Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2003] ICQ 2 (2003) 172 QGIG 1093

1093 Vol. 172 FRIDAY, 28 FEBRUARY, 2003 No. 9 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Brisbane City Council (No. C93 of 2002) PRESIDENT HALL 19 February 2003 DECISION By a decision delivered 16 March 1998 the Queensland Industrial Relations Commission, exercising jurisdiction under s. 127 of the Workplace Relations Act 1997, granted an application by the now respondent to vary the Brisbane City Council – Bus Transport Employees’ Award to permit the employment of casual employees. The decision of the Commission is reported at 157 QGIG 213. For present purposes it is sufficient to acknowledge that the -- 1 of 4 -- 1094 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 February, 2003 objective of the amendment was to further the objects of the Workplace Relations Act 1997 by permitting the respondent to achieve productivity gains by introducing more flexible staffing arrangements whilst observing the existing entitlements of employees under the Award. At a mechanical level the variation, which was operative from 16 March 1998, was affected by way of the introduction of a new clause 3.1(9) into the existing Award. Whilst one can well understand why it was not thought desirable to develop a new award for the purposes of casual employment on or about Brisbane’s buses, the simple and straightforward approach adopted was not without its difficulties. Since the Award had not hitherto permitted casual employment, it had been formulated without regard to how particular clauses might operate in the case of a casual engagement. There was no real difficulty with the clauses dealing with such matters as sick leave and annual leave. Such clauses might reasonably be put aside in the case of casual employees on the basis of “necessary intendment”. The problem was with entitlements which were perfectly appropriate to casual engagements but which were cast in language suggestive of restriction to other than casual engagements. In such cases there was a conflict between the purpose of the Award – which is the starting point of any exercise in construction, Queensland Public Sector Union of Employees v. Department of Corrections (2002) 170 QGIG 422 at 424 – and the natural and grammatical meaning of the words. Inevitably, there were disputes about the implementation of clause 3.1(9). Some disputes came before the Commission. Others were resolved by private agreement between the parties. Whilst there is some dispute as to whether the matter of special night allowances was a subject of discussion between the parties, it is clear that the matter was certainly not referred to the Commission prior to 27 March 2001 and equally clear that the matter has not been resolved by agreement between the parties. On 8 March 2002, in reliance upon s. 278 of the Industrial Relations Act 1999, the appellant filed an application with the Commission seeking to recover wages said to be unpaid to a Mr Robert Bickerton, a casual bus driver engaged by the respondent under the Award, in respect of certain allowances and penalties including payment for special night allowances pursuant to clause 3.13 of the Award. (An amended application was filed on 18 March 2002). The application brought matters to a head. On 23 July 2002 the respondent filed an application under ss. 280, 125 and 126 of the Act by which it sought: “1. Reopening of proceedings number B1881 of 1997, and more particularly the variation to the Brisbane City Council – Bus Transport Employees’ Award ordered by Commissioner Bloomfield on 16 March 1998; 2. A reconsideration by the Commission of the terms of the variation to the Award insofar as they relate to casual bus operators employed by the Brisbane City Council; 3. An order further varying the said Award, with retrospective effect to the 16th March 1998 to the following effect: (a) variation to the Award provisions relating to casual employees to ensure that casual employees are not entitled to payment of the Special Night Allowance provided in clause 3.13 of the Award; (b) variation to the Award to ensure that casual employees are not entitled to payment of the “broken shift allowance” provided for in clause 4.9 of the Award; (c) variation of the Award to provide that the casual loading payable to casual employees during periods when weekend penalty rates apply, is added to, and not compounded with, those penalty rates.”. (For fullness, I should add that argument early on in proceedings in the Commission made plain that the application was brought under s. 280 (re-opening proceedings) AND ss. 125 and 126 (amending awards) and that variation was not being sought only in the event that, the proceedings being reopened, the respondent succeeded in the reopened proceedings). After argument, the proceeding about the wages said to be due and owing to Mr Bickerton was put aside pending disposal of the respondent’s application. In fact, the respondent’s application was to come twice before the Commission. In order to understand what happened it is necessary to say something of the grounds upon which the application was pressed. In short form the contentions of the respondent were (a) that casuals had not been paid the special night allowance, (b) that the appellant had recently and for the first time asserted the entitlement of casual bus drivers to the allowance, (c) that resolution of the question whether as a matter of construction casual bus drivers were entitled to the allowance would require protracted and expensive litigation, and (d) that in the premises the Commission should give effect to the true spirit and intendment of the decision of 16 March 1998 by further varying the Award to make clear that casual bus drivers were not and had never been entitled to the allowance. As should be the case, the application for reopening (and the application for variation) was referred to the Commissioner who had dealt with the matter in 1998. Having reopened the proceedings, and the decision to reopen is not attacked on the appeal, the Commissioner informed the parties that in settling the terms of s. 3.1(9) it had not been the Commission’s intention that, in the case of casual employees, the entitlement to allowances such as the special night allowance should be subsumed into the casual loading. At that point the respondent’s case had failed. The relief which the respondent had sought could not be made available on the grounds advanced. However, the Commission listed another matter for argument, viz. whether the Award should be retrospectively varied from 16 March 1998 to make clear that casual employees are not excluded from an entitlement to night allowances in circumstances which might otherwise give them a right to such allowance. (Neither party had sought such a variation, but the Commission was plainly entitled to list the matter of its own initiative.) The matter came before the Commission again on 17 October 2002. It is plain from the transcript that the appellant was not pressing for a retrospective variation of the Award. The appellant continued to press the argument which it had sought to press in the proceeding about wages said to be due and owing to Mr Bickerton, viz. that properly construed the Award gave casuals an entitlement to the special night allowance. And in fairness to the appellant, it must be said that if the issue of construction had been resolved and the appellant had been successful, retrospective variation of the Award to achieve clarity would have been unnecessary. The Award is a single employer Award applying to a discrete and limited area of employment. Once decided, the point at issue would have been clear to all parties. The Commission did not determine the point of construction. The Commission chose to determine the issue of retrospective variation on the basis that the Award might (but might not) confer an entitlement to the special night allowance on casual bus operators. By a decision of 1 November 2002, now reported at 170 QGIG 400, the Commission concluded (at 403): “After carefully considering the whole matter I have decided that I will only amend the Award from 26 September 2002 to make it clear that casual bus operators are to be entitled to the special night allowance from that date, and not before that date. In reaching that decision I have taken into account the following matters: • the unchallenged and undisputed practice of the Council from 1998 until the matter was first challenged in late December 2000; • the apparent acceptance of the practice by the Union and its members (many of whom were full-time employees who converted to casual employment) during the whole of the period 1998-2000; -- 2 of 4 -- 28 February, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1095 B:\GAZETTES\INDUSTRIAL\2003\FEBRUARY\28-02-03\QGIG280203.DOC • the mammoth exercise involved in now attempting to recalculate the entitlements of approximately 500 casual employees who have been engaged during the period 1998-2002 (or even between December 2000 and now); • the possibility that there might be up to 500 unpaid wages claims lodged covering the period from March 1998 until September 2002 if the position in respect of that whole period is not made clear; • the fact that there is an arguable case that, in absence of a specific amendment to the contrary effect, casual bus operators are not entitled to the special night allowance; and • the fact that the Commission has only now, for the first time, positively expressed the view that casual bus operators should be paid the special night allowance – as opposed to my original intention that they not be deprived of any entitlements which they might otherwise have.”. The Commissioner proposed (and sought comment upon) the following amendment to the Award: “Provided further that: (a) no casual employee shall be entitled to payment under this clause for any work performed prior to 26 September 2002; and (b) after 26 September 2002, casual employees shall be entitled to payment under this clause for all hours worked between 6.00 p.m. and 7.00 a.m. for which overtime or penalty rates are not payable, as if all such hours were ordinary time payable at ordinary rates.”. It appears that no formal order has been drawn up. The appeal is against the decision. I can perfectly well understand why it was that the Commission answered in the negative the question which the Commission had listed for argument, and why the Commission held that the Award should not be retrospectively varied from 16 March 1998 to make clear that casual employees were not excluded from an entitlement to night allowances in circumstances which might otherwise give them a right to such an allowance. The application about the wages said to be due and owing to Mr Bickerton had still to be determined. The exercise of determining whether upon the proper construction of the Award casual employees were entitled to the special night allowance, had not been undertaken. To quote again part of the passage quoted above, the respondent had satisfied the Commission that: “…[T]here is an arguable case that, in absence of a specific amendment to the contrary effect, casual bus operators are not entitled to the special night allowance.”. In those circumstances, to vary the Award retrospectively to make it clear that from 16 March 1998 casual bus drivers had had an entitlement to the special night allowance may well have involved retrospective imposition of an obligation upon the respondent. The Commission seems to have been alive to that point, observing in the paragraph immediately preceding the quotation above: “ … it is necessary for me to consider whether I should amend the Award retrospectively from 16 March 1998 to make clear that casual bus operators are not excluded from an entitlement to special night allowances in circumstances which might otherwise give them a right to such allowance, or whether I should amend the Award from a more recent date.”. (emphasis added) Further, at an earlier point in the decision, the Commission had observed: “After considering all of the issues raised – especially the evidence of Mr Bentley – I have now decided that it would be inappropriate for me to retrospectively amend the Award to provide for an entitlement to the special night allowance for casual bus operators before 26 September 2002.”. I can see no error of law in the approach taken by the Commission in determining not to clarify the existence of an entitlement retrospectively to 16 March 1998. Indeed, if I might take the liberty of saying so, I agree with the decision of the Commission. The difficulty lies in the decision to make clear that casual employees did not have an entitlement to the special night allowance before 26 September 2002. To begin with, the issue whether the Award should be varied to make clear that casual employees had not had an entitlement to the special night allowance prior to 26 September 2002 was not raised by the matter which the Commission had listed. Just when it was that the appellant became aware that it was at risk of such a variation, which substantially gave the respondent all that it had sought by its application of 23 July 2002, does not squarely appear from the transcript. However, since the point is not explicitly raised by the appellant’s pleadings, it should perhaps be put to one side. What cannot be put to one side is the retrospective nature of the Commission’s decision and the Commission’s proposed order (b). Whilst it is not unprecedented for an industrial tribunal to deprive workers of an allowance after it has been earned, see e.g. re Hydroelectric Commission of Tasmania Carpenters’ and Painters’ Award 1979 (1982) 269 CAR 23 (further considered 51 ALR 731), award variations which have that effect are quite exceptional. The appellant cannot complain that the Commission’s reasons are not adequately disclosed in the Commission’s decision. There was evidence before the Commission which the Commission appears to have accepted, upon which the Commission might base the conclusion that it was fair and equitable to declare that the allowance was not available prior to 26 September 2002. To begin with there was the evidence of Mr Bentley, summarised within the Commission’s decision at 170 QGIG 400 at 400, about the mammoth burden which the respondent would shoulder in attempting to delve back into history to calculate entitlements. Whilst it is true that Mr Bentley’s evidence about the interrelationship between any entitlement to the special night allowance and overtime payments is evidence about mixed questions of fact and law, no objection was taken to the evidence at the time and it seems to me to be material to which the Commission was entitled to have regard pursuant to s. 320(2). Additionally there was evidence about the comparative recency of the appellant’s interest in the special night allowance. I stress that there was no submission that it was unconscionable for the appellant to seek to enforce payment of the special night allowance or, indeed, that the respondent had relied upon the appellant’s “acquiescence”. The approach seems to have been that since both parties had initially proceeded upon the view that there was no entitlement to the special night allowance and because belated recognition of an entitlement to the special night allowance would impose a mammoth burden upon the respondent, the fair and proper course was to make a fresh start by declaring the allowance to have been available from 26 September 2002 but, for the past, allowing the cards to lie where they had fallen. Neither may the Commission’s decision be attacked on the basis that it took into account irrelevant material. The Commission was concerned to determine whether it should make a retrospective variation notwithstanding that the variation might deprive particular employees of an accrued right to wages. In the context of such proceedings relevance does not have the refined meaning which it carries in litigation about the declaration and enforcement of existing rights and duties. It was open to the Commission to treat as relevant the circumstance that both parties had initially proceeded upon the view that there was no entitlement to the special night allowance, and open to the Commission to treat as relevant the burden which delayed assertion of the right would cast upon the respondent. If, as I understand the appellant to contend, the Commission’s finding about the appellant’s -- 3 of 4 -- 1096 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 February, 2003 attitude to the entitlement of casuals to the special night allowance immediately after the variation of March 1998 was incorrect, it follows that the Commission made an error of fact. On an appeal, the Court is concerned only with whether there has been an error of law or a jurisdictional error. Equally, the Court is not concerned with whether – assuming the findings of fact by the Commission to be correct – the conclusion reached by the Commission was reasonably open to it. The inquiry is whether there was any evidence to support the Commission’s decision, compare Alamzeb v. Education Queensland (2001) 168 QGIG 347 at 347. There are, however, two matters upon which the decision of the Commission is silent. One, on the matter which had been listed for further consideration, viz. whether the Award should be retrospectively varied from 16 March 1998 to make clear that casual employees were not excluded from the entitlement to night allowances in circumstances which might otherwise give them a right to such allowance, the respondent had been given the benefit of the consideration that the grant of such relief “might” retrospectively impose a burden upon it. The Commission’s reasons do not disclose why it was that on the other matter which surfaced, viz. whether the Award should be retrospectively varied to make clear that casual employees did not have an entitlement to the night allowance prior to 26 September 2002, the appellant was not given the benefit of the consideration that grant of such relief might deprive employees of entitlements which were earned and accrued. The appellant was plainly entitled to reasons for the distinction, see Murrays Australia Limited v. Training Recognition Council and Others (2002) 171 QGIG 93 at 95. Two, neither the Commission’s reasons nor the observations of the Commission on transcript disclose why it was that the Commission chose to deal with the matter on the basis that the Award might (but might not) confer an entitlement of the special night allowance upon casual employees. And it must be borne in mind that if the appellant’s (rejected) submission that the proper construction of the Award should have been determined had been acted upon, the issue facing the Commission would have emerged with stark clarity. If, upon its proper construction, the Award was held to confer an entitlement to the special night allowance upon casual employees, the issue facing the Commission, on the matter which ultimately emerged, was whether an existing right should retrospectively be taken away. If the construction adopted was that the Award did not confer an entitlement to the special night allowance upon casual employees, the issue facing the Commission, on the matter originally listed, was whether the obligation to pay the allowance should be imposed retrospectively. There is force in the criticism that to deal with the matter on the “might (but might not)” basis was to substitute obfuscation for certainty. To interfere with an exercise of discretion is a serious matter. However, to grant the respondent protection against retrospectivity whilst not extending the same protection to the appellant is so apparently unfair as to suggest that the Commission acted upon a wrong principle. In such a case, interference with the exercise of discretion is warranted, House v. The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ. The circumstance that the “might (but might not)” basis upon which the matter was determined made retrospectivity less unpalatable, aggravates the situation. Whilst the matter is not without difficulty, it seems to me that the appeal against discretion should be allowed. This is not a case in which it would be appropriate to substitute another decision for the decision of the Commission. Neither is it a case in which it would be appropriate to remit the matter to the Commission to be heard and determined according to law. There is a real question about whether proceedings under a repealed Act, viz. the Workplace Relations Act 1997, may be reopened and re-agitated pursuant to s. 280 of the Industrial Relations Act 1999 and, if such a reopening be permissible, a further question about which statute supplies the principles to be applied upon reconsideration of the matter. In the event that the respondent failed on that argument, there is a further issue about the extent of the power to give retrospective effect to a decision vested by s. 125(3)(c). It seems to me that the proper course is to set aside the decision of the Commission and allow the parties to initiate such further proceedings as they see fit. I set aside the decision of the Commission. I reserve the question of costs. Dated 19 February 2003. D.R. HALL, President. Released: 19 February 2003 Appearances: Mr J. Merrell, instructed by Carne Reidy Herd, for the appellant. Mr A. Herbert, instructed by Brisbane City Council Legal Practice, for the respondent. -- 4 of 4 --