State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales and Another Re Relief Duties in Newcastle Radio Control Room [2006] NSWIRComm 269 (22 August 2006)

Last Updated: 16 November 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales and Another Re Relief Duties in Newcastle Radio Control Room [2006] NSWIRComm 269



FILE NUMBER(S): IRC 2137

HEARING DATE(S): 2/8/06, 3/8/06

DECISION DATE: 22/08/2006
PARTIES:
State Transit Authority of New South Wales
Australian Rail, Tram and Bus Industry Union, New South Wales
Australian Services Union, NSW Branch

JUDGMENT OF: Harrison DP


LEGAL REPRESENTATIVES

APPLICANT
Ms E Allen for STA

RESPONDENTS
Mr G Panagiris for RTBU
Mr C Lynch for ASU

CASES CITED: BHP Steel (AIS) Pty Ltd v The Federated Ironworkers' Association of Australia, New South Wales Division Re change to shift roster system - Coil Preparation Line, Tin Mill Products Department (Matter No IRC 2208 of 1994, 7 November 1994, unreported)
Re Cram And Others; Ex Parte NSW Colliery Proprietors' Association Limited and Others (1987) CLR 117

LEGISLATION CITED: Industrial Relations Act 1996
Occupational Health and Safety Act 1983
Transport Administration Act 1988
Public Sector Employment and Management Act 2002
Public Sector Employment and management Act Amendment 2006



JUDGMENT:

- 24 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Tuesday, 22 August 2006

Matter No IRC 2137 of 2006

Notification under section 130 by State Transit Authority of New South Wales of a dispute with the Australian Rail, Tram and Bus Industry Union, New South Wales and another re relief duties in Newcastle Radio Control Room

DECISION

[2006] NSWIRComm 269

1 This matter was initiated by a notification pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") by the State Transit Authority Division of the New South Wales Government Service (STA), advising of a dispute with the Rail, Tram and Bus Union, New South Wales Branch (RTBU) and the Australian Services Union (NSW Branch) (ASU). The notification set out the issues in dispute in the following terms:

The Rail Tram Bus Union (Salaried and Clerical Division) has directed its members employed as Customer Service Co­ordinators (CSC)in Newcastle to refuse to undertake relief duties in the Newcastle Radio Control Room, effective on and from Monday 27 March 2006.

The work of a Control Room Operator is agreed to be of a clerical/administrative nature.

It has been the agreed practice that CSC's will undertake Control Room work during Monday to Friday on a relief basis.

There is no dispute between the parties concerning CSC's undertaking such relief work on weekends.

A disagreement has arisen over the order in which overtime is offered as relief work within the Newcastle Control Room. It has been the agreed practice for several years that the order of overtime offered is:

1. Control Room Officers,

2. Clerical/Administrative

3. CSC'S.

The CSC's dispute the order in which overtime is worked and now state that as the work is clerical/administrative and their work is operational, employees employed as CSC's in Newcastle will not relieve in the Control Room as part of their normal roster during the week.

2 The STA employ over 4,400 employees; 380 of whom are in the Newcastle Bus and Ferry group, operating 29 routes throughout Newcastle and Lake Macquarie, and a ferry service to Stockton; totalling 7,000 services each week.

3 The matter was subject to compulsory conference proceedings which culminated in the issue of a Certificate of Attempted Conciliation and Statement and Directions issued on 1 May 2006 to prepare the matter for hearing, set down for 2 and 3 August, 2006.

4 The statement of 1 May 2006 dealt with jurisdictional issues which were not contested. In her outline of case (Exhibit 1) Ms Allen, on behalf of STA, restated the jurisdictional position, including an enterprise agreement approved on 9 May 2006 ("State Transit Authority of New South Wales, Salaried and Senior Officers' Enterprise Agreement 2006"). Exhibit 1 states:

Industrial Instrument Coverage

1. The industrial instruments which are currently applicable to the employees involved in the dispute include:

i. State Transit Authority Division of the New South Wales Government Service, Salaried and Senior Officers' Enterprise Agreement 2006

ii. State Transit Authority of New South., Wales, Salaried Officers' Award 2001 [AW811147]

2. Between 2004 and 9 May 2006, the clerical staff involved in the dispute were covered under the State Transit Authority of New South Wales, Salaried and Senior Officers' Enterprise Agreement 2004 [PR953734]

3. Between 2004 and 9 May 2006, the operational staff involved in the dispute were covered under the State Transit Authority of New South Wales, Operational Support Enterprise Agreement 2004 [PR954577]

4. These instruments were previously certified by the Australian Industrial Relation Commission. They were subsequently created as State Award and State Enterprise Agreements pursuant to Schedule 4, Part 4, sections 19(3) and 19(4) of the Public Sector Employment and Management Act 2002 (NSW).

(3) If an award under the Workplace Relations Act 1996 of the Commonwealth (the Federal award) applied to the person concerned as a member of staff of the statutory corporation immediately before the commencement of Chapter1A, a State industrial instrument in the nature of an award is taken to have been created in the same terms as the Federal award and is taken to apply to the person for the purposes of subclause (2).

(4) If a certified agreement under the Workplace Relations Act 1996 of the Commonwealth (the Federal agreement) applied to the person concerned as a member of staff of the statutory corporation immediately before the commencement of Chapter 1A, a state industrial instrument in the nature of an enterprise agreement is taken to have been created in the same terms as the Federal agreement and is taken to apply to the person for the purposes of subclause (2).

5. The State Transit Authority of New South Wales, Salaried and Senior Officers' Enterprise Agreement 2006 is a State Enterprise Agreement, certified by the NSW Industrial Relations Commission on 9 May 2006. The 2006 EA is also a consolidation of all conditions previously provided in Enterprise Agreements applicable to the employees involved in the dispute.

5 The Statement issued on 1 May 2006 also detailed an interim position pending arbitration in the following terms:

5 Both Mr Panagiris and Mr Lynch emphasised that the issues was not one of demarcation or dispute between the Unions, but one of competing rights between different classifications.

6 The dispute between the parties first arose in 2003 and has been unresolved from that time. An initial proposal that the Commission determine the "status quo" pre-2003, which is also subject to dispute, as an interim arrangement pending other proceedings was resolved in private conference by removal of the ban on relief work and the establishment of a without prejudice holding arrangement in the following terms.

7 Overtime in the Radio Control Room will first be offered to Control Room Operators on the basis of an 8 hour Day Off Cancelled (DOC). An overtime book listing all CSCs and Clerical Operational Officers trained to work in the Radio Control Room will be established. The relevant employees will be entered into the book on a random basis to establish their turn. Overtime refused by the Control Room Officers will then be offered to those in the overtime book in turn as an 8 hour DOC. Any overtime which cannot be filled as an 8 hour DOC will then be reoffered as 2 x 4 hour blocks, first to the Control Room Officers and subsequently to those in the roster book in turn.

6 At hearing Ms E Allen appeared on behalf of the STA and brought evidence from STA employees Mr E Barker, Acting Operations Manager Newcastle Buses and Ferries; and Mr Y Netluch, Acting Depot Manager, Belmont Depot.

7 Mr G Panigiris appeared on behalf of the RTBU and brought evidence from STA employees Mr D Blair, Revenue Protection Officer and site delegate for the RTBU; and Mr M Stenek, District Officer and former site delegate of the RTBU.

8 Mr C Lynch appeared on behalf of the ASU and brought evidence from STA employees Mr P Price, Assistant Depot Scheduler and site delegate for the ASU; and Ms M Cahill, Radio Control Room Operator.

9 The matter in dispute concerns the distribution of overtime in the Radio Control Room within the STA in Newcastle and does not extend to other locations.

10 The Radio Control Room is staffed continuously, seven days per week, over three shifts. Monday to Friday the day shift (5am-1pm) and afternoon shift (1pm-9pm) are filled by clerical officers, members of the ASU; the night shift, (9.pm-5am) is filled by a CSC, a member of the RTBU. All weekend shifts are staffed by CSCs, members of the RTBU.

11 The RTBU seek exclusive right to first refusal of all overtime.

12 The ASU seek distribution of overtime occurring on day and afternoon shifts, Monday to Friday, to clerical officers and make no claim on overtime occurring on the night shift, Monday to Friday, or on weekends which they concede to the CSCs.

13 Management propose a shared arrangement which has been rejected by both unions, however, all parties present the common theme that the employees who perform the work should have first option to overtime and that available overtime be shared between eligible employees.

14 There is a difference between the parties as to the definition of eligible employee for overtime relief purposes. Management are prepared to share the overtime between the RTBU and ASU employees who are trained and competent to perform the work.

15 The ASU seek exclusive right to overtime on the day and afternoon shifts, Monday to Friday, on the basis that this is work performed by their members; whilst the RTBU reject any right to overtime by clerical employees on the basis that such employees are not shift workers and have taken up a career path which traditionally offers little or no prospect to overtime; and accordingly should not be included in overtime arrangements.

16 The evidence confirms that prior to 1992 this work was undertaken as part of the duties of Transport Liaison Officers (TLOs) who, on restructure, became Customer Service Co-ordinators (CSCs). Also as part of the restructure commenced in 1992 the number of TLOs were reduced and the specific classification of Radio Control Room Operator (CRO) was established to perform radio control room duties between 5.00 am and 9.00 pm, Monday to Friday.

17 Three employees were recruited into the CRO role and applications sought from all employees at the Hamilton Depot. The positions were ultimately filled by two former TLOs, members of the RTBU; and one clerical officer, a member of the ASU.

18 An agreed Statement of Facts signed by the RTBU, ASU and STA (exhibit 2) provides further background to the issue:

20. In November 2000 a vacant CRO position existed. At this time management decided not to fill the CRO position and instead create an additional CSC2 position.

21. In 2002, Clerical Administration Staff were trained and utilised to provide relief to the Radio Control Room functions throughout the hours subject to the dispute.

22. Throughout 2002 and 2003 relief radio control duties were performed by Clerical Staff and Customer Service Coordinators.

23. This dispute appeared to 'flair up again' in December 2003.

19 An issue arose in 2003, attributed to Mr David Blair, a CSC, who refused to carry out work in the Radio Control Room, either on a work altered basis, the term used within the STA for a reassignment of duties and/or ordinary hours of work from that which was originally scheduled, during the course of an ordinary rostered shift, or on overtime. The objection advanced by Mr Blair in 2003 was that his then classification of CSC2 did not include Radio Control Room duties in the position description. Mr Blair accepts that the position description for CSC3 includes radio room duties, as does his present position of Revenue Protection Officer (RPO).

20 The evidence discloses that this was one of many industrial issues between the parties at the time.

21 It is asserted by Management and the ASU that an arrangement for distribution of relief work and overtime was developed in a meeting of 19 December 2003 attended by Mr Netluch, then a representative of the RTBU. The detail of the arrangement is found in an email from Mr Netluch to Mr Panigiris of the same date(conveniently found as attachment D to exhibit 8, the statement of Mr Netluch):

On another note, it was agreed at the meeting today (19/12/03) that when a radio shifts falls out at short notice, then overtime it is to be offered in the following manner.

1. DOC to clerical staff on an ADO

2. Work after clerical staff on the day to cover the shift from 1.10p.m to 4.30p.m then overtime from 4.30p.m to 9.10p.m.

3. If clerical staff not available to be work altered on the day, then the AM shifts works overtime from 1.10p.m to 4.30p.m and a clerical officer works overtime from 4.30p.m to 9.10p.m

4. If any of the above options are not available, then the same process is to be given to the CSC's.

n.b The same option is to be used when the a.m shift falls out. i.e DOC and then prestart the clerical staff.

It would be appreciated if you could formalise the above process with management

22 Overtime and relief work was generally allocated in accordance with those arrangements from that date, however, the agreement was never formalised by RTBU, which now asserts the meeting never occurred; their representative, Mr Blair, who is said by others to have been there, denies his presence.

23 The ASU seek continuation of the arrangements.

24 The agreed Statement of Facts (exhibit 2) notes that in attempts to resolve the matter a "book" system of overtime sharing was trialled for a period of five weeks, then overtime allocation reverted to the disputed agreement.

25 Exhibit 2 identifies issues of contention as:

· The history of relief coverage in the Radio Room from restructure in 1992 to December 2003; and

· whether any agreement was made between the parties in December 2003.

THE EVIDENCE


26 Mr Edwin (Ted) Barker has been employed by STA and predecessors from 1970.

27 Mr Barker deposed that he was involved in dealings with the Radio Control Room dispute prior to taking up his present position in 2005 when required to relieve Hamilton Depot management.

28 Mr Barker's evidence is that he is not aware of any issue or dispute concerning overtime in the Radio Control Room prior to 2001. Mr Barker deposed that he is aware that from 1992 to 2001 relief was provided by work altering CSCs from non-essential duties to cover sickness and leave, or overtime was offered to CSCs by cancellation of a day off (Day Off Cancelled - DOC); with the exception that Mr Mark Larkin, a clerical officer, performed a number of shifts as relief; and Mr Charlie Haim, a CRO, performed alternate clerical duties.

29 Mr Barker, in his statement of evidence (Ex 6), recounts the refusal of Mr Blair to undertake relief work in the Radio Control Room, providing correspondence to the RTBU (Ex 6, attach. I) acknowledging this and undertaking to have other staff trained to perform the work on confirmation of Mr Blair's refusal.

30 Mr Barker relied upon roster records to support his evidence that Ms Maureen Cahill, a clerical officer, was trained to undertake work in the Radio Control Room from 25 June 2002 and performed relief duties from 2 July 2002.

31 Mr Barker deposed that from June 2002 to the first half of 2003 Ms Cahill and Ms Kathleen Lynch, a CRC, undertook relief work in the Radio Control Room and as CSC3s on DOC on some occasions.

32 The evidence of Mr Barker is that from 17 July 2003 to the end of the year Ms Cahill performed CRO relief duties on approximately 60 occasions; Ms Lynch on approximately 5 occasions; Mr Netluch (Operations Administration Clerical) on 3 occasions; and Mr Antony Lee, CSC3, on approximately 8 occasions.

33 The evidence of Mr Barker details the development of issues concerning Radio Control Room overtime and Mr Blair's refusal to do any work in the Radio Control Room as a CSC2. Mr Barker deposed that the agreement of 19 December 2003 was applied with some exception.

34 Mr Barker put forward a proposal for allocation of operational or clerical staff to work in the Radio Control Room (Ex 6, para 85) which he deposed took account of efficiency, occupational health and safety principles, and rostering principles prescribed by relevant industrial instruments. Mr Barker put:

85. When a CRO is unable to perform their duties due to absences, some of the following options may be utilised to ensure relief coverage of the radio control duties:

i). Work alter a suitable staff member. This may result in minimal additional wage costs.

ii.) Pre or post shift overtime to a suitable staff member. This may result in overtime costs.

iii). DOC to a suitable staff member. DOC penalties may be more expensive than covering the shift as pre or post shift overtime.

iv). Combination of work altering and overtime for suitable staff member(s). This can have various costs.

35 Mr Barker set out a detailed example of overtime shifts.

36 This proposal is generally rejected by the RTBU as it accommodates an element of access to overtime by clerical staff. It is also rejected by the ASU as the practical outcome is said to afford the majority of overtime to CSC's who work a 7 day 3 shift roster compared to clerical staff who work Monday to Friday.

37 Mr Yarry Netluch has been employed by STA from 1974. Mr Netluch is currently Acting Depot Manager Belmont. Mr Netluch held the position of Operations Administrator at the Hamilton Depot from May 1999 to October 2005. Prior to May 1999 Mr Netlcuh was an Administration Officer for the Newcastle Region with primary functions being revenue and payroll.

38 From 22 May 2003 to April 2006 Mr Netluch was the RTBU workplace delegate for the Clerical Section of the Salaried Division.

39 Mr Netluch deposed that as both Operations Administrator and RTBU delegate he was directly involved or otherwise had knowledge of the Radio Control Room dispute.

40 Mr Netluch relied upon copies of work rosters to support his evidence that: in 1999 both CSCs and clerical staff performed relief Radio Control Room duties; from 2000 to June 2002 CSCs undertook relief work in the Radio Control Room; in the second half of 2002 both clerical officers and CSCs undertook relief work in the Radio Control Room; and in 2003 mostly clerical officers undertook relief work in the Radio Control Room.

41 Mr Netluch deposed that he attended many meetings concerning the distribution of overtime and the performance of relief work in the Radio Control Room.

42 The evidence of Mr Netluch is that he attended the meeting on 19 December 2003 which resulted in agreement, the details of which he conveyed to Mr Panigiris for formalisation. Mr Netluch is adamant that Mr David Blair was present at the meeting and that an agreement was made.

43 Mr Blair deposed that CSCs also undertook holiday relief for CROs. Mr Blair's evidence is that this system of filling vacancies by overtime applied until 2003 when altered by management on the basis of an alleged agreement with the RTBU. Mr Blair denies that he was at the meeting of 19 December 2003, or that he was party to an agreement in respect to allocation of relief work and overtime in the Radio Control Room.

44 Mr Blair deposed that he did not sign on until 2.00 pm on 19 December 2003 and that Mr Schmitzer, also said to have attended the meeting, had informed him that this was not possible as he had been in Werris Creek that day.

45 Mr Blair, in his capacity as workplace delegate, raised the question of overtime in the Radio Control Room in correspondence dated 13 August 2004 to the then Operations Manager, Mr C Moore. Mr Moore's reply dated 19 August 2004 (Ex6, attach. U) is in the following terms:

I refer to your letter concerning the distribution of overtime to clerical staff to cover the CRO position.

I am totally at a loss as to what you are complaining about. The allocation of overtime to the clerical staff to provide the CRO shifts is following exactly the agreed guidelines that you requested in company of fellow RTBU delegates Mic Schmitzer and Yarry Netluch in a meeting with the General Manager Newcastle.

Under the circumstances I am not prepared to alter the current arrangement.

I would be happy to discuss this matter further in the presence of the above named people if you so wish.

46 The proposed discussion did not resolve the issue.

47 The evidence of Mr Blair is that confusion about who was at meetings and what was decided was not uncommon.

48 Mr Schmitzer attended proceedings in this matter but was not called to give evidence.

49 Mr Milan Stenek has been employed by the STA for 36 years and is currently the District Officer. Mr Stenek was RTBU delegate from 1995 to 2003.

50 Mr Stenek deposed that in the course of the restructure commenced in 1992 so many TLOs took voluntary redundancy that there were insufficient TLOs to cover the Monday to Friday component of the Radio Control Room operations. Three CRO positions were to be recruited from the ranks of bus operators who could then apply their knowledge of the network to assist in the day to day operations of the Radio Control Room and a career path to TLO. Mr Stenek deposed that transition of the TLO to CSC2 and CSC3 positions ended career progression for CROs.

51 Mr Stenek confirmed that Mr Haines, a clerical officer, undertook work in the Radio Control Room from time to time and that another clerical officer, Mr Mark Larkin, worked in the Radio control Room for a brief period. Mr Stenek could not recall Mr Price being appointed to one of the three CRO positions.

52 Mr Stenek's evidence is that there was a resource problem in the Radio Control Room and that in his time as workplace delegate he participated in a meeting which resulted in agreement to train clerical staff to work in the Radio Control Room. In cross examination by Mr Lynch Mr Stenek gave evidence of a meeting in December 2003 (TR 2/8/06, p 62):

Q. Do you recall any meetings in December occurring about overtime in the radio room at all, in 2003, December 2003?

A. The overtime, I can recall a discussion taking place with Mr Smittsa [sic], Yarry present, and I believe even David for that matter, on the coverage of overtime where it was suggested that they would like to have the opportunity and because they hadn't been trained, weren't able to have that opportunity, and an agreement was struck in place at that time to allow those people to train up, which nobody objected to.

53 Mr Stenek deposed that all relief work in the Radio Control Room was undertaken by TLOs or CSCs until an alleged agreement between management and the RTBU, which he put Mr Netluch informed him had occurred at a meeting that had taken all of the morning, Mr Stenek confirmed that Mr Netluch had told him Mr Blair and Mr Schmitzer were present, adding that both deny this assertion.

54 Mr Stenek put that following the alleged agreement clerical officers undertook relief work in the Radio Control Room, deposing that they would cancel their own work without replacement to allow them to take up overtime in the Radio Control Room.

55 It is established that work within the STA is divided into essential shifts and non-essential shifts. The distinction is that essential shifts must be staffed to allow the system to operate; and that which is required but not time critical or an operational imperative is considered a non-essential shift.

56 Mr Peter Price has been employed by the STA for 36 years as a clerical officer. Mr Price is an Assistant Depot Scheduler at the Hamilton Depot and is a workplace delegate for the ASU. Mr Price has always been classified as a clerical officer.

57 Mr Price confirmed that he had applied for and been appointed to one of the three CRO positions established as part of the reschedule which commenced in 1992.

58 Mr Price deposed that he has attended many meetings concerning relief work and overtime in the Radio Control Room.

59 Mr Price deposed that ASU clerical staff at the Hamilton Depot work a five day week, Monday to Friday, and have less opportunity for overtime than operational staff; consequently, on the grounds of equity, should have first preference to overtime in the Radio Control Room.

60 Ms Maureen Cahill has been employed by STA for 22 years. Ms Cahill has worked as a cleaner and bus driver prior to her current position of Operations Assistant at the Hamilton Depot. Ms Cahill has been employed as an Acting CRO since 2002.

61 Ms Cahill's evidence is that the only overtime available to her is that occurring in the Radio Control Room when the other CRO is absent from work, Monday to Friday. When such absence occurs Ms Cahill would be offered an added four hours work to make up a 12 hour shift. Ms Cahill deposed that she has not worked overtime on a weekend or public holiday as CSC3s cover this period.

62 Ms Cahill's evidence is that between 25 May 2006 and 23 June 2006 there have been six shifts totalling 24 hours of overtime that would have been shared between herself and two other clerical officers which have been foregone, depleting her earnings.

Ms Cahill deposed that CSCs enjoy a greater access to overtime and should not deny clerical officers from an opportunity to work overtime in the work undertaken by them in ordinary working time.

THE STA POSITION


63 Ms Allen put that the STA is directed by the objects of the New South Wales Transport Administration Act 1988 ("the Transport Act") to:

· operate efficient, safe and reliable bus services and Newcastle Ferry services; and

· to be a successful business, and to this end:

- to operate at least as efficiently as any comparable business, and

- to maximise the net worth of the State's investment in the Authority.

64 Ms Allen put that in addition to the legislative imperatives, the STA needed to be competitive in tendering to the Ministry of Transport for bus operation routes to support job security.

65 Ms Allen submitted that radio control duties (including relief) have previously been performed by CSCs, clerical and managerial employees, putting that allocation of relief work amongst suitable employees is a matter of managerial prerogative and discretion, based upon sound business principles as directed by the Transport Act. Ms Allen put that no particular employee or group of employees could claim a right to any overtime. In putting this submission Ms Allen noted that, provided the tenets of efficiency were met, STA would, where practical, take into consideration the views of affected employees.

66 Ms Allen opposed the Orders sought by the RTBU, submitting that the remedy as proposed there would limit the ability of STA to avoid overtime by work altering and practically exclude the ASU clerical employees from involvement.

67 Ms Allen opposed the Orders sought by the ASU, submitting that this remedy would create unnecessary overtime and inefficient use of STA resources.

68 Ms Allen submitted that the STA should not be restricted to offering overtime in any minimum amount, putting that if an employee were unable to continue at work for any reason and had to be replaced by overtime it should be for the required period of replacement only.

69 Ms Allen submitted that whether or not an agreement had been made in 2003 is now immaterial; whatever the fact of that matter, the STA had worked in accordance with an arrangement developed at that time which has now been overtaken by time and circumstances to render it negatory.

70 Ms Allen submitted that the evidence reveals that both clerical officers and CSCs have traditionally performed relief work in the Radio Control Room, noting that the level of participation by each group has varied in different time periods.

71 Ms Allen acknowledged that there was a time when CSCs had first right of refusal to overtime in the Radio Control Room, however, at this time clerical officers had not been trained to do the work as they are now. Ms Allen noted that the training of clerical officers in the Radio Control Room had occurred at the instigation and approval of the RTBU as a consequence of Mr Blair's refusal to do the work.

72 Ms Allen referred to the judgment of Hungerford J in BHP Steel (AIS) Pty Ltd v The Federated Ironworkers' Association of Australia, New South Wales Division Re change to shift roster system - Coil Preparation Line, Tin Mill Products Department (Matter No IRC 2208 of 1994, 7 November 1994, unreported) where his Honour said:

The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of longstanding and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice, or where safety is involved.

73 Ms Allen submitted that the STA seeks permanent removal of bans by the RTBU and that employees work reasonable overtime as direct. Ms Allen added that the STA would share available overtime among participating employees.

74 Ms Allen submitted that the matter should be resolved in these proceedings on merit and substance and sought the following Orders:

State Transit Authority seek that a decision is issued as it is in the interest of the parties to have the matter settled.

In the first instance, State Transit seek a order:

1) For the purpose of ensuring relief coverage in the Hamilton Radio Control Room, State Transit (the "Employer") shall determine at its discretion:

a. whether relief coverage of Control Room Officers' work between Monday and Friday is undertaken by work altering suitable employees for part or all of a relief shift in a manner consistent with the notification requirements of the relevant enterprise agreement; and or

b. whether to allocate overtime, or a day off cancelled to suitable
employees to cover a part or whole of a relief shift.

unless the parties agree to arrangements otherwise, and

2.) That from the time these orders take effect in relation to this dispute regarding available overtime as a result of relief in the Newcastle Radio Control Room, that the parties to the dispute must refrain from engaging in bans or any other industrial action in relation to being required to perform duties (including reasonable overtime) to provide relief for Control Room Officers, and

3.) The Rail, Tram and Bus Union (Professional/Salaried Division) and the Australian Services Union and its officials, employees and delegates must take all necessary steps to ensure that these orders are complied with, including but not limited to advising members to whom this dispute relates by [insert date 3 days after the date of decision of the Commission], and

4.) Subject to further order of the Commission, these orders will take effect on and from [insert date of decision of Commission] and shall remain in force until the termination of the Senior and Salaried Officers' Enterprise Agreement 2006, and

5) Such an order does not set a precedent for how work is allocated in other areas of State Transit, including other Radio Control Rooms.

In the alternative, State Transit Authority seeks the NSW Industrial Relations Commission make a decision in accordance with the powers conferred to the Commission by section 136 that it feels would settle the dispute.

THE RTBU POSITION


75 The RTBU submit that prior to 2003 overtime, as distinct from relief work, was undertaken by CSCs.

76 The RTBU contend that STA has changed the working arrangements of the Radio Control Room without proper consultation and to the detriment of CSCs in that their access to available overtime has been reduced.

77 Mr Panigiris submitted that the evidence of Mr Netluch was far from clear in regard to the alleged agreement of 19 December 2003 and ultimately failed for want of corroboration. Mr Panigiris submitted that Mr Garrett, the current General Manager of STA Newcastle, was allegedly at the meeting but was not called to give evidence despite his availability.

78 Mr Panigiris submitted that the Radio Control Room Operators are in fact shiftworkers, paid shiftwork penalties, and accordingly could not be held to be clerical workers who traditionally work 8am to 4pm or 9am to 5pm, Monday to Friday.

79 Mr Panigiris relied upon the evidence of Mr Price and Ms Cahill that when taking up their positions they had no expectation of overtime, to ground his submission that they have no subsequent claim to a share of available overtime.

80 The RTBU submits that clerical staff have access to overtime in the Revenue Room and Scheduling Area not available to the CSCs.

81 The RTBU makes a positive distinction between CSCs as operational staff and clerical staff as administrative employees, contending that overtime is not a feature of administrative work, whilst it is expected and required of operational staff; accordingly clerical/administrative employees should have no access to overtime in the Radio Control Room which is an operational function.

82 The RTBU seeks the following Orders:

In the first instance, the RTBU seeks an order:

1. that the working arrangements that were in place prior to the alleged agreement in December 2003 be re-instated e.g. overtime to be allocated to CRO's in the first instance and then to CSC's;

2. such orders to take effect on and from [ date of decision ] and shall remain in force until the termination of the Senior and Salaried Officers Enterprise Agreement 2006.

In the alternative the RTBU seek the NSW Industrial Relations Commission make a decision in accordance with the powers conferred to the Commission by Section 136 that it feels would settle the dispute.

THE ASU POSITION


83 The ASU submit that radio communication commenced at the Hamilton Depot in the second half of the 1980's to provide security and relay breakdown and traffic information to bus operators. The ASU accepts that TLOs staffed the Radio Room as part of their normal function prior to 1992 when a restructure reduced the number of TLOs from 14 and established three CRO positions by shift designation:

· Shift 10R - 5am to 1pm
· Shift 11R - 1pm to 9pm
· Shift 16R - 8am to 4.30pm

84 Work in the Radio Room outside 5am to 9pm, Monday to Friday, was undertaken by CSC3 Officers as part of their work, which also included passenger monitoring and other duties not associated with the Radio Control Room.

85 The ASU puts that the 16R shift was a relief shift and that the employees so rostered would undertake clerical duties when not required in the Radio Control Room.

86 The 16R shift was discontinued in 2000; concurrently the CSC's position was created with part of the role including relief in the Radio Room, leading to the dispute concerning Mr Blair's refusal to undertake that work in 2003.

87 The ASU contends that the outcome of the 2003 dispute is the agreement made on 19 December 2003 which should be continued.

88 The ASU submitted that under their proposal the STA is entitled to offer overtime to any qualified officer if the CROs or clerical staff are unavailable.

89 The ASU sought the classification of CRO and clerical staff to have the same rights to overtime in their work areas as CSC2, CSC3, and RROs in their particular functions and areas of work.

90 Mr Lynch relied upon the judgment of the High Court in Re Cram And Others; Ex Parte NSW Colliery Proprietors' Association Limited and Others (1987) CLR 117 as authority that employees and management have a mutuality of interest in issues once considered exclusively management prerogative so as to render those issues "industrial matters" within the jurisdiction of the Commission. Mr Lynch submitted that in the factual context of this matter the Commission should exercise discretion to intervene in the application of managerial prerogative.

91 Mr Lynch submitted that I should prefer the evidence of Mr Netluch over that of Mr Blair and find that a legitimate and enforceable industrial arrangement was entered into on 19 December 2003, setting out the basis upon which relief work and overtime would be allocated in the Radio Control Room.

92 Mr Lynch submitted that failure by the RTBU to bring corroborating evidence from Mr Schmitzer, who was available, is fatal to the evidence of Mr Blair in respect to the meeting of 19 December 2003.

93 Mr Lynch further submitted that there are strong grounds in equity and industrial justice to afford clerical staff an opportunity to work overtime in the Radio Control Room.

94 Mr Lynch relied upon the provisions of s 163(1)(c) of the Act which requires the Commission to:

"act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms"

95 Mr Lynch submitted that denial of overtime opportunity to clerical staff in the Radio Control Room in the manner advanced by the RTBU and management's compromise position is manifestly unfair to clerical staff.

96 The ASU contends that the 2003 agreement now forms part of the employment contract and is a proper exercise of management prerogative as it does not increase the cost to STA, whilst any other approach disadvantages clerical officers by unfairly reducing their earnings potential.

97 The ASU seeks the following Orders:

A) That pursuant to section 136 of the Industrial Relations Act of 1996, NSW the Commission orders that relief shifts and overtime in the Hamilton Radio room be allocated in the following form:

I. Day off cancelled (DOC) to clerical staff on an Additional Day Off (ADO).

II. Work alter clerical staff on the day to cover the shift from 1.00 pm to 4.30 pm, thereafter to be covered on overtime by clerical staff from 4.30 pm to 9.00 pm.

III. Where other qualified clerical staff are not available to be worked altered on the day, the AM shift Control Room Operator to be allocated overtime from 1.00 pm to 4.30 pm and then a qualified clerical officer to work overtime from 4.30 to 9.00 pm.

IV. Where any of the above options are not available, then the same process to be followed with respect to CSC staff.

V. The same option is to be used to cover the AM shift i.e. DOC to clerical staff if not available, otherwise pre-start clerical staff.

B) That subject to further order of this Commission these orders will remain in force for the life of the Senior and Salaried Officers' Enterprise Agreement 2006 and its successors, or as varied by agreement between the ASU and the STA thereafter, and in accordance with the relevant Industrial instrument.

C) Any further Orders the Commission may see fit to make to maintain equity and fairness in the remuneration of employees subject to this dispute.

CONSIDERATION


98 The evidence establishes that relief work and overtime in the Radio Control Room at the Hamilton Depot was undertaken by clerical staff and CSCs on a shared arrangement until 2003.

99 The refusal by Mr Blair to undertake relief work other than on overtime became a catalyst for change.

100 I find that an agreement was made on 19 December 2003 and prefer the evidence of Mr Netluch in respect of that event, supported by consequent practice.

101 There is no dispute that relief work and assistance were allocated in accordance with that arrangement until 2005.

102 I accept the submission of Ms Allen that whatever the status of the 2003 agreement, it has been overtaken by time and circumstances, not the least of which is the intractable dispute subject to these proceedings.

103 Management have the responsibility to operational efficiency found in the Transport Act. Management also have a responsibility pursuant to the Occupational Health and Safety Act 1983, industrial instruments, and to deal with their employees in a fair and reasonable manner.

104 It cannot be held that any classification or group of employees has an exclusive right to overtime.

105 The primary distinguishing factor is that a person required to undertake a task is suitably trained and competent. Consideration of equity and good conscience referred to by Mr Lynch suggests that where overtime is found to be necessary, those employees who ordinarily undertake the work should be given the opportunity as they will also, in the main, be the most skilled and efficient.

106 The Commission cannot support a barrier or distinction between clerical and CSC classifications as such distinction would be both artificial, unfair to one or both classifications, and would impose unwarranted restrictions upon efficient management.

107 It is appropriate to note the terms of the 2006 Agreement which deals with overtime in the following terms:

OVERTIME

81.30 Employees will only work overtime when they have been properly authorised to do so.

81.31 Employees will be provided with twenty-four (24) hours notice of the requirement to work overtime where it is practical to do so.

81.32 Employees will have a ten (10) hour break between shifts.

81.33 Period Rosters will show the commencement and finishing times of all shifts. This clause does not apply in cases of emergency or special events.

108 I do not restrain Management from exercising discretion to staff the Radio Control Room in the most effective manner.

109 It would be expected that vacancies would first be filled by work altering any available employee with suitable qualifications without need for overtime. Where this is not possible and overtime is required there is no compulsion to offer that by preference to full shift or part shift to CSCs or clerical officers.

110 Equity and good conscience suggest that where overtime occurs from 5am to 9pm, Monday to Friday, clerical staff would be the first consideration, whether for the hours required, part shift or full shift as circumstances dictate. Sharing of overtime opportunities between qualified employees is supported subject to adequate operational flexibility to maintain an acceptable level of efficiency.

111 Orders in the form sought by the STA are available. The STA is at liberty to file the specific Orders for execution within 21 days of the date of this decision.

112 I so determine.
oo0oo

LAST UPDATED: 22/08/2006