The Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority

The Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority - [2007] NSWIRComm 162 - NSWIRComm 2007 case summary — Zoe

[16]

The RTBU respectfully requests that the Commission list this dispute at its earliest convenience in Sydney. 3 The relevant industrial instrument is the State Transit Authority of the New South Wales Government Service Senior and Salaried Officers Enterprise Agreement ("the Agreement") approved by this Commission pursuant to the Act on 9 May 2006. 4 Commissioner Macdonald convened compulsory conference proceedings on 22 January 2007 which established that the dispute was not capable of resolution by conciliation. 5 The Commissioner issued a Certificate of Unsuccessful Conciliation, made directions for the filing and service of relevant material for arbitration, and scheduled the matter for hearing on 16 and 17 April 2007. 6 The parties sought relocation of the proceedings to Newcastle and the matter was reallocated to the Commission as presently constituted, requiring a revision of directions resulting listing of Hearing on 24 and 25 May 2007. 7 Mr G Panigiris appeared on behalf of the RTBU with Mr D Blair. Ms E Allen appeared on behalf of the State Transit Authority (STA) with Ms J Willingham. 8 At the outset of the Hearing the RTBU sought leave to withdraw, submitting that roster issues generally were subject to proceedings before his Honour Justice Marks in Matter No IRC 110 of 2007. The application was opposed by the STA, which put that the instant matter was not directly part of the proceedings in IRC 07/110 and that the dispute required resolution. 9 The application to withdraw from proceedings was refused. 10 Mr Panigiris brought evidence from Mr David Blair, a Revenue Protection Officer (RPO) based in Newcastle; and Mr Alan Karam, an RPO based in Sydney. 11 Ms Allen brought evidence from Mr Edwin (Ted) Barker, Depot Manager, Hamilton Newcastle Bus and Ferry Services; and Mr Paul Welzel, Manager, Revenue Protection Unit, STA. 12 The relevant provisions of the Agreement are: Disputes Procedure: 23.4 Nothing in this sub-clause prevents the making of an agreement to refer a dispute to a step other than the one next in sequence, in order to accelerate resolution or for some other reason; or the reference of a dispute to the relevant industrial tribunal for urgent resolution.

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18 The STA submits that job security of all employees relying upon the ability of the STA to be operationally efficient in the competitive tender for bus operation routes conducted by the NSW Ministry of Transport is an added incentive to be operationally efficient, putting that failure to secure bus routes in the tender process could have an adverse effect for all employees. 19 The STA submits that the rostering of work for RPO's on Public Holidays is a matter of managerial prerogative subject to business needs; a proposition supported by the plain and ordinary meaning of cl 82.12 of the Agreement. 20 The STA contends that management hold the responsibility to determine operational efficiency and will do so having regard to business needs, which vary between regions, depots and occasions. The STA puts that if RPO's work on a Public Holiday in one region on any occasion/s, that is not a precedent for all regions or all occasions. 21 The STA submits that an obligation to follow the master roster in an inflexible manner resulting in RPO's working on a Public Holiday not supported by business needs is not operationally efficient. 22 The STA denies any breach of the disputes procedure, submitting that there is not a custom and practice, or established operational procedure, supporting the assertion that the "status quo is that RPO's work on a Public Holiday where rostered on by the master roster". 23 The STA asserts that prior to the present dispute there was only one occasion, in 2006, when RPO's worked on a Public Holiday. 24 The STA argues that there is a functional distinction between the master roster and the period roster which can be found on the face of the Agreement and in practice. 25 The STA's position is that the master roster is a template to be used as the foundation for the period roster, constructed to meet the circumstances of the immediate four weekly cycle. 26 The STA contends that this distinction is supported by the plain and ordinary reading of the Agreement, otherwise the Agreement is illogical, ambiguous, and results in no purpose for the period roster. 27 The STA submits that the Agreement provides ample authority for amendment of the master roster in construction of the period roster to require employees to observe the Public Holiday or work as required. 28 Clause 80.14 states: When constructing the period roster, if a day off pattern in the period roster is altered to be different from the master roster, the relevant Manager will consult with affected employees, except during a week where a public holiday falls on a weekday. In such instances, the day off may be inserted in the public holiday.

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34 Mr Karam has been employed as an RPO in Sydney since the inception of the Revenue Protection Unit in April 2003. His evidence in this matter is by Statement (Ex 3). Mr Karam was not required for cross examination. 35 Mr Karam deposes that RPO's in Sydney work in a team of four with two officers working together. Mr Karam states that he has worked all of the Public Holidays rostered to him. 36 Mr Paul Welzel has been employed by the STA as Manager, Revenue Protection Unit from 1991. His evidence in this matter is by Statement (Ex 5) and orally in cross examination by Mr Panigiris. 37 Mr Welzel deposes that prior to employment with the STA he was employed by the NSW Police Service as a Senior Detective performing the duties of a Police Prosecutor. 38 Mr Welzel's evidence is that RPO's in Newcastle do not report to him but are responsible to the Newcastle Depot Manager. Mr Welzel puts that he may provide advice and assistance to the Depot Manager. Mr Welzel confirms the evidence of Mr Karam that RPO's in Sydney work in four person teams with two operating together, adding that there are 26 RPO's in the Sydney unit. 39 Mr Welzel's evidence is that the work of RPO's is determined by management and developed through monthly planning meetings, recommendations of RPO's, or by requests from depots or regional offices to address specific issues. 40 The evidence of Mr Welzel is that the business needs of Revenue Protection within STA varies at different times, different depots and regions. 41 Mr Welzel postulates that revenue protection requirements for events such as Australia Day celebrations may differ between Sydney and Newcastle having regard to the type and size of celebration, and at Easter where the Sydney Royal Easter Show has particular requirements associated with that event. 42 Mr Welzel provided evidence of the penalty notices issued by RPO's and the collection of fines by the Infringement Processing Bureau, noting that there are different experiences in Sydney compared to Newcastle. Mr Welzel deposed that the fare structure is a further distinction between Newcastle and Sydney in that Sydney has a section based fare structure while Newcastle has a time based fare structure. 43 Mr Welzel's evidence is that Sydney RPO's do not operate over a 24 hour seven day roster and accordingly there are times when no RPO's are rostered on services. 44 Mr Welzel confirms that the master roster for Sydney RPO's is a template which generally shows a day off pattern for the 19 day month worked without specific dates, Public Holidays, or annual leave. 45 Mr Welzel's evidence is that the master roster was established by consultation as required by the Agreement some years ago and there has been no need to revise it. The issues of annual leave, Public Holidays, starting and finishing times, work area, or other relevant issues are dealt with by a consultative process in construction of each period roster. 46 Mr Welzel desposes (Ex 5, para 38): When preparing the period roster, if a public holiday was to fall in the period roster, the senior revenue protection officer for each team is responsible for identifying if there is a need for any revenue protection officers to work on that public holiday. This information is included in the team's monthly plan when they are being prepared for my approval. If there is no justifiable need for any revenue protection officers to work on a public holiday, the officers will be given the opportunity to clear the public holiday, irrespective of what is on the master roster. 47 Mr Welzel attaches to his Statement a summary of Public Holidays rostered and worked by Sydney RPO's in 2006 (Ex 5, att. 3) which reveals that RPO's have not always been rostered to work on Public Holidays which the master roster designated as working days. 48 In response to the evidence of Mr Karam, Mr Welzel put that not all employees on a period roster are required to work on a Public Holiday, and that the days an employee may be rostered to work on a Public Holiday are irrespective of the day off pattern of the master roster. 49 Mr Welzel deposes that, while Mr Karam was rostered to work nine Public Holidays in 2006, he was not rostered to work all Public Holidays and in fact worked five Public Holidays, including one as a Day Off Cancelled (DOC). 50 Mr David Blair has been employed by Newcastle Buses from 1992, firstly as a bus operator, then from 2000 as a Customer Service Co-ordinator until taking up the position of RPO from February 2005. His evidence in this matter is by Statement (Ex 1) and orally in cross examination. 51 Mr Blair describes his duties as: a) Detection of fare evasion and assistance to the travelling public by advising of the ticketing system and pricing and the issuing of either Caution Notices or Penalty Notices as required.

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e) Detection of an Issuing of Penalty Notice to vehicles parked within bus stops. 52 The functions of an RPO, as deposed by Mr Blair, are not directly challenged, however, the STA's evidence is that response to offensive behaviour is expected of RPO's, but it is not their primary or sole function. The STA have a roving response unit which can be called to any location required, whereas RPO's deal with such behaviour only if encountered in the ordinary course of their work. 53 Mr Blair's evidence is that the current master roster was established by negotiation between management and employees on commencement of the RPO position in Newcastle and has not been altered since. 54 Mr Blair deposes that the working of Public Holidays first became an issue in 2005 when the then Operations Manager cancelled work on some Public Holidays. Mr Blair's evidence is that this led to discussion resulting in a verbal assurance from the Operations Manager that any future Public Holidays which fell on a rostered shift would be worked. 55 Mr Blair deposes that he and his partner altered their hours of work to ensure that they could work New Year's Day from midnight to 8.00 am. Mr Blair puts that the substantial activity for that shift is mainly to remove alcohol from buses and prevent patrons from bringing alcohol on to buses. 56 Mr Blair's evidence is that management cancelled work on Australia Day 2006; then on representation from himself that RPO's in Sydney worked if rostered unless the RPO sought time off, the shift was reinstated. Mr Blair and his partner worked from 6.00 am to 2.00 pm in accordance with the master roster, though discovered that this shift did not suit revenue protection activities as it did not coincide with the Public Holiday timetable in place that day. Mr Blair and his partner carried out some administrative duties. Discussion ensued, resulting in agreement with management that starting and finishing times would be altered in the future to align RPO shift with bus operations for future Public Holidays. 57 Mr Blair deposes that over Easter 2006 management cancelled RPO work on Public Holidays, asserting that Mr Barker had informed him then "he did not want anyone booked over Easter". 58 The working of the Public Holidays over Easter 2006 was the subject of a dispute notified pursuant to s 130 of the Act (Matter No IRC 2168 of 2006) which was dealt with in compulsory conference proceedings by the Commission as presently constituted. A Recommendation was made that the shifts be reinstated and RPO's work as rostered. 59 These proceedings were concluded on 3 May 2006. A Statement issued by the Commission recorded: 3. The Commission was advised that the issue concerned roster changes for revenue protection officers over the Easter public holidays. A recommendation was made and accepted by the parties which resolved the instant dispute.

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On 27 April 2006 the Commission was advised that correspondence would emanate from the STA to the RTBU as the basis for further dialogue. Mr McCarthy, appearing on behalf of the State Transit Authority of New South Wales, sought conclusion of the matter on the basis that the dispute notified had been resolved. Mr Panigiris, appearing on behalf of the RTBU, concurred. 60 The matter did not proceed to a determination and the issue was deferred on the presumption that it would not arise again until Australia Day 2007. 61 Mr Blair deposes that he discussed the matter with Mr Barker in August 2006, and was advised that there would be some Public Holidays on which work would not be required and these would be replaced by other Public Holidays on which work would be required. 62 The evidence of Mr Blair is that on posting of the period roster it was revealed that management had altered the master roster to show RPO's observing a Public Holiday on Australia Day 2007 rather than attend for work. This led to discussion in early January 2007 in which Mr Blair was advised that business needs did not require RPO's to work on Australia Day 2007. 63 It is Mr Blair's evidence that when the nature of business needs was questioned the General Manager and Acting Operations Manager replied: "We do not have to explain our rationale to you". 64 Mr Barker refutes this assertion, deposing that the response was that the subject matter of the dispute was not to debate management's interpretation of business needs, but the capacity of management to depart from the master roster to meet business needs in constructing the period roster. 65 Mr Blair asserts that an agreement was reached that the dispute would be subject to notification pursuant to the Act, giving rise to these proceedings. 66 As noted earlier the matter was not able to be resolved in conciliation. Mr Blair puts that management offered to pay RPO's as if worked should the Commission find in favour of the RTBU. RPO's observed the Australia Day Public Holiday in 2007. 67 Mr Blair reiterated the RTBU position put in the outline of submissions, that RPO's rostered to work in accordance with the master roster must be allowed to attend unless they seek not to. His evidence is (TR 24/5/07, pp21, 22): Q. Because your position was that you should be required to work public holidays unless of course you wished to clear the day? A. Our position is if the roster, the master roster basically has us working then we believe we should work those days--

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Q. Unless of course an employee doesn't want to work that day? A. Yeah, if they make application, yes. 68 Mr Ted Barker has been employed by the STA from 1970. During the relevant period he held the position of Acting Operations Manager, 1 October 2005 to February 2007, when the position became Depot Manager Hamilton and Mr Barker's appointment was confirmed. Mr Barker's evidence in this matter is by Statement (Ex 4) and orally. 69 Mr Barker confirms that Mr Blair and Ms Kathleen Lynch were appointed RPO's in Newcastle from 6 February 2005 and operationally report to him. RPO's work a roster of 19 days over 28 days. There is no RPO coverage on the nine days rostered off. 70 Mr Barker deposes that a Sunday timetable used for Public Holidays schedules 382 bus services, compared to 1160 services scheduled for a Friday, or 894 services scheduled for a Saturday. 71 Mr Barker confirmed that a revenue protection service is a requirement of the Outer Metropolitan Bus Service Contract ("the Contract") for region 5, awarded by the Ministry of Transport in 2006. 72 The Contract is for a seven year period subject to satisfactory performance and requires implementation of efficiencies to achieve operating cost reductions, including administrative productivities. 73 Mr Barker's evidence is that the revenue protection services are in excess of those undertaken by private bus companies when they are required to be in competition. 74 The evidence of Mr Barker is that fines imposed by RPO's do not meet costs involved, and that a requirement that RPO's work on a Public Holiday where business needs do not justify further adds to costs, which must be funded out of the general operating budget. 75 Mr Barker deposes that the additional cost of an RPO working on a Public Holiday is approximately $309 per employee per Public Holiday and, given that RPO's must work in a team of two for operational reasons, the full additional cost is approximately $618 per Public Holiday. 76 Mr Barker deposes that the RPO roster is in accordance with the Agreement. Mr Barker described the master roster as a guide to the shifts RPO's may usually be required to work, and a period roster as the actual requirement for shifts to be worked in accordance with the business needs for the ensuing four weeks. 77 Mr Barker puts that the period roster does not always follow the master roster as the need for employees to work changes for reasons such as leave, business needs, special events which may require additional work, or requests of employees. 78 Mr Barker provides an analysis of revenue protection work on Public Holidays in 2003 and 2004 when the function was performed by CSO's; and 2005 and 2006 which confirm that RPO functions were not carried out on all Public Holidays over the three year period. 79 Mr Barker deposes that a similar dispute over the working of Public Holidays arose in 2003 and was subject to correspondence from the then General Manager to the RTBU. The correspondence (Ex 4, att. 13), dated 18 July 2003, states: I will not guarantee revenue protection shifts are rostered 7 days a week. Shift coverage is determined by the Operation Manager depending on the particular needs and priorities at any given time. …… The Operations Manager will determine what shifts are required on Public Holidays to meet the business needs as is the current practice. May I suggest a similar system that applies to DOC's could be used to allocate Public Holiday shifts evenly to all CSC's. CONSIDERATION

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80 The evidence does not support the assertion by the RTBU that there is an established custom and practice that would compel the STA to afford work on Public Holidays to those RPO's rostered to work by the master roster. 81 There is no functional connection between the circumstances or business needs between Newcastle and Sydney operations. The Newcastle and Sydney services are separate and distinct situations and nothing is achieved by a comparative analysis of business needs and requirements thereto. 82 If there was to be useful comparison, the Sydney experience does not support the RTBU argument; RPO's in Sydney are rostered to work, or not work, on the basis of business needs as determined by management. The period roster is then constructed by the appropriate process of consultation. 83 The evidence does not support a finding that RPO's based in Newcastle work on Public Holidays irrespective of business needs. 84 I determine that the STA were not in breach of the disputes procedure by not requiring RPO's to work on Australia Day 2007. 85 The proposition advanced by Mr Blair that where the master roster has an RPO to work on a Public Holiday, the shift should be provided at Public Holiday penalty rates, unless the RPO's preference is to observe the Public Holiday, is totally untenable. 86 The proposition advanced by Mr Blair is not supported by the Agreement, the contract of employment, or general industrial standards of fairness, equity, or commonsense. 87 Employees should ordinarily expect to have a day off on a Public Holiday unless there are business needs which require them to work. Public Holiday penalties are not an opportunity for employees to increase their earnings, but a disincentive to employers to require employees to work on a Public Holiday. 88 Management hold a responsibility to determine business needs and may require employees to work where these needs require. The obligation of the employee is to meet all lawful and reasonable requests of the employer. 89 The process of consultation is to allow employees to understand and contribute to a consideration of business needs. Once the discussion is complete management hold the responsibility to decide upon the business needs. Employees retain a right through their union to invoke the disputes procedure should there be grounds to assert that management's decision is motivated by other than a genuine assessment of business needs. 90 That is not to say that the Commission will substitute its view of business needs over that of management, but may intervene if it were to be shown that a decision imposed harsh, onerous or unfair conditions upon employees. Merely being required to work on a Public Holiday would not of itself create such circumstances. 91 A proper interpretation of the Agreement supports management's contention that the master roster is a template from which the period roster is developed to meet the business needs and contend with other relevant considerations of the specific period. 92 I determine that the Agreement is properly applied in the manner contended by the RTA. 93 The Order sought by the RTBU that in construction of the master and period rosters management will consult with employees as outlined in cl 80.3 of the Agreement is supported. A proper application of the Agreement requires such consultation. 94 The evidence of Mr Welzel describes an effective consultation process which Newcastle management and employees could adopt to suit the local business arrangements. Consultation requires a more realistic approach than the evidence of Mr Blair conveys. 95 I make the Determination and Orders sought by the STA. 96 Matter No IRC 66 of 2007 is so concluded. oo0oo

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