Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2005] QIRC 80 (2005) 179 QGIG 253

[Extract from Queensland Government Industrial Gazette, dated 24 June, 2005, Vol. 179, No.8, pages 253-255] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – making, amending and repealing awards Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (No. B257 of 2005) BRISBANE CITY COUNCIL – BUS TRANSPORT EMPLOYEES’ AWARD 2003 DEPUTY PRESIDENT SWAN 10 June 2005 DECISION The Commission has before it application No. B257 of 2005. This is an application made by the Brisbane City Council (the Council) to vary the Brisbane City Council – Bus Transport Employees’ Award 2003 (the Award). The issues contained within this application and others have been the subject of a number of conciliation conferences before the Commission. The history of this matter shows that originally an application, B619 of 2004, had been made by the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (the Union) to insert into the Award wage rates achieved through enterprise bargaining (Brisbane City Council Enterprising Agreement 2003 (the Agreement)). Before that matter went to hearing, the parties had requested a conciliation conference before another Commissioner. That process was unable to resolve the disagreement between the parties. The application proceeded to hearing and the Council opposed the application and lodged a counter proposal. The Union then sought to withdraw its application. However, the Council wished to press ahead with its counter claim. The breadth of the counter claim was challenged by the Union and in matter No. B619 of 2004, the Commission (as currently constituted) stated, inter alia, that: “If the respondent (i.e. the Council) wishes to press its claims, then the manner in which it should proceed is by way of formal application filed with the Registry. Beyond that, the normal rules of the Commission would apply.”. The Council has followed the Commission’s comments and its formal application is now before the Commission. At the commencement of these proceedings, the Union raised a preliminary issue which needs to be determined by the Commission. The preliminary points raised by the Union are these: • The Council is prohibited from attempting to vary the Award without the consent to arbitration being given by the Union. • The Agreement permits variation only under special circumstances. • Clause 33.4 of the Agreement states, inter alia, that: “Incorporation of Existing Awards This Agreement shall be read and interpreted as incorporating each of the terms and conditions of the Awards listed in Schedule 3 as they applied at the date of certification of this Agreement, except for: Safety Net Adjustments General Rulings of the Queensland Industrial Relations Commission Variations to the Awards by consent of Council and the relevant union[s[ in Schedule 2 Variations to the Awards which arise from arbitration, where referral of the matter to arbitration was agreed by the parties Simplification or reformatting of Awards under Workplace Relations Act or Queensland Industrial Relations Act Variations arising from this Agreement ...” Clause 33.8 of the Agreement includes a “no extra claims” embargo. The Agreement may be altered by “the means specifically provided under this Agreement.”. Clause 33.8 of the Agreement is as follows: “No Extra Claims This Agreement contains the major agreed strategies to be pursued in the life of the Agreement. In the event that there is a need to develop and implement additional or new strategies, we will discuss and agree implications for -- 1 of 3 -- 2 the workforce through the JCC and relevant DCC. We agree that no party shall make any claim for any alteration to the terms and conditions of employment established by the certification of this Agreement, other than by the means specifically provided under this Agreement. This Agreement is intended by the parties To be a settlement of all claims, by all parties in relation to the terms and conditions of employment for persons covered by this Agreement for the term of this Agreement, irrespective of whether such matters are expressly mentioned in or dealt with by this Agreement. This clause shall not apply to General Rulings made by the Queensland Industrial Relations Commission and reclassification of roles under relevant award or other agreed processes, nor to the other matters exempted in Clause 33.4.” • The Commission was asked to consider sections 125, 126, 274 and 331 of the Industrial Relations Act 1999. The Council had been unaware that the Union would raise these preliminary issues on the day of hearing, and therefore further time was given to the Council to prepare its response. The Council’s response is as follows: • Referral to arbitration of the matters in the Council’s application has been agreed to by the parties in the manner expressly provided for in clause 32 of the Agreement. Clause 32 “Dispute Resolution” outlines the various steps to be taken by the parties in the event of disputation. Specifically, the Council refers the Commission to the following wording contained within the clause: “…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 relevant Industrial Relations Commission for resolution.”.  The dispute between the parties has existed for a lengthy period of time and that has been evidenced by the various conferences held before the Commission.  Each of the steps outlined in clause 32 had been exhausted by the parties. Clause 32 permits either party to bring the matter to the Commission for determination. Council states: “BCC has now made such a referral by means of the making of this Application to vary the Award. It follows that the arbitration of the disputed Award clauses has occurred in accordance with the processes prescribed in clause 32 for such referral, to which the parties have agreed by the making of EBA5, and which is one of the express exemptions to the prohibition against further claims contained in both clauses 33.4 and 33.8.”. In considering the submissions of the parties, the following points are clear: • The matter has been the subject of continued dispute between the parties for a considerable period of time. • The original application to amend the Award (to insert wage outcomes from enterprise bargaining into the Award) was made by the Union (B619 of 2004). That application, as worded was opposed by the Council, resulting in the lodgement of a counter proposal. • After the counter proposal was lodged, the Union withdrew its application and the Council determined to press ahead with its application. • In B619 of 2004, the Commission advised the Council that it would have to file a fresh application to have its claims considered. • The Council did file its new application – B257 of 2005. • The parties have not been able to resolve their differences by themselves nor have the conciliation conferences before the Commission brought about any resolution. The question to be answered is whether the terms of the Agreement prohibits the type of application currently before the Commission. -- 2 of 3 -- 3 Clause 33.4 of the Agreement relates to the question of “Incorporation of Existing Awards” and, within context, provides an embargo against varying the Awards without the consent of the parties. Clause 33.8 of the Agreement “No Extra Claims” states, inter alia, that: “...We agree that no party shall make any claim for any alteration to the terms and conditions of employment established by the certification of this Agreement, other than by the means specifically provided under this Agreement.”. However, against that background, clause 32 of the Agreement relates to “Dispute Resolution”. What is before the Commission is clearly a dispute between the parties. The procedure in clause 32 sets out in detail the various steps agreed to between the parties for the resolution of the dispute. Those steps have been undertaken by the parties and in accordance with the clause, a party has individually sought to refer the matter to the relevant Industrial Relations Commission for resolution. As stated earlier, there has been clear disputation between the parties for some time now, and it seems logical that one or the other party now seeks to have the disputation resolved using the Agreement provisions which permits such action. I determine that the Council may proceed with its application and that it is not prohibited by the Agreement from so doing. The matter will be re-listed by the Registry and the parties will be notified accordingly. D.A. SWAN, Deputy President. Appearances: Hearing Details: 2005 15 April 5 May Released: Mr A. Herbert instructed by Mr G. Evans on behalf of the Brisbane City Council. Mr P. Allen for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch. Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --