Mr Greenhill said it was erroneous for the Union to rely on Mr Mackie's letter, as the later working party referred to in (c) above concluded that only three ACs be established.
78 In further oral evidence, Mr Greenhill described the process of approval for any change in classification or rates of pay. Mr Greenhill believed that once the review had been undertaken twice, and particularly as Ms Lipski's involvement had been agreed, the dispute had concluded. However, he accepted the Union was unhappy with the outcome.
79 In cross examination, Mr Greenhill said he had not been involved in the EWG process and had not discussed Mr Perrim's memorandum of 31 March 2006 with him. Mr Greenhill agreed that the EWG had not been reconvened after Mr Perrim's memorandum. Mr Greenhill accepted that the Union had not agreed to re-engage Ms Novakovic. Mr Greenhill said he had no idea what Ms Novakovic was asked to do, other than what Mr Perrim had proposed. When Ms Novakovic said an AC4 couldn't be created using 'Jade', he had proposed a second opinion to take the measurements.
80 In re-examination, Mr Greenhill said that if there was substantial and significant measurable change in the future, he would put in place a process to ensure that the change could be quantified. It may not necessarily mean a 7% adjustment, but it would mean a readjustment of all the anchor positions. Mr Greenhill said that there is a 7% differential between AC1 and AC2 and 7% between AC2 and AC3.
SUBMISSIONS
For the Union
81 Ms L Carruthers opened the Union's submissions by outlining the history which led to the making of the Dwyer Agreement in November 2004. She said the Agreement specifically detailed the methodology to be applied when considering the movement of an AC3 position to AC4. She said the methodology itself and the Dwyer Agreement envisage an AC4 position. The means by which that is assessed was explained by Mr Morgan-Jones in respect to the work of the EWG. However, when the EWG had made a recommendation it was ignored by RailCorp and the EWG was not even reconvened when it was intended to do so. Ms Carruthers said there was a clear contemplation that a higher complexity of work for an AC3 could be measured and had been measured by the EWG. Ms Carruthers submitted that it was difficult to establish what Ms Novakovic was asked to look at in her review. However, it was apparent she went much further than simply reviewing the factor ranking process in consultation with the EWG, which was all Mr Perrim's recommendation had envisaged.
82 Ms Carruthers said Mr Caines had convened the EWG in response to a request to review the workings of the Lidcombe panel. The review not only examined the three changes initially identified by the Union, but applied ratings to a range of matters in accordance with the methodology. After undertaking the task, a score of 62 was calculated compared to the next ranking of 57. This meant that the work was measured in excess of an AC3's work. Mr Morgan-Jones had believed the EWG's work was then finished and he was surprised by Mr Perrim's memorandum. Ms Carruthers said that Ms Novakovic had never sought to re-engage with the EWG and although the incorrect data was corrected, the result was the same.
83 Ms Carruthers submitted that Mr Greenhill's evidence merely went to managing a "disagreeable" result while Mr Caines' evidence demonstrated that he had no familiarity at all with the EWG or how it did its work.
84 In questioning from the Bench, Ms Carruthers said that the Dwyer Agreement contemplated an increase of 7% for any change in excess of an AC3 position. Ms Carruthers said that it was quite clear in 2003 that Mr Mackie had understood that an AC4 was envisaged. The Dwyer Agreement merely confirmed that understanding. Ms Carruthers put that the Commission should not give greater weight to an unfavourable report by Ms Novakovic in late 2006, than the weight which should be given to the development of the methodology which led to the Dwyer Agreement in November 2004. There was an agreed process; it contemplated an AC4; the process was followed and a recommendation made. The Agreement itself refers to an adjustment which is "warranted".
85 Ms Carruthers submitted that Ms Lipski's brief was not to review the work undertaken by the EWG, but to sit down with the EWG and come up with a solution to the problem of the 'Jade' methodology not contemplating an AC4 position. This, she had failed to do.
86 Ms Carruthers said the relief being sought in these proceedings was a recommendation from the Commission that RailCorp abide by its agreement with the Union. It was not a work value case. No one in this case challenged the evidence of Mr Morgan-Jones as to the methodology adopted by the EWG and what conclusions it arrived at. She said that RailCorp cannot simply say that the Dwyer Agreement is flawed. The EWG process was undertaken in good faith and the Union does not seek to revisit the process, nor its decision. Ms Carruthers accepted that if the Commission makes the recommendation as sought, the question of enforcement will be a matter for the parties.
For the Respondent
87 Mr D Lloyd submitted that in light of the relief now being sought by the Union, the respondent would no longer be pressing the jurisdictional issues it had earlier foreshadowed. He acknowledged that RailCorp policy in relation to outcomes before the Industrial Relations Commission of New South Wales was based on New South Wales Government Policy and he relied on a memorandum from the Chief Executive Officer, Mr Vince Graham in that regard. Nevertheless, Mr Lloyd submitted that the question posed by the Union should be answered in the negative and, in addition, there was no evidence which justified an increase in AC classifications to an AC4.
88 Mr Lloyd said that the Wage Fixing Principles of the State Wage Case 2007 (2007) 163 IR 253, were relevant to this case, notwithstanding that it was not a strict application to vary an award or establish a new rate of pay. Mr Lloyd agreed that a higher grade is contemplated by the Dwyer Agreement, but the present situation does not justify a modification to the existing classification structure under the 'Jade' methodology, particularly where the impact will have implications across the whole classification structure.
89 Mr Lloyd submitted that the only evidence relied upon by the Union was focussed on the work of the EWG. The Union claimed that the EWG recommendation should be adhered to, or a further process undertaken. In response, Mr Lloyd said that firstly, there was no conclusion to the EWG process; secondly, in any event, the EWG can only make recommendations and thirdly, the EWG process was fundamentally flawed.
90 Mr Lloyd developed his submission concerning the failure of the Union's claim on work value grounds by submitting that the Union had brought no evidence to demonstrate a significant net addition to work value. On the other hand, the respondent had brought comprehensive evidence from Mr Caines and Ms Lipski rebutting the Union's case. Indeed, Mr Kessey from the Union, was not able to comment on whether the changes were significant or not. Mr Lloyd said work changes are always occurring and whilst there may be potential for future changes, that is presently not the case.
91 Mr Lloyd referred in detail to the 'Jade' methodology. He said that for a review to be commenced there needed to be a prerequisite test of work value changes being able to be identified. The EWG's role is to gather statistical information which is profiled against previous profiles to obtain comparisons. The EWG then makes a recommendation which requires the approval of senior management.
92 Mr Lloyd then referred to Ms Novakovic's report and her conclusion that there was no point in undertaking the review process. She had also concluded that a review should only be conducted where there appeared to be evidence of substantial change. The review process would involve significant time and resources. Mr Lloyd said that life had been given to a process, which on Ms Novakovic's analysis, should not have been given life to. Ms Novakovic had concluded that there was no need to embark on a review, particularly so soon after the structure had been implemented.
93 Mr Lloyd then dealt in detail with Ms Lipski's report and, in particular, her view that the 'Jade' methodology cannot assess an AC4 position. He highlighted various other aspects of Ms Lipski's report in which she referred to Ms Novakovic's review and she had agreed that there were no significant changes justifying a review being undertaken.
94 Mr Lloyd concluded that the evidence was overwhelming - a new classification was not justified on the 'Jade' methodology and from a work value perspective.
95 Mr Lloyd put that the Dwyer Agreement had been given effect to as far as was reasonably practicable given the limitations of the 'Jade' methodology. Mr Greenhill had in fact gone further and engaged a second independent expert. Particular reliance was placed on Mr Greenhill's evidence, in which he had said that in the event of changes which would justify a new classification, an investigation would occur, either by amendment to the 'Jade' methodology or by the adoption of some other job evaluation system. Mr Lloyd acknowledged that there had been some work changes since early 2005, but these were not of any significance.
96 As to Mr Caines overhearing Mr Wright's conversation about approval of an AC4 position, Mr Lloyd submitted that the conversation had been misinterpreted. However, in any event, ultimate approval was needed from the Group General Manager, Human Resources.
In reply
97 Ms Carruthers referred to the industrial history and context of the Dwyer Agreement which she submitted was crucial to understanding the more recent difficulties encountered by the Union. Ms Carruthers observed that Ms Novakovic was not called to give evidence and be subject to cross-examination. Ms Carruthers submitted that Ms Novakovic's second report goes into much greater detail than when her methodology was first introduced. Ms Carruthers said that the 'Jade' methodology was not about the work value principle, but was an agreed process for identifying change and reclassifying an AC grade as appropriate. It is achieved through an agreed job evaluation process.
98 Ms Carruthers emphasised that Ms Novakovic did not do what Mr Perrim had recommended - to review the data. The eventual outcome was a report which went much further than what was recommended by Mr Perrim. Further, Ms Lipski was looking for changes in work value, which was never part of her brief.
CONSIDERATION
99 It seems to me that the fundamental imperative at the core of this dispute (as in many disputes) is the integrity of an agreement entered into by the industrial parties in good faith. In Broken Hill Commerce and Industry Consent Award, Re (2002) 118 IR 200 a Full Bench of the Commission said:
2. Further, the agreement reached by the parties for the operation of the Award contemplated that the Award be treated as a new minimum rates Award operating from 2001. The agreement did not involve, or contemplate, the Award being treated as if the absorption principle could be applied. We consider that Mr Bukarica's argument for the unions, that the issue of absorption was raised relatively late in the day as an attempt to buttress a fragile case on economic incapacity, is sound. We consider that what is proposed in these proceedings is plainly inconsistent with the prior agreements of the parties in respect of this Award.
8.Parties should, as a matter of principle, consider their situation very carefully and deliberately before conducting themselves in such a manner. It is extremely important in industrial and employment relations that parties adhere to considered agreements entered into by them. The serious circumstances created by the present difficult, regrettable and preventable industrial dispute are demonstrative of the problems which result from such conduct. No doubt, if considered counsel and advice had been provided to the Chamber in that regard, some of the present difficulties may have been avoided to the benefit of all concerned, including the Broken Hill community. (my emphasis)
100 It seems to me that agreements, entered into by responsible industrial parties, must not only be honoured by them as to their express terms, but must also be considered in light of the history of the making of the agreement. The agreement at issue in this dispute is obviously the Dwyer Agreement entered into by the parties in November 2004. There is no doubt that the complaint of the Union (as reflected in the wording of the question posed to be answered by the Commission) is the integrity of the Dwyer Agreement in so far as it provides a mechanism to reclassify signallers and AC positions. While the question is very specific, the answer requires a contextual setting as to the history of the making of the agreement and what has flowed since its making.
101 In considering these matters, I am of the opinion that the answer to the question: "Does the application of the Dwyer Agreement give Area Controllers at Strathfield Signalling Complex an Area Controller Grade 4?" must be in the affirmative. I shall explain my reasoning for reaching this conclusion.
102 There is no doubt from the express terms of the Dwyer Agreement itself that it contemplates the creation of an AC4 position. At para 2 the Agreement provides as follows:
Grade Qualifications
Signaller Grade 1 & 2 As per existing (Signaller Safeworking, Cert III transport & Distribution etc).
Signaller Grade 3 & 4 Minimum 6 months practical experience as a Signaller. (Signaller Safeworking, Cert III in Transport and Distribution etc)
Area Controller Grade 1 & 2 Minimum 12 months practical experience as a Signaller.
Area Controller Grade 3 & 4 Minimum 6 months practical experience as an Area Controller.