Crown Employees (Roads and Traffic Authority - Salaried Staff Salaries and Conditions of Employment) Award 2008 [2008] NSWIRComm 139

CORAM: Boland J President; Walton J Vice-President; Schmidt J; Sams DP; Murphy C

Award - Interlocutory proceedings - Applications for new awards - Notice of motion to join applications - Opposition to joinder by one applicant - Matters of convenience, time, expense, commonality of issues and interests, and potential for prejudice considered - Balance of convenience in favour of joinder - Order made CATCHWORDS: Practice and procedure - Award - Interlocutory proceedings - Applications for new awards - Notice of motion to join applications - Opposition to joinder by one applicant - Matters of convenience, time, expense, commonality of issues and interests, and potential for prejudice considered - Balance of convenience in favour of joinder - Order made

LEGISLATION CITED: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002

CASES CITED: Crown Employees (Administrative and Clerical & Ors) Awards (1993) 52 IR 243 State Wage Case 2007 (2007) 163 IR 253

APPLICANT (RESPONDENT ON MOTION) Mr J Nolan of counsel Mr S Doran Roads and Traffic Authority

LEGAL REPRESENTATIVES: RESPONDENTS (APPLICANTS ON MOTION) Mr A Hatcher of counsel Solicitor: Ms A McRobert W G McNally Jones Staff

INTERVENOR Mr P Ginters of counsel Director Public Employment

CORAM: BOLAND J, PRESIDENT WALTON J, VICE PRESIDENT SCHMIDT J SAMS DP MURPHY C

CROWN EMPLOYEES (ROADS AND TRAFFIC AUTHORITY - SALARIED STAFF SALARIES AND CONDITIONS OF EMPLOYMENT) AWARD 2008

Application by Roads and Traffic Authority of New South Wales for a new award

1 This matter concerns an application by the Public Service Association and Professional Officers Association Amalgamated Union of NSW ("the PSA"), by way of notice of motion, to join two applications, one by the PSA and the other by the Roads and Traffic Authority of New South Wales ("the RTA"). The applications are for new awards. The RTA opposed the joinder. 2 The PSA's motion came before the Full Bench on 21 July 2008. After considering the evidentiary material filed in the proceedings and the submissions of the parties, the Full Bench made an order granting the application for joinder. We now provide our reasons for doing so. 3 On 12 June 2008, the RTA made application under s 10 of the Industrial Relations Act 1996 for a new Award to be known as the Crown Employees (Roads and Traffic Authority - Salaried Staff Salaries and Conditions of Employment) Award 2008 ("the proposed Award") with a nominal term of three years. 4 On 27 June 2008, the PSA filed a notice of motion seeking to have the RTA's application joined with proceedings in Matter No IRC 445 of 2008. In that Matter the PSA seeks a new award to be known as the Crown Employees (Public Sector - Salaries 2008) Award. The PSA's application is the subject of arbitration proceedings and is listed for hearing before the Full Bench on 4 to 24 September and 14 to 16 October 2008. Competing applications 5 The proposed Award provides for three salary increases of four per cent each to apply from the date of the making of the proposed Award, 1 July 2009 and 1 July 2010 respectively, and for a number of changes to employment conditions. The PSA application seeks a new salaries award to be made with a nominal term of three years applying to a broad range of public service and public sector employees, including salaried staff employed by the RTA pursuant to a number of existing industrial instruments. The application seeks three salary increases of 6.5 per cent each to apply from 1 July 2008, 1 July 2009 and 1 July 2010 respectively, to the salaries presently fixed for all RTA staff by the Crown Employees (Public Sector - Salaries 2007) Award. 6 The proposed Award would apply to all salaried staff of the RTA except for those employed under the: (i) Crown Employees (RTA of NSW - Wages Staff) Award 2002; (ii) Professional Engineers (Roads and Traffic Authority of New South Wales - Salaries) Award 1999; (iii) RTA Professional Engineers - Enterprise Agreement 2005; (iv) Crown Employees (RTA of NSW - Traffic Signals Staff) Award 2004; (v) Crown Employees (RTA of NSW - School Crossing Supervisors) Award 2005. 7 On 15 April 2008, the RTA made a wages offer to the relevant unions with coverage of traffic signals, engineering and wages staff. The offer was similar to what is contained in the proposed Award. The offer was rejected. 8 The proposed Award would replace and rescind a number of existing industrial instruments including instruments that are sought to be varied by the PSA application. Those instruments are: (i) Architects Etc. Agreement No.1733 of 1971; (ii) Crown Employees (Common Wage Points) Award 1990; (iii) Crown Employees (Roads & Traffic Authority of NSW - Salary and Staff Conditions of Employment) Award; and (iv) Crown Employees (Roads & Traffic Authority of NSW - Toll Plaza Offices) Award. 9 It may be seen, therefore, that there is a substantial overlap between the competing applications in that, but for the making of the proposed Award, employees would be covered by the industrial instruments referred to in the preceding paragraph, which are also the subject of the PSA application. It is to be noted the RTA has made no application seeking its removal from the PSA application, despite having earlier foreshadowed that it would file a notice of motion seeking such orders. PSA case

10 The PSA case rested on two main propositions: (1) Up until the time of the filing of the RTA application, the RTA acceded to the hearing of the PSA application being the determinant of the salaries of its salaried staff for the three-year period from 1 July 2008. In this respect it was submitted that: (a) The RTA, through its legal representatives consented to the PSA application being determined by reference to an agreed representative list of 12 departments and agencies ("the Agreed List"), of which the RTA was one and also consented to the Commission directing that the PSA application be heard on the dates referred to earlier, and further consented to an associated timetable for the filing of evidence; (b) The PSA has prepared and filed its evidentiary case on the basis of the consent directions and the Agreed List. The PSA has expended considerable financial and other resources in the preparation of its case on this basis. The PSA's case includes statements of evidence from persons employed in the RTA, and experts' reports which examine, inter alia , developments in productivity and efficiency in the RTA. The RTA application was filed only 7-8 weeks after the PSA filed its evidence in the PSA application proceedings. (2) Joinder of the PSA application and the RTA application is the proper, and indeed only practicable, procedural course for the orderly disposition of the two applications. In this respect it was submitted: (a) The applications have in common a significant subject matter, namely the salaries of salaried staff in the Roads and Traffic Authority over the next three years. Thus the applications are "closely connected" and "overlap": see State Wage Case 2007 (2007) 163 IR 253 at [224]-[225]; (b) There is no practicable basis upon which the hearing of the two applications can be separated; the hearing and determination of either application ahead of the other would render the other application moot; (c) The RTA's accession to the directions and timetable for the hearing of the PSA application and the Agreed List, and the PSA's reliance upon this, would make it contrary to the dictates of equity and good conscience for it now to obtain a separate hearing of its application (even were that in any way practicable); (d) The grant of a separate hearing of the RTA application would endanger the basis upon which the PSA application has been set down for hearing, namely the Agreed List, in that it is likely that questions would arise as to whether the RTA should remain on the Agreed List and whether the Agreed List would still be regarded as a representative sample if the RTA were to be excluded.

11 In opposing the PSA's joinder application, the impracticability of the RTA's position being considered as part of a general case was emphasised. The main points otherwise made by the RTA were as follows: (1) the applications involve significantly different considerations. The RTA is seeking to make an enterprise award in relation to RTA salaried staff and the PSA is seeking a salary increase for public sector employees across the public sector without regard to the enterprise needs of the RTA. If the two matters were to be joined, a decision for public sector employees across the public sector would overshadow the RTA's case for an award dispensation with enterprise focus. The RTA's organisational and industrial relations needs and requirements are very different from those other agencies which are currently a party to the Crown Employees (Public Sector - Salaries 2007) Award; (2) the RTA application has the full support and endorsement of the Public Sector Workforce Office (PSWO) within the Premier's Department; (3) if the RTA is not able to directly negotiate salaries and conditions for all its staff, including salaried staff, it is likely that the RTA will be disadvantaged in the competition for scarce skills in the infrastructure development and management and construction industry sector. Under current arrangements, the RTA is experiencing difficulty in managing its workforce and negotiating salary increases with staff because it is unable to take a coordinated approach to doing so; (4) in its present application the RTA has identified particular terms and conditions which it assesses as important, having regard to factors such as the labour market in which it operates, and the level and quality of customer service which contemporary best practice suggests should be central to RTA operations and other enterprise specific requirements. None of these factors necessarily has anything in common with the needs and requirements of other public sector employers; (5) the RTA operates in a legislative framework which is different from the rest of the public service. The RTA is not considered to be a part of the "public service" as it is defined in section 6 of the Public Sector Employment and Management Act 2002 ("the PSEM Act") and is hence listed at Part 2 of Schedule 1 of that Act; (6) the Chief Executive of the RTA has delegated authority to exercise the employer functions of the Government of NSW. This delegated power includes the ability to fix salaries for RTA staff; (7) the RTA currently remunerates its staff under a Unified Salary Scale ("USS") which is unique to the RTA. The USS adopts a different salary structure to staff employed in the public service; (8) on 15 April 2008, in accordance with the NSW Government's Wages Policy, the RTA made an offer to the PSA for a salary increase on or after 1 July 2008. The offer made was for a salary increase of 4 per cent per year for the next three years. That offer was separate to the offer made by the Public Sector Workforce Office (PSWO) within the Premier's Department in relation to agencies listed in Part 1 of Schedule 1 of the PSEM Act. The PSWO's offer was made in February 2008. The PSWO's offer to the PSA was for a 3 per cent salary increase per year for the next two years; (9) as a part of the process of making a wages offer to the unions, the RTA was required to go through a rigorous analysis of employee-related costs savings to get Cabinet approval for its negotiating parameters. Once these parameters were approved, an offer of 4 per cent per annum was made to the relevant unions so that negotiations could begin. The RTA was not in a position to release details of the offer prior to this occurring. Negotiations with the wages unions and APESMA have been taking place since April 2008; (10) if wage increases for the RTA's salaried staff are tied to increases for the public service through the PSWO, RTA staff may not be able to directly benefit from their own efficiency and productivity. It is significant that in the present round, the RTA has been able to make a 4 per cent wages offer in contrast to the 3 per cent offer made by the PSWO; (11) the RTA was listed by the PSA as a respondent in the PSA's major industrial case. Accordingly, the RTA had no option but to respond to the matter until such time as it could endeavour to extricate itself from the public sector wide case. Its participation cannot be characterised as acceptance of, or even acquiescence in, a particular course of action; (12) significant prejudice would be visited upon the RTA by joinder, because its principal concerns would be 'swamped' by the public sector wide case and its wages outcome. It would be forced to await a separate hearing and determination of its (the RTA's) award claims;

(13) it is anticipated that the decision of the Commission in the Crown Employees (Administrative and Clerical Officers) (State) Award and Others Awards (No 2) [1993] 52 IR 243 may be contended to provide an obstacle to the RTA endeavouring to introduce an agency-specific award of the kind contemplated in its application. Such a contention fails to acknowledge significant changes in the industrial relations climate since 1993;

(14) as a practical matter, the two applications can easily be dealt with separately - the RTA segment of the PSA's general wage case - which amounts to a relatively uncomplicated claim for a wages increase - can be segregated and dealt with in the context of the RTA's application in the manner suggested by the RTA; (15) the public sector wide major industrial case is set down for hearings presently programmed to conclude on October 16th - over three months away. A great deal could be achieved in progressing a wages increase in conjunction with the consideration of the RTA award claim in that time. The issues are better dealt, in the first instance, in direct negotiations between the parties to identify the real issues between them followed by structured conciliation and, if necessary, what has become known as a 'rapid arbitration'. This 'rapid arbitration' procedure is a procedure which best lends itself to a focus on the needs and requirements of the enterprise; (16) there will be no disadvantage to the RTA employees because: (a) the RTA has indicated its bona fides by making a carefully considered and detailed offer of 4 per cent a year for a three year agreement/award;

(b) the prospect of immediate negotiations upon the RTA offer continues to be held out;

(c) the RTA would be prepared to 'fast track' these negotiations by establishing a tight time frame for those negotiations to occur (with recourse to the Commission);

(d) in the event that the negotiations do not resolve the matter, the RTA would be prepared to participate in the 'rapid arbitration' of its application under the auspices of the Commission. DPE's case 12 The Director of Public Employment ("the DPE") supported the submissions of the RTA. Consideration

13 The application in this matter is a joinder application. That is, to join two applications so that they may be heard together. Matters of convenience, time, expense, commonality of issues and interests, and the avoidance of any prejudice to a party become relevant considerations. 14 The RTA contended that there should be no joinder because it operated in a different commercial, labour market and legislative environment to the rest of the public sector that is the subject of the PSA's application and different considerations apply; that it is desirous of achieving an enterprise based award for its salaried staff with the industrial relations advantages that brings; that it has proposed a different wage outcome to the PSA; and that significant prejudice would be visited upon the RTA by joinder, because its principal concerns would be 'swamped' by the public sector wide case and its wages outcome. 15 That joinder might be ordered does not mean that a party's claim to be treated differently, in terms of any outcome in the arbitrated proceedings, would be dealt with other than on its merits. That the RTA is desirous of achieving a separate industrial instrument to regulate the salaries and employment conditions of its salaried staff on an enterprise basis for the reasons it has expressed, is not an objective that would be prejudiced by the Full Bench hearing both applications in joined proceedings; it would be no different to any court or tribunal dealing at the same time with a claim and cross-claim, which is, in effect, what the two applications represent.

16 The two applications are essentially concerned with increases to remuneration, with the PSA application extending to employees that are also the subject of the RTA's application, thereby creating a significant overlap. What is different (apart from the amounts claimed and the claim by the RTA for separate award regulation), is that in respect of the PSA application the employers oppose the three annual salary increases of 6.5 per cent and instead have proposed three per cent per annum for the next two years. In respect of the RTA application, three annual adjustments of four per cent are proposed but with specified offsets to fund any increase above 2.5 per cent (which is the government's ceiling on wage increases for the public sector unless higher increases are offset by cost savings). It does not appear to us that the subject matter of the two applications is so discordant as to warrant separate proceedings. 17 That time and expense would be saved by joining the two applications is obvious. However, more important considerations are the convenience of the parties and in whose favour the balance lies. At the present time, the RTA is a party to the proceedings in Matter No IRC 445 of 2008 - the PSA application - and is represented together with the other employers by the Crown Solicitor's Office. The RTA is subject to directions (to which it consented) requiring it to file the evidence upon which it intends to rely in those proceedings on or before 27 July 2008. 18 The RTA, together with the other employer parties, agreed that the PSA proceedings would be conducted on the basis of an agreed sample of departments and agencies, including the RTA, which was treated as representative of the employees covered by the PSA's proposed award. The employer parties, including the RTA, agreed to a timetable for the preparation of evidence. According to the PSA it has relied upon the agreement of the employer parties, including the RTA, concerning the conduct of the proceedings and spent considerable time, resources and money in preparing evidence in relation to the agreed sample. The PSA's evidence is in. The RTA is presently bound by the directions given in those proceedings. It has taken no steps to be relieved of those obligations, or to be removed from those proceedings. 19 The PSA submitted that the removal of the RTA from consideration in the PSA's application would endanger the agreed basis upon which the proceedings have been prepared. Further, that it would be unconscionable in the extreme for the RTA to attempt to remove itself from the proceedings in circumstances in which it has acquiesced in the manner in which the proceedings have been conducted.

20 If the two applications were to be heard separately, it makes no sense for the issue of remuneration of RTA's salaried staff to continue to be the subject of the PSA proceedings; it would be unnecessarily duplicative and the Full Bench would not countenance it. However, the removal of the RTA from consideration in the PSA's application would be an unjustifiable imposition on the PSA given that in the preparation of its case, it has proceeded on a basis, agreed with the RTA, that employees in the RTA are representative of the employees covered by the PSA's proposed award. Further, an important objective of the PSA's application is to maintain a common salary outcome across the public sector, including the RTA. A common salary outcome has been the norm since 1993. Regardless of the merits of this objective, if there were to be separate proceedings the objective would be rendered nugatory in the absence of proper debate on the issue. 21 The RTA submitted it had no option but to respond to the PSA's application until such time as "it could endeavour to extricate itself from the public sector wide case". It was submitted that if it had not participated, it would have risked an adverse decision being made against it by default. Mr Nolan of counsel for the RTA contended that participation could not be characterised as acceptance of, or even acquiescence in, a particular course of action. 22 We accept that the RTA had no option but to respond to the PSA's application. However, responding to the application did not require the RTA to consent to being used as part of an agreed sample, or to the directions made by the Commission. Given that in April there was an intention to file, or expectation of filing, a separate application, the onus was on the RTA to disclose that. In the result, in April the RTA, through its legal representatives, expressly agreed to the conduct of the PSA proceedings on a particular basis that included the RTA as part of the case. This set the PSA proceedings on a particular course, which to now abandon would be unfairly prejudicial to the PSA. 23 It was submitted for the DPE that the material filed by the PSA in support of its application, which included material relating to the RTA, would not be rendered otiose if the RTA's application was separately progressed because "that very material will be central to the consideration and determination of the RTA award." However, the PSA has obviously constructed its whole case on the basis that the RTA material forms an integral part of its claim. If that material can be addressed in the context of the PSA's application without prejudicing the outcome for the RTA, the most convenient way forward is to take that course, rather than to transplant it into separate proceedings. Furthermore, a detriment may potentially arise for the PSA if it was unable to prosecute a case that the RTA was representative of changes in conditions elsewhere within the public sector, such that it and other agencies should be required to increase the salaries of their employees. That is to say, the RTA's case for a new award may be fully heard in the joined proceedings, but the PSA's case (as it has been advanced in Matter No IRC 445 of 2008) may not be, if the RTA's separate application is allowed to proceed as such.

24 There was no submission put by the RTA that it is unable comply with the timetable that has been set (with consent of the parties) in respect of the PSA application, or that it would not be ready to proceed with its own application on the hearing dates that have been set in September and October. In those circumstances, there are no practical impediments to the joinder of the two applications and their determination on the hearing dates set down. 25 We confirm our decision and order of 21 July 2008 to grant the application by the PSA to join Matter Nos IRC 445 and 879 of 2008. ­­­­­­­­­­­­­­­­­­­­­­­­­­­_________________________________________

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.