Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award [2012] NSWIRComm 71

DECISION OF THE COMMISSION 1On 29 June 2012, the Commission made the following orders in this matter:

1. The Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff) Award; and the Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff Salaries and Conditions of Employment) Award 2008 are varied to provide an increase to salaries and salary based allowances of 2.5 percent per annum with effect from the first full pay period on or after 1 July 2012.
2. The parties are directed to file terms of any adjustments to be made to the calculation of allowances claimed in the applicant's application for variation within 14 days. In anticipation of agreement between the parties as to those adjustments, the Commission will make any necessary formal orders in chambers. Otherwise the parties have liberty to apply. 2When the orders were made, the Commission informed the parties that its reasons for decision would be published at a later date. I now provide those reasons. 3On 9 March 2012, the Public Service Association and Professional Officers' Association Amalgamated Union of NSW (the PSA), filed an application (the PSA application) for a variation to two awards: the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award and the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2008 (the Awards). 4Schedule C to the PSA application set out the "grounds, reasons and particulars" of the proposed variations. For convenience these are extracted in full:
3. The nominal term of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award expired on 30 June 2010.
4. The nominal term of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2008 expired on 30 June 2010.
5. On 10 August 2011 in Re Crown Employees (Public Sector - Salaries 2011) Award (No. 3) [2011] NSWIRComm 104 the Commission ordered that the Crown Employees (Public Sector - Salaries) Award 2008, the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2008, and the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries) Award 2008 be varied to increase salaries and salary based allowances by 2.5% from the beginning of the first full pay period to commence on or after 1 July 2011.
6. On 31 October 2011 in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 143 the Commission in Court Session dismissed a Notice of Motion filed by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") for a declaration that the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 in invalid and the Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2011 is invalid.
7. Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 143 is currently under appeal to the High Court of Australia. To date, no judgement has been handed down in this matter.
8. In the circumstances, the PSA seeks a variation to the award so as to provide for an increase to salaries and salary based allowances of 2.5% per annum with effect from the first full pay period on or after July 1 2012.
9. The increase to salaries and allowances sought by the PSA are in accordance with the NSW Public Sector Wages Policy 2011 and are necessary to partially compensate for changes in the value of money having regard to the current rate of inflation and changes in the cost of living.
10. The application is consistent with decisions of the Full Bench in Re Crown Employees (Public Sector - Salaries 2011) Award (No. 3) [2011] NSWIRComm 104 and the Full Bench in the matter of Health Employees Conditions of Employment (State) Award and other Awards [2011] NSWIRComm 129.
11. It is in the public interest that the public sector receive fare and reasonable salaries.
12. Upon such other grounds and reasons as to the Commission seem appropriate. 5The Roads and Maritime Services (the RMS), the respondent to the PSA application, filed an application (the RMS application) for two new Awards on 22 May 2012. The Awards bear the titles, the Crown Employees (Roads and Maritime Services - Salaried Staff Salaries and Conditions of Employment) Award and the Crown Employees (Roads and Maritime Services - Salaried Staff) Award (the RMS Awards). 6The RMS application relies upon the "grounds, reasons and particulars" in Schedule C, extracted below: ...
13. The nominal term of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2008 and the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award expired on 30 June 2010.
14. On 10 August 2011 in Re Crown Employees (Public Sector - Salaries 2011) Award (No. 3) [2011] NSWIRComm 104 the Commission ordered that the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award and the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2008 be varied to increase salaries and salary based allowances by 2.5% from the beginning of the first full pay period to commence on or after 1 July 2011.
15. On 1 November 2011 the RTA and NSW Maritime were abolished and Roads and Maritime Services (RMS) was created as per the Transport Legislation Amendment Act 2011 (NSW).
16. The Awards the subject of this application, do not apply to RMS positions covered by the NSW Maritime Enterprise Agreement 2010-2013.
17. The Awards the subject of this application, apply to employees of the RTA Division of the Government Service. New awards should be made to reflect that the RTA has been abolished and that these employees are now employed by the RMS Division of the Government Service.
18. RMS is bound by the New South Wales Government Public Sector Wages Policy ("the Policy") and this counter application is intended to be consistent with that Policy. This application is also consistent with the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011.
19. This application seeks a nominal term for the new awards of 12 months duration.
20. This application seeks a single increase to the salaries and salary related allowances as prescribed in Schedules A and B of 2.5 per cent for 12 months commencing on and from the first full pay period after the new awards are made by the Commission.
21. The application also seeks the insertion of a new no extra claims clause into both awards.
22. The salaries and conditions of employment sought for employees in this application are fair and reasonable in the circumstances and in the public interest.
23. Such other reasons as the Commission deems appropriate. 7The central feature of both applications, about which there is agreement, is the claim for a single increase to salaries and salary based allowances of 2.5 per cent per annum. What is in dispute in these proceedings are the conditions under which the increases may be awarded. These conditions are discernable by reference to the "grounds, reasons and particulars" relied upon by each party in their respective applications. The PSA application seeks a variation to the Awards. The RMS application seeks the making of the 2012 Awards with the inclusion of a "no extra claims" clause. 8Similar issues were ventilated in the Commission's recent decision in Crown Employees (Public Sector - Salaries 2008) Award [2012] NSWIRComm 70 (CEPSS decision). In the present proceedings the RMS adopted and relied upon the submissions, where relevant, of the respondent (Director-General, Department of Premier and Cabinet) in the CEPSS decision. 9Before setting out the respective submissions of the parties it is necessary to set out the relevant provisions of the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 (the Amendment Act) and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (the 2011 Regulation) which govern these proceedings. 10On 17 June 2011, the Amendment Act amended the Industrial Relations Act 1996 by inserting s 146C. That section provides: (1) The Commission must, when making or varying any award or order, give effect to any policy on conditions of employment of public sector employees: (a) that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission, and (b) that applies to the matter to which the award or order relates. (2) Any such regulation may declare a policy by setting out the policy in the regulation or by adopting a policy set out in a relevant document referred to in the regulation. (3) An award or order of the Commission does not have effect to the extent that it is inconsistent with the obligation of the Commission under this section. (4) This section extends to appeals or references to the Full Bench of the Commission. (5) This section does not apply to the Commission in Court Session. (6) This section extends to proceedings that are pending in the Commission on the commencement of this section. A regulation made under this section extends to proceedings that are pending in the Commission on the commencement of the regulation, unless the regulation otherwise provides. (7) This section has effect despite section 10 or 146 or any other provision of this or any other Act. (8) In this section: award or order includes: (a) an award (as defined in the Dictionary) or an exemption from an award, and (b) a decision to approve an enterprise agreement under Part 2 of Chapter 2, and (c) the adoption under section 50 of the principles or provisions of a National decision or the making of a State decision under section 51, and (d) anything done in arbitration proceedings or proceedings for a dispute order under Chapter 3. conditions of employment-see Dictionary. public sector employee means a person who is employed in any capacity in: (a) the Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament or any other service of the Crown, or (b) the service of any body (other than a council or other local authority) that is constituted by an Act and that is prescribed by the regulations for the purposes of this section. 11The "regulations" referred to in s 146C is the 2011 Regulation. It declares, for the purposes of s 146C, aspects of government policy that are to be given effect by the Commission when making or varying awards or orders. The relevant clause of the 2011 Regulation, for present purposes, is regulation 6, which provides: 6 Other policies (1) The following policies are also declared, but are subject to compliance with the declared paramount policies: (a) Public sector employees may be awarded increases in remuneration or other conditions of employment that do not increase employee-related costs by more than 2.5% per annum. (b) Increases in remuneration or other conditions of employment that increase employee-related costs by more than 2.5% per annum can be awarded, but only if sufficient employee-related cost savings have been achieved to fully offset the increased employee-related costs. For this purpose: (i) whether relevant savings have been achieved is to be determined by agreement of the relevant parties or, in the absence of agreement, by the Commission, and (ii) increases may be awarded before the relevant savings have been achieved, but are not payable until they are achieved, and (iii) the full savings are not required to be awarded as increases in remuneration or other conditions of employment. (c) For the purposes of achieving employee-related cost savings, existing conditions of employment of the kind but in excess of the guaranteed minimum conditions of employment may only be reduced with the agreement of the relevant parties in the proceedings. (d) Awards and orders are to resolve all issues the subject of the proceedings (and not reserve leave for a matter to be dealt with at a later time or allow extra claims to be made during the term of the award or order). However, this does not prevent variations made with the agreement of the relevant parties. (e) Changes to remuneration or other conditions of employment may only operate on or after the date the relevant parties finally agreed to the change (if the award or order is made or varied by consent) or the date of the Commission's decision (if the award or order is made or varied in arbitration proceedings). (f) Policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments. (2) Subclause (1) (e) does not apply if the relevant parties otherwise agree or there are exceptional circumstances. (3) The relevant parties in relation to a matter requiring agreement under this clause are the employer and any other party to the proceedings that is an industrial organisation of employees with one or more members whose interests are directly affected by the matter. 12The primary basis upon which the PSA seeks a variation to the Awards is to maintain a capacity to prosecute a residual aspect of an application made by it (the residual claim) before the Full Bench in Re Crown Employees (Public Sector - Salaries 2011) Award (No. 3) [2011] NSWIRComm 104 (the PSA case). In the PSA case the Full Bench awarded a 2.5 per cent salary increase operative from 1 July 2011 by way of a variation to three awards. The emergence of the residual claim in the PSA case is explained at [7] and [8] of the CEPSS decision, the relevant parts of which are extracted below: ... The PSA directed the Commission's attention to its application for salary increases made in March 2011 (the 2011 application), together with cross-applications made by the Department and other respondents which resulted in an award of a 2.5 per cent salary increase operative from 1 July 2011. This increase was awarded following the Full Bench decision in Re Crown Employees (Public Sector - Salaries 2011) Award (No. 3) [2011] NSWIRComm 104 (the PSA case). At the time the Full Bench handed down its decision in the PSA case the 2011 application was not fully discharged by the award of a 2.5 per cent increase and remains on foot (the residual claim). In the proceedings before the Full Bench in the PSA case, the PSA sought, in addition to a 2.5 per cent increase further salary increases on grounds that may justify increases beyond 2.5 per cent. The Full Bench deferred hearing the application for salary increases beyond 2.5 per cent, until pending proceedings in which the PSA sought to challenge the validity of State legislation underpinning restrictions to salary increases in excess of 2.5 per cent, had been determined. It should be explained at this juncture that the following Full Bench decision in Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Director of Public Employment [2011] NSWIRComm 143, in which application to declare invalid the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 (the Amendment Act) and the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (the 2011 Regulation) were refused, the PSA applied for special lease to appeal the decision to the High Court. On 11 May 2012, the High Court granted special leave. Hearing dates for the appeal have not been allocated. 13The Full Bench in the PSA case elected to preserve the residual claim in order to give it further consideration once proceedings in which the validity of the Amendment Act and of the 2011 Regulation are under challenge, have been determined. In this regard, the Full Bench said (at [42] - [44]): This leaves the question of what to do with the PSA's application. If the PSA is successful in challenging the validity of s 146C or the validity of the Regulation, there would seem to be no bar to the Commission proceeding to deal with the application in accordance with the Wage Fixing Principles. If the PSA is unsuccessful, such that the legislation is held to be valid, the PSA will be provided with the opportunity of putting its case that the increase of 2.5 per cent does not represent the maximum amount that may be awarded by way of an increase in remuneration under the Regulation. Otherwise, by force of the Regulation it seems to us, the increase of 2.5 per cent that has been granted by way of variation in the awards that are the subject of the counter-applications is to be regarded as the amount of increase in employee-related costs under those awards for a period of 12 months from 1 July 2011. In those circumstances, given it has been conceded that the evidence filed in support of the PSA's application would not satisfy the requirements for employee-related cost savings as specified in the Regulation, no further increase in remuneration would be available prior to the expiry of the 12 months' period. The issue of whether a no extra claims clause should be inserted into the awards will be further considered by the Full Bench in the course of determining the disposition of the PSA's application. The PSA submitted we should proceed immediately to hear the evidence relating to its application. We do not propose to take that course. As matters currently stand, the Regulation is valid. The evidence the PSA proposes to call has no relevance given the requirements of the Regulation. It would not be appropriate for the Commission to proceed to hear that evidence on the basis of a possibility that the Regulation might be found to be invalid. In this regard, we agree with the submissions of the DPE. 14The Awards sought to be varied are beyond their nominal terms. Section 17(3)(d) of the Act confers power upon the Commission to vary an award after its nominal term if the Commission considers that is it not contrary to the public interest. There is no power under the Act to extend the nominal term of an award. Section 16(1) of the Act provides that an award applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission. Section 16(2) provides that the nominal term of an award must be not less than 12 months and not more than 3 years. Regulation 6(1)(d) provides that no extra claims are to be made "during the term of the award or order". According to the RMS an order making the variations to the Awards would circumvent the requirement in regulation 6(1)(d) for the inclusion of a "no extra claims clause". 15The RMS submitted that the basis upon which the PSA sought the variations (to maintain a capacity to prosecute the residual claim) was without substance. It sought to demonstrate this by proposing that if the Commission were to grant the RMS application and include the "no extra claims" provisions, a finding of invalidity would provide a proper foundation upon which the PSA application could be brought at a later stage. In the event of a finding of invalidity there would no longer be an issue as to whether regulation 6(1)(d) imposes a requirement to include a "no extra claims" provision, regardless of any orders made by the Commission in these proceedings. 16According to the RMS, in the absence of a rational basis for varying the Awards the only explanation that remains for bringing the application to vary is to avoid the effect of regulation 6(1)(d) and the Commission ought not be engaged in any process which would have the effect of circumventing what is a valid law. 17In the Commission's view there are a number of difficulties with the contentions of the RMS. First, as the PSA has sought to emphasise, the inclusion of a "no extra claims" clause would prevent the making of claims otherwise allowed under the 2011 Regulation, for example, a pay equity claim (see also PSA case at [38]). Secondly, the RMS contentions focussed exlusively on a High Court finding of invalidity. In the event the High Court were to find the legislation valid, the residual claim would still have work to do. This is apparent from the observations of the Full Bench in the PSA case where provision for the further hearing of the residual claim was made in the event the High Court found that the Amendment Act and 2011 Regulation were valid laws: (see [43] PSA case extracted above). Thirdly, similar contentions were rejected by the Full Bench in the PSA case. In particular, the Full Bench noted (at [38]) that if it were to make new awards which included "no extra claims" provisions this would have the effect of precluding any consideration of the PSA's application to vary the awards, "even in circumstances where s 146C and the Regulation were found invalid". In the PSA case, the respondent parties had submitted that the Commission was obliged under the terms of regulation 6(1)(d) to impose a "no extra claims" provision: at [19]. The Full Bench, instead, made orders varying the three Awards to provide for a 2.5 per cent increase without the inclusion of a "no extra claims" provision: at [33]. It's reasons for declining to include a "no extra claims" provision in the orders were explained at [38] of the decision: If we were to make new awards in response to the counter-applications and include in those awards the no extra claims provisions that are sought, it would have the effect of precluding any consideration of the PSA's application, even in circumstances where s 146C and the Regulation were found invalid. Moreover, we have reservations regarding the validity of the no extra claims provisions proposed by the DPE and RTA. The DPE's provision is predicated on the basis of an agreement between the parties that there will be no extra claims. There is no such agreement. Further, both the DPE's provision and that of the RTA provide that no "proceedings, claims or demands concerning wages or conditions of employment ... will be instituted before the Industrial Relations Commission of New South Wales or any other industrial tribunal." We do not know how the Commission may make an order precluding claims being made before a tribunal other than itself. Moreover, in the absence of legislative backing, the power of the Commission to order a party not to make claims it is entitled to make under the statute must be in doubt. We also note that the proposed no extra claims provisions, on their face, would preclude claims otherwise permitted under the Regulation (for example, claims relating to equal remuneration). 18The RMS proposed the inclusion of a "no extra claims" clause in the RMS Awards in the following form:
24. No Extra Claims (1) The pay increase in this Award is made on the basis that no party may, during the term of this award up unitl 30 June 2013, make any extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by this award, and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal. (2) The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions. 19The only difference between the form of the above provision and the "no extra claims" provision before the Full Bench in the PSA case is that the latter provision proceeded upon agreement between the relevant parties. 20Putting aside that single difference it is apparent the provision proposed by the RMS in these proceedings suffers from the same problems identified in the provision under consideration by the Full Bench in the PSA case at [38]; see also CEPSS decision at [30]. In other words, the same problems identified by the Full Bench at [38], and by this Commission in the CEPSS decision at [30], arise directly in the present proceedings. 21The conclusions of the Full Bench in the PSA case provide no support for the contentions of the RMS in these proceedings that the PSA application to vary the Awards involves an attempt to undermine, or circumvent, regulation 6(1)(d). Moreover, similar contentions were advanced in the CEPSS decision (at [32]), and rejected by the Commission at [34]. The legislative scheme under the Act provides for Awards to be varied, whether or not beyond their nominal terms: see ss 17, 52, 136. The Act does not contemplate a hierarchy whereby the making of awards are given precedence over the making of variations to awards. Regulation 6(1)(d) forms part of that legislative scheme by virtue of s 146C of the Act. The construction of the regulation and whether or not it obliges the Commission to impose a "no extra claims" provision has yet to be considered by the Full Bench. Any incompatibility between s 17(3)(d) of the Act and regulation 6(1)(d) may be indicative of a construction which is not consistent with the regulation imposing a requirement to include a "no extra claims" provision. It is not necessary for the Commission to decide the point. The Full Bench in the PSA case when dealing with the same legislative scheme declined to impose a "no extra claims" provision and made orders varying awards which were beyond their nominal terms. The same set of circumstances are of course present here. 22The approach of the Full Bench in the PSA case was applied by the Full Bench in Health Employees Conditions of Employment (State) Award and other Awards [2011] NSWIRComm 129 (HSUeast case), at [13][14][55]-[57]. An appeal to the Court of Appeal by one of the respondents, the Director-General, Department of Premier & Cabinet, was dismissed: Director-General, Department of Premier & Cabinet v HSUeast [2012] NSWCA 111; and see CEPSS at [23]-[24]. 23A further basis upon which the RMS relied to support its application is set out in the affidavit of Stephen James Doran sworn on 22 May 2012. Mr Doran at the time of swearing his affidavit was employed in the RMS division of the Government Service of New South Wales. Mr Doran explains in his affidavit that on 1 November 2011 the Transport Legislation Amendment Act 2011 (TL Amendment Act) came into operation. As a consequence, the Roads and Traffic Authority (RTA) was abolished as a division of the Government Service (s 184(1)) and all former RTA employees became employees in the new RMS division of the Government Service (s 184(2)). 24The contentions of the RMS based on the changes made under the TL Amendment Act were that it is inappropritate to vary an existing award which applies to an entity which no longer exists and which only remains in operation by force of transitional measures under that Act. The PSA contended that the issue of identification has no bearing on the issue whether there should be a variation to an award, and if the Commission were to grant the PSA application, "the parties would be able to accept a final order for your Honour to make to deal with the issues as to scope of the public identification of the employer". 25The Commission notes that the change in identification, under the TL Amendment Act involves, in substance, former employees in one division of the Government Service of New South Wales becoming employees in another division of the Government Service of New South Wales; and, notwithstanding that there has been a statutory reconstitution of an entity, the employer (the Government of New South Wales in the service of the Crown) remains the same: see ss 4A, 4B and 4C of the Public Sector Employment and Management Act 2002. 26In the Commission's view any perceived need to correct the identification of the agency within which employees are currently covered by the Awards sought to be varied in these proceedings, can be effected either by a variation or by an award. It follows that there is no sufficient basis established for the making of the RMS Awards to give sole effect and recognition to the changes made under the TL Amendment Act. 27Taking into account the foregoing considerations no sufficient reasons have been demonstrated to the Commission to warrant a departure from the appoaches taken by the Full Bench in the PSA case and in the HSUeast case. The Commission finds, applying the reasons of the Full Bench in the PSA case, that it would not be contrary to the public interest to vary the Awards that are the subject of the PSA application. Accordingly the Commission grants the PSA application and the RMS application is dismissed. The orders of the Commission are those made on 29 June 2012.