Brisbane City Council v The Australian Workers' Union of Employees, Queensland [1994] QIRC 708 (1994) 147 QGIG 1661

1660 QU EE SL AND GOVE RNM E TI DUST RI AL GAZETTE 123 Dece mb er, 1994 23 December, 19941 QUEENSLAND GOVERNMENT INDU STR IAL GAZETTE 1661 ()tJ l·. ENSI.AND INDl :STKIAI. Rl:I.ATIONS COMMI SS I ON lndustrtul Rela11um -lct /99fl s. 3 19 nutificatmn of di~putc s. 14-l ;1ppl ica110 11 for\ ariation AND The Au,trahan \\orker.,' Lmon of l·mp!oyec~. Quecm,IHnd l.\·vs J>5:0 and flllO:: of 199./J llRI SB .\ ~E en-, COl '.'\CII. - CO.\ ~ I Rl ' (7.1O.'\, MA l.'\TE.'\ .,\:\'CE A.'\I) C.E!\ERAI. ,\ WA RD CO\l\oflSSIO'I R BL00\11'11:LD 8 Dec.:rnhcr 199 I Housing - 13r n,ba ne City Coun ci l Owned I lousing -- Su h,1di :,cd !lousing - Allo\\ance~ - Not ifi ca rion of Disp urc - Applicmion tu Var) \"ard Joindcr of \1allcrs Ordcr pre, iou<, I) issued - Cou nci l llou~ing Polic) - Emplo)CC R..:_1cc11on of Cou ncli "s Proi,Mals - Wat..:r Treatment Plan t Operators and 1 urncocks Hist or) - Con!>ultation "i Lh Emplo) ccs - Rem Collection \tratcg) Arb1troted !\I Jttcr - Incumbent on l·rnpl0) cr I ll g.1, e rcasonabk and adequate notice to employ.:cs of changed req ui rement-'> Co uncil hd, r igh t tu chang.: hou si ng policy - Cou11cil I lousing Poli.y inappropriate f'oliq ahcreJ b} Comnu!>Sion DECISI ON I hc,e mallcn. arise as .i direct rc:.uh of attempts b) th, Brisbane C1t) louncil (BCCJ 10 implcmcnl earlier dee1,ions mode b) thc Co uncil"s Es lHhli s hrnent a nd Co -ordination Com mitt ee g1, 1ng to the pnwi ~ion of Council owned housmg .it Mount Crosb~ 1lr ,ubsidbeJ housing at other locations ·1 he disp ur c notifi cati on which ,ubscquc nt l) hecan1c D5 20/94 wa, lodged \\Ith the Industrial lkgi:,trar nn I Ottobcr 199-1 Applicat io n numher 81102/9-1 \\llS lodged ,~ith thc lndu,tnal Rc gi~ trar on 6 O..:to hc:r 19 94 . In proceedings in rclauon to D~ 20 :9 -1 un 13 October 199-l I made cenain ord~rs \\"h1 ch requin:d II CC to immcdiarcl) 1.ca,c a nd dcsi, 1 11\ its endeavours to implement the hou!>ing polic) . Fun hcr. I directed that rhat dispute he referrcd to thc C:ommi~:,1011 ,,ith J reqm.: ~t that it be Joined to appli ca uon 81102194 and he jomtl) determined with that upp li cat ion . In addition, I asked thc Commi~sion 10 dctcnninc a number of issue, in relation to t he dispute . .ind the applica11on . and Lha t the Comm1,,1,)0 be a,k ed to arrJngc an earl) hea ring for the dctrnnination of the t,,o 111,lltcrs. t\, II transpired thc I\\O is,uc, were .i llocated 10 me tor dctcrmmauon on the b,1,i- of Ill ) a, ail1th1l1t) ll1c m,Hter, s 11 b~cq ucntl) "ere he ard on JO Novcrnhcr and I lkccmbc r 199 -1. In \\hat can uni~ be dc,1.ribeJ .i:, a \Cl) me~,) and rJthcr poorl~ pre:,cntcd case b) both the Brisbane ( II) Council ,md The 1\u;tral1an Worker,' Union of Fmr loyccs, Qucens la nJ /A Wl I) I havc {nuncrhcles:.) been able to Jcquaint 11l),clf,\1th the is uc, "hieh he bch,ccn Lhe part1c,. the h"tor) ofthcu d1scu!>>11>11!> and nc~1111a1ion,. and ha\ I! hccn ublc lo arrl\ e at a dc 1crmina11011 in rc,pcl,t to th e joined matters ( 1> 520/94 .ind 131102/94 ). It " apparent that 111 1987 the ( ouncil adopted a nc1\ housmg policy at Mount Crosby V1ll :1gl! (and al~o fi.>r Turncocl-s) ll'h ich ha d th.: clkct of li111i1 ing the numb.:r ol Council pro\'ldcd huusci. 10 cmplu)cc,- of thc Dep anm.:111 of \\"Jtcr Suppl~ JnJ Se\\~fdf!C. Th,: notrcc 1,hich anrmu nt ed 1ha1 polic~ (in appru" irna tcl 1 .lul) of 1987) Sta lCJ . ··:-.o l\\ nh,1and111g an) thing contained in the po hey statement. the c,\istrng arrm1 gc me nb wi th present occu pan t, or Council houses at Mount Croshy will remain 111 force u111il such time ru, the hc1U~I! 1s \ acJtcc.l •• . No new cmploycc engaged by the Departm~nt aflcr that time 11987) \\as prO\ 1dcd \\ith a house unle~, opcrutional n:qu1rcmen~ made II e;~en11al Instead they \H·rc paid rhc Award prescribed a ll 1ma11 ce of $5 .0 0 a \\C c k for Wa ter Treatment l'lam Operator, (shili,\orkcrs onl)) or Sl.75 per "ed for T urnuld,, . In 1989 a Mr D. F,, an,. a, Engmccr in Ch~rgc. llead,1nrks and Dam ,. was requested to co nduct a rev iew of the Council '~ hous mμ pohc) L:mplo)CI!\ at .\fount Crosb) \\ere made aware (b) :S:oticc) of the re, ie,1 and that M} pohC) changes amm!J from the re, ie\\ would be detaikd ,,hen th e} were completcJ. In t he in tc11 111 , an) new oc:cupan ts of Council provide (] housing or existing rc!> id ent, 13516_1 D<X -- 1 of 2 -- 16 62 QUEENS LA ND GOVERN MENT INDUST RI AL GAZETTE 123 December, 1994 changing hou ses, would be required to pay ( cu rre nt value) weekly rents. It is unclear as to whether or not the employees were made aware of the final repo rt. Mr Evans also gave eviden ce that be t ween th e time of hi s Not ice 10 residents (February 1989), th e completion of hi s re port later that year. a nd a consideration of the iss ue by the Counc il 's Estab lishment and Co-ordination Comm ittee in r eb ru ary 1992 , very li u le was done in relation to the housing issue. On 7 September 1992 th e Establishment and Co-ordination Committee approved the Department 's recommendation that it did not require em ployees 10 reside at Mount C ro sby and, accord in gly. that BCC should not provide residen t ia l housing at Mo unt Crosby either on a subsidised rental or a full comme rcial rental bas is . The Estab lis hm e nt and Co-ordina tio n Co mmittee determ ined that th e existing arrangements for employees living in Co un cil O\.\'ll ed residences at Mount Crosby would be maintained fo r a min imum peri od of twelve mon ths during which tim e a plan for th e tennination of current arrangements would be negotiated with a ll of t he parti es concerned. In deciding to ad opt the housing po licy on 7 September 1992 the Establishment and Co-ordination Co mmittee charged Mr Barber (as the Manager, De partm en t of Wate r Supply and Sewera ge) with th e responsibility of impl eme nting the policy in accordance wi th a strategy approved by the Commiuee. In accorda nce with thi s direct ive Mr Barber commenced consultation \\Ith emplO)'ees. unions and Mo ulll Crosby re sidents on 14 Dece mber 1992 . In early January 1993 he also com mun icated "ith Tumcocks and commenced a series of meetings with th at group in earl) Februar) 1993 . Althou gh details arc sketchy it appears that there \\ere a number of meet ing s be tween th e employees. un ions a nd Mount Crosby residents du ri ng the course of 1993 and other, separate. mee ti ngs wi th the Tumcocks. During this period the employer's proposals were d is cu ssed bet wee n the parties and reports on their outcome considered by the Establishment and Co -ordinati on Commiue c. Finally. on 10 January 1994 the Establishment and Co-ordination Commi ttee detennin ed its final posi ti o n. By leucr dated 14 Janual) 1994 employees were infonned of the Estab l ish men t and Co-ordinat ion Commit1ee 's de cis ion. Th ey were al so told th at a fonnal process wou ld be foll owed 10 notify the unions of Councirs intention and that a formal olTer would be made tO th e employees at a later date. On I~ January the A \.\I U \, as also notified of the Co uncil 's poli cy . This leucr indicated that a formal offer wou ld be put to employees in accordance with the op ti ons detenn incd hy th e Es1ablishmen1 and Co-ordination Comminee. Briefly put. these options were relocation. purchase or rental. The re ntal \\ as to be ph ased in on th e basis of movements from 50% to 75% and linall} to 10 0% of mark et \a luc rental over a 30 month period such 1ha1 full rental value was 10 be paid from 10 July 1996. The AWll notified the Council on 16 Feb ru ary I 994 of a decision of its membe rs in the following tem1s :- -- 1n response to the Council decisi on regarding ho us ing. Monday. I 0th Janual)·. 1994. any auempt to forcibly implement the decision by Council will be met with wh atever industrial action deemed necessary at that time.''. II appears that 1he Co un ci l proceeded 10 negotiate o ut comes with individual employees along th e li ne s as described in th e options. Alth ough I ha ve nol been infonned of the numbers. some employees vacated the houses, others agreed to purchase, whi le others chose not 10 negotiate. It also appears that because of thi s lack of success the Es tablis hment an d Co-o rdi n ati on Committee on 3 October 1994 authorised Council o rliccrs to implement th e new ho using arrangements involving the rent collection strategy on the basis of employees' failure to re locate or to i ndi ca te their des ire 10 purchase houses bein g o ffered to t hem by the Counc il. On the following day (4 October) Co un ci l notified the Com miss ion of a potential disp ute hul requested that act ion be withheld on it unti l funher advice. On the following day (5 October 1994 ) t he Council wro te to all Mount Croshy stalT in Council residences. and to Tumcock.s still re siding in Co uncil provided houses. mfonning them of the Cou ncil's i111ent ion 10 commence the rent collection s tra tegy previously approved by the Establishment and Co-o rdi nation Commi nee. This lener infonned the employees affected t hat from 17 October 1994 t he ren tal would be set at 50% of the commercial value. The rental value was to be assessed by an in depe nde nt re al estate age nt. The rental was thereafler to move. 111 two inc rements. 10 full rental by 17 October 1996 (24 months). From in form at ion pro vided to th e Commission it appears th at th ere were three (3) Tumcocks in subsidised hou si ng. 21 em ployees provided with housing at Mo un t Crosby and one (I) emplo yee provided with hou sing at La ke Man chester. (I sar "appears" because th e names of employees and the actual number was never clearly identified b} BCC - t his is because at the tim e of the hearing Mr Collins provided mat erial of different fonnats and different preparation dates). Although the Coun c il asserts th at th e dispute as to hous ing only exists with 14 employees (a ll A WU members) of 1l1e 25 employees this. in my view, is clcarl) not the case. The re are a number of other employees who are members of the CF MEU, AF MEU. TW U, and ETU ,\ho have 1101 agrc~d with th e Cou n ci l 's proposals. As such . it seems appropriate 10 me that the position of these other employees also bc considered and detennined under D520/94 as part of the dctcnnination of matters in t he joined proceedings (see Order of 13 October 1994 particularly paragraph 4( I)). In addition, there are 2 other e mpl oyees who will be affected by the CCluncil"s housing p01ic y. However. ll1csc employees are covered th e Brisbane Ci ty Council Salaried Staff Award, 1992, which is an award of the Australian Indu st rial Relatio ns Commission. It seems to me that it would be inappropriate and improper frorn me 10 dea l with an) issues which affect those employees in the se proceedings as the y are outside my jurisdiction. If those employees. or thei r un ions. wish 10 have the Cou n ci l's po licy re\ iewcd they will be required to ta ke the mailer to a different forum. How cvt: r, if th e Co uncil is interested in equity it m ay decide to extend to such employees the outco me of these proceed in gs. which will shortly appear. It is clear on the material advanced before t he Com mi ssion tha t man:,, of the emp loyee$ \\ho li\C in Council provided accommodation ha ve n:s ided in such accommodation for man) years. As an exa mpl e: two o f the employees have res id ed at Moun l Crosby in Co uncil provided accommodation for 3 1 yearS. respecti vel y; one for 27 years; two for 26 years; one fo r 18 years. I\, o fo r 17 yenrs; one fo r I3 years: and two for 10 years. Based upon previous ad\ ices 10 such employees. it was submitted by Mr Vining. they had a reasonable expectation that the) would continue to bt provided with rent-free housing for the balance of their working time with the City Council. Further. statements such as th e 1987 Notice of Housing Policy (see above) add emphasis to this belief. In my view it is pennissable for an cmplo)er to change a basic conditi on of employment such as the provision of free housing btJt in d oi ng so. it is in cumbent upon the em ployer 10 give reasonable 13516_1 .()()C 23 December, 19941 QUEE NS LAND GOVERNMENT INDUSTRIAL GAZETTE 1663 an d adequate notice to t he affected employce(s) in o rd er that Lhe e mpl oyee can adjust his/her circumstances Lo accommodate the changed requirements. Whil st the employees at Mount Crosby, as well as the Tumcocks. have rejected the Council's prop0sals it is not clear whether s uch rejection is a who lesale and continuing one. or whether there was any preparedness on the part of employees to nc gotiule a mo re acceptable proposition than that detennined bv t he Council's Establishment and Co-ordination Commitlee. • In all of th e circumstances. and alter conside rin g the position of the employees (as strongly advanced by their witnesses and Mr Vini ng), the needs and i nterests of Brisbane City Counc il and the ra tepayers of Bri sbane I have detcm1 ined to deal with thi s maucr as foll ows: - ( Ii Th~ Council should have the ri ght to change its hou si ng policy and have the right 10 only provide housing. or su bsid ised re nr al, 10 su ch employees as it de1en11111es bas ed upon its bu siness needs. (2) T he housing p ol icy proposed to be implemented by the Counc il is inappropriate in all of the circumstances and it sho uld be amended lo involve a longer time-frame. In determining th is po int I am aware that th e issue h as been under disc ussi on fo r two (2) years. I lowever, the finan cial impact on employees is too considerable O\Cr too short a time-frame 10 a ll ow the BCC p0s i ti on to stand. (3) The move to fu ll rental recovery is to occur over the following time-frnme:- From I February 1995 - 25% of market val ue for rental. or the actual rental bei ng paid by Council in lh e case of Council provided accommodation. From I February 1996- 50 %. From I February I 997 - 75%. Fro m I February I998 - I00%. (4) BCC has indicated 10 employees that it would guarantee continu ed tenan cy for anr employee ren ting a current Cou ncil owned h ouse for (up to) li ve yea rs from I OJuly 1994. Such commitment should be maimained. According ly. any em pl oyee exerc isi ng the rental option s houl d be guaran teed tenancy unti l 9 Ju ly 19 99. (5) In order lo overcome any disagreements the Council should ob tain va lu ations as 10 a fair mark et ren tal va lue from three sources in January each year and determine the actual rental tO be charged 10 employees on the basis of the arithmet ic average of such valuations. (6) In the event !hat any employee wi sh es 10 access th e other aspects of t he Co unc il's ho us ing policy c g. rel oca ti on. then th e other aspects of the proposed housing policy should remain in place with the exception that the S 1.000 lump sum relocation expenses should be adjusted for C PI factors since th e time that the ligure was first proposed (December 199 2). If any employee elects the purchase option the deduction of rental from the purchase price shou ld only relate 10 the peri od between actual signing of documents relating to the purchase and th e transfer of title. This is different to th e Council documentation. However. the lime-frame has also been altered by me and so ha s lhi s particular cle me n t. II_ is appropriate for me to indicate that tl1 e ma terial advanced by BCC 111 th ese pro cee din gs rela ted primar il y h> the issues involved in D520/94 and h ad little to do wi th its own app li cation B11 02/94. That app lic ation asked the Commission 10 delete the provisions which al lowed for Coun ci l 10 have an option as 10 wheth er i1 provided housing or paid an a ll owance in l ieu. On the basis of mate ri al prov id ed by Mr Barber it appears that there will still be certa in people for whom housing is provided because of the bu siness needs of !lie Council. In s uch circumstances it is in appropriate to remove the clauses as reques ted by Council, and pani cu larl y so in lig hl of the in adeq uaci es of th e case presented befo re me. Applicat ion No . 81102/94, in itself, is rejected. What it sought to achieve is partly delennined by Lhi s decision. If BC C wi sh 10 ha\e t he $5 .00 and $ 1.75, respec ti ve ly, removed for a ll e mp loyees it w ill bc necessary fo r then1 to run an appropriate case at some future time. This decision, accordingly, sho ul d be seen 10 have been o ne primarily designed to ad dress th e issues w hi ch are in disp ute an d which are the subject of D520/94. However, to make it abundantly clear, I int end that the $5 .00 and S I. 75, re spec ti vely. be paid 10 persons who cu rrently receive it as well as 10 th e whole of the grou p under the Brisb an e Ci ty Council - Construction, Maintenance a nd General Award wh o will have lo commence to pay rental from I February 1995 . Such employees arc no lo nger being prov id ed with a rent fr ee residence and sho uld recei ve th e allowance notwithstanding the fact that the y arc receivi ng subsidised housing. Emplo yees under other awards have no e n1itlem en1 10 th e weekly allowances. I order accordingly. A.L. BLOO MFIE LD , Commissioner. Appearances:- Mr T. Coll i ns and Mr J. Thompson fo r the Brisbane City Co u nci l. Mr M. Vining for The Au stralian Wo rk ers· Union of Employees. Quee nsl an d. Operative Da te : I February 199 5 Dec ision - Housing Re leased: 9 December 1994 #/l######ll#ll##########llll#######llll#ll###ll######/1/1#####11/1/I# -- 2 of 2 --