Brisbane City Council v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2002] ICQ 43 (2002) 171 QGIG 78

78 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 October, 2002 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 342(1) – appeal from decision of industrial commission Brisbane City Council AND Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (No. C81 of 2002) PRESIDENT HALL 20 September 2002 DECISION The appellant and the respondent are parties to a certified agreement under the Industrial Relations Act 1999 which is known as the Brisbane City Council Enterprise Bargaining Agreement 2001. The Certified Agreement came into effect on 1 July 2001. It has a nominal expiry date of 30 June 2003. At 1 July 2001 the appellant and the respondent were parties to a number of Local Area Agreements. Amongst those Local Area Agreements was a Local Area Agreement known as the Eight Day Fortnight Local Area Agreement. The Local Area Agreements were not supplanted by the Certified Agreement. The Certified Agreement recognised the continued existence of the Local Area Agreements and indeed enhanced their efficacy by providing for the continued operation of each agreement after its expiry date until the completion of a review process. For the purposes of these proceedings, it is common ground that the review of the Eight Day Fortnight Local Area Agreement was complete no later than 21 August 2002 when the appellant withdrew from the agreement which had long since expired. Prior to the appellant’s withdrawal from the Eight Day Fortnight Certified Agreement, the respondent had given notice of its intention to negotiate a certified agreement with the appellant which would contain the provisions relating to an eight day fortnight which were contained within the Eight Day Fortnight Local Area Agreement. On 3 September 2002 the respondent took the matter further by giving notice pursuant to s. 174 of its intention to take protected industrial action of various types. On 4 September 2002, the appellant, who contends that with the demise of the Eight Day Fortnight Local Area Agreement the implementation of the 38 hour week is governed by clauses 4.9 and 4.10 of schedule 3 clause 4 of the Engineering Award – State, instituted proceedings under s. 230. The appellant sought orders to (in short form) restrain the members of the respondent employed by the appellant from engaging in the industrial action referred to in the letter of 3 September 2002 and requiring the members of the respondent employed by the appellant to work in accordance with the Engineering Award – State. The application for the restraining orders failed. The application for mandatory orders requiring members of the respondent employed by the appellant to work in accordance with the Engineering Award – State succeeded. This is an appeal against the decision of the Commission refusing to grant the restraining orders. It has been brought on at short notice because of apprehension that the industrial action referred to in the letter of 3 September 2002 will or will continue to occur. There is presently no appeal against the orders for performance and observance of the Engineering Award – State which were granted. The respondent has reserved the right to revisit the validity and appropriateness of those orders and, indeed, to make further application to the Commission. Critical to an understanding of the issues in the Commission and on the appeal are subsections (1), (2), and (3) of s. 181. The subsections are in the following terms: “181 When industrial action must not be taken (1) This section applies to – (a) a certified agreement from when it starts operating until its nominal expiry date has passed; and (b) a determination under section 149 while it operates. (2) 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 or determination – (a) an employee whose employment is subject to the agreement or determination; (b) an employee organisation that is bound by the agreement or determination; (c) an officer or employee of the employee organisation acting in that capacity. (3) If the employee, organisation or officer does so, the action is not protected industrial action.”. The Commission, whose decision is yet to be reported, rejected the application for restraining orders in reliance upon the decision in Kilpatrick Green Pty Ltd v. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Another (1998) 559 FCA and the decision in Emwest Products Pty Ltd v. AMEPKIU [2002] FCA 61. The Commission attributed to the appellant that the appellant was advancing the case that, because there was a certified agreement which prior to the demise of the Eight Day Fortnight Local Area Agreement had dealt with the matter of an eight day fortnight (because the efficacy of the Local Area Agreement was recognised by the Certified Agreement), the respondent and its members were denied the opportunity to take protected industrial action in pursuit of a certified agreement upon the matter of the eight day fortnight until the nominal expiry date of the Brisbane City Council Enterprise Bargaining Agreement 2001. In fairness to the Commission, I should say that, if indeed that was the argument developed by the appellant, the Commission might have accepted the argument only if it was prepared to decline to follow or alternatively to distinguish the two Federal Court decisions previously referred to. On the appeal, Mr Herbert of counsel who now appears for the appellant seeks neither to challenge nor to distinguish the two Federal Court decisions (though reserving the right to do so in other proceedings). The contention agitated on the appeal is that the Commission quite misunderstood the case which the appellant had developed. In truth, the case developed by the appellant is that by the Brisbane City Council Enterprise Bargaining Agreement 2001 agreement had been reached upon the matter of the 38 hour week and that agreement continued to have effect under the Certified Agreement. In summary form, the contention is that the Brisbane City Council Enterprise Bargaining Agreement 2001 initially dealt with the matter of the 38 hour week by recognising the continued efficacy of the Eight Day Fortnight Local Area Agreement, and by providing for a process of review to update and enhance that local area agreement. The Certified Agreement also dealt with the matter of the 38 hour fortnight by providing that if the review process failed and the Eight Day Fortnight Local Area Agreement lapsed, the provisions of the Engineering Award – State previously referred to, which make particular reference to employment by the appellant, were to govern the matter of the 38 hour week. The Certified Agreement was said to make clear that its treatment of the topic was exhaustive by barring the “tabling” of extra claims and confining negotiations about the matter of the 38 hour week to a review process in the course of which industrial action was prohibited. I am unable to accept the appellant’s construction of the Brisbane City Council Enterprise Bargaining Agreement 2001. -- 1 of 3 -- 4 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 79 The framers of the Brisbane City Council Enterprise Bargaining Agreement 2001 were confronted with the difficulty that the Certified Agreement was in truth the fourth enterprise bargaining arrangement governing the relationship between the appellant and its workforce. A further difficulty was the existence of local area agreements. Clause 25.5 was directed to meeting those difficulties. It provides: “25.5 Previous Agreements Incorporated Within This Agreement The following Agreements will now form part of this Agreement and apply from 1 July 2001 until 30 June 2003 despite any provision to the contrary: 1. The Brisbane City Council Enterprise Bargaining Agreements C40009/94 and CA8/94, C40386/96 and CA373/96, C40689/98 and CA470/98 and C40886/99 and CA477/99. The effect of incorporation of those agreements is that any terms and conditions of employment which are set out in those Enterprise Bargaining Agreements and which are not inconsistent with the terms of this Agreement, shall continue in force and effect as if they are incorporated as express terms of this Agreement. The Partners are committed to incorporating all relevant conditions into a consolidated document for the next Agreement. 2. Subject to the review/update process outlined in Clause 15, Local Area Agreements registered as a consequence of the implementation of the Brisbane City Council Enterprise Bargaining Agreements C40009/94 and CA8/94, C40386/96 and CA373/96, C40689/98 and CA470/98 and C40886/99 and CA477/99 during the period 1 January 1994 to 30 June 2001, will continue to apply until the conclusion of the review/update process.”. The purpose of clause 25.5(2) was to regulate the impact of the Certified Agreement on the existing Local Area Agreements. It sought to guarantee their efficacy until reviewed. Clause 25.5(a) is not about the 38 hour week or the eight day fortnight save that it explains why those matters are not dealt with in the Certified Agreement. They are not dealt with in the Certified Agreement because they are otherwise dealt with. 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. I accept that once the Eight Day Fortnight Local Area Agreement lapsed, the matter of the 38 hour week was regulated by Schedule 3 to the Engineering Award – State. That is a consequence of s. 165 of the Act read with clause 25.3 of the Certified Agreement. Section 165 provides: “165 Certified agreement’s effect on awards, agreements or orders (1) While a certified agreement operates, it prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137. (2) While a project agreement operates, it operates to the exclusion of any other certified agreement or QWA.”. A principal difficulty with s. 165 is the noun “inconsistency”. 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: “25.3 Relationship to Existing Awards This Agreement shall be read and interpreted in conjunction with the relevant Federal and State Awards listed in Schedule 3, provided that where there is an intended inconsistency the terms of the Agreement shall take precedence.”. 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. The appeal must fail. I have dealt with the substance of the appeal because the matter has been argued and because of its importance to the parties in their (presently) troubled relationship. I am not at all sure that the appeal should have been heard. The general principle is that an appellant is bound by the conduct of its case at first instance, compare Coulton v. Holcombe (1986) 162 CLR 1 at 728 per Gibbs CJ, Wilson, Brennan and Dawson JJ and University of Wollongong v. Metwally [No. 2] (1985) 60 ALR 68 at 71. Here, with respect to the in-house solicitor who appeared for the appellant at first instance, I doubt that anyone might have divined from the documents and the transcript that it was being contended that, on a proper construction of the Brisbane City Council Enterprise Bargaining Agreement 2001, the appellant, the respondent and the appellant’s employees had reached agreement upon the matter of the 38 hour week. Further, in the circumstances of the case, it is not merely a matter of ensuring the proceedings in the Commission do not become mere skirmishes which are a prelude to an appeal. On the relatively wide view of the circumstances in which extrinsic evidence may be admitted to aid in the interpretation of an instrument such as a certified agreement developed in Short v. F W Hercus Pty Ltd (1993) 40 FCR 511, there was every “possibility” to adopt the word used in Coulton v. Holcombe, op cit, that the respondent, one of whose representatives has informed the Commission that in negotiating the Certified Agreement the parties had put the matter of the eight day fortnight to one side, would have wished to call evidence if it had appreciated the nature of the case which was being mounted. In such a case the only appropriate course is to dismiss the appeal, compare Water Board v. Moustakas (1988) 180 CLR 491 at 497 to 498 per Mason CJ, Wilson, Brennan and Dawson JJ. -- 2 of 3 -- 80 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 October, 2002 In any event I dismiss the appeal. For the sake of completeness I record that two (quite significant) issues were briefly canvassed on the appeal. First, there was reference to the question whether in a case to which s. 230(1)(c) has no application jurisdiction under s. 230 is dependent upon the giving of a “notice of dispute” as described at s. 230(1)(a) and (b), and to the further question whether a notice given by the appellant on 31 May 2002 during the course of the review of the Eight Day Fortnight Local Area Agreement answered that description. Second, reference was made to the issue whether an order under s. 230 might be made about conduct constituting “protected industrial action” within s. 174 and, if such an order might be made, the circumstances in which the making of such an order might be appropriate. This decision does not decide, and indeed makes no comment upon, the proper resolution of those issues. I reserve the question of costs. Dated 20 September 2002. D.R. HALL, President. Released: 20 September 2002 Appearances: Mr A.K. Herbert, instructed by Brisbane City Legal Practice, for the appellant. Mr S. Reidy of Reidy & Tonkin Solicitors, for the respondent. -- 3 of 3 --