Brisbane City Council [2001] QIRC 218 (2001) 168 QGIG 399

21 December, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 399 ########################################################################################################################### AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 – s. 170LJ – certification of agreement Brisbane City Council (AG2001/7227) Industrial Relations Act 1999 (Qld) – s. 156 – certifying an agreement Brisbane City Council (CA601 of 2001) BRISBANE CITY COUNCIL ENTERPRISE BARGAINING AGREEMENT 2001 COMMISSIONER BACON BRISBANE, 12 DECEMBER 2001 Certification of Division 2 agreement with organisation(s) of employees (C’wealth). Division 2 - certification of agreement (Qld). DECISION Background On 15 November 2001 the Brisbane City Council (BCC) lodged in the Brisbane Registry of the Australian Industrial Relations Commission (AIRC) an application (the Federal matter) for the certification of an agreement that was said to be made pursuant to section 170LJ of the Workplace Relations Act 1996 (the Federal Act). The application for certification was allocated to the Commission as currently constituted. The application is designated as AG2001/7227. On 29 November 2001 the BCC lodged with the Queensland Industrial Registry an application (the State matter) to the Queensland Industrial Relations Commission (QIRC) for the certification of an agreement pursuant to s.156 of the Industrial Relations Act 1999 (Qld) (the State Act). President Hall of the QIRC nominated myself to sit on the State matter which has been designated as Case No. CA601 of 2001. -- 1 of 5 -- 400 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 December, 2001 At the request of the BCC, the AIRC and the QIRC sat jointly on 6 December in order to deal with the two applications. At the commencement of proceedings, however, the BCC asked that the matters be dealt with separately and that the Federal matter precede the State matter. The Commissions determined that they would continue to sit jointly but that submissions in the Federal matter would precede the submissions in the State matter. It appears that the enterprise bargaining negotiations in relation to these two matters have been lengthy and on the submissions of most of the unions frustrating and somewhat unrewarding. As is its usual practice the BCC sought to achieve one agreement with its entire workforce. The unions had no objection to that course. The BCC workforce, for the purposes of this decision, can be described as falling into two groups. One group (and I only use this term for descriptive convenience) can be described as the white-collar group. Employees in that group (apart from any certified agreements) have their wages and conditions regulated by awards of the AIRC. The second group (which I describe on the same basis as the first) is the blue-collar group. Employees in that group (apart from any certified agreements) have their wages and conditions regulated by awards of the QIRC. It has been the past practice of the BCC and the unions, irrespective of which union is eligible to represent employees in the above groups (ie whether they be Federally or State registered) to negotiate one agreement for the entire workforce. That agreement is then certified by both the AIRC and the QIRC. Prior to the 1996 amendments to the Federal Act certification by both Commissions was a legal necessity. Since the 1996 amendments certification in both jurisdictions is not legally necessary. It seems, from my knowledge of local government administration and the fact that no party has raised complaint about it, that this arrangement has served the parties well since at least 1993. Indeed, the agreement that is now before the two Commissions is titled “EBA 4”. There have been obvious difficulties in the negotiation of EBA 4. When the applications were made to both Commissions the agreement had only been signed by the BCC and none of the relevant unions had signed it. Indeed, the process that lies behind the making of the agreement was that it was put to a vote of BCC employees and it was only after what is said to be valid majority of those employees approved the agreement that any unions were invited to sign it. There are three unions who are said to be eligible to be a party to an agreement made pursuant to s.170LJ of the Federal Act. Those unions are the Australian Municipal, Administrative, Clerical and Services Union (ASU); The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) (collectively the Federal Unions). At the time of the hearing all three unions had signed the agreement. The AMWU raised with the Commission a number of issues which it was submitted needed to be considered by the AIRC to ensure that all of the statutory requirements had been met. I will return to those issues later herein. There are 12 unions that are said to be eligible to be party to an agreement certified pursuant to s.156 of the State Act. They are: • Australian Building Construction Employees and Builders’ Labourers’ Federation (Queensland Branch) Union of Employees (BLF); • Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWUQ); • Automotive, Food, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMWUQ); • Federated Engine Drivers’ and Firemen’s Association of Australasia Queensland Branch, Union of Employees (FEDFA); • Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees (FIA) • The Australian Workers’ Union of Employees, Queensland (AWUQ); • The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ); • The Electrical Trades Union of Employees of Australia, Queensland Branch (ETUQ); • The Plumbers and Gasfitters Employees Union of Australia, Queensland Branch, Union of Employees (PGEUQ); • Australia Rail, Tram and Bus Industry Union of Employees (Queensland Branch) (ARTBIU); • Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) (TWUQ); and • National Union of Workers, Industrial Union of Employees, Queensland (NUWQ). (collectively the State Unions) At the time of the hearing of the State matter five State unions had signed the agreement. The central issue and the one which causes most if not all of the angst to certain union parties to the negotiations is the following situation. It appears that some unions at a point in the negotiation approached BCC in order to have a proposed agreement put to a ballot. BCC agreed. Some unions were strongly opposed to this course believing that a better “offer” could be negotiated with BCC. Ultimately the ballot took place. The ballot result, amongst other things, allowed identification of the voting results for the two separate groups (ie “Federal” and “State” employees). That is, for whatever reason the result of the ballot was presented in the following way: yes no informal Total Federal ballot count 1691 1006 6 2703 State ballot count 897 1335 9 2241 Overall ballot count 2588 2341 15 4944 Thus on the foregoing result it can be construed that the agreement to be certified under the Federal Act was approved by a valid majority of the white- collar (Federal) group and that the agreement to be certified pursuant to the State Act did not win the approval of a valid majority of the blue-collar group. The BCC adopts the position that the overall ballot result is the one that is relevant to any application for certification made pursuant to either the Federal or State act. Apart from that issue a further matter that concerns the State unions is the operation of the Federal Act. Even on the view of the State unions there is a valid majority of employees who approve the agreement that is made pursuant to s.170LJ (which appears in Division 2 of Part VIB) and which is to be certified pursuant to s.170LT of the Federal Act. As the agreement is only one document it is said that its coverage extends to all employees of the BCC whose classification appears in Schedule 1 of the Agreement. If such an agreement was certified s.170M(1) of the Federal Act provides that the agreement would bind the employer and “all persons whose employment is at any time when the agreement is in operation, subject to the agreement”. -- 2 of 5 -- 21 December, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 401 Thus all employees of the BCC including members of the State unions and who are covered by State awards, would become bound by the Federal agreement. The dilemma facing the State unions is that if they rely on that part of the ballot which is described as the “State ballot count” and which did not support the agreement and the Federal agreement is certified, it will bind their members. The result of such an outcome has (at least two) substantial consequences. The first is that the employees will enter a jurisdiction in which the State unions are unable to represent them. The second is that in such circumstances (ie a Federal certified agreement) the BCC would have an agreement which binds all of its employees and it would no longer have any requirement to continue negotiations with the State unions. In keeping with what is said to have always been the intended outcome of the negotiation, the BCC is offering to the State unions the agreement (which is before the QIRC for certification) together with an undertaking to the effect that any matters involving the State unions’ members will continue to be dealt with by the QIRC and that no jurisdictional exception to any applications before the QIRC will be taken by BCC on the ground that there is in existence a Federally certified agreement which binds the employees. For completeness the BCC undertaking is repeated below: “This undertaking is directed to any State registered union that is a signatory to this EBA4 agreement when it is certified by the Queensland Industrial Relations Commission (“QIRC”). For the purpose of this undertaking EBA4 Agreement means the EBA4 Agreement as certified by this Commission in these proceedings. Brisbane City Council undertakes that it will not challenge the right to make any applications to or proceedings in the Queensland Industrial Relations Commission by those State registered Unions under the EBA4 Agreement on the grounds that an agreement identical in its terms (apart from the parties) has been certified by the Australian Industrial Relations Commission.” The AMWU proposed undertakings During the hearing of the application for certification of the agreement pursuant to the Federal Act AMWU brought to the AIRC's attention a number of matters which it said may fall short of the statutory requirements necessary for the certification of the agreement. The AMWU did not oppose the certification of the Federal agreement but did seek undertakings and (it seems) at least one variation to the agreement. The BCC refused to give any of AMWU suggested undertakings and opposed any variation to the agreement which limited its operation to only Federal award employees. It is convenient to deal with each of those matters now. The power of the AIRC to require a party to an agreement to give the Commission an undertaking in relation to the operation of an agreement can be found at s.170LV of the Federal Act. Subsection 170LV(1)(a) provides that if, under s.170LT or s.170LU the Commission has grounds to refuse to certify an agreement, the Commission may accept undertakings from one or more of the persons who have made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission's concerns, may certify the agreement. Thus it is clear that in order for the Commission to demand undertakings from parties to agreements, the Commission must first be of view that it has grounds to refuse to certify the agreement. Absent such grounds the Commission has no power to demand that undertakings be given or certification will be withheld. AMWU sought that an undertaking be given by BCC the effect of which would be to clarify or remedy what is said to be an historical inaccuracy in clause 7 of the agreement. The inaccuracy is said to be that clause 7 does not reflect the fact that three rank and file employees attended the negotiations (or at least some of them) as observers. BCC refuses to give such an undertaking. Obviously the failure of the parties to make such an observation in the terms of the agreement is not a ground on which the Commission could refuse to certify this agreement pursuant to ss.170LT or 170LU of the Federal Act. Accordingly the Commission has no power to require BCC or any of the other parties to this agreement to give the undertaking suggested by the AMWU. The next undertaking sought by the AMWU relates to clause 13 of the agreement and specifically the point that is said to require clarification is the following words “after 12 months equivalent full-time employment, casual employees may apply for permanent employment in their role”. The undertaking sought is in these terms “any persons with 12 months or more employment in a casual capacity can apply for permanency so long as this employment is continuous or that they have 12 months employment in the previous 24”. I find that this matter does not raise an issue that is relevant to sections 170LT or 170LU of the Federal Act. The AMWU did not take me to any specific subsections which AMWU contend are contravened or not met unless the undertaking was given. BCC refuses to give the undertaking. The AIRC could not refuse to certify this agreement on the ground advanced by the AMWU. Accordingly the Commission has no power to require that the undertaking sought be given. For the same reasons the undertakings suggested by the AMWU in relation to clauses 14 and 15 must suffer the same fate as the foregoing suggested undertakings. The “transfer” from the State to the Federal jurisdiction The next issue raised by the AMWU is the submission the effect of which appears to be that the Commission only certify the Federal agreement on the basis that its operation be limited to bind only those employees of BCC who are covered by Federal awards. The AMWU did not advance precisely how this would be done but nevertheless it submissions on the point are clear. Those submissions are that at no time did the BCC advise the State unions that it intended to have certified a Federal agreement which would bind the State union members, the effect of which would be to “transfer” those employees to the Federal jurisdiction. Rather, the BCC during the negotiations gave the distinct impression that even though one document was being negotiated it would be certified in the two Commissions on the basis that the operation of the Federal agreement would be limited to those employees covered by Federal awards and the operation of the State agreement would be limited to those employees who are covered by State awards. Specifically the AMWU rely on the ballot papers that were produced by the BCC for the ballot. As indicated earlier the ballot papers allowed identification, by colour coding, of the voting results of specific groups within the total of the employees eligible to vote. Employees covered by Federal awards voted on a green ballot paper and on all green ballot papers the following appeared: “The provisions of Division 2 of Part VIB of the Workplace Relations Act 1996 (Federal), prescribe that s.170LJ that ‘The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement’.” Employees covered by State awards (depending upon other criteria) voted on one of four different coloured ballot papers. Apparently this was for the purpose of identifying other subsets of results. No issue about that is taken in these proceedings. Each of those four different coloured ballot papers on which State employees voted contained the following: “Section 156(1)(g) of the Industrial Relations Act 1999 (Qld), provides in part, that the Queensland Industrial Relations Commission must certify an agreement if it is satisfied a valid majority of the relevant employees employed at the time approved the agreement.” -- 3 of 5 -- 402 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 December, 2001 The AMWU submits that this clearly reflects what the intentions of the parties were at the time of the ballot. Those intentions were as submitted by the AMWU and not those that are now advanced by the BCC. In any event, submits the AMWU, the points noted on the ballot papers would clearly have influenced the intentions of the voter. That is that voters would have expected that the limit of the coverage of each of the agreements to be certified in the AIRC or the QIRC would be consistent with, and determined by, the Federal/State award coverage. BCC is now not acting consistent with that approach and as a result the BCC is conducting itself in “bad faith”. To further support its position on this point the AMWU relies on a decision of Senior Deputy President Drake [PR910661] wherein Her Honour refused to certify an agreement which had been said to be made pursuant to s.170LK of the Federal Act because the parties to the agreement had historically operated within the New South Wales industrial relations jurisdiction and that the fact that the employer intended to have an agreement certified pursuant to the Federal Act was not adequately explained to the employees at the time of the making of the agreement. Her Honour determined that [para 21]: “. . . Jurisdiction is a matter that must be explained to employees who will be subject to the agreement. The jurisdiction of the agreement ie whether or not it is a State or Federal agreement, is the context of the agreement and is a fundamental term of the agreement. The legal and industrial consequences of the difference are important matters.” BCC submits that it always intended to negotiate one agreement with its workforce. That one agreement would be subject to one ballot of the entire workforce. The result of the ballot would determine whether a valid majority of employees who would be subject to the agreement would approve the agreement. That its workforce is covered by awards made in two separate industrial jurisdictions is simply the industrial framework in which the BCC must bargain. Given that industrial framework the BCC believes that if it is to have one agreement with its entire workforce it must have that agreement certified by both the Federal and State Commissions. This must be done to ensure that the relevant unions, irrespective of whether they are Federal or State registered, are able to continue to exercise their representational rights in relation to their members. Because of the operation of s170LZ of the Federal Act which provides that the Federal agreement to the extent of any inconsistency will prevail over the State agreement BCC submits that it is prepared to give an undertaking the effect of which would be to ensure that State unions would in relation to this agreement continue to operate within the jurisdiction of the QIRC. BCC further submits that this is a practical and effective approach to the industrial framework in which it finds itself. The centrepiece of the BCC position is that it wishes to bargain on the basis of the outcome being subject to one ballot of its entire workforce. To split the workforce on award based jurisdictional grounds for agreement making is artificial and unnecessary and in any event exposes BCC to the possibility of one group approving the agreement whilst the other does not. This would result in bargaining outcomes which would be difficult to resolve and which BCC is entitled to endeavour to avoid. BCC also submits that the position that some of the unions resist in these proceedings prevails within its agreements currently. Whilst the issue may not have ever come into focus previously it is a fact that there is currently a Federal certified agreement and a State certified agreement. There is no undertaking of the kind proposed in these proceedings. The current Federal agreement covers the entire workforce. It prevails over the State agreement to the extent of inconsistency. Not aware that the State employees had been “transferred” to the Federal jurisdiction, the BCC and State unions continued to operate within the jurisdiction of the QIRC. This is despite the operation of s.170LZ of the Federal Act. BCC by its approach in these proceedings simply wants to continue its industrial arrangements with its employees and the relevant unions on the same basis on which they have operated in the past. BCC has no desire to split the workforce for the purposes of enterprise bargaining, nor does it wish to disadvantage employees who want to be represented in the respective jurisdictions by either their Federally or State registered unions. The Federal and State Acts allow this agreement to be certified in both jurisdictions providing the relevant statutory tests are met. It is within the power of the BCC to give the undertaking that it has to the State unions to ensure that any disputes that arise continue to be dealt with by the QIRC. It would be an extraordinary outcome, submits BCC, that as a result of this jurisdictional issue it was forced back to the bargaining table with the State unions on the one hand and on the other the agreement was certified in relation to its employees covered by Federal awards, the result of which may be different outcomes as between the two groups into which its workforce would be artificially split for bargaining purposes. Such an outcome was never intended by the parties. It was always intended that there would be one agreement for the entire workforce and that objective should not now be lost because of the operation of the two statutes. The submissions made in relation to the State agreement are fundamentally the same as the foregoing. Further, AMWU submits that the State agreement was not approved by a valid majority of employees and cannot be certified. ALHMWUQ has signed the State agreement but nevertheless “raised and left on the record for [the QIRC] to consider” a number of issues. The first is said to be the failure of the BCC to comply with “s.146 - Negotiations must be in good faith”. Submissions were made but no evidence produced that the BCC had bargained in a way that offended two of the examples of “good faith in negotiating” contained at s.146 of the State Act. Similarly submissions were made that the BCC failed in its obligations created in s.156(1) to explain the terms of the agreement in a way that was appropriate, having regard to the person’s particular circumstances and needs. The failure is said to relate to those persons from a non-English speaking background and persons with limited literacy or numeracy skills. It is also submitted that the ALHMWUQ has great difficulty with the coloured ballot papers and that this might need to be pursued in another jurisdiction. There is in support of the State agreement a Statement affirmed by Ms J. Munro, the Chief Executive Officer of the BCC. That Statement outlines the steps taken by BCC to ensure compliance with s.143 of the State Act. Ms Munro was not required by ALHMWUQ for cross examination and ALHMWUQ did not call evidence to establish a factual base on which a finding could be made that BCC had failed its s.143 obligations. On the evidence before the QIRC such a finding could not be made. The obligation to make out its case rests with the ALHMWUQ. It has not met its obligation. The same can be said of the ALHMWUQ submission concerning the alleged failure of BCC to meet its obligations to explain the terms of the agreement in s.156(1). Ms Munro’s statement specifically states that “translated summaries of the agreement in languages other than English were available on request” and “an easy to read guide to EBA 4 was provided for all employees”. Other explanatory sessions are described in which oral, printed, telephonic and intranet based mediums were also used. Ms Munro was not required for cross examination. The Commission is entitled to and will rely on her uncontested evidence. -- 4 of 5 -- 21 December, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 403 The Federal agreement In deciding whether or not to certify the Federal agreement it is necessary to consider the AMWU submission that it was never the intention of the parties to “transfer” the members of the State unions to the Federal jurisdiction. I respectfully adopt the determination of Her Honour Senior Deputy Drake which was cited earlier. As jurisdiction is a “fundamental term of the agreement” subsection 170LJ(3)(b) requires that the BCC must take reasonable steps to ensure that before any approval is given, the terms of the agreement are explained to all the persons. There is insufficient evidence for the Commission to be satisfied that in relation to the term of the agreement which would effect a “transfer” of jurisdiction for State award employees the requirement of the subsection has been met. Rather, on the evidence, or lack of it, a more likely finding is that the requirement of the subsection has not been met. The ballot papers do not advance BCC’s cause on this point. Rather, they support the contention put forward by the AMWU. That submission would carry significant weight but for the undertaking BCC is prepared to give. It is noted that the undertaking was not given to the State unions prior to the ballot but was given on the afternoon of 5 December. Never the less subsection 170LJ(3)(b) relevant to the AMWU submission only has work to perform if the result of the certification is to change to the Federal jurisdiction the State award employees. BCC by the undertaking does not seek to have the State employees “transferred” to the Federal jurisdiction and is prepared to take steps to prevent such an outcome. In fact BCC through the undertaking is prepared to continue in effect the jurisdictional arrangements that are currently in place. In any event the BCC undertaking effectively allows to prevail the industrial arrangements contended for the AMWU (and others). Such an outcome should not be viewed negatively by the Commission. It is one means of continuing (and formalising) the current (ad hoc) arrangements whilst achieving the objective of one agreement for the entire workforce certified in both jurisdictions. There are other ways to achieve such an outcome however, such circumstances are not presently before the Commission and considering the merit or otherwise of such circumstances may be an interesting but ultimately futile exercise. The Commission can only consider the factors that are present in these two matters. Had the undertaking not been given the Commission would have refused to certify the Federal agreement because of the failure of BCC to meet its obligations pursuant to ss.170LJ(3)(b). There is significant weight in the BCC submission that it is entitled to negotiate with its entire workforce and endeavour to achieve an all embracing outcome. Such outcome should be the subject of one ballot of the entire workforce and that single ballot should determine whether or not a valid majority of employees approve (or disapprove of) the agreement. The fact that the ultimate agreement for the reasons described earlier needs to be certified pursuant to both the Federal and State Acts should not be a bar to the practical and legitimate negotiating objective of the BCC. It is noted that none of the unions, Federal or State, have in the past or during these proceedings opposed such an approach. I am unable to identify any statutory bar to such an approach. In any event I am of the view that, should it be necessary, a wide interpretation should be taken of the Federal and State Acts which results in complementary operation and allows for appropriate and practical, rather than narrow and artificial outcomes in enterprise bargaining. On the basis of the undertaking that has been provided to the State unions, the Commission is satisfied on the material that the requirements of the Federal Act have been met and accordingly the AIRC must certify the Federal agreement. The State agreement The relevant result from the ballot for the purposes of determining whether or not a valid majority of employees approve the Federal and/or State agreement is the “overall” ballot result. The State agreement is intended to cover all employees including those who would otherwise have their wages and conditions determined by a Federal award. The State Act does not preclude a State agreement from binding or applying to such employees. If an agreement is to be certified pursuant to the State Act and provides in its terms that it binds or covers such employees then they are entitled to vote in any ballot which will determine whether a not the agreement is approved by a valid majority of employees. This agreement was so approved. Accordingly, and as all other statutory requirements are met, the State agreement will be certified. The State agreement has been signed by the AWUQ, the FIA, the ARTBIU, the ALHMWUQ and the ETUQ. All of the other State unions who appeared in this matter advised the QIRC that if the State agreement was to be certified each union would like an opportunity to consider (before certification) whether or not they should become a party. Indeed some State unions expressed the view that in the event that the State agreement was to be certified they were authorised to become a party to it. Each State union which is yet to sign the agreement will be given an opportunity to do so. The QIRC will certify the State agreement on Friday 14 December 2001. Each State union who has not already done so will have until 12.00 Midday on that day to lodge with the Registry a duly executed copy of the page of the agreement headed “Signatories to the Brisbane City Council Enterprise Bargaining Agreement 2001” Certification For the foregoing reasons the Commissions will certify both agreements. The agreements will come into effect from 14 December 2001 and will have a nominal expiry date of 30 June 2003. Certificates giving effect to this decision will be issued by the respective Commissions during the afternoon of 14 December 2001. BY THE COMMISSION: K. BACON COMMISSIONER ########################################################################################################################## # -- 5 of 5 --