Australian Services Union of NSW & Ors v Transport Secretary

Legal principles

1. Section 10 of the Industrial Relations Act empowers the Commission to make awards "setting fair and reasonable conditions of employment for employees".
2. Section 146(2) of the Industrial Relations Act requires the Commission, when exercising its functions, to take into account the public interest. For that purpose, it must have regard to the objects of the Act, and the state of the economy of New South Wales and the likely effect of its decisions on that economy. The objects of the Industrial Relations Act are set out in s 3, which relevantly provides: 3 Objects The objects of this Act are as follows - (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.
3. The Full Bench recently articulated at length the principles to be applied in deciding whether to make or vary an award: Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 at [17]-[32]. It is not necessary to reproduce those passages. They have informed my approach to these proceedings.

The case advanced by the Unions

1. The arguments advanced by the Unions in support of the making of the Proposed Award were contained in a document titled "Final Submissions of the ASU, RTBU and APESMA NSW" dated 26 October 2021 ("Unions' Final Submissions"), as developed by Mr Slevin of Counsel, who appeared for the Unions, during oral submissions on 5 November 2021. Without diminishing or detracting from the totality of the submissions, the essence of the Unions' case is reflected in the following extracts from the Unions' Final Submissions: "3. The award addresses the unfairness arising from the Respondent's conduct in offering employment to employees who have transferred from Sydney Trains and NSW Trains on terms and conditions of employment that are less than those applying to substantially the same work performed prior to the transfer. … 14. The transfer to TfNSW means employees will lose key conditions of employment currently enjoyed as Sydney Trains and NSW Trains employees. The key conditions that will be lost include; the benefits contained in a Deed covering redundancy benefits, which provides far more generous arrangements for redeployment and redundancy than those provided by TfNSW; travel pass arrangements which are provided for in the enterprise agreements, which include free travel and the potential to gain a lifetime travel pass after reaching the required years of service; and, the loss of a picnic day also provided for in the enterprise agreements. 15. During the hearing it also became clear that a significant number of employees would lose the benefit of a wage increase in 2021. The manner in which TfNSW offers transferred employees from the pay scales in the Agreements and the Award resulted in many employees being transferred to a classification in the Award which had a lower pay rate than being paid by Sydney Trains or NSW Trains. Such employees were allocated a 'personal salary' which maintained the employee's rate of pay but froze that rate of pay until the deemed award classification rate caught up. There was a 2.04% increase in award rates from 1 July 2021. It appears from Annexure E to Exhibit R2 that 153 of the 224 employees who accepted offers did not receive the increase. … 18. The award sought is intended to ensure that the employees who transfer from roles with Sydney Trains and NSW Trains are afforded the same terms and conditions of employment when performing substantially the same roles with TfNSW. … 39. The application arises in circumstances where TfNSW has offered transferring employees inferior terms and conditions of employment. The Unions contend that TfNSW should not be permitted to use the restructure to reduce the terms and conditions of the transferring employees. 40. The applicants rely upon the following factors in support of the application: a) The terms and conditions offered by TfNSW to transferring employees are inferior to those enjoyed by the employees when they performed substantially the same work for Sydney Trains and NSW Trains. b) The practice of TfNSW in the past has been to abide by the principle that where employees have transferred to it from other agencies they do not suffer a net detriment in their terms and conditions. c) TfNSW recently entered into a memorandum of understanding with Unions NSW concerning the abolition of Roads and Maritime Services. Under the memorandum the Secretary for the Department of Transport indicated that it was not the intention that the transition to reduce terms and conditions of the employment. d) In circumstances where TfNSW has been involved in the transfer of employees to the private sector, it has done so on the basis that employees' terms and conditions of employment are observed by the new employer. e) The practice of other NSW Government agencies in other contexts has also been to ensure that where employees are transferred, their terms and conditions are protected. f) Public Sector employment legislation reflects the principle that terms and conditions should be preserved when employees transfer. The TA Act provides that, in circumstances where employees are compelled to transfer from one transport entity to another, their terms of [sic] conditions of employment in the new entity will remain the same. The Government Sector Employment Act 2013 (GSE) has similar provisions. g) The principle that NSW Government employees who are transferred to private employment maintain their terms and conditions is enshrined in the FW Act. … 85. TfNSW has acted unfairly by transferring the employees in a manner that results in a diminution of their terms and conditions of employment. The employees were given a choice of losing their jobs or keeping their jobs on terms and conditions that were less than those they enjoyed when working for Sydney Trains or NSW Trains. To do so was contrary to the principle that an employer should not avoid terms and conditions by transferring employees to another employer. To do so was contrary to the practice of TfNSW in the recent past where it guaranteed that RMS employees' terms and conditions would be unaffected by a restructure in the manner in which functions were performed. To do so was contrary to the way TfNSW has transitioned employees in the past, going back to 2011 and 2012 when TfNSW was first created. To do so was contrary to TfNSW practice when privatising transport services by consulting about terms and conditions to apply after the transfer and ensuring by various means that employees' terms and conditions are protected. To do so was contrary to the practice of other NSW Government agencies when transferring employees which have negotiated transfer packages, which include preserving terms and conditions of employment. To do so was contrary to the principle enshrined in legislation that terms and conditions of transferring employees be protected. That principle is enshrined in the ss 66-67 of the TA Act, s 64 of the GSE Act and reg 25A of the GSE Regulation, and Parts 2-8 and 6-3A of the FW Act. … 94. TfNSW departure from well-established industrial principle and long standing practice of preserving terms and conditions of employment in circumstances of transferring employees and the circumstances where it had a controlling influence over the way the transfer was effected each give the matter 'special attributes' or are 'out of the ordinary' so as to take the matter outside the restrictions which otherwise apply under the Wage Fixing Principles - Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331at [166]."
2. The Unions referred me to several authorities which were said to establish the principle that employment obligations should not be avoided when employees are transferred from one employing entity to another; that there is a broader public interest in ensuring that the terms of industrial agreements and instruments not be avoided by transferring the work of employees to a new employer: George Hudson Ltd v Australian Timber Workers Union (1023) 32 CLR 413; Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143; [2000] FCA 1231; and, United FM Group Services Pty Limited trading as United KFPW v National Union of Workers, New South Wales Branch [2006] NSWIRComm 391.
3. My attention was also drawn to authority emphasising the importance in industrial and employment relations of parties adhering to agreements that they enter into: Staff Specialists (State) Award 2008 [2009] NSWIRComm 44 at [40].
4. The Unions' evidence and submissions traversed at length instances where it was said that TfNSW and other NSW Government agencies had acted in a manner consistent with these principles. That is, where arrangements had been made to ensure that employees who transferred between agencies, or to private sector operators as a consequence of the privatisation of an agency, did not suffer a diminution in the terms and conditions of their employment.
5. I do not propose to traverse this evidence exhaustively. It suffices to observe that my attention was drawn to the arrangements negotiated to protect and maintain employees' terms and conditions in the following circumstances: 1. the formation of TfNSW, which involved a number of employees of other government agencies being assigned or transferred to work at TfNSW; 2. the abolition of Roads and Maritime Services; 3. the privatisation of Sydney Ferries in 2012; 4. the transfer of employees from the State Transit Authority ("STA") to the Transport Service following the abolition of the STA on the commencement of the Government Sector Employment Act 2013; and 5. the privatisation of buses in various regions of the State from approximately 2016.
6. In the Unions' Final Submissions it was further submitted: "75. The practice of other NSW Government agencies in other contexts has also been to ensure that, where employees are transferred, their terms and conditions are protected. The Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v NSW Department of Education and Communities [2012] NSWlRComm 96 referred to this practice at [123] with reference to: (a) The privatisation of the Freight Rail Corporation ('Freightcorp') in 2002 as set out in section 42 of the Freight Rail Corporation (Sale) Act 2001. (b) The privatisation of the Totalizator Agency Board ('TAB') in 1997 … as set out in section 52 of the Totalizator Agency Board Privatisation Act 1997. (c) The amalgamation of the Harness Racing Authority and Greyhound Racing Authority in 2004 as set out in clause 8 of Schedule 4 of the Greyhound and Harness Racing Administration Act 2004. (d) The privatisation of the Greyhound Racing Authority in 2009 as specific [sic] in section 5 of the Greyhound Racing Act 2009. (e) The privatisation of the NSW Lotteries in 2010. (f) The privatisation of WSN Environmental Solutions. 76. Ms Wright's first statement (Exhibit A1) gives a further example of the creation of WaterNSW a new state-owned corporation responsible for managing bulk water supply across the State by the merging of the Sydney Catchment Authority and State Water in 2015. The negotiations about this merger resulted in employees' terms and conditions transferring with them to the new corporation. Those conditions included generous redundancy benefits including 64 weeks voluntary redundancy benefits and enhanced separation benefits." (Footnote omitted)
7. The Unions contended that the approach taken by TfNSW in implementing the CFR and PCS reforms was inconsistent with this past practice. They submitted that this not only rendered the approach unfair, but was so "out of the ordinary" as to attract the special case sub-principle of the Wage Fixing Principles.

Determination

1. For the reasons which follow, I have determined not to make an award in the terms of the Proposed Award.

Lack of certainty as to award sought

1. The Proposed Award would incorporate "all the terms and conditions, as contained in the Former Industrial Instruments as applying to an employee immediately prior to his or her employment with Transport for NSW" and apply those to the Employee in their employment with TfNSW "as if the Employer and Transport for NSW was party to and/or bound by the Former Industrial Instrument".
2. The Enterprise Agreements are not in evidence. Mr Baroni of Counsel, who appeared for TfNSW, submitted: [1] "But whilst that might be the case, what is the evidence before the Commission in relation to what the terms and conditions are that they seek? There is none. It's not good enough, and again with respect to my learned friend, I've never said in my submissions that the enterprise agreements are evidence. What I've said is that they're not before the Commission. Where are they? 'What are the terms and conditions,' which is a question that the Commission must ask itself, 'that this application is asking me to make?' All you have is [schedule] A and the deed. That's all that's before you. I can tell you, Commissioner, that if one looks, and I'm not inviting you to because I think it would be inappropriate, but if one looks at those two enterprise agreements, one has about 156 paragraphs to it with a bunch of schedules, the other one has some 200-odd paragraphs to it; clauses, I should say. Those agreements don't only apply to the class of employees which are the subject of this dispute. They apply to other classes of employees which remain with the rail entities covered by those enterprise agreements which are the subject of current negotiations. Which one of those terms are the ones that are relevant for the purposes of making this award? You don't know. There is no evidence before you about which ones they are. At the moment it's every single clause in there which the unions say they are the clauses that apply to this application. No attempt to discern what the relevant ones are, one attempt to at least even draft an award for the purpose of the Commission to undertake any analysis whatsoever as to what they seek. It's just simply an application that says, 'What's over there we want, and it doesn't matter what's over there, Commissioner. Just make it because our case is meritorious. You don't need to worry about anything else. It's a special case because these buggers won't give us what we want.' That is, in essence, what you're being asked to make. There is nothing before you where the Commission can look at and say, 'This is what cl 10 says,' or, 'This is what cl 11 says,' what the effect of it is, what it means, what it doesn't mean. If the Commission wants unprecedented disputes about the interpretation of these provisions, then you should make the award, because I've looked at it and it's beyond me to understand how it will apply as a matter of practicality and as a matter of proper industrial merit in the sense of stability. These are not trivial points that I'm making. They are very live points and they go to this issue about 146C and the obligations of the Commission. … But at the end of the day there is nothing that you can point to that gives you any indication of what you're actually being asked to be made."
3. In reply Mr Slevin submitted: [2] "In terms of the question of the EA's not being before you, we deal with that really, Commissioner, in writing, where we talk about the nature of the application of the principle that employers shouldn't be able to depart from the agreements, considered agreements that they've entered into, however informal, at para 36 of our written submissions and the quote from the Staff Specialist (State) Award case, the Full Bench there and that's the principle that we say, Commissioner, should be applied here and it be a prominent consideration in the question of what is fair and reasonable in these particular circumstances. Whilst it's true that in the coal haulage case, given the circumstances that arose there, the Full Bench decided that it should consider the industrial equity of the particular claims. We say that the industrial equity of the claims being made here are underpinned by that principle that we rely upon about the preservation of terms and conditions of employment where employees are required to do the same work, after a transfer, as they were performing beforehand and I don't need to rehash what we've put in our written submissions about that. In terms of what's before you about the EA's and the need to go line by line, first of all what we're seeking to preserve is considered agreements made between the respondent and the applicants and so you can be satisfied that, given that they are agreements made by the parties, the parties accepted that they were appropriate regulation of this employment. So far as a complaint is made that the EA's are very long and they deal with matters that may not relate to these employees, well, the incorporation of the agreements and indeed the deed itself are always done on the basis, in so far as those terms apply to the relevant employees, indeed in the final relief the Commission may find it appropriate to include some sort of qualification of that nature, but it's the fact that those agreements currently, well, applied prior to the transfer to the employees and the rail entities had no problem applying those terms and conditions to this particular cohort of employees and there's no reason why the respondent wouldn't be in the same position in terms of applying the award sought in these proceedings."
4. The position advanced by the Unions causes me significant concern. First, the Enterprise Agreements were negotiated and approved under the Fair Work Act. As TfNSW correctly submitted, the considerations to which parties may have regard in negotiating an enterprise agreement under that legislation, and which the Fair Work Commission must consider when approving an enterprise agreement, may not be the same as those which will guide this Commission's determination as to as to whether an award - and in particular, an arbitrated award - ought to be made under s 10 of the Industrial Relations Act.
5. However, one of the assumptions underpinning the Unions' position is that terms and conditions which were negotiated and approved under the Fair Work Act must necessarily be fair and reasonable within the meaning of s 10. The Unions have not made out why such an assumption ought to be made. The Unions contended, in effect, that keeping parties to their bargains establishes fairness and reasonableness within the meaning of s 10. For the reasons which follow, I am not persuaded by these submissions.
6. Second, it can be presumed that the Enterprise Agreements were negotiated to meet the particular needs of Sydney Trains and NSW Trains and their employees. It might further be presumed that the Enterprise Agreements represent a compromise outcome, being a hallmark of enterprise bargaining. The extent to which "the parties accepted that [the Enterprise Agreements] were appropriate regulation of this employment", to use Mr Slevin's words, has to be viewed in this context. Because the work that the Relevant Employees are performing with TfNSW may be the same or substantially the same as that which they performed in their previous employment does not inevitably lead to the conclusion that the Enterprise Agreements would reflect appropriate regulation of that employment in the Transport Service.
7. The Unions submitted that if the Commission was so inclined it could obtain copies of the Enterprise Agreements through publicly-available means. This might be an avenue available to me under s 163(1)(b) of the Industrial Relations Act, although Mr Baroni in the passage cited above suggested that this would be inappropriate. However, even were I to obtain a copy of the Enterprise Agreements, I have been provided with no assistance by the Unions to determine whether their terms would be suitable, much less fair and reasonable, in the context of the Relevant Employees' employment with TfNSW in the Transport Service.
8. Third, there was no controversy that the Enterprise Agreements contain terns that have no application to the Relevant Employees. The Unions' position is that the Proposed Award could specify that only the applicable provisions of the Enterprise Agreements are to be regarded as being incorporated into the Proposed Award, with it being left to the parties to subsequently identify and determine those provisions. This is, frankly, an astonishing position to take.
9. The Unions ask the Commission to make an award incorporating the terms of documents that it has not seen; include a provision in that award to the effect that only the terms of those documents applicable to the employees covered by the award ought to be regarded as incorporated, without any comprehension as to what those terms might be; and, leave it to the parties to subsequently determine what terms are so applicable. I do not consider that the Industrial Relations Act permits such an approach.
10. I acknowledge that the Proposed Award would incorporate the terms of instruments which applied to the Relevant Employees prior to them taking up employment in the Transport Service. It may well be that there is perfect clarity between the parties as to the terms of those documents which would be incorporated by the Proposed Award, although there is no evidence to that effect. The fact remains, though, as Mr Baroni correctly submitted, that the Commission is unable to answer the question "What are the terms and conditions that this application is asking the Commission to make?"
11. It follows that the Commission has not been provided with a sufficient basis on which to meet its statutory responsibilities. The effect of s 10 of the Industrial Relations Act is that the Commission, when making an award, must be satisfied that it would set fair and reasonable conditions of employment for employees. This requires that the conditions of employment set by the award represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them: City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 at [19]. How is the Commission to determine if that balance is struck if it is unaware of the precise terms of the award that it is being asked to make?
12. Similarly, the Commission is unable to be satisfied that the Proposed Award: 1. is in the public interest, as required by s 146(2) of the Industrial Relations Act, including by being consistent with the objects of that Act; or 2. would be compliant with relevant government policy, as required by s 146C, or even to properly consider and resolve the Unions' submission that that section has no application in the circumstances of this case.
13. Further issues with a lack of certainty regarding the Proposed Award relates to its proposed commencement date. In the Unions' Final Submissions it was submitted that: "101. The Unions understand that the restructure has only recently finished. The employees have differing start dates with TfNSW. The Unions seek that the award be made for a 12-month period and that have retrospective operation so that it applies to employees from the commencement of their employment with the Respondent."
14. Section 15(1) of the Industrial Relations Act provides that an award will come into force on the date specified by the Commission. It will be apparent from the passage just cited that on the Unions' case it is not possible to discern a particular commencement date for the purposes of this section. Further, s 15(3) imposes limitations as to when an award may be expressed to apply retrospectively. In the absence of a particular date, the Unions do not assist the Commission to determine whether the proposed retrospective operation would be compliant with s 15(3).
15. Of course, any problems resulting from the Unions' failure to identify or seek a particular commencement date are within the Commission's discretion to resolve. The Proposed Award could, for example, be made to operate from the earliest date possible, being 24 June 2021 when the Rail, Tram and Bus Union first notified the dispute. It follows that these are not of themselves matters which are fatal to the Unions' application. However, they are reflective of an overarching failure by the Unions to meet their onus and satisfy the Commission that it should exercise its discretion to make the Proposed Award.
16. For all of these reasons I find that the Unions have not discharged the onus they bear. The Unions have not demonstrated that the Commission should exercise its discretion to make in the terms of the Proposed Award, or indeed on any terms.
17. Having reached this conclusion, it is not necessary that I traverse in detail all of the other matters raised by the parties in their evidence and submissions. However, I offer the following observations on particular aspects of the Unions' case which reinforce my view that the Proposed Award ought not be made.

Preservation of terms of employment - principle

1. There was no controversy as to the correctness of the principles referred to at [22] above. The contest was whether they are apposite to the present circumstances.
2. Underpinning the Unions' submissions in this regard is the contention that TfNSW should be held to the bargain encapsulated in the Enterprise Agreements. That is, TfNSW should not be permitted to use the CFR and PCS restructure to reduce the terms and conditions of the Relevant Employees, given that they are performing largely the same roles in the Transport Service as they were in their previous employment.
3. Having regard to the matters set out at [32]-[35] above, some caution must be adopted when applying the authorities referred to at [22] above to the circumstances of this case. To reiterate, the Enterprise Agreements were negotiated and approved under the Fair Work Act. They apply specifically to Sydney Trains and NSW Trains, and were presumably negotiated having regard to the operations of those entities and the relationship between each of them and their employees in the context of those operations.
4. Questions arise as to why in these circumstances the Enterprise Agreements are bargains to which the Transport Secretary or TfNSW should be held. That is, it is not apparent to me that in the circumstances of this case it is properly to be said that the Transport Secretary or TfNSW is seeking to "avoid" the terms of the Enterprise Agreements in the manner contemplated in George Hudson, Greater Dandenong City Council and Staff Specialists (State) Award.
5. It follows that the fact that the Relevant Employees may not receive all of the benefits that they previously enjoyed under the Enterprise Agreements and the Deed does not, in and of itself, establish that the Commission ought to exercise its discretion to make the Proposed Award.
6. Also relevant in this regard are ss 66 and 67 of the Transport Administration Act, which provide: 66 Orders providing for transfer of staff of transport authorities (1) TfNSW may, by order in writing, provide that any member of staff of a transport authority who is specified or described in the order is transferred to another transport authority specified in the order. (2) The transferred staff member is taken for all purposes as having become an employee of the other transport authority, in accordance with the terms of the order, on the day specified in the order. (3) (Repealed) 67 Preservation of remuneration and other conditions of employment on transfer (1) Except as otherwise provided by this Division or the regulations, the terms and conditions on which a transferred staff member becomes employed on being transferred by an order under this Division (including terms and conditions as to remuneration, allowances and duration of employment) are, on the transfer date, those on which the staff member was employed immediately before the transfer. (2) Nothing in this section prevents the terms and conditions of employment referred to in subsection (1) from being varied.
7. In relation to these provisions, in the Unions' Final Submissions it was contended: "78. While the approach of offer and acceptance was used in the current restructures and the TA Act provisions do not strictly apply here, the Unions contend the Parliamentary intent is clear. Employees who are transferred from one transport authority to another should have their existing conditions of employment preserved."
8. I do not accept these submissions. Section 66 and 67 apply in situations described in the proceedings as "forced transfers". Parliament has mandated that in those instances employees' remuneration and other conditions of employment must be preserved. By expressly and specifically legislating to that effect, it is not safe to infer a parliamentary intention of the kind asserted by the Unions. To the contrary, the better inference is that in situations other than forced transfers, there is no legislative assurance of continuity of terms.

Significance of past practice

1. In response to the Unions' evidence and submissions regarding past practice, summarised at [24]-[26] above, TfNSW submitted in its Outline of Final Submissions dated 2 November 2021 ("TfNSW Final Submissions") as follows: "71. The Applicants have made much of 'past practice'. The Applicants assert that such practices should form the basis, presumably, as to why the Commission should make an award in the terms sought. 72. The evidence of Mr Davison deal with many of the example provided where it is asserted that the Respondent had recognised past practice. He gives the following evidence: a. State Transit: the functions where totally outsourced to private enterprise; b. Transport for NSW (Transport Agencies Conditions of Employment) Award: forced transfers in accordance with ss 66 and 67 of the TAA; c. Transport Services of New South wales and Conditions of Employment Award 2011: offer and acceptance and if an employee chose not to accept the offered role, they would remain within their transport agency and be subject to redundancy or redeployment arrangements; d. RailCorp Redundancy Package: applied in circumstance where employees accept new positions in respect of which they were advised in advance that the new position could become redundant. This was consistent with the evidence of Ms Lee. 73. Those examples consist of a combination of inter government restructures or outsourcing entire government service to private enterprise. Firstly, with respect to outsourcing arrangements to private enterprise such circumstances are simple not comparable to circumstances which have given rise to these Proceedings. The employees the subject of these Proceedings at all times remain public sector employees and enjoy the benefits of for example, public sector employment policies. 74. Secondly, with respect to the example raise by Ms Bennett, those circumstances were also fundamentally different because the 'transfers' of those employees were pursuant to s 66 and 67 of the TA Act. In other words, 'forced transfers'. None of the 'past practice' examples raised by the Applicant are on point with the current circumstances. … 76. With respect to other government agencies identified at [75] of the Applicants submissions, the Respond makes the following observations and submits that each is completely different to current situation: a. Privatisation of Freight Rail Corporation: sold to a joint venture pursuant to s 42 of the Freight (Sale) Act; b. TAB: forced transfer in accordance with section 52 of the Totalizator Agency Board Privatisation Act; c. Greyhound and harness Racing Authority: forced transfers; d. Greyhound racing Authority: employees that accepted offers of employment where not on the same terms and conditions as previously held. If an offer was rejected, the employee would be subject to redundancy and/or redeployment as the case may be; e. NSW Lotteries: privatisation and employees subject to offer and acceptance; f. WSN Environmental Solutions: Privatisation and employees subject to offer and acceptance. 77. None of the above examples are the same as the current because they either involved forced transfers or were the subject of privatisation." (Sic, emphasis in original, footnotes omitted)
2. There is force to these submissions. To the extent that the Unions contend that past practice at TfNSW and more broadly through the NSW public sector calls for the making of the Proposed Award, it is necessary to ensure that there is a sufficient nexus between that past practice and the current circumstances. In particular, the maintenance of terms in situations where that was mandated, such as by ss 66 and 67 of the Transport Administration Act or Part 6-3A of the Fair Work Act, provides little guidance in circumstances where there is no such obligation.
3. It is also relevant that in many of the instances on which the Unions rely, the Unions' evidence revealed that the preservation of employees' terms of employment, in whole or in part, was the subject of consultation, negotiation and agreement. This is to an extent inconsistent with the application of what is said to be a fixed and certain principal regarding the maintenance of employees' conditions of employment, even where they are not protected by statute. In other words, if the practice on which the Unions rely is as immutable as they would have the Commission accept, one might ask why there was any need for negotiation or agreement at all.
4. While the Unions' evidence and submissions regarding past practice might have informed the exercise of my discretion in this matter, were it not for the conclusions I have otherwise reached, I do not consider that they rise to the level of demonstrating that a failure to negotiate terms on which the Relevant Employees would maintain the terms and conditions of employment they previously enjoyed warrants the making of the Proposed Award.
5. Further, I am not wholly persuaded by the Unions' submissions that there is an inherent unfairness in employees being offered the choice between ongoing employment with TfNSW (albeit on arguably inferior terms), or remaining in their current roles with the prospect of being declared an Excess Employee and being subject to retraining, redeployment or redundancy in accordance with the Deed. Whether or not it was a choice that an employee wished to make, the evidence revealed that it was one which was made. Some preferred or required the security of ongoing employment, others rejected the offers in the knowledge that they may ultimately be retrenched.
6. It is relevant in this regard that the Relevant Employees are covered by the TfNSW Award, which was made on 10 August 2021. It is presumed to set fair and reasonable conditions of employment: City of Sydney Wages/Salary Award 2014 at [12].
7. In light of these matters I am not satisfied that the Unions have discharged their onus of demonstrating that the facts of the matter attract the special case sub-principle of the Wage Fixing Principles.

Public Service Association

1. On 5 August 2021 I granted the Public Service Association and Professional Officers' Association Amalgamated Union of NSW ("PSA") leave to intervene in these proceedings for the purposes of making submissions. In its submissions the PSA supported the Unions' application for the Proposed Award. It further submitted that it should be named as a party to any award made as a consequence of these proceedings.
2. TfNSW objected to the PSA being named as a party to any award, albeit late in the day. The result is that there is before the Commission a Notice of Motion filed by the PSA on 22 October 2021 seeking an order that TfNSW not be permitted to object to the PSA being a party to the relevant award ("Motion"). On 2 November 2021 I directed the parties to file evidence and submissions in respect of the Motion, on the basis that I would rule on the Motion "on the papers" concurrently with my determination of the substantive proceedings.
3. As a consequence of the determination that I have made not to make the Proposed Award, or any award, the Motion has been rendered otiose. It is unnecessary to make any findings in respect of the Motion and I do not do so.

Order

1. I order that the proceedings be dismissed. Damian Sloan Commissioner

Endnotes

1. Tcpt, 5 November 2021, pp 28(36)-29(39)
2. ibid., pp 36(26)-37(10)

Amendments 24 February 2022 - Headnote amended 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: 24 February 2022