Brisbane City Council v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2002] QIRC 137 (2002) 171 QGIG 58

58 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 September, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 230 – application for orders Brisbane City Council AND Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (No. B1423 of 2002) COMMISSIONER BLADES 11 September 2002 Application for Orders s. 230 Industrial Relations Act 1999 – Certified Agreement still current – Local Area Agreement adopted by Certified Agreement expired – Local Area Agreement providing for 8 day fortnight – Brisbane City Council seeking to reintroduce 9 day fortnight – No agreement – Engineering Award - State providing for 9 day fortnight, only with consent of Union – Consent not forthcoming – Award providing for employer right to make final determination as to method of implementation of 38 hour week – Held employer had right to invoke 10 day fortnight in accordance with Award – Orders to issue accordingly – Current certified agreement making no provision for implementation of 38 hour week in consequence of expiry of Local Area Agreement – Employees had right to commence bargaining period during currency of current Certified Agreement to obtain 8 day fortnight – Right to take protected industrial action – Orders preventing notified industrial action refused. DECISION Orders are sought under s. 230 of the Industrial Relations Act 1999 (the Act) by the Brisbane City Council directed to employees of City Fleet Division and the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and the Automotive, Food, Metals, Engineering, Printing Kindred Industries Union and/or the Australian Manufacturing Union (the Union). Of necessity and due to the urgency of the case, the matters raised have been considered only briefly. The facts are that until recently, City Fleet workers operated on an 8 day fortnight. City Fleet Management wished to introduce a 9 day fortnight but that change was resisted. City Fleet Management was prepared to compromise with a 9 day fortnight for some employees and a continuation of an 8 day fortnight for others. That compromise has also been rejected. A dispute notification (D214/2002) was filed in the Commission on 31 May 2002 and a number of Conferences were held before Commissioner Fisher. Commissioner Fisher released a recommendation on 2 August 2002. A Local Area Agreement through which the 8 day fortnight was introduced to the workforce was adopted by the Brisbane City Council Enterprise Bargaining Agreement 2001 - Certified Agreement which has a nominal expiry date of 30 June 2003. That Local Area Agreement has expired. Clause 15 of the Certified Agreement provides, in part: -- 1 of 3 -- 20 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 59 no.3 20.09.02 “The Partners commit 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. ... The Partners agree to finalise negotiation 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. . . . 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. . . . Existing LAAs that reach expiry date will continue to operate until the conclusion of the review/update process.”. In clause 25.5.2 of the Certified Agreement it is provided that the LAA will continue to apply until the conclusion of the review/update process. I am informed that negotiations have occurred over the last 6 months in regard to the introduction of the 9 day fortnight. By agreement, the matter has been dealt with in the Industrial Commission by way of conciliation conferences on a number of occasions, resulting in no agreement being reached. It appears that the process spoken of in the Certified Agreement has concluded. It was only conciliation that was authorised by the Certified Agreement in clause 15. Brisbane City Council wrote to the Union on 21 August 2002 and withdrew from the LAA. It is my view that in the absence of a Local Area Agreement providing for an 8 day fortnight, the provisions of the Award become applicable. The workforce must revert to the status quo as existing prior to the introduction of the 8 day fortnight. Clause 4.11 of the Engineering Award – State provides that the employer shall have the right to make the final determination as to the method by which the 38 hour week is implemented or worked from time to time. Clause 4 of Schedule 3 also has relevance and this provides for the ordinary hours to be worked over a fortnightly period of 9 consecutive days, provided there is agreement between the Industrial Organisation and the Brisbane City Council. That agreement is not forthcoming. It is my view that in the absence of the operation of the Local Area Agreement, the Brisbane City Council therefore has every right to direct that the working hours revert to the 10 day fortnight and has done so. Employees who wilfully disobey such a direction are in breach of contract. The Union, by letter dated 12 August 2002, pursuant to the provisions of s. 143 of the Act, gave notice to Council that it intended to negotiate a certified agreement in accordance with Chapter 6, Part 1 of the Act. It sought a certified agreement that City Fleet would maintain the current 8 day fortnight arrangement. In other words, it commenced a peace obligation period and industrial action during that period was prohibited by any of the parties. That letter has been ignored by Council. On September 3, 2002, the State Secretary of the Union gave notice that it intended to engage in “protected industrial action” in accordance with s. 174 of the Act and it is that action which the Brisbane City Council seeks to prevent. Section 181 of the Act provides that that section applies to a certified agreement from when it starts operating until its nominal expiry date. The nominal expiry date of the Certified Agreement in this case is 30 June 2003. The section goes on to provide that the following persons must not engage in industrial action for the purpose of supporting or advancing claims against the employer in relation to the employment of employees whose employment is subject to the agreement: (a) an employee whose employment is subject to the agreement. (b) an employee organisation that is bound by the agreement. If the employee or organisation does so, the action is not protected industrial action – s. 181(3). The Union relied upon the decision in Emwest Products Pty Ltd v AFMEPKIU (2002) FCA 61 and the judgment of Kenny J which dealt with the provisions of s. 170MN of the Federal Workplace Relations Act 1996, which is in substantially similar terms to s. 181 of the Act. Kenny J said: “The effect of s. 170MN is straightforward enough. Where there is on foot a certified agreement, the nominal expiry date of which has not yet passed, s. 170MN(1) prohibits industrial action by an employee whose employment is subject to the agreement, or by a union bound by the agreement or officer of such a union, ‘for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement’. The prohibition in s. 170MN(1) against industrial action is, on any view, a limited one. The prohibition does not extend to industrial action taken for a non-prescribed purpose, even where there is a relevant certified agreement. ... This aspect of the provision’s operation reflects the statutory assumption that when parties make an agreement with respect to employment, they do so on the basis that they will not resort to industrial action during the currency of the agreement in respect of the matters upon which they have reached agreement. . . . Assuming the policy behind s. 170MN is to encourage parties to adhere to the bargain they have struck, then the policy would not, in my view, be defeated by permitting the parties to negotiate effectively in respect of matters that were not the subject of a relevant certified agreement. The policy is sufficiently protected if s. 170MN(1) is construed as prohibiting parties to a certified agreement from resorting to industrial action to undo matters they have agreed upon in the certified agreement, if its nominal expiry date has not passed. If the parties so desired, they could agree that a certified agreement made by them was intended to cover the whole field of relevant employment, thereby excluding the possibility of industrial action during the currency of the agreement.” (Emphasis added). The Certified Agreement in clause 25.8 provides: “This Agreement contains the major agreed strategies to be pursued in the life of the Agreement. In the event that there is a need to develop and implement additional or new strategies, the Partners will discuss and agree implications for the workforce. The Partners agree that no extra claims will be tabled during the life of this Agreement. ... .”. In the case of Kilpatrick Green Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia & Anor (1998) 559 FCA, there was a clause in a certified agreement providing for the parties to negotiate a specific site agreement and there -- 2 of 3 -- 60 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 September, 2002 was also a “No extra claims” clause. During the currency of the certified agreement, the Union gave notice of the initiation of a bargaining period for a site agreement and took industrial action. The nominal expiry date of the certified agreement had not passed. Ryan J said: “… I consider that the framers of the certified agreement should be taken to have intended to deny to one party recourse to protected industrial action to pursue claims apparently contemplated as open during the life of the agreement, only if the language they have chosen intractably dictates such a construction.”. What clause 15 of the Certified Agreement provides for is the opportunity to review and update existing LAAs and encourages negotiations on certain issues. In the same way as identified in Kilpatrick Green, the Certified Agreement contemplates claims being made during its life. In that way it seems to me to be inconceivable that the employees are denied the right to engage in protected industrial action for what is in effect a collateral agreement dealing with a specific issue, namely the implementation of the 38 hour week which is no longer dealt with by the Certified Agreement. While clause 25.8 provides that there will be no extra claims, the Certified Agreement itself leaves open the possibility of negotiating matters the subject of the LAA. In other words, there was no intention for the Certified Agreement to cover the field, at least to the exclusion of those particular matters. Unlike the position when the nominal expiry date of a certified agreement passes, the Local Area Agreement did not continue in force until a later Local Area Agreement replaced it. The Act makes no provision for its continuation upon its passing its expiry date. All the Certified Agreement says is that it operates until the conclusion of the review/update process. Because the Brisbane City Council have withdrawn from the LAA, the effect is that the employees must revert to the Award provisions which, as directed by Brisbane City Council in full exercise of its rights, means a 10 day fortnight. I am unable to agree with the Union’s submission (if I have correctly put it) that there is an implied term that the LAA forms part of the Certified Agreement until the Certified Agreement expires. That is not what the document says. However, in my view, that the employees must revert to the Award provisions for the 38 hour week as directed by the employer, does not prevent the employees from initiating the bargaining period as they have done in an attempt to negotiate an agreement dealing with the 10 day fortnight. I see no inconsistency in any such manoeuvre. I propose to issue Orders limited only to the resumption of the 10 day fortnight. The orders will not attempt to prohibit the industrial action signified by the Union in its notification of 3 September 2002 with the exception of “maintain existing rosters”. The notified industrial action is now probably inappropriate in any event. There was a submission that the Queensland Industrial Relations Commission does not have jurisdiction to issue orders against a Federal registered body. Nothing was advanced to support such a submission and I would find it surprising that there was an obstacle to the prevention of unlawful conduct simply because the body was Federally registered. When this matter was first called on, I suggested to the parties that there be a compromise. Council has endeavoured to effect a compromise. There is no reason at all why a compromise along the lines of the 8 day fortnight for some, 9 day fortnight for others would not be better than a 10 day fortnight for all. I again urge the parties to effect a compromise. For the purposes of s. 230 of the Act, I am satisfied that an industrial dispute exists between City Fleet Management and the employees of City Fleet and the relevant Union. I am satisfied that Notice of that dispute was given by the Manager, Employment Arrangements on behalf of Brisbane City Council on 31 May 2002. I am satisfied that the Commission has attempted to conciliate the matter. The exercise of the power under s. 230 of the Act is an exercise of discretion. In this regard, I take into consideration that on 2 August 2002, Commissioner Fisher made certain recommendations which have been ignored. As indicated earlier, I also made suggestions for a compromise which have been ignored. An Order will issue separately. B.J. BLADES, Commissioner. Hearing date: 10 September 2002 Released: 11 September 2002 Appearances: Mr S. Cooney, with him Mr M. Dick and Ms K. Odgaard, for the Brisbane City Council. Mr A. Dettmer, with him Mr E. Moorhead, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. -- 3 of 3 --