Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2005] QIRC 18 (2005) 178 QGIG 184

[Extract from Queensland Government Industrial Gazette, dated 4 March, 2005, Vol. 178, No.9, pages 184-186] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 Industrial Relations (Tribunals) Rules 2000 – r. 64 Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Brisbane City Council (No. B619 of 2004) BRISBANE CITY COUNCIL – BUS TRANSPORT EMPLOYEES’ AWARD 2003 DEPUTY PRESIDENT SWAN 18 February 2005 DECISION Application B619 of 2004 was made by the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (the applicant) during 2004 to amend the Brisbane City Council – Bus Transport Employees’ Award 2003 (the Award). The application was opposed by the Brisbane City Council (the respondent). Various pre-trial conferences were held between the parties but no settlement of the matter was achieved. Prior to the commencement of the hearing of the matter, the respondent filed with the Registry a “Response and Counter Proposal” to the application. During the course of the hearing, the applicant submitted that the respondent’s counter proposal was significantly broader than what was envisaged within the application, so much so that the counter proposal should be the subject of further enterprise bargaining negotiations or “dealt with aside from this process” (see pages 2 and 3 of the transcript 8/12/04). The applicant had sought to insert into the Award wage rates achieved through enterprise bargaining. The respondent submitted that in its consideration the Commission should also consider the respondent’s claim that the Award should then reflect all of the conditions and flexibilities which attached to those wage rates. The respondent believed that, in isolation, were the applicant’s claim to be granted, then the respondent would face difficulty in achieving its own enterprise bargaining outcomes in the future. After hearing the submissions of the parties around these points, the Commission determined to hear the claim and counter claim in the course of the one hearing. At that time, that seemed to be the most practical approach to adopt. A program was set whereby the Union was to respond to the counter claim, the parties were directed to confer, and the remaining issues in contention between the parties were to be identified during a report back hearing before the Commission. What then occurred is as follows: On 23 December 2004, the Registry received from the applicant a “Request to Discontinue Application Other Than Under Section 74” application. In correspondence received by the Registry from the respondent on 24 December 2004, the respondent stated: “Brisbane City Council has no objection to the primary application made by the Union being discontinued.”. However, “as part of the process of granting the union leave to withdraw their primary application, Brisbane City Council requests that the Commission give necessary directions so as to reconstitute the counter proposal filed by the Council as an application in its own right. Brisbane City Council would be then designated as the party with ongoing carriage of this matter.”. Approval relating to the Request to Discontinue was granted by the Commission on 24 December 2004. On 6 January 2005, the Registrar received further correspondence from the respondent stating that: “As you can see from this correspondence (i.e. the correspondence cited above dated 24 December 2004) Council’s understanding was that, if the Australian Rail and Tram and Bus Union withdrew their Application, Council’s Response and Counter Proposal (dated 3 December 2004) would ‘stand in its own right’ and that Case No. B619 of 2004 would continue to be heard on 23 February 2005, in respect of the items set out in the Schedule Attached to our ‘Counter Proposal’. Council received notification from the Australian Rail Tram and Bus Union of their ‘Request to Discontinue Application’ on Friday 24 December 2004 and I understand there may be some doubt that the Commission received Council’s letter (dated 24 December 2004) in response to the Australian Rail Tram and Bus Union’s request.”. -- 1 of 2 -- 2 The discontinuance notification was granted by the Commission on 24 December 2004, noting that the respondent had no objection per se to that request. It was not within the Commission’s contemplation that the matter had rested there. Notwithstanding the respondent’s acquiescence to the discontinuance notification, it still requested that its counter proposal be viewed as an application in its own right. The matter was subsequently rescheduled for a continuation of hearing on 3 February 2005. The Commission (as currently constituted) did not recommence duties until 17 January 2005. The respondent’s objection was filed with the Commission within the applicable time frame (see r. 64 of the Industrial Relations (Tribunals) Rules 2000). The Commission is now required to determine whether or not the respondent’s counter proposal should be viewed as an application in its own right or whether the respondent should file a separate application incorporating all of what was contained within its counter proposal. The respondent stated that its counter proposal was “utilising the fact that there were proceedings on foot before the Commission to make a quite different application for the variation of the same Award.” The only common feature between the two claims was that they were dealing with a variation of the same Award. In the exercise of my discretion to determine whether or not to permit the respondent in this matter to have its counter- proposal treated as an application in its own right, I have considered the following matters: - The decision originally reached to hear both claims together - The nature of the original application - The applicant’s intent to see the application discontinued - The respondent’s request to have their counter-proposal heard as an application in its own right - The nature of the counter-proposal - The wording used in the counter-proposal - The respondent’s adherence to the Industrial Relations (Tribunals) Rules 2000 - The Industrial Relations (Tribunals) Rules 2000 to which the Commission has been referred by the parties (ss. 8, 17, 18, 19, 21, 43, 64 and Form 21) In my view the request from the respondent should be refused. At the time of the initial hearing it was both practical and appropriate to permit the counter proposal to proceed in its particular form. That situation has now changed with the applicant withdrawing its claim. Consequently, the decision reached on that point is now rescinded. The nature of the respondent’s counter proposal (however worded) is significantly distant from the type of application lodged by the applicant. While both the application and counter proposal deal with the same Award, what is contained within each is vastly different. The application deals with wage rates and the counter proposal is viewed by the respondent as a “comprehensive review of the overall operation and effect of the Award” dealing, inter alia, with a broad range of issues such as obsolete provisions, ambiguous provisions, anomalies and casual employees’ conditions of employment. If the respondent 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 respondent is prejudiced to the extent that this process may take longer than the one sought but is not prejudiced to the extent that the matter could not proceed to finalisation. Order accordingly. D.A. SWAN, Deputy President. Appearances: Hearing Details: 2004 8 December 2005 3 February Released: 18 February 2005 Mr P. Allen, with him Mr D. Matters for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch, the Applicant. Mr A. Herbert instructed by the Brisbane City Council Legal Practice for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --