Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2002] QIRC 168 (2002) 171 QGIG 400

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 November, 2002 400 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 280 – procedures for reopening s. 125 – making, amending and repealing awards s. 126 – content of awards Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (No. B1174 of 2002) APPLICATION FOR REOPENING OF PROCEEDINGS AND FOR AMENDMENT OF AN AWARD COMMISSIONER BLOOMFIELD 1 November 2002 Application to reopen proceedings and/or amend Award retrospectively – Extensive involvement of Commission in previous matters – Parties interpreting Award differently to the way it was intended – Unintended consequences of that interpretation – Matters of public interest – Commission exercised discretion to reopen earlier proceedings in respect to 2 matters – Decision to retrospectively amend the Award in first matter – Different history for second matter – Award amended from 26 September 2002 in second matter. DECISION Background In a decision released on 26 September 2002 (now published at 171 QGIG 104) I determined to reopen proceedings in relation to matter number B1881 of 1997 in several respects. In doing so I said: “Taking the whole of the history of the matter into account it is now clear to me that unintended consequences and anomalies could flow from the differing interpretations (above) being applied to the provision which I determined in March 1998. Consequently, as stated, I believe I have a duty to the parties, in the public interest, to reopen the proceedings so that I might further hear from the parties as to why I should not now further retrospectively vary the Award from 16 March 1998 to: (1) make clear that broken shift penalties do not apply to casual employees who might be engaged twice on the one day; and (2) make clear that casual employees are not excluded from an entitlement to special night allowances in circumstances which might otherwise give them a right to such allowance.”. When the matter resumed on 17 October 2002 Mr Herbert, Counsel for the Brisbane City Council (the Council), urged me to retrospectively amend the Award from 16 March 1998 in respect of item (1) above and to amend the Award from 17 October 2002 in respect of item (2). Mr Ross, solicitor for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (the Union) opposed any retrospective amendment to the Award which would have the effect of depriving casual employees of any broken shift penalties under the Award. He said the Commission had 3 options. Firstly, it could leave the Award in its current form. Secondly, it could impose a limit on the use of casual employees on broken shifts by limiting the spread of hours over which casuals could be engaged. Thirdly, it could increase the casual loading to compensate for the lack of protection against any excess spread of hours for which the “broken shift allowance” was payable. Mr Ross also opposed any alteration to the Award in respect of item (2) above on the basis the special night allowance had always been payable to casuals and no clarification of the provision was required. In respect of item (1), Mr Herbert simply observed that I indicated in my decision on 26 September 20002 that I had always intended, and explained to the parties very early after the March 1998 decision, that the special broken shift allowance did not apply to casual bus operators. Consequently, Mr Herbert requested that I simply amend the Award from 16 March 1998 to make clear my original intentions. In support of his contentions in respect of item (2) Mr Herbert led evidence, through Mr Michael Bentley the Council’s Payroll Function Analyst, about the mammoth administrative difficulties which would confront the Council if the Award was respectively amended to March 1998 requiring it to calculate special night allowances for casual bus operators. Mr Bentley gave evidence that the actual hours of work by casual bus operators are not retained as part of the history of the payroll system. The only record of the actual hours worked is a paper document generated out of the roster system which effectively constitutes a timesheet upon which there is provision for the start and finish times for 15 bus operators. The timesheets are forwarded to a payroll officer who inputs into a daily entry screen in the payroll system the start/finish times for the 15 individual bus operators. The Council’s Award Interpreter payroll system then interprets that raw data once a complete week’s worth of data is entered and calculates the hours for individual bus drivers. The Award Interpreter calculates applicable allowances on a daily basis but holds the data for a fortnight to allow adjustments to all penalty rates because of minimum and maximum hours payable over fortnightly periods and because overtime payments – also calculated over a fortnight – can override special night allowances, which might otherwise be payable, once the fortnight’s work is tallied up. -- 1 of 4 -- 15 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 401 The material in the payroll system is overwritten with new data after a further 2 weeks. It is thus not stored electronically. Mr Bentley said it would be a monumental job to attempt to reconstruct the timesheet and payroll records to calculate any special night shift allowances which might be payable to casual bus operators if the Commission was of a mind to retrospectively amend the Award. He said there were approximately 1,050 regular bus runs per week day and 750 regular bus runs per weekend plus any additional or special bus runs. On a weekly basis there were approximately 6,000 regular bus runs scheduled, with 15 of those bus runs being recorded on each timesheet. Further, because the timesheets were based on bus runs they did not separate full-time and casual bus operators. Mr Bentley said for the Council to calculate any entitlements which might be owing to casual employees if the Award was amended retrospectively from 1998 it would be necessary for the Council to search through approximately 91,200 separate timesheets to attempt to identify the casual bus operators. Mr Bentley said it would take a minimum of 3 hours for a Council officer with experience of the payroll system to examine timesheets and to conduct a calculation of the special night allowance for casual bus operators with respect to a single given day. In addition, it would be necessary for the payroll officer to cross-reference timesheets for individual casual drivers on a fortnightly basis because wages were calculated fortnightly to factor in premium overtime rates, in lieu of other allowances, like the special night shift allowance, as outlined above. Mr Bentley conservatively estimated that it would take a Council officer (or officers) approximately 4,790 hours to examine all of the timesheets since March 1998 and to calculate any special night allowances which might be owing to casual bus operators. Under cross-examination Mr Bentley identified that approximately 15% to 20% of timesheets could be ignored because they involved bus runs which started or finished inside the hours mentioned in the special night allowance provision. However, this would still involve Council officers in nearly 4,000 hours of work to peruse timesheets and to calculate any special night allowances for casual bus operators. Mr Herbert argued that equity and good conscience considerations dictated that the Council not be required to conduct the very onerous exercise that Mr Bentley had given evidence about. Mr Herbert said that the Council had acted in good faith and had openly and transparently applied the special night allowance provision in the way that it had for a number of years without any objection by the Union or by casual bus operators. In this regard he highlighted that a number of the first casual bus operators who had been engaged as such were permanent drivers who had elected to transfer to casual employment. Notwithstanding that those drivers had not been paid special night allowance there had been no complaints from them or from the Union for many years. Those circumstances had induced the Council to believe that what it was doing was correct and that position had not been overridden until the Commission’s decision of 26 September 2002. Mr Herbert said that while the Council accepted the Commission’s recent decision that special night allowance should (now) be paid to casual employees, the equity, good conscience and the substantial merits of the case dictated that any amendment to the Award should not operate retrospectively. Mr Herbert said there were “insuperable logistical obstacles” involved in calculating any entitlements. The cost of ascertaining any liability for any special night allowances would be likely to far outweigh the amounts of money which might be involved. Finally, Mr Herbert stressed that it was entirely arguable that the existing Award provisions did not give casual bus operators an entitlement to special night allowance. However, rather than pursue that line of argument, the Council had accepted the Commission’s decision on 26 September 2002 that casual bus operators should now be entitled to a special night allowance. Mr Herbert said the Council’s proposed amendments to the Award (Exhibit 20) reflected that acceptance and also included a provision designed to include the concept of ordinary time for casuals when the Award did not (currently) express any such concept. Mr Herbert said this was a major concession by the Council and, arguably, gave casual employees an entitlement to the special night allowance in circumstances where an equivalent full-time bus operator might not be so entitled because of the way that the fortnightly pays were calculated. Mr Ross argued there was currently no prohibition on any employee working a broken shift, be they permanent or casual. If a permanent employee worked a broken shift they must be paid for a minimum of 8 hours. If a casual employee worked a broken shift they were paid for the hours actually worked. Technically, there was no entitlement to what had been colloquially referred to during the proceedings as a “broken shift allowance”. There was no allowance paid merely because a bus operator worked a broken shift. Rather, the allowance was paid because of the extensive spread of hours involved in working a shift(s) broken into several parts. In this regard, casual bus operators were subjected to the same inconvenience and disabilities as were full-time bus operators when they worked “broken shifts”. Mr Ross also referred me to my original decision in March 1998 and the reasons, he said, why I had decided to amend the Award in the first instances to allow the Council to engage casual bus operators. In particular, he highlighted aspects of the Council’s original application and the amendment which ensued. He also said that the way that casual bus operators were now being engaged by the Council was not consistent with my (perceived) original conception. For that reason, he argued, “it would be inappropriate not to revisit the intention of the clause in respect of the spread of hours provision.”. Mr Ross also argued that it was never suggested in the original proceedings that the casual loading and its make-up included compensation for allowances or shift penalties. Consequently, he argued, if the Commission was of a mind to amend the provisions relating to casual operators then it must also recognise that the loading for casual employees does not (and did not) compensate such employees for not receiving the spread of hours allowance (i.e. the broken shift allowance). Finally, Mr Ross rejected the Council’s contention that it should not be required to pay any special night allowances retrospectively because of the difficulties involved in calculating the entitlements of its casual bus operators. Mr Ross said employees should not be deprived of their legitimate entitlements because of the Council’s inadequate payroll systems. He referred me to another decision of the Commission in re Queensland Nurses’ Union of Employees v Anglican Church Grammar School 168 QGIG 370 where the Commission member involved had ordered back payments based upon an averaging process over a period of time. However, it should be noted that that case involved only 2 employees, where the logistical exercise was far different from that envisaged here, compared to approximately 500 casual bus operators, employed at various times over a 4½ year period, who would be subject to the decision in this matter. Conclusions Broken shift allowance At the outset it is necessary for me to formally reject Mr Ross’ suggestions as to how I should approach this matter. The fresh proceedings on 17 October 2002 were not for the purpose of allowing parties an opportunity to re-argue the merits of the original decision. The proceedings were to be solely about the question of whether I should retrospectively amend the Award as proposed on 26 September 2002. As such, I shall confine my deliberations in this decision to that issue alone. In my decision of 26 September 2002 I made it clear that it had always been my intention that casual bus operators were not to be entitled to the broken shift allowance payable under clause 4.9 of the Brisbane City Council – Bus Transport Employees’ Award. Indeed, I recorded that I had made that view plain to all parties – especially Mr Matters on behalf of the Union – during a dispute conference in matter number D188 of 1999. -- 2 of 4 -- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 November, 2002 402 Evidence in the original proceedings in matter number B1881 of 1997 led me to conclude that it was always Council’s intention to offer work to casual bus operators who were interested in engagements for the morning peak hour runs as well as the afternoon peak hour runs so as to improve its base cost structure through better utilisation of labour to meet the needs of bus travellers. Indeed, the evidence was that the Council was incurring unnecessary costs because it was forced to engage permanent employees for minimum shift periods – which often included periods of down time – or pay them overtime to cover one or other of the peaks. The amendment which I inserted allowing the Council to engage casual bus operators included a provision that “(t)here will be a maximum of 2 work periods for shift of duty”. That provision was always designed to allow the Council to engage casual bus operators on a maximum of two occasions during any one day, as part and parcel of the way that casual employees might be utilised, without any penalty payment. I had always contemplated that the broken shift allowance would not be payable to casuals because it would not encourage the Council to re-engage the same driver on the same day and because lack of an opportunity to work a second engagement would severely restrict the possible earnings of the casual bus operators. As it now transpires there was an oversight in the original amendment in that I did not make it clear that casuals who availed themselves of a second offer of work on any given day would not be entitled to the “broken shift allowance” set out at clause 4.9. Accordingly, for the reasons outlined on 26 September 2002, and the additional reasons outlined above, I propose to further amend the Brisbane City Council – Bus Transport Employees’ Award to make clear that casual bus operators may be engaged on 2 occasions during any one day – irrespective of the spread of hours over which they may work – without the bus operator becoming entitled to the “broken shift allowance” reflected in clause 4.9 (Spread of hours). To make the meaning to be given to the provision clear, I propose to amend clause 3.1(9)(c) by removing the existing wording and substituting in lieu thereof the following: “(c) There will be a maximum of 2 work periods each day.”. Further, I will also amend clause 4.9 by adding after the word “conductors” the words “(other than casual employees).”. Both amendments will apply from 16 March 1998, the date of the original amendment. Special night allowance Clarifying the entitlement of casual bus operators to the special night allowance gives me more concern. In my decision of 26 September 2002 I indicated: “At no stage in the arbitration proceedings leading to the introduction of the casual employees provision did Council foreshadow an intent to subsume any special night allowances into the casual loading. Further, and more importantly, the application of the special night allowance provisions were the subject of extensive discussion between the parties in the 6 months which followed my decision to insert a casual employees provision into the Award. At no stage during those 6 months of discussions did the Council indicate to the Union, in my presence, that the special night allowance provisions they were negotiating would not have application to all bus operators. Consequently, unintended consequences may flow unless this entitlement is, also, made clear.”. In my decision of 26 September 2002 I indicated that I had not intended that my decision of 16 March 1998 would deprive casual bus operators from any entitlement to other Award provisions that they may otherwise be entitled to. I also indicated that I should now make clear that casual bus operators were entitled to the special night allowance and called upon the parties to address me why the Award should not be retrospectively amended in that respect. After considering all of the issues raised – especially the evidence of Mr Bentley – I have now decided that it would be inappropriate for me to retrospectively amend the Award to provide for an entitlement to the special night allowance for casual bus operators before 26 September 2002. There is a clear difference between the histories of the broken shift allowance and the special night allowance and the way that the Commission and the parties have both approached the respective matters. The Commission had always, consciously, intended that casual employees could work for a maximum of 2 occasions on any one day as part and parcel of the way that the Council was entitled to engage casual bus operators without any entitlement to the broken shift allowance. That position was made plain to representatives of the Union during dispute conferences some 12 months after the original provision was inserted. No issue was taken with my clarification of my decision at that time and, until recently, the Commission as presently constituted had been unaware that there was any continuing or residual dispute about the interpretation to be given to the broken shift allowance provision. As I indicated in my decision of 26 September 2002, I would have amended the Award in 1999, or subsequently, to make my intention clear had any further disputation arisen around the issue. The history of the dispute concerning casual bus operators’ entitlement to the special night shift allowance is quite different. In framing my decision of 16 March 1998 I did not intend that my amendment to allow the Council to engage casual bus operators should deprive such casual bus operators from other entitlements which they would be due under the Award as a normal employee. However, no dispute about the matter came before the Commission as presently constituted and there was no opportunity, as there was in the case of the broken shift allowance dispute, to clarify the Commission’s intent. The first apparent “dispute” about that matter did not arise until 20 December 2000 when the Union wrote to the Council drawing to its attention its failure to pay the special night allowance to casual bus operators. The next time that the matter seems to have arisen was when the Union lodged application number W29 of 2002 on 8 March 2002 in the form of a wages claim. That claim, and the implications which arose from it, led the Council to lodge the present application to reopen and/or retrospectively amend the Award. Accordingly, it was not until 26 September 2002 that I, for the first time, had the opportunity to express the view that casual bus operators should not be deprived of any entitlement to the special night allowance by virtue of the amendment which I inserted in March 1998. In that regard it needs to be recorded that whilst I did not intend that the 1998 provision would have the effect of depriving casual employees of any entitlement which they would otherwise have, I did not have any specific (positive) intention in mind, at the time, that they were to be paid the special night allowance. This is to be contrasted with the way that I approached the broken shift allowance. There, I positively had in mind that casual bus operators would not be entitled to payment of such allowance and, until recently, I thought that provision was clear and the parties had been applying the provision in the way I had always intended. -- 3 of 4 -- 15 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 403 Consequently, in light of the different history concerning the second matter it is necessary for me to consider whether I should amend the Award retrospectively from 16 March 1998 to make clear that casual bus operators are not excluded from an entitlement to special night allowances in circumstances which might otherwise give them a right to such allowance, or whether I should amend the Award from a more recent date. After carefully considering the whole matter I have decided that I will only amend the Award from 26 September 2002 to make it clear that casual bus operators are to be entitled to the special night allowance from that date, and not before that date. In reaching that decision I have taken into account the following matters: • the unchallenged and undisputed practice of the Council from 1998 until the matter was first challenged in late December 2000; • the apparent acceptance of the practice by the Union and its members (many of whom were full-time employees who converted to casual employment) during the whole of the period 1998-2000; • the mammoth exercise involved in now attempting to recalculate the entitlements of approximately 500 casual employees who have been engaged during the period 1998-2002 (or even between December 2000 and now); • the possibility that there might be up to 500 unpaid wages claims lodged covering the period from March 1998 until September 2002 if the position in respect of that whole period is not made clear; • the fact that there is an arguable case that, in absence of a specific amendment to the contrary effect, casual bus operators are not entitled to the special night allowance; and • the fact that the Commission has only now, for the first time, positively expressed the view that casual bus operators should be paid the special night allowance – as opposed to my original intention that they not be deprived of any entitlements which they might otherwise have. The amendment to the Award which I propose to insert at the end of the existing clause 3.13 is as follows: “Provided further that: (a) no casual employee shall be entitled to payment under this clause for any work performed prior to 26 September 2002; and (b) after 26 September 2002, casual employees shall be entitled to payment under this clause for all hours worked between 6.00 p.m. and 7.00 a.m. for which overtime or penalty rates are not payable, as if all such hours were ordinary time payable at ordinary rates.”. Drafts of the proposed amendments to the Award are appended to this decision. The parties are directed to provide any comment in relation to the amendments which they may wish to make within 10 days of the date of release of this decision. Such comment will be considered prior to the amendment being gazetted. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Hearing Details: 2002 17 October Released: 1 November 2002 Appearances: Mr A. Herbert, of Counsel, instructed by Mr G. Evans of Brisbane City Council Legal Service, for the Applicant. Mr S. Ross, of Reidy & Tonkin, with him Mr D. Matters for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch, for the Respondent. -- 4 of 4 --