Brisbane City Council Enterprise Bargaining Certified Agreement 2010 [2013] QIRC 84

CITATION: Brisbane City Council Enterprise Bargaining Certified Agreement 2010 (CA/2013/43), CA/2013/45), (CA/2013/48) - Decision and Orders <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 176 - requirements for other industrial action by an employee organisation or employees Australian Rail, Tram and Bus Industry Union of Employees, Queensland AND Brisbane City Council (CA/2013/43) Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland AND Brisbane City Council (CA/2013/45) The Electrical Trades Union of Employees Queensland AND Brisbane City Council (CA/2013/48) BRISBANE CITY COUNCIL ENTERPRISE BARGAINING CERTIFIED AGREEMENT 2010 COMMISSIONER FISHER 11 June 2013 DECISION [1] Each of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland (ARTBU), the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ) and The Electrical Trades Union of Employees Queensland (ETU) (the unions) has applied to the Queensland Industrial Relations Commission (the Commission) for a protected action ballot order (PABO). The applications have been made in regard to their respective members employed at the Brisbane City Council (the Council). [2] The Commission as constituted has also been allocated the application made by the Council pursuant to s. 148 of the Industrial Relations Act 1999 (the Act) for help to make a certified agreement (CA/2013/42). It is common ground that the unions above, as well as a number of other unions, have been negotiating with the Council for a new agreement over the last eight months. The Commission has held two conciliation conferences with the parties since the s. 148 application was filed on 21 May 2013. As a result of the discussions held at the second conference on 5 June 2013, the Council agreed to take certain matters back to the Civic Cabinet for consideration. That meeting is being held on Tuesday 11 June 2013. In light of that position, a number of unions agreed to adjourn their applications for PABOs, which had also been listed for hearing on 6 June 2013, or refrain from making such an application pending the outcome of Civic Cabinet's deliberations. The three unions mentioned above decided to press on with their applications. [3] The Commission was unable to decide the applications within two days after the applications were made: Schedule 4 - s. 6(2). When the matter came on for hearing the parties consented to the three applications being dealt with at the same time. In deciding to hear the matters together the Commission took account of the parties' attitudes and was also satisfied that s. 7 of Schedule 4 had been satisfied. [4] In order to provide an expeditious decision, the Commission has not outlined the parties' arguments in full, however, they have all been taken into account. [5] The Council has requested the Commission to adjourn the applications pending the decision of Civic Cabinet and the outcome of the next negotiations scheduled for 13 June 2013. Its submissions referred to powers available to the Commission under s. 148(3) and (4) of the Act. The Council recognised that the PABO process was not industrial action in itself but submitted that it was a significant step, provocative and a departure from a long held industrial principle that industrial action should not be taken while negotiations were ongoing. [6] In response the unions argued that only applications for PABOs were being made and this was a process permitted by the Act. There is nothing in the Act that prevents this process and negotiations, even under s. 148, taking place concurrently. The PABO process means that a ballot result will not be known for several weeks. Moreover, the purpose of protected action is to put pressure on the negotiating party. For all of these reasons the unions submitted the Commission should make the PABOs as sought. [7] The provisions of s. 176 and Schedule 4 of the Act require the Commission to be satisfied that a number of specific requirements have been met before a protected action ballot order can be issued. In that respect the Commission is satisfied that: • Each of the employee organisations making the application is a negotiating party to the proposed agreement : Schedule 4 - s. 3(1)(a); • Each of the applications states the group of employees who are to be balloted: Schedule 4 - s. 3(3)(a); -- 1 of 5 -- 2 • Each of the applications states the question(s) to be put to the employees who are to be balloted, including the nature of the proposed industrial action: Schedule 4 - s. 3(3)(b); • Each of the applications identifies the group of employees to be balloted as only those employees who will be bound by the proposed agreement and who are (also) members of the applicant: see Schedule 4 - ss. 3(4)(a) and (b); • Each of the applications has been made no earlier than 30 days before the nominal expiry date (i.e. 16 April 2013) of the existing agreement: Schedule 4 - s. 4(2); and • Each of the applications for a protected action ballot order has been given to the employer of the employees who are to be balloted (in this case the Council) and the Electoral Commission Queensland (ECQ) within 24 hours after it was made: Schedule 4 - s. 5). [8] Section 8(1) of Schedule 4 provides that "the Commission must make a protected ballot order in relation to a proposed agreement" if certain conditions are met, including that each applicant has been, and is, genuinely trying to reach agreement with the Council. It is not argued by the Council that any of the requirements of Schedule 4 have not been met. The Commission is satisfied the provisions of s. 8(1) and (3) have been met. [9] In the circumstances where the tests required to be met by Schedule 4 have been met the Commission must make the order. There is limited, if any, discretion available to the Commission under s. 8 of Schedule 4. The Council has made submissions that the Commission has certain powers available under s. 148 and especially subsections (3) and (4), however, no submissions in this respect have been put to the Commission whilst in s. 148 proceedings. The orders as sought are made. For completeness I note that the ARTBU amended its application to provide seven days' notice of intended industrial action. [10] The Commission accepts that the making of the three PABOs at this point may be unhelpful given the very sensitive stage of the negotiations. However, it needs to be mentioned that the provisions of Part 2 Schedule 4 of the Act are essentially procedural. Although the PABOs have been made, there is no certainty that industrial action will be approved by the membership of the three unions concerned or that industrial action, if approved, will be taken. The closing date for each of the ballots is in just under three week's time. There is much proverbial water to flow before then. Additionally, as Ms Inglis submitted, the Explanatory Notes indicate that the introduction of the PABO regime is "not intended to modify the philosophy or underlying policy intent of the IR Act in relation to supporting enterprise bargaining". The Commission would encourage the Council to view the making of the PABOs in this context. [11] Each PABO is attached to this decision. [12] The Commission orders accordingly. G.K. FISHER, Commissioner. Hearing Details: 2013 6 June 2013 Released: 11 June 2013 Appearances: Ms C. Jones for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland. Mr T. O'Brien for the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland. Ms K. Inglis for The Electrical Trades Union of Employees Queensland. Mr A. Herbert, Counsel directly instructed by the Brisbane City Legal Practice for the Respondent. -- 2 of 5 -- QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 176 - requirements for other industrial action by an employee organisation or employees Australian Rail, Tram and Bus Industry Union of Employees, Queensland AND Brisbane City Council (CA/2013/43) BRISBANE CITY COUNCIL ENTERPRISE BARGAINING CERTIFIED AGREEMENT 2010 COMMISSIONER FISHER 11 June 2013 PROTECTED ACTION BALLOT ORDER 1. PROTECTED ACTION BALLOT TO BE HELD The Australian Rail, Tram and Bus Industry Union of Employees, Queensland (ARTBU) is to hold a protected action ballot of employees described in clause 3 of this Order. 2. WHO WILL CONDUCT THE BALLOT The ballot is to be conducted by the Electoral Commission of Queensland. 3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED The employees to be balloted are those employees who are employed by the Brisbane City Council who are members of the ARTBU employed under the Brisbane City Council Enterprise Bargaining Certified Agreement 2010. 4. DATE BY WHICH BALLOT CLOSES The closing date for voting in the protected action ballot is 5 July 2013. 5. QUESTIONS The question(s) to be put to voters in the ballot are: "In support of reaching a Certified Agreement with the Brisbane City Council, do you endorse the taking of protected industrial action, which may involve taking separately, concurrently, and/or consecutively any or all of the actions set out below: • Stoppages of work for 1 hour periods YES [ ] NO [ ] • Stoppages of work for 2 hour periods YES [ ] NO [ ] • Stoppages of work for 3 hour periods YES [ ] NO [ ] • Stoppages of work for 4 hour periods YES [ ] NO [ ] • Stoppages of work for 8 hour periods YES [ ] NO [ ] • Stoppages of work for 24 hour periods YES [ ] NO [ ] • Stoppages of work for 48 hour periods YES [ ] NO [ ] • Stoppages of work for indefinite periods YES [ ] NO [ ] • Overtime Bans YES [ ] NO [ ] • Bans on collection of bus fares YES [ ] NO [ ] • Presentation of messages associated with the industrial action and/or the industrial campaign using the route name/numbering display system of a bus YES [ ] NO [ ]". 6. PERIOD OF NOTICE The ARTBU must give seven working days written notice of intended industrial action to all negotiating parties. 7. TERM OF ORDER The Order shall come into force from 11 June 2013 and shall remain in force for a period of [three (3) months]. G.K. FISHER Commissioner. -- 3 of 5 -- QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 176 - requirements for other industrial action by an employee organisation or employees Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland AND Brisbane City Council (CA/2013/45) BRISBANE CITY COUNCIL ENTERPRISE BARGAINING CERTIFIED AGREEMENT 2010 COMMISSIONER FISHER 11 June 2013 PROTECTED ACTION BALLOT ORDER 1. PROTECTED ACTION BALLOT TO BE HELD The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ) is to hold a protected action ballot of employees described in clause 3 of this Order. 2. WHO WILL CONDUCT THE BALLOT The ballot is to be conducted by the Electoral Commission of Queensland. 3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED The employees to be balloted are those employees who are employed by the Brisbane City Council who are members of the CFMEUQ employed under the Brisbane City Council Enterprise Bargaining Certified Agreement 2010. 4. DATE BY WHICH BALLOT CLOSES The closing date for voting in the protected action ballot is 5 July 2013. 5. QUESTIONS The question(s) to be put to voters in the ballot are: "In support of reaching a Certified Agreement with the Brisbane City Council, do you endorse the taking of protected industrial action, which may involve taking separately, concurrently, and/or consecutively any or all of the actions set out below: • Stoppages of work for 1 hour periods YES [ ] NO [ ] • Stoppages of work for 2 hour periods YES [ ] NO [ ] • Stoppages of work for 4 hour periods YES [ ] NO [ ] • Stoppages of work for 8 hour periods YES [ ] NO [ ] • Stoppages of work for 10 hour periods YES [ ] NO [ ] • Stoppages of work for 24 hour periods YES [ ] NO [ ] • Stoppages of work for 48 hour periods YES [ ] NO [ ] • Stoppages of work for indefinite periods YES [ ] NO [ ] • Overtime Bans YES [ ] NO [ ]". 6. TERM OF ORDER The Order shall come into force from 11 June 2013 and shall remain in force for a period of [three (3) months]. G.K. FISHER Commissioner. -- 4 of 5 -- QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 176 - requirements for other industrial action by an employee organisation or employees The Electrical Trades Union of Employees Queensland AND Brisbane City Council (CA/2013/48) BRISBANE CITY COUNCIL ENTERPRISE BARGAINING CERTIFIED AGREEMENT 2010 COMMISSIONER FISHER 11 June 2013 PROTECTED ACTION BALLOT ORDER 1. PROTECTED ACTION BALLOT TO BE HELD The Electrical Trades Union of Employees Queensland (ETU) is to hold a protected action ballot of employees described in clause 3 of this Order. 2. WHO WILL CONDUCT THE BALLOT The ballot is to be conducted by the Electoral Commission of Queensland. 3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED The employees to be balloted are those employees who are employed by the Brisbane City Council who are members of the ETU employed under the Brisbane City Council Enterprise Bargaining Certified Agreement 2010. 4. DATE BY WHICH BALLOT CLOSES The closing date for voting in the protected action ballot is 5 July 2013. 5. QUESTIONS The question(s) to be put to voters in the ballot are: "In support of reaching a Certified Agreement with the Brisbane City Council, do you endorse the taking of protected industrial action, which may involve taking separately, concurrently, and/or consecutively any or all of the actions set out below: • Stoppages of work for 1 hour periods YES [ ] NO [ ] • Stoppages of work for 2 hour periods YES [ ] NO [ ] • Stoppages of work for 4 hour periods YES [ ] NO [ ] • Stoppages of work for 8 hour periods YES [ ] NO [ ] • Stoppages of work for 10 hour periods YES [ ] NO [ ] • Stoppages of work for 24 hour periods YES [ ] NO [ ] • Stoppages of work for 48 hour periods YES [ ] NO [ ] • Stoppages of work for indefinite periods YES [ ] NO [ ] • Overtime Bans YES [ ] NO [ ]". 6. TERM OF ORDER The Order shall come into force from 11 June 2013 and shall remain in force for a period of [three (3) months]. G.K. FISHER Commissioner. -- 5 of 5 --