The Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102

Industrial Relations Commission (NSW)|2013-11-29|Before: Staff J

bus Employees' Association (C Nos 21155 and 22123 of 1991, Print K8515) Sydney Water Corporation v The Association of Professional Engineers, Scientists and Managers, Australia (NSW) Branch [2010] NSWIRComm 158 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; 79 ALJR 129; 211 ALR 342 Category: Principal judgment Parties: Australian Rail Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division (Applicant) State Transit Authority of New South Wales (Respondent) Representation: Mr I Taylor SC with Mr O Fagir of counsel (Applicant) Mr A Woods solicitor (Respondent) Australian Rail Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division (Applicant) Henry Davis York Lawyers (Respondent) File Number(s): IRC 272, 700 and 701 of 2013

RBTU case 3Mr I Taylor SC, who appeared with Mr O Fagir of counsel, submitted firstly, that the changes were contrary to long established custom practice and usage. Secondly, that the changes were contrary to the terms of the Award. Thirdly, that the changes could not be introduced during the term of the current Award given the "no extra claims" provision. Fourthly, the changes were, in any event, inappropriate and unfair as they would have the effect of reducing the income of bus drivers and bring about insecure employment.

STA case 4Mr T Woods solicitor, who appeared for the STA, submitted that at issue in these proceedings was the proper interpretation of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012 ("the Award"). 5Mr Woods contended that on a proper interpretation of the Award, the STA was entitled to engage and roster part-time bus operators to undertake broken shifts and roster casual employees, in the first instance, to fill vacant shifts.

Relevant Award provisions 6It was common ground that the relevant Award provisions were cl 3.2 which defines a broken shift; cl 12 Casual Employees; cl 13 which sets out the terms and conditions on which part-time employees are to be engaged, and cl 32 Working of Voluntary Overtime. 7These clauses provide as follows: 3. Definitions and Explanations ... 3.2 A broken shift is one in which there is a break other than for meal break in the employee's work after signing on and before finally signing off and for which he/she is not paid. 12. Casual Bus Operator 12.1 A casual bus operator is to be employed by the day. 12.2 A casual bus operator working ordinary time will be paid an hourly rate calculated on the basis of one thirty-eighth (1/38) of the weekly wages plus a casual loading of 20 per cent. The loading constitutes part of the casual Bus Operator's all-purpose rate. 12.3 A casual Bus Operator will be employed for no more than six shifts per week. 12.4 A casual Bus Operator will be employed for no less than three hours and no greater than nine hours per day. 12.5 A casual Bus Operator's employment may be terminated with one hour's notice by either the employer or the Bus Operator. 12.6 A casual Bus Operator who attends duty as requested, and who is told upon such attendance that he/she is not required on that day shall be paid a minimum of three hours. 12.7 A casual Bus operator will be utilised in the first instance, whenever practicable, to cover planned and unplanned absences of Part-time Bus Operators. 13. Permanent Part-Time Bus Operator 13.1 A permanent Part-time Bus Operator is a Bus Operator who: (i) works less than full-time hours of 38 per week; and (ii) has reasonably predicted hours of work; and (iii) receives on a pro rata basis, the equivalent pay and conditions of full-time employees of the same classification. 13.2 The Parties agree that Part-Time employees can be utilised to perform work in excess of their daily agreed hours if full time Bus Operators at the Depot are unavailable to undertake the work required to be performed to maintain service delivery on the day. 13.3 It is agreed that new employees offered part time Bus Operator positions will not be offered or rostered for two shifts on any day. 13.4 For the purposes of this clause a shift will mean a single engagement on any day of the week excluding Sundays. There shall be at least ten hours break between the finishing of a shift and the commencement of another shift. 13.5 At the time of engagement, the employer and the regular part time Bus Operator will agree in writing, on a regular pattern of work, specifying at least the hours worked each day, which days of the week the Bus Operator will work and the actual starting and finishing time each day. 13.6 Any agreed variation to the regular pattern of work will be recorded in writing. Contract hours cannot be changed without the agreement of the employee concerned, except where new rosters are built to accommodate School Vacation times, Service Reviews etc. When this occurs, actual start and finish times of each shift and total hours of work for a day may be varied by up to 60 minutes at the discretion of the Employer. Where practicable, the employee is to be allocated shifts which have hours of work as near as possible to the employee's current contract of employment. 13.7 The employer is required to roster a regular part-time Bus Operator for a minimum of three consecutive hours on any shift. 13.8 A Bus Operator who does not meet the definition of a part-time or temporary Bus Operator and who is not a full-time Bus Operator will be paid as a casual Bus Operator in accordance with clause 12. 13.9 All time worked in excess of the hours as mutually arranged will be overtime and paid for at the rate prescribed in this Award. 13.10 A part-time Bus Operator who attends and/or commences work and is subsequently informed that he/she is not required shall be paid for a minimum of three hours pay or 7/9ths of a day, whichever is the greatest. 13.11 Where the employer intends to reallocate or designate particular work to regular part-time employment, the employer shall give the employee a month's notice. 13.12 Four weeks notice is to be given to the local union representative, where it is the intention of the Manager to re-allocate or designate particular bus driving duties to permanent part-time Bus Operators. During that time, issues of concern related to the intention to re-allocate or designate work as part-time will be dealt with locally or at Branch Divisional level. 13.13 Part-time lines of work will be built to a maximum of 146 hours work per four weekly line of rostered work. Any lines of work identified above this will be converted to full-time lines of work. 32. Working of Voluntary Overtime 32.1 Subject to any statutory or regulatory limits on driving hours and clause 75, a Bus Operator may work voluntary overtime. 32.2 Where voluntary overtime is worked on a Sunday and the shift is less than seven hours, the voluntary overtime will not attract shift build up time. 32.3 State Transit will establish a record book at each depot, in the Duty Office, for all permanent staff wishing to do additional duties/Voluntary Overtime on the day. 32.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties.

The evidence 8Mr Taylor tendered statements of the following bus drivers, who were not required for cross-examination: Mr David Woollams, the Assistance Branch Secretary of the RTBU who commenced working for the STA as a bus operator in 1984; Mr Brett Peters, a bus operator based at the Hamilton Depot and the Divisional Vice-President of the RTBU; Mr Yarry Netluch, who was employed between 1974 and 2012 by the STA in various clerical and supervisory management roles and who had extensive knowledge of rostering systems. 9The following witnesses were required for cross-examination: Mr Roger Preston, Divisional Secretary of the RTBU, who commenced working as a bus driver in 1993; Ms Narelle Sinclair, the RTBU delegate at the Brookvale Depot, who commenced employment with the STA in 2002, and Mr Barry Wallace, a former Deputy Inspector of the STA who was employed from 5 February 1972 until his retirement in March 2013. 10Mr Woods tendered the following statements: Mr Bruce Eldridge, General Manager, People and Bus Systems of the STA. Mr Eldridge commenced employment with the STA's predecessor in November 1965. Mr Martin Byatt, General Manager Eastern Region, who commenced employment with the STA in 1987. Mr Byatt reports to the Chief Executive of the STA. Both were required for cross-examination. 11There was little dispute in respect of much of the evidence given by these witnesses in respect of the major issues and the history of award negotiations. It is therefore convenient to summarise the evidence under the following headings and highlight where the evidence differed.

Broken shifts 12Each bus depot has a "main line roster" for full-time bus operators, which contains 7 main shift types (AM (Early AMs and Late AMs) Broken (early Brokens and Late Brokens) Middays, PMs (Early PMs and Late PMs), Firsts and Lasts, Day Shifts, and All Nighters. Each shift has different starting and finishing times. There are separate rosters for part-time operators. 13Along with the main line roster there is a relief roster in each depot, which includes AM, Broken, Midday and PM relief rosters. These rosters are designed to deal with any fallout work that comes from the main line rosters and to allow the STA to cover shifts which need to be filled from the main line roster because operators are absent on leave (or for any other reason). Work on relief rosters is unpredictable and varies from day to day. Typically, employees on a relief roster hope to move on to the main line roster because of the increased certainty and increased hours available. Employees who nominate for the broken roster are allocated to vacancies on the basis of their seniority. 14At the present time, only full-time bus operators work broken shifts. The evidence differed between the percentages of main line rosters which were broken shifts. Mr Eldridge contended that broken shifts made up approximately 43.3 per cent of all full-time rostered shifts, while Mr Preston's evidence was that approximately 50 per cent of main line roster shifts were Broken shifts. 15Mr Eldridge described a broken shift as a single engagement consisting of two portions of duties (AM and PM work) and an unpaid period of work in the middle of the day as provided for in cl 3.2 of the Award. Broken shifts are used by the STA to cover AM and PM peak service periods which are driven by customer demands. 16The maximum allowable spread of a broken shift under the Award is 12 hours. Hours worked in excess of 9.5 hours from sign-on, are paid at time and a half "spread penalty" and hours worked in excess of 10.5 hours from sign-on are paid at double time. Each portion of a broken shift, where practicable, is a minimum of 3 hours and a maximum of 5 hours duration. (Clause 28 of the Award). There is an unpaid break of a minimum of 2 hours between the two portions of a broken shift. 17Full-time bus operators are guaranteed at least 7 hours pay per shift and 38 hours pay per week. (Clause 28 of the Award). If a full-time bus operator working a broken shift roster works less than 7 hours per day or less than 38 ordinary hours per week, he or she will be paid "build up" at ordinary time rates to make them up to 7 hours per day and 38 hours per week respectively, in addition to any spread penalties paid. "Build up" is ordinary pay for the required ordinary hours to reach 38, even though no work is done in that time. 18Mr Eldridge's evidence was that there were large numbers of broken shifts, at various bus depots, that are under 7.5 hours and even under 7 hours of work time per day. STA plans to offer those shifts to part-time bus operators as they become vacant through natural attrition, though within the limit of 22 per cent of total bus operators per depot, as provided in cl 10.1 of the Award. 19Part-time bus operators who work both portions of a broken shift are entitled to spread penalties if they worked in excess of 9.5 hours from sign-on. The RTBU's evidence was that this would be unlikely. 20The rationale behind STA's proposals, as explained by Mr Eldridge, was that engaging part-time bus operators on the broken shift roster would avoid the need for the STA to pay "build-up" time, or unproductive "Work as Directed" ("WAD") time, as the agreed hours for the part-time bus operators could be less than 7 for the particular day and would be less than 38 hours per week. WAD time is a description of paid time when a bus operator is back at a depot having finished a run and can do other work if it is available and required to be done. WAD can be used to deal with last minute occurrences, such as late running of services due to traffic congestion or bus breakdowns which may require a spare driver to complete the run that was being operated by the bus that broke down. 21Mr Eldridge's evidence was that the use of part-time broken shifts would provide far greater flexibility in working arrangements and support improved efficiencies in the development of labour through the WAD. It would also enable the STA to operate more efficiently and remain competitive in the industry should bus service contracts be put out to competitive tendering.

Broken shifts - part-time operators 22Since approximately 2000, part-time operators have not worked broken shifts and have not worked two shifts in a day. 23Historically, on 2 February 1993, Lawson C (as he then was) of the Australian Industrial Relations Commission determined that the 1981 Award should be varied to include conditions of employment for permanent part-time, temporary and casual bus operators: State Transit Authority of New South Wales, The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K6513). 24On 21 July 1993, Lawson C issued a supplementary decision which provided that part-time operators who were engaged for two separate periods on one day, were not entitled to be paid a broken shift allowance: State Transit Authority of New South Wales and The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K8515) 25Mr Eldridge's evidence was that following the variation, some part-time operators were engaged by the STA to work two separate shifts on the one day. Under this arrangement, part-time bus operators would: (a)Sign-on at the beginning of their first shift and sign-off at the end of their first shift; (b)Sign-on at the beginning of their second shift and sign-off at the end of their second shift; (c)Receive sign-on and sign-off allowances at the start and end of each shift in accordance with the then Award; (d)Not receive broken shift penalties; (e)Not be required to remain at the bus depot during periods between shifts where they were signed-off; (f)Part-time bus operators were also paid shift allowances for the time worked between 5.00pm and 7.00am in accordance with the 1981 Award; (g)Broken shift spread penalties were not paid to part-time bus operators in accordance with the 1981 Award. 26The STA subsequently entered into enterprise agreements in 1993, 1995 and 1998 that reflected these conditions. 27In or around 2000, the RTBU succeeded in having a clause inserted in the Award which prohibited part-timers from working two shifts in a day. The RBTU contends that this provision remains in the current Award and is found in cl 13.3. 28On 1 March 2001, the RTBU forwarded a letter to the STA stating that they wished to place part-time work into dispute regarding the two sign-ons per day. 29On 10 April 2001, the STA sent a letter to the RTBU stating that it intended to phase out the engagement of part-time bus operators on two consecutive shifts on the one day. Relevantly, the letter from STA dated 10 April 2001 from the General Manager Human Resources stated: ... 5. Part Time Split Shift Employees This issue was raised at the RTBU Peak Council by the RTBU, Current EBA's enable State Transit to roster part time employees on consecutive shifts on the one day, which have been defined by the RTBU as split shifts. State Transit has considered the position of the RTBU in relation to part time employees and despite having legal protection to roster part time employees on split shifts have decided to phase this practice out. Existing part time employees on split shifts will remain unchanged. However, no new offers of employment containing split shifts will be made to part time employees from 6 April 2001. Through attrition these shifts would also be phased out and it would be the intention of State Transit to employ part time employees with a single engagement per day. I trust that these issues are now resolved and I look forward to meeting with you again soon. 30The State Transit Authority of New South Wales Bus Operators Enterprise Agreement 2002 contained a clause reflecting this agreement: 10. Part Time Employment It is agreed that new employees offered part time Bus Operator positions will not be offered or rostered for two shifts on any day. 31On 15 July 2002, the State Transit Authority of New South Wales Bus Traffic Employees' Award 2002 (AP817137) came into force (AP817137). Mr Eldridge's evidence was that the 2002 Award did not contain a provision specifying that part-time bus operators were not entitled to be paid broken shift penalties. Nor did it contain a prohibition on part-time bus operators working two shifts in one day which was in the 2002 enterprise agreement. 32On 26 August 2004, the State Transit Authority New South Wales Bus Operators Enterprise Agreement 2004 (PR951423) ("the 2004 Enterprise Agreement") came into force. Mr Eldridge's evidence was that this agreement did not contain an express prohibition on part-time bus operators working two shifts in one day. However, cl 5 of the enterprise agreement provided that it was to be read in conjunction with all previous agreements. 33On or around 2007, the regulation of bus operator salaries and conditions was transferred to the Industrial Relations Commission of New South Wales. 34On 14 November 2007, the State Transit Authority Division of Government Service Bus Operations Enterprise (State) Award 2007 came into force. 35In March 2009, the STA commenced negotiations with the RTBU for a new Award to replace the 2007 Award. Negotiations were in accordance with the New South Wales Public Sector Wages Policy 2007, which provided for a 2.5 per cent annual increase in employee related expenses, with any increases above that amount to be funded through employee related reform measures and other costs savings. 36Mr Eldridge's evidence was that in the 2009 negotiations, the STA was not looking to effect major operational changes. At that time, it was not imperative for the STA to improve its bottom line by seeking major cost savings. However, he stated that the STA was willing to consider operational changes to the extent that it generated a savings that would justify a wage increase in accordance with the 2007 wages policy. 37By letter dated 14 September 2009, the STA relevantly noted: State Transit notes the RTBU's proposal to revisit the introduction of part time broken shifts, as a possible additional employee related cost saving initiative. Preliminary costings by State Transit indicate that this initiative may be sufficient to fund an additional 0.25% p.a. increase." 38Negotiations between the parties broke down with the RTBU rejecting proposals put by the STA and advising their intention to engage in a 24 hour strike of bus drivers in Sydney and Newcastle commencing on 18 December 2009. 39Boland J President, chaired a compulsory conference of the parties on the evening of 18 December 2009 and issued a Statement and made a Direction. After noting that "the main sticking point of any acceptance by the RTBU of the STA's offer was the proposal to fill planned and unplanned absences of part-time bus drivers with casuals", his Honour made the following Direction: (a) that the offer, including the wages component, made by STA be accepted by the RTBU and its members in settlement of the claim, except that part of the offer relating to casual drivers; (b) that in ongoing negotiations in good faith to occur between now and 26 February 2010 the parties agree to consider a range of initiatives, including any proposal regarding the use of casual drivers, to fund cost savings in year 2 up to 0.5 per cent beyond 2.5 per cent; (c) that the parties shall report to the Commission on the progress of their negotiations at 10.00 am on Wednesday 13 January 2010 and, if necessary, at 9.30 am on Thursday 4 February 2010; (d) that should the parties in the time allowed not identify the necessary employee related reform measures and cost savings, or should any dispute arise during the process, the parties acknowledge and commit to take all necessary steps so that a Full Bench of Industrial Relations Commission shall arbitrate on and determine the employee related cost savings to fund the wage increases under the enterprise agreement; (e) the parties will make their best endeavours to achieve a cessation of the strike action as early as reasonably practicable and undertake that there will be a return to normal services by the commencement of the first shift on Saturday 19 December 2009; and (f) that whilst the process outlined in this direction is continuing, there will be no resort to any form of industrial action by either party. 40After further negotiations between the parties, on 18 January 2010, the STA forwarded a further letter to the RTBU. Relevantly, it read: Our understanding from the meeting on 14 January 2010 is, amongst other things, that the union would not recommend the introduction and implementation of Part-time broken shifts. The estimated 0.08% employee related cost savings is therefore excluded from current calculations. 41On 1 February 2010, the STA forwarded a further letter to the RTBU, which relevantly read: It is proposed to reduce the current thirty per cent ceiling on the total number of part-time and casual Bus operators per depot (Clause 10 of the current Award) to either a fifteen percent ceiling as an average across the entire STA Bus depot network, or a twenty two per cent ceiling as an average per depot in the STA network on the basis that: Casual employees in the first instance would perform the duties of part-time bus operators who are absent on a planned and unplanned basis. Agreement to the reduction in the ceiling on part-time and casual Bus Operators will mean variations to at least clauses 10, 12 and 33 of the current award to reflect the intention and implementation of this proposal. 42On 26 February 2010, the State Transit Authority Division of Government Service Bus Service Bus Operations Enterprise (State) Award 2009 came into force. No specific reference to part-time broken shifts was inserted into the 2009 Award. 43On 30 September 2010, the RTBU advised the existence of an industrial dispute. The dispute concerned the payments owing to a full-time driver who agreed to work less than 5 hours on a rostered day off. The RTBU contended that the bus operator should be paid for 7 hours, even if the bus operator worked less than a full shift. 44On 13 October 2010, Mr Eldridge replied to the RTBU's letter as follows: I refer to your letter of 30 September 2010 concerning a dispute at Ryde concerning the payment of overtime. I note that the dispute is elevated to General Manager level. That being the case it is important that we meet to discuss the issue. Our view, in summary is that: If a shift becomes vacant through absence and a Bus Operator is notified the day prior to the shift operating then that shift is DOC'd and payment is made for the full period of that shift. The Agreement, which is attached, confirms this and what has been the practice and agreement between the parties since 1997. If a shift becomes vacant and a Bus Operator is notified on the same day as the shift vacancy then portions of the shift may be offered as voluntary overtime to that Bus Operator and other Bus Operators. This has been the case for a long period of time. There is a history of agreement between the union and STA concerning the allocation of voluntary overtime. The Agreement outlines the principles under which voluntary overtime (and DOC's) is allocated. The current award does not substantially alter or amend what has been agreed and practiced for the past thirteen years; it simply puts in place a process for offer of voluntary overtime. The current award stipulates; 33.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time Employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties. 12.7 A casual Bus Operator will be utilised in the first instance, whenever practicable, to cover planned and unplanned absences of Part-time Bus Operators. It would be appreciated if you could contact me to arrange a meeting where we can discuss your concerns. IMPLEMENTATION AGREEMENT FOR THE WORKING OF VOLUNTARY OVERTIME Detailed below are agreed understandings between the State Transit and the Public Transport Union, Bus and Tram Division for the practical implementation of Charter and Special Hirings work, in accordance with agreements reached in respect to the working of Voluntary Overtime as per the Structural Efficiency Document. It is to be noted that such overtime shall stand alone and be paid at the appropriate award rate for overtime applicable for the day. 1. Voluntary Overtime will not disturb the current method for the allocation of DOC's. Known rostered permanent work (full shifts) will be allocated as DOC's. 2. A book will be maintained for staff who do not wish to work DOC's as per the current agreement. 3. Staff wishing to work voluntary overtime will sign a voluntary overtime book. 4. Voluntary overtime and DOC's will as far as possible, be distributed equally amongst staff who have signed the book to work voluntary overtime and those who have not signed the "No DOC Book" in accordance with the current practices for the allocation of DOC's. This practice is as follows in relation to Sydney, with nothing contained in this document affecting the working of DOC's in Newcastle. DOC's and voluntary overtime are to be allocated to staff in the following manner: DOC's (a) Staff with the lowest number of DOC's allocated who have not signed the "No DOC Book". (b) Staff who have signed the book to do two (2) DOC's and who have already completed one in the current fortnight. Lowest allocation to be rostered first. (c) Staff who have asked to retain the day off but have not signed the "No DOC Book". Operations Controller and Public Transport Union Bus and Tram Division representative to be consulted if roster clerk is aware of special circumstances. (d) Staff who have signed the "No DOC Book". VOLUNTARY OVERTIME Voluntary overtime is to be offered to staff who have signed the voluntary overtime book, with those having the lowest previous allocated hours being given first opportunity where practicable. 5. Where available rostered spares are to cover staff failures on the day, before voluntary overtime is allocated. 6. Where rostered shifts cannot be covered by spares, District Managers or their nominee have the authority to bring in staff as required who have signed the voluntary overtime book to work the full shift as DOC. This is conditional on there being adequate time to call in staff to cover the work required. 7. A bus operator required to work after the conclusion of a shift is entitled to be absent until he/she has had ten (10) consecutive hours off duty. No deduction of pay is to be made for ordinary time off duty occurring during this absence, or any other absence required by law. 8. A bus operator will not be required to drive continuously for more than five (5) hours without a break of at least thirty (30) minutes. Thirty (30) minutes of such rest break will be paid as crib and is only applicable to the working of voluntary overtime. No bus operator will be required to perform a spread of hours in excess of twelve (12) hours in any shift and twelve (12) hours work in any twenty four (24) hour period. 9. the use of voluntary overtime will not be used as a mechanism to reduce permanent staff levels needed to meet normal timetable requirements. 10. Detail lf voluntary overtime worked during a specific fortnight will be made available to the Union Executive Officer on request. 11. Where the cancellation of Charter/Special Hiring work occurs, the following arrangements will apply: (a) Where twenty four (24) hours or more notice is given to the bus operator of cancellation of the work to be performed, there is no entitlement to any payment. (b) In the event of cancellation with less than twenty four (24) hours notice, productive work will be provided to the bus operator for the time equivalent to that of the cancelled work. 12. All school specials that are built into base rosters will not be classified as special hirings/charters for the purpose of voluntary overtime unless to cover short notice staff absenteeism on the day. 13. Charter/special hirings may be identified as road driving work that is above normal timetabled requirements and where the normal revenue collection procedures are not applicable. 14. Underwritten special services where cash fare tickets are sold will be treated as charter or special hirings work. 15. Award Clause 30(f) in respect to at least a two (2) hour minimum break during the working of broken shifts will not be applicable if voluntary overtime is worked within that non working period of the broken shift. In the event of circumstances where an operator works so as his/her break is reduced under two (2) hours, a break of between thirty (3) and fifty (50) minutes will be provided. Thirty (30) minutes of such rest break will be paid as a crib. 16. A record of hours worked on voluntary overtime is to be placed on period rosters near the operator's name in green pen, indicating total number of hours worked in previous rosters. 17. The payment of a thirty (30) minute crib as contained in items (8) and (15) is "Without Prejudice" and is not to be used as a precedent to alter current practices in respect to any other paid cribs. 45Mr Eldridge was cross-examined in respect of his understanding of his letter dated 13 October 2010 and the attachment to it and gave the following evidence: Q. Can I ask you to open up your statement, your folder, unfortunately for your right wrist at the back of the document. Can you go to tab 31 of the, can you keep turning the page until you get to a letter written by yourself dated 12 October 2010 [sic 13 October 2013] or at least signed by yourself? A. Yes. Q. Is this the position, I am looking at the first document, that by October 2010, it was your understanding that where a shift becomes absent from, vacant through action and a bus operator is notified the day prior to the shift operating, then that shift is DOC'd and payment is made for the full period of that shift? A. Yes. Q. By DOC, you meant by that, that vacant shift would be allocated to a full time driver not rostered that day who would then work the shift as a DOC? A. Yes. Q. And you then in the next sentence say that process by which vacant shifts were allocated was confirmed by an agreement that dated back to 1997 (full)? A. Yes. Q. Can we turn the page, I think your letter attached this agreement, the next three pages are a 1997 agreement, are they not? A. Yes. Q. Can I take you to numbered paragraph 1. You see there it starts by voluntary overtime will not be disturbed, the current methodology for the allocation of DOC's, see that? A. Yes. Q. Next sentence, known rostered permanent work full shifts will be allocated to DOC's, see that? A. Number 4? Q. Number 1? A. Yes, it is there, yes. Q. And so as this agreement acknowledges, earlier than 1997 where there was known vacant shifts that were full shifts, the practice was that they would be allocated as a DOC? A. Or agreement. Q. That agreement you informed the union in October 2010. That reflected what you understood to be the practice in 2010? A. This dispute was not because of a normal DOC by a rostered clerk, it was about a person who was absent on the day and I was just explaining what the agreements had been in the past and, but this dispute was about absenteeism on the day. Q. I don't think I was asking about the dispute. I was simply asking you to confirm that this agreement set out what you understood to be the long established practice for filling vacant shifts that arose prior to that day. A. That paper was part of my record, yes. Q. And do you see there later down on the same page, the first page of the agreement there is a heading DOC allegations and voluntary overtime are to be allocated to staff in the following manner. Do you see that? A. Yes. Q. And so is this your understanding, that at least from 1997 there was an agreement not only as to how voluntary overtime might be allocated but also an agreement as to how DOC's would be allocated? A. Yes, that is how DOC's were allocated. Q. And the way they are allocated and effectively they would be allocated to full time staff at least if they had not signed a no DOC book? A. Issuing DOC this is how it would be done. Q. It follows, does it not, what this agreement was acknowledging and your letter in 2010 indicating, had been the long practice, where full vacant shifts arose and none in agreement, they would first be offered to permanent staff provided they had not signed the DOC book, is that right? A. Yes. Q. And casuals would only be brought in if the process set out on that page (a) to (d) had been exhausted? A. That is how the roster clerk would have done it, yes. ... Q. For time that is more than seven hours that comes up on the day under this agreement was that dealt with as a DOC? A. That was dealt with as a DOC. Q. And we have dealt with DOC, I think, under the heading voluntary overtime. What the agreement between the parties was an agreement that is dealing with anything less than seven hours whether known in advance or arises on the day, have I got that right? A. Yes. ... Q. At least during the term of this agreement is it your understanding that partial shifts were to be filled by bringing in permanent staff who had signed the voluntary overtime - [sic - it was agreed between the parties that the word "book" should be inserted here]. A. Yes. Q. Is it not the case right up to October 2010 you considered this agreement and the way people were brought in was the still the agreed and appropriate way to be done? A. No, the agreed way was that people on the on call list would be brought in, then after that we would use casual and if no casuals, we would then go and bring if full time drivers. Q. Isn't it the case the 1997 agreement outlines the principles in which voluntary overtime would be allocated right up to 2010? A. Voluntary overtime? Q. Yes? A. On the day, yes. ... Q. The question is this. As you said in that letter, isn't it the case that the attached agreement outlined the way in which voluntary overtime was allocated at all times between 1997 and 2010? A. No, I have said that but I was wrong. Q. You weren't wrong, you know that right throughout this period it was always the case? A. No. Q. Let me finish, it was always the case and even during the period when an on call list, that the practice was always the same, that is that having exhausted any such on call list where those periods were applied, district managers or nominees would bring in staff as required to cover voluntary overtime who had acknowledge in some way their willingness to do it before calling casuals? A. No, it was casuals after the on call list was exhausted, then they could call in people to do DOC. Q. To the extent you say the agreement outlines the principles under which it has been allocated, you talk about a history of agreement that your letter was wrong there, was it? A. Yes. Q. No doubt an inadvertent error, was it? A. Well, as I had not been doing rosters for a long time and depots, I looked through papers I had and these were the papers I had. You have to remember I was not working there from 2005 to 2008. ... Q. So you know in the witness box, having read this letter you were wrong in October 2010 and there was a different way of allocating voluntary overtime and it was a way that relied on some on call list? A. Voluntary overtime has been allocated that way. You are talking about DOC's now. Q. We are on the second dot point, we are talking about overtime notified on the way the agreement outlines the principles under which voluntary overtime time (and DOC's) is allocated. Appears both? A. The first sentence of that dot point talks about if a shift becomes available or bus notified on the same day as the shift vacancy, then portions of the shift may be offered as voluntary overtime. Portions of the shift means, like I say, it is voluntary of the time the shift, if someone goes off sick or rings up and the shift could be issued, a part of the shift because we could have workers at the depot, could have done a portion of the shift and we would have a portion of the shift up to seven hours that would then fall under voluntary overtime, it technically, that is correct what is in there, your interpretation is wrong. Q. So you are not wrong any more, I am wrong? A. Now I read that, it talks about portions of a shift, not a full shift. You keep talking about full shift but this letter says portions. Q. As I understood your, let us move on to the next sentence of that document which deals with the current award, does not substantially alter or amend what has been agreed. It simply puts in a process offers voluntary overall overtime? A. Yes. Q. You were referring to then what was clause 33.4 when you reduced those words about the current award? A. Yes, it is additional work on the day. Q. And what you were saying is that those words in 33.4 reflect the agreement in 1997, it substantially reflects the agreement in 1997? A. Yes, that is what I am saying. ... Q. This is the bottom line, is it not, you were very aware in October 2010 that any additional work on the day which was less than a full shift was supposed to be allocated on the basis that it would firstly be offered to those staff already working on the day? A. Yes. Q. And if they were unable to fill the hours then it next be offered to a full time employee not available on the day? A. Could be, yes. Q. And that is what clause 33.4 was and does say in your opinion as you have expressed it in that letter? A. Yes. Q. This whole document relates to one dispute at Ryde? A. My interpretation there fitted the dispute at Ryde, why it came about and what to do to stop it. Q. Well let us go to that dispute. That is the dispute that came before Deputy President Grayson? A. Yes. Q. And that dispute resulted in an agreement? A. Yes. 46Grayson DP chaired a compulsory conference of the parties and on 9 December 2010 in respect of the RTBU's dispute (IRC 1199 of 2010). The following agreement was reached and noted by his Honour in transcript on that day: Allocation and payment of DOC/VOT: Bus Operators This procedure is in settlement of a dispute filed by the RTBU (Bus Division) concerning the allocation and payment of overtime for shifts that fall due to absence. This procedure shall take effect from Friday 10 December 2010 and will apply until the commencement of a new Bus Operators' Award in 2011. This procedure shall only apply to rostered shifts Monday to Saturday. Sunday VOT will be applied as per the current award, Clause 33, including the offering of the work in sequence: To Full time Operators, Then part-time operators And then casuals. This procedure does not preclude or in any way prohibit the right of management to cancel a shift or shifts at any time. A Work Instruction based on this document will be published on the BMS in due course. 1. Introduction This procedure outlines the steps to be taken to fill a rostered Bus Operator shift when a shift fails due to absence on the day it is rostered. 2. Procedure GREATER THAN FIVE (5) HOURS) In the event that an employee is called in to work on their day off and the shift is greater than five hours, shift coverage will be treated as a day off cancelled in accordance with the current Bus Operators' Award The past and current practice relating to the calculation and payment of a DOC full shift and the relationship to build-up will remain unaltered. Sequence to be followed for full shifts OVER five (5) hours: A) If a Bus Operator does not report for duty and the shift is greater than 5 hours it will be offered: As a DOC to a Full Time Bus Operator from that Depot, who is rostered off or then; As a DOC to a part Time Bus Operator from that Depot, who is rostered off or then; As work to a casual Bus Operator. B) If the shift is greater than 5 hours and cannot be filled by the actions in "A" above, then the shift is to be covered by WAD and/or VOT in the following manner: To Bus Operators working on the day during WAD periods, as VOT prior to starting a rostered shift or in the middle of a Broken shift or at the conclusion of a shift; then; Shift portions as VOT to Bus Operators on Rostered Days Off; If the shift cannot be filled as above then it will be filled in accordance with section C below. 3. Procedure LESS THAN FIVE (5) HOURS Where a period of 5 hours or less is to be worked, whether it is part of a full shift or a part time shift, the period will be treated as voluntary overtime (VOT). A minimum period of four hours will be paid to staff brought in on a day off subject to the following: Sequence to be followed for shifts UNDER five (5) hours; C) If a Bus Operator does not report for duty and the work is less than 5 hours it will be offered in the following manner: It is to be covered by WAD staff if practicable or offered as VOT to other staff prior to their starting a rostered shift or in the middle of their broken shift or at the conclusion of their shift; The shift is not covered as in Step (1) above) it will be offered to employees on a rostered day off as VOT; If not covered by step 2 it will be offered to casual staff; If all avenues have been exhausted the shift is to be cancelled. 47This agreement outlines the steps to be taken to allocate overtime to fill a rostered bus operator shift due to absence. 48On 19 August 2011, the State Transit Authority Division of Government Service Bus Service Bus Operations Enterprise (State) Interim Award 2011 came into force. 49On 4 April 2012, the current Award came into force with a nominal term of three years expiring on 31 December 2014. 50According to Mr Preston's evidence, on or around September 2011, the STA "flagged" to the RTBU changes to work practices which have become known as the "Rowley Reforms" (this name is a reference to the Chief Executive of the STA). The two main features of the proposals are those issues which are the subject of this dispute. 51Mr Preston's evidence was that the proposals have been completely rejected by members of the RTBU and in many instances, Mr Rowley in outlining the changes at meetings of members, has been met with outright hostility. 52At the Randwick depot, the operators walked out of the depot and did not return until Mr Rowley had departed. Mr Preston stated that the RTBU did not accept the STA's contention that conversion of shifts would only occur through natural attrition. He annexed an internal STA email forwarded to roster clerks in all depots, advising them not to fill any vacant lines on the full-time rosters. The email was dated 7 August 2013 and read: "Please advised (sic) that under no circumstances are any Broken Rosters to be filled when compiling the current advertised Roster Book Applications. ... Roster Co-Ordinator/Special Events Scheduler." 53This resulted in Mr Preston contending that the STA had already started to actively implement its objective of transforming full-time work into part-time and/or casual work. 54Mr Preston's evidence was that the position at the Brookvale Depot was a good demonstration of the potential of the change. In approximately 2007, the STA revised its roster at the Brookvale Depot and created 50 part-time roster lines, even though it did not have 50 part-time employees. It simply used full-time employees to cover the lines, but has progressively filled them with part-time employees. For a number of years now, he said, no full-time employees have been hired at the Brookvale Depot and all new hires are part-time. The part-time employees at Brookvale are having great trouble transferring to full-time employment and the RTBU has received a large number of complaints from members at Brookvale who are part-time and want to transfer to full-time employment. 55Mr Preston stated that he was very concerned that if part-time broken shifts came into effect, a great deal of the work currently allocated to full-time employees would be able to be rostered as part-time work. He said the proposed changes would permit the STA to operate in the same way as the private bus operators, who hire all new employees as casuals, some of whom may eventually progress to part-time and full-time employment. This transformation would constitute a drastic reduction in the employment conditions of STA drivers. He stated that while employed as a casual driver with Busways, he worked a broken shift. He was paid "one hour in the morning from 7.30am to 8.30am and then another 2.5 hours from 3.00pm to 4.30pm (sic) with his whole working day being occupied by 3.5 hours paid work".

Evidence in reply 56The RTBU tendered further statements of Mr Preston, Mr Way and Mr Woollams that addressed certain oral evidence given by Mr Eldridge. During cross-examination, Mr Eldridge's evidence was that during the discussions between the parties that led to the making of the 2012 Award, he had informed the RTBU that the STA might seek to use casual bus operators to cover all absenteeism and introduce part-time broken shifts without an award variation and without agreement. 57Mr Preston stated that during the discussions that led to the making of the 2012 Award, there was no suggestion made by Mr Eldridge that the STA would, or could introduce any changes to conditions that had not been agreed with the RTBU. 58Mr Preston provided the dates of 9 meetings (between 9 April 2011 and 28 October 2011) that occurred during the Award negotiations in 2011 and it would seem the 2012 Award, noting that the 2011 Interim Award came into force on 19 August 2011. He stated he was present at all of these meetings and had no recollection of any officer of the STA stating that they could introduce part-time broken shifts and casual bus operators to cover absenteeism without an Award variation. 59Mr Preston stated that he recalled being invited to a meeting by Mr Eldridge with Mr Peter Rowley, the Chief Executive Officer of the STA in April 2012. Mr Way, the Divisional President of the RTBU, was also invited to the meeting. Mr Preston stated that during the meeting Mr Rowley said "Savings must be made, otherwise State Transit might not get the next round of bus contracts". 60Mr Rowley also identified changes which he stated, were necessary for what he described as the savings which had to be achieved. Mr Preston said that three of the such changes were: (a)Casual bus operators to perform all overtime in the first instance; (b)Part-time operators being allowed to work broken shifts; (c)The removal of ADO pay and instead bus operators to work 20 days (currently bus operators work 19 days, plus an ADO paid on the day). 61Mr Preston's evidence was that prior to this meeting he had not been told by or on behalf of the STA, that STA could, or might introduce "part-time broken shifts" and casual bus operators to cover all abseentism", without first obtaining agreement with the RTBU, or appropriate orders from the Tribunal for Award variation. His evidence was that he was confident if he had heard such suggestions at an earlier time, he would not have forgotten them, given their significance to RTBU and its members. It will be recalled that Mr Preston's earlier evidence was that on or around September 2011, the STA had "flagged" changes to work practices which had become known as the "Rowley Reform" and included the two issues in this dispute (at [50]). Mr Preston was not asked to explain what he meant by the word "flagged". The distinction between what Mr Preston was told in or around September and what he and Mr Way and Mr Woollams recalled Mr Rowley saying in April 2012, may lie in the fact that the STA did not raise obtaining the RTBU's agreement or approval from this Commission. In any event, the evidence is reasonably clear that the STA did not seek to change the conditions the subject of these proceedings until after both the 2011 Interim Award and the 2012 Award was made. 62Similar evidence was given by Mr Way and Mr Woollams, who attended all of the nine meetings relating to negotiations for the 2011/2012 Award that Mr Eldridge had not informed those attending these meetings that the STA was entitled to have part-time bus operators work broken shifts without Award variation. 63Mr Preston, Mr Way and Mr Woollams were each cross-examined in respect of their additional evidence, but remained unshaken as to when they recalled Mr Rowley making comments about changes to the working conditions of their members. 64Also in reply, Mr Woods tendered the contracts of two part-time bus operators. The contracts indicated that these two bus operators had sought the STA's approval to be allowed to work part-time. The agreement was conditional upon the acceptance of the job share partner and was drafted to allow the two part-time bus operators to share a full-time line of work, as they had requested. No further evidence was provided to the Commission in respect of the number of part-time bus operators who had entered into similar arrangements. 65The tender was received after the following exchange: TAYLOR: I indicated to my friend that we would not object to the late tender provided that some further facts could be agreed, otherwise we would object because we would need to go into evidence about it. I understand there is no objection to some further facts being agreed. I will now read those facts to your Honour so that that can be put on the record. Firstly, these two contracts are for a single position. Second, is it is a full time position. Third, in order to job share a position it must be a full time position. Fourth, it has to be a position in the main line roster. Fifth, it is initiated by the full time employee who has that position seeking to job share. Next, the full time person must find another driver who is willing to job share. Next, the STA must approve the job share. Next, it is done pursuant to cl 11 of the Award titled job share. And without I interpolate there that cl 11 has three clauses. If your Honour has exhibit 3 handy you will see that provision. It starts by indicating that the parties will enable employees to participate in job share arrangements where possible with the intention being to improve employee retention rates particularly in respect of those who are looking to reduce hours prior to retirement or having to balance personal commitments. It indicates in 11.2 the need for these things to be documented in writing. And then in 11.3 it indicates that the arrangement lapses on either of the participants returning to full time work or transferring to another line of working. To go back to the agreed facts, a further agreed fact is that if either driver in the job share arrangement no longer wishes to do it, then the person whose position it was, must revert back to full time work. The next fact is that whilst these two documents refer to working part time, in the past when employees were engaged on a job share basis such agreements didn't refer to part time employment but simply referred to job share work. And the last fact that we seek to have agreed that I did not raise with my friend, so I will see if there is any issue with this. Because this is a full time position, the drivers would get a build up in the normal way because of it being a full time position. Your Honour, while I am on my feet, the Union's position to this is simple. This is a full time job, not a part time job. It is entered into according it arrangements which are in the award that permit job share, in the parlance of the Union the full time employee owns that line of work. It is a full time job. This is not part time employment as contemplated by these proceedings. It is in a sense a special arrangement which the Award specifically contemplates and we say that your Honour won't be diverted from the overwhelming evidence, including the categorical statement of Mr Eldridge that there is and never has been such a thing as part time work worked by STA employees. HIS HONOUR: Is there any evidence of job share? TAYLOR: The only evidence before you is one job done by two people. HIS HONOUR: Thank you. TAYLOR: I should have made clear, our consent to the tender is conditional upon those facts being agreed, otherwise we will submit that your Honour we should not take up time at this late stage with material that could have been dealt with at an earlier time which would require us to go into evidence. HIS HONOUR: Mr Woods do you agree to the WOODS: The one that my friend, that he had not raised with me. HIS HONOUR: That is the last one, because full time drivers would get build up. WOODS: We don't believe that to be the true position. And it is not borne out by the pay records that are within not that your Honour has seen them yet within the bundles that we presented, I don't think. And so my instructions is that doesn't happen. If my friend presses that objection then in terms of the consent to the documents I am in your Honour's hands as to what approach, but I would say notwithstanding that, your Honour could accept the documents on the basis I put. TAYLOR: Your Honour, can I deal with it this way. These particular employees are engaged on shifts of seven hours and 57 minutes. That is they are engaged on shifts which if worked by a full timer would not require build up. So there is nothing in this statement, in this material to tell you one way or the other. If my friend says these particular employees do not get build up that must be true, given the shift length. If my friend says that he wishes to contend that other employees in a like situation wouldn't get build up, I simply say there is no evidence about that one way or the other and we are content for that to go forward on that basis. HIS HONOUR: He says the former, that is demonstrated by pay records which are part of the tender, which I have not seen, dealing with these two specific employees. That's the extent of the evidence. TAYLOR: The extent of the evidence I think is these two particular employees do not get build up and there are pay records attached to the back of them and we say that doesn't assist your Honour to know others whose shifts are less than 30 hours 36 minutes would or wouldn't get build up because these would not given these shift lengths. You will see one of the portions is three hours 40 minutes and the other portion is four hours and 17 minutes. And so this isn't the type of work that Mr Eldridge's evidence was, would be offered to those that they wish to put on part time brokens where there was material suggesting shift lengths of considerably less than three hours. HIS HONOUR: Yes Mr Woods, leave is granted. (Documents handed up.)

Statutory provisions 66The relevant statutory provisions are s 136 and s 175 of the Industrial Relations Act 1996 ("the IR Act") which are in the following terms: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. ... 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).

Principles - s 175 of the IR Act 67It was common ground that the Commission had jurisdiction to provide relief as sought by the RTBU with a combination of the powers in s 136(1)(a) and s 175 of the IR Act. Section 175 enables the Commission to determine the proper interpretation of relevant clauses in an Award. In Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359, the Full Bench, which was considering a question as to the interpretation of "no extra claims provisions" in an award, or in a memorandum of understanding, observed at [57] - [58]: [57] So as far as the interpretation or application of the subject awards is concerned there is ample power in s 175 of the Act for a determination to be made as to the effect of the "no extra claims" clauses of the awards. The issue raised as to the "no extra claim" clause plainly involves a question concerning the interpretation, application or operation of an industrial instrument, namely, an award (see definition of industrial instrument in s 8 of the Act) and that question arises for the purposes of the Commission exercising its functions in relation to a matter before it, namely the industrial disputes. [58] In our view, the section allows the Commission to declare the true meaning and intent of a particular provision of an award: Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch v ADT Security Pty Limited and Others (1994) 54 IR 26 at [41]. (That matter concerned the interpretation of s 198 of the then Industrial Relations Act 1991 (NSW) but, in our view, it is equally applicable in the present context).

Principles to be applied in the interpretation of an award 68In Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170, the Full Bench considered the principles of award interpretation. After referring to s 175 of the IR Act, the Full Bench stated at [38] - [47] as follows: [38] The Interpretation Act 1987 applies to the interpretation of awards (see s 3(1)), thereby entrenching the long held principle that awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liquidation) v McKenzie [1929] 28 AR (NSW) 498 at 503. [39] There are four principles of statutory (and award) interpretation that are of particular relevance to the issue we have to decide in this case, which is whether cl 9.6.1 of the Award applies to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts. [40] First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. [41] The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking and Others (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 459. [42] This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67 at [14] and [16]: [14] However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].) ... [16] The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].) [43] Secondly, in CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated: ... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales (2004) 135 IR 56 at [44]. [44] Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113: Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. [45] This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted: Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments... [46] Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. [47] Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 69See also Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union; Sydney Water Corporation v The Association of Professional Engineers, Scientists and Managers, Australia (NSW) Branch [2010] NSWIRComm 158.

Consideration 70Two issues arise for determination in these matters. Firstly, whether the STA has the ability to engage and roster permanent part-time bus operators to undertake broken shifts. This would result in the introduction of part-time broken shifts. Secondly, whether the STA has the ability to roster casual employees, in the first instance, to fill vacant shifts, including replacing full-time and part-time employees who resign their employment with the STA. 71In my opinion, for the reasons that follow, each of these matters should be resolved in the negative. 72I have already set out the material facts. I turn to deal firstly with the part-time broken shift issue.

Part-time broken shift 73The evidence discloses that in July 1991, the STA lodged an application to vary the 1981 Award to include provisions for part-time temporary and casual employment of bus operators. The variation was opposed by the RTBU. However, the Australian Industrial Relations Commission (Lawson C), granted the application that allowed the STA to engage part-time bus operators for two separate periods on one day. These employees were not entitled to be paid a broken shift allowance/penalty. Part-time bus operators were required to sign-on and sign-off at the end of their first shift and subsequently sign-on at the beginning of their second shift and sign-off at its completion. They were not required to remain at the bus depot during periods between shifts when they were signed-off. In general terms, the engagement of part-time bus operators continued until 1 March 2001, when the RTBU engaged in an industrial dispute in respect of part-time work. 74By letter dated 10 April 2001, STA, although noting that it had "legal protection to roster part-time employees on split shifts" advised the RTBU that it had decided to phase out this practice. No new offers of employment containing, what the STA and the RTBU described as, "split shifts" were made to part-time employees from 6 April 2001. STA advised that through attrition, these shifts would be phased out and it would be the intention of STA to employ part-time employees with a single engagement per day. 75Existing part-time bus operators who were engaged under the two shift arrangements continued to work two shifts in one day, until they either requested to move to another line of part-time work, accepted a full-time position, or resigned. 76The State Transit Authority of New South Wales Bus Operators Enterprise Agreement 2002, reflected the agreement reached between the parties in cl 10 of the agreement which provided: It is agreed that new employees offered part time Bus Operators positions will not be offered or rostered for two shifts on any day. 77The Award provision that broken shift penalties were not to be paid to part-time employees was therefore rendered otiose and was removed as part of the next Award variation: see State Transit Authority of New South Wales Bus Traffic Employees' Award 2002. 78Mr Eldridge's evidence was that part-time bus operators had never been rostered to work a broken shift. 79The STA did not pursue part-time broken shifts until the issue was the subject of further negotiations surrounding the 2009 Award. 80It will be recalled that negotiations between the parties broke down over the proposal by the STA to fill planned and unplanned absences of part-time bus drivers with casual drivers. Industrial action occurred. Boland J President recommended the acceptance of the STA's offer, except that part of the offer relating to casual drivers. Part of the STA's proposal during these negotiations was what was described as a "variation to existing award to permit broken shifts for part-time employees". 81The RTBU opposed this initiative and it was ultimately not pursued in the negotiations. There was no specific reference to part-time broken shifts in the 2009 Award. 82Clause 13.3 of the current Award provides: It is agreed that new employees offered part time Bus Operator positions will not be offered or rostered for two shifts on any day. 83This clause reflects the agreement reached in April 2001 in respect of part-time bus operators working two shifts per day. In respect of cl 13.3 the STA takes, in my view, an overly "unreasonable and unnatural construction" given the background to the amendment of this subclause in contending that a broken shift is not two shifts on the one day, but one when worked by a part-time bus operator who receives no broken shift penalty. It submits cl 13.3 does not apply to prevent part-time employees working a broken shift. 84However, the history of this clause, as set out in the evidence, and the nature of the agreement reached between the parties, gives rise to a different interpretation by the RTBU which is that the clause was, and does prevent part-timers being engaged on a split shift, or broken shift basis. On a proper reading of the Award and taking into account the intention of the parties which I will proceed to address, in my view, the construction contended for by the RTBU should be preferred. In addition, as I have already noted, if part-time drivers are rostered for a broken shift, they receive 25 per cent less pay than full-time employees because they are not paid for the period between the shift where no work is undertaken, unlike permanent bus drivers. 85Clause 13.7 provides that the employer is required to roster a regular part-time bus operator for a minimum of three consecutive hours on any shift. 86Mr Woods submitted that cl 28.6 (Length of shift - broken shifts); cl 28.7 (Maximum spread of hours); and cl 28.9 (Hours of work before and after meal break); Hours of Work and cl 35 Shift Penalties applied to permanent part-time bus drivers. This is undoubtedly correct. 87However, as a result of the agreement struck in 2002, despite the matter being revisited for example, in 2009, part-time employees have not worked broken shifts since that time. Furthermore, I find the evidence tendered by Mr Woods in reply does not alter the position for the reasons outlined by Mr Taylor (at [65]). 88It is clear, therefore, in my view, that both the intent and effect of cl 13.3, was to prohibit the engagement of part-time employees on broken shifts. The fact that the provision was not as clearly expressed and gives rise to ambiguity, is not the point. It is the parties manifest intention which is essential and relevant, as the High Court of Australia in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [40]; 219 CLR 165 at 179 stated: ... What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. 89Applying these principles to the evidence, which I have set out, the intention of cl 13.3 was to proscribe the practice of part-time broken shifts. The STA in submitting that a broken shift was not two shifts, pointed to the fact that when working a broken shift, bus operators sign-on for a broken shift at the commencement of the first portion of the broken shift and do not sign-off until the end of the second portion of the broken shift. 90Mr Eldridge confirmed in his evidence, that in his view "consecutive shifts" by which he apparently meant "two shifts in a day", were characterised by two sign-ons and two sign-offs. However, the Bus Operations Handbook provides at paragraph 5.1(b): "When starting a broken shift Bus Operators must sign on at the commencement of each half and sign off at the completion of each half." 91This evidence highlights a lack of distinction between a broken shift and two shifts in a day. After being taken to the definition of a broken shift in cl 3.2 of the Award, Mr Eldridge explained the distinction between a broken shift and consecutive shifts, was "a broken shift is treated as one shift for pay purposes". 92Mr Taylor submitted that there could hardly be a stronger evidentiary basis for the implication of a term by custom and practice or usage. The evidence was that full-time employees are aware that broken shift work is reserved for them and part-time employees know that they will not be asked to work broken shifts with WAD. 93The circumstances in which the Commission will find that a custom, practice or usage exists were identified by Beattie J (as he then was) In re Australian Iron & Steel Limited and the Federated Ironworkers' Association of Australia, New South Wales Division re Demolishers (1960) 59 AR 670 at 681 - 682 where his Honour stated: In Halsbury's Laws of England, 3rd ed., Vol XI, p. 182, the following appears:- "Usage may be broadly defined as a particular course of dealing or line of conduct generally adopted by persons engaged in a particular department or business life, or more fully as a particular course of dealing or line of conduct which has acquired such notoriety, that where persons enter into contractual relationships, in matters respecting the particular branch of business life where the usage is alleged to exist, those persons must be taken to have intended to follow that course of dealing or line of conduct, unless they have expressly or impliedly stipulated to the contrary; that is to say that a rule of conduct amounts to a usage, if so generally known in the particular department of business life in which the case occurs, that, unless expressly or impliedly excluded, it must be considered as forming part of the contract." Dealing with the characteristics of a usage, Halsbury says at pp. 184-186, "Every usage, whether in respect of a particular trade, branch of business or occupation, and whether affecting land or not, must be notorious, certain, and reasonable, and it must not offend against the intention of any legislative enactment." "Every usage must have acquired such notoriety in the particular market or branch of trade or in the department of business or amongst the class of persons who are affected by it, that any person in that branch or department or class who enters into a contract of a nature affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. Notoriety in this connexion does not mean that it must be known to all the world, nor even that it should be known to the person against whom it is asserted; but it means that it must be well known at the place to which it applies, and be capable of ready ascertainment by any person who proposes to enter into a contract of which that usage would form part." "Every usage be certain. It must be uniform as well as reasonable, and in order to be incorporated as a term in a written contract it must have just as much certainty as the written contract itself. A usage is not, however, bad for uncertainty merely because it depends in its operation upon what a tribunal thinks to be reasonable." 94His Honour (at 244) then went on to observe that a practice, if found to be a usage alterable by agreement only: 'even so remains subject to any order or award made by the Commission pursuant to s.25 in settlement of the present dispute. Whether or not the practice should continue beyond a reasonable period in the present circumstances is, therefore, the more cogent issue.' 95This formulation was adopted more recently by the Full Bench in NSW Nurses' Association v South Western Sydney Health Service [1994] NSWIRComm 147, where the Full Bench stated: We take the view that the approach adopted by His Honour Justice Watson in In re Australian Fertilizers Ltd and the Australian Worker's Union, New South Wales Branch [1983] AR 237 should be followed. His Honour dealt with the concept of a 'usage' at pages 243-244: 'The Commission in Court Session in the Collective Responsibility Case [(1972) AR 80 at 98 and 99] approved the following passage from a judgment of Beattie J (as he then was) in the Furnace Demolishers Case [(1960). ...' 96The Full Bench then set out the observations of Beattie J in the Furnace Demolishers case, to which I have earlier referred. 97Watson J In re Federated Ironworkers' Association of Australia, New South Wales Division and Australian Fertilizers Ltd Re Overtime [1977] AR 17 at 22 stated after referring to Furnace Demolishers: I am satisfied from a careful consideration of the evidence that there has been a practice which amounts to a "usage" in the maintenance section in the provision of taxis in the circumstances in issue in this case and set out above. In so far as employees at present employed are concerned and who enjoy this benefit namely those who do not and have not been providing their own transport, the practice should not be discounted. I determine this aspect of the dispute accordingly. In the case of any new employees a different position can arise if the company expressly contracts with them on employment that the more general practice as applying to production workers will be the position in their case. I express no view whether or not this should occur. 98It is necessary, therefore, to examine the evidence in respect of whether a usage could be said to exist in respect of part-time broken shifts. 99There is no dispute that part-time bus operators worked a broken shift for a period of time until the RTBU objected in 2001. Following this objection, an agreement was reached and part-time employees have not worked broken shifts since that time apart from those that had been employed as such prior to the agreement being struck. 100In my view, and I find, a usage is established on the evidence, to which I have already referred, that part-time bus drivers do not work broken shifts. In these circumstances, the STA is not entitled to unilaterally alter a term of the employees' contracts which would depart from the custom and practice or usage. To do so, would be a breach of contract. 101The Commission, therefore, in exercising its functions, should preserve the custom, practice and usage unless and until some industrially sound basis for its abandonment is identified. The fact that the STA will obtain some commercial benefit by change, which will visit harshness and unfairness on full-time employees is not an industrially sound basis for change.

Utilisation of casuals 102It was common ground that following a variation to the 1981 Award in July 1993, provision was made for the employment of part-time and casual bus operators. On 8 November 1993, the STA reached an agreement with the RTBU's predecessor regarding how casuals were to be engaged. The agreement which was contained in an internal memo of the STA relevantly provided under the heading "Casual Staff": Considerable discussion took place regarding introduction of casual staff for Sydney Buses and the following was agreed to with the PTU: All known work to be placed in the roster prior to 4.00 p.m. Monday to Friday. On-call staff to be arranged for the following day as per the EBA guidelines. All shifts that require coverage from 4.00 p.m. onwards be staffed by the on-call staff rostered for the next day, in the first instance. If on-call staff are unavailable casuals to be brought in. On the day and when on-call staff have been utilised, casuals would then be brought in for all other absences on the day. Part-shifts requiring coverage on the day wherever possible would be covered by voluntary overtime. If at any time on-call staff volunteers are not available all shifts requiring coverage would be staffed by casuals. If additional work is available on the day such as emergency rail work casuals would be brought in to assist in that process. Our objective now is to introduce casual staff for Sydney Buses from the week commencing 5 December 1993. The above represents the broader picture of the agreement with the PTU and considerable work will now be undertaken regarding recruitment and general conditions etc. Again this information will be forwarded to you by close of business on Wednesday, 10 November, 1993. Would you give your personal involvement in the development of these part-time rosters to ensure your Business Unit is in a position to implement part-time rosters week commencing 12 December, 1993. 103It is instructive to recount the history of the Award in respect of the utilisation of casuals. It is characterised by partial arbitration, but predominantly negotiation. 104Until the commencement of the 2002 Award on 5 July 2002, part-time bus operators had not been permitted to work overtime, except in emergency or agreed circumstances in accordance with cl 43(d) of the 1981 Award. 105It was also common ground that working on Sundays has been on an overtime basis since the early 1990s. Since the mid to late 1990s, full-time bus operators have been rostered for Sunday overtime shifts. There was some dispute as to whether Sunday work was voluntary or not. However, for the purposes of determining the issues in these disputes, nothing turns upon that question as Mr Woods conceded that the STA was not intending to interfere with the practice in respect of Sunday work. 106The 2004 Enterprise Agreement contained the following clause: 32. PART TIME EMPLOYMENT 32.1 The parties agree that Part Time employees can be utilized to perform work in excess of their daily agreed hours if full time Bus Operators at the Depot are unavailable to undertake the work required to be performed to maintain service delivery on the day. 32. 2 State Transit will establish a record book at each depot, in the CSC Office for all permanent staff wishing to do additional duties/VOT on the day. 32.3 Should additional work be allocated, it is to be allocated to full time staff in the first instance. If no full time staff is available, part time employees may be allocated the additional duties. 107Clause 32.3 of the 2004 Enterprise Agreement became cl 33.4 in the 2007 Award. The RTBU continued to oppose the use of casual bus operators. 108During the 2009 Award negotiations, the parties agreed that part-time bus operators absences could be covered by casuals in the first instance, as part of the negotiations in accordance with the New South Wales Public Sector Wages Policy 2007. This amendment was designed to fund an increase in excess of above the 2.5 per cent of employees' wages. 109In 2009, the RTBU accepted a limited relaxation on the ability to use casuals, namely, that casuals could be used in the first instance to replace part-timers when they were absent. Otherwise, the STA's proposal to extend the use of casuals was rejected. Part-time bus drivers have never been rostered to work split shifts since agreement was reached between the parties in 2001. 110The 2009 Award introduced the following changes: (a)clause 10 (Establishment of Additional Part Time and Casual Work) - the limit of part-time and casual operators was reduced to 22%. (b)A new clause 12.7 provided: A casual Bus operator will be utilised in the first instance, whenever practicable, to cover planned and unplanned absences of Part-time Bus Operators. (c)Clause 33.4 (Working of Voluntary Overtime) was amended to refer to casual bus operators: 33.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time Employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties. 111These clauses remain unaltered in the current Award, although the provisions relating to working voluntary overtime are now found in cl 32 of the Award. It is convenient to restate the terms of this clause: 32. Working of Voluntary Overtime 32.1 Subject to any statutory or regulatory limits on driving hours and clause 75, a Bus Operator may work voluntary overtime. 32.2 Where voluntary overtime is worked on a Sunday and the shift is less than seven hours, the voluntary overtime will not attract shift build up time. 32.3 State Transit will establish a record book at each depot, in the Duty Office, for all permanent staff wishing to do additional duties/Voluntary Overtime on the day. 32.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties. 112As a result of disputation regarding the engagement and the allocation of overtime to fill a rostered bus operator shift due to absences, an agreement was reached between the parties on 9 December 2010 in proceedings before Grayson DP, referred to earlier in this decision. This followed upon the understanding as to how shifts were filled, as set out by Mr Eldridge in his letter of 13 October 2013 (at [44]). 113The procedure, as set out in the Agreement, outlined the steps to be taken to fill a rostered bus operator shift when a shift fails due to absence on the day it is rostered. 114The evidence discloses that the 1981 Award made provision for the engagement of part-time or casual employees (cl 42 and cl 43). In my view, it is against this background that variations to the Award in respect of the engagement of both part-time bus operators and casual bus operators, has to be considered. A casual bus operator was defined as a bus operator engaged on a daily basis, who was paid a 20 per cent loading and an additional 15 per cent for all time worked. Casuals were not entitled to broken shift penalties which applied only to full-time employees and was required to have a break of at least 10 hours between the end of one shift. 115I have already dealt with the history of the changes made to the various Awards in respect of these two types of employees. Apart from cl 10 (Establishment of Additional Part Time and Casual Work) which sets a limit of 22 per cent of total bus operators at each depot who may be engaged on arrangements other than full-time, the only other clauses that, for present purposes, directly address work undertaken by casuals are cl 12.7 and cl 32.4. It is to be borne in mind that the cap in part-time casual operators was reduced to 22 per cent during the negotiations in 2009. In light of the history in respect to this issue, it is difficult to conclude that the RTBU would have agreed to a clause which would have permitted part-time and casuals to work two shifts a day. 116Clause 12.7, enables casual bus operators to be utilised, when practicable, to cover planned and unplanned absences of part-time bus operators. This variation resulted from an agreement reached between the parties. Clause 32.4 provides the basis upon which additional work shall be allocated. 117Mr Taylor submitted that cl 32.4 of the Award should be applied to all "additional work" based once again on custom, practice and usage. The STA rejected this contention. However, the evidence is that currently, and certainly since the agreement reached before Grayson DP, that a practice has existed where casuals have not been engaged to cover portions of a shift or a whole shift worked by full-time employees. The RTBU has consistently opposed the allocation of work to employees, other than full-time employees, except in the limited circumstances provided for in cl 12.7 and cl 32.4. 118It was clear from the dispute before Grayson DP, that the STA did not accept that the Award limited its ability to allocate work and engage staff including casuals to undertake that work. However, the parties reached an agreement which has continued to date. The evidence was the use of casuals to cover absenteeism, has been very infrequent. 119Clause 32.4 is a clause which makes clear that additional work is to be offered to full-time employees to work, then part-time and then casuals. The clause concludes with the words "additional duties", a term used in cl 34.3 which must have been intended by the parties to be interchangeable with the words "additional work". As Mr Woods submitted it identifies a priority allocation of a particular type of work to a particular class of employee. Part-time employees where permitted to be engaged in accordance with this clause and when that category is exhausted, casuals may be engaged. 120The STA contends that it is entitled to rostered casuals in accordance with cl 32.4, based on the joint reading of cl 32.3 and cl 32.4. Clause 32.3 provides that the "STA shall establish a record book at each depot, in the duty office, for all permanent staff wishing to do additional duties/voluntary overtime on the day". The STA interprets the words "on the day" as meaning specifically on a given day and imports those words into cl 32.4. These words do not appear in cl 32.4. The STA contends that the additional work is in addition to that being worked on a day that the employee is working as part of their shift that falls on that actual day. 121The words "on the day", given their ordinary meaning, are, to my mind, a reference to additional work on the day a full-time bus operator is working or on a day known in advance of the actual day that additional work is required. That is, "on the day" means "any day". This construction is consistent with the history of the subclause and the intention of the parties. Subclause 34.3 requires the bus driver to have indicated in advance that he or she, by placing their names in a book, is willing to be called into work. The words "who is already working on the day", which the STA would have inserted, do not appear in the subclause. It is, of course, inappropriate to read such words into s 32.3 as the STA interpretation would require, in order for their interpretation of the subclause, to be correct. For example, the parties could have used words such as "who is already working on the actual day that work becomes available". These words would give rise to a different interpretation. 122Furthermore, the contention by the STA that cl 34.3 is merely repeating cl 34.1 in dealing with how additional work is to be allocated is misconceived. Section 34.1 provides that bus operators may work overtime. That is, permanent, part-time and casuals. Section 34.3 deals with permanent staff who wish to work additional further overtime. Casuals and non-permanent part-time employees are not permanent staff. This is the reason that cl 34.4 commences with a reference to additional work and a reference to "full time staff" which should be read as a reference to permanent staff as found at cl 34.3. 123The STA contends that the words "additional work" and "additional duties" found in cl 32.4 is additional work to be carried out on the day that an employee is already working additional duties/voluntary overtime as referred to in cl 32.3. Giving the words "additional work" their ordinary meaning, these words refer to additional duties/voluntary overtime, as described in cl 32.3. This interpretation is consistent with the evidence of the RTBU's witnesses, that all voluntary overtime is offered first to full-time employees, then part-time employees, then casuals, subject to the exclusion found in cl 12.7, which gives casuals a third their preference. 124In my view, and I so determine, the proper interpretation to be given to the words "additional work" and "additional duties", as found in cl 32.4 is any work in addition to that which employees who are rostered Monday to Saturday are available to carry out. Any and all additional work must be allocated to full-time/permanent staff at first instance, as required by cl 32.4. On this interpretation, it is not possible for the STA to commence rostering casuals ahead of full-time permanent staff, other than as permitted by cl 12.7, which enables the engagement, on a limited basis, of casuals. This change was agreed by the RTBU in return for a pay rise of 0.5 per cent. 125The clear intention of the parties was that casual employees would only be utilised to cover vacant shifts and lines of work caused by absenteeism if no full-time employee, or part-time employee was available. 126Clause 12.7 authorises the use of casuals to cover planned and unplanned absences of part-time operators. If the STA's contentions were correct, there would be no need for the authorisation found in cl 12.7. It would be free to allocate that work to casuals in any case and cl 12.7 would be otiose. Such an interpretation is to be avoided in accordance with the principles that require all words of an instrument to be given meaning: see Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 (at [71]). 127As I have already observed, the STA's interpretation of work "on the day" is work identified on the day and not in advance. The RTBU's position was regardless of whether the additional work arose as a partial or full shift and whether it was known in advance or arose on the day there was, and continues to be, a well-known practice, as demonstrated by the evidence. This practice has been reflected in how cl 32.4 has operated since at least 2002. Both Mr Eldridge and Mr Byatt accepted that it was a long established practice that where vacant shifts are known in advance, they are to use the industry term DOC'd (Day Off Cancelled). That is, the shifts are given to full-time drivers, not rostered on that day, in order of the amount of DOC work they have worked. 128DOC shifts are shared among the full-time drivers and casuals are not engaged unless all available full-time employees have been offered the work. This requires such work to be initially offered to full-timers, then to part-timers and only in circumstances where there was insufficient persons willing to work that partial or full shifts would the STA then engage a casual. 129DOC shifts are paid on the basis that for such a shift, a bus driver gets approximately one third of an ordinary week's wages for working a shift which attracts DOC. Unsurprisingly, there is no shortage of volunteers for such work. It is considered by full-time bus operators to be an important, and perhaps essential, part of their income. The evidence discloses that this work has always been done on the basis of a full shift, whether it arises on the day or in advance and been offered to full-time employees initially. The practice in respect of this work was again made clear as a result of the proceedings before Grayson DP. The RTBU's evidence and that of Mr Eldridge, confirmed the practice was in existence prior to the dispute. It has remained the practice. 130Although the STA contends that this agreement only applied during the life of the 2011 Award, it did not seek to alter that arrangement during the negotiations for the 2011/2012 Award. Nor did it seek to arbitrate this issue. The current Award was made in the same terms as the 2011 Award and the RTBU contends these arrangements cannot be changed during the life of the Award in light of the No Extra Claims Clause, which I will turn to consider shortly. 131The RTBU contended that all work, whether it arose on the day, or in advance, was caught by cl 32.4. As I have already determined, I agree with this submission. As was observed in Kucks v CSR Ltd (1996) 66 IR 182, industrial instruments are to be construed in the knowledge that the drafters of the provisions were more concerned with the practical resolution of disputes than the legal or logical perfection in expression. 132It is important to recall that the dispute in respect of cl 12.7 arose because the STA took the view that this subclause allowed it to split a shift that emerged on the day and engage a casual for part of the shift and a full-time employee for the balance of the shift and thus avoid the payment of the DOC. 133The practice that was in existence prior to these dispute proceedings in respect of filling vacant shifts, was referred to in both the proceedings before Boland J President and before Grayson DP. It was, no doubt, this practice that resulted in the resolutions of the respective disputes. If the STA's argument in respect of cl 32.4 was correct, it seems to me, as I have earlier observed, that cl 12.7 would be unnecessary. 134Furthermore, in my view, and I find, in accordance with the principles set out earlier, that the method of allocation of overtime has risen to a level of a custom and practice, or a usage. The parties understanding of the method of allocation of overtime has been reduced to writing on at least two occasions and has been uniformly applied. I also find that it is a term of the contracts of employment of STA full-time employees that overtime would be allocated first to them, then part-time, then casuals. 135In addition to the reasons set out above, having carefully considered the evidence, in my opinion, the industrial merits in this matter also favour the RTBU's position. 136I note in passing that cl 18 of the Award, makes provision in relation to Income Protection. This clause provides that there will be no roster changes made solely for the purpose of reducing the take home pay of employees covered by the Award. The clause limits shift changes resulting in a loss of take home pay of more than 2 per cent over a 12 month period below the average pay of each shift type, e.g. am, day, midday, broken and pm shifts, except for part-time rosters. The clause requires the STA to provide the RTBU with a summary of all rosters for employees covered under the Award for all locations at the commencement of each financial year. The annual summary is then used as a base line for the purpose of calculating the total impact on average take home pay of any shift changes which occur in the following 12 month period prior to 30 June 2013. 137This clause is clearly designed to protect the earnings of full-time bus operators, who are not highly paid employees where changes to their roster would reduce their income. The proposals by the STA, if introduced, would have the likely effect of immediately displacing full-time employees and would result in potentially industrial unfairness to such employees. The proposals have been put in the past in exchange for a wage increase and have been rejected in circumstances where the increase in wages proposed for the change in conditions has been regarded by the RTBU as insufficient. Mr Taylor submitted that the proposed changes, if introduced, would potentially reduce full-time bus drivers' wages. Currently, a bus operator Level 1 is paid $879 per week or $45,708 a year. If broken shift penalties and overtime are not available, but operators would face real financial hardship. Clearly, there is substance in this submission. 138The respondent seeks to implement unilaterally what it has not been able to achieve in negotiations in respect of the current Award. It seeks to increase the amount of part-time and casual employment at the STA in pursuit of a commercial advantage; a reduction in employment costs. Such gains would be achieved entirely at the expense of the STA's full-time and, to a lesser extent, part-time workforce and without any benefits flowing to these employees.

No extra claims 139In resisting the STA's proposals, Mr Taylor submitted that they were wholly precluded by the "no extra claims" provision found at cl 6 of the Award. Clause 6 is in the following terms: 6.1 The parties agree that, during the term of the Award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the Award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal. 6.2 The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing Award provisions. ... 140No extra claims clauses are to be construed strictly against the party making a claim: Re Corrections Health Service Nurses' Award (1999) 90 IR 235 at 245. In NSW Education Employees (Non Continuing Contract Employment) Award, Re (1999) 92 IR 239, the Full Bench stated at 245 that no extra claims clauses bind both employers and unions. 141Furthermore, the Full Bench observed that the ambit of no extra claims clauses are not limited to matters explicitly dealt with in the Award. The Full Bench stated at 244: Mr Taylor argued that these matters are not "claims in relation to issues covered by the (1996) award which the No Further Claims clause of that Award prohibits, on the basis that there is no specific provision about those matters already contained in the existing Award. We disagree. There is no doubt that the claims, if granted, would confer significant additional benefits on casual employees and significant additional obligations, both monetary and otherwise, on the respondents in relation to the class of employee. In an industrial relations context the purpose of a no extra claims clause in a consent Award is that for the period of duration of the Award there will be no extra claims in favour of either side unless by agreement. To limit the no extra claims provision to the type of matter already specified in the Award would leave the way open for legalistic, unscrupulous claims in relation to additional matters to be put forward. We do not think that such an interpretation is justifiable in the circumstance of this case : rather , in our opinion , the no extra claims clause precludes the present claims which are aimed at substantially improving , at the expense of the employer, the employment conditions for casuals authorised by the current award. 142This passage has been approved in the following cases: NSW TAFE Commission (Teachers and other Educational Staff) Salaries and Conditions Award 1996, Re (1999) 123 IR 360 at 370 - 371; Re Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs [2008] NSWIRComm 117 at [63]. 143The STA's proposals in this case will impact upon the use of part-time employees, casual employees, the allocation of broken shifts and allocation of overtime. Even if it be accepted that the STA's proposals are not specifically prohibited by the Award, in my view, the subject of part-time employment, casual employment, and the allocation of overtime, are within the category of claims referred to by the Full Bench in the above decision. They are "claims which are aimed at substantially [diminishing], at the expense of (particularly full-time employees), the employment conditions for (employees) authorised by the current Award". This, of course, is a complete answer to the STA's case.

Conclusion 144For the reasons outlined, the proposals by the STA in relation to the use of part-time employees, casual employees and the allocation of broken shifts and overtime, are precluded by the no extra claims clause of the Award, contrary to custom, practice and usage, and as I have endeavoured to explain, contrary to the intention of the parties and/or the terms of the Award.

Determination 145In matter No IRC 700 of 2013, I make the following determination: Pursuant to s 136 and s 175 of the Industrial Relations Act 1996 that: the State Transit Authority's proposed reform initiatives "to utilise casual bus drivers to cover all absenteeism (caused by sickness, workers compensation, unapproved leave, resignation, retirement, or additional shifts is: (i)Contrary to existing custom, practice and usage; (ii)A change which, given cl 6 (no extra claims) of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012 cannot be unilaterally introduced during the term of the Award; and (iii)Not permitted by the Award, and in particular, is contrary to cl 32.4 of the Award. 146In matter No IRC 701 of 2013, I make the following determination: Pursuant to s 136 and s 175 of the Industrial Relations Act 1996, a determination that: the State Transit Authority's proposed reform initiatives "to introduce part-time broken shifts" is: (i)Contrary to existing custom, practice and usage; (ii)A change which, given cl 6 (no extra claims) of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012, cannot be unilaterally introduced during the term of the Award; and (iii)Not permitted by the Award, and in particular, is contrary to cl 13 of the Award.

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: 06 December 2013

Industrial Relations Act 1991(NSW)

[1994] NSWIRComm 147

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