Brisbane City Council v Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2002] QIRC 147 (2002) 171 QGIG 104

104 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 October, 2002 ######################################################################################################################### ## 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 VARIATION OF AN AWARD COMMISSIONER BLOOMFIELD 26 September 2002 Application to reopen proceedings and/or vary 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 – Reopening is an exercise of discretion – Appropriate to exercise discretion on this occasion to reopen proceedings in relation to two matters – One other matter referred to another Member of the Commission. DECISION Background The Commission has before it an application by Brisbane City Council (the Council) made pursuant to s. 280, s. 125 and s. 126 of the Industrial Relations Act 1999 in relation to the Brisbane City Council – Bus Transport Employees’ Award (the Award). The application asks the Commission to: (a) reopen proceedings in No. B1881 of 1997 and, more particularly, to vary the Award made by the Commission as presently constituted on 16 March 1998; (b) reconsider the terms of the variation to the Award insofar as they relate to casual bus drivers; and (c) further vary the Award with retrospective effect to 16 March 1998 making clear casual employees are not entitled to: (i) payment of special night allowance; (ii) payment of broken shift allowance; and (iii) payment of compounded casual and weekend penalty rates. The application for reopening and/or retrospective variation of the Award was opposed by the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (the Union). The Council contended that the Commission’s decision of 16 March 1998 had been the subject of extensive discussion between the parties at which time the implications of the introduction of casual employment provisions were exhaustively discussed and subsequently settled and apparently agreed. The Council said it had paid casuals in accordance with the agreed arrangements with the apparent concurrence of the Union from 1998. However, in 2001 the Union had begun to dispute aspects of the application of the Commission’s decision based upon its (then) interpretation of the Award provision. The Council denied the interpretation contended for by the Union and continued to pay casuals in accordance with the alleged agreed procedure. Subsequently, the Union had commenced proceedings in the Commission (No. W29 of 2002) in which it sought recovery of amounts allegedly underpaid based upon its interpretation of the Award provision. -- 1 of 6 -- 11 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 The Council’s application went on to state: “(h) Having regard to the history of this matter, and the apparent intent of Commissioner Bloomfield as disclosed in his reasons for decision of 16 March 1998, and the subsequent dealings between the parties concerning the implementation of that Award variation, the Council asserts that the Union is now seeking to take advantage of the economical wording of the Award to advance unjustifiable arguments, and make claims, which were not intended by the Commission or the parties to be available to the Union when the Award variation was implemented in 1998. If those arguments are to succeed, much of the stated purpose and intent of the decision of the Commissioner will be defeated and frustrated. (i) In order to clarify the true meaning and intent of the Commissioner’s decision in 1998, and to eliminate the possibility of the arguments now brought by the Union in Matter No. W29 of 2002, and to achieve a fair and just result as between the parties in Matter No. W29 of 2002, the Council now seeks to reopen the proceedings number B1881 of 1997 and to further vary the Award, with retrospective effect to 16 March 1998, to give true expression to the intent of the Commission, and the understanding of the parties as evidenced by their actions between 1998 and 2001. (j) As the Council has proceeded to implement the decision of the Commission in an open and transparent manner and in good faith for some three years before this issue was raised, and some four years to the present time, the consequences of the Award now being interpreted in a manner which is at variance with the Council’s actions, will be that the Council is exposed to back payments of wages of substantial proportions, which payments have not been accounted for or budgeted for in the activities of Brisbane Transport. (k) As a consequence of the foregoing, the Council seeks reopening of the proceedings and a full re-examination by the Commission of the outcome of those proceedings, in order to ensure that the intent of the Commission is given effect to, and another member of the Commission is not now required to embark upon an analysis of the earlier decision of Commissioner Bloomfield in circumstances where the matter might be more expeditiously rectified by a determination by Commissioner Bloomfield.”. In a very vigorous defence Mr S. Ross, on behalf of the Union, submitted that the application sought to avoid the due processes of the Commission and sought to circumvent the proceedings under way in Matter No. W29 of 2002. Mr Ross said a reopening should not be granted (in the absence of substantial merit) where the confidence of the persons using the processes set out in the legislation would be undermined. Such users needed to have confidence that reliance upon the provisions of the legislation is sufficient, especially in relation to procedural aspects. (United Fire Fighters’ Union of Australia, Union of Employees (Qld) v Queensland Police Union of Employees (1995) 148 QGIG 437). Mr Ross said the purpose of reopening was explained by Moynihan J. in re FEDFA (Qld) (1987) 126 QGIG 340 in which His Honour adopted the formulation of a Full Bench of the Commission in re Teachers’ Award – State (1974) 86 QGIG 611 that, in order to found an exercise of a jurisdiction to reopen, it is to be shown that “some vital and relevant material which was not available at the hearing is now available.”. Mr Ross said to retrospectively vary the Award would be to undermine the confidence of the people working under the Award. Drivers and others were entitled to place reliance on the terms of the Award as they have existed for the last 4 years. Mr Ross said “any reworking of the existing provisions may well require a reconsideration of those components of the decision that went to the relationship with the Award variations and the Safety Net. It is not in the public interest to overturn established Award clauses that emerged out of hotly contested proceedings in which the issues were fully canvassed and open up a Pandora’s Box of issues …”. He said the attempt by the Council to reopen the proceedings could only be seen as an attempt by a party “wise in hindsight and enlightened by failure” (see Moynihan J. in re FEDFA (supra)) attempting to create an opportunity to retrieve its position. Such attempt should be rejected. The Council had failed to show any vital or relevant material that had come to light which was not available at the original hearing. Mr Ross said if the Commission was to allow the Council application, then in every case in which an industrial organisation attempted to enforce the terms of its Award, a party would be able to stop the Commission (or a Magistrate) from proceeding with the matter before it by simply lodging an application to retrospectively vary an Award (Perkins v Offset Alpine Printing Limited – unreported decision of (NSW) Chief Industrial Magistrate G.A. Miller, 9 August 2002). Evidence Evidence was given by Mr J. Thompson, Mr M. Bentley and Mr P. Chicoteau on behalf of the Council and by Mr D. Matters on behalf of the Union. Mr Thompson’s evidence concentrated on the background to the lodgement of application B1881 of 1997 and various other proceedings which were conducted in the Commission both prior to, and subsequent to, the Commission’s decision in that case. In particular, he highlighted the existence of D332 of 1997 which related to the Council’s attempts to introduce changes to work practices so as to achieve efficiency targets for the Brisbane Transport bus system. Those proceedings had commenced before Commissioner Fisher on 22 September 1997. During the currency of that dispute the Council had lodged application B1881 of 1997 on 20 October 1997. The application was wide ranging and sought not only the right to engage casual bus operators but variation to a whole range of other provisions including: special night allowance, hours of work, days off, spread of hours and late services. It first came before the Commission as presently constituted on 24 November 1997. Initially, the application was not progressed pending developments in D332 of 1997. However, by 6 February 1998 the Commission as presently constituted had decided to hear and determine B1881 of 1997. A decision on the matter was issued on 16 March 1998 when the Commission determined that the case in support of the Council’s application to allow it to engage casual bus operators was overwhelming. Mr Thompson also indicated that shortly after I issued my decision a dispute arose between the Union and the Council about the implementation of the decision, and other matters. That dispute also came before the Commission as presently constituted as D72 of 1998. At the same time, at the direction of the Chief Commissioner, I was assigned matter D332 of 1997. The records of the Commission show that between 26 March 1998 and 16 September 1998 the Commission as presently constituted chaired 13 conferences in relation to matters D332 of 1997 and D72 of 1998. Mr Thompson said it was his recollection that, in addition to the conferences before the Commission, the parties met on other occasions to discuss all of the issues in dispute. These included the other matters in B1887 of 1997. It was his recollection that the discussions also covered issues surrounding the implementation of the new casual bus operator provision in the Award. Mr Thompson said the Council first engaged casual bus operators in about May 1998. At no time since their engagement had they been paid broken shift allowances, special night allowances or cumulative weekend penalties. Mr Thompson said that on 27 March 2001 the Union first notified the Commission of a dispute about the non-payment of special night allowance and payment of broken shift penalties. Until just before that time the Council had believed it was paying its casual employees in line with the Award provision and in accordance with the understandings reached with the Union in the various conferences during 1998. -- 2 of 6 -- 106 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 October, 2002 Mr Bentley gave evidence about the rules for payment of casual bus operators which he had programmed into the Council’s payroll calculation database called “Award Interpreter”. He said the Award Interpreter database had been implemented for casual bus operators on 13 August 1998. Prior to that, payments to casual bus drivers had been calculated manually. The payroll system showed that one casual had been employed on 1 April 1998, 2 in May 1998, 12 in June 1998, 13 in July 1998 and 15 in August 1998. Since that time casual bus operators had regularly been recorded on the system. Mr Bentley said that on the basis of the program casual bus operators were not, and never have been, paid a special night allowance or broken shift penalties. He also said that the database disclosed that there were approximately 20 people who had elected to convert from permanent bus operators to casual bus operators. Mr Bentley also said that there had been some other changes made to the database after it was first introduced. One such change was to calculate overtime payments after 9 hours per day or after 62 hours per fortnight. This had occurred on 12 October 1998. There had also been a change in May 1999 to provide for a minimum payment of 2 hours to casuals for each engagement. Previously the system had shown this to be a daily minimum. Mr Chicoteau said he participated in discussions during 1998 in a joint committee of senior Brisbane City Council officers and Union officials. He said the implementation committee, as it was known, discussed a whole range of issues associated with the introduction of a local area agreement covering Brisbane Transport, including the new Award provisions relating to casual bus operators. Some of these issues flowed over into conferences in the Industrial Relations Commission – including an issue in relation to overtime arrangements for casuals. The arrangement for payment of overtime to casuals was included in a range of understandings placed on the record after a full day of discussions on 3 September 1998. Mr Chicoteau said that on 3 September 1998 he was well aware that casual bus operators had not to that point in time been paid a special night allowance and/or broken shift penalties and if some suggestion had been made by the Union on that day that those things should be paid he would have been particularly surprised. He said his recollection of the series of discussions in the Industrial Commission was that whilst the Union did raise some issues about the payment of a special night allowance and broken shift payments it only did so in the context of full-time bus operators. He said if the Union had any concerns about the Council’s practices in relation to casual bus operators it did not raise any of these concerns during the conferences in circumstances where it had every opportunity to do so. Mr Chicoteau also said he had arranged to extract the employment records of 3 casual bus operators engaged by the Council in April, May and June 1998 respectively. As a result of the examination of their employment records, covering their first 6 weeks of work as casual bus operators, he established they had worked a variety of work patterns, including two episodes of work on a day, straight through episodes of daily work, night work and weekend work. He said the 3 casual bus operators referred to above were amongst a number of bus operators who converted from permanent to casual status. Prior to converting to casual status those bus operators would have been entitled to receive broken shift payments and special night allowances whilst working as permanent bus drivers. However, when they converted to casual bus operator status they did not receive such payments. Mr Chicoteau said neither the operators or the Union had complained about the changed pay arrangements after the employees converted to casual bus operator status. Mr Chicoteau also confirmed that, as a result of an approach from the Union, the Council had accepted in early 1999 that it had incorrectly been paying casuals for a minimum payment of 2 hours per day rather than 2 hours per engagement. This practice had altered in May 1999 (see Mr Bentley’s evidence above) and appropriate back-pay had been made to casuals affected by the Council’s error. Mr Matters recalled that during the course of 1997 the Council sought to pursue a number of variations in relation to the way it operated and the Union was involved in extensive discussions with the Council on those matters. This included several conferences before Commissioner Fisher. Towards the end of 1997 the Council filed application B1881 of 1997 which sought to pursue its reform agenda by way of a variation to the Award. Specifically, the application sought amendments to the Award going to casual employees, special night allowance, hours of work, meal time, minimum hours, days off, spread of hours, late services, statutory holidays, time for signing on and signing off for bus operators and conductors. Mr Matters said the contents of the application were the subject of a series of further conferences before Commissioner Fisher as well as other meetings between the parties. In or about February 1998 the Council requested that the matter of casual employees be prised off from the remainder of the matters and that it be dealt with by arbitration. Ultimately, after a very hotly contested case, the Commission as presently constituted handed down a decision on 16 March 1998 granting the Council’s application to be allowed to engage casual bus operators. Subsequent to the decision of the Commission the Union continued to negotiate about the implementation of the decision as well as a whole range of other matters relating to working arrangements for bus drivers. Some of those discussions resulted in a local area agreement on hours of work. The negotiations on casual employees included the application of overtime provisions to casual employees. Mr Matters said there were further agreements to bring casual employees subject to the operation of the local area agreement. However, the agreement did not settle all matters and further conferences were held before the Commission. One such matter was the issue of broken shifts which was the subject of a conference on 3 September 1998. Mr Matters claimed that the Union had first disputed non-payment of broken shift allowances to casuals by way of correspondence to the Council on 20 January 1999. He also said the Union had filed a dispute notification in respect of that matter which had come before the Commission as presently constituted as Matter No. D188 of 1999. Mr Matters said the Union had contacted the Council on 20 December 2000 drawing to its attention its failure to pay the special night allowance to casual bus operators. He said the Union had again raised the issue of Council’s failure to pay broken shift penalties in February 2001 and that matter had later come before Commissioner Asbury as a dispute conference on 12 April 2001. Following consideration of comments made by the Commissioner the Union had sought legal advice which culminated in the lodgement of W29 of 2002 by way of a test case. Mr Matters was extensively cross-examined by Mr Herbert, Counsel for the Council, about correspondence which the Union had written to the Council and about the various proceedings which had occurred in the Commission during 1998 and subsequently. In particular, Mr Matters was questioned about the Union’s current interpretation of the Award provisions viz a viz the way it had acted in the past. Mr Herbert especially took Mr Matters to the Union’s correspondence of 20 January 1999 where Mr Matters alleged the Union had claimed broken shift payments for casuals. Mr Matters was also questioned about the Union’s attitude to that same matter as demonstrated in the transcript in D188 of 1999, especially at page 14. Relevant Case Law Each of Mr Herbert and Mr Ross referred me to a number of leading cases which record the types of matters the Commission has traditionally taken into consideration when determining whether to reopen a matter. Without being exhaustive the cases they highlighted were re Teachers Award – State (1974) 86 QGIG 611, R v Queensland Assn of Teachers in Independent (Non-Governmental) Schools, Union of Employees (1991) 138 QGIG 90, re FEDFA (Qld) (1987) 126 QGIG 340, and United Fire Fighters Union of Australia, Union of Employees (Qld) v Queensland Police Union of Employees (1995) 148 QGIG 437. A number of other authorities are canvassed in the annotated version of Butterworths “Industrial Law of Queensland”, including R v QATIS (1991) 138 QGIG 90 where a Full Bench said, at 93: -- 3 of 6 -- 11 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 107 “We make it clear that reopening of a decision could not be justified merely because it is perceived as inappropriate and may have been made upon issues which were canvassed less than adequately. There are wider considerations to which we must direct our attention including those pertaining to public interest ….”. In Queensland Nurses Union of Employees v Aged Care Queensland Inc (1996) 152 QGIG 1857 de Jersey J. referred to a number of the authorities and observed, at 1858: “Section 46 of the Act accords an unfettered discretion to reopen. Had the legislature intended to limit the exercise of that discretion in any particular way, it could have done so, but has not. In the Teachers’ Award case, a Full Bench of the Commission expressed this view:- ‘This Commission holds the strong view that a matter which has been fully argued by all of the parties, and in respect of which a decision has been given on the merits, should only be reopened if it can be shown that some vital and relevant material which was not available at the hearing, is now available or that the Commission has made an obvious error or created clear anomalies or has been in some manner misled in arriving at its original decision.’. That highly persuasive statement provides most helpful and compelling guidance as to the manner in which the discretion under s. 46 should ordinarily be exercised. But in the end, it can offer no more than a “guideline”. As said in Stollznow v Calvert (1980) 2 NSW LR 749 at 752 (adopting a statement by Walsh J. in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 at 411):- ‘There is a tendency to propound rules which are to govern the exercise of (a) discretion in the sense that it will be fettered by them. It is entirely proper that, in the exercise of a judicial discretion, guidance should be sought and obtained from decided cases of a similar kind, but I think that care must be taken to ensure that a discretionary power it not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors on the case which may point to the opposite conclusion.’.”. Chief Industrial Commissioner Hall (as he then was) also noted in United Fire Fighters’ Union of Australia, Union of Employees (Qld) v Queensland Police Union of Employees (supra) that the provisions of s. 46 of the (then) Act vests the Commission with a discretion. However, although the power to reopen is clearly discretionary, the relevant authorities make it clear that the discretion must not be exercised lightly or without good reason. Factors which have grounded the exercise of the discretion to reopen proceedings in the past have included: (a) the availability of vital and relevant material which was not available at the original hearing; (b) an apprehension that the Commission has made an obvious error or created anomalies; (c) information that the Commission has been in some manner misled at arriving at its original decision; (d) the creation of undesirable outcomes as a result of a decision; and (e) public interest considerations. Should the discretion to reopen be exercised on this occasion? The history of this matter makes it clear that the application to reopen and/or vary the Award retrospectively is not a case of “a party wise in hindsight and enlightened by failure” seeking to retrieve its position. Rather, it is a case where the single employer party to an Award has applied the provisions of an Award limited in its scope in a way which it believed, from discussion, the Commission had intended and the other party to the Award had agreed. The application arises because actual, or possible, unintended consequences of the variation to the Award as a result of proceedings in B1881 of 1997 have become apparent as a result of recent events. After considering all of the evidence, exhibits and submissions I have decided that it is appropriate on this occasion for me to exercise my discretion to reopen proceedings in Matter No. B1881 of 1997. In deciding to exercise my discretion to reopen the proceedings I have particularly drawn on my extensive knowledge of the history of this matter – including my knowledge of the negotiations between the Union and the Council concerning the ultimate implementation of certain parts of the provision which allows the Council to employ casual bus operators. In that regard, the Commission as presently constituted chaired 13 conferences between the parties following the determination in B1887 of 1997, being conferences in relation to matters D332 of 1997 and D72 of 1998. During those extensive conferences the parties discussed a whole range of issues going to hours of work, broken shifts, late night penalties, weekend work, spread of hours and so on. Those discussions occurred in the context of the Council’s desire to improve the efficiency of its bus service in order to gain continuing State Government funding. Although these discussions extensively focussed on the conditions of employment of full-time bus operators there was also specific discussion about certain aspects of the employment of casual bus operators at the same time. For example, the transcripts of the above disputes show that the parties specifically discussed the method of paying overtime to casuals and that they also discussed the maximum hours that casuals might work on a fortnightly basis. Further, the record of proceedings in D188 of 1999 makes it clear that the parties discussed the applicability of broken shift penalties to casual employees following which the Commission itself, for the benefit of the parties, explained in detail the rationale behind clause 3.1(9)(iii) and the reasons why casual bus operators were not entitled to payment of the broken shift payment in context of the issues raised by the Union at that time. However, the most important aspect which I have taken into consideration when determining to exercise my decision to reopen the proceedings was the evidence of Mr Chicoteau and Mr Matters. Their evidence made it clear to me that each of the parties to the Award is interpreting the provision dealing with the engagement of casuals in at least one way which was not intended by me when I made the Award variation in its current form. If those interpretations are allowed to stand unintended consequences and clear anomalies will result. In particular, based upon my actual knowledge of discussions between the parties (particularly in D188 of 1999), the Union’s claimed interpretation of the provision dealing with broken shifts is now inconsistent with understandings which I believed the parties had previously reached, and with the effect which I had intended the provision should have. In that regard, Mr Matters’ evidence convinces me that the Union is now seeking to interpret the terms of the Award provision going to broken shift penalties in a way which was not intended by me when I inserted it and also in a way which is contrary to the Union’s earlier expressed interpretations of the same provision. Mr Matters’ Exhibit DM3 is a letter to the Council, dated 20 January 1999, in relation to broken shifts. The Union’s interpretation of the provision at that time is, in my view, clear on its face. The letter is in the following terms: -- 4 of 6 -- 108 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 October, 2002 “In relation to the use of casuals, we note that casuals have been worked broken shifts with excessive spread of hours. We believe that this is not a very humane way to treat employees and what we understand occurs, is that casuals brought in for a couple of hours in the morning then signed off for up to 7 hours and then returned to work in the afternoon to work maybe 4 or 5 hours. This appears to be an evasion of the award condition or payment of broken shifts with award condition of broken shifts having been brought in to restrict excessive hours and excessive spreads of hours. We ask you to change this practice.”. Although Mr Matters claimed in his evidence that the letter was a claim for payment of broken shift allowance and that his Union was disputing the Council’s practice of not paying it at the time, such reading is not available. In my view, the Union was objecting to the practice of employing casuals on broken shifts because it allowed the Council, in the Union’s view, to avoid paying the same broken shift penalties which it would have to pay to full-time employees. Confirmation that the Union’s interpretation in 1999 was as I have stated is shown in the transcript of D188 of 1999. At page 14 Mr Matters observed, in relation to casuals, that: “… an advantage is given to the employer where they work two portions of work effectively now, in a broken shift arrangement, in which they don’t have to treat that as if it was a broken shift ….”. Importantly, having regard to the issues then under discussion, the Commission clarified for the benefit of the parties at pages 17 and 18 of that transcript the rationale behind the meaning of clause 3.1(9)(iii) and the fact that broken shift payments were not payable to casuals who were engaged for 2 work periods during a day. Indeed, the Commission’s explanation was merely endorsement of the general views expressed by Mr Matters and his colleague, Mr Ferguson, about the operation of the broken shift payment. The Union’s subsequent actions demonstrated to me that the Union did not have any issue with the Council’s application of the provision as such at that time but, rather, disputed how the provision was being used by the Council. Had the Union disputed the application of that provision in the conference on 20 July 1999, or subsequently, I would have acted to vary the Award to make its intent absolutely clear. Similarly, the evidence of Mr Chicoteau also discloses to me that the Award provision dealing with special night allowances is not being applied in a way which I had intended nor in accordance with the general outcomes reached during the 13 conferences which I chaired between March and September 1998. 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 considered view, if a provision in an Award is being applied (or if there is a risk of it being applied) contrary to the way that the Commission member who inserted it intended then that Member has a duty to the parties, in the public interest, to amend the variation to make its intent clear beyond any doubt. To do otherwise would leave either, or both, of the parties in the situation where they would have to suffer any unintended consequence, or result, of that Award variation. 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. However, I have decided not to exercise my discretion to reopen the proceedings insofar as they relate to the issue of payment of compounded casual and weekly penalty rates. That matter, to the best of my recollection and research, was never discussed during the course of hearings into B1881 of 1997 nor during the 13 conferences which I chaired in relation to D332 of 1997 and D72 of 1998. In addition, I did not have that matter in mind when I made the variation to the Award to insert casual provisions into the Award. Consequently, it could not be said that there are any unintended consequences which might flow from that variation. The issue simply was not considered by me and nor was it, to the best of my recollection, the subject of discussions between the parties. That leaves me in somewhat of a quandary. The Council has made application pursuant to s. 125 and s. 126 of the Industrial Relations Act 1999 (as part of this application) to retrospectively vary the Award to deal with the issue of payment of compounded casual and weekly penalty rates. At the same time, Commissioner Asbury has adjourned proceedings in relation to Matter No. W29 of 2002 pending the outcome of these proceedings. In the circumstances, I believe it would be inappropriate for me to hear the Council’s application to retrospectively vary the Award in relation to the payment of compounded casual and weekly penalty rates. I have reservations about my capacity to deal with that matter with a totally fresh mind – especially the issue of retrospective variation to the Award – when that matter has previously not been argued before me in circumstances where I was responsible for the creation of the existing provision and have participated in extensive discussion with the parties. I think it is appropriate that that aspect of this application be allocated to another Member of the Commission and I do now allocate, in my position as Commissioner Administrator, that aspect of this application to Commissioner Blades (the Head of the relevant panel) to hear and determine. It will be up to Commissioner Asbury to determine her approach to W29 of 2002 in light of this decision. I will re-list the two matters to be continued before me (above) at 10.00 a.m. on Friday, 11 October 2002 to hear from the parties why I should not retrospectively vary the Award as indicated. -- 5 of 6 -- 11 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 109 The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Hearing Details: 2002 6 August 2002 11 September Released: 26 September 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. -- 6 of 6 --