Application for Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2022 [2022] NSWIRComm 1061

DECISION

1. On 28 July 2022, the Commission had before it for arbitration three applications filed by the Transport Secretary being: 1. an application pursuant to s 10 of the Industrial Relations Act 1996 ("Act") for the making of an award to be known as the "Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2022" (2022/00194570) ("TM Award"), and for an order pursuant to s 17 of the Act that the Award known as "Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2021" be rescinded; 2. an application pursuant to s 17 of the Act for the variation of the Roads and Maritime Services Consolidated Salaried Award 2019 (2022/00194597) ("RMS Award"); and 3. an application pursuant to s 17 of the Act for the variation of the Roads and Maritime Services School Crossing Supervisors Award 2019 (2022/00194684) ("SCS Award").
2. The effect of each application is to provide for an increase of 3% in remuneration (comprising a 2.53% increase to salaries and a 0.5% increase to the rate of compulsory superannuation contributions made on behalf of employees) from the date the relevant award is made by the Commission; and for each of the TM Award, RMS Award and SCS Award to contain a no extra claims provision which will have effect for a period of one year.
3. The union parties to the applications and the relevant awards (proposed and existing) are: 1. TM Award - the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"), the Rail, Tram and Bus Union of New South Wales, the Australian Services Union of NSW ("ASU") and the Association of Professional Engineers, Scientists and Managers Australia ("APESMA"); 2. RMS Award - PSA, APESMA, ASU, The Australian Maritime Officers' Union of New South Wales and The Australian Institute of Marine & Power Engineers NSW District; and 3. SCS Award - The Australian Workers' Union, New South Wales ("AWU") and the PSA, (collectively "the respondents").
4. At the conclusion of the arbitration, the Full Bench issued a determination in, and made directions in respect of, each application. It informed the parties that reasons would be published subsequently. These are those reasons.

Background

1. Each application was the subject of conciliation conducted by Commissioner O'Sullivan on 13, 19 and 26 July 2022. At the conclusion of conciliation, the parties were not able to reach agreement on four issues, being: 1. the quantum of the remuneration increase; 2. the commencement date for any increase; 3. the term for which the new and varied awards would operate; and 4. the inclusion of a no extra claims provision.
2. Prior to the arbitration, the parties reached agreement that the nominal term of the TM Award would be one year and that the RMS Award and the SCS Award would be extended by one year. As a result of this and other matters having been agreed between the parties, amended applications were filed by the Transport Secretary on 27 July 2022.
3. The Commission was informed that there were a number of employees covered by the RMS Award whose employment with the Crown was to cease with effect from 1 August 2022, and whose conditions of employment would be governed subsequently by the provisions of the Fair Work Act 2009 (Cth). For that reason, the Commission listed the applications for arbitration on an urgent basis.

Applicable legislation and principles

1. There was no controversy as to the principles that the Full Bench ought to apply in determining the applications. Consequently, we will not for the sake of "form" reiterate those principles or reproduce extracts from the authorities from which they are derived. We limit ourselves to drawing attention to the observations of the Full Bench in Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 at [17]-[32].
2. We also assume familiarity with the Act and Regulation. We will not reproduce the provisions to which we refer.
3. We are cognisant of the Commission's jurisdiction under s 10 of the Act, and of the requirements of Ch 2, Pt 1 of the Act generally. We note the matters to which we must by subs 146(2) have regard in exercising that jurisdiction (including the objects in s 3). We also note the constraints imposed on our jurisdiction by s 146C of the Act and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation").

Evidence

1. In support of each application, the Transport Secretary read an affidavit of John McAuliffe, the Director, Employee Relations for Transport for New South Wales ("TfNSW"). The affidavits were in short compass and were described by the Transport Secretary as addressing the equal remuneration principles.
2. The PSA read an affidavit of Jessica Louise Moore, an industrial officer in its employ. Ms Moore provided an outline of the communications between the PSA and representatives of TfNSW in respect of the TM Award, the RMS Award and the SCS Award in 2022. She deposed as to alleged difficulties that the PSA and other affiliates of Unions NSW had experienced in securing the engagement of the Transport Secretary in meaningful bargaining since January 2022.
3. Ms Moore also gave evidence as to the current rate of inflation, noting in particular that the headline inflation rate in Australia rose 1.8% in the June 2022 quarter to 6.1% and that the underlying inflation rate for that quarter was 4.9%. Ms Moore further deposed to the history of the no extra claims clauses within the awards.

The Applicant

1. In relation to the operative date, Ms Huang, who appeared for the Transport Secretary, submitted: "The parties need to either agree to retrospectivity, or the Commission needs to find that there are exceptional circumstances. [The] Transport Secretary does not consent to retrospective operation. However, the Secretary acknowledge[s] the decision of the full bench that was handed down last Friday, and the Secretary also accepts that the circumstances in this matter are not materially different to the other proceedings, and that it would be open to the full bench to follow the decision that was handed down on Friday. I don't wish to make any further submissions on this issue, unless there are any questions from the Commission. Those are my submissions. "
2. The decision of the Full Bench to which Ms Huang referred was Application for Crown Employees (Public Sector - Salaries 2022) Award [2022] NSWIRComm 1057 ("Crown Employees' Salaries Awards").
3. The Transport Secretary submitted that it was appropriate for each award to contain a no extra claims provision for the reason of utility described by the Full Bench in Crown Employees' Salaries Awards. It was also submitted that a no extra claim clause would provide the parties with certainty up to 30 June 2023 and is consistent with and gives effect to cl 6(1)(d) of the Regulation where it applied.
4. Ms Huang further submitted, without any evidence but with no contradiction from the union parties, that the Transport Secretary had sought variations of the RMS Award and the SCS Award, rather than seeking new awards pursuant to s 10, in order to preserve the effect of cl 221 to Sch 7 of the Transport Administration Act 1988, to protect the no-forced redundancies protection for employees who are covered by those awards. If new awards were made pursuant to s 10 with a new nominal term then this protection would be lost but as these variations would take the awards beyond their nominal terms, subcl 6(1)(d) of the Regulation will not apply. Ms Huang submitted that the Transport Secretary should not be disadvantaged in respect of extra claims by his decision to protect the employees in the manner he had.

The PSA and other Unions

1. The PSA maintained that it sought an increase of 5.2% or the rate of inflation, whichever is the greatest. However, in its written and oral submissions, the PSA conceded that s 146C of the Act and cl 6A of the Regulation constrained the Commission's power to make increases beyond that set out in the Regulation; 3% for the financial year 2022-2023 (see subcll 6A(1) and 6A(2)).
2. As to the operative date of any new awards, the PSA pressed for the salary and salary-related increases to commence on 1 July 2022. It contended that exceptional circumstances exist within the meaning of subcl 6(2) of the Regulation to permit a retrospective commencement for the same reasons as noted by the Full Bench in Crown Employees' Salaries Awards. These include: 1. the current high levels of inflation being experienced. Any delay in employees being awarded increases leaves them bearing the brunt of these inflationary pressures; 2. the failure by the Transport Secretary to engage meaningfully with the PSA from January to June 2022, and the Government's announcement of its position by way of media release without any prior notice to the PSA; 3. the failure by the Transport Secretary to abide by the Government's wages policy, which contemplates bargaining parameters being settled no later than three months prior to the expiry of the current industrial instrument "to enable sufficient time for bargaining"; and 4. the delay in gazettal of the amended Regulation until 24 June 2022 and in filing the applications until 1 July 2022, meaning that there was no opportunity for the Commission to determine the matter prior to 1 July 2022.
3. On the question of a no extra claims provision, the PSA's contentions included: 1. that such provisions lack utility given cl 6(1)(d) of the Regulation; 2. no extra claims clauses reflect the outcome of a "settled arrangement" which is to be contrasted with this outcome which is imposed by the Regulation; and 3. a no extra clause provision is a mechanical provision and there is no presumption that that it is fair and reasonable for the purposes of ss 10 and 146 of the Act.
4. The AWU made some additional oral submissions in relation to the no extra claims clause. These expanded on the issue of whether it would be fair and reasonable to include such a provision, and as to the lack of utility in relation to such a clause given cl 6(1)(d) of the Regulation.
5. The remainder of the union parties who appeared supported and adopted the PSA's submissions.

Determination

1. As a result of the concessions by the parties set out above there were two matters requiring determination by the Full Bench: 1. whether the salary increases would take effect from 1 July 2022 or the date of the Full Bench's decision; and 2. whether the awards should contain a no extra claims provision.
2. In matter 2022/194570 we determined: 1. pursuant to s 10 of the Act, to make an award to be known as "Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2022" in the form of Amended Schedule A to the Amended Application for a New Award filed by the Transport Secretary on 27 July 2022, save that cl 4.2 is to reflect a commencement date of 1 July 2022 and a notional expiry date of 30 June 2023; and 2. pursuant to s 17 of the Act, to rescind the Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2021.
3. In matter 2022/194597 we determined to vary the Roads and Maritime Services Consolidated Salaried Award 2019 as reflected in Amended Schedule A to the Amended Application for Variation filed by the Transport Secretary on 27 July 2022, save that the variations will take effect from 1 July 2022 and any increases in salaries or salary-related allowances will be payable from the first full pay period on or after 1 July 2022.
4. In matter 2022/194684 we determined to vary the Roads and Maritime Services School Crossing Supervisors Award 2019 as reflected in Amended Schedule A to the Amended Application for Variation filed by the Transport Secretary on 27 July 2022, save that the variations will take effect from 1 July 2022 and any increases in salaries or salary-related allowances will be payable from the first full pay period on or after 1 July 2022.
5. In reaching our decision, we applied the same reasoning as that applied by the Full Bench in Crown Employees' Salaries Awards at [43]-[51]. It is not necessary to reproduce those passages.
6. In particular, we note that exceptional circumstances exist within the meaning of cl 6(2) of the Regulation so as to allow for a retrospective commencement date for each award.
7. We were not satisfied that the presumption that the no extra claims provisions provide fair and reasonable conditions had been rebutted. We also took into consideration Ms Huang's submission about the reason for the variations of RMS Award and the SCS Award beyond their nominal terms and the consequential non-application to those awards of subcl 6(1)(d) of the Regulation.

Directions

1. At the conclusion of the hearing, following the notification to the parties of the Full Bench's determination in this matter the Full Bench made the following directions: 1. The parties confer with a view to confirming that there is consensus on any matters identified in the proceedings as still requiring confirmation. 2. By 11.00am on 29 July 2022, the Transport Secretary file and serve draft Short Minutes of Order to give effect to our decision in each matter, which are to include in each case a computer-readable version of the relevant award, as made or varied as relevant. Leave is granted to file those documents electronically to meet the timetable with copies to be filed in the Registry by 4.00pm 1 August 2022.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2022