Electrical Trades Union of Australia, New South Wales Branch v Roads and Traffic Authority of New South Wales

LEGISLATION CITED: Industrial Relations Act 1996

BHP Steel (AIS) Pty Ltd v AWU [2006] NSWIRComm 248 BHP Steel (AIS) Pty Ltd v Federated Iron Workers Association of Australia [1994] NSWIRComm 127 BlueScope Steel Limited and Australian Workers' Union, New South Wales [2008] NSWIRComm 1044 CASES CITED: Re Cram, ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at [164] Re Iron and Steel Works Employees (Australian Iron and Steel Pty Ltd - Port Kembla) Award, BHP Steel (AIS) Pty Ltd....Notification by BHP Steel (AIS) Pty Limited under s204 of the Industrial Relations Act 1991.... (19 February 1997) Reckitt Benckiser (Households) Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others [2006] NSWIRComm 41

APPLICANT Mr D Weizman Electrical Trades Union LEGAL REPRESENTATIVES: RESPONDENT Mr S Meehan Roads and Traffic Authority

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Electrical Trades Union of Australia, New South Wales Branch and Roads and Traffic Authority of New South Wales

Notification under section 130 by Electrical Trades Union of Australia, New South Wales Branch of a dispute with Roads and Traffic Authority of New South Wales re proposed introduction of night shift roster

1 The Commission has before it, a dispute notification under section 130 of the Industrial Relations Act 1996 ("the Act"). The dispute notification was lodged by the Electrical Trades Union of Australia, New South Wales Branch ("the Union") against the Roads and Traffic Authority of New South Wales ("the Company"). 2 The dispute notification was lodged on 21 July, 2009. 3 The dispute notification concerns the proposed introduction by the Company of a night shift roster and the conditions of the agreement reached in relation to the 2008 wages and allowances increases. 4 The matter was set down for a compulsory conference on 28 July and a report back on 7 August, 2009. On the latter date, the parties were unable to settle and a Certificate of Attempted Conciliation was issued. 5 At the hearing, the Union was represented by Mr Daniel Weizman, who was assisted by Mr Aaron McKinnon. Mr Weizman called the following witnesses: Mr Bruce Daniel - Traffic Signal Technician Mr Ross Howie - Traffic Signal Trades Assistant Mr Nadeem Nasir - Traffic Signal Technician 6 The Company was represented by Mr S Meehan, barrister, who was assisted by Mr J Wright. The Company called the following witnesses: Mr Stephen Doran - Manager, Industrial Relations and Policy Mr Gilbert Malepa - Traffic Services Manager, Sydney Ms Elizabeth Tosti - General Manager, Occupational Health and Safety 7 The hearing took place on 12 and 13 October, 2009.

BACKGROUND 8 The Company seeks to introduce a night shift roster for two types of employees: (a) Traffic Signal Technicians ("the Technicians") and (b) Traffic Signal Technicians Assistants ("the Technicians Assistants"). 9 The Company relies upon the shift work provisions under the relevant awards:

(a) Crown Employee (Roads and Traffic Authority of New South Wales - Traffic Signals Staff) Award 2008 (the "Technicians Award").

(b) Crown Employee (Roads and Traffic Authority of New South Wales Wages Staff) Award 2008 (the "Technicians Assistants Award"). 10 The Union is a party to both awards. 11 The Company seeks to introduce a night shift arrangement for Monday to Friday only. 12 Currently the Technicians and Technicians Assistants work two types of shift: day shift (6.00am to 2.00pm) and an afternoon shift (2.00pm to 10.00pm). 13 This two shift system is worked Monday to Friday only. 14 The two types of employees cover the 10.00pm to 6.00am Monday to Friday spread of hours (a non-shift arrangement) by being on an on-call roster. Similarly, they cover the weekend spread of hours (a non-shift arrangement) by being on an on-call roster. 15 The Company seeks to introduce a night shift roster for Monday to Friday only. Thus, the on-call roster would still operate for the weekend work. 16 The Union states that the impact of the introduction of a night shift roster, if granted by the Commission, would be twofold: financial disadvantage and work life imbalance. 17 The financial disadvantage would be the loss of the stand-by/on-call daily rate, Monday to Friday. 18 The Technicians receive a $62 per day on-call rate Monday to Friday; and receive a $94 per day on-call rate Saturday and Sunday. Further, and in addition to the on-call rate, the Technicians are paid overtime rates when called out on the job. 19 The Technicians Assistants receive an allowance equal to 2 hours pay per day, Monday to Friday, which equates to $49.82 per day for being on-call, and receive an allowance of 7 hours pay per day, Saturday and Sunday, which equates to $174.37 per day for being on-call. Further, and in addition to the on-call rate, the Technicians Assistants are paid overtime rates when called out on the job. 20 For both types of employees, the introduction of a night shift provision, would see the daily on-call rate and overtime rate (when called out on a job), replaced by a night shift penalty rate of 15%. The night shift would operate for 10.00 pm to 6.00am. 21 The Union said that the introduction of a night shift system would have a detrimental effect on the health and well-being of the employees and adversely impact on their personal - family lifestyles.

For the Union 22 The Union filed a statement of contentions setting out its case for opposing the introduction of a night shift arrangement. 23 Mr Weizman also addressed the Commission in final submissions on his members' objections to the introduction of a night shift arrangement. 24 The Union's case raised the following issues in opposition to the introduction of night shift:

(a) The introduction of night shift per the relevant awards would be of a financial detriment to the employees concerned. The loss of income for the Technicians would range from $10,577.47 to $5,288.74 per annum. The loss of income for the Technicians Assistants would range from $8,245.21 to $4,122.61 per annum.

(b) The introduction of night shift would effect the work-life balance of the employees. Most of the employees are in their fifties and older. Mr Nasir (a Technician) gave evidence about night shift impact on his family (wife and daughter and baby) and his night time studies.

(c) There are safety/well-being issues for the employees as experience has shown that night work is the unsafest time of the day for the employees to be on the job. The Company has not carried out comprehensive assessments on the risks to the employees carrying out night work.

(d) Although both awards have a night shift provision, it would be unreasonable for the Company to now implement that provision given the financial detriment, the work - life balance issues and that the present on-call arrangement has been in operation for a long period of time.

(e) The Union held discussions with the Company about the concept of introducing night shift - but only did so for one of the two types of employees (the Technicians). It would be unfair for the Company to then introduce night shift for the other type of employees (the Technicians Assistants).

(f) The introduction of night shift would be in breach of the no extra claims provision found in both awards. The no extra claims provision states that salaries and conditions for existing employees shall not be reduced merely as a consequence of the coming into operation of either of the awards.

(g) For the foregoing reasons, the Union sought a Direction from the Commission that the Company not implement its proposed night shift roster, per section 136(1)(a) of the Act.

For the Company 25 The Company filed a statement of contentions setting out its case for the introduction of a night shift arrangement. 26 Mr Meehan, barrister, also addressed the Commission in final submissions on the Company's case for the introduction of a night shift arrangement. 27 Mr Meehan raised the following issues in support of the introduction of night shift:

(a) The Company seeks to introduce a night shift roster on a Monday to Friday basis only for two types of employees: Technicians and Technicians Assistants.

(b) The Technicians Award covers Technicians and has a night shift provision. That award is a consent award made in 2008 in proceedings before Walton VP who was informed that salary increases were to be offset by cost savings. The Union agreed then to the reintroduction of night shift as a cost saving.

(c) The predecessor awards to the 2008 award, for Technicians, contain night shift provisions.

(d) Technicians currently perform some night shift work when called out on the job.

(e) The Technicians Assistants Award is a consent award made in 2009 with retrospective operation from July, 2008.

(f) That award permits the introduction of night shift work. The predecessor awards to that award have included night shift provisions.

(g) As to the Union's argument of financial disadvantage, this will result form the discontinuance of the on-call arrangement (plus some overtime) and not from the introduction of night shift, per se.

(h) The introduction of night shift work is an exercise in managerial decision making. There is case law concerning when it is appropriate for the Commission to intervene in the exercise of managerial prerogative. The current matter before the Commission is not one requiring Commission intervention.

(i) When the Commission made these two consent awards, it did so having regard to section 10 of the Act which requires the setting of fair and reasonable conditions of employment. Thus, the Commission recognised that the night shift provision and the 15% shift loading in the two awards was a fair and reasonable provision.

(j) As to the Union's argument of the adverse effect on work - life balance, the Company's proposal will give greater certainty as to the nights upon which the employees will be required to work. Currently there is no certainty because of the on-call arrangement. The Company's proposal only requires employees to be rostered for night shift on 5 weeks per year. Currently, employees may be subject to call-outs in excess of 5 weeks per year.

(k) The Union has not put forward the evidence to support a case for the Commission's intervention into the Company's managerial decision, based on work life balance considerations. As with the current practice, for call-out arrangements, employees may be permitted to swap night shift rosters, if special cases arise.

(l) There is no evidence from the Union that the introduction of night shift work will adversely effect employees' health.

(m) As to safety considerations concerning night shift work, the Company has policies and procedures and resources to deal with this issue.

(n) The Commission should find, for the above reasons, that there is no basis for the intervention by the Commission, in the Company's decision to implement night shift work.

CONSIDERATION 28 The Union has filed a section 130 dispute notification concerning the proposed introduction by the Company of a night shift roster, Monday to Friday, inclusive. 29 The proposed night shift roster would apply to two types of employees: Technicians and Technicians Assistants. The role of these employees is to provide maintenance services for traffic equipment - 24 hours per day, 7 days per week. 30 Currently, the two types of employees work two types of shift: day shift (6.00am to 2.00pm) and an afternoon shift (2.00pm to 10.00pm). 31 There are 20 crews operating in Sydney on weekdays: 16 crews in the morning shift and 4 crews in the afternoon shift. There are 3 crews on-call to perform night work. Generally, each crew comprises a two person crew: one Technician and one Technicians Assistant. 32 The Company proposes to introduce a night shift roster and this will eliminate the current on-call/standby arrangement (and remuneration) that applies to the two types of employees who are on-call. 33 The Union opposes the introduction of a night shift roster on the following bases: (a) the night shift provision is not permitted to be introduced because it would be in conflict with the no extra claims provision contained in the relevant awards; (b) the provision would have a detrimental financial impact on the two types of employees; (c) the provision would have a detrimental impact on the safety/well-being of the employees in the performance of their work at night; and (d) the provision would have a detrimental impact on the employees work-life balance. 34 The Union seeks a Direction from the Commission, pursuant to section 136(1)(a), that the Company not introduce its proposed night shift provision.

The Union seeks that Direction against the background that employee cost savings were required for any wage increase in excess of a cost neutral 2.5% wage increase. The Union's members elected for a 4.0% wage increase and hence employee cost savings were required. 35 The Company opposes the Union's sought after remedy.

No Extra Claims Submission 36 The Union put forward a submission that the proposed introduction of night shift work would be in conflict with the no extra claims provision contained in both awards: Clause 7.3 of the Technicians Award and Clause 9 of the Technicians Assistants Award. The wording of both clauses is the same and is reproduced below: The parties agree that during the term of this award up until 30 June 2011, that there will be no extra claims, claims for improved conditions of employment, or demands made in respect of the staff covered under this Award, and further, that no proceedings, claims or demands concerning wages or conditions of employment in respect of those staff will be instituted before the Commission or any other arbitral tribunal. However, this does not prevent the parties from instigating any proceedings with respect to the interpretation, application or enforcement of existing award provisions contained in this Award. (emphasis added) 37 The Union's submission that the proposed introduction of night shift work is not permitted, is based, in particular, on the highlighted section of the No Extra Claims clauses, and is rejected by the Commission. 38 The Company has not initiated "…proceedings, claims or demands….before the Commission….", in order to pursue the introduction of night shift work. 39 The Company is drawing upon an existing provision pertaining to night shift work and which is found in both awards. 40 Most importantly, the Company is reintroducing the working of night shift. This was the agreed position of the parties when making the 2008 Technicians Award before Walton VP. The reintroduction of the actual working of night shift (a then existing award provision) in exchange for a wage increase, was part of the consent deal by which the Union obtained a wage increase for its members, known as Technicians. For the Union's members to now oppose its reintroduction is contrary to equity and good conscience. 41 Although, there was only an express agreement arising out of the 2008 wage increase for the Technicians, the Company is not prohibited from re-introducing night shift for the Technicians Assistants. This is so, as the Technicians Assistants benefited from the same wage negotiations of a 4.0% wage increase on the understanding that the Company could reintroduce night shift work.

Financial Detriment Submission 42 The Union provided uncontested evidence of the detrimental impact on the remuneration of the two types of employees, if night shift work was introduced. The loss of income for the Technicians would range from $10,577.47 to $5,288.74 per annum.

The loss of income for the Technicians Assistants would range from $8,245.21 to $4,122.61 per annum. 43 The foregoing figures indicate, so it seems to the Commission, the reason for the Company deciding to cease the on-call arrangement. Evidence for that view comes from the witness statement of Mr Malepa. He said that an analysis of fault response and maintenance statistics for traffic signals equipment revealed that, on average from 2006 to 2009, call-outs accounted for approximately 3.5% of tasks but costs exceeded the cost of the afternoon shift. The afternoon shift accounted for approximately 35% of tasks; and the morning shift for approximately 60% of tasks. (Ex 5 - para 31) 44 The Company says that the loss of income is not due to the introduction of night shift but rather the cessation of the on-call rate (and overtime rate where required). 45 It seems to the Commission that that distinction would give cold comfort to the employees for such a loss of remuneration. 46 At the end of the day, however, there was an agreement between the Union and the Company to re-introduce night shift work as part of the 2008 wage-cost offset negotiations. The Union and its members (including the Technicians Assistants) have been on notice since then of the impending re-introduction of night shift and its accompanying disadvantages.

Safety/Well-Being Detriment Submission 47 The Union submitted that the introduction of night shift work, would have an adverse impact, with respect to the safety/well-being of the employees. 48 The Union's witnesses gave evidence in support of this submission.

Mr Daniel deposed that night shift work would have crews working "in the riskier areas of Sydney where even ambulance crews don't go without police escort. We will be required to work outside our regular operational area and without local knowledge of these risks". (Ex 1 - para 28) Mr Nadir made the same point. (Ex 3 - para 27) 49 The Commission was not provided with specific evidence of night time incidents where a crew(s) had been subject to safety issues. Mr Daniel said there were police reports he had instigated arising out of safety to his person on call-outs. But the Commission was not provided with documentary evidence in support of this claim. (Tr 12/10/09 - p19, line 35 to line 46) 50 The witness statement of Mr Malepa addressed this issue of safety for night shift work. He deposed that the Company's Occupational Health and Safety Facilitator (Helen Swan) met with two crews in April, 2009, with regard to identifying hazards that needed to be considered in relation to the proposed night shift work. Ms Swan developed a risk assessment documentation for the night shift proposal. However, in May 2009, Ms Swan attempted to discuss this risk assessment documentation with the crews but they refused to participate in discussions. (Ex 5 - paras 49 to 52) 51 Given the foregoing, the Commission can not give weight to this issue of safety raised by the Union. Not only was no evidence provided to the Commission of night time safety incidents, but the crews knocked back the opportunity to air their safety concerns with the Company's Facilitator. 52 Further to the above, the witness statement of Ms Elizabeth Tosti, General Manager Occupational Health and Safety, set out the Company's policies and procedures on providing safe systems of work and of her giving guidance on occupational, health and safety issues to line management. (Ex 6) 53 Ms Tosti deposed that the Company would not implement work arrangements that would compromise the safety of staff. She also stated that it was her understanding that the night shift proposal would not require the crews working in any new or different locations to those under the current on-call arrangements operating at night. (para 26)

Work-Life Balance 54 The Union's witnesses deposed about the impact of night shift work on their work-life balance. 55 Mr Daniel deposed he relied upon the overtime and call-out penalties in order to maintain his lifestyle and family commitments.

Mr Howie stated the same as Mr Daniel and added that his work/family balance will suffer and his lifestyle and relationships will be negatively affected.

Mr Nasir gave evidence that night shift would impact on his family (wife-daughter-and baby) and his night time studies. 56 The Union relied upon a decision of Sams DP to support this work-life balance submission against the proposed introduction of night shift: Reckitt Benckiser (Household) Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others [2006] NSWIRComm 41 ("Benckiser"). In that case, Sams DP rejected an application by the employer to introduce afternoon shift work. In doing so, Sams DP took into account the impact of that proposed new system of work on the personal and family aspects of the employees concerned. 57 The Commission concurs with the view of the Company that there is an important distinction between Benckiser's case and the facts before myself. In Benckiser's case, the relevant award had no provision for the working of afternoon shift. The employer made an application to the Commission (Sams DP) to have an award made that provided for the introduction of afternoon shift and hence gave the employer the right, with seven day's notice, to transfer certain employees from day work to afternoon shiftwork.

By contrast, in the case before myself, there are two awards which already contain a night shift provision. 58 The Commission takes the view that, although the night shift provision exists in the two awards, the relevant question is whether the work to be performed by the employee(s) is unfair or unreasonable or unsafe: Iron And Steel Works Employees (Australian Iron And Steel Pty Ltd - Port Kembla) Award, BHP Steel (AIS) Pty Ltd - ….Notification by BHP Steel (AIS) Pty Limited under section 204 of the Industrial Relations Act 1991….Hungerford J, (19 February, 1997) 59 The Company submitted that the matters raised by the witnesses about work-life balance are not matters that fall - at least squarely, if at all, within the concepts of unfair, unreasonable or unsafe. The case law decisions on these concepts place the focus of any tribunal's consideration not so much on work-life balance but on whether the work to be performed imposes an unreasonable burden or imposes some safety issue. So the focus is on the performance of the work and what it entails, as distinct from whether performing a shift, for example, means an employee might miss a lecture or something of that sort. The focus is on whether requiring an employee(s) to perform night work under the shift arrangements proposed would cast an unreasonable burden on that employee(s) by reference to things like the workload, the nature of the work, safety issues and the like. (Tr 13/10/09 - p30, line 6 to 19)

60 The Commission understands the concerns that the witnesses have for the impact that night shift work will have on their current work-life balance. However, the Commission was not provided with the evidence that would move the Commission to question the merits of introducing night shift work, on that issue. 61 The only concrete concern raised in opposition was by Mr Nasir who advised of his attendance at TAFE at night time and the impact on his family in respect of his wife being able to find a job and the raising of their children. 62 The Company pointed out that Mr Nasir's attendance at TAFE is for the timeframe 5.00pm to 9.30pm but that night shift has a later start time of 10.00pm and so the TAFE attendance should not be an issue.

In any event, if there was an issue, Mr Nasir could seek to swap his night shift work with other colleagues. On his own evidence, he currently made requests to swap call-outs with other colleagues.

Mr Nasir also raised his concern about night shift work impact on his family, as his wife was looking to re-enter the workforce but this is an issue some two years down the track and not therefore of immediate consideration for the Company or indeed this Commission. 63 Generally speaking as to all employees effected by the Company's proposal, it has to be noted that there is more certainty about the requirement to work under the Company's proposal, than now exists - in respect of the impact on work-life balance. Mr Malepa deposed, and it was not disputed, that under the Company's proposal the staff would be required to work night shift for about 5 weeks (25 days) each year compared to the current on call weekdays arrangement of 6 weeks (30 days) to 10 weeks (50 days). (Ex 5 - para 42) There was evidence in the proceedings of about 3 actual call outs per week. 64 Thus, the employees will have certainty as to what nights they will be required to work - as opposed to being on call out and not knowing if that telephone call will come through to their home advising of work to be done. That certainty allows for better organisation of personal affairs (work-life balance) on the home front. This includes, for example, employees knowing that they can drink alcohol at home or elsewhere when not rostered to work night shift. Currently, the employees on the call-out roster, have an alcohol consumption restriction, because they do not know if they will be called out or not.

CONCLUSION 65 The Commission has before it, a section 130 dispute notification by the Union and a specific remedial request that the Commission issue a Direction, pursuant to section 131(1)(a), that the Company not introduce its proposed night shift provision. 66 The Union put forward four grounds in support of that remedial request: (a) the night shift provision is not permitted to be introduced because it would be in conflict with the no extra claims provision contained in the relevant awards; (b) the provision would have a detrimental financial impact on the two types of employees; (c) the provision would have a detrimental impact on the safety/well-being of the employees in the performance of their work at night; and (d) the provision would have a detrimental impact on the employees work-life balance. 67 As to ground (a), No Extra Claims Submission, the Commission rejected this submission, given that the Union had agreed to the re-introduction of the working of night shift as part of the offsets required for the 2008 wage increase. The employees classified as Technicians were directly advised of this offset requirement and agreed to the re-introduction of night shift work. The other class of employees, Technicians Assistants, were not so advised of this offset requirement. However, two points need to be made. Firstly, it was implicit in the offset deal for the Technicians that their crew co-workers, the Technicians Assistants, would be caught by this offset deal requirement. That is, the Technicians and Technicians Assistants work as a crew on the job and the Union would then have knowledge that the offset deal for the Technicians (the working of night shift), would also apply to the Technicians Assistants. Secondly, the working of night shift is a provision that is found in the relevant award and one that the Company could seek to implement for the Technicians Assistants.

68 As to ground (b), Financial Detriment Submission, this was not an argument per se against the introduction of night shift, given the consent of the Technicians and the implicit consent of the Technicians Assistants for the introduction of night shift. The loss of significant income is regrettable but that was an outcome arising out of the 2008 wages - offset deal. 69 As to ground (c), Safety/Well-Being Detriment Submission, the Commission was really only provided with statements of concern rather than specific night time incidents about safety issues. The telling point for the Commission rejecting this ground, is that the Company provided undisputed evidence that the crews knocked back the opportunity to air their safety concerns by no longer participating in the risk assessment procedure being undertaken by Ms Swan. 70 As to ground (d), Work-Life Balance, the Commission was provided with statements of concern about the impact of the proposed introduction of night shift work on work-life balance. The more concrete evidence given to the Commission about the impact, was that provided by Mr Nasir. He had a concern about its impact on his TAFE studies but these night time classes concluded before the start of any night shift work introduction. Further, he gave evidence of his ability to sometimes swap shifts in order to avoid clashes between his work and personal circumstances. He also raised his concern about night shift work impact on his family, as his wife was looking to re-enter the workforce but this is an issue some two years down the track and not therefore of immediate consideration for the Company or indeed this Commission. 71 Having considered all of the grounds of objection by the Union, the Commission finds that the Union has not made out a case warranting the Commission's intervention into the Company's proposal to re-introduce night shift work. 72 There was another potential issue raised during the proceedings by one or more witnesses called by the Union. This went to a concern that the night shift work would not be restricted to emergency work only, but that the Company would have the night shift crews also carrying out maintenance work. The Commission notes that Mr Malepa gave evidence under cross-examination from the Union, that "the night crew initially would not be required to do any maintenance tasks, yes. Initially that's the way I see it". And later he said, "I would say to you there is quite some capacity for us to do some other work, but initially we're not planning to do that, because we want to ascertain all the factors that are involved, because we haven't run a night shift for a number of years". (Tr 13/10/09 - p6, line 47 to p7, line 32) 73 For the reasons set out above. the Union has not made out its case for the Commission to intervene in the Company's decision to reintroduce the working of night shift.

Accordingly, the Commission now dismisses matter number IRC 1053 of 2009 and closes the file.

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