed under the Holidays Act 1983, to be kept in place of that day) irrespective of the fact that an Employee may not work on that day. However, should an Employee work on that day, in addition to a full day's wage, the Employee shall be paid for all time worked at the rate of time and a-half, with a minimum payment of 4 hours. Should Labour Day occur during an Employee's period of annual leave, another day on full pay, shall be added to the Employee's annual leave. Should Labour Day occur on an Employee's rostered day off duty, the Employee shall be paid an additional day's pay, or shall be granted a day's leave on full pay, at a time mutually arranged between the employer and Employee.

24 October, 2003

7.6.3 Show day

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

707

All work completed by an Employee in a district specified from time to time by the Minister by notification published in the Gazette on the day appointed under the Holidays Act 1983 to be kept as a holiday in relation to the annual agricultural, horticultural, or industrial show held at the principal city or town, as specified in such notification of such district shall be paid for at the rate of double time and a-half with a minimum of 4 hours: Provided that where the show is of more than one day's duration the Employees may agree with the employer to substitute another day during the show period in lieu of the day so appointed, in which case the provisions of clause 7.6.3 shall apply to the day so substituted. Should show day occur during an Employee's period of annual leave, another day on full pay, shall be added to the Employee's annual leave. Should show day occur on an Employee's rostered day off duty, the Employee shall be paid an additional day's pay, or shall be granted a day's leave on full pay, at a time mutually arranged between the employer and Employee. 7.6.4 Easter Saturday

A full-time or part-time Employee whose ordinary hours of work are regularly worked between Monday to Friday inclusive, shall not be entitled to extra payments or benefits provided in clause 7.6. Should Easter Saturday occur during a full-time or part-time Employee's period of annual leave and the Employee has been regularly rostered to work over a 14 day period, including Saturdays, the Employee shall have another day, on full pay, added to the Employee's annual leave period. Should Easter Saturday occur on a full-time or part-time Employee's rostered day-off duty, and the Employee has been regularly rostered to work over a 14 day roster period, including Saturdays, the Employee shall be paid an additional day's pay, or shall be granted a day's leave, on full pay, at a time mutually arranged between the employer and Employee. However, all full-time and part-time Employees who are regularly rostered to work over a 14 day roster period, including Saturdays, shall be paid at the rate of double time and a-half, with a minimum payment for 4 hours' work. 7.6.5 General

Casual Employees shall have no entitlement to pay or leave for public holidays, however all work completed by a Casual Employee shall be paid for at the rate of double-time and a-half. A full-time or part-time Employee who is rostered to work on a day of the week on which a public holiday falls, and who is not required to work on that day, shall be paid for the hours which would have otherwise have been worked on that day. 7.6.6 Equivalent time off in lieu

Full-time and part-time Employees who work on a prescribed public holiday may be in agreement to perform such work at ordinary rates provided that the Employee is provided with equivalent paid time off equivalent to one day and a-half at a mutually convenient time, or added to the Employee's annual leave. PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK No provisions inserted in this Award relevant to this Part. PART 9 ­ TRAINING AND RELATED MATTERS 9.1 Commitment to training and careers

The parties acknowledge that various degrees of training are provided to Employees in the industry, both by internal on-the-job training and through external training providers. The parties commit themselves to continuing such training as is regarded by them as appropriate and improving training in such cases where this is required. It is agreed that the parties will co-operate in ensuring that appropriate training is available for all Employees in this industry and the parties agree to cooperate in encouraging both employers and Employees to avail themselves of the benefits from such training. The parties agree to continue discussions on issues raised in relation to training. The parties are committed to encouraging young people to view this industry as one which has the capacity to provide them with an interesting career. PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES No provisions inserted in this Award relevant to this Part. PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Preamble Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are advised to refer to sections 366, 372 and 373 of the Act as amended from time to time. 11.1 11.1.1 Right of entry Authorised industrial officer (a) An authorised industrial officer is any Union official holding a current authority issued by the Industrial Registrar. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

708

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

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

24 October, 2003

11.1.2

Entry procedure (a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as: (i) the authorised industrial officer alerts the employer or other person in charge of the workplace to their presence; and (ii) shows their authorisation upon request: (b) Clause 11.1.2(a) does not apply if the authorised industrial officer establishes that the employer or other person in charge is absent. (c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry. (d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a trespasser.

11.1.3

Inspection of records (a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act. (b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current Employee except if the Employee: (i) is ineligible to become a member of the Union; or (ii) is a party to a QWA or ancillary document, unless the Employee has given written consent for the records to be inspected; or (iii) has made a written request to the employer that they do not want their record inspected. (c) The authorised industrial officer may make a copy of the record, but cannot require any help from the employer. (d) A person must not coerce an Employee or prospective Employee into consenting, or refusing to consent, to the inspection of their records by an authorised industrial officer.

11.1.4

Discussions with employees

An authorised industrial officer is entitled to discuss with the employer, or a member or Employee eligible to become a member of the Union: (a) matters under the Act during working or non-working time; and (b) any other matter with a member or Employee eligible to become a member of the Union, during non-working time. 11.1.5 Conduct

An officer must not unreasonably interfere with the performance of work in exercising a right of entry. 11.2 11.2.1 Time and wages record An employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period for each Employee, including apprentices and trainees: (a) the Employee's award classification; (b) the employer's full name; (c) the name of the Award under which the Employee is working; (d) the number of hours worked by the Employee during each day and week, the times at which the Employee started and stopped work, and details of work breaks including meal breaks; (e) a weekly, daily or hourly wage rate ­ details of the wage rate for each week, day, or hour at which the Employee is paid; (f) the gross and net wages paid to the Employee; (g) details of any deductions made from the wages; and (h) contributions made by the employer to a superannuation fund 11.2.2 The time and wages record must also contain: (a) the Employee's full name and address; (b) the Employee's date of birth; (c) details of sick leave credited or approved, and sick leave payments to the Employee; (d) the date when the Employee became an Employee of the employer; (e) if appropriate, the date when the Employee stopped employment with the employer; and (f) if a Casual Employee's entitlement to long service leave is worked out under section 47 of the Act ­ the total hours, other than overtime, worked by the Employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.

24 October, 2003

11.2.3 11.2.4 11.3

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

709

The employer must keep the record for 6 years. Such records shall be open to inspection during the employer's business hours by an inspector of the Department of Industrial Relations, in accordance with section 371 of the Act; or an authorised industrial officer in accordance with sections 372 and 373 or the Act. Union encouragement

Clause 11.3 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of Policy on Union Encouragement (reported 165 QGIG 221) that encourages an Employee to join and maintain financial membership of the Union. 11.3.1 Documentation to be provided by employer

At the point of engagement, an employer to whom this Award applies shall provide Employees with a document indicating that a Statement of Policy on Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the employer in a place readily accessible by the Employee. The document provided by the employer shall also identify the existence of a union encouragement clause in this Award. 11.3.2 Union delegates

Union delegates and job representatives have a role to play within a workplace. The existence of accredited Union delegates and/or job representatives is encouraged. The employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their duties. 11.3.3 Deduction of union fees

Where arrangements can be entered into, employers are encouraged to provide facilities for the deduction and remittance of Union fees for Employees who signify in writing to their employer, their desire to have such membership fees deducted from their wages. 11.4 Posting of Award

A true copy of this Award shall be exhibited in a conspicuous and convenient place on the premises of the employer so as to be easily read by Employees. 11.5 Reserved matters

It is agreed that the parties to this Award may raise any matter of substantial merit arising from the introduction and implementation of this Award. Dated 9 September 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Operative Date: 6 October 2003

########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 ­ s. 130 ­ award review VISION QUEENSLAND AWARD ­ STATE (No. AR149 of 2002) DEPUTY PRESIDENT SWAN COMMISSIONERS EDWARDS AND BECHLY AWARD REVIEW After reviewing the above Award as required by s. 130 of the Industrial Relations Act 1999, this Commission orders that the Award be repealed and the following Award be made, as from 29 September 2003. ROYAL BLIND FOUNDATION AWARD ­ STATE 2003 PART 1 ­ APPLICATION AND OPERATION 1.1 Title 29 July 2003

This Award is known as the Royal Blind Foundation Award ­ State 2003. 1.2 Arrangement Clause No.

Subject Matter PART 1 ­ APPLICATION AND OPERATION

Title.............................................................................................................................................................................................................................1.1 Arrangement...............................................................................................................................................................................................................1.2 Award coverage..........................................................................................................................................................................................................1.3 Date of operation ........................................................................................................................................................................................................1.4 C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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Subject Matter

Clause No.

Parties bound ..............................................................................................................................................................................................................1.5 Definitions ..................................................................................................................................................................................................................1.6 PART 2 ­ FLEXIBILITY Enterprise flexibility...................................................................................................................................................................................................2.1 PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION Consultative arrangements .........................................................................................................................................................................................3.1 Grievance and dispute settling procedure ..................................................................................................................................................................3.2 PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS Employment categories ..............................................................................................................................................................................................4.1 Part-time employment ................................................................................................................................................................................................4.2 Casual employment ....................................................................................................................................................................................................4.3 Trainees ......................................................................................................................................................................................................................4.4 Probation.....................................................................................................................................................................................................................4.5 Incidental and peripheral tasks...................................................................................................................................................................................4.6 Temporary suspension for misconduct ......................................................................................................................................................................4.7 Termination of employment.......................................................................................................................................................................................4.8 Introduction of changes..............................................................................................................................................................................................4.9 Redundancy ................................................................................................................................................................................................................4.10 Continuity of service ­ transfer of calling .................................................................................................................................................................4.11 Anti-discrimination ....................................................................................................................................................................................................4.12 PART 5 ­ WAGES AND WAGE RELATED MATTERS Characteristics of classification levels .......................................................................................................................................................................5.1 Wages .........................................................................................................................................................................................................................5.2 Occupational superannuation .....................................................................................................................................................................................5.3 PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK Hours of work.............................................................................................................................................................................................................6.1 Meal breaks ................................................................................................................................................................................................................6.2 Rest pauses .................................................................................................................................................................................................................6.3 Overtime .....................................................................................................................................................................................................................6.4 PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS Annual leave...............................................................................................................................................................................................................7.1 Sick leave ...................................................................................................................................................................................................................7.2 Long service leave......................................................................................................................................................................................................7.3 Family leave ...............................................................................................................................................................................................................7.4 Bereavement leave .....................................................................................................................................................................................................7.5 Special leave...............................................................................................................................................................................................................7.6 Public holidays ...........................................................................................................................................................................................................7.7 PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK No provisions inserted in this Award relevant to this Part. PART 9 ­ TRAINING AND RELATED MATTERS Training ......................................................................................................................................................................................................................9.1 PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES Protective equipment..................................................................................................................................................................................................10.1 PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Right of entry..............................................................................................................................................................................................................11.1 Time and wages record ..............................................................................................................................................................................................11.2 Union encouragement ................................................................................................................................................................................................11.3 Posting of Award........................................................................................................................................................................................................11.4 1.3 Award coverage This Award shall apply to: (a) Royal Blind Foundation; and (b) Employees employed by Royal Blind Foundation whose rates of pay are prescribed by this Award.

24 October, 2003

1.4 Date of operation

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

711

This Award takes effect from 29 September 2003. 1.5 Parties bound

This Award is legally binding upon the Employees as prescribed by clause 1.3 and their Employer, and the Unions and their members. 1.6 1.6.1 1.6.2 1.6.3 1.6.4 1.6.5 1.6.6 1.6.7 1.6.8 1.6.9 Definitions The "Act" means the Industrial Relations Act 1999 as amended or replaced from time to time. "Chief Executive" means the Chief Executive of Royal Blind Foundation. "Commission" means the Queensland Industrial Relations Commission. "Double Rates" means one time in addition to the prescribed rate of pay. "Employee" for the purposes of this Award means a person employed by Royal Blind Foundation whose rates of pay are prescribed by this Award. "Employer" means Royal Blind Foundation. "Manager" means the Manager of Queensland Blind Industrial Centre Industries. "Union" means the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch or The Queensland Public Sector Union of Employees in accordance with the eligibility rules of the respective Unions. "Union Representative" means a member of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch as nominated by the Secretary of that Union or a member of the State Public Sector Union of Employees as nominated by the General Secretary of that Union as the case may be.

PART 2 ­ FLEXIBILITY 2.1 2.1.1 Enterprise flexibility As part of a process of improvement in productivity and efficiency, discussion should take place at each enterprise to provide more flexible working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace. The consultative processes established in an enterprise in accordance with clause 2.1 may provide an appropriate mechanism for consideration of matters relevant to clause 2.1.1. Union delegates at the place of work may be involved in such discussions. Any proposed genuine agreement reached between an Employer and employee/s in an enterprise is contingent upon the agreement being submitted to the Commission in accordance with Chapter 6 of the Act and is to have no force or effect until approval is given.

2.1.2 2.1.3

PART 3 ­ COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION 3.1 Consultative arrangements

Wherever facilitative provisions appear in this Award which allow for determination of the conditions of employment by agreement between the Employer and the Union or the Employer and the majority of employees affected, the following procedures shall apply: 3.1.1 3.1.2 3.1.3 3.1.4 3.1.5 3.1.6 3.1.7 3.1.8 3.2 3.2.1 3.2.2 3.2.3 Facilitative provisions can be negotiated between management and employees who are directly affected by such proposals or between management and the Union depending upon the particular provisions. Employees may be represented by their local Union representation and shall have the right to be represented by their local Union official/s. Facilitative provisions can only be implemented by agreement. In determining the outcome from facilitative provisions, neither party should unreasonably withhold agreement. Agreement is defined as obtaining consent of greater than 50% of employees directly affected or of the Union depending upon the particular provisions. Where a provision refers to agreement by the majority of employees affected, all employees directly affected shall be consulted as a group. Any agreement reached must be documented, and shall incorporate a review period. Where the agreement relates to either the working of ordinary hours on other than a Monday to Friday basis, the introduction of shift work or changes to a shift roster, the relevant Union/s is/are to be notified in writing at least one week in advance of the implementation date. Grievance and dispute settling procedure The objective of the procedures are to promote the prompt resolution of grievances by consultation, co-operation and discussion; to reduce the level of disputation; and to promote efficiency, effectiveness and equity in the workplace. This procedure applies to all industrial matters within the meaning of the Act. Stage 1: In the first instance the employee shall inform the employee's immediate supervisor of the existence of the grievance and they shall attempt to solve the grievance. It is recognised that an employee may exercise the right to consult the employee's Union Representative during the course of Stage 1. It is recognised that the immediate supervisor (of the employee advising of the grievance) may consult the Manager during the course of Stage 1. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

712

3.2.4

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Stage 2: If the grievance remains unresolved, the employee shall refer the grievance to the Chief Executive and the Chief Executive shall consult with the parties. If desired by either party, the matter shall also be notified to the Union. The Chief Executive shall ensure that: (a) the aggrieved employee or the employee's Union Representative has the opportunity to present all aspects of the grievance; (b) the grievance shall be investigated in a thorough, fair and impartial manner. The Chief Executive may appoint another person to investigate the grievance. The Chief Executive may consult with the Union in appointing an investigating officer. The appointed person shall be other than the employee's supervisor. If the matter is notified to the Union, the investigating officer shall consult with the Union during the course of the investigation. The Chief Executive shall advise the employee initiating the grievance, the employee's Union Representative and any other employee directly concerned, of the determinations made as a result of the investigation of the grievance. The Chief Executive may delegate grievance resolution powers under the clause to a nominated representative who may be the Manager provided the Manager was not consulted by the relevant supervisor during the course of Stage 1 of the grievance.

3.2.5

The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise: Stage 1: Discussions should take place between the employee and the employee's supervisor within 24 hours and the procedure shall not extend beyond 7 calendar days. Stage 2: Not to exceed 21 calendar days.

3.2.6 3.2.7

If the grievance is not settled the matter shall be referred to the Commission by either party. Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work. Where the grievance involves allegations of sexual harassment or discrimination, an employee may commence the procedure at Stage 2. Where the grievance involves a review of the employee's productive capacity, pursuant to clause 5.2.1(b) the grievance appeal procedure shall commence at Stage 2.

3.2.8 3.2.9

PART 4 ­ EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS 4.1 4.1.1 Employment categories Employees (other than casual employees) covered by this Award shall be advised in writing of their employment category upon appointment. Employment categories are: (a) Full-time; (b) Part-time (as prescribed in clause 4.2); and (c) Casual (as prescribed in clause 4.3). 4.2 4.2.1 Part-time employment A part-time employee is an employee who: (a) is employed for not less than 4 hours per week and for less than 38 ordinary hours per week; and (b) has regular hours of work; and (c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees covered by this Award: 4.2.2 At the time of engagement, the Employer and the employee will agree in writing on the pattern of work required, including specifying the number of ordinary hours per week, the days on which the work is to be performed and the usual daily starting and finishing times. Any amendment to the normal starting and ceasing times will be by in accordance with clause 6.1. The agreed number of ordinary hours per week will not be amended without the consent of the employee. Any such agreed amendment to the number of weekly hours of work will be recorded in writing. An Employer is required to roster a part-time employee for a minimum of 3 consecutive hours on any day. The spread of ordinary working hours shall be the same as those prescribed for a full-time employee under this Award. Where it is essential for a part-time employee to work beyond the daily approved part-time hours and where the total number of such daily hours worked is less than the ordinary full-time daily hours or not more than 38 hours per week, such additional hours shall be paid for at ordinary rates. Such additional time shall be included in calculating pro rata entitlements. A part-time employee shall be paid at the same hourly rate as a full-time employee for performing duties of the same classification.

4.2.3 4.2.4

4.2.5 4.2.6 4.2.7

4.2.8

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4.2.9

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

713

The public holiday provisions of clause 7.7 shall apply, provided that a part-time employee who usually works on a day of the week on which a public holiday falls, and who is not required to work on that day, shall be paid for the hours which would otherwise have been worked on that day. Casual employment A casual employee is an employee other than a part-time employee who is engaged as such on an hourly basis. Casual employees shall be paid 23% in addition to the ordinary rates of pay specified in clause 5.2. Each engagement shall stand alone, with a minimum payment of 2 hours made in respect to each engagement. Where applicable, a casual employee shall be further entitled to the provisions of overtime, Saturday penalty rates and payment for work performed on public holidays. In respect of Sundays, casual employees shall be paid at the rate of double time and shall not be entitled to an additional payment of the 23% casual loading. The engagement of casual employees shall not be used by the Chief Executive to permanently fill any full-time position. Trainees

4.3 4.3.1 4.3.2

4.3.3 4.4

Employees engaged under the Queensland Blind Industrial Centre Industries' one year traineeship approved under the Training and Employment Act 2000 shall be subject to the same rate of wages and the same productivity assessment arrangements pursuant to clause 5.2 as Production Worker 1 defined in clause 5.1 During the training year an employee engaged under such a traineeship shall be occupying a position entitled "Trainee ­ Industrial Manufacturing". 4.5 4.5.1 Probation The employment of an employee other than a casual employee shall be subject to the completion of a 3 month probationary period with reviews occurring at no more than 4 weekly intervals. The Employer shall ensure that a regular system of appraisal is established which will provide the employee with information on the employee's performance during the period of probation and on appropriate remedial steps to improve performance where such performance is considered unsatisfactory. On completion of the probationary period, the Employer may confirm the employment, terminate the employment, or extend the probation for a further period: Provided that in such cases the Employer may, at any time during the probationary period where the employee's performance or behavior is unsatisfactory, terminate the employment of an employee who is on probation. 4.6 4.6.1 Incidental and peripheral tasks The Employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training and consistent with the classification structure of the Award: Provided that such duties are not designed to promote deskilling. 4.6.2 The Employer may direct an employee to carry out such duties and use such tools and equipment as may be required: Provided that the employee has been properly trained in the use of such tools and equipment. 4.6.3 Any direction issued by the Employer pursuant to clauses 4.6.1 and 4.6.2 shall be consistent with the responsibility to provide a safe and healthy working environment. Temporary suspension for misconduct The Manager may temporarily suspend an employee covered by this Award for a period of up to 24 hours for misconduct being misconduct that is not serious misconduct. (a) An employee suspended may be suspended with or without pay. (b) When an employee is suspended the Union shall be notified of the suspension and the term and manner of the suspension. 4.7.2 Serious misconduct (a) The Manager may temporarily suspend an employee for a period of 48 hours up to 28 consecutive days for serious misconduct. (b) An employee so suspended may be suspended with or without pay. (c) When an employee is suspended the Union shall be notified of the suspension and the term and manner of the suspension. (d) An employee suspended under clause 4.7.2 may appeal against the suspension by notifying the Chief Executive either orally or in writing and may appeal against the decision to suspend the employee or the decision to suspend the employee without pay. (e) Upon being notified of the employee's intent to appeal a decision, the Chief Executive must as soon as possible or in any event within 72 hours convene a panel to hear and determine the employee's appeal. The panel will be comprised of: (i) (ii) a nominee of the Chief Executive; and a nominee of the Union; and

4.5.2

4.5.3

4.7 4.7.1

(iii) a third person acceptable to both the Chief Executive and the Union. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

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24 October, 2003

(f) An employee suspended under clause 4.7.2 may be represented the appeal by the employee's Union Representative, agent or a supervisor not being a supervisor who is involved in any matter that led to the decision of the Manager to suspend the employee. (g) The appeal panel shall make its decision in relation to the appeal on the day that the appeal is heard and shall advise the employee orally of its decision which shall then be recorded in writing and provided to the employee. 4.7.3 4.8 4.8.1 Nothing in this Award shall prevent the Chief Executive from summarily dismissing an employee for serious misconduct. Termination of employment Statement of employment

The Employer shall, in the event of termination of employment, provide upon request to an employee who has been terminated a written statement specifying the period of employment and the classification or type of work performed by the employee. 4.8.2 Termination by employer (a) In order to terminate the employment of an employee the Employer shall give the following notice: Period of Continuous Service Period of Notice

not more than 1 year ..............................................................................................1 week more than 1 year, but not more than 3 years ......................................................... 2 weeks more than 3 years, but not more than 5 years........................................................ 3 weeks more than 5 years................................................................................................... 4 weeks (b) In addition to the notice in clause 4.8.2(a), employees over 45 years of age at the time of giving of notice and with not less than 2 years' continuous service, shall be entitled to an additional week's notice. (c) Payment in lieu of notice shall be made if the appropriate notice is not given: Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof. (d) In calculating any payment in lieu of notice the ordinary time rate of pay for the employee concerned shall be used. (e) The period of notice in clause 4.8.2 shall not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal, or in the case of casual employees, or employees engaged for a specific period of time or for a specific task or tasks. 4.8.3 Termination by employee (a) 2 weeks' notice of termination of employment is required to be given by an employee to the Employer. (b) If an employee fails to give notice the Employer shall have the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate for the period of notice. 4.9 4.9.1 Introduction of changes Employer's duty to notify (a) Where an Employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the Employer shall notify the employees who may be affected by the proposed changes and their (relevant) Union. (b) "Significant effects" include termination of employment, major changes in the composition, operation or size of the Employer's workforce or in the skills required; the elimination or diminution of job opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs: Provided that where this Award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect. 4.9.2 Employer's duty to discuss change (a) The Employer shall discuss with the employees affected and their (relevant) Union, inter alia, the introduction of the changes referred to, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees. (b) The discussions shall commence as early as practicable after a definite decision has been made by the Employer to make the changes referred to in clause 4.9.1. (c) For the purpose of such discussion, the Employer shall provide in writing to the employees concerned and their (relevant) Union, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees: Provided that an Employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the Employer's interests. 4.10 4.10.1 Redundancy Discussions before terminations (a) Where an Employer has made a definite decision that the Employer no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, the Employer shall hold discussions with the employees directly affected and, where relevant, their (relevant) Union.

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

715

(b) The discussions shall take place as soon as it is practicable after the Employer has made a definite decision which will invoke clause 4.10.1, and shall cover inter alia, the reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to avert or mitigate the adverse effects of any terminations of the employees concerned. (c) For the purpose of the discussion the Employer shall, as soon as practicable, provide in writing to the employees concerned and their (relevant) Union, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, the number of workers normally employed and the period over which the terminations are likely to be carried out: Provided that an Employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the Employer's interests. 4.10.2 Transfer to lower paid duties

Where an employee is transferred to other duties for reasons set out in clause 4.10.1, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to, pursuant to clause 4.8.2, if their employment had been terminated, and the Employer may, at the Employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rate of pay for the number of weeks of notice still owing. 4.10.3 Transmission of business (a) Where a business is, whether before or after the date of this Award, transmitted from an Employer (the "transmittor") to another Employer (the "transmittee"), and an employee who at the time of such transmission was an employee of the transmittor of the business becomes an employee of the transmittee: (i) The continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and (ii) The period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee. (b) "Business" includes trade, process, business or occupation and includes part of any such business and "transmission" includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and "transmitted" has a corresponding meaning. 4.10.4 Time off during notice period (a) Where a decision has been made to terminate an employee in the circumstances outlined in clause 4.10.1, the employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment. (b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the Employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient. 4.10.5 Notice to Centrelink

Where a decision has been made to terminate employees in the circumstances outlined in clause 4.10.1 the Employer shall notify Centrelink thereof as soon as possible giving relevant information including a written statement of the reasons for the terminations, the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out. 4.10.6 Severance pay

In addition to the period of notice prescribed for ordinary termination in clause 4.8.2, and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in clause 4.10.1 shall be entitled to the following amounts of severance pay: Period of Continuous Service Severance Pay

1 year or less .......................................................................................................... nil 1 year and up to the completion of 2 years..................................................... 4 weeks' pay 2 years and up to the completion of 3 years ................................................... 6 weeks' pay 3 years and up to the completion of 4 years ................................................... 7 weeks' pay 4 years and over .............................................................................................. 8 weeks' pay "Weeks' pay" means the ordinary time rate of pay for the employee concerned. 4.10.7 Superannuation benefits

Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, such employee shall only receive under clause 4.10.6 the difference between the severance pay specified in that clause and the amount of the superannuation benefit such employee receives which is attributable to Employer contributions only. If this superannuation benefit is greater than the amount due under clause 4.10.6 then the employee shall receive no payment under that clause. 4.10.8 Employee leaving during notice

An employee whose employment is terminated for reasons set out in clause 4.10.1 may terminate such employment during the period of notice specified in clause 4.8.2, and, if so, shall be entitled to the same benefits and payments under clause 4.10 had such employee remained with the Employer until the expiry of such notice: Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

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716

4.10.9

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Alternative employment

24 October, 2003

An Employer, in a particular case, may make application to the Commission to have the general severance pay prescription varied if the Employer obtains acceptable alternative employment for an employee. 4.10.10 Employees with less than one year's service Clause 4.10 shall not apply to employees with less than one year's continuous service and the general obligation on Employers should be no more than to give relevant employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment. 4.10.11 Employees exempted Clause 4.10 shall not apply: (a) where employment is terminated as a consequence of misconduct on the part of the employee; (b) to employees engaged for a specific period of time or for a specific task or tasks; or (c) to casual employees. 4.10.12 Employers exempted Subject to an order of the Commission, in a particular redundancy case, clause 4.10 shall not apply to Employers who employ less than 15 people. 4.10.13 Incapacity to pay An Employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription varied on the basis of the Employer's incapacity to pay. 4.11 Continuity of service ­ transfer of calling

In cases where a transfer of calling occurs, continuity of service should be determined in accordance with sections 67-71 of the Act as amended from time to time. 4.12 4.12.1 Anti-discrimination It is the intention of the parties to this Award to prevent and eliminate discrimination, as defined by the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999 as amended from time to time, which includes: (a) discrimination on the basis of sex, marital status, family responsibilities, pregnancy, parental status, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with, or relation to, a person identified on the basis of any of the above attributes; (b) sexual harassment; and (c) racial and religious vilification. 4.12.2 Accordingly, in fulfilling their obligations under the grievance and dispute settling procedure in clause 3.2, the parties to this Award must take reasonable steps to ensure that neither the Award provisions nor their operation are directly or indirectly discriminatory in their effects. Under the Anti-Discrimination Act 1991 it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment. Nothing in clause 4.12 is to be taken to affect: (a) any different treatment (or treatment having different outcomes) which is specifically exempted under the Anti-Discrimination Act 1991; (b) an employee, Employer or registered organisation, pursuing matters of discrimination, including by application to the Human Rights and Equal Opportunity Commission/Anti-Discrimination Commission Queensland. PART 5 ­ WAGES AND WAGE RELATED MATTERS 5.1 Characteristics of classification levels

4.12.3

4.12.4

NOTE: It is not necessary to satisfy all the criteria under each level to be classified at the level. 5.1.1 Production worker 1 (a) An employee at this level performs a range of duties under supervision which includes: (i) (ii) (iii) (iv) with a significant degree of support and supervision, manufacturing of products using hand skills with limited use of tools; with direction and support, assembly and packing with limited use of tools; general labouring; other tasks requiring the exercise of minimal judgement.

24 October, 2003

5.1.2 Production worker 2

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

717

(a) An employee at this level performs a range of duties beyond the skills of a Level 1 employee and/or with a lesser degree of supervision and support, including: (i) (ii) (iii) (iv) (v) 5.1.3 understanding and undertaking basic quality control; acceptance of responsibility for quality of own work subject to routine supervision; operating flexibly between workshops; operating automatic or semiautomatic machinery and/or a range of hand tools or machines; competency in and undertaking Level 1 duties when required.

Production worker (Special skills) (a) An employee at this Level performs a range of duties beyond the skills of a Level 2 employee including: (i) (ii) (iii) (iv) (v) (vi) exercising discretion within the employee's level of skills; operating machinery and equipment requiring the exercise of skill and knowledge; applying knowledge of workplace operation in the production process; machine setting, loading and problem rectification; exercising appropriate interpersonal and communication techniques and assisting with training of Level 1 and Level 2 Workers; competency in and undertaking Level 1 and Level 2 duties when required.

5.2 5.2.1

Wages Wages ­ Vision impaired employees (a) The rate of wages prescribed in clause 5.2.1(b) for vision impaired employees covered by this Award shall be subject to an assessment of the productive capacity of the employee and shall be in accordance with the following schedule: Assessed Capacity 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% (% of prescribed rate) 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Provided that the minimum amount payable shall be not less than $45 per week. (b) subject to clause 5.1 the rate of weekly wages shall be as follows: Production Worker 1 Production Worker 2 Production Worker (Special Skills) From 1 April 2003 ....................$394.80 From 1 July 2004 ......................Queensland Minimum Wage From 1 April 2003 ....................$447.40 From 1 July 2004 ......................Queensland Minimum Wage plus $52.60. From 1 April 2003 ....................$497.50 From 1 July 2004 ......................Queensland Minimum Wage plus $102.70.

(c) For the purpose of establishing the percentage of the wage rate as prescribed in 5.2.1(a) to be paid to an employee, the productive capacity of the employee will be assessed by a panel comprising a nominee of the Queensland Blind Workers Union of Employees, a nominee of Royal Blind Foundation management and a nominee acceptable to both above parties. (i) (ii) 5.2.2 Should an employee be dissatisfied with the assessment, the employee may request a review by the panel. The panel shall consult with the employee during the review process. The rate of wages prescribed by clause 5.2.1(b) shall not take effect until the assessment process has occurred.

Wages ­ Non-vision impaired employees Rate Per Week $ Production Manager ................................................................................................................................................ 752.77 Sales/Marketing Manager ........................................................................................................................................ 752.77 Finance and Administration Manager ..................................................................................................................... 752.77 C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

The rate of weekly wages shall be as follows:

718

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Rate Per Week $ Employment Officer ................................................................................................................................................ 684.62 Sales Representative ................................................................................................................................................ 656.95 Supervisor (Support Worker)................................................................................................................................... 618.62 Accounts and Administration Officer...................................................................................................................... 618.62 Storeperson............................................................................................................................................................... 503.63 Canteen Manager ..................................................................................................................................................... 484.46 Cleaner/Gardener ..................................................................................................................................................... 465.30 Casual Canteen Employee ....................................................................................................................................... 440.38

24 October, 2003

The rates of pay in this Award are intended to include the arbitrated wage adjustment payable under the 1 September 2002 Declaration of General Ruling and earlier Safety Net and arbitrated wage adjustments. [Disputed cases are to be referred to the President.] This arbitrated wage adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this Award which are above the wage rates prescribed in the Award. Such payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Queensland workplace agreements, award amendments to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous State Wage Cases or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated wage adjustments 5.3 5.3.1 Occupational superannuation Application

In addition to all other entitlements prescribed by this Award, all eligible employees shall be entitled to superannuation contributions paid by the Employer, subject to the following provisions. 5.3.2 Contributions (a) The Employer shall contribute into an approved fund the rate that is applicable under the Superannuation Guarantee Charge Act 1992 at ordinary time earnings per week on behalf of each eligible employee. The levels of contributions prescribed are currently as follows: Financial Year Percentage Level of Contributions 1997 ­ 1998 ................................................................................................................ 6% 1998 ­ 1999 ................................................................................................................ 7% 1999 ­ 2000 ................................................................................................................ 7% 2000 ­ 2001 ................................................................................................................ 8% 2001 ­ 2002 ................................................................................................................ 8% 2002 ­ 2003 and subsequent years............................................................................. 9% (b) The Employer may suspend contributions on behalf of an employee for any period when an employee is absent from work on unpaid leave: Provided that the Employer shall continue to make contributions to an eligible employee in respect of any period during which an employee is absent from work on Workers' Compensation up to a maximum of 26 weeks. 5.3.3 Eligibility

Contributions for an employee shall apply provided the ordinary time earnings of the employee exceed $450 in any month. 5.3.4 General (a) The Employer shall remit the contributions to the approved fund on a monthly basis. (b) Eligible employees may personally make contributions to the approved fund in addition to the Employer contributions prescribed in clause 5.3.2. The Employer shall, at the employee's written request, make arrangements for such authorised deductions from the employee's pay to be forwarded to the administrators of the approved fund. (c) No additional amount shall be charged by the Employer for the establishment, administration, management or any other charges in connection with the approved fund. 5.3.5 "Ordinary time earnings" ­ for the purpose of calculating the Employer contribution under clause 5.3 shall mean the weekly wage earned during ordinary time in the pay period concerned.

PART 6 ­ HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK 6.1 6.1.1 Hours of work The ordinary hours of work for employees covered by this Award shall be an average of 38 hours per week, to be worked on one of the following bases: (a) 38 hours within a work cycle not exceeding 7 consecutive days; or (b) 76 hours within a work cycle not exceeding 14 consecutive days; or (c) 114 hours within a work cycle not exceeding 21 consecutive days; or (d) 152 hours within a work cycle not exceeding 28 consecutive days.

24 October, 2003

6.1.2

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

719

The ordinary hours of work exclusive of meal times shall not exceed 10 hours per day Monday to Friday inclusive: Provided that where the ordinary hours of work are to exceed 8 on any day, the arrangement of hours shall be subject to agreement of the Employer and the majority of employees concerned.

6.1.3 6.1.4 6.1.5

The daily spread of hours for employees shall be worked between 6 a.m. and 6 p.m. The ordinary starting and finishing times of employees may be staggered provided that there is agreement between the Employer and the majority of employees concerned. Starting and finishing times may be altered to suit geographic, safety, climatic or traffic conditions by the Employer with the agreement of the majority of employees concerned. Any such altered starting and finishing time will not invoke any penalty payment that would not be payable if the award spread of hours were observed. Employees are required to observe the nominated starting and finishing times for the day, including designated breaks to maximise available working time. Preparation for starting and finishing work, including personal clean up, shall be in the employees' time. Implementation of 38 hour week (a) The 38 hour week shall be implemented on one of the following bases after consultation with and giving reasonable consideration to the wishes of the employees concerned: (i) (ii) (iii) (iv) By employees working less than 8 ordinary hours each day; or By employees working less than 8 ordinary hours one or more days in each work cycle; or By fixing one or more work days in which all employees be off during a particular work cycle; By rostering employees off on various days of the week during a particular work cycle, so that each employee has one work day off during that cycle.

6.1.6 6.1.7

(b) Subject to the provisions of clause 6.1.1(b) the Employer and employees may agree that the ordinary hours of work are to exceed 8 on any day, thus enabling more than one day to be taken off during a particular work cycle. (c) Notwithstanding any other provision in clause 6.1.7, where the arrangement of ordinary hours of work provides for a rostered day off, the Employer and the majority of employees concerned, may agree to accrue up to a maximum of 5 rostered days off. Where such agreement has been reached, the accrued rostered days off shall be taken within 12 calendar months of the date on which the first rostered day off was accrued. Consent to accrue rostered days off shall not be unreasonably withheld by either party. (d) Different methods of implementation of the 38 hour week may apply to individual employees, groups or sections of employees concerned. 6.1.8 38 hour week ­ Procedures for discussion (a) The Employer and all employees concerned shall consult over the most appropriate means of implementing and working a 38 hour week. (b) The objective of such consultation shall be to reach agreement on the method of implementing and working the 38 hour week in accordance with clause 6.1. (c) The outcome of such consultation shall be recorded in writing. (d) Notwithstanding the consultative measures outlined above, and not withstanding any lack of agreement by employees, the Employer shall have the right to make the final determination as to method by which the 38 hour week is implemented or worked from time to time. (e) After implementation of the 38 hour week, upon giving 7 days' notice or such shorter period as may mutually be agreed upon, the method of working the 38 hour week may be altered, from time to time, following negotiations between the Employer and employees concerned, using the foregoing provisions of clause 6.1.8, including clause 6.1.8(d). 6.2 Meal breaks

All employees whether day workers or shift workers, shall be allowed not less than 30 minutes for a meal break between the 3rd and the 6th hours of duty. 6.3 Rest pauses

Every employee shall be entitled to a rest pause of 10 minutes' duration in the Employer's time in the first and second half of the working day. Such rest pauses shall be taken at such times as will not interfere with continuity of work where continuity is necessary: Provided further that where an employee is engaged for 6 or less hours, such employee shall only be entitled to one rest pause. 6.4 6.4.1 Overtime Overtime, that is authorised time worked outside of or in excess of the ordinary hours of work shall be paid for at the rate of time and a-half for the first 3 hours and double time thereafter. All overtime worked on a Sunday shall be paid for at the rate of double time. A minimum payment of 2 hours' work shall apply to all overtime worked on a Saturday or a Sunday. An employee who is recalled to perform work after completing ordinary duty, or is recalled at least 2 hours prior to commencing ordinary duty shall be paid at overtime rates with a minimum payment of 2 hours. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

6.4.2 6.4.3 6.4.4

720

6.4.5

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Where an employee is directed to work during an unpaid meal break, the employee concerned shall be paid for the time so worked at the prescribed overtime rate with a minimum payment as for one-half hour worked. Overtime shall be calculated to the nearest quarter of an hour in the total amount of time in respect to which overtime is claimed by an employee. Where an employee is called upon to work for more than one hour before the ordinary commencing time or is required to work after 6 pm the employee shall be supplied with a meal of reasonable quality by the Employer or shall be paid $7.50 in lieu thereof and shall be allowed one-half hour at the ordinary meal time for such meal: Provided that an employee will be entitled to a further one-half hour break and a meal of reasonable quality and quantity or a further meal allowance after the completion of every additional 4 hours overtime worked.

6.4.6

6.4.7

6.4.8

An employee who performs overtime work on a Saturday, Sunday or public holiday, shall at the employee's option be granted time off at a mutually convenient time: Provided that overtime taken on a time in lieu basis shall be taken in periods mutually agreed between the Employer and the employee.

6.4.9

An employee who works so much overtime between the completion of ordinary work on and the commencement of ordinary work on the next day, so that 10 consecutive hours off duty has not occurred, shall be released after completion of such overtime until 10 consecutive hours off duty occur, without loss of pay for ordinary working time occurring during such absence. If, on the instructions of the Manager, such employee resumes or continues work without having had 10 consecutive hours off duty, the employee shall be paid Double Rates until released from duty for such period, and shall then be entitled to be absent until 10 consecutive hours off duty has occurred without loss of pay for ordinary working time occurring during such absence.

PART 7 ­ LEAVE OF ABSENCE AND PUBLIC HOLIDAYS 7.1 7.1.1 Annual leave Every Employee (other than a casual Employee) shall at the end of each year of such Employee's employment be entitled to annual leave on full pay of 4 weeks. By mutual agreement between the Employer and the Union concerned, Employees engaged in the same calling, within a facility may choose to be allowed an additional one week's leave in lieu of extra payment for work performed upon those public holidays as prescribed in clause 7.7: Provided that the granting of the additional week's leave shall be dependent upon the individual Employees having completed a full year of employment and having actually worked ordinary rostered hours upon any of the public holidays. 7.1.2 Any period of annual leave shall be exclusive of any public holiday which may occur during the period of that annual holiday unless such public holiday is prescribed in clause 7.7.1 and an Employee receives the additional annual leave as prescribed in clause 7.1.1. The annual leave shall be paid for by the Employer in advance and in accordance with clause 7.1.4: In the case of any and every Employee in receipt immediately prior to the taking of annual leave ordinary pay at a rate in excess of the ordinary rate payable under this Award at that excess rate; and In every other case, at the ordinary rate payable to the Employee concerned immediately prior to the taking of annual leave under this Award. If the employment of any Employee is terminated before the expiration of a full year of employment, such Employee shall be allowed a monetary pro rata equivalent, proportional to the period of service, calculated in accordance with clause 7.1.4: Provided that where an Employee is entitled to additional leave as prescribed in clauses 7.1.1, such additional annual leave shall be included in calculating the monetary pro rata equivalent. All Employees shall have their annual leave entitlement debited by the number of ordinary hours they would have worked during the annual Christmas/New Year close down. 7.1.3 Should an Employee not take leave in any year, such leave shall be granted to the Employee in the following year in addition to leave for that year but the total accumulated leave shall not exceed 2 years accrued entitlement. In respect to annual leave entitlements annual leave pay (including any proportionate payments) shall be calculated as follows. In no case shall the payment by an Employer to an Employee be less than the sum of the following amounts: (a) The Employee's ordinary wage rate as prescribed by the Award for the period of the annual leave; (b) A further amount calculated at the rate of 17.5% of the amounts referred to in clause 7.1.4(a). 7.2 7.2.1 Sick leave Entitlement (a) Every Employee, except casuals and school-based apprentices and trainees, is entitled to 76 hours' sick leave for each completed year of their employment with their Employer: Provided that part-time Employees accrue sick leave on a proportional basis. (b) This entitlement will accrue at the rate of 7.6 hours' sick leave for each one month and 6 days of employment.

7.1.4

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

721

(c) Payment for sick leave will be made based on the number of hours which would have been worked if the Employee were not absent on sick leave. (d) Sick leave may be taken for part of a day. (e) Sick leave shall be cumulative, but unless the Employer and Employee otherwise agree, no Employee shall be entitled to receive, and no Employer shall be bound to make, payment for more than 13 weeks' absence from work through illness in any one year. 7.2.2 Employee must give notice

The payment of sick leave is subject to the Employee promptly advising the Employer of the Employee's absence and its expected duration. 7.2.3 Evidence supporting a claim

When the Employee's absence is for more than 2 days the Employee is required to give the Employer a doctor's certificate, or other reasonably acceptable evidence to the Employer's satisfaction, about the nature and approximate duration of the illness. 7.2.4 Accumulated sick leave An Employee's accumulated sick leave entitlements are preserved when: (a) The Employee is absent from work on unpaid leave granted by the Employer; (b) The Employer or Employee terminates the Employee's employment and the Employee is re-employed within 3 months; (c) The Employee's employment is terminated because of illness or injury and the Employee is re-employed by the same Employer without having been employed in the interim. The Employee accumulates sick leave entitlements whilst absent from work on paid leave granted by the Employer. 7.2.5 Workers' compensation

Where an Employee is in receipt of workers' compensation, the Employee is not entitled to payment of sick leave. 7.3 Long service leave

All Employees covered by this Award are entitled to long service leave on full pay under, subject to, and in accordance with, the provisions of Chapter 2, Part 3, sections 42-58 of the Act as amended from time to time. 7.4 Family leave

The provisions of the Family Leave Award apply and are deemed to form part of this Award. It is to be noted that part-time work can be performed by agreements in the circumstances specified in the Family Leave Award. A copy of the Family Leave Award is required to be displayed in accordance with section 697 of the Act. For the information of readers of this Award, the Family Leave Award deals with: Maternity Leave, Paternity Leave and Adoption Leave Nature of Leave Definitions Eligibility Certification Notice Transfer to safe job Amendment or cancellation of Period of Leave Effect of employment Termination Return to work Replacement Employees Leave refusal Part-time Work Definitions Entitlement Return to former position Transitional arrangements ­ Annual Leave and Sick Leave Part-time work agreement Termination Extension of Hours of Work Nature of work Replacement Employees Exclusion Special Responsibility Leave Use of sick leave Unpaid leave for Caring Purposes Annual Leave Time Off in Lieu of Payment for Overtime Make Up Time C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

722

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

24 October, 2003

Grievance Process Bereavement Leave/Compassionate Leave Relevance where award entitlement otherwise exists 7.5 7.5.1 Bereavement leave Full-time and part-time employees

Full-time and part-time Employees shall, on the death of a member of their immediate family or household in Australia, be entitled to paid bereavement leave up to and including the day of the funeral of such person. Such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the Employee in 2 ordinary days of work. Proof of such death is to be furnished by the Employee to the satisfaction of the Employer. 7.5.2 Long-term casual employees (a) A long-term casual Employee is entitled to at least 2 days unpaid bereavement leave on the death of a member of the person's immediate family or household in Australia. (b) A "long-term casual Employee" is a casual Employee engaged by a particular Employer, on a regular and systematic basis, for several periods of employment during a period of at least one year immediately before the Employee seeks to access an entitlement under clause 7.5.2. 7.5.3 "Immediate family" includes: (a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the Employee; and (b) A child or an adult child (including an adopted child, a foster child, an ex-foster child, a stepchild or an ex-nuptial child), parent, grandparent, grandchild or sibling of the Employee or spouse of the Employee. 7.5.4 Unpaid leave

An Employee with the consent of the Employer, may apply for unpaid leave when a member of the Employee's immediate family or household in Australia dies and the period of bereavement leave entitlement provided above is insufficient. 7.5.5 An Employee shall be entitled to a maximum of 2 days' leave without loss of pay on each occasion and on the production of satisfactory evidence of the death outside Australia of an Employee's immediate family and where such Employee travels outside Australia to attend the funeral. 7.6 Special leave

Subject to satisfactory evidence as to the need for such leave, the Manager may grant paid leave for emergency purposes or for any other sufficient reason, not exceeding 2 days in any one calendar year. In special circumstances such leave may be in addition to leave granted in accordance with the provisions of clause 7.5 (Bereavement Leave). 7.7 7.7.1 Public holidays all work done by any Employee on: ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ the 1st January; the 26th January; Good Friday; Easter Saturday (the day after Good Friday); Easter Monday; the 25th April (Anzac Day); The Birthday of the Sovereign; Christmas Day; Boxing Day; or ny day appointed under the Holidays Act 1983, to be kept in place of any such holiday will be paid for at the rate of double time and a-half with a minimum of 4 hours. 7.7.2 Labour Day

All Employees covered by this Award are entitled to be paid a full day's wage for Labour Day (the first Monday in May or other day appointed under the Holidays Act 1983, to be kept in place of that holiday) irrespective of the fact that no work may be performed on such day, and if any Employee concerned actually works on Labour Day, such Employee will be paid a full day's wage for that day and in addition a payment for the time actually worked by the Employee at one and a-half times the ordinary time rate of pay prescribed for such work with a minimum of 4 hours. 7.7.3 Annual show

All work done by Employees in a district specified from time to time by the Minister by notification published in the Industrial Gazette on the day appointed under the Holidays Act 1983, to be kept as a holiday in relation to the annual agricultural, horticultural or industrial show held at the principal city or town, as specified in such notification of such district will be paid for at the rate of double time and a-half with a minimum of 4 hours. In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the Employee and Employer must agree on an ordinary working day that is to be treated as a show holiday for all purposes. 7.7.4 Double time and a-half

For the purposes of clause 7.7 "double time and a-half" means one and a-half day's wages in addition to the Employee's ordinary time rate of pay or pro rata if there is more or less than a day. 7.7.5 Casual Employees required to work on public holidays shall be paid at the rate of double time and a-half for all time worked.

PART 8 ­ TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK NOTE: No provisions inserted in this Award relevant to this Part.

24 October, 2003

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

723

PART 9 ­ TRAINING AND RELATED MATTERS 9.1 9.1.1 Training The parties to this Award recognise that in order to increase the efficiency and productivity of the enterprise and also the national and international competitiveness of the industries covered by this award, a greater commitment to training and skill development is required. Accordingly, the parties commit themselves to: (a) developing a more highly skilled and flexible workforce; (b) providing Employees with career opportunities through appropriate training to acquire additional skills; and (c) removing barriers to the use of skills acquired. PART 10 ­ OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES 10.1 Protective equipment

The Employer shall provide appropriate protective clothing and equipment and the Employee shall wear such clothing and equipment. PART 11 ­ AWARD COMPLIANCE AND UNION RELATED MATTERS Preamble Clauses 11.1 and 11.2 replicate legislative provisions contained within the Act. In order to ensure the currency of existing legal requirements parties are advised to refer to sections 366, 372 and 373 of the Act as amended from time to time. 11.1 11.1.1 Right of entry Authorised industrial officer (a) An "Authorised industrial officer" is any Union official holding a current authority issued by the Industrial Registrar. (b) Right of entry is limited to workplaces where the work performed falls within the registered coverage of the Union. 11.1.2 Entry procedure (a) The authorised industrial officer is entitled to enter the workplace during normal business hours as long as: (i) the authorised industrial officer alerts the Employer or other person in charge of the workplace to their presence; and (ii) shows their authorisation upon request. (b) Clause 11.1.2(a)(i) does not apply if the authorised industrial officer establishes that the Employer or other person in charge is absent. (c) A person must not obstruct or hinder any authorised industrial officer exercising their right of entry. (d) If the authorised industrial officer intentionally disregards a condition of clause 11.1.2 the authorised industrial officer may be treated as a trespasser. 11.1.3 Inspection of records (a) An authorised industrial officer is entitled to inspect the time and wages record required to be kept under section 366 of the Act. (b) An authorised industrial officer is entitled to inspect such time and wages records of any former or current Employee except if the Employee: (i) (ii) (iii) is ineligible to become a member of the Union; or is a party to a QWA or ancillary document, unless the Employee has given written consent for the records to be inspected; or has made a written request to the Employer that they do not want their record inspected.

(c) The authorised industrial officer may make a copy of the record, but cannot require any help from the Employer. (d) A person must not coerce an Employee or prospective Employee into consenting, or refusing to consent, to the inspection of their records by an authorised industrial officer. 11.1.4 Discussions with employees

An authorised industrial officer is entitled to discuss with the Employer, or a member or Employee eligible to become a member of the Union: (a) matters under the Act during working or non-working time; and (b) any other matter with a member or Employee eligible to become a member of the Union, during non-working time. 11.1.5 Conduct

An authorised industrial officer must not unreasonably interfere with the performance of work in exercising a right of entry. C:\DOCUMENTS AND SETTINGS\NSIM\DESKTOP\GAZ2410.DOCGAZ2410.doc

724

11.2 11.2.1

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE

Time and wages record

24 October, 2003

An Employer must keep, at the place of work in Queensland, a time and wages record that contains the following particulars for each pay period for each Employee, including apprentices and trainees: (a) the Employee's award classification; (b) the Employer's full name; (c) the name of the award under which the Employee is working; (d) the number of hours worked by the Employee during each day and week, the times at which the Employee started and stopped work, and details of work breaks including meal breaks; (e) a weekly, daily or hourly wage rate ­ details of the wage rate for each week, day, or hour at which the Employee is paid; (f) the gross and net wages paid to the Employee; (g) details of any deductions made from the wages; and (h) contributions made by the Employer to a superannuation fund.

11.2.2

The time and wages record must also contain: (a) the Employee's full name and address; (b) the Employee's date of birth; (c) details of sick leave credited or approved, and sick leave payments to the Employee; (d) the date when the Employee became an Employee of the Employer; (e) if appropriate, the date when the Employee ceased employment with the Employer; and (f) if a casual Employee's entitlement to long service leave is worked out under section 47 of the Act ­ the total hours, other than overtime, worked by the Employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.

11.2.3 11.2.4 11.3

The Employer must keep the record for 6 years. Such records shall be open to inspection during the Employer's business hours by an inspector of the Department of Industrial Relations, in accordance with section 371 of the Act or an authorised industrial officer in accordance with sections 372 and 373 of the Act. Union encouragement

Clause 11.3 gives effect to section 110 of the Act in its entirety. Consistent with section 110 a Full Bench of the Commission has issued a Statement of Policy on Union Encouragement (reported 165 QGIG 221) that encourages an Employee to join and maintain financial membership of the Union. 11.3.1 Documentation to be provided by employer

At the point of engagement, an Employer to whom this Award applies shall provide Employees with a document indicating that a Statement of Policy on Union Encouragement has been issued by the Commission, a copy of which is to be kept on the premises of the Employer in a place readily accessible by each Employee. The document provided by the Employer shall also identify the existence of a Union encouragement clause in this Award. 11.3.2 Union delegates

Union delegates and job representatives have a role to play within a workplace. The existence of accredited Union delegates and/or job representatives is encouraged. The Employer shall not unnecessarily hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their duties. 11.3.3 Deduction of union fees

Where arrangements can be entered into, Employers are encouraged to provide facilities for the deduction and remittance of Union fees for Employees who signify in writing to their Employer, their desire to have such membership fees deducted from their wages. 11.4 Posting of Award

A copy of this Award shall be accessible, for example either recorded or in Braille to vision impaired Employees covered by this Award. The provision of such copies shall be in accordance with the Disability Services Act 1992 provided further that a copy of this Award shall always be displayed for inspection by non-vision impaired Employees. Dated 29 July 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar.

Operative Date: 29 September 2003

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