Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2005] ICQ 39 (2005) 180 QGIG 100

[Extract from Queensland Government Industrial Gazette, dated 9 September, 2005, Vol. 180, No.2, pages 100-101] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Brisbane City Council (No. C39 of 2005) PRESIDENT HALL 30 August 2005 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission now reported at 179 QGIG 253. With hindsight, which is a very marvellous advantage, the Appeal may have been premature. In short form the Commission held that the issues which were being pursued under the Dispute Resolution clause of the Brisbane City Council Enterprise Bargaining – Certified Agreement 2003 had progressed to the point at which reference to arbitration pursuant to CL32 was appropriate. The penultimate passages appear to be: “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.”. It is the contention of the Appellant that the Dispute Resolution procedure is not available for the litigation of additional claims during the currency of the Agreement. In the alternative, it is submitted that the Respondent’s claims have been referred to arbitration before the steps established by the Dispute Resolution procedure to facilitate settlement of the claims by agreement had been exhausted. It is the submission of the Appellant that it was always the intention of the parties that the Agreement should constitute a comprehensive settlement and statement of the industrial relationship between the Respondent and its employees and the relevant Unions. To that end clause 33.4 provides the incorporation of each of the terms and conditions of a comprehensive set of awards listed as schedule 3 into the Agreement itself. It is then submitted that clause 33.8 prohibits any party to the Agreement from advancing any extra claim during the life of the Agreement. With respect, it seems to me that clause 33.8 does not impose any such prohibition. On the contrary, clause 33.8 assumes that claims for alterations to the terms and conditions of employment established by the Agreement may be made during the currency of the Agreement, and then seeks to limit the means by which such claims may be resolved to “the means specifically provided under this Agreement.”. Such a construction is entirely consistent with the Agreement read as a whole. Clause 3, Objectives Of This Agreement, commits the parties to “continuous improvement of Council’s systems and processes” and the development of “employment relationships and working arrangements that meet community, employee and organisational needs into the future.”. The Appellant’s subsidiary submission that the “means specifically provided under this Agreement” referred to at clause 33.8 do not include the “dispute resolution” procedures at clause 32, cannot be sustained. The “means” referred to at clause 33.8 cannot be confined to General Rulings of the Queensland Industrial Relations Commission, reclassification of roles under the relevant Award and other matters exempted in clause 33.4. Whilst it is true that changes achieved by such means are expressly exempted from scriptures of clause 33.8, the exemption also refers to “other agreed processes.”. The Dispute Resolution provisions are declared to operate “notwithstanding any other provisions having application to the Brisbane City Council.”. The most coherent way in which to read clause 32 and clause 33.8 is to read the reference to “other agreed processes at clause 33.8 as excluding the process at clause 32 and to read the exclusion at clause 32 as, inter alia, excluding any barrier at clause 33.8. I quite accept the Appellant’s submission that if the reference to “industrial disputes at clause 32 is given its traditional meaning and interpreted to include any case in which a demand insisted upon as of right is rejected, clause 32 may render nugatory any restriction on “extra claims” at clause 33.8. But if clause 33.8 is not about barring “extra claims” but about limiting the “means” by which extra claims may be dealt with, the scope of clause 32 is not an issue. In any event, clause 32 has been included in the Agreement to meet the requirements of s. 156(1)(d) of the Industrial Relations Act 1999. The parties who wish to have an agreement certified under that Act cannot omit or limit a Dispute Resolution procedure for the purpose of protecting a “no claims” scheme. -- 1 of 2 -- 2 This is not the occasion on which to determine the scope of the orders which may be made under clause 32. These proceedings are about the availability of the procedure at clause 32. The proceedings are not about the validity of orders which may be made pursuant to clause 32. The resolution of such issues may well depend upon whether the powers at clause 32 are by way of private arbitration or whether the powers may be inflated by reference to the Queensland Industrial Relations Commission’s public arbitration powers. (A hidden issue may be whether a clause designed to satisfy s. 156(1)(d) may allocate the function of dispute resolution to the Queensland Industrial Relations Commission). Given that clause 33.4 is not ambulatory and, (subject to exceptions) incorporates only award terms “as they applied at the date of certification of this Agreement”, there may also be issues about whether any award amendments made pursuant to clause 32 will fail on the ground of inconsistency (s. 165) during the currency of the Agreement. But all of those issues are currently hypothetical and have not been argued. The Appellant’s alternative submission that the “mediation/conciliation” processes at clause 32 had not been exhausted cannot be sustained. The Commission was constituted by a Deputy President who on the face of the decision was obviously (generally) aware of the conciliation processes which had been undertaken within the relevant Panel. Further, there was in evidence an affidavit of Greg Newman deposing to the steps which had been taken. It must be conceded that at times the affidavit swears to the fact but, in a case in which no issue was taken by the Appellant at first instance about exhaustion of the “mediation/conciliation” processes, the Commission was perfectly entitled to act upon the basis of the affidavit. In any event, if the point had been taken at first instance other evidence could have been given. It follows that the point may not be taken now, compare Coulton v Holcombe (1986) 162 CLR 1 at 7-9 per Gibbs CJ, Wilson, Brennan and Dawson JJ and University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68 at 71. There is a subsidiary argument that clause 32 does not authorise anything beyond “mediation/conciliation”. I assume, without deciding, that s. 156(1)(d) would be satisfied by a clause containing such a limitation, (and I note the decisions in Ampol Refineries (NSW) Pty Ltd and Australian Institute of Marine and Power Engineers (1998) 43 AILR 3-724, Warkworth Mining Limited v Construction, Forestry, Mining and Energy Union print 916526 and The Australian Broadcasting Corporation Journalists and Reporters (Salaries) Award 1990, print M3463) – but clause 32 does not impose any such limitation. It may be noted that those who chose the language of the Agreement were perfectly well aware of how to impose such a limitation because at clause 11.2(10) – Developing New Local Area Agreements – precisely that was done. I dismiss the appeal. I remit the matter to the Queensland Industrial Relations Commission in order that the matter may be heard and determined according to law. I reserve all questions as to costs. Dated 30 August 2005. D.R. HALL, President. Released: 30 August 2005 Appearances: Ms T. Butler of Hall, Payne, lawyers to the Appellant. Mr A.K. Herbert, instructed by Brisbane City Legal Practice, for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --