Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2004] ICQ 6 (2004) 175 QGIG 781

27 February, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 781 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (No. C84 of 2003) PRESIDENT HALL 17 February 2004 DECISION In the form which it took immediately prior to 16 March 1998 the Brisbane City Council – Bus Transport Employees’ Award regulated the employment of employees of the Brisbane City Council (Department of Transport) who were employed in cleaning, maintenance, shunting, driving or conducting activities. Some sections of the Award, e.g. cl. 3.7 – Waiting Time were directed to apply only to some classifications. Other sections excluded classifications from the scope of the section, e.g. cl. 3.13 – Special Night Allowances. Casual employment was nowhere referred to. Doubtless, as a matter of law, casual employees might have been engaged. But unlike typical casuals they would not have been paid a loading of 19%. The Queensland Industrial Relations Commission has always dealt with the matter of a loading for casuals by way of a Statement of Policy followed by award by award variation. The Brisbane City Council – Bus Transport Employees’ Award has not been so varied. On the other hand cl. 4.5 – Minimum Hours, by requiring payment for a minimum of 7 hours 36 minutes pay for each day worked, made casual employment unattractive to the employer. Understandably no casuals were in fact employed under the Award. All of that was to change in March of 1998. The instigator of the change was the Brisbane City Council. The Council’s ultimate objective was “to utilise the flexibilities offered by the ability to engage casuals to enhance the capacity of Brisbane Transport to grow”, 157 QGIG 213 at 214. To achieve that objective it was necessary to neutralise the Minimum Hours clause of the Brisbane City Council – Bus Transport Employees’ Award. The objective might have been achieved by the creation of a new award dealing with employment of casuals by Brisbane Transport and with the employment of no other category of employee. That would have necessitated the development of a set of conditions for casual employees. Given the resistance of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch to the introduction of casual labour to the workforce, a collaborative approach to that exercise was unlikely. Brisbane City Council opted instead for another approach, viz variation of the Brisbane City Council – Bus Transport Employees’ Award. After some massaging by the Commissioner into whose hands the matter had come, the variation entered the Award as a final subparagraph of cl. 3.1 – Classification Definitions in the following terms: “(9) Casual Employee – (a) A casual employee is an employee who is engaged on an hourly basis. (b) A casual employee will be engaged for a minimum period of work of 2 hours duration and will only be paid for work performed. (c) There will be a maximum of 2 work periods for shift of duty. (d) Casual employees can perform work to a maximum of 25 hours per week averaged over a 12 month period. (e) Casual employees will be paid a loading of 19% in lieu of annual leave and sick leave.”. The submission that cl. 3.1(9) is a complete code cannot be sustained. To begin, without reference to the other sections of the Award one could not calculate a sum of money due to a casual for a particular period of work. Additionally, in recognising that the casual loading supplants annual leave and sick leave, cl. 3.1(9)(e) recognises that the annual leave and sick leave provisions of the Award do apply to casual employees. Under the legislative regime established by the Workplace Relations Act 1997 a right to annual leave and to sick leave could have no other source. Further, there was a need to regulate a clutch of matters, e.g. accident reports, signing on and off, change money, uniforms, grievance procedures, disciplinary procedures etc. Whilst one may readily accept that the subject matter or language of a particular provision of the Award may render it inapplicable to casual employment, such characterisation of a particular provision may be adopted only on a case by case approach guided by the ordinary principles of interpretation. In embarking on the characterisation process the Commission, and on appeal this Court, must be vigilant to ensure that interpretation does not degenerate into arbitration of the conditions of employment thought appropriate for the casual employees of Brisbane Transport. In the case of cl. 3.13 – Special Night Allowances the appellant seeks solace from observations which fell from the Commissioner who inserted cl. 3.1(9) into the Award on the occasion of a subsequent reopening application about casual employment. The observation was “about casuals I did not have any -- 1 of 3 -- 782 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 February, 2004 specific (positive) intention in mind that they were to be paid the special night allowance”, 171 QGIG 400 at 402. For myself, I regard the observation as entirely bland. Since the parties to the proceedings in 1998 had not agitated the matter of Special Night Allowances and the Commissioner had not taxed the parties with the matter of Special Night Allowances, it would have been passing strange if the Commissioner had turned his mind to the issue and formed a judgement upon it. In any event, if indeed the Commissioner was expressing his actual intention on 16 March 1998, there is no basis upon which regard might properly be had to the information volunteered. Evidence about the undisclosed intentions, aspirations and expectations of the nominal author of a document is not admissible as evidence of actual meaning so as to impose an unjustified meaning, compare Re: Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 179 ALR 238 at [132] per McHugh J (statute), The Australian Workers’ Union of Employees, Queensland v James Hardie Australia Pty Ltd (2001) 167 QGIG 280 at 281 (certified agreement), Deckers v Minda Home Inc 45 SAIR 69 at 85 (award) [The decision in Amalgamated Engineering Union v W. Adams and Co Pty Ltd (1926) 24 CAR 63 at 67 excluding published reasons for decision is not consistent with recent authority]. The remark in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at paragraph 8 about “wilful judicial blindness” is followed by an express limitation to the state of affairs in existence when the Award is made. The appellant seeks to derive some assistance from a reformulation of the Award which took effect on 29 September 2003 as part of the Award Review process. I am unable to accept that the manner in which overtime for casual employees was dealt with in a reformulation of 29 September 2003 can be of assistance in construing a variation made five and a half years earlier. In any event, it is clear from the transcript of the proceedings below that the Commission was asked to construe the Award in the form which it took on 16 March 1998 without regard to the reformulation effective on 29 September 2003. In my view the appellant is bound by the conduct of its case at first instance, Brisbane City Council v. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2002) 171 QGIG 78 at 79. An attempt was also made to tender an informal agreement between the appellant and the respondent entered into shortly after the variation of 16 March 1998 which dealt with the matter of overtime for casual employees. The better view is that conduct of the parties subsequent to the making of an award is not admissible even for the purpose of resolving an ambiguity in the terms of the award, Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 (Full Court) and Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452 per Gray J. In any event there is no material to indicate that the evidence about the agreement might not, by the exercise of reasonable diligence have been available and tendered in the proceedings in the Commission. In these circumstances the discretion at s. 348(2) of the Industrial Relations Act 1999 should not be exercised in the appellant’s favour, compare Central Scaffolding and Rigging Services Pty Ltd v. Verrall (No. C106 of 2003). Clause 3.13 – Special Night Allowances provides: “Employees other than Bus Garage Employees shall be entitled to an allowance of 93.375 cents per hour 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.”. Counsel for the appellant focuses on the reference to “ordinary time” and the denial of an allowance where “overtime” is payable and develops an argument that the notions of “ordinary time” and “overtime” as mentioned in the Award are incompatible with the scheme at cl. 3.1(9). Great stress is placed upon cl. 4.1 – Hours. It may be conceded that casuals of the type at cl. 3.1(9) are not shift workers and fall outside the regulations of hours for shift workers. Clause 4.1(1) and (2) are different matters. The subclauses provide: “(1) 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. (2) (a) 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 Industrial Organisation of Employees and the Brisbane City 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.”. I accept that the minimum hours of duty clause relating to bus operators and conductors is inconsistent with the scheme at cl. 3.1(9)(b). However, there is no inconsistency between the maximum weekly number of hours for bus operators and conductors at cl. 3.1(9). Casual employment carries with it the potential for abuse. It is understandable that there should be both a weekly and an annual limitation on hours. It follows that in a particular week a casual employee might work overtime and that the proviso to cl. 3.13 – Special Night Allowance has work to do in its application to casual bus operators and conductors. I acknowledge that there is an issue, in the case of bus operators and conductors, about whether the daily minimum provision about hours and the daily provision about maximum hours may be severed. But one does not need to resolve the issue to determine the application of cl. 3.13 – Special Night Allowances to casual employment. Some examples were given of overgenerous operation of cl. 3.13 in its application to casuals. That argument with respect, goes to arbitration not to interpretation. In the premises the Commission was right to hold that casual employees engaged under cl. 3.1(9) might be entitled to a Special Night Allowance under cl. 3.13. The second issue on the appeal concerns the calculation of wages for casual employees engaged under cl. 3.1(9) on a Saturday and Sunday. The Commission (174 QGIG 465 at 471 to 472) dealt with the matter as follows: “10.5 Saturday and Sunday Work It has long been established that casual employees get an hourly rate for working ordinary time, and that rate of pay is to be regarded as their ordinary rate of pay for the purpose of calculating overtime and penalty payments. Further, when calculating time and a–half and double time payments, the calculation is made on the hourly rate and not on any lesser amount reached by deducting the allowance made for the casual nature of the employment: Metal Trades Case; Re Nicol Bros and Another (1942) 46 CAR 331 applied in Re Hospital Nurses Award – State (1977) 94 QGIG 907 at 908. -- 2 of 3 -- 27 February, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 783 There are awards of this Commission which provide that casual loadings are not compounded by penalty or overtime payments. Those awards make it clear that casual loadings are not compounded. A typical clause in this regard is found in the Fast Food Industry Award – South East Queensland (1984) 125 QGIG 889 at clause 9(1). In my view, it is so well established that the hourly rate for casual employees, including casual loading, is compounded by overtime and penalty payments, that in order for this not be the case, an award must clearly provide to the contrary. In this case, for the reasons outlined above, I can see no basis for the casual provisions of the Award to be read in isolation, and for holding that casual loadings are removed before penalty payments are calculated and then added back to hourly rates so that they do not compound. Accordingly, I find that Mr Bickerton was entitled to have his casual rate, including casual loading, compounded by the multipliers of time and a- half and double time as appropriate, in accordance with the provisions of clause 4.8 of the Award.” (emphasis added) With respect to the Commission I have to accept the submission of the appellant that there is no “well established” rule in terms of the sentence emphasised. If the foundation for the principle is the unreasoned decision under the National Security (Industrial Peace) Regulations in Amalgamated Engineering Union v Metal Traders Employers Association (1942) 46 CAR 331 and its adoption by a Commissioner sitting alone in Re Hospital Nurses Award – State (1977) 94 QGIG 907, the “well established” rule is so insecurely based as to be urban myth. That said it seems to me that as a matter of construction (and on this occasion no reliance is placed on extrinsic materials) the result at which the Commission arrived is indubitably right. Clause 4.8 provides as follows: “4.8 SATURDAY AND SUNDAY TIME (1) Time worked on Saturday shall be paid for at the rate of time and a-half. (2) Time worked on Saturdays shall be paid for at the rate of double time.”. What the clause requires is a doubling of the time worked on a Sunday and an increase of 50% of the time worked on a Saturday. The artificial period of working time thus derived is used in the calculation of wages. It is to those artificial times that the relevant wage rate (in the case of a casual loaded by 19%) is applied. I dismiss the appeal. I reserve all questions of costs. Dated 16 February 2004 D.R. HALL, President. Released: 17 February 2004 Appearances: Mr A. K. Herbert, directly instructed for the appellant. Mr S. Reidy of Carne Reidy Herd Lawyers, for the respondent. -- 3 of 3 --