STA NSW v RTBU NSW [2008] NSWIRComm 19 | Case summary

1 This matter proceeds by way of an application for interpretation of certain provisions within the State Transit Authority Division of the New South Wales Government Service Senior and Salaried Officers' Enterprise Agreement 2006 (the Agreement). Whilst the provisions of the Agreement requiring adjudication are primarily those contained within clause 80 which sets out the roster principles relating to employees classified or acting as Customer Service Coordinators (CSCs) in Sydney and Newcastle, there are also other provisions to be interpreted insofar as they operate in conjunction with or alongside the roster principles. Those other provisions relate to matters such as consultation (clause 22); dispute settlement (clause 23) and fatigue management (clause 75). 2 The Commission is asked by the parties, having regard to the evidence and arguments presented, to express a view as to the proper construction of various sub-clauses contained within or related to the CSCs' roster principles clause. In the process leading up to these arbitral proceedings, the parties commendably reached agreement as to numerous other elements of the roster principles clause and the consultation clause. That agreement was reduced to writing and handed up at the commencement of hearing for inclusion as an exhibit in the proceedings. The same exhibit sets out in synopsis form, the provisions requiring adjudication and the respective positions of the parties in relation to each of the provisions. I will deal with the issues raised in relation to the disputed provisions under the four broad headings identified by the parties namely: · Consultation · All known work · Work practices · Fatigue 3 In addition to the documentary material relied upon by the respective interests, evidence was taken from the following witnesses only the first of whom was required for cross - examination:- · Mr Jim NIAHOS - Depot Manager · Mr Brian HARTMANN - General Manager - Human Resources · The Hon. J.M. RIORDAN AO - Mediator/Facilitator · Mr Alan KARAM - Senior Revenue Protection Officer 4 Fundamental to the employer's approach to the construction of the disputed provisions is the proposition that the roster principles were developed following a number of reports by the Independent Pricing and Regulatory Tribunal in 1997 and 1998 such reports being directed among other things at the identification of operational areas where efficiency gains could be made and cost containment thereby achieved. It is in this context that the Commission is asked to approach the task of interpreting the disputed provisions consistent with the principles discussed by the Full Bench of the Australian Industrial Relations Commission in the following passage from Envotec Pty Ltd (t/as Australian Envelopes) v Goldie (2006) 157 IR 395 at [15] and [16]: [15] The approach to the interpretation of terms of certified agreements has been addressed by the Federal Court and this Commission on a number of occasions. Justice Branson in NTEIU v University of Wollongong stated the approach in the following way at 27-28: "[27] The proper construction of sub-clause 19.6.1 is not to be determined by reference only to the ordinary meaning of the individual words of the sub-clause. As Mason J pointed out in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348: '…it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning.' [28] The proper construction of the subclause is to be derived from a consideration of the meaning of the words of the subclause read in the context of the Agreement, and having regard to the nature and purpose of certified agreements under the WR Act. The critical question is what is the meaning reasonably to be attributed to the words of the subclause in all of the circumstances." [16] Dicta of Justice Mason in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 has frequently been adopted and applied in matters concerning the interpretation of certified agreements, especially with regard to the manner in which ambiguities are resolved. In that regard, His Honour said at 352: "The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed… Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract." 5 Turning then to the issues raised in relation to the disputed provisions and to the first of the four broad headings namely consultation, it seems the matter was the subject of considerable attention at an earlier stage in these industrial dispute proceedings (per Marks J on 8 March 2007) and also in arbitral proceedings before Harrison DP who published his decision on 29 June 2007 in The Australian Rail, Tram and Bus Industry Union, NSW Branch v State Transit Authority [2007] NSWIRComm 162. Although that case involved consideration of consultation provisions (and other matters) relating to Revenue Protection Officers rather than CSCs, the provisions for both appear in the same terms in the same agreement and in the same contextual setting. In that matter, Harrison DP described the function of the consultative process as follows: [89] The process of consultation is to allow employees to understand and contribute to a consideration of business needs. Once the discussion is complete management hold the responsibility to decide upon the business needs. Employees retain a right through their union to invoke the disputes procedure should there be grounds to assert that management's decision is motivated by other than a genuine assessment of business needs. 6 At an earlier conciliation conference conducted in these proceedings by Marks J, his Honour addressed a number of concerns raised by the RTBU on behalf of CSC members and in so doing, made the following observations and recommendations regarding the obligation of management to consult with CSCs in the construction and maintenance of rosters: There is provision in the enterprise agreement to adjust master rosters up to twice a year, and even more in exceptional circumstances and provided there is consultation. The consultation process provided for is created by management giving 28 days' notice of the new roster, which is given at least to anybody who is affected by the proposed change. Any employee who is affected and who wishes to take the matter up with management must do so within seven days. This is the consultation which is referred to in the enterprise agreement and in considering the concerns of the employee, management must take into account occupational health and safety matters relating to that employee, carer's responsibilities of that employee, and the impact of family and social responsibilities of that employee of the proposed change. Management then has a further seven days in which to modify the roster to accommodate as much as possible the concerns of any employee. The greatest concern mentioned during the private conference related to the four weekly period roster. I recommend any employee who is likely to be affected by any change to his or her rosters, whether in a master or period roster, because of some important matter, such as a medical appointment for the employee, or the employee's family, should notify the rostering officer and tell him or her about the matter. It will be then noted in the managerial records and management will make every effort to ensure that those particular days are protected for those particular employees. Of course, if more than one employee has asked that the one day be protected, it may be necessary for management to make a decision about which of the employees concerned might be able to retain that day off work, if there is nothing else that management can reasonably do to protect all of the employees. In determining any priority, management will have regard to the individual circumstances of the employees, particularly with respect to carer's responsibilities, the impact on their family and social responsibilities and occupational health and safety matters. If this mechanism is adopted, it should take away some of the insecurity and anxiety felt by some employees in particular whose personal circumstances unfortunately require some certainty about particular days off. This should be undertaken in a co-operative way, because it is important that the employees concerned cooperate fully with management in giving management as much opportunity as possible to assist them in protecting these days off. Management is required to construct four weekly period rosters using the master roster as a template, and to post those rosters on the Tuesday prior to the start of each four week period, which is to commence on a Sunday. There is no need in the enterprise agreement for management to issue a draft roster, but as a matter of practical commonsense, this is what management has been doing, and there is no need to change this. The enterprise agreement says that if an employee's day off pattern in the master roster is proposed to be altered in a period roster, then management is to consult with the affected employee. There is an exception where a public holiday falls on a weekday. Apart from this exception, it is necessary to work out what is the best way for this consultation to take place. Obviously, an affected employee will not know that he or she is affected until receiving the draft roster. At that stage the onus must be on the employee who is affected, and who wishes to negotiate a change in the roster, to make contact with the rostering officer. It is at that stage that consultation will occur and management is required to accommodate the concerns of any affected employees as best they can, having regard to matters affecting those employees, being carer's responsibilities, impact upon their family and social responsibilities, and occupational health and safety matters. Of course, if employees have a concern about a matter other than these three matters, then whether or not management can accommodate that employee will depend upon operational circumstances only, and any such employee should not expect to be treated in priority to any person who has a problem caused by carer's responsibilities, impact upon family and social responsibilities, and occupational health and safety. 7 Having regard to the evidence and argument before me in the present proceedings, I see no reason to depart from the general thrust of the above observations and I would respectfully agree with and follow them in deciding the matters in issue here. 8 Plainly, the Senior and Salaried Officers Enterprise Agreement contemplates firstly, that both the master roster and the four (4) weekly period roster may change (the later more so than the former) according to the changing business needs of the enterprise and secondly, that there is an overriding obligation on management - without compromising those business needs - to consult with affected employees having regard as Marks J observed, to the individual circumstances of the employees, particularly with respect to carer's responsibilities, the impact on family and social responsibilities and occupational health and safety. 9 I do not consider the Agreement permits those roster changes to occur (except in the case of a change to the period roster where a public holiday falls on a weekday - cl 80.14) without attempting by consultation to accommodate the needs of affected employees. That is not to say that the wishes and needs of all employees will necessarily be accommodated at all times but there is no reason that I can see, why the consultation process prescribed by the Agreement cannot achieve the greatest benefit for the greatest number of employees without in any way compromising the needs of the enterprise and that is the purpose, in my opinion, to which the relevant provisions are directed. 10 Turning then to the broad heading of "all known work", it is a term which is found in the roster principles clause as a component of both the master roster and the four (4) weekly period roster. A master roster is, according to the Agreement, the template upon which all period rosters are based and it will contain "all known work". It may be altered from time to time to meet changing customer, operational and commercial needs and it may be adjusted with twenty - eight (28) days notice to affected employees up to a maximum of twice per calendar year except in exceptional circumstances. 11 Period rosters are constructed for each four weekly period using the master roster as the template and then making the necessary alterations to shifts or lines of work according to business needs for the ensuing four (4) weeks, which includes "all known work". 12 If one adopts the meaning given by Marks J to the term "all known work" as being "all work which is known by management at the time the roster is created or altered that has to be performed within the foreseeable future" and if one then accepts in a dynamic enterprise such as this one, that business needs change then it must inevitably follow that the work required to meet those altered business needs - in other words the known work, must also change. 13 That is what the concept of rostering known work comprehends and conversely, whilst it does not mean that the employer is required when constructing or maintaining the period roster to cover all shifts indicated in the master roster it does in my opinion require that which is known at the time the master roster is constructed to be contained within it. In that regard, the employer correctly, in my opinion, relies upon the fundamental principle discussed in the following passage from the Commission's decision in BlueScope Steel (AIS) Pty Ltd v AWU NSWIRComm 248 at [10] - [13]: [10] Given such a characterisation the fundamental principle to be applied is that an employer has the right to manage its operation as it deems appropriate providing that the consequence of exercising such a right does not place an unjust or unreasonable burden on employees. This proposition finds support through a long line of arbitral authority including but not limited to Re John Lysaght (Australia) Limited Port Kembla - Slit Recoil Line (IRC 2374 of 1994, Hungerford , J unreported) and Re Steel Works Employees and Engine Drivers, etc (Australian Iron and Steel Limited - Port Kembla) Awards [1956] AR 855. [11] In Re Lysaght , his Honour summarised the principle in this way: A question of manning is, it seems to me, concerned necessarily with the management of an employer's business. The long settled approach to such matters by the Commission is for it not to intervene by assuming the role of the employer but rather to assess whether what the employer proposes would impose unfair or unreasonable demands on employees, including unsafe work practices. So much was acknowledged in Re John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award when the present award was made. Specifically as to disputes about the level of manning, I refer to what was observed in the unanimous decision of the High Court in Re Cram; Ex Parte NSW Colliery Proprietors Association Limited (1987) 163 CLR 117 at 135 -137: Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter". A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both these matters. These considerations indicate that the objection voiced by O'Connor J in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. [12] In Re Steel Works Employees , the position was described by Richards J at 859-860 in this way: Prima facie, the Company has a right to manage its business in its own way and is entitled to exercise its own discretion in the manning of its plant. In order to obtain an order against the Company in relation to the manning decided upon by it in a case of this kind, the Union carries the onus of establishing that the work which the employee is called upon to perform on his shift is more than a fair shift's work under the conditions in which the work is to be performed. [13] What was said by Richards J above was cited with approval by Watson J in Australian Iron and Steel Pty Ltd v Federated Ironworkers Association of Australia, New South Wales Division (No 254 of 1977) and later by Hungerford J in BHP Steel (AIS) Pty Ltd - Port Kembla Restructured Ironworker Classification Rates of Pay Award (No IRC 582 of 1996). 14 The principle discussed above should apply to decisions made from time to time to change rosters and as to whether vacant shifts should be filled. Such decisions are necessarily the province of management subject to two important qualifications. Firstly, they must be based (as Marks J and Harrison DP also emphasised) on the tangible business needs of the enterprise and secondly, they must involve consultation with affected employees. 15 I note further that the Agreement (cl 80.20) permits the employer to alter the hours of work of an employee on a daily basis in cases of sickness, accident, failure of duty or suspension from duty of another employee or attendance by another employee at court, or short notice relief of another employee. In such a case, the affected employee must be advised of the alteration to his or her hours of work on the shift preceding the one that is being altered. The obligation to give such notice may be waived by mutual agreement and an employee with back to back days off must be notified of any alteration of their work on the first of their days off. I do not, however, read the "daily maintenance of period rosters" provisions of the Agreement as requiring the employer to fill every CSC shift which becomes vacant by that means. In fact cl 80.22 of the Agreement recognises by its terms, that such vacancies may be filled at the discretion of the employer. Again though, the principle discussed above plainly cautions employers against the exercise of such a prerogative where an unjust or unreasonable burden will thereby be placed upon employees. 16 Turning then to the next broad heading of work practices, the Agreement provides at cl 23.5 that while a dispute is being dealt with according to the procedures set out in the Agreement, work must continue without disruption and work practices which existed prior to the dispute shall apply except where they involve the application of provisions in an industrial instrument. The opening words of the dispute settlement clause invoke its provisions when the parties are in dispute over any issue that directly affects the interests of any party to the Agreement and it is in this context as I understand it, that the union seeks to place constraints on the employer's ability to change rosters once a dispute is notified. In my opinion, the clause operates in the general framework of the Agreement to preserve rather than to constrain the employer's right to make roster changes. That is the work practice which exists in the present context for the purpose of the sub-clause and any alteration to that work practice by way of constraint would of itself be a disturbance of the status quo comprehended by the sub-clause. 17 It is important here to restate the principle discussed earlier in these reasons that the employer has the ultimate right to manage its operation according to its perceived business needs and whilst there may be concerns from time to time by employees who are affected by roster changes, it is the employer's obligation under the Agreement to consult with such employees and having done that, to do as the business needs of the enterprise dictate. In most cases, mutually acceptable solutions will be found within the flexibility of the rostering arrangements. Occasionally, they will not but I do not think with every respect, that roster change can be put on hold by the operation of cl 23.5 of the Agreement whenever there is a dispute about such change. 18 The last of the four broad headings identified by the parties for the purpose of the proceedings involves the issue of fatigue management and in particular the extent to which the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999 (NSW) impacts upon rostering arrangements for CSCs. 19 In that regard, the Agreement provided firstly, that fatigue management principles will be developed by the parties during the life of the Agreement (cl 75) and secondly, that rosters will be worked by CSCs where such rosters comply with relevant policies, industrial instruments and Ministry of Transport/Roads and Traffic Authority regulations (cl 80.11). It is not disputed that the Driver Fatigue Regulation is an RTA regulation for the purpose of the Agreement. 20 According to its terms, the main object of the Regulation is to provide for the suitable management of the fatigue of drivers of heavy trucks and commercial buses by regulating the periods they spend driving, working and resting. The related issue of fatigue management principles as contemplated by the Agreement was the subject of dispute proceedings before Staff J in July/August 2007 in Matter No. IRC 1212 of 2007. 21 Those proceedings resulted in a conciliated outcome which was recommended and recorded by his Honour on 10 August 2007 as follows:

Pursuant to cl 75 of the EA and in accordance with the Recommendation of the Commission, the parties agree that the fatigue management principles for CSCs shall be as follows: i. a CSC must take two days off work in every consecutive 14 day period ii. a CSC may work up to 12 hours in any shift in each 24 hour period. In this respect, the terms of cl 80.34 of the EA are noted.
Where the Master Roster does not meet the agreed fatigue management principles, and in particular, the line of work associated with that Roster, then that line of work should be reviewed to ensure it meets the fatigue management principles. Such review should also apply to the Period Roster.
Where a CSC position is required to be filled, cl 80.37, cl 80.38 and cl 80.39 of the EA shall apply.
Where a determination is made by the STA to fill a line of work vacancy, such position must be filled on a permanent basis. The RTBU accept that the outcome of a proposed CSC review may result in some employees becoming surplus.
In relation to CSCs who drive buses from time to time, such CSCs will be required to make a self-assessment of their capacity to do so in accordance with the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999. 22 Whilst the parties remain bound by that conciliated outcome, the difficulty which has emerged in the course of these proceedings is not that which was first anticipated or understood by the employer namely, that the union would contend that only employed bus drivers and not CSCs were covered by the Regulation. Rather the union's position as it emerged during the hearing is best explained by reference to the following extract of transcript:-

PANIGIRIS: In relation to the fatigue clause 75, we say and clearly it was placed in the agreement because there were no fatigue management principles in place and it was the intention of the parties to no doubt develop those principles in due course. It was not until we had a fairly significant dispute at our Ryde bus depot which involved Justice Staff and it was clearly identified during those proceedings that one of the key issues associated with the dispute related to the rostering under the fatigue arrangements and we were sent away to negotiate those fatigue management principles by his Honour. Unfortunately there was no negotiations that took place and the employer decided to implement its own and those rostering principles principally related to the RTA regulations. HIS HONOUR: You mean the fatigue management principles. PANIGIRIS: Sorry the fatigue management principles. That dispute then came before his Honour and it would be fair to say we did spend some 8 and a half hours working through that dispute. If I could just take you to BH30 of Mr Hartman's statement, exhibit 3. You will note that his Honour in his recommendation made it very clear there were discussions on 25 July 07, certain recommendations were made and one in particular related to clause 75. In relation to that, as I said, the parties did not meet and because of the employer determination to apply its own interpretation of the fatigue principles. We then went into that. As I said, 8 and a half hour conciliation process. The parties left that process on the basis of accepting the recommendation made by his Honour and if you look at page 2 of the recommendation his Honour says in dot point 1 (read) and there is a very clear outline there what that should be. HIS HONOUR: Are you taking me to page 1, paragraph 1 of the recommendation? PANIGIRIS: Page 2 number 1. And what you find there in relation to that paragraph (i) and ii) is the agreed process. Then paragraph (iii) where such process is also applied to the Master roster (read). The vacancy is a matter dealt with by yourself and also his Honour. The last point, "In relation to CSCs who drive...1999". There is a very good reason why that was put there and the reason is there the employer sought to apply those fatigue principles to customer service coordinators across the board. There was a strong argument and clearly suggested that the customer service coordinators are not bus drivers. They are required to drive buses from time to time and when that occurred the customer service coordinators would self assess themselves in line with those fatigue management requirements. In line with those. What the employer sought to do was have those requirements apply right across the board. HIS HONOUR: You mean whether or not the CSC was required to drive a bus? PANIGIRIS: That is correct and we argue and I think successfully in line with that particular recommendation that as a general rule the application of the fatigue principles are outlined in paragraph (i) and (ii). However, if and when exceptional circumstances, emergencies, in line with the evidence provided by Mr Niahos, we say and we do not disagree with the employer, that the fatigue management principles should be abided. In order to do that we say these employees who supervise bus operators, bus drivers are more than capable of making a self-assessment in relation to their capacity to work the extra time. If they are outside the principles they should not be working and I don't think it is a hard call from our perspective for those principles to be clearly outlined if and when they are required to drive buses. HIS HONOUR: That is interesting because the union from what you have just said doesn't appear, at least to me, to be taking a position which Mr Davies anticipated and that is that under no circumstances would the Road Transport (Safety and Traffic Management)(Driver Fatigue) regulation 1999 apply to CSCs. You do not take that position at all? PANIGIRIS: Not at all. We accept that [regulation], in our acceptance of that [regulation] is it only applies when they are required to drive buses. However the employer's application is that it applies for all purpose whilst the roster is being constructed. We say there are not bus drivers. All their required to do from time to time is pick up a distressed bus or whatever the case may be. We say that is in isolation. That occurs from time to time so in relation to the acceptance of the [regulation] we say we have accepted that in full and acknowledge that where it is a requirement, then, yes, those principles ought to apply. HIS HONOUR: So if I am a CSC and I turn up on my rostered shift and I am asked at, I don't know, 4 hours into that shift to go and retrieve a bus because the driver got sick or something like that, then it is only at that stage that I must consider the implications of that regulation I have just described. PANIGIRIS: That is correct. HIS HONOUR: The problem with that I suppose on one view is this, that I would turn up to work as a CSC on every one or any one of my rostered shifts in the knowledge that I might be called upon to retrieve a bus, to drive a bus. Now, of course, I exclude from that proposition those CSCs we heard about in the interlocutory phase of these proceedings who may not have the prerequisite licence to drive certain classes of vehicle but if I am qualified, licensed, to drive all classes of vehicle operated by State Transit I know that I would turn up to work as part of my ordinary function every day and may be called upon to drive a bus. So I am - it is a fine distinction to draw between the operation of a regulation to those times, only those hours when I am called upon to drive the bus rather than to those times I am required as part of my function to be available to drive a bus. PANIGIRIS: Understanding your Honour's comments, but we say that the amount of times that a CSC is required to drive a bus so is so small, to apply this regulation is over regulating a particular rostering environment. If there is a process by which we can move forward and that is something that was never debated or explored during the proceedings, clearly the RTBU delegates raised some very serious objections to that and that was the outcome on that debate where it was said quite clearly, okay, we can resolve it on the basis that the CSC can make a self assessment because they do manage and supervise bus operators so that self assessment is quite achievable by a CSC. HIS HONOUR: In their capacity of managing bus operators, does the union submit that the CSC has a detailed working knowledge of the operation of the regulation? PANIGIRIS: My assumption is yes they do. Yes they do. That is why the debate is that it doesn't apply to them because they do not drive buses on a regular basis or at least only in extreme circumstances. HIS HONOUR: What is it - and I realise we are straying far from the evidence here - but what is it for the purpose of resolving this dispute that CSCs regard as oppressive if the regulation were to be applied to them, what is the practical effect of it on them? PANIGIRIS: It would restrict the amount of hours they work. That is the application. HIS HONOUR: So whereas they can take on an over time shift without breaching the award for the fatigue principles they could not do so if the regulation was-- PANIGIRIS: The regulation puts a greater restriction on them, that's right. So our view would be we believe that in relation to the debate, in relation to the conciliation, in relation to the outcome and the recommendation we say we have accepted that in full and we say the other side has not and we say no more than from our view, the fatigue principles do not apply to CSCs for the reasons I have outlined. HIS HONOUR: What you mean is the principles do apply but the regulation doesn't. PANIGIRIS: I am sorry, the regulation doesn't. HIS HONOUR: Unless they are driving? PANIGIRIS: Yes. HIS HONOUR: Isn't one of the practical effects of that that a CSC goes to work and then 4 hours into the shift is asked to go and retrieve a bus. The CSC would then, on the union case self assess in accordance with the relevant regulation and if the answer is I can't meet the requirements of the regulation then they cannot retrieve the bus. PANIGIRIS: You get another CSC. When we are not talking about CSC in isolation. There are normally other CSCs available. HIS HONOUR: But the detriment to them if the regulation was applied is it would limit the amount of hours they would work by way of overtime as distinct from regular shift patterns. PANIGIRIS: Overtime yes and other restrictions are, of course, the business needs. There may be a requirement for things to be done be it a special event or otherwise where a CSC is required. 23 Given that the issue around fatigue management is no longer whether the Regulation applies to CSCs because there is now no dispute between the parties that to a greater or lesser extent it does so apply, the employer's focus shifted to the question whether CSCs who self assesses according to item 5 of the Staff J recommendation may feel they can decide they are fit to drive a bus notwithstanding that they fail the hours tests imposed by either the agreed fatigue management principles or the Regulation or both. 24 In that regard I am advised by Mr Davies and it is plainly so, that the fatigue management principles mirror the Regulation in imposing a maximum number of hours which may be worked in a given period. 25 The employer focus also shifted to the question whether the employer is in conflict with the fatigue management principles and the Regulation by rostering a CSC for an overtime shift in the knowledge that the CSC would be in excess of the maximum number of permissible hours worked. The immediate consequence for the employer if a CSC were to be rostered on in those circumstances is that the CSC could not and could not be directed to drive a bus. Indeed, as Mr Davies submitted, the Regulation at s 75 makes it an offence to ask, direct or require, directly or indirectly, a driver to do something if it is known or reasonably ought to be known that by complying the driver would or would be likely to commit a core driving hours offence. 26 The proposition for which Mr Panigiris contended, as the above extract of transcript reveals, is that the fatigue management principles, and the driver fatigue Regulation are mutually directed towards the bus driving function and should not be applied to deprive CSCs of the benefit of overtime shifts otherwise open to them in circumstances firstly, where bus driving is seldom required of the CSC and secondly, where there are invariably other CSCs who may be called upon to perform such tasks. 27 The evidence as to the regularity of bus driving for CSCs was to say the least somewhat sparse but what is clear is that on any given shift a CSC may as a normal incident of employment, be called upon to do so and it is unsurprising that the employer would be reluctant to offer a shift to a CSC who by reason of hours worked cannot be asked, directed or otherwise requested to perform bus driving duties. 28 The matter rests on a fine balance as I am disposed and its resolution is not assisted by the sparseness of evidence as to frequency of driving duties for CSCs and the extent to which (or if) they will be financially disadvantaged by the employer's approach. Against that, there are obvious implications for operational efficiency in offering shifts to CSCs who can only perform part (albeit the greater part) of the duties required of them under the terms of their employment. I note in that regard Mr Panigiris' assertion (without evidence) that if one CSC is over the hours limit then another may be readily be called upon for bus driving duties as and when required. As the following extract from correspondence between the employer and the union indicates, however, that is not a proposition eagerly embraced by the employer:- Further, if I understand correctly, the RTBU's position would be that, in the event that the employee in question, having exceeded a relevant limitation, is then called on to, for example, operate a bus, then the employee will simply be unavailable to perform that aspect of their duties. In which case another employee would need to be located to operate the bus. In our view, that is an untenable and unwieldy position which would interfere unduly with the safe and efficient operation of State Transit's business. We interpret the recommendation to mean that, a CSC must take two days off work in every consecutive 14 day period, and that a CSC may work up to 12 hours in any shift each 24 hour period. On this basis, we will also seek that this matter be re-listed, in the interest of avoiding any further disputation. In any event, we remain of the view that the nature of CSC duties, is such that at any given time, they could be called upon to perform tasks to which the Regulation applies. The most obvious example of which is actually driving a bus. (Exhibit 3, tab 56) 29 The recommendation to which the correspondence refers is of course, the recommendation made by Staff J in Matter No. IRC 1212 of 2007 and I do not consider there is any doubt that his Honour in importing the provisions of the Driver Fatigue Regulation into the agreed fatigue management principles under the Agreement, intended that they would have a direct bearing on rostering arrangements. This is particularly so when one looks at item 2 of the recommendation which provides for rosters to be reviewed when the agreed fatigue management principles are not met. 30 Conversely, it is difficult to see if that were an end of the matter and the agreed principles were to operate to preclude CSCs being rostered inconsistently with the principles, what reason there would be for the prerequisite self-assessment contained within item 5 of the recommendation. 31 Mr Panigiris is adamant that item 5 was included in the recommendation after extensive discussion before Staff J and the fact of its inclusion lends support to the proposition for which the union contends namely, that the fatigue management principles and the Driver Fatigue Regulation apply only in circumstances where a CSC who is at work and who has exceeded the hourly limit prescribed by the principles (and the Regulation) is asked to drive a bus. They do not, on the union case, operate to preclude a CSC from being rostered to work. They operate only to preclude the CSC who is at work and who has exceeded the hourly limit, from driving duties. 32 In such a case, the CSC when asked to drive a bus would by the process of self assessment in accordance with the recommendation, determine whether they were capable of doing so within the legal limitations of the Regulation and would respond accordingly. If the CSC response was in the negative then the employer would look to another CSC for the driving duties. I say within the legal limits of the Regulation lest it be thought, as the employer fears, that a CSC can assess himself or herself as being physically able to drive a bus notwithstanding that the hourly limit prescribed by the Regulation has been exceeded. I did not understand that to be the union position but if it was, it would in my opinion be unsustainable. 33 It is the Regulation which sets the hourly limit and I agree with Mr Davies that no process of self assessment by CSCs can permit them to opt out of or circumvent the requirements of the Regulation when it comes to driving buses. 34 Plainly the apparent tension between item 2 and item 5 of the Staff J recommendation represents something of a conundrum in the present proceedings and I note again that the parties were before his Honour in conciliation rather than more formal arbitral proceedings as here but I think with respect, that it would be consistent and in harmony with the recommendation if the self assessment element (item 5) were to be viewed as something of a fail-safe in the event that the rostering arrangements envisaged by item 2 did not achieve their purpose. 35 That purpose as I would read and understand it is to ensure as far as practicable that rosters are constructed and maintained in accordance with the fatigue management principles and it is not to the point that CSCs may not be called upon to drive a bus on every shift but rather that they may be called upon to do so on any shift. 36 That being said it may well be by inadvertent error or oversight in the construction of rosters or by the emergent need to cover an unexpected absence that a CSC will be rostered to work in excess of the hourly limit and that is where, after the self-assessment process, the employer will be precluded from requiring that particular CSC to drive a bus. 37 Finally and in addition to the conclusions set out above under the four broad headings, I determine two residual matters as follows:

For the purpose of cl 80.34 of the Agreement, the word "shift" should be taken to mean actual hours worked including overtime.
Nothing in cl 80.41 derogates from management's discretion whether or not to fill vacant shifts. The sub-clause operates to establish a process to be followed where the employer decides to fill a CSC 2 (Depot) ADO shift. 38 I order that the determinations of the Commission in relation to the four broad headings and the two residual matters, as set out above, be given effect forthwith.

STA NSW v RTBU NSW

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (1)

Cases Cited (6)