Department of Community Services v Health and Research Employees Association of N

Question for Determination 7It is clear that a new award should be made. The proposed consent award satisfies the statutory requirements for the making of awards and the Wage Fixing Principles ('the principles') promulgated in the State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218 ('State Wage Case 2010') at [230]. The question for determination by the Commission in the exercise of its award making powers is whether the workplace change and redundancy clause to be inserted into the new award is to be one or the other of the competing clauses advanced by the parties, or another clause devised by the Commission. The parties were afforded the opportunity to make submissions about the alternative approach vis á vis 'grandparenting' which we will discuss later in this decision.

Award Making and the Special Case Principle 8The USU sought that terms and conditions be awarded which have not formerly been part of any award binding the parties and which are significantly more generous than those appearing in comparable awards made by the Commission. The USU accepted that this meant its application would need to satisfy the Special Case Principle of the principles: State Wage Case 2010 at [231]. 9It is appropriate that we set out the fundamental principles governing award making and the Special Case Principle. 10The Commission's award making powers are conferred upon it by s 10 of the Act. 11In determining an application to make a new award to replace an existing award, the applicable test, pursuant to s 10 of the Act, is whether the award to be made will set fair and reasonable conditions of employment for employees: Re Club Employees (State) Award [2002] NSWIRComm 362; (2002) 122 IR 272 at [102]. 12The presumption is that the existing award, covering the same field, already sets fair and reasonable conditions of employment for employees because it was made in conformity with the obligations imposed upon the Commission under s 10 of the Act: Re Pastoral Industry Award [2001] NSWIRComm 27; (2001) 104 IR 168 at [14]. 13However, that presumption is rebuttable where an applicant for different terms can demonstrate, on the evidence, that the existing award does not provide fair and reasonable conditions of employment: Re Storeworkers - IGA Distribution Pty Ltd New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156; (2002) 124 IR 1 at [42]. 14Factors constituting a proper basis for the rebuttal of the presumption will include whether the conditions in the current award are no longer fair and reasonable having regard to changed circumstances, including changes in the respective positions or conduct of the parties; developments in a business, industry or the economy generally, and where changes have occurred in the factors which underpinned the conditions found in the current award, the subject of review: IGA Distribution at [44]. 15The application must meet the threshold requirements of the principles promulgated in the State Wage Case 2010. Where a claim results in arbitral proceedings for changes in conditions of employment which exceed those allowed elsewhere in the principles (see, for example, Principle 2), the applicant will need to satisfy the Arbitrated Case Principle: see State Wage Case 2010 at [230]. In particular, the applicant may need to satisfy the special case component of that principle which is in the following terms: 8.4 Special Case Considerations 8.4.1 A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2011) 113 IR 384 and the cases referred to therein at [165]-[168]. 8.2.4 All special cases shall be tested against the public interest. 16The requirements of the Special Case Principle will be met where the applicant for a proposed award or particular provisions within it persuades the Commission that the application satisfies a dual test: that the provision or provisions of the award sought constitute fair and reasonable conditions of employment and that the matter in question has special attributes or is 'out of the ordinary' so as to take the matter outside the restrictions which otherwise apply under the principles: Social and Community Services Employees (State) Award [2001] NSWIRComm 247 at [24]; Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [166]; IGA Distribution at [45]. 17The onus lies on a party arguing for a special case to persuade the Commission that the terms it seeks should be made: Re Pastoral Industry at [77] and Club Employees at [102]. 18The evidentiary requirement to establish a special case is, however, no more strict than in an ordinary matter, except that the applicant for a special case will need to establish an adequate evidentiary foundation for the factors which are relied upon as demonstrating special case attributes: Operational Ambulance Officers at [168]; Pastoral Industry Award at [73] and [74].

The Requirements of s 10 of the Act 19The terms 'fair' and 'reasonable' in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them. 20Consideration of what is fair and reasonable for an employee will necessarily involve a consideration of what is fair and reasonable having regard to the nature and circumstances of the employment afforded to the employee by an employer. That inquiry cannot be made in a vacuum. It must also extend to the broader context in which the employment occurs and ultimately, by effect of s 146 of the Act, the state of the economy in New South Wales. 21The assessment required by s 10 will often involve consideration of collective relations between unions and employers or employer associations and, in appropriate cases, consideration of the history of terms and conditions that the parties chose to apply, formally and informally, to employees who will now be covered by the proposed award. 22In particular cases, the Commission may be required to take into account not only differences between employers or industries in which employment is undertaken, but relevant differences between employees or classes of employees in a workplace, enterprise, project or industry. What may represent a fair and reasonable condition for one set of employees may not be for another, even where the employees are engaged by the same employer. That particular assessment may depend on the history as well as consideration of the present circumstances of the work to be performed.

Proper Reading of s 47 of the Act 23As we note above, what is sought by the USU is that the terms of an employer's policy, which had been at least recognised in an enterprise agreement, be inserted into an award. 24In principle, such a step is possible. Section 47 of the Act proscribes the Commission from regarding terms and conditions set in enterprise agreements as 'standard' conditions of employment for other employees. This provision does not, however, preclude the Commission, when making an award binding particular parties, from having regard to conditions that have in the past been fixed by an agreement between those parties: IGA Distribution at [49].

The USU's Case 25The USU's contentions in support of its application may be summarised as follows. The conditions of employment contained in the R & R Policy were introduced in the context of the City's desire to introduce competitive tendering. Both the arrangements for competitive tendering and the counterpart security of employment provisions of the R & R Policy were first reflected in an enterprise agreement negotiated between the City and the predecessor to the USU in 1996, known as the "Joint Development Enterprise Agreement" ('the JDA'). At that time, assurances were given to employees by the Lord Mayor and senior management about job security, the continuation of superior redundancy provisions and indefinite salary maintenance upon redeployment. The employees accepted these assurances in good faith and co-operated in and facilitated the introduction of competitive tendering. The City has reaped the benefits of those initiatives since that time and continues to do so. The employees have consistently honoured their side of the bargain. 26Accordingly, what is sought, it was said, is not the introduction of new terms and conditions as such, but rather the preservation of conditions which have for the past 18 years been effectively prescribed by a series of enterprise agreements approved by the Commission.

The City's Case 27The substance of the City's contentions may be stated with equal brevity. Whilst the City conceded that redundancy and salary maintenance entitlements have been governed by successive enterprise agreements since 1996, it contended that there existed concurrent awards covering essentially the same subject matter but at a lesser standard (the most recent of which was the 2010 award which succeeded the City of Sydney Wages/Salary Award 2002) ('the 2002 award'). 28In 2002, any nexus between the competitive tendering clause and the R & R Policy was broken when competitive tendering provisions were removed from enterprise agreements. The provision was removed from the Council of The City of Sydney Enterprise Agreement 2004, approved on 16 October 2002. 29The clause proposed by the City in this matter by and large reflects the redundancy and salary maintenance provisions contained within the Local Government (State) Award 2014, which award has been recently found by the Commission to set fair and reasonable conditions of employment. The application by the City is consistent with its obligations to provide the best possible services to ratepayers and the community which it serves. Further, the City is required to use public funds appropriately.

Consideration 30We have said above that one element of the consideration of what is fair and reasonable, for the purpose of the exercise of powers under s 10 of the Act, is consideration of the effect of any award to be made on employees. We have said that that assessment may include consideration of the history of the parties' approach to their terms and conditions of employment. 31As a matter of historical fact, the terms and conditions for which the USU argues have been applicable for 18 years. That of itself does not mean that they must necessarily be carried forward, although it is a factor in that consideration. 32What it does mean is that the nature of the bargain made between the parties in 1996 must be taken into account. An assessment must be made of the length of time that the bargain might be held properly to continue. That involves consideration of the parties' dealings with each other on the question of the terms and conditions attaching to redeployment and redundancy. 33The true nature of the bargain is not confined to the terms of the JDA, nor those of the City's R & R Policy which it has maintained from 1996 until this year. It also goes to the parties' understanding of the permanency or otherwise of those terms and conditions. 34It is clear from the evidence, including that of Mr Christopher Saunders, Manager, Employee Relations for the City, that between 1995 and 2001 the improved redundancy and job security provisions in the R & R Policy constituted the quid pro quo for the co-operation of the unions and their members in the implementation of competitive tendering. 35Relevantly, the effect of the USU's evidence is that on a number of occasions, and specifically in October 1996, the City made representations to employees and their then representative union, the Federated Municipal and Shire Council Employees' Union ('the MEU'), that these terms and conditions would be maintained for the foreseeable future, if not in perpetuity. 36For example, Mr Kevin Felton, who was a union delegate in 1996, gave evidence that on 30 October 1996 there was a mass meeting of members and delegates attended by the then Lord Mayor, Frank Sartor. Mr Felton's uncontroverted evidence was this: The Mayor Frank Sartor told us words to the effect that "no one would lose their jobs" and he told us that our jobs were secure. We were told that if our job was made redundant they would find us another job with Council on the money that we were on at the time. 37Mr Mark Wheatley, an organiser with the MEU from 1996 to 1999, gave uncontroverted evidence that both Council officers and the Lord Mayor said at meetings that: ...nobody had anything to worry about, no one was going to get forced out of work and if you chose to be reemployed to a different department that you would have salary maintenance while you were employed with City Sydney Council and that happened on more than one occasion. 38It is sufficiently clear that the JDA was ultimately approved by the MEU and its membership on the basis of these assurances given to the employees. 39On the evidence, the City wanted and sought the co-operation of the unions in carrying out the reforms involving competitive tendering and was prepared to offer, in return for that co-operation, the enhancement of job security protections. 40That was, in one sentence, the bargain struck in 1996, and in our view the bargain was held out, at the time, to be an ongoing one, for the foreseeable future at least. 41It is apparent that the City then expressly extended the bargain struck as part of the JDA beyond the life of the agreement. In late 1996 the City advised its intention to renegotiate the JDA in 1998, at the end of its term "for a period of 3 years, which will include job security provisions". The R & R Policy was carried across into the enterprise agreement which was operative from November 1998 until 2001. Thereafter, the R & R Policy, while nominally a matter for bargaining on each occasion, was maintained each time the enterprise agreement was renewed. 42The perception that the employer's part of the bargain represented by the R & R policy would continue was given further reinforcement at the time that a large number of employees transferred from the Leichhardt and South Sydney councils in 2003 and 2004. 43It is clear on the evidence that representations were made to those employees about aspects of their employment by the City which included representations, based on the existence of the R & R Policy, that there would be job security, reinforced by generous redundancy payments and by the provision of salary maintenance if redeployment were to occur. 44The evidence of, for example, Mr Effie Pace, one of the South Sydney employees who transferred to the City after the amalgamation, was representative. 45Mr Pace received his letter of offer of employment on 23 December 2005, when the R & R policy had already been introduced. The letter Mr Pace received read: You will be employed under the terms and conditions of City of Sydney Wages/Salary Award 2002, Enterprise Agreement 2004, the City's Code of Conduct and other approved policies. 46Mr Pace gave this oral evidence: Q And would you accept from that, that what is contained in terms of that enterprise agreement in terms of conditions, are as good as the length of that enterprise agreement are on foot? A. I'm a working class man and the people I represent are working class. A lot of them can't even read or write. We had management and this was before my time, I'm talking a lot of guys that were there and Frank Sartor turned up and said you guys have got a job for life. Work hard keep the City clean. That's what they said...If a mayor comes to you and says you've got a job for life, you think you've got a job for life. 47Mr Pace's evidence under cross-examination was further reinforcement of that position. He gave this evidence: The fact that basically how much money I could earn on the overtime and the fact that he wanted to maybe even offer me a team leader job down the track and the fact that I could have unlimited, you know be there forever, basically. Job for life. He actually said to me in person that I'll be here 20 years after he's gone 48He added, as to his understanding of the redundancy benefits he expected to receive with the City: I understood that in case of redundancy I'd have a lot more, a bigger pay out. 49It was put by the City that Mr Pace's essential reasons for agreeing to work for the City were that he was unhappy at South Sydney and had the ability to earn more through overtime in the City's employ. Mr Pace's evidence did not, however, suggest that these considerations overrode the basic one of job security in his consideration. Further, what is relevant in our view is that in 2005 the City was holding out job security in perpetuity to employees and prospective employees; that is, in 2005 the bargain struck in 1996 was still on foot and was still projected into the future.

The End of the Bargain 50The first clear statement that made its way to the workforce that there was no guarantee that the R & R Policy would apply in perpetuity to employment with the City, was a document issued by the USU to its members on 5 November 2009 titled "USU Update". 51The wording of that document is relevant. In a context where the parties had been unsuccessful in endeavours to arrive at a consolidated award, the USU advised its members: The USU wants to minimise the capacity for any future administration to unilaterally withdraw from or rescind conditions or wage increases for the differing groups of employees covered by these agreements. It is noted that conditions contained in awards can only be withdrawn by order of the Commission whereas conditions in EA's can be withdrawn unilaterally at the conclusion of the agreement provided that three months' notice is provided. 52In our view that was an unmistakable recognition of the fact that the policy might well not remain on foot. 53It is relevant that the competitive tendering processes that were initiated in 1996 had run their effective course by 2004. 54As to the City's formal statement in 2013 of its intention to bring the terms of the 2010 Enterprise Agreement, including the R & R Policy, to an end, Ms Susan Pettifer, Director, Workforce and Information Systems for the City, gave evidence that there were eight priorities underpinning this decision. Essentially, said Ms Pettifer, the move was because the City's policy was out of step with other like enterprise agreements and awards and, in particular, out of step with provisions of awards covering the rest of local government in New South Wales. Ms Pettifer's evidence was that the City had wanted to realign its position in this way for at least two years.

Principles Established in Earlier Cases Involving Enterprise Agreements 55We have set out above the basic principles to be applied in the exercising of the Commission's arbitral award making powers, and those which have application to a special case. 56In our view, the existence of the enterprise agreements, and the representations made to the employees, render this matter analogous to matters determined by the Commission pursuant to s 11 of the Industrial Arbitration Act 1940. 57Matheson v Electricity Commission of NSW [1978] 2 NSWLR 305, was a case decided in the context of an industrial agreement made under s 11 which was later overtaken by an award. 58Shortly put, the industrial agreement provided for the payout of sick leave on retirement. Four years later an award was made which did not contain those provisions. An employee claimed an ongoing entitlement to, upon his future retirement, the payout of sick leave. Upholding that claim, the Supreme Court made the following observation: A further matter which I think it is appropriate to take into account is that the purpose of the legislation was to enable the Commission to take over the various electricity undertakings in question with as little trouble as possible... The principal concern of Parliament would have been to reassure employees who were being transferred that they would be treated no differently from the way in which they had been treated by their former employers. That consideration, to my mind, explains why the draftsman of the legislation sought in the provisions relied upon to make it clear to employees that they were to have the benefits that they would have had if they had continued in their old employment. 59The situation so described resembles the position of employees of the City, at least before 2009. 60Again, in Department of Community Services v Health and Research Employees Association of New South Wales (1992) 45 IR 453, which involved the question of indefinite salary maintenance for transferred employees, Maidment J held, relevantly to the present circumstances (at 462): The view I take is that, in the absence of exceptional circumstances, those in public employment should be comfortable in their expectation that promises, reinforced by legislation, made to them by those in government will be met and not swept away by mechanisms such as those manifested in this matter. 61We regard his Honour's observations as very much to the point here. While Community Services was decided under the pre-1996 Act, the decision, and indeed that in Matheson, patently turns on an apprehension of fairness, which is a fundamental statutory element of the Commission's function: see s 3(a) of the Act.

Conclusions 62So far as the USU's application seeks that the terms and conditions in the R & R Policy be translated into an award having ongoing coverage of all City employees, it must fail. 63The application simply cannot satisfy the special case test. That must be clear when it is considered that it seeks that the Commission, in the exercise of its arbitral powers, to award 'fair and reasonable' terms and conditions of employment very much in excess of those that the Commission recently found to be fair and reasonable for employees performing work of the same nature in local government employment. The Local Government (State) Award 2014 containing those provisions was made as recently as June 2014. 64The proper course is that the award clause proposed by the City, which represents, in our view, fair and reasonable terms and conditions of employment, be inserted. The proposed clause is not identical to that in the Local Government (State) Award 2014. It does not have to be. What is important is that the City's proposed clause is in conformity with the general standard of terms and conditions applying to like employees in local government and no relevant differences were identified which would distinguish the City's employees from those otherwise employed in councils regulated by the general award with respect to the subject conditions of employment, save the historical circumstances referred to earlier in this decision. 65Indeed, no substantial attack was mounted by the USU on the terms governing workplace change, redundancy or job security in the Local Government (State) Award 2014. It was said that the provisions cherry picked existing award provisions, but in our view there are balancing benefits in the provisions proposed, when read against those of the Local Government (State) Award 2014, and they are properly seen as fair and reasonable. 66However, the Commission maintains, consistent with the objects of the Act and its long-established jurisprudence, the view that parties should be held to their bargains. It also maintains a reluctance to allow narrow technical matters to exert too great an influence upon the industrial arrangements between parties, and upon the obligation to ensure that fair and reasonable terms and conditions of employment are set and observed. 67Section 10 of the Act provides, as we note above, that the Commission is to set 'fair and reasonable' conditions of employment for employees. 68'Employees' to be covered by a given award do not comprise a homogeneous group of people. A given body of employees to be covered by a newly-made award might, and in this case will, include employees who have worked for the employer for 30 years as well as employees who commenced last week or who will commence tomorrow. 69That being so, it is apparent that the setting of fair and reasonable conditions of employment does not necessarily mean that those conditions, even within one award, will be identical for each employee. So much is routinely recognised in awards by the provision of incremental scales of salary, for example. 70What is fundamentally important is that before 2009 the City's employees were permitted, if not encouraged, to believe that the entitlements in the R & R Policy were ongoing and would be ongoing until a definite statement was made to the contrary, that is, until the point when agreement between the parties ceased. We do not consider the inclusion of the words "for the life of the agreement" in the clause entitled "Redeployment/Redundancy" appearing in the enterprise agreements from 2008 onward, resulted in such a communication or undermined the bargain made between the parties. In the circumstances operating after 1996, and indeed until 2009, a much clearer statement of intention was required for the City to reserve to itself a capacity to alter unilaterally the terms of the bargain at relatively short notice. 71For these reasons it is appropriate to protect the agreement that was made by an award clause of the kind generally referred to as 'grandparenting'. That is, we propose to maintain the entitlement to the R & R Policy provisions for those employees who, in our view, reasonably believed that they had those conditions for as long as they worked with the City and acted out of that belief. 72As will be apparent from what we say above, the clear dividing line is, in our view, the date 5 November 2009, when the USU unequivocally advised its members that entering the 2010 Enterprise Agreement may not indefinitely secure job security arrangements. We do not consider that the issuing of that notice or advice had the effect of extinguishing the prior agreement. It would be unfair and unreasonable to the employees caught by the bargain (who had honoured their agreement) to do so. However, the USU, in its representative role, must be taken to have accepted that the circumstances governing job security may change from that point and thus, at least, the making of the 2010 Enterprise Agreement should be treated as effecting changed circumstances for employees engaged by the City from that time. 73We have given active consideration to the cost to the City in maintaining these provisions in respect of those employees, and also to the submission that to have employees working side by side under different terms and conditions of employment is unsatisfactory. 74The City's own evidence, given by Ms Pettifer, was sufficient to establish that the cost of maintaining the provisions, while not inconsequential, was and will be a very small proportion of its annual wages and on-costs budget. We note too that the payment of 52 weeks' redundancy, and the provision of salary maintenance, may not cost anything at all. These costs only arise if and when redundancies take place and, on the City's evidence, the workforce is, in fact, growing at present. 75This approach will not mean that employees who work side by side will receive different payment for their work, nor will they perform the work under different conditions. The difference is only that those employees who were effectively promised these conditions which appeared in the R & R Policy will, as a matter of fairness, maintain an entitlement to them in the event that they may be required. Those who were not so promised do not. That ought not, in our view, give rise to any friction or sense of unequal treatment. 76The City advanced, as a fall-back position, that if the Commission were to make some award provision for those employees who had previously enjoyed the benefits of the R & R Policy, that ought be done by a phasing-out of those entitlements, after a year from the date of making the award. 77It will be apparent that such an approach is at odds with what we see as setting fair and reasonable terms and conditions for those employees. A phasing-out would simply delay the loss of the conditions to a later date. It is to be emphasised that what was held out to the employees, most of all, was security; security in employment and the security of a substantial payment if they were to be forced into redundancy. Those benefits cannot be measured by time. Security which is known to end in 12 months is no security at all, particularly when the employees have neither opportunity nor wish to exercise their rights within that period. 78It follows that a phasing out of conditions is not appropriate. Rather, the Commission proposes to make an award containing what are commonly known as 'grandparenting' provisions, that is, preserving in perpetuity the particular securities and entitlements provided by the R & R Policy for those employees who, before 5 November 2009, had the benefit of those provisions. 79For those employees employed on or after 5 November 2009, the award provisions will reflect those in the City's application.

Orders The Commission makes the following orders: (1)Subject to order (2) to (4) hereof, an award shall be made in the terms of Ex 1 in these proceedings. (2)The award will contain the redeployment and redundancy provisions proposed by the City and set out in 'Annexure B' to this decision. (3)Those provisions will apply to all employees employed on or after 5 November 2009. (4)The award will also include the redundancy and redeployment clauses set out in 'Annexure A' to this decision, but those provisions will only apply to those employees who commenced permanent employment with the City before 5 November 2009. (5)We direct the City to file and serve within seven days draft minutes of an award which would give effect to this decision. (6)The Commission will relist these proceedings for the making of the award on a date to be determined.

ANNEXURE A | ANNEXURE B 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: 23 September 2014