Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28
(1987) 163 CLR 117
Source
Original judgment source is linked above.
Catchwords
(1959) 101 CLR 298Re CramEx parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28(1987) 163 CLR 117BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division (Matter IRC 2208 of 1994, 7 November 1994)
Judgment (6 paragraphs)
[1]
DECISION
The New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the USU), on 28 January 2015, filed a notification advising of a dispute with Riverina Water County Council (the Respondent). The USU sought the assistance of the Commission in resolving the following:
1. Plant Operators employed at Council, participate in a 7 day, on call rostering system, which is fixed, predictable and set in advance;
2. Those participating in the on call roster are required to do a hand over at the end of their on call roster, this occurs on a Monday;
3. The hand over day, Mondays, has 2 operators rostered, both carrying out various scheduled work;
4. Where an employee is required to be on call on a public holiday, those employees receive an additional days leave (clause 26 (v)); and
5. Council altered the on call roster, to the effect that on a public holiday Monday, no hand over would occur, resulting in our members losing an additional day's leave.
Conciliation proceedings held on six separate occasions failed to resolve the dispute. A Certificate of Attempted Conciliation was issued on 13 July 2015 and directions were issued in relation to arbitration of the claim.
The matter was listed for hearing on 6 and 7 October 2015 and 9 November 2015 during which time evidence was received from the following:
USU Witnesses
Robert McIntyre - Job Delegate/Filtration Plant Operator
Gary Watson - Filtration Plant Operator
Phillip McAlister - Filtration Plant Operator
Respondent's Witnesses
Graeme Haley - General Manager
Bede Spannagle - Director of Engineering
Jason Ip - Manager, Operations
Peter Outtrim - Operations Superintendent
Statements filed by Messrs Haley and Spannagle were admitted without them being available for cross-examination as the requisite notice had not been provided by the USU in relation to its intention to cross-examine those witnesses.
[2]
Overview
Riverina Water County Council is a special purpose council pursuant to the Local Government Act 1993 and has the specific purpose of providing a comprehensive service in location, treatment, storage, movement and delivery of drinking quality water to some 70,000 people across an area of approximately 15,500 square kilometres. It has 62 reservoirs, 26 bore stations, 70 pumping stations and 5 filtration stations.
Employment at Council is governed by the Riverina Water Council Enterprise Award 2013. The Union parties to that Award are the USU, the Electrical Trades Union and the Association of Professional Engineers, Scientists and Managers Australia.
The dispute relates to five members of the USU engaged as Water Treatment Plant (WTP) Operators who are required to be on call on a rotating roster system. The day shift Operator who is on call is on a roster commencing at 4 pm on Monday for 7 days through to 7 am the following Monday.
The Council's General Manager, Graeme Haley, in or around 2013, flagged to Councils' employees the idea of moving the pay cycle (from a Wednesday to Tuesday pay period) to a Monday to Sunday pay period with the resultant effect of a change to the on call roster in line with the pay periods. Wages are paid fortnightly. The decision was made given the introduction of a new financial system which would accommodate a system of activity based costing Mr Bede Spannagle, Director of Engineering, wanted to implement. The activity based costing required a new timesheet to be introduced to improve budgeting and costs.
Council reasoned that, as pays are paid into individual employees' bank accounts on Thursdays, there was insufficient time under the Wednesday-Tuesday cycle to allow for IT related banking issues or errors to be fixed up prior to such payments being made.
More formal consultations commenced in or around March 2014 with a view for implementation to occur from the first full pay period commencing on or after 1 July 2014.
Council requires WTP Operators to participate in a roster to be on call for after-hours calls and emergencies. The on-call is arranged on a roster system comprising 5 WTP Operators.
Prior to 1 July 2014, the change-over occurred on a Wednesday in line with the pay cycle. The WTP duty operator commenced his shift on Wednesday morning, whilst working a 7.6 hour day - 10-day fortnight.
The on call roster cycle was synchronized with the general shift roster on a weekly basis with respect to the pay period. On occasions, if the on call operator could not work on call for 1-2 nights, another operator would be substituted and paid the daily on call allowance taking into account family commitments, sickness, leave, etc. The arrangement did not affect the weekly on call entitlements of the assigned on call operator if his unavailability did not exceed more than 2 nights within a roster on call week.
The Operator on call roster was synchronised to be the same person as that on the Duty Operator roster.
Post 1 July 2014, the on-call roster was also changed to be in line with the pay period.
On call attracts a payment of $243.20 for the 7 days with a minimum payment of 1 hour at double time for each call out and 2 hours at double time if the employee is required to leave his residence. A changeover occurs at the end of the 7 days on call. The vehicle, computer and phone and all relevant information are passed on to the next employee who becomes the duty operator on call for the following 7 days.
Unlike the other workgroups, the WTP Operators are the only workgroup who insist on payment of one hour overtime for on call operator handover to suit their convenience.
On 25 June 2014, Peter Outtrim, Operations Superintendent, forwarded an email to Jason Ip, Manager-Operations, advising of the matters that had been discussed with the WTP Operators at their meeting the day before:
Introduce draft 2 shift roster for shoulder/summer period 2014/2015 reflecting change in pay week.
All agreed shift roster ok with 2 operators on RDO Thu/Fri each week.
Discussion - Aundre Haggar said only one operator available to take annual leave at a time. Rob McIntyre said that this would be the same as previous summers.
Discussion - Jason Ip - Operators shift change over during Monday public holidays. RWCC would be against changeover on public holiday Monday with 2 operators long weekend disturbed and RWWW having to pay double time rates for 2 and 1 day's time in lieu. Suggest on-call operator continue for extra night and be paid daily rate for that day. Operator commencing shift will be on call for 6 days not 7 still receive full on-call allowance.
Changeover can be done on Tuesday or Sunday - General reluctance from group to do this. Rob McIntyre - Will speak with Rudi Oppitz regarding this.
Council, proud of the fact that it considers itself to be a family friendly and empathetic employer who considers personal circumstances of its employees as much as possible, was concerned that by having on call changeover arrangements on a public holiday Monday, it would be affecting the enjoyment of a long weekend of two families as opposed to one. In addition, the Respondent was concerned that the rejection of the proposed on-call roster would result in a cost impost which was contrary to the productivity and flexibility agreement reached between the parties that was the basis for the wage and superannuation increases negotiated in the last round of award negotiations. The Respondent suggested a few options for dealing with the issue but none were acceptable to the WTP Operators.
The USU delegate, Mr Robert McIntyre, emailed the General Manager on 30 June 2014 raising concerns about any changes to the on-call roster and stated that the Operators wanted the changeover to be on the same day all year round, regardless of public holidays. It was later clarified that if the changeover was on a Tuesday and a public holiday had fallen on the previous Monday then the WTP Operator would miss out on penalty rates. Mr McIntyre stated that the Operators had not appreciated the effect of the change in the duty roster on their entitlements until a public holiday fell on a Monday and the Respondent wanted the changeover to occur on the day following such public holiday. Mr McIntyre explained that the new award approved in 2013 provided for an extra day to be added to employee's leave (previously half a day) if they were on call on a public holiday.
If the USU is successful in its application, two employees (as opposed to one) would receive the benefits of Clause 26 (v) of the Award which provides that employees who are on-call on a public holiday shall receive a day off in addition to the public holiday rates and on-call allowances. Mr McIntyre argued that if the Respondent was successful, the rosters would be inconsistent and unfair in that some WTP Operators would be on call 6 days or 7 days or 8 days and therefore those on 6 days on call would be financially worse off as they will not have the opportunity to receive call outs on the 7th day. For their part, those forced to work 8 days may suffer from fatigue particularly if they received many calls in the previous 7 days.
The Respondent emailed the delegate with its response on 1 July 2014:
First, as indicated by the attached document issued last week, I wish to minimise the number of staff affected over a "long week end" with respect to their families and quality of life issues. Your suggestion unnecessarily impacts two families rather than one.
Secondly, it's expected that fairness and equity issues raised will be managed by an on-call roster over time, as each on-call person at some stage will be working an additional day (or vice versa). This is standard process in industries and the philosophy is already used at Riverina Water with respect to Christmas/New Year public holidays and other public holidays as everyone over time will experience the inconvenience.
Lastly, by having two on call persons working on a public holiday will result in additional costs incurred by Council which contradicts productivity discussions of which our wage and superannuation increases are based.
Again, the frequency of these incidences will only apply with (sic) there's a Monday public holiday.
the frequency of Monday public holidays are small and spread out throughout the year;
the period of on call work on a public holiday is very limited as there is/are existing duty operator(s) working on the public holiday from 7 am to 2.30 pm (single shift) or 7 am to 10 pm (double shift); and
there are already systems in place that if an employee is fatigued due to excessive on call duties, the supervisor, if not already aware of the excessive on call workload, can be notified so that alternate arrangements can be made.
The Respondent pointed out that the other groups within Council had been satisfied with the arrangements. However, given day care arrangements and other issues, agreement was reached that the new rosters would not apply until end of June/early July 2016.
Mr Spannagle gave evidence that the Rural Operators and Urban Works Team cited family reasons as to why the change in their on call roster would not work for them. With the agreement of their supervisors, no on call changeover occurs on a public holiday. Nevertheless, their on call roster will align with the pay week by June 2016. The Rural Works Team was working a Thursday to Wednesday on call roster but talks were continuing with them on the understanding that the on call roster will align with the pay week also by June 2016.
Finally, the Respondent submitted that the Commission should not intervene as the dispute related to an operational matter which was beyond the jurisdiction of the Commission: Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117.
[3]
Submissions
The submissions made by Mr Cole on behalf of the USU may be summarised as follows:
The 2013 consent award was based on the continuity of conditions current at that time remaining. The proposal by the Respondent represents a variation to that agreement.
Custom and practice has been that the changeover has occurred on a Monday - whether it was a public holiday or a normal working day and that practice should be retained.
The Respondent's proposal for change in the on call roster will result in a reduction in income of the employees affected under the guise of employer savings.
The Operators have already achieved the productivity and efficiency gains sought by the Respondent by agreeing to unpaid breaks and drawing the Respondent's attention to further savings in electricity and chemical charges.
The Respondent's proposal will still affect two families - those of the operator working on the day and the on call person and their work/life balance.
The Council cannot assure employees that there will be a fair and equitable distribution of the public holiday payment by way of rostering of the 5 WTP Operators as it will take seven years for each to receive payment for working on a Monday public holiday.
The evidence in relation to the Rural Operators should not be given any weight given that their circumstances are completely different to the WTP Operators.
The Respondent has not provided any evidence of costs savings.
The submissions made by Ms O'Neill on behalf of the Respondent may be summarised as follows:
Clause 4 of the consent award provides that the objectives of the award include the achievement of productivity and efficiency gains to offset the high pay increases to be applied during the life of the award.
The Council is seeking that where the on call changeover falls on a Monday, and that Monday is a public holiday, then the changeover should occur on the next day.
Having two people on on call changeover on a public holiday Monday would not be in the spirit of the objectives of the Award.
The Commission should draw a negative inference in relation to the USU's failure to call evidence from Messrs Kerslake, Hagar and Prowse - an inference that their evidence would have been unfavourable to the USU: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
The USU has failed to discharge the onus of proof which falls on it to demonstrate that the Respondent erred regarding its ability to change the on call roster when a public holiday falls on a Monday. The USU has also failed to discharge the onus of proof which falls on it to demonstrate that the consultation process was not conducted in accordance with the award requirements.
The Commission should not intervene in the matter as the effect of that would be to substantially interfere with management's autonomy as well as to contradict the objectives agreed in the award: per Hungerford J in BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division (Matter IRC 2208 of 1994, 7 November 1994).
[4]
Consideration
His honour, Boland J, then President of the Industrial Commission of NSW, in 2012, approved a 3-year consent award which includes, as part of its objectives, productivity and efficiency gains to offset the large annual pay increases agreed between the parties over the life of that consent award - 4%, 3.5% and 3.5% respectively plus 15% increase in superannuation contributions.
Clause 4, Objectives of the said award provides what appears to be an on-going commitment by the union parties to the award over the life of that award:
(i) The agreed objectives of this Award are:
(a) To continue co-operation with Riverina Water to achieve its management plan objectives and strategies and improve productivity by taking action to reduce water wastage and ensuring pump power usage efficiency and early detection and repair methods, ensuring customer relations strategies and level of service strategies are met by delivering high quality attention and action in service to customers; taking action to reduce operating and maintenance costs;being responsible in environmental matters. … [emphasis added]
The Union's own witnesses agreed, during cross-examination, that -
the agreed objectives of the consent award include reducing operating and maintenance costs;
employee costs were operating costs; and
having two people on an on call changeover on a public holiday Monday is not in line with the objectives of the Award.
Clause 26, On Call, of the award relevantly provides:
(i) An employee is on call if Riverina Water requires the employee to be available, outside the employee's usual ordinary hours, for emergency and/or breakdown work.
The Union's witnesses confirmed, during cross-examination that:
it is Council's role to determine the need for on call;
although it has been the practice (since 2000) to be on call for seven days, there is no award requirement to that effect; and
there is no award provision preventing Council from rostering employees to be on call for 8 or 9 days straight, albeit such employee is able to indicate his unavailability.
The argument by the USU rested squarely on custom and practice at the workplace.
Other on call work teams transitioned their on call rosters to be in sync with pay periods by 30 June 2016.
I accept that the rosters of the duty WTP Operator and On Call Operator are directly related to each other. I also accept that it would be very impractical to separate the two rosters where the duty operator roster is synchronized with Monday-Sunday and the On-Call Roster remains Wednesday-Tuesday.
I further accept that it would be even more impractical to have both duty and on call rosters Wednesday-Tuesday with respect to the Monday-Sunday pay periods, considering rostered days off and rosters spanning over two pay periods, additional processing and checking of timesheets.
The Respondent relied on the judgement in BHP Steel. I concur and adopt the views expressed by Hungerford J in relation to the role of the Commission:
The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of long-standing and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice, or where safety is involved…
The evidence before the Commission clearly demonstrates that there has been significant consultation in relation to both the change in the pay period as well as the change in the on call roster. In addition, there was a significant amount of time spent in the conciliation proceedings regarding this matter. During both private conferences between the parties and the conciliation proceedings, a number of options were put forward in an attempt to settle the claim amicably between the parties. What is obvious is that the members of the union did not appreciate the effect of the change in the duty on call roster until a public holiday fell due on a changeover date.
I accept the submission of Mr Ip that the WTP Operators are not financially worse off given:
that their weekly on call allowances for incoming and outgoing on call operators are assured;
the outgoing operator who elects to work on the 8th day will actually financially benefit by receiving an additional daily on call entitlement, at an additional cost to Council;
the incoming on call operator is only on call for 6 days instead of 7, yet he will still receive the same weekly on call entitlements;
the "Law of Averages" will apply to those on call operators who feel that they have missed out on on call opportunities by working on call 6 days; and
WTP Operators, like any other staff members, can submit leave applications for consideration at any time and they are generally approved if it can be demonstrated that Council's operational requirements can still be met.
The Award contemplates, in Clause 4, Objectives, that the union parties would co-operate with Council to take action to reduce operating costs.
The Award, as has been conceded, provides that it is Council's role to determine the need for on call. The Award does stipulate a limit on the period of time an employee can be on call.
The Council has, as the evidence shows, consulted extensively on the matter in dispute.
I am satisfied that the consent Award provides sufficient safeguards in relation to the requirement to be on call. There are provisions in the Award safeguarding against employees not having an eight hour break; provisions for the payment of overtime when employees are required to work during on call; and payment for an extra day's leave when required to be on call on a public holiday. Apart from the need to synchronize the on call roster with the duty roster and to manage pay enquiries, the effect of the change is merely that two WTP employees would not receive payment for the same public holiday.
Having considered all of the above, I can see no basis for substantial interference with the autonomy of Council to efficiently manage its operations in relation to the on call duty roster.
[5]
Decision
For the reasons set out above, the Union has not made out its case for the Commission to intervene in the Council's decision to change the on call duty roster. Accordingly, Matter No. 44487 of 2016 is hereby dismissed.
[6]
COMMISSIONER
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: 31 October 2016
The pay period changes came into effect on 14 July 2014. The dispute in relation to the on call duty roster remained unresolved. In early September 2014, rostering arrangements were attempted to be put in place for the October long weekend. An email was forwarded to the WTP Operators to be rostered for that weekend instructing them that the changeover for the on-call operators was to occur on Tuesday, 7 October 2014 rather than the public holiday Monday 6 October. In other words, Mr McIntyre would be required to do an additional day of on call and Mr Aundre Haggar would commence his on call roster on the Tuesday. Mr McIntyre advised of his inability to work that weekend. The Supervisor ended up providing that on-call service for the Sunday afternoon to Monday morning and the WTP Operator, who was rostered on for his regular shift, undertook the on call for Monday night. (Similar arrangements were later made for the Australia Day long weekend in January 2015.)
The WTP Operators who were on call would receive the weekly on call allowance. As they would not be required to be on call on the public holiday if one fell on the Monday, they would not have an entitlement for payment for an additional day. The Council was concerned that having the on call roster changeover on a Monday when a public holiday fell would result in two families being disrupted rather than just one. In addition, it would increase costs and reduce productivity by having two operators undertaking the changeover on a public holiday Monday.
The Respondent received correspondence from the USU, dated 25 September 2014, seeking that Council withdraw any proposal that on call rosters be worked beyond the present 7-day period.
The Council considered that being on call was not an entitlement. Rather it was a requirement by Council that WTP Operators be on call. It was therefore Council's prerogative to determine, within the award parameters, when, how and who shall be on call.
The Council had proposed four options which were rejected by the WTP Operators. The Council stipulated that any settlement needed to have the following ingredients:
1. There was to be as little disruption to employees' families over public holidays as possible; and
2. There was to be one person rostered on call on a public holiday even though there would be a small additional cost to Council whereby it would have to pay one employee an extra one day of on-call allowance while the other would not suffer a reduction in on-call allowance).
There followed discussions between the USU and Council during which no agreement could be reached. The USU contended that the Council was in breach of the Award.
The dispute is in relation to the on call changeover on public holidays. Basically the USU and its members want both operators to receive the provisions of clause 26 (v) for being on call on a public holiday. Council wants to remain with having the changeover on a Tuesday following a public holiday Monday, given that it would be less disruptive for less families and that it would maintain productivity improvements in exchange for which it granted award increases when the award was negotiated in 2012.
The USU contended that the Respondent's intention to change the roster would financially disadvantage affected members by taking away their opportunity to gain an extra day of leave whenever the changeover between rostered staff occurs on a public holiday. The Operators argued that they would miss out on penalty rates associated with the shift if not required to work on the public holiday to do changeover.
The USU also contended that the change in rostering arrangements would cause difficulties for members in planning their work/life balance because some will be required on call for eight days and others for six days.
Finally, the USU contended that the planned changes to the roster would result in fatigue problems.
The USU pointed out that the other groups on call within Council (the Depot staff, Rural Operators and the Rural Gang) have been allowed to remain on their current call rosters - at least until the next round of award negotiations are completed.
The Respondent contended that the Award was ratified by his honour, Boland J, as a consent award.
The Respondent pointed out that the said Award includes as part of its objectives productivity and efficiency gains to offset the large pay increases agreed between the parties as part of that consent award - 4%, 3.5% and 3.5% increase in wages over the 3-year life of the award plus 15% increase in superannuation contributions.
The change in operational requirements would allow Council to utilise ratepayer's money more efficiently.
The Respondent argued that the Award allows for flexibility for on call rostering - Clause 8, Workplace Change and Redundancy, outlines the provisions required for Council to implement workplace changes; Clause 26 (i) and 26 (iii) allows sufficient flexibility with respect to on call rosters and Appendix C allows flexibility in relation to daily and weekly on call duties. The award does not limit on call arrangements to consist only as a fixed 7-day roster.
It was pointed out by Mr Ip that the apparent loss of opportunity of receiving call out if an operator only works 6 on call days is countered by the other operator's increase of opportunity by the other operator working 8 days on call.
The Respondent denied that its intention to vary the roster was in breach of the award which, on the contrary, allowed for the on call roster to be changed.
The Respondent argued that there would be minimal risk of additional fatigue for an operator to work the 8th on call day given that -