Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council

[2022] QIRC 249

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2022] QIRC 249

PARTIES:

Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch
(Notifier)

v

Brisbane City Council
(Respondent)

CASE NO.:

D/2021/76

PROCEEDING:

Arbitration of industrial dispute

DELIVERED ON:

27 June 2022

HEARING DATE:

1 December 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Notifier's further written submissions filed on 14 December 2021 and Respondent's further written submissions filed on 14 January 2022

ORDER:

_{As to the question for arbitration:}

Is the Brisbane City Council required under its existing industrial instruments to maintain a dedicated roster line for the RTBU delegate at the Carina bus depot?

The answer is:

Yes

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - INDUSTRIAL DISPUTE - ARBITRATION OF INDUSTRIAL DISPUTE - since 1994 the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch and the Brisbane City Council have arranged that Union delegates employed as bus drivers at bus depots could work, on a permanent basis, a specific roster to allow them the flexibility to attend to Union delegate duties - agreement colloquially known as the 'Union run' - such an agreement has been in place at the Council's Carina bus depot since at least 1994 - in May 2021, the Council gave notice that it intended to cease to give effect to the Union run at the Carina bus depot - industrial dispute notified by the Union - arbitration of industrial dispute - question for arbitration being whether the Council was required, under its existing industrial instruments, to maintain a dedicated roster line for the Union delegate at the Carina bus depot - whether notice to cease to give effect to the Union run at the Carina bus depot was inconsistent with cl 7 of the Brisbane City Council Certified Agreement 2018 (EBA9) which recognised the role Union delegates play in consultative processes and in resolving grievances and disputes - whether notice to cease to give effect to the Union run at the Carina bus depot was a reasonable exercise of managerial prerogative - whether notice to cease to give effect to the Union run at the Carina bus depot was an extra claim prohibited by the no extra claims clause in the Brisbane City Council Certified Agreement 2018 (EBA9) - answer to question for arbitration is 'Yes'

CONTRACTS - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - CUSTOM AND USAGE - whether notice to cease to give effect to the Union run at the Carina bus depot was in breach of contract of employment - whether a term was implied by custom and usage, into the contract of employment between the Union delegate at the Carina bus depot and the Council providing for the Union run - no evidence of industry custom and usage - term not implied

LEGISLATION:

Brisbane City Council Certified Agreement 2018 (EBA9), cl 3, cl 4, cl 7, cl 13, cl 17, cl 34 and Schs 9-11

CASES:

_{Byrne v Australian Airlines Ltd} [1995] HCA 24; (1995) 185 CLR 410

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226

Elkerton and Willcocks (in their capacity as Administrators of South Head and District Synagogue) (Sydney) (In Liq) v Milecki [2018] NSWCA 141

Federated Ironworkers' Association of Aust NSW Division and Australian Fertilizers Ltd Re Overtime [1977] AR (NSW) 17

James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566

NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883; (2021) 174 ALD 521

Re Palmdale Insurance Ltd (in liquidation) [1982] VR 921

The Administrative and Clerical Officers Association, Commonwealth Public Service and Anor v The Commonwealth of Australia [1979] 53 ALJR 588

Thornley v Tilley [1925] HCA 13; (1925) 36 CLR 1

APPEARANCES:

Ms C. Jones and Ms K. Havelberg for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch.

Mr T. Prisk of the Brisbane City Council.

Reasons for decision

Introduction

1. The Brisbane City Council operates seven bus depots, one of which is the Carina bus depot.

2. In operating the Carina bus depot, the Council implements various work rosters for its bus operators. One such roster is known as a 'broken shift roster'. The 'broken shift roster' is made up of 'runs' which describes a bus operator's work for a particular day. The runs that make up the broken shift roster are split between two pieces of work. One piece of work occurs during the morning peak period and the other during the afternoon peak period with a break in between where the bus operator is not required to perform duties.[1]

   [1] The affidavit of Karen Marie McGraa sworn on 5 November 2021 ('Exhibit 2'), para. 3.

3. It is not disputed that the Carina bus depot has 69 broken shift roster lines. This means that each bus operator who works a broken shift will move from one line of broken work to the next line of broken work over a 69 week period. The effect of that particular rostering arrangement is that a bus operator's start, break and finish times will vary depending on the particular broken shift roster line in which they are working.[2]

   [2] Exhibit 2, paras. 4 and 5.

4. At the Carina bus depot, there has been in place, for approximately 40 years, an arrangement between the Council and the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch and its predecessor ('the Union'), whereby the Union delegate at the Carina bus depot has been permitted to select one of the 69 broken shift roster lines as a permanent run, so that the delegate is not rotated through all 69 broken shift roster lines (colloquially known as 'the Union run').[3]

   [3] Exhibit 2, paras. 6 and 7.

5. The Union delegate at the Carina bus depot who participates in the Union run, is Mr Darryl Lewis. It is not in dispute that Mr Lewis has been the Union delegate at the Carina bus depot since about 2013.

6. In about May 2021, the Council advised Mr Lewis that the Union run would be withdrawn as of 14 July 2021. The Union disputed that decision. After following the relevant internal dispute resolution procedure, the Union, on 6 July 2021, notified the Commission of an industrial dispute between it and the Council.

7. A letter dated 16 July 2021, giving three months formal notice of ending the Union run, was provided to Mr Lewis.

8. The dispute was unable to be resolved by conciliation and, in August 2021, was referred to the Commission, as currently constituted, for arbitration. The Council agreed not to implement the formal notice given to Mr Lewis given the dispute is to be arbitrated.[4]

   [4] T 1-2, l 44 to T 1-3, l 8.

9. By agreement between the parties, the question for arbitration is:

   Is Brisbane City Council required under its existing industrial instruments to maintain a dedicated roster line for the RTBU delegate at the Carina bus depot?

10. For the reasons that follow, the answer to the question for arbitration is 'Yes'.

    The evidence

11. The Union called evidence from Mr Thomas Brown, Assistant State Secretary of the Union and from Mr Lewis. The Council called evidence from Ms Karen McGraa, Manager of the Carina bus depot. Only Mr Lewis was required for cross‑examination.

12. Mr Brown's evidence was that:

    ·in 1994, when the Union run was agreed between the Council and the Union to be permanent, the intention was to increase availability of drivers, who were delegates of the Union, without disruption to passenger services or unnecessary expense;[5]

    [5] The affidavit of Thomas Joseph Brown sworn on 22 October 2021 ('Exhibit 1'), para. 6.

    ·the Union run allows Union delegates the time to carry out their duties, including representation of members at meetings with management about disputes and disciplinary proceedings and to attend workplace health and safety meetings;[6]

    ·the Union run has also been advantageous to the management of the Council by having delegates available consistently for the purposes of scheduling meetings which require delegate attendance;[7]

    ·the Council's human resource procedure for managing poor performance and misconduct establishes the Council's support of appropriate access to delegates, with wording encouraging employee access to their own union or suitable representative during disciplinary and performance management meetings;[8]

    ·no issues had been raised between the parties with respect to the operation of the Union run;[9]

    ·there are about 35 special lines on the roster at the Carina bus depot to accommodate flexible working and part-time arrangements;[10] and

    ·there are, at the Carina bus depot, around 165 buses and over 300 drivers.[11]

    [6] Exhibit 1, para. 7.

    [7] Exhibit 1, para. 8.

    [8] Exhibit 1, para. 9.

    [9] Exhibit 1, para. 10.

    [10] Exhibit 1, para. 11.

    [11] Exhibit 1, para. 11.

13. Ms McGrath's evidence included that:

    ·an overview of the broken shift rosters available at the Carina bus depot indicated that the longest break between work sessions in a broken shift is five hours and four minutes and the shortest break is two hours and 49 minutes;[12]

    ·the Union run involves one broken roster line being removed from the general roster and being allocated exclusively to the Union delegate, thereby relieving the delegate from the requirement to participate in the other 68 broken shifts, in the same manner as all other employees employed on the same terms and conditions;[13]

    ·the Union run at the Carina bus depot is not a fixed line in the roster, but rather it is one of 69 broken roster lines which the Union delegate chooses that suits them, and the effect of the Union run is that the Union delegate remains on the same roster each week without being required to rotate through other broken shift roster lines;[14]

    ·the present Union run line at the Carina bus depot:

    -   has a total working time of eight hours a day and a total paid time of 10 hours per day, whereas the average working time for the broken team is seven hours and 56 minutes and an average paid time of nine hours and 49 minutes;

    -   has a higher average paid time than both the line share and broken roster lines, excluding cleaner drivers, which means the Union delegate may earn a higher income than other employees engaged in the same terms and conditions of employment and that other employees are denied the opportunity of working those extra hours by participating in the broken shift roster line chosen by the Union delegate;[15] and

    -   a Union run only operates at the Carina bus depot and the Willawong bus depot.[16]

    [12] Exhibit 2, para. 5.

    [13] Exhibit 2, para. 6.

    [14] Exhibit 2, para. 7.

    [15] Exhibit 2, para. 8.

    [16] Exhibit 2, para. 9.

14. Mr Lewis' evidence was that:

    ·the roster at the Carina bus depot contains many special lines for employees on flexibility arrangements, for cleaner drivers, for employees in job share, and, although available but not taken up, for permanent part-time work;[17]

    [17] The affidavit of Darryl Wayne Lewis sworn on 7 October 2021 ('Exhibit 3'), para. 7.

    ·the Union run allows him, as a delegate, to be available to members by way of having standard and consistent split shift timing, with a break long enough to be able to carry out his delegate duties, which allows Union members to have a standard time to have access to him, particularly in circumstances where Union members driving buses are not situated on site and are not together for the bulk of their jobs;[18]

    [18] Exhibit 3, para. 9.

    ·the proposal to move him to the broken shift roster would mean that the spread of his work hours, and more particularly break times and lengths, would no longer be consistent;[19]

    [19] Exhibit 3, para. 10.

    ·being on the broken shift roster means that there is potential for him to be rostered for shifts which have breaks as short as two and a half hours which would hinder his ability to carry out his delegate duties such as attending workplace consultative committee meetings, attending performance management meetings, being available for critical incident notifications, being generally available to members and fitting in a meal break;[20]

    [20] Exhibit 3, para. 11.

    ·on his present roster, Union members know that he is available between 10.30 am and 2.30 pm;[21]

    [21] Exhibit 3, para. 12.

    ·a change to his current rostering arrangement would mean:

    -   there would be an expectation from Union members that he would be available, when he was not;

    -   because bus operators cannot answer their phones while driving, he could not be readily available to assist, as a delegate, if he was put onto another shift and members may have to miss out on assistance with issues they have at work;

    -   disciplinary meetings would not easily be scheduled at times when he was available and may have to be rescheduled to fit his availability; and

    -   the Carina bus depot manager would not be able to easily establish his whereabouts if required;[22]

    ·maintaining the Union run would not cause any hardship to the Council or change any current rostering practices and there was no genuine operational reason for the change;[23] and

    ·the benefits to the Council by having him on a predictable roster include being able to schedule disciplinary meetings and other ad hoc meetings for a time when the Council knows he is available, not having to call him in from driving a bus if he is needed and being able to schedule future meetings, such as workplace consultative committee meetings, at consistent times and without requiring changes to rosters.[24]

    [22] Exhibit 3, para. 13.

    [23] Exhibit 3, paras. 14 and 15.

    [24] Exhibit 3, para. 16.

    The arguments by the parties

15. Both parties made arguments in respect of the answer to the question posed for arbitration.

    A contract for the Union run exists between the Union and the Council

16. The undisputed evidence of Mr Brown was that the predecessor to the Union received correspondence dated 23 February 1994 from the Council proposing an agreement to be entered into for a 'permanent run' for 'shed representatives' at all of the bus depots operated by the Council at that time.[25]

    [25] Exhibit 1, paras. 3-5, and exhibit 'TB1'.

17. The Union submitted that the above-mentioned correspondence amounted to a meeting of the minds on the arrangement for the Union run, that there was consideration of both sides, such that the 1994 correspondence constitutes evidence of a contract between the parties, being a contract which the Council is unilaterally attempting to end and which cannot be amended except by agreement of both parties.[26]

    [26] The Union's submissions filed on 22 October 2021 ('the Union's principal submissions'), paras. 5-9.

18. The Council submitted that no such contract, as contended by the Union, exists because:

    ·from the 1994 correspondence referred to above, it is difficult to understand the identity of the parties to any such contract, that is, whether the Union is a party, and if so, whether it made the agreement in the capacity as principal or an agent;

    ·the Union could not have made the agreement as an agent for Mr Lewis because Mr Lewis was not employed at the Carina bus depot until approximately 12 years after the purported agreement came into existence;

    ·if the agreement was made by the Union as principal, there is no basis on the face of the 1994 correspondence upon which it could be suggested any consideration flowed from the Union to support such an agreement;

    ·any illusory benefit which may have flowed to the Council in terms of flexibility was delivered by the incumbent individuals who are the beneficiaries of such a privileged position, and not by the Union;

    ·while there was no doubt that, in 1994, the parties reached an industrial arrangement that was mutually acceptable to them, that arrangement did not reach the standard required of an enforceable contract because:

    -   the arrangement or agreement was intended to have industrial consequences as opposed to legal consequences; and

    -   the arrangement made in 1994 has been varied over the years between the parties without any reference to or amendment to the alleged contract and that arrangement has been renegotiated by the parties and forms part of sub‑cl 3.7.2 of sch 10 to the Brisbane City Council Certified Agreement 2018 (EBA9) ('the certified agreement');

    ·clause 34.1 of the certified agreement restricts the operation of any such contract as asserted by the Union; and

    ·because the 1994 correspondence is properly characterised as having industrial, as opposed to legal consequences, the Council is entitled to unilaterally terminate the operative effect of that arrangement, subject to giving appropriate notice and complying with any other industrial obligation which may regulate such matters.[27]

    [27] The Council's submissions filed on 5 November 2021 ('the Council's principal submissions'), paras. 13 and 16‑28.

19. In oral submissions, the Union submitted that the Council's submissions appear to strain the meaning of a contract and that a contract is merely a meeting of the minds for which consideration is provided by each of the parties, which is exactly what was demonstrated in the 1994 correspondence.[28]

    [28] T 1-23, ll 28-31.

20. I cannot accept the Union's submissions.

21. The Union submits that the evidence for the contract is the 1994 correspondence. Leaving aside the issues of the identification of the parties to such a contract and consideration, the 1994 correspondence is not expressed in the language of a contract or an offer to contract. Further, the language of the correspondence does not indicate that a contract has been made, or that a contract will be made, between the Council and the Union.[29]

    [29] See The Administrative and Clerical Officers Association, Commonwealth Public Service and Anor v The Commonwealth of Australia [1979] 53 ALJR 588, 589 (Mason J).

22. In my view, the language used in that letter is in the language of the Council proposing an industrial arrangement following representations made by Union representatives. On the first page, the author, on behalf of the Council, stated that the Council was '… willing to try the "permanent run" arrangement provided that we have a mutual understanding with you as to the framework within which the arrangement would operate.' Then, after setting out the framework being proposed by the Council, the author stated:

    Given that the intention of Rocco's and Dennis' original requests for permanent runs was to enhance flexibility and availability of shed representatives for meetings, etc., I would expect that the arrangements (if you agree) will be executed in a cooperative spirit.

    If the arrangement goes ahead, we will revisit it in around three months time to see how we are going.

    In order to get things moving, and noting that both Carina and Garden City have roster changes in the very near future, I request that you consider this issue as a matter of some urgency.[30]

    [30] Exhibit 1, exhibit 'TB1'.

23. In circumstances where the terms of the letter, which the Union claims is proof of a contract, does not assert that a contract has been made or that a contract will be made, and is expressed in the terms of a proposed industrial arrangement that would be reviewed in three months if the proposed arrangement was accepted, I cannot conclude that the letter is evidence of a contract between the parties.

    The Union run is an established custom and practice such that it amounts to an implied term in Union delegates' contracts of employment

24. The Union asserts that the Union run has existed for its delegates since at least 1994 such that it is an established custom and practice. In support of that contention, the Union refers to Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd[31] which establishes the circumstances in which trade custom or usage may form the basis for the implication of a term into a contract.

    [31] [1986] HCA 14; (1986) 160 CLR 226 ('Con-Stan'), 236-237 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).

1. The Union also referred to Federated Ironworkers' Association of Aust NSW Division and Australian Fertilizers Ltd Re Overtime[32] as authority for the proposition that a custom and practice will form part of a contract where it is uniform, notorious, reasonable and certain.[33]

   [32] [1977] AR (NSW) 17.

   [33] The Union's principal submissions, paras. 10-13.

2. In reliance on these cases, the Union submits that the evidence of Mr Brown and Mr Lewis demonstrates that there has existed an ongoing custom and practice for the Union run.[34]

   [34] The Union's principal submissions, para. 14.

3. As best as I understand this argument, by having regard to the Union's reliance on the above‑mentioned cases, the Union asserts that the Union run is a term of the contract of employment between the Council and Mr Lewis (and other relevant Union delegates at bus depots), being a term implied by custom and usage.

4. The Council submits, for the following reasons, that no such term can be implied into the contracts of employment for Union delegates at the Carina bus depot:

   ·first, merely because the Union run has been in place at the Carina bus depot since 1994, it cannot have the suggested effect that it irrevocably alters the contract of every Union delegate indefinitely into the future;

   ·secondly, the practice is not so uniform or notorious that every Union delegate employed by the Council has a right to or does enter into the arrangement; and

   ·thirdly, the arrangement derived from an industrial agreement relevant to the time and context of when it was put in place, and the parties' voluntary practice of continuing such an arrangement for one employee, by mutual consent for a number of years, was one '… where the parties retained the right to end the arrangement.'[35]

   [35] The Council's principal submissions, para. 30.

5. I cannot accept the Union's submissions.

6. The existence of a custom or usage that would justify the implication of a term into a contract is a question of fact.[36] There must be evidence that the custom relied on is so well‑known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract; that is, the custom must be so notorious that everybody in the trade enters into a contract with that usage as an implied term, it must be uniform as well as reasonable and it must have quite as much certainty as the written contract itself.[37]

   [36] Con-Stan (n 31), 236.

   [37] Ibid.

7. The phrase 'custom or usage' includes terms implied by established mercantile usage or professional practice.[38] It also refers to the custom of a particular trade[39] and to the custom of a particular locality.[40]

   [38] Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 440 (McHugh and Gummow JJ).

   [39] Thornley v Tilley [1925] HCA 13; (1925) 36 CLR 1, 8 (Knox CJ).

   [40] Re Palmdale Insurance Ltd (in liquidation) [1982] VR 921, 925 (Gobbo J).

8. The issue of the importation of a term into a contract due to custom and usage was clearly illustrated by the New South Wales Court of Appeal in Elkerton and Willcocks (in their capacity as Administrators of South Head and District Synagogue) (Sydney) (In Liq) v Milecki.[41] In that case Meagher JA[42] held:

   [41] [2018] NSWCA 141.

   [42] Ibid (Bathurst CJ at [1] and Macfarlan JA at [2] agreeing).

   [43]     The third basis relied upon is implication from custom or usage. Referring to the joint judgment in Con‐Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 236-238; [1986] HCA 14, McHugh and Gummow JJ in Byrne v Australia Airlines at 440, summarised the reasoning underlying the implication:

The question is always whether the general notoriety of the custom makes it reasonable to assume that the parties contracted with reference to the custom so that it is therefore reasonable to import such a term into the contract. Where there is such an established usage, “the courts are spelling out what both parties know and would, if asked, unhesitatingly agree to be part of the bargain”. Because the importation of the term rests on the presumed intention of the parties, it must yield to the actual intention embodied in express terms of the contract, whether the contract be written or oral.

[44]     Con‐Stan Industries v Norwich Winterthur makes clear (at 236-237) that the “existence” of a custom or usage that will justify the implication is a question of fact and that there must be evidence that the “custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract”.

[45]     Here, there is no evidence of a religious custom or usage that contracts made in Australia between an Orthodox Jewish Rabbi and his congregation, or a legal entity controlled by that congregation, are taken to provide as part of that bargain that the Rabbi have life tenure. In the absence of such evidence, there was no sound basis for implying the Hazakah term from custom or usage.

1. While the Union run may have been an arrangement agreed to by the Council and the Union since 1994, there is no evidence of such a widespread custom in the bus transportation industry. The only evidence before me of such a custom is limited to the Council and the Union.

2. Therefore, on the evidence before me, I cannot conclude that the custom relied on (the Union run) is so well‑known and acquiesced in that everyone making a contract in that situation (a union delegate bus operator employed by a provider of bus services) can reasonably be presumed to have imported that term into the contract of employment between the bus operator and the employer.

3. Even if I am wrong about approaching the issue of the importation of the custom that broadly, the undisputed evidence is that the Union run is presently limited to two of seven of the Council's depots; Carina and Willawong.[43]

   [43] Exhibit 2, paras. 9 and 10.

4. In either circumstance, I cannot find that the alleged custom is so notorious that the Council, and the Union delegates employed by it who are located at bus depots, can reasonably be presumed to have imported such a term into the contracts of employment between them.

5. A custom or practice between two parties, which may be (loosely) described as an industrial or workplace custom or practice, is not always a custom that the law will imply into contracts of employment.

   The decision to end the Union run at the Carina bus depot is inconsistent with cl 7 of the certified agreement

6. Clause 7 of the certified agreement is headed 'Employee and industrial relationships' and relevantly provides:

   7.1     The Parties recognise that employees appreciate the benefits of secure employment and sustainable conditions, committed and caring leadership, career development and effective representation. We encourage direct consultation with employees and Unions, and recognise that the Unions and their delegates have a role to play on behalf of employees in consultative processes and in resolving grievances and disputes.

7. The Union submitted that:

   ·clause 7 states that the Council recognises the role that workplace delegates play in consultation and in the resolution of disputes and grievances on behalf of employees;

   ·the provision of the Union run gives life to that clause;

·in addition, the Council's procedure document entitled HRP 130 Managing Poor Performance ('HRP 130') provides:

4.2 At all times, the principles of natural justice and procedural fairness must be followed. Employees are able to request and choose their own union or suitable representative to support them through this process.

·the above-mentioned principle from HRP 130 is most effective when both employees and managers who may be involved in such processes have a clear understanding of when the delegate is available to attend these meetings; and

·the Union Run gives life to the principles included in HRP 130.[44]

[44] The Union's principal submissions, paras. 16-20.

1. The Union further submitted, based on the evidence of Mr Lewis, that the Union run at the Carina bus depot is required for the purposes of allowing Mr Lewis to be able to properly perform his duties as a Union delegate. The reasons why that is so relate, principally, to the assertion that the Union run allows Mr Lewis a period of four hours, between his shift times, to attend workplace consultative committee meetings, attend performance management meetings, be available for critical incident notifications and be generally available for members; and that the critical nature of Mr Lewis' availability during those hours, to perform those functions, comes about because bus operators must not answer their phones while driving and therefore they have a limited ability to seek and obtain assistance from Mr Lewis as a Union delegate. The further assertion is that, based on the evidence of Mr Lewis and Mr Brown, the presence of the Union run cannot cause a burden on the rostering practices at the Carina bus depot because of the presence of other special lines in the roster.[45]

   [45] The Union's principal submissions, paras. 21-36.

2. For these reasons, the Union submitted that the withdrawal of the Union run, in the circumstances, would leave sub-cl 7.1 of the certified agreement hollow and without meaning.[46]

   [46] The Union's principal submissions, para. 27.

3. The Council rejects this submission for a number of reasons, but principally because five of the other bus depots operated by the Council do not provide for a Union run and there is no evidence that the absence of a Union run at those depots inhibits the work performed by Union delegates at those depots.[47]

   [47] The Council's principal submissions, para. 38.

4. Accepting, for the moment, the Union's evidence as to the importance of the Union run for the delivery of the services Mr Lewis provides to members of the Union who work from the Carina bus depot, and that the presence of the Union run cannot reasonably cause any difficulty for the Council's rostering practices at that depot, I am unable to form the view that the Council is required, by virtue of cl 7.1 of the certified agreement, to maintain the Union run.

5. By cl 7.1 of the certified agreement, all parties to the certified agreement recognise the role of all the unions, who are party to the certified agreement, and their delegates. However, that is a broadly expressed recognition. Such recognition is too broadly expressed to reasonably conclude that the Union run at the Carina bus depot is an arrangement expressly recognised by that provision.

   Unilaterally ending the Union run at the Carina bus depot is inconsistent with the no extra claims clause in the certified agreement

6. At the conclusion of the parties presenting their cases, I drew the parties' attention to the decision of the Federal Court of Australia in NSW Trains v Australian Rail, Tram and Bus Industry Union ('NSW Trains')[48] which concerned, amongst other things, the construction of no extra claims clauses in certified agreements. I raised the issue of whether or not the notice given by the Council to end the Union run at the Carina bus depot was an extra claim inconsistent with the no extra claims clause in the certified agreement.[49]

   [48] [2021] FCA 883; (2021) 174 ALD 521 ('NSW Trains').

   [49] T 1-27, l 44 to T 1-28, l 47.

7. I then gave the parties time to make further written submissions about that issue.[50]

   [50] T 1-29, l 1 to T 1-30, l 34.

8. Both parties made further written submissions.

   The decision in NSW Trains v Australian Rail, Tram and Bus Industry Union

9. In that case, NSW Trains was introducing a new fleet of electric passenger trains and it wanted to give certain directions to its drivers and guards in respect of those trains. The drivers and guards were covered by a certified agreement approved under the Fair Work Act 2009, being the NSW Trains Enterprise Agreement 2018 ('the 2018 Agreement').

10. Clause 13 of the 2018 Agreement relevantly provided:

    13.     NO EXTRA CLAIMS OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT

    13.1 This clause is subject to the right to a variation of this Agreement in accordance with Part 2‑4 Division 7 of the Fair Work Act 2009 (Cth). This Agreement covers the field. During the life of this Agreement the parties:

    (a)will continue to recognise the Employer’s managerial prerogative to propose and implement change in compliance with this Agreement;

    (b)except in accordance with the terms of Clause 12, shall make no extra claims for any changes in remuneration or conditions of employment;

    (c)agree that where any change proposed in Clause 12 above impacts upon Employees’ existing rates of pay and/or conditions of employment under this Agreement, then it will not only be implemented in accordance with the consultation and voting process included in Clause 12 of this Agreement.;

    (d)for Train Crew it is recognised that “conditions of employment” includes current:

11. The position of the Australian Rail, Tram and Bus Industry Union in that case was, amongst other matters, that the proposed directions were extra claims not permitted by the 2018 Agreement. A dispute was filed by the Union with the Fair Work Commission. On appeal from a first instance decision, a Full Bench of the Fair Work Commission relevantly held that NSW Trains' proposed directions would be impermissible extra claims unless pursued through a process provided for in the 2018 Agreement or through a variation to the 2018 Agreement.[51]

    [51] NSW Trains (n 48), [68]-[74].

12. Subsequently, NSW Trains sought declarations from the Court regarding its ability to give such proposed directions to its drivers and guards.[52]

    [52] Ibid [37]-[38] and [75].

13. While the Court found that NSW Trains was not permitted to re-litigate the issue of whether or not the proposed directions amounted to an extra claim,[53] Flick J went on to state that, in any event, his Honour would have come to the same decision as the Full Bench, namely, that the proposed directions would involve the making of extra claims.[54]

    [53] Ibid [77]-[99].

    [54] Ibid [101].

14. In coming to that conclusion, his Honour held, having considered the relevant authorities:

    ·in respect of the phrase 'no extra claims', two things are well‑established in respect of the term 'claim', namely:

    -   the word 'claim' is to be construed by reference to the industrial context in which it is employed and not by reference to its ordinary English meaning of an assertion of a right or entitlement to something; and, so construed

    -   the term embraces a claim by an employer or employee '… designed to improve upon or advance their respective entitlements or interests' or (expressed differently) to '… materially change the terms and conditions of employment';[55]

    ·it may also be accepted that the term 'extra' in the phrase 'extra claims' is employed '… in the sense of being additional to the matters already provided for';[56]

    ·what was to be distinguished from 'extra claims' is a direction by an employer that an employee perform other duties within the scope of their existing employment;[57] and

    ·there was nothing in the drafting of cl 13.1 of the 2018 Agreement which warranted that agreement being construed in any manner departing from the guidance provided by the authorities to which his Honour referred.[58]

    [55] NSW Trains (n 48), [105].

    [56] Ibid [107].

    [57] Ibid [108].

    [58] Ibid [109].

15. Justice Flick also held, again, having regard to relevant authority, that the prohibition against extra claims, referred to in cl 13.1(b) of the 2018 Agreement, is not confined in its operation to a change in the terms and conditions of employment set out in the 2018 Agreement itself. In this regard, his Honour held:

    115    Rejected at the outset is the submission advanced on behalf of NSW Trains that cl 13.1(b) is confined in its operation to a change in the terms and conditions of employment “set out in the Agreement”. That phrase is one not drawn from the terms of s 13.1(b) of the 2018 Agreement itself but one drawn from the following observations of the primary Judge as endorsed by the Full Court in Marmara Appeal [2014] FCAFC 84, (2014) 222 FCR 152 at 166, namely:

    [37]     As a matter of ordinary language we accept that a proposal which requires the addressee’s assent, such as an offer to buy a block of land, would not normally be regarded as a claim. However, as the primary Judge considered, to deal with the problem at this level of generality would be to ignore context, which is of paramount importance in this area of the law. His Honour said:

    In the context of the scheme for bargaining provided by the FW Act, where agreements are made in resolution of claims pursued through bargaining, a proposal by one party to vary the outcome arrived at in a way which advances its interests is apt to be regarded as a further claim. That is particularly so where the proposed variations are significant and suggest an attempt, as I consider is here the case, to strike a new bargain. Both the ordinary industrial meaning of “claim” and the scheme of the Agreement to which I have referred, are consistent with the construction of “further claims” in cl 4 as encompassing a proposal made by a party to the Agreement to materially change the terms and conditions of employment set out in the Agreement other than in a manner already provided for by the Agreement. Such a proposal is not merely a request or offer, it is also a “further claim” within the intended use of that expression in cl 4.

    For reasons which follow, we agree with this passage, and his Honour’s conclusion on this aspect of the case.

    The “extra claims” clause in that case (cl 4), like cl 13.1(b) in the present case, did not contain the phrase “set out in the Agreement”. There is no reason to give cl 13.1(b) such a constrained meaning. Clause 13.1(b) simply refers to “changes in … conditions of employment”, be they conditions found in the contract of employment or the terms of the 2018 Agreement. Similarly rejected at the outset is the submission advanced on behalf of the Respondents that an “extra claim” is anything that alters “the existing state of affairs”. So expressed, such an approach would give to “extra claims” clauses an unwarranted width of application.

    116    To confine the phrase “no extra claims for any changes in remuneration or conditions of employment” in cl 13.1(b) to changes “under the Agreement”, and not extending the phrase to those changes in conditions of employment set forth in the contract of employment, would be an interpretation equally capable of disrupting stability in the workforce as would not confining the phrase to only those changes to the Agreement. The confined interpretation sought to be given to cl 13.1(b), moreover, fails to take adequate account of the fact that the letter of offer to which cl 14.2 of the 2018 Agreement refers, and the Agreement itself, are to be read as a composite whole and not as separate and discrete sources of rights and obligations. Nor does the NSW Trains submission adequately explain why the phrase “conditions of employment” as referred to in cl 13.1(b) should not be given its normal meaning as referring to (at least) the “conditions of employment” as found in the contract of employment.

16. In respect of the proposed directions to drivers, Flick J held that those directions would constitute extra claims because:

    ·the proposed directions, which involved the drivers embracing 'new technology', meant that in the discharge of existing duties, the duty was so fundamentally or materially changed that it bore little resemblance to its heritage; and

    ·even though the job classification of a train driver may remain the same, the train driver is now being asked to drive what is essentially a '… different beast'.[59]

    [59] NSW Trains (n 48), [118]-[119].

1. Further, Flick J held that because the changes being proposed by NSW Trains were material changes, such as to fall within the phrase 'extra claims', NSW Trains was seeking to strike a new bargain with its drivers in circumstances where the 2018 Agreement did not contemplate that its drivers would be called upon to drive trains, other than those in the existing fleet, together with possibly such new technology as may be implemented to that fleet, with the result that the tasks being asked of the drivers was the making of an 'extra claim' within the meaning of and for the purposes of cl 13.1(b) of the 2018 Agreement.[60]

   [60] Ibid [120]-[122].

2. For similar reasons, his Honour came to the conclusion that the proposed directions for guards were material changes such as to fall within the phrase 'extra claims'.[61]

   [61] Ibid [123]-[130].

   Clause 4.8 of the certified agreement

3. Clause 4.8 of the certified agreement relevantly provides:

   4.8     No extra claims

   4.8.1   This Agreement is intended to be in full and final settlement of all issues and claims relating to employees covered by this Agreement, and provides processes to deal with any issues that might arise while this Agreement is in operation. This Agreement regulates in whole and exclusively, the terms and conditions of employment for persons covered by this Agreement for the life of this Agreement, irrespective of whether such matters are expressly mentioned in or dealt with by this Agreement. No claims for any alteration to the terms and conditions of employment or any other matters related to the employment of employees, other than by means specifically provided for in this Agreement.

   4.8.2   Reclassification of roles under relevant Awards and agreed HR Procedures, and agreements developed in accordance with clause 17 or clause 34, and other matters exempted in clause 4.5 shall not be considered to be extra claims.

   The Union's submissions

4. The Union submitted that cl 4.8 of the certified agreement contained a 'carve‑out' at cl 4.8.2 with the effect that the no extra claims clause would not apply to Local Area Agreements ('LAAs') contemplated in cl 34 of the certified agreement.[62]

   [62] The Union's further written submissions filed on 14 December 2021 ('the Union's further submissions'), para. 4.

5. Clause 34 of the certified agreement provides:

   34      Local Area Arrangements and Special Arrangements

   34.1    The special arrangements outlined in Schedules 8, 9 and 11 represent the only special arrangements to be retained. The special arrangements in this Agreement replace any previously agreed Local Area Arrangements (LAAs) or special arrangements. No further LAAs/special arrangements will be negotiated during the life of this Agreement. Any previously agreed LAAs/special arrangements which are not outlined in Schedules 8 – 11 of this Agreement shall cease to have any operation or effect from the date that this Agreement comes into operation.

   34.2    Nothing in this clause precludes the making of a new Agreement in the event of unforeseen circumstances, as provided for in clause 17.

   34.3    Special arrangements - roster changes

   Any provision of this Agreement which specifically provides for the actual terms of the roster (for example, pattern of ordinary hours, arrangement of ordinary hours, changes to start and finish times) for a work group or work area may be changed by agreement between Council and the majority of employees, in accordance with the following process:

   (i) All employees directly affected by proposed roster changes are to be consulted.

   (ii) Employees may be represented by their union representative.

   (iii) Concerns raised during consultation by individual employees relating to personal circumstances will be considered on a case-by-case basis, giving consideration to operational requirements.

   (iv) Agreement shall be deemed to have been reached if the consent of greater than 50% of employees directly affected is obtained.

   (v) Neither Party is to unreasonably withhold agreement to any proposed roster change.

   (vi) Changes or proposals for change in accordance with this clause during the life of this Agreement will not be “extra claims” within the meaning of clause at 4.8 of this Agreement.

   (vii) Any disputes arising from the application of this clause including genuine concerns that agreement is being unreasonably withheld, shall be dealt with in accordance with the dispute resolution clause in this Agreement (clause 9).

   (viii) This clause does not override or replace any specific roster change process outlined within a special arrangement contained within this Agreement.

   For clarity, this clause does not apply to variation of rosters where the actual rostering arrangement is not specifically set out in this Agreement. For rostering arrangements not contained within this Agreement, relevant Award provisions will apply.

6. The Union then submitted that:

   ·there has been no evidence presented by either side that the Union run would have been captured by cl 34;

   ·even if the Union run were to be identified and, or in the alternative, was accepted by the parties as being a LAA, the parties must have intended to exclude the Carina bus depot from the ending of the arrangement by virtue of its continuation beyond the implementation of the certified agreement in that, if it were captured (by cl 34), the Union run would have come to an end in July 2018 when the certified agreement was approved;

   ·as a consequence, the 'carve-out' in cl 4.8.2 is not relevant;

   ·clause 4.8.1 further identifies that terms and conditions of employment which are not expressly identified in the certified agreement are still captured by the no extra claims provision; and

   ·the Union run is not expressly identified in the certified agreement, but continues to be a term or condition of employment for whoever holds the role of Union delegate at the Carina bus depot, and, accordingly, the Union run is a term or condition of employment that cannot have an extra claim made on it for the life of the certified agreement.[63]

   [63] The Union's further submissions, paras. 5-10.

7. In respect of the decision in NSW Trains, the Union submitted that:

   ·it is undeniable that the removal of the Union run that applies to the Union delegate at the Carina bus depot is a material change to the terms and conditions that apply to whomever holds that recognised role and that the current condition that applies to the delegate is their ability to select a line in the roster which enables them, in their opinion, to best serve their members;

   ·the roster is compiled by the Council which retains its ability to determine which jobs need to be done and when, such that the Union delegate is not setting their own timetable but is merely selecting from those that are available in that it is a run that must be completed by someone working at the depot; and

   ·to remove that condition of the delegate's employment is undeniably a material change to the terms and conditions of the current delegate's employment or to the employment of whoever holds the role of elected delegate at the Carina bus depot.[64]

   [64] The Union's further submissions, paras. 18-21.

8. For these reasons, the Union submitted that the removal of the Union run at the Carina bus depot was an extra claim made by the Council during the life of the certified agreement which is prohibited by cl 4.8 of the certified agreement.

   The Council's submissions

9. The Council submitted that:

   ·as the arrangement, under which the Carina bus depot delegate has been permitted to choose their own roster line, is not included as an express term in any contract of employment, is not a term of any enterprise agreement or any industrial award, then such an arrangement can only have been a LAA or a special arrangement within the meaning of cl 34;

   ·if cl 34 applied to the Union run, its existence would have been abolished by the operation of cl 34.1 of the certified agreement because it is not included in schs 8‑11 of the certified agreement and therefore would be '… deemed by clause 34.1 to have ceased to have any operation or effect' from the date the certified agreement came into operation;

   ·clause 34.3 expressly provides that cl 34 itself has no application to the variation of rosters '… where the actual rostering arrangement is not specifically set out in this Agreement. For rostering arrangements not contained within this Agreement, relevant Award provisions will apply'; and

   ·an arrangement under which a single union delegate is permitted to occupy the same roster line in a 69 line system can be accurately described as a '… rostering arrangement not specifically set out in' the certified agreement, and, as such, such a rostering arrangement is specifically exempted from the operation of cl 34 and allocated to regulation by the relevant Award provisions.[65]

   [65] The Council's further written submissions filed on 14 January 2022 ('the Council's further submissions'), paras. 5-7.

10. The Council then submitted:

    10.      For the same reason, paragraph 6 of the Applicant's submissions should be rejected. The continuation of the conferral by Council of the gratuitous benefit of the arrangement for the Carina delegate is simply a manifestation of the ability of the Council to make such rostering arrangements as it sees fit in the best interests of the Council, its business imperatives, and the welfare of all of its employees. As such an arrangement is not "captured" by clause 34, there was no reason why it should necessarily have come to an end upon the certification of EBA9 in July 2018.

    11.      As to paragraph 7 of the Applicant's submissions, it is agreed that the carve out at clause 4.8.2 is not relevant to this dispute, as clause 34.3 makes express provision for the non‑application of clause 34 to the circumstances.

    12.     Paragraphs 8-10 of the Applicant's submissions reveal the fundamental error in those submissions. The mere fact that EBA9 does not expressly exclude a particular matter that may relate to the employment relationship from being categorised as an "extra claim" does not of itself mean that any such matter automatically meets the definition of an "extra claim" for the purposes of clause 4.8.1.

13.     If the union run arrangement is properly construed as being a part of an overall rostering arrangement agreed to by Council, the question must still be answered as to whether a variation by Council to the rostering arrangement agreed to by Council within its power to do so, is an "extra claim" within the meaning of the relevant definitions set out in the authorities.

1. As to the decision in NSW Trains, the Council submitted that Flick J:

   ·rejected the submissions by the respondents in that case, that an 'extra claim' is anything that alters the existing state of affairs in that, so expressed, such an approach would give to extra claims clauses an unwarranted width of application;[66] and

   ·emphasised the lower limits of the concept of an 'extra claim' in which his Honour stated that it must also be accepted that the term 'extra' in the phrase 'extra claims' is employed '… in the sense of being additional to matters already provided for' and is distinguished from a direction by the employer that an employee perform other duties within the scope of their existing employment.[67]

   [66] The Council's further submissions, para. 17.

   [67] The Council's further submissions, para. 18.

2. Ultimately, the Council submitted that the '… direction to work in accordance with the normal 69 line roster is not a claim and, more particularly is not an "extra claim" in the sense described in the authorities.'[68]

   [68] The Council's further submissions, para. 34.

3. The submissions in support of this contention are:

   ·it was common ground that the Council has a right to make, and therefore to remake and alter roster arrangements which have a bearing on the rights and entitlements of all employees who work under such rosters and that the Union delegate at the Carina bus depot was not exempted from the exercise of that right by the Council;[69]

   ·it was a 'fundamental error' to suggest that the exercise by the Council of a right conferred upon it '… by the industrial instruments and its common law right as an employer, is an "extra" claim, which claim is prohibited by the same instruments that conferred the right in the first place' and that the same instruments cannot both confer a right and forbid its exercise;[70] and

   ·in the present case, the fact that such right has been exercised by the Council in a particular way in the past is no reason why it cannot be exercised in a different way in the future and, as Flick J held in NSW Trains, a no extra claims provision (in a certified agreement) does not mean that employees cannot be directed to perform other duties within the scope of their employment, even if that requires an employee to undertake an increase in their workload.[71]

   [69] The Council's further submissions, para. 26. It was submitted that this was common ground because in paragraph [20] of the Union's further submissions, the Union submitted that the roster at the Carina bus depot was compiled by the Council and that the Council retained the ability to determine which jobs need to be done and when.

   [70] The Council's further submissions, para. 27.

   [71] The Council's further submissions, para. 28.

4. The Council submitted that:

   ·as it is entitled to, and did, it directed one particular employee that they may perform their usual work on a single chosen line on the 69 line roster; and

   ·it is equally entitled to direct the same employee that they may not do so in the future and that they must re-join the roster arrangements '… in which they previously worked, and which will be their mandatory roster arrangements if they relinquish the role of union delegate in the future.'[72]

   [72] The Council's further submissions, para. 29.

5. The Council further submitted that such a requirement was not a substantive or fundamental change in the employment of that single employee and that the direction to perform the same work in the same way on the same pre-existing 69 line roster meets none of the criteria of a fundamental or substantial change in the work required of that employee in order to be considered an extra claim.[73]

   [73] The Council's further submissions, paras. 30-31.

6. By way of conclusion, the Council submitted:

   32.     It is therefore not a matter that is contained in the contract of employment of the incumbent employee, their industrial agreement, or any industrial award. As such it is not a condition of employment which is being sought to be transgressed, and in particular, it is no more than the exercise by Council of a right which Council has always had, to direct the manner and form of rosters under which the Carina delegate performs their paid duties for Council. At its highest, the arrangement is a unilateral and gratuitous benefit previously conferred on the delegate, in recognition of his position as such, which forms no part of the performance of his usual duties as a bus operator, or his responsibilities to Council under his employment contract or the other prevailing industrial instruments.

   33.     As such, a directed change in that benefit by way of an idiosyncratic roster, so as to restore it to an orthodox roster cannot meet the standard of a [sic] "extra claim".

7. The parties' submissions, in part, concern the interactions between cl 4.8 ('No extra claims') and cl 34 ('Local Area Arrangements and Special Arrangements') of the certified agreement. This, in turn, gives rise to the construction of the certified agreement.

8. In James Cook University v Ridd,[74] Griffiths and SC Derrington JJ provided a convenient summary of the established principles for the interpretation of an enterprise agreement approved under the Fair Work Act 2009. Their Honours stated:

   [74] [2020] FCAFC 123; (2020) 278 FCR 566.

   [65]     The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

   (i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).

   (ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Ltd (1996) 66 IR 182 at 184; Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]).

   (iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).

   (iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

   (v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

   (vi) A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).

   (vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).

9. In my view, the interaction between cl 4.8 and cl 34, relevantly to the issues raised by the parties in this case, occurs in the following manner.

10. Very broadly, cl 4.8.1 of the certified agreement provides, amongst other things, that no extra claims for any alteration to the terms and conditions of employment or any other matters related to the employment of employees, other than by means specifically provided for in the certified agreement, is permitted during the life of the certified agreement.

11. Leaving aside, for the moment, what amounts to an extra claim within the meaning of that clause, an exception to the prohibition on extra claims being made during the life of the certified agreement is provided for at cl 4.8.2 which expressly states the matters that will not amount to extra claims. Relevantly, that includes '… agreements developed in accordance with clause 17 or clause 34.'

12. Having regard to cl 34 of the certified agreement, the only types of agreements that can be developed in accordance with that provision are agreements made in accordance with cls 34.2 or 34.3.

1. The effect of cl 34.2 of the certified agreement is that a new agreement may be made in the event of unforeseen circumstances as provided for in cl 17. Reading cl 17 as a whole and in context, in my view, it provides that despite cl 4.8, the parties to the certified agreement may negotiate a new certified agreement, which will prevail to the extent of any inconsistency over the (present) certified agreement, to address unforeseen outcomes as a result of organisational change that was not anticipated by the parties at the time of making the certified agreement. Such an agreement will not be one that is an extra claim and thus would not be prohibited by cl 4.8.

2. The effect of cl 34.3 of the certified agreement is that an agreement between the Council and the majority of employees in a work group or work area, to make changes to the terms of a roster, will not be one that is an extra claim and thus prohibited by cl 4.8.

3. Similarly, as expressly provided for in cl 34.3(vi) any changes or proposals for a change in accordance with cl 34.3 (namely, changes to a roster in a work group or work area) will not be extra claims prohibited by cl 4.8.

4. The resolution of the question of whether the decision to remove the Union run at the Carina bus depot is an extra claim requires the determination of a number of discrete issues.

   Is the Union run at the Carina bus depot a LAA or special arrangement within the meaning of cl 34.1 of the certified agreement?

5. I accept the Union's submissions.

6. There is no definition in the certified agreement of what amounts to a LAA or a 'special arrangement.' However, cl 34.1 expressly states that the special arrangements outlined in schs 8, 9 and 11 (to the certified agreement) '… represent the only special arrangements to be retained' and, further, that any previously agreed '… LAAs/special arrangements which are not outlined in Schedules 8 - 11 of this Agreement' shall cease to have any operation or effect from the date the certified agreement came into operation.[75]

   [75] Clause 34.1 is ambiguous in that on the one hand, it refers to schs 8, 9 and 11 as being 'special arrangements' and later refers to 'Schedules 8 - 11' as being agreed LAAs/special arrangements, which would seem to include sch 10 ('Passenger Services Employees').

7. Schedule 8 is a 15 page document comprising of 15 clauses that deals with a range of matters concerning wages and other conditions of employment for 'Salaried Staff Employees'. Schedule 9 is a 16 page document consisting of 10 clauses that deals with a range of matters concerning wages and conditions of employment for 'City Service Employees'. Schedule 10 is a 12 page document consisting of three clauses, which is expressed to be an arrangement agreed between Transport for Brisbane management and the Union, and deals with a range of matters concerning wages and conditions of employment for 'Passenger Services Employees.' Schedule 11 is an 11 page document consisting of 13 clauses that deals with a range of matters concerning wages and conditions of employment for 'Trade Services Employees.'

8. Having regard to schs 8-11, which cl 34.1 of the certified agreement contemplates to be, at least, special arrangements, I cannot form the view that the Union run that had been in place at the bus depots operated by the Council since 1994 and, more recently, has been in place at the Carina and Willawong bus depots, is a special arrangement of the kind contemplated in the certified agreement.

9. It seems to me, having regard to the certified agreement as a whole, that the special arrangements of the kind contemplated in cl 34.1 of the certified agreement are arrangements that significantly deal with the wages and conditions of employment for groups of the Council's employees. In my view, the particular industrial arrangement entered into between the Council and the Union from 1994 that provided for Union runs at the bus depots operated by the Council is a special arrangement of the kind contemplated by the certified agreement. The Union run did not and does not significantly deal with wages and conditions of employment for a group of employees.

10. Similarly, special arrangements, for the purposes of the certified agreement, may also be roster changes of the kind referred to in cl 34.3 of the certified agreement, being changes to the actual terms of a roster for a work group or work area agreed to between the Council and a majority of the employees. The particular industrial arrangement entered into between the Council and the Union from 1994 that provided for Union runs at the bus depots operated by the Council is not a special arrangement of that description. The arrangement entered into between the Council and the Union from 1994 that provided for Union runs at the bus depots operated by the Council was a specific industrial arrangement agreed to in response to a specific claim by the Union to allow its delegates to have sufficient time to perform their responsibilities given the nature of the work performed by them and by bus operators.

11. Further, on any objective consideration, the Union run could not be considered to be a LAA. There is no evidence that the Union run was a LAA.

12. In addition, the LAAs of the type contemplated in cl 34.1 of the certified agreement are those referred to in the schedules to the certified agreement. They included, for example, sch 8, cl 9.7 which dealt with Fire Control Stand-by for Salaried Staff Employees or sch 9, cl 10.2 which dealt with Asphalt Operations for permanent night work for City Service Employees. These LAAs affected a group of employees and provided for detailed conditions of employment for those subject matters which were then expressly included in the relevant schedules to the certified agreement as part of a special arrangement. The Union run is not an arrangement of that description.

13. Before leaving this point, I should deal with a submission made by the Council in its principal submissions.

14. The Council submitted that the arrangement made in 1994 between the Council and the Union had '… subsequently been re-negotiated by the parties in a different shape, and now forms part of the (enforceable) EBA9 Schedule 10.'[76]

    [76] The Council's principal submissions, para. 22.

15. Clause 3.7.2 of sch 10 deals with rostering for Passenger Services Employees. Clause 3.7.2(ii) provides that in recognition of the nature of the Council's transport operations and associated shift structure, so as to ensure '… designated employee representatives, as agreed between the parties', can be effectively engaged in consultation' the Council will '… release these designated employees in each depot for two shifts per month without loss of ordinary earnings' and that time '… for these designated employees to attend Work Unit Consultative Committee (WUCC) meetings will be in addition.'

16. Clause 3.7.2(iii) goes on to provide that specific arrangements for the allocation of time covered by those two shifts will be negotiated with the local manager and unless otherwise agreed, '… these designated employees will be available within the depot for the full period of these two shifts.'

17. Clause 3.7.2(iv) relevantly provides that the parties will ensure that 'designated employees' attend depot consultative forums and will encourage other '… elected Passenger Services Employee representatives to actively participate in other forums such as WUCC and team meetings.'

18. The Council submitted that these provisions '… are more than sufficient to address the concerns which are said to have given rise to the industrial arrangements made in 1994, yet the union seeks to retain both those arrangements and the [certified agreement] provisions indefinitely.'[77]

    [77] The Council's principal submissions, para. 23.

19. The Council submitted that the Union run was a 'rostering arrangement' within the meaning of cl 34.3 of the certified agreement such that it is exempted from the operation of the certified agreement and regulated by the relevant award provisions, the only one of which, specified by the Council, is whereby it retained the ability to determine which jobs needed to be done and when.

20. Assuming (without accepting) that an employee who has been elected Union delegate at a bus depot is a 'designated employee representative', I cannot accept the submissions by the Council. This is for the simple reason that the arrangements made in 1994 between the Council and the Union, that provide for the Union run, deal with completely different factual circumstances to those referred to in sch 10, cl 3.7.2(ii), namely, designated employee representatives, as agreed between the parties, being released for two shifts per month in addition to attending WUCC meetings.

21. Further:

    ·there is no acknowledgement in the certified agreement that the provisions in sch 10, cl 3.7.2 were to replace the arrangements made in 1994; and

    ·it is obvious that the Union run, at least at the Carina and Willawong bus depots, survived the operation of the certified agreement, including the operation of sch 10.

    Is the Union run at the Carina bus depot a rostering arrangement within the meaning of cl 34.3 of the certified agreement?

22. The Council submits that the Union run at the Carina bus depot is a 'rostering arrangement' within the meaning of the last paragraph in cl 34.3 of the certified agreement, such that the Council can, pursuant to a power (which it has not expressly identified) in the Brisbane City Council Bus Transport Employees Award - State 2016 ('the Award'), unilaterally change Mr Lewis' work arrangements such that he can no longer undertake the Union run.

23. The phrase 'rostering arrangement' is not defined in the certified agreement. As a consequence, having regard to the principles of construction referred to above, regard must be had to the provisions in the certified agreement itself.

24. Clause 34.3 is headed 'Special arrangements - roster changes.' The clause provides that any provision of the certified agreement which specifically provides for the actual terms of the roster, such as pattern of ordinary hours, arrangement of ordinary hours, changes to start and finish times '… for a work group or work area may be changed by agreement between Council and the majority of employees'.

25. It seems to me that, having regard to cl 34.3, the rostering arrangement contemplated in that provision is an arrangement that deals with a number of employees in a work group or work area. Indeed, cl 34.3 expressly provides that such a rostering arrangement may only be changed by agreement between the Council and the majority of employees (obviously in the work group or work area).

26. Schedule 12 to the certified agreement refers to specific rostering arrangements which can only be changed in accordance with cl 34 of the certified agreement. Clearly those are rostering arrangements which affect a work group or work area, such as '… Warehouse logistics - Logistics operations'.

27. Ms McGraa's evidence was that the Union run at the Carina bus depot is not '... a fixed line in the roster, rather it is one of the 69 broken roster lines which the union delegate chooses that suits them.'[78] That evidence is consistent with Mr Lewis' evidence. As I understood it, Mr Lewis' evidence in cross-examination was that he chose the roster line out of the available roster lines.[79] Further, in answer to a question from me, Mr Lewis' evidence, as I understood it, was that the particular roster line he chose was from the roster lines as determined by the Council.[80] From this evidence, it is apparent that the Union run is not a rostering arrangement affecting a work group or work unit, or a group of employees, that can only be changed by agreement with the majority of the employees affected. In respect of the Union run, the rostering lines are set by the Council and one line is picked by Mr Lewis. That is not a rostering arrangement of the kind contemplated in cl 34 of the certified agreement. Properly characterised, the Union run is an industrial arrangement between the Council and the Union which affects matters related to the employment of the Union's delegates at certain bus depots, namely, the ability of the delegates to choose a particular roster line out of the roster lines determined by the Council.

    [78] Exhibit 2, para. 7.

    [79] T 1-17, ll 29-34.

    [80] T 1-20, ll 6-9.

28. For these reasons, I do not accept the Council's submission that the Union run at the Carina bus depot is a 'rostering arrangement' such that it can be unilaterally changed by the Council's purported exercise of an unidentified power in the Award.

    Is the notice given to Mr Lewis a 'claim' within the meaning of cl 4.8.1 of the certified agreement?

29. As referred to by Flick J in NSW Trains, after his Honour's review of the relevant authorities, a 'claim', in the sense used in no extra claims clauses in certified agreements, is to be construed by reference to the industrial context in which it is employed. That is, the term embraces a claim by an employer or employee '… designed to improve upon or advance their respective entitlements or interests' or to '… materially change the terms and conditions of employment.'[81]

    [81] NSW Trains (n 48), [105].

30. Such a construction is consistent with the wording of cl 4.8.1 of the certified agreement.

31. However, it is readily apparent from the wording agreed in cl 4.8.1 of the certified agreement, that the clause goes further than the no extra claims clause in the 2018 Agreement in NSW Trains. Clause 4.8.1 also prohibits '… claims for any alteration to … any other matters related to the employment of employees, other than by means specifically provided for in this Agreement.'

32. By letter dated 16 July 2021 from Ms Jody Thomas, Acting Depot Manager at the Carina bus depot, Mr Lewis was provided with formal notice that:

    [T]he custom and practice roster arrangement that you currently work will be ending effective Sunday 17 October 2021. From Monday 18 October 2021, you will be placed on the broken shift roster, resulting in the custom and practice of working a specific dedicated line of work within the roster ending.[82]

    [82] Exhibit 2, exhibit 'KMM-01'.

33. Is what is proposed in this letter a 'claim' within the meaning of cl 4.8.1 of the certified agreement?

34. Ms McGraa's evidence was that the Union run at the Carina bus depot was no longer supported by the Council because:

    ·it limits the Council's ability to respond to network changes because it is a fixed roster line which is unable to be changed to accommodate the Council's business needs as they may vary from time to time;

    ·it is not fair or equitable:

    -        for one operator out of over 300 operators to be exempted from a full roster rotation such that the Union delegate may have an unfair ability to pick a dedicated run to their own advantage which is to the disadvantage of other staff; and

    -        to maintain an arrangement where one employee has access to a dedicated span of hours of the operator's choosing with a defined start, finish and break time which is not available to all other staff;

    ·a dedicated run does not enable the Union delegate to perform the full range of depot runs and maintain familiarity with the working conditions on those runs;

    ·it is not justifiable from a business perspective to create a separate arrangement that is only available to one specific employee merely because they hold the position of Union delegate, and that is not allocated in accordance with the Council's Flexible Employment Arrangement procedure;

    ·as change in complexity increases around network optimisation, including, for example, by the introduction of the new Brisbane Metro, bus operator work instruction (run prints) will change at increasing frequency and the requirement to retain a fixed line roster, where the content of the work must be within certain parameters, limits the Council's flexibility to respond to changing network conditions; and

    ·the Union run is in addition to the entitlements granted to Union delegates under the certified agreement, and, in Ms McGraa's view, was well in excess of the time required by the Union delegate to conduct Union duties.[83]

    [83] Exhibit 3, para. 12.

35. In Ms Thomas' letter dated 16 July 2021, similar sentiments were expressed. In the second and third paragraphs of her letter, Ms Thomas stated:

    While the purpose of this change is to end the custom and practice, it is also to ensure we have fair and equal access to opportunities that extend beyond the minimum paying shifts within the Depot roster. The roster in its current format, creates a significant potential for imbalance, due to the span of hours inherent with shifts with long break periods resulting in unequal distribution of work greater than the roster average.

    Also, due to complexity around network optimisation, Bus Operator work instructions (runprints) are changing at an increased frequency. By retaining a fixed line roster, where the content of the work must be within certain parameters, it limits Council's flexibility to respond to network conditions, as work will either be excluded from the optimisation process to secure the parameters associated with that specific runprint, resulting in a de-optimised solution that results in decreased operational efficiency, increased cost and in some cases, increased resourcing demands.

36. The evidence of the Council is that the Union run limits the Council's ability to respond to network changes because it is a fixed roster line which is unable to be changed to accommodate the Council's business needs as they may vary from time to time. The Council's evidence also is that the requirement to retain a fixed line roster, where the content of the work must be within certain parameters, limits the Council's flexibility to respond to changing network conditions. Leaving aside whether these claims are fact based or are otherwise meritorious, these claims are, on any reasonable view, evidence that the decision to end the Union run is a claim by the Council designed to improve upon or advance its interests.

37. Further, the decision to end the Union run is a claim by the Council that alters a matter related to the employment of employees covered by the certified agreement.

38. The evidence of Mr Lewis was that the identity of the person who can undertake the Union run at the Carina bus depot is the person who occupies the position of Union delegate.[84] Therefore, in so seeking to improve or advance its interests, the claim made by the Council about the Union run, in so far as it is directed to its employees who are the elected Union delegates at the Carina bus depot, is one that squarely falls as being a claim '… for an alteration to … any other matter related to the employment of its employees', as expressly contemplated in cl 4.8.1 of the certified agreement. The alteration is to stop the ability of the person, occupying the position of Union delegate, to choose their roster line.

    [84] T 1-19, l 37 to T 1-20, l 17.

39. For these reasons, the Council's decision to end the Union run for the person occupying the elected position of Union delegate at the Carina bus depot is a claim within the meaning of cl 4.8.1 of the certified agreement.

40. In addition, for the reasons given earlier, the result being sought to be achieved by the Council by its claim is not a matter that can be achieved by means specifically provided for in the certified agreement or by way of an agreement developed in accordance with either cl 17 or cl 34 of the certified agreement.

    Is the notice given to Mr Lewis an 'extra claim' within the meaning of cl 4.8.1 of the certified agreement?

41. In my opinion, the claim made by the Council is an extra claim within the meaning of cl 4.8.1 of the certified agreement. There are two reasons for this.

42. First, it is additional to the matters for which provision has already been made. It seeks the return, by the employee who is occupying the position of Union delegate at the Carina bus depot, to participation in the roster by proceeding through the 69 lines of the roster.

1. Secondly, I reject the Council's submission that the decision by the Council to end the Union run at the Carina bus depot amounts to the Council directing Mr Lewis, the current Union delegate, to perform other duties within the scope of his employment even if that requires him to undertake an increase in his workload. Such a submission, while initially an attractive one, ignores the history of the Union run and the reasons given by the Council for the change.

2. The Council, in its principal submissions[85] characterised (properly in my view) the 1994 correspondence as having industrial consequences.

   [85] The Council's principal submissions, para. 27.

3. Further, having regard to that history and the fact that relevant Union delegates, since that time, have had the benefit of selecting the run in which they wish to work, the decision by the Council to end the Union run is not merely a direction to Mr Lewis to undertake other duties within the scope of his employment for ordinary operational reasons.

4. Properly characterised, the decision of the Council is a direction that the person who, from time to time, occupies the position of Union delegate at the Carina bus depot, will not be able to pick which run the Union delegate chooses.

5. Ms McGraa gave no evidence that the removal of the Union run was a management response to a past or a present change in bus operations. Ms McGraa's evidence was that the continuation of the Union run was not supported by the Council, in respect of operational matters, because of circumstances that may occur in the future.[86]

   [86] Exhibit 2, para. 12. a. and f.

6. In addition, whatever Ms Thomas meant in the third paragraph of her letter dated 16 July 2021, which is by no means clear, there was no specific and current operational reason cited for removing the Union run.

7. Also, while Ms McGraa's evidence was that the Union run does not enable the Union delegate to perform the full range of depot runs and maintain familiarity with the working conditions on those runs,[87] she gave no evidence that has been an issue in respect of the work performance or competence of Mr Lewis or other past Union delegates.

   [87] Exhibit 2, para. 12. d..

8. The absence of evidence that the decision to remove the Union run is in direct response to any current operational issue or employee performance issue, takes the decision to remove the Union run outside the realm of an ordinary, day to day, direction given to an employee (Mr Lewis) to perform duties within the scope of their existing employment.

9. Indeed, on the evidence before me and having regard to the Council's submissions at paragraphs 22 to 23 and 38 of its principal submissions, I find that the real reasons the Council wants to remove the Union run is because of its view the Union delegate already has enough entitlements under the certified agreement to perform Union delegate duties (Ms McGraa's evidence at Exhibit 2, paragraphs 12g and 18) and that the Union delegate is unfairly advantaged, by being able to select the run of their choosing, over other bus operators, including that this occurs in the absence of an agreed flexible work arrangement (Ms McGraa's evidence at Exhibit 2, paragraphs 12 b, c and e). Further, as I have stated above, there is no probative evidence that the decision to remove the Union run is in response to a current operational issue or employee (the Union delegate) performance issue.

10. As a consequence, the decision by the Council to end the Union run at the Carina bus depot is not a case of a manager giving a direction to an employee to perform work within the scope of their existing employment. The reasons for the decision concern the Council's contemporaneous, negative view of the long standing industrial entitlement given to the Union delegate at the Carina Bus depot which it had agree with the Union.

11. For all these reasons, the decision to end the Union run is an extra claim within the meaning of cl 4.8.1 of the certified agreement.

    Is the notice given to Mr Lewis an extra claim prohibited by cl 4.8.1 of the certified agreement?

12. For the reasons I have given, the decision taken by the Council to give notice to end the Union run at the Carina bus depot is an extra claim within the meaning of cl 4.8.1 of the certified agreement.

13. Further, that claim is not a claim that can be achieved by other means specifically provided for in the certified agreement.

14. For these reasons, the notice given to Mr Lewis that the Union run at the Carina bus depot will be ending is an extra claim prohibited by cl 4.8.1 of the certified agreement.

    The Council is required under existing industrial instruments to maintain the Union run at the Carina bus depot

15. While the circumstances of this case are unique, for the foregoing reasons, the Council is required under existing industrial instruments, namely, the certified agreement, to maintain the Union run at the Carina bus depot.

    Conclusion

16. For the reasons given above, the answer to the question for arbitration is 'Yes'.

    Order

17. I make the following order:

    As to the question for arbitration:

    Is the Brisbane City Council required under its existing industrial instruments to maintain a dedicated roster line for the RTBU delegate at the Carina bus depot?

    The answer is:

    Yes