Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2003] QIRC 70 (2003) 173 QGIG 278

278 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 May 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s.125 – application for amendment Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (No. B1843 of 2002) COMMISSIONER FISHER 9 May 2003 Application to amend – Part-time and sign on/sign off times – Preliminary point – s. 281 Industrial Relations Act 1999 – Jurisdictional Point – Chronology – Local Area Agreements – Found 1996 LAA was reviewed – Case Law – No impediment found to applying for award amendment – s. 3 Principal Objects of the Act – Chapter 5 Awards of the Act – Review/update process that parties acknowledge industrial tribunal be involved by consent – Jurisdictional argument not sustained – Matter relisted on 26 May 2003 at 2 p.m. to schedule dates of hearing and inspection – Commission directs parties to confer about the sign on/sign off before the merits of the application is heard. DECISION On 15 November 2002 the Brisbane City Council filed an application to amend the Brisbane City Council – Bus Transport Employees’ Award by inserting a clause regulating part-time employment and amending the Schedule in the Award dealing with sign on/sign off times. The application was listed for mention on 2 December 2002. At that time the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU) raised a preliminary point that the application should be referred to a Full Bench. A hearing on that issue was held on 10 December 2002. The parties were subsequently advised that the Vice President had declined to exercise the power under s. 281 of the Industrial Relations Act 1999 (the Act) to so refer the matter. Accordingly, dates of hearing were listed and time was allocated for the Commission to undertake inspections at the request of the ARTBU. In late February, the Commission was advised that the advocate for the Council was unavailable on certain days that the matter had been listed. Additionally, some difficulty was being experienced in scheduling the inspections. Accordingly, the Commission decided to relist the application to finalise the dates of hearing and inspections. Since the hearing in December the Commission had also received copies of correspondence sent by the ARTBU to Brisbane Transport (the business unit of the Council affected by the application). The correspondence from the ARTBU contended that the Commission did not have the jurisdiction to deal with the Council’s application because of certain provisions of the Brisbane City Council Enterprise Bargaining Agreement 2001, to which both the ARTBU and the Council are party. Copies of correspondence in reply by Brisbane Transport also forwarded to the Commission rejected this contention. Despite this correspondence between the parties the ARTBU did not seek to have the jurisdictional point determined by the Commission until the hearing called on by the Commission of its own motion on 3 March 2003. When the ARTBU belatedly raised its jurisdictional point, the parties agreed that it would be preferable to have this matter decided before embarking on inspections and the hearing of the substantive application. This decision thus deals only with the jurisdictional issue raised by the ARTBU. Brief Chronology of Events Certified agreements have existed in the Brisbane City Council since 1994. Provision has been made in each of those agreements to facilitate the making of agreements in discrete work areas to accommodate local businesses needs. These agreements are known as Local Area Agreements or LAAs. Brisbane Transport and the ARTBU entered into one such LAA in 1996. This LAA was known as “The Growth of Brisbane Transport Staff Positioning Statement” and it made provision for part-time employment and sign on/sign off times. Copies of this LAA provided to the Commission show that the ARTBU signed the agreement on 9 July 1996. The following day the Manager of Brisbane Transport signed the agreement and on 17 July 1996, the Director of the Industrial Relations Branch of the Council signed the agreement. For reasons unable to be explained by either the Council or the ARTBU, neither clause 6 nor clause 7 of the agreement were completed. Clause 6 is titled “Duration of Local Agreement” and prompts for the start and finish date of the agreement to be inserted. Clause 7 Review Mechanism, prompts for how often the LAA is to be reviewed, how it is to be reviewed and by whom. Both parties agreed that this LAA was registered in accordance with the provisions of the Enterprise Bargaining Agreement applying at that time. The current certified agreement includes an express provision that LAAs registered as a consequence of the implementation of the Council’s enterprise bargaining agreements from 1 January 1994 to 30 June 2001 continue to apply until the conclusion of the review/update process. Both parties also agreed that the terms of the 1996 LAA entitled “The Growth of Brisbane Transport Staff Positioning Statement” were never implemented. Despite that, it remained in force until 15 November 2002 when the Council withdrew from it. -- 1 of 5 -- 23 May 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 279 In 1998 Brisbane Transport and the ARTBU entered into another LAA entitled the “Bus Operators Conditions of Employment Agreement.”. This LAA contains the sign on/sign off provisions that the Council has included in its application to amend the Award. In 2001 as part of the negotiations over a new enterprise bargaining agreement, Brisbane Transport and the ARTBU on negotiated another LAA entitled “Passenger Services”. This LAA included provision for part-time work. The LAA was circulated to relevant employees for ballot but did not receive majority endorsement. The last paragraph of clause 14 Flexible Permanent Part-time Employment Arrangements (Salaried Staff Award) of the Brisbane City Council Enterprise Bargaining Agreement 2001 – Certified Agreement provides that: “Application of provisions for part-time employment arrangements in Brisbane Transport will be governed by the terms of the Passenger Services Local Area Agreement.”. The Council believes that this provision was inserted in the expectation that affected employees would approve the LAA. A letter from the Chief Executive Officer to the ARTBU indicated that Council was prepared to withdraw this provision from the agreement in order to finalise the LAA and to remove the concerns of other unions. In these circumstances the above provision was clearly included in error. The Brisbane City Council Enterprise Agreement 2001 – Certified Agreement was certified in the Australian Industrial Relations Commission on 14 December 2001 and came into effect on 1 July 2001. It has a nominal expiry date of 30 June 2003. In 2002 Brisbane Transport attempted to resurrect those matters that had been the subject of the failed Passenger Services LAA. On 19 February 2002 Brisbane Transport first met with the ARTBU since the demise of the Passenger Services LAA to discuss the introduction of part-time work and traineeships. A number of meetings were held between Brisbane Transport and the ARTBU on to try to progress these issues. In addition, various letters were sent to try to clarify the participants’ respective positions. The Council also raised the issue of insertion of part-time work and sign on/sign off provisions into the Award through the award review process in August 2002. The Commission (not as presently constituted) advised Council that this process was inappropriate where the parties did not agree. The Commission suggested it was open to the Council to make an application for the Award to be amended. Ultimately, Brisbane Transport concluded that agreement on part-time work was not possible. In their view another approach was required. Hence on 15 November 2002, the Brisbane City Council wrote to the ARTBU advising of its decision to withdraw from the 1996 LAA. On the same day, the Brisbane City Council applied to amend the Bus Transport Employees’ Award. ARTBU’s Jurisdictional Arguments The ARTBU contended that the Commission has no jurisdiction to entertain the Council’s application on the following grounds: (i) There was no review/update of the 1996 LAA undertaken in accordance with the Certified Agreement clause 15 Flexible Working Arrangements, clause 24 Dispute Resolution or clause 25.6 Local Area Agreements. (ii) The application by the Council is in breach of clause 25.8 No Extra Claims of the Certified Agreement. (iii) The Brisbane City Council – Enterprise Bargaining Agreement 2001Certified Agreement, “covers the field”. There is no mechanism for the Council to seek to amend the Award. (iv) In accordance with clause 15 of the Certified Agreement, industrial tribunals can only become involved in matters with the consent of the parties. Brisbane City Council’s Contrary Arguments The Council rejected each of the contentions made by the ARTBU. In relation to the arguments raised in points (ii), (iii) and (iv) above, the Council relied on a decision of Hall P in Brisbane City Council v AMEPKIU (2002) 171 QGIG 78. (For completeness, it should also be said that the ARTBU relied on this decision and the decision of the Commission in the first instance to support parts of its argument.). In relation to the argument that the 1996 LAA had not been reviewed, the Council relied on an affidavit by Gregory Lawrence Newman, Human Resource Manager, Brisbane Transport, Brisbane City Council. Mr Newman’s affidavit (exhibit 1) comprehensively detailed the history of the 2002 negotiations between Brisbane Transport and the ARTBU which ultimately led to the Council making an application to amend the Bus Transport Employees’ Award. Mr Newman was briefly cross-examined by the ARTBU in respect of the alleged review of the LAA. His evidence in cross-examination was that clause 25.6 Local Area Agreements and clause 15 Flexible Working Arrangements of the Certified Agreement provided for two different processes. Clause 25.6 dealt with a process to enter into new LAAs while clause 15 provided for existing LAAs to be reviewed and/or updated. In respect of the part-time issue, it was Mr Newman’s evidence that these processes were undertaken concurrently. Mr Newman was unshaken on this evidence. It should also be noted that the remainder of his evidence remained unchallenged. Conclusions Each of the four main arguments raised by the ARTBU regarding the Commission’s jurisdiction to hear the Council’s application will be considered in turn. (i) Was the 1996 LAA reviewed? To understand the ARTBU’s argument it is helpful to set out the relevant provisions of the Certified Agreement upon which it relies. Clause 15 of the Certified Agreement provides, in part, as follows: “The Partners commit to review and update existing Local Area Agreements (LAAs), and to develop and implement new LAAs. The Partners agree to finalise negotiations within three months from the commencement of discussions in respect of proposed arrangements and to complete the approval processes within one month of finalisation of negotiations.”. Although clause 15 does not explicitly state the required approval processes, it seems that they are those mentioned in clause 25.6 Local Area Agreements. That clause provides nine steps for establishing such agreements. Clause 24 Dispute Resolution provides a mechanism to avoid industrial disputes, or where a dispute occurs, to provide a means of settlement based on consultation, co-operation and discussion and the avoidance of interruption to work performance. -- 2 of 5 -- 280 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 May 2003 The ARTBU contends that the 1996 LAA was not reviewed or updated in accordance with any of these provisions of the Certified Agreement. In particular the ARTBU claimed at paragraphs 23 and 24 of its submissions that: “23. A review has taken place post the Agreement’s certification. Discussions were ongoing in relation to permanent part time but those discussions had not formed a part of the review and were no means part of the review of the Passenger Services Local Area Agreement or the Agreement relating to permanent part time. 24. Brisbane City Council and its Brisbane Transport representatives have made no attempt to reach a Passenger Services Local Area Agreement after the Enterprise Bargaining Agreement was signed.”. Although a document entitled the “Passenger Services Local Area Agreement” was developed in 2001 that agreement never came into effect. The Agreement was not registered in accordance with clause 25.6 of the Certified Agreement. Clause 15 is specific to existing LAAs. As the Passenger Services LAA was never approved, it could not be said to be an existing LAA within the meaning of clause 15 of the Certified Agreement. The Commission is therefore satisfied that the discussions between Brisbane Transport and the ARTBU that occurred during 2002 over part-time work were not and could not be part of a review of the Passenger Services LAA in accordance with clause 15 of the Certified Agreement. Some issue was also raised by the ARTBU about whether the 1998 LAA was reviewed and the status of that agreement. I do not understand these matters to be part of the jurisdictional arguments mounted by the ARTBU as outlined above. From the material before me I understand that LAA to still be a live agreement and did not form part of the 2002 discussions. The Council contended that the 1996 LAA was reviewed in accordance with clause 15 of the Certified Agreement and this was the intention of the 2002 discussions. To support its contention, the Council drew attention to a letter dated 11 March 2002 from the Divisional Manager Brisbane Transport to the ARTBU. This letter was written after four meetings held from 19 February 2002 and was intended to outline the proposed arrangements for trainees and part-time bus operators. With particular relevance to the matter before the Commission are the following contents: “ • In the absence of any alternative Permanent Part Time Bus Operator Arrangements, Brisbane Transport proposes to introduce part time arrangements in accordance with the agreed conditions contained in the ‘Growth of Brisbane Transport, Staff Positioning Statement’ Local Area Agreement dated July 1996. • It is considered that some of the arrangements for part time employment established in this agreement impose limitations that in the longer term will conflict with emerging business needs. . . Brisbane Transport will seek to negotiate more favourable conditions with the Rail, Tram and Bus Union . . . If it is not possible to negotiate a suitable package in the short term, then the available arrangements will be implemented. Alternative arrangements will be pursued in the future through the available mechanisms.”. Paragraph 14 of Mr Newman’s affidavit states that the letter reflected Brisbane Transport’s view that the process of reviewing the 1996 LAA was to commence in accordance with clause 15 of the Certified Agreement. Further, “it was expressly intended to replace the 1996 Local Area Agreement with a new Agreement relating to, specifically, permanent part-time employment.”. Clause 15 of the Certified Agreement is silent on the process of review to be undertaken with respect to LAAs. This has contributed to the parties’ difference over whether a review occurred. To try to resolve this difference the Commission examined the notes of the meetings held between Brisbane Transport and the ARTBU and their correspondence that were attached to Mr Newman’s affidavit. A constant theme running through the notes is that Brisbane Transport was seeking to implement the terms of the 1996 LAA. Brisbane Transport squarely indicated to the ARTBU in meetings and in correspondence that in its view this LAA imposed some restrictions on flexibility and said that it would seek to address these problems variously through the award rewrite process or such other (unspecified) means that were available. Brisbane Transport made it abundantly clear from the outset of discussions that it was not seeking to enter into protracted LAA negotiations but by 18 September 2002 it had acknowledged the common sense proposal of the ARTBU to incorporate part-time employees into a LAA. From the notes of the meetings and the correspondence it is clear that Brisbane Transport and the ARTBU spent a significant amount of time in 2002 discussing the introduction of part-time work for bus operators. Did this constitute a review? It would be reasonable to expect that in the consultative environment that exists within the Brisbane City Council that the process to review LAAs would be agreed, explicit and transparent, however, the parties informed the Commission that an established process does not exist. The nature of the review process undertaken pursuant to clause 15 of the Certified Agreement is largely dependent on the LAA to be reviewed and the relationship between the parties. The process varies from work area to work area. In this case it is evident that there was no agreement between the parties over the form of any review of the LAA. In the absence of a process being established in the Certified Agreement or elsewhere I have had regard to the dictionary definition of the word “review” to help resolve the question of whether the provisions of clause 15 of the Certified Agreement were met. “Review” is defined in the Pocket Macquarie Dictionary as “a looking again; a second view of something…to look over again.”. In light of this definition I am satisfied that a review of part-time work for bus operators occurred. In my view discussions clearly occurred over the terms that part-time work for bus operators could be introduced and this necessarily involved consideration of the terms that had been agreed in the 1996 LAA. Moreover, for Brisbane Transport to be able to introduce part-time work for bus operators by means of Award provision (the apparently preferred means), a process of review had to be undertaken given the provisions of clauses 15 and 25.5 of the Certified Agreement. Clause 15 makes provision for existing LAAs that reach their expiry date to continue to operate until the conclusion of the review/update process. Clause 25.5(2) provides that “Subject to the review/update process in clause 15, Local Area Agreements registered as a consequence of Brisbane City Council Enterprise Bargaining Agreement . . . during the period 1 January 1994 to 30 June 2001 will continue to apply until the conclusion of the review/update process.”. The 1996 LAA did not include within its terms a period of operation. With the exception of the present Certified Agreement, the certified agreements that have been in place at the Council have not specified a period of operation for LAAs. The present Certified Agreement provides that LAAs are to have a term not exceeding three years. The Council claimed that as a period of operation was not specified either within the LAA or by the previous certified agreements, the 1996 LAA was an open agreement that could only exist at the will of the parties after the review process had concluded. At that point it was open to one or both of the parties to withdraw from it. I am satisfied that the 1996 LAA was reviewed as part of the discussions between Brisbane Transport and the ARTBU in 2002. In terms of clauses 15 and 25.5 of the Certified Agreement a LAA remains in force until the conclusion of the review/update process. In the event of agreement not being -- 3 of 5 -- 23 May 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 281 reached it is open to one or both of the parties to withdraw from it. That this course is open to a party was not disabused by the President in Brisbane City Council v AMEPKIEU. Clause 24 Dispute Resolution establishes the process to be followed to avoid or settle industrial disputes. It emphasises a negotiated settlement as the desired outcome although the parties may either jointly or individually refer the matter to the Commission “for resolution”. The agreement about non-compliance with clause 24 was a matter raised by the ARTBU but not pressed in any detail. Neither did the Council respond in any detail to this matter. From the information available it seems that the issue was not processed in accordance with this clause as, at least in the view of the Council, it was being considered under clause 15 and/or clause 25.6. As already stated the Certified Agreement does not provide a specific process for reviewing or updating LAAs. Given however that clause 15 enables referral of the matter to the Commission by consent it could be argued that this clause operates to the exclusion of clause 24 unless an industrial dispute over the issue occurs. (ii) Is the application in breach of clause 25.8 of the Certified Agreement? (iii) The Certified Agreement covers the field. It is convenient to deal with these two arguments together. Hall P considered similar questions in the decision Brisbane City Council v AMEPKIEU. That decision dealt with an appeal by the Council against a decision of the Commission refusing to grant restraining orders against members of the AMEPKIEU from engaging in industrial action. The background to the matter was that City Fleet (another business unit of the Council) had withdrawn from a LAA providing for an 8 day fortnight in circumstances where agreement had been unable to be reached on the introduction of alternative working arrangements and despite the Commission proposing compromises. In response the AMEPKIEU made a claim for the making of a certified agreement dealing with an 8 day fortnight and proposed taking industrial action in support of that claim. Before Hall P the Council argued that the Certified Agreement made it clear that its treatment of the topic of the 38 hour week was exhaustive by barring the tabling of extra claims (as per clause 25.8) and confining negotiations about the matter of the 38 hour week to the review process detailed by clause 15 of the Agreement. In his decision Hall P said, “Clause 15 of the Certified Agreement provides a review process which is, in truth, a process by which the parties will attempt to agree but does not seek to guarantee the success of the process. It is in the nature of the process at clause 15 that new initiatives will be raised for discussion. Indeed, the parties’ commitment at clause 15 “to review and update existing Local Area Agreements (LAAs), and to develop and implement new LAAs which will deliver greater flexibility in working arrangements and lower operating costs…”, could not be met unless new initiatives were the subject of discussion. Whatever might be the meaning of the agreement at clause 25.8 that “no extra claims will be tabled during the life of this Agreement” it cannot be read to inhibit the raising of issues during the clause 15 process. The agreement is entirely silent as to that which is to occur if the process at clause 15 fails. Failure of the process inevitably will occur after issues have been “tabled”. There is nothing in clause 25.8 to disclose an intention that should the review process fail and a Local Area Agreement reach its expiry date, the Certified Agreement (or more fully the Certified Agreement and the Engineering Award – State) are to become an exhaustive statement of the rights and obligations of the parties upon the subject matter of the previous Local Area Agreement until the nominal expiry date of the Certified Agreement.”. Later in the decision the President considered whether the Certified Agreement was to regulate the whole of the terms and conditions of employment between the parties. He said: “ On occasion, arguments will be developed that a certified agreement displays an intention to provide the whole of the terms and conditions of the employment relationships to which it relates, so that an award provision dealing with a topic not dealt with in the Certified Agreement will inevitably be said to be inconsistent with the Certified Agreement because, if given effect, it would add additional terms. The purpose of clause 25.3 of the Certified Agreement is to negative such arguments. It expressly denies any intention that the Certified Agreement should cover the field. It provides: [The clause was set out]. That is the purpose of clause 25.3. Clause 25.3 is about the relationship between the relevant award and the certified agreement where the parties have failed to agree upon a matter. It is no part of the function of clause 25.3 to substitute for the lack of actual agreement a notional agreement in terms of the relevant award.”. In my view the President has decided that the Brisbane City Council Enterprise Agreement 2001 – Certified Agreement regulates only a limited number of terms and conditions of employment between the parties. It cannot be taken to “cover the field”. The answer to the question of whether the application is in breach of clause 25.8 of the agreement can, I think, be extrapolated from the decision of Hall P. If action can be taken to make a claim for a new certified agreement and industrial action taken in support of that claim, then it seems logical that a party can seek to vary the underpinning award. Before making any such application processes provided by a relevant certified agreement would need to have been undertaken. In this case where a LAA existed that covered the subject matter the review/update process would need to have been concluded prior to an application to amend an award being made. This approach would be consistent with the scheme of the Industrial Relations Act 1999. Unlike the Workplace Relations Act 1997 which placed emphasis on agreement making, the 1999 Act does not give primacy to one form of industrial regulation over another. This is evidenced by s. 3 Principal Objects of the Act where at (j) it provides: “promoting and facilitating the regulations of employment by awards and agreements.”. Moreover, there is nothing in Chapter 5 Awards that precludes or limits the Commission’s power to amend an award while a certified agreement is in force. An enterprise award, a certified agreement and LAA’s, as well as Council policies govern the conditions of bus operators. Where the relevant parties to a certified agreement have reviewed a LAA without reaching agreement, then I can see no impediment to an application for an award amendment being made or action such as that taken by the AMPKIEU in respect of City Fleet. In terms of an application to amend an award, the Commission would generally wish to be satisfied that negotiations between the parties had been exhausted before embarking upon arbitration. The difficulty with this case is that only part of the relevant LAA was reviewed and another, which is also the subject of this application, has not. (iv) Can industrial tribunals become involved without consent? On this matter the ARTBU relied on the following provisions of clause 15 Flexible Working Arrangements of the Certified Agreement: -- 4 of 5 -- 282 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 May 2003 “The Partners may seek the assistance of relevant industrial tribunals for conciliation, to facilitate resolution of any issue which is a barrier to the development of a draft LAA. The Partners will only involve industrial tribunals by consent.”. The ARTBU argued that because it has not given consent to the arbitration of the Council’s application, the Commission has no jurisdiction to arbitrate the matter. Clause 15 of the Certified Agreement deals with the reviewing and/or updating of existing Local Area Agreements. It is in the course of the review/update process only that the parties to the Certified Agreement acknowledge that industrial tribunals are to be involved by consent. * * * For the foregoing reasons the jurisdictional arguments raised by the ARTBU cannot be sustained. The application will be relisted on 26 May 2003 at 2 p.m. to schedule dates of hearing and inspections. The ARTBU did not press its jurisdictional argument with respect to the sign on/sign off aspect of the Award amendment application. It is the case that only the part-time provisions of the 1996 LAA were the subject of discussions in 2002. Other clauses of that LAA have been overridden by the 1998 Bus Operators Conditions of Employment LAA, have been superseded by policies of Council or included in certified agreements. The parties agreed that the sign on/ sign off provisions of the 1996 LAA were overridden by the 1998 LAA. The sign on/sign off provisions that are contained in the 1998 LAA provide reduced periods of time than the Award. In its application the Council claims that the Award provisions are obsolete and that the proposed amendments have been in operation for more than four years. The Council advised the Commission that the sign on/sign off provisions from the 1998 LAA were included in the Award amendment application because there was some doubt about whether the terms of that LAA would apply to part-time employees should that category of employment be introduced. The ARTBU are opposed to the 1998 LAA sign on/sign off provisions being included in the Award. As the Council indicated that the1998 LAA might have application to part-time employees in the event their Award amendment application was successful and in light of the views expressed by the ARTBU about the matter, the Commission directs the parties to confer about this part of the claim before the application on the merits is heard. Order accordingly. G.K. Fisher, Commissioner. Hearing Details: 2002 2 and 10 December 2003 3 and 26 March 2003 6 May Appearances: Mr A Herbert, Counsel, Mr J. Thompson, Mr G. Newman, and with him Ms K. Odgaard, and Ms Hone on behalf of the Brisbane City Council. Mr D. Matters, Mr P. Allen and Mr M. Trimble on behalf of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch Released: 09 May 2003 -- 5 of 5 --