Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Traffic Authority of New South Wales

Industrial Relations Commission (NSW)|2011-04-14

Simon Meehan (respondent) File Number(s): IRC 334 and 1360 of 2010

THE APPLICATION 1An application has been lodged for and on behalf of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales seeking a variation to the Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff) Award. The application seeks to insert in the RTA Salaried Officers Award new provisions in Clause 10D, Short Loading for Certain Ordinary Hours (with consequent amendments), viz: "(5) Where in any period of relief (Monday to Saturday inclusive) an employee in a motor registry relieves in a higher graded position for one day or more and performs the whole of the duties of this position, they shall be paid for the full period of relief the minimum salary of the higher graded position on a daily basis. (6) Where in any one period of relief an employee in a motor registry (Monday to Saturday inclusive) relieves in a higher graded position for one working day or more and does not perform the whole of the duties of such employee in the higher graded position, they shall be paid that proportion of the allowance referred to in subclause (5) that the duties performed and responsibilities assumed bear to the whole of the duties and responsibilities of that position and prior to entering on relief shall be advised of the allowance to be paid and the basis for its assessment. (7) For the avoidance of doubt where another employee performs work at a motor registry (Monday to Saturday inclusive) and is in charge of the registry in the absence of the Customer Service Centre Manager (or equivalent position), they shall be paid for that shift the minimum salary of the Customer Service Centre Manager position." 2There is some confusion in my mind whether the Salaries Staff Award is the appropriate vehicle to provide for the PSA claim. As I will outline later in this preliminary decision, the conditions of employment of RTA salaried staff is not confined to the Salaries Award alone.

BACKGROUND 3There is some history to this matter before the Commission. On Monday, 3 May, 2010 the PSA had lodged a notification of an industrial dispute with the RTA under s.130 of the Industrial Relations Act 1996. The dispute at that time concerned the conditions under which customer service centre managers [CSO's] were engaged. In particular, at issue was the conditions under which staff worked on Saturdays. 4That s.130 matter was allocated to Ritchie C who on Thursday, 20 May, 2010 and Thursday, 3 June, 2010 attempted unsuccessfully to settle the dispute with conciliation and issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner, to permit the matter to proceed to arbitration. Directions were also made by Ritchie C for the arbitration of the matter but the PSA made an application under s.173 for the matter to be arbitrated before another member of the Commission. The file was allocated to me for that arbitration. 5I set it down for a mention and programming on Friday, 18 June, 2010, Friday, 25 June, 2010 and Wednesday, 25 August, 2010 to accommodate dates for hearing within the framework of current centralised listing. The hearing was ultimately scheduled for Friday, 12 November, 2010 and Friday, 19 November, 2010. However, on Tuesday, 9 November, 2010 solicitors representing the PSA wrote to inform me that it proposed to no longer proceed with the original claim. It was its intention to proceed to seek the variation of the RTA Salaried Officers Award in those S.130 proceedings. 6I was not convinced that what was now being sought would fall within the ambit of the s.130 proceedings already before me. Whilst the PSA initially argued otherwise, it subsequently chose to lodge the current application. It nevertheless sought to preserve the original s.130 notification and I have consequently heard both matters together. 7I set the s.130 notification and the PSA application to vary the RTA Salaried Officers Award for mention and programming on Thursday, 25 November, 2010, Thursday, 16 December, 2010 and Friday, 4 February, 2011. On Monday, 14 January, 2011 the RTA filed a notice of motion asserting that in the claim now before the Commission the PSA was contravening the "no extra claims" commitment made by the employees in compliance with the current wage fixation principles, as confirmed in the decision of the Full Bench of the Commission (Boland J - President, Walton J - Vice President, Harrison and Grayson DPP and Tabbaa C) on Thursday, 17 February, 2011 in the 2010 State Wage Case No.2 [2011] NSWIRComm 29. 8Mr Meehan , representing the RTA, sought in the proceedings before me on Friday, 4 February, 2011 that the RTA notice of motion be considered as a threshold issue in a preliminary hearing, ie whether the claim now mounted by the PSA on behalf of the CSO's breached the "no extra claims" commitment made on behalf of the RTA salaried staff. Mr Gibian , representing the PSA in the proceedings, requested that the issue proceed to a substantive hearing to consider all issues in dispute, including any issues arising out of the "no extra claims" commitment. Nevertheless, I set the matter down for a preliminary hearing on that notice of motion on Thursday, 14 April, 2011. I also set aside three days for the substantive hearing of the matter should the matter proceed beyond this preliminary hearing - on Wednesday, 11 May, 2011, Thursday, 12 May, 2011 and Friday, 20 May, 2011. 9In those preliminary proceedings on Thursday, 14 April, 2011 the submissions which Mr Meehan and Mr Gibian gave relied to a limited extent on written statements that had been provided essentially for the substantive hearing but no witness was required for cross-examination at this preliminary stage. Mr Meehan relied in that respect on the written statement provided by Ms Cinda Viranna, the acting manager of industrial relations and policy of the RTA. Mr Gibian relied principally on the written statement provided by Mr Evan Cole, an industrial officer of the PSA.

THE "NO EXTRA CLAIMS" COMMITMENT 10Confusingly, there are, in fact two current consent State awards covering the RTA salaried staff which are to be read concurrently, viz: (i) the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award which was reviewed by Ritchie C pursuant to s.19 on Monday, 3 March, 2008 and which remains in force until it is rescinded (which has not happened) and, despite its title, appears to be confined currently to deal with conditions of employment issues - and which I will refer to in this preliminary hearing as the Conditions Award; and (ii) the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award which was made by the Full Bench of the Commission (Walton J - Vice President, Schmidt J, Sams DP and McLeay and Murphy CC) on Thursday, 2 October, 2008 and is due to expire on Monday, 30 June, 2011 - and which I will refer to in this preliminary hearing as the Salaries Award. 11The Conditions Award, in fact, does not contain any "no extra claims" provision but Clause 6 of the Salaries Award does. Clause 6 is in the following terms: "(i) The parties agree that they will have further discussions and negotiations regarding the conditions of employment which will apply to the employees covered by this award with the objective of achieving consolidated conditions of employment for all employees to be provided for in this award. (ii) Subject to the outcome of discussions and negotiations referred to in subclause (i) of this clause, existing conditions of employment, as provided for in the instrument set out in Schedule A of this award and applicable policies of the Authority and agreement between the parties shall continue to apply. (iii) This award provides pay increases of 4% with effect from the first full pay period that commenced on or after Tuesday, 1 July, 2008, a further increase of 4% with effect from the first full pay period to commence or or after Wednesday, 1 July, 2009 and a further increase of 4% with effect from the first full pay period to commence on or after Thursday, 1 July, 2010. (iv) These increases arise from the agreement of the parties contained in the Memorandum of Understanding between the New South Wales Government and the Association for the period Tuesday, 1 July, 2008 to Thursday, 30 June, 2011 entered into on Thursday, 2 October, 2008 ('Memorandum of Understanding'). (v) The pay increases under this award are provided on the basis of the 'no extra claims' commitment contained in clause 8 of the Memorandum of Understanding, provided that this shall not prevent the parties from applying for the award changes identified in the Memorandum of Understanding or subclause (i) of this clause." 12The Memorandum of Understanding [MOU] was the culmination of negotiations between the State Government and the PSA covering a range of State public sector employees, including RTA salaried staff. It has effect to cover the relevant period covered in this preliminary hearing, ie from Tuesday, 1 July, 2008 to Thursday, 30 June, 2011. Clause 8 of the MOU contains the following "no extra claims" commitment: "Subject to clause 6, the parties agree that during the term of this Memorandum there will be no extra wage claims, claims for improved conditions of employment or demands made in respect of the employees covered under the award and further, that no proceedings, claims or demands concerning wages or conditions of employment in respect of those employees will be instituted before the Commission or any other arbitral tribunal. The agreement in the preceeding paragraph does not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award provisions, of this Memorandum. The PSA is to have leave reserved to pursue its filed application in respect of probation and parole officers. The parties further agree that during the term of this Memorandum consent variations to the award can proceed." 13Clause 6 of the MOU refers to the implementation of further improvement initiatives during the life of the MOU.

THE ISSUE IN DISPUTE 14Prior to Monday, 4 January, 2010 customer service centre co-ordinators [CSCO's] and customer service officers [CSO's] in charge of motor registries from Monday to Saturday acting in the absence of the customer service centre managers [CSCM's] received a higher duties allowance on a daily basis . As I understand the position, generally in the State public service, higher grades allowances are not provided on a daily basis but the employee acting in a higher position must be engaged in the higher duties for a specified period of time, and certainly not for one day only. However, Mr Cole indicated that commencing in 1986 trials were conducted for Saturday trading for motor registry officers and in 1998 negotiations between the RTA and the PSA culminated in an agreement over a restructure of motor registry employment conditions, clarifying and confirming a prior arrangement that a higher duties allowance be paid to motor registry staff on a daily basis. 15A decision was made by the RTA which was published in the Operations (DVS) Realignment Determination on Tuesday, 15 September, 2009 and which came into operation from Monday, 4 January, 2010. From that time the arrangement for the allowance for higher duties work to be paid on a daily basis to the motor registry staff was removed and CSCM's were no longer required to attend the motor registry offices on Saturday. The supervision of the motor registries on Saturday was to be carried out by the CSO's (or a suitably qualified staff member to act in place of the CSO and receive payment at the CSCO rate of pay - but not at the rate of pay of the CSCM). Since the implementation of the Realignment Determination, CSCO's working on weekends and supervising the operation of the motor registry have not been paid any additional payment for taking on those managerial responsibilities. 16Quite apart from the "no extra claims" commitments presently required in the State industrial jurisdiction, State awards (and the MOU), it has been a long established policy of State industrial tribunals that State awards should not be opened within their nominal term unless there are good and cogent reasons to do so [the Soap and Candle Makers Case (1946) AR 264. In the Corrections Health Service Nurses (State) Award Case (1999) 90 IR 235, Wright J, the President of the Commission at that time, commented (at p.245) on the need to preserve the integrity of the "no extra claims" provisions in State awards, viz: "....It should be emphasised that the Commission must ensure the integrity of not only its own wage fixation principles but also the strict observance of agreements and undertakings given by parties, compliance with which, properly considered, are important and indeed essential to the integrity of the principles. Undertakings such as no extra claims provisions are crucial parts of the integrity of the system of wage fixation which occurs in the New South Wales system of industrial regulation..." 17The Full Bench of the Commission (Boland J - President, Schmidt J and McLeay C) in the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award Case (2008) 181 IR 245 adopted those comments and further added (at para.16): "...The purpose of the no further claims commitments is to ensure certainty during the life of the relevant industrial instrument. That is to say, all matters agreed or arbitrated upon represented a settled arrangement for the terms of the agreement. Depending on the terms of the commitment, employers could plan and act on the basis that during the life of the award or agreement, they would not incur any additional labour costs or industrial action in support of extra claims, nor would they be required to divert resources to dealing with such claims. Employees and their unions would not face claims to cut wages or alter to their detriment employment conditions prescribed by the award or agreement..." 18Mr Meehan argued that the PSA application before me in these proceedings created a new right where none had existed before and that consequently it was proscribed under the "no extra claims" commitment. In that respect Mr Meehan referred me to the decision of Ritchie C on Wednesday, 8 December, 2010 in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Traffic Authority of New South Wales [2010] NSWIRComm 1069 . In that case the PSA had sought to change flexible working hours but that claim was rejected by Ritchie C on the grounds that it constituted a breach of the "no extra claims" commitment made by the PSA on behalf of RTA salaried staff. He commented (at para.52): "....What is being sought by the PSA, if successful, would result in benefits flowing to employees with respect to better flexibility working hours at a cost to the RTA. I do not accept the submission of the PSA that the MOU only covers the Salaried Award and not the Conditions Award. The PSA sought by consent to make changes to flexible working conditions. Consent was not achieved and therefore the matter would have to be arbitrated. It would be a contested matter. It is my finding that general arbitration is not available to the PSA in this matter..." 19In these proceedings, Mr Gibian does not press the argument that because the "no extra claims" commitment is contained only in the Salaries Award (and the MOU), it is confined to the Salaries Award only - which in any case is an untenable submission, in my opinion. But he does still argue that what was being sought in these proceedings was not a new claim but simply the preservation of a practice and entitlement which already existed in the RTA up to Monday, 4 January, 2010, when it ceased to apply. As such, the PSA application did not represent anything which was caught by the "no extra claims" commitment contained in clause 8 of the MOU or clause 6 of the Salaries Award.

CONCLUSION 20Essentially, there are three options available to me in these preliminary proceedings, viz:

if I conclude on the material presently before me in this preliminary hearing that the current PSA claim is inconsistent with the "no extra claims" commitment given on behalf of the RTA salaried officer, I should dismiss the application at this point: that is Mr Meehan's submission;
if I conclude that there has been no breach of the "no extra claims" commitment given on behalf of the RTA salaried officers, the matter may proceed for me to consider the merits on the days already allocated for the substantive hearing before me - Wednesday, 11 May, 2011, Thursday, 12 May, 2011 and Friday, 20 May, 2011: that is Mr Gibian's position; or
if I conclude that there is insufficient material before me in this preliminary hearing to determine whether or not the PSA application is inconsistent with the "no extra claims" commitment, ie cross-examination of the witnesses would be required, I reserve to Mr Meehan his arguments in that respect for the substantive hearing on Wednesday, 11 May, 2011, Thursday, 12 May, 2011 and Friday, 20 May, 2011. 21I do not believe that I should read the "no extra claims" commitment narrowly and restrict it to State award entitlements. Clearly, the wages and conditions of employment of RTA salaried staff are not confined to the Salaries Award alone - and neither, in my view, is the "no extra claims" commitment. But equally, in my opinion, to be caught by the "no extra claims" commitment, conditions of employment outside of a State award, as is the case with payment of a daily higher duties allowance to the RTA salaried staff, must be the conditions of employment at the time that the "no extra claims" commitment was given. As Mr Gibian asserted in his submissions, that entitlement to the payment of the higher duties allowance on a daily basis was subsequently changed to the detriment of the RTA salaried staff after that undertaking was given and therefore in his view, and mine, outside the restrictions imposed by the "no extra claims" commitment given by the PSA on their behalf. 22Attention was actually drawn to that type of situation by the Full Bench in the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award Case to which I referred earlier in this preliminary decision. When, in addition to the needs of an employer to ensure that it did not incur additional unexpected and unbudgeted labour costs, it also spoke (at para.16) of the need to ensure that "...employees and their unions would not face claims to cut wages or alter to their detriment employment conditions prescribed by the award or agreement...". In this case, the RTA salaried staff the subject of the PSA application enjoyed a certain entitlement at the time that they gave the "no extra claims" commitment. That entitlement was subsequently eliminated and at this point of time no longer applies to them. 23Mr Gibian indicated in written submissions that the PSA application to vary the Salaries Award: "...does not constitute an 'extra claim', but rather seeks to maintain conditions of employment in the form of higher duties allowances that have existed for many years prior to the making of the RTA award, were contained in existing policies of the RTA and were settled by means of a memorandum of understanding associated with an earlier award. The matters raised in the application are not matters which were in contemplation of the parties at the time of the making of the RTA award in October, 2008 but rather arose as a result of changes to long-standing working arrangements in motor registries announced by the RTA in September, 2009 and which commenced operation in January, 2010. In any event, even if the application were caught by the literal words used in clause 6 of the RTA award, having regard to the nature of the matter raised and the fact that the application arises from changes to long-standing practices within the RTA not foreshadowed when the award was made, the Commission would in its discretion not dismiss the application..." 24Consequently, I do not see the claim made by the PSA on behalf of the RTA salaried staff in these proceedings as breaching the "no extra claims" commitment. I dismiss the notice of motion filed by the RTA. However, this is not to establish in this hearing that the claim in its present form actually has merit. For instance, the question remains in my mind whether or not the RTA motor registry staff actually do assume all of the responsibilities of the CSCM's when they work on Saturday to justify the higher duties allowance to be paid to them and whether the variation to the Salaried Officers Award actually does reflect what the RTA salaried staff lost on Monday, 4 January, 2010 with the implementation of the Realignment Determination. Indeed, since the arrangement which the PSA is attempting to preserve has not been a State award provision in the past, the question is whether it is appropriate to make it one now. 25In any event, the matter will proceed to a hearing to consider the merits of the PSA application on the days already allocated for that hearing - Wednesday, 11 May, 2011, Thursday, 12 May, 2011 and Friday, 20 May, 2011. P J CONNOR 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: 29 April 2011

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