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Industrial Relations Commission of New South Wales |
![[AustLII]](14.1.gif)
New South Wales Industrial Relations CommissionLast Updated: 30 May 2008
NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION
CITATION :
Australian Rail, Tram and Bus Industry Union, New South Wales Branch v Rail
Corporation NSW [2008] NSWIRComm 14
FILE NUMBER(S):
413
HEARING DATE(S):
25 October 2007; 26 October 2007; 29 October
2007
DATE OF JUDGMENT:
8 February 2008
PARTIES:
APPLICANT
The Australian Rail, Tram and Bus Industry Union, New South
Wales Branch
RESPONDENT
Rail Corporation NSW
CORAM:
Sams DP
CATCHWORDS: Industrial dispute - inspections of rail signal boxes -
Area Controllers (ACs) in the NSW rail industry - allegation
of failure to
adhere to agreed review of grade structure - role of Signallers and Area
Controllers - long history of disputation
as to grade structure - recommendation
of AIRC - parties' agreement to review process - re-evaluation requested for
Strathfield Signal
Box - agreed process undertaken - flaw in collection of data
- review did not alter outcome - recommendation of Management - further
independent review undertaken - review did not consider higher grade was
possible - further disputation - second review - second
review reaffirmed
earlier review - conduct of Management - relevance of Work Value Principle -
Commission to answer question of
whether agreement provides for higher
grade.
Held; importance of maintaining integrity of agreements - all
parties contemplated higher AC grade - agreements contemplate higher
grade -
Work Value Principle not relevant - parties' agreement allows review process for
regrading - review outcome not in dispute
- question answered in the
affirmative.
LEGAL REPRESENTATIVES
APPLICANT
Ms L
Carruthers
Australian Rail, Tram and Bus Industry Union, New South Wales
Branch
RESPONDENT
Mr D Lloyd
Blake Dawson Waldron Lawyers
CASES
CITED:
Broken Hill Commerce and Industry Consent Award, Re (2002) 118 IR
200
Rail Corporation New South Wales Rail Infrastructure Corporation and
State Rail Authority of New South Wales Enterprise Agreement
2005
[PR960346]
State Rail Authority of New South Wales and Australian Rail, Tram
and Bus Industry Union (C No. 20712 of 2000, 10 May 2000)
State Rail
Authority of New South Wales Enterprise Agreement, 2002 [PR 924041]
State
Rail Authority of New South Wales, Signallers' Functional Agreement
2000
State Wage Case 2007 [2007] NSWIRComm 118; (2007) 163 IR 253
LEGISLATION CITED:
Industrial Relations Act 1996
Workplace Relations Act 1996
(Cth)
TEXTS CITED:
JUDGMENT:
- 61 -
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
CORAM: SAMS DP
8 February,
2008
Matter No IRC07/413
Notification under section 130 by the
Australian Rail, Tram and Bus Industry Union, New South Wales Branch of a
dispute with Rail Corporation NSW re alleged failure
to adhere to agreed review
of grade structure - Area Controller
DECISION
BACKGROUND
1 On 11 April 2007, pursuant to s 130 of the Industrial Relations
Act 1996 ('the Act'), the Rail, Tram and Bus Industry Union, New South Wales
Branch ('the Union') notified the Commission of an industrial
dispute with
RailCorp ('the respondent'). The dispute was originally expressed as involving
"a failure by the respondent to adhere to the outcome of an agreed review of
the grade structure for the Area Controller (AC) positions
within the
Signallers' Section of RailCorp".
2 Attempts at conciliating the
dispute were undertaken by the Commission, but ultimately proved unsuccessful.
On 16 April 2007, the
Commission issued a certificate of attempted conciliation,
under s 135 of the Act, and listed the matter for hearing.
3 On the first day of the hearing the Union submitted that the scope of
the proceedings should be limited to the Commission being
asked to answer the
following question:
Does the application of the Dwyer Agreement give Area Controllers at Strathfield Signalling Complex an Area Controller 4?
4 Both parties agreed to accept the decision of the Commission in
answering this question. To assist the Commission in its deliberations
on the
extensive documentation and detailed evidence in the proceedings, inspections
were undertaken at the following RailCorp facilities:
Sydney Signal Box, Redfern
Sydenham Signal Box
Strathfield Signal Box
Rail Management Centre, Central Station
The Signallers' Section of RailCorp
5 Before dealing with the evidence in this matter, it is necessary to
outline the role of the Signallers' Section of RailCorp.
6 The
Signallers' Section is responsible for the movement of trains on the
metropolitan rail network. The network is broken into
various areas and each of
these areas is controlled from a signal box. The Signallers section has two
classifications of position:
"Signallers" and "Area Controllers". Signallers
and Area Controllers control the movement of trains using control panels, known
simply as "panels", within the various signal boxes, according to a geographic
area of responsibility. Each panel is different and
is attributed a grade based
on the responsibilities and functionality of the panel. Each signal box is
graded according to the highest
graded panel as each signaller is required to
rotate within each signal box.
7 Each panel within each signal box is
graded by reference to the volume of train movements and the complexity of the
network controlled
by the panel. The grading of the panel is what establishes
the position requirements of the controller of the panel; that is, a
panel will
be graded as a Signaller 1 to Signaller 4 panel, or as an Area Controller 1 to
Area Controller 3 panel.
8 The rules and procedures of signallers (including ACs) are detailed in
three documents tendered in the proceedings. These are:
a) Network Rules
b) Network Procedures
c) Operator Specific Procedure 21
9 The ACs are the more senior
positions in the structure. An AC receives approximately 10 days training per
panel and must satisfy
localised training and assessment requirements.
Progression through the classification structure is based upon the experience
attained
at each grade. ACs work under the authority of Railcorp Train
Controllers (TC's) who are located at the Rail Management Centre at
Central. An
AC must obtain authorisation from a TC before effecting a deviation from the
Daily Working Timetable (DWT).
10 The present rates of pay are:
(Annual Base Salary + Annual Industry Allowance)
AC1: $56,504 ($54,159 + $2,345)
AC2: $60,172 ($57,827 + $2,345)
AC3: $64,352 ($62,007 + $2,345)
The salary differential between AC1 and AC3 is $7,848.
11 It was apparent from the documentation appended to the dispute
notification, that the subject matter of the dispute has had a long
and
protracted history, dating back to 1999/2000. At that time, Larkin C of
the Australian Industrial Relations Commission (AIRC) issued a recommendation
arising from an industrial dispute which established
the existing three tiered
classification structure and wage relativities for Area Controllers: See
State Rail Authority of New South Wales and Australian Rail, Tram and Bus
Industry Union (C No. 20712 of 2000, 10 May 2000).
12 The
Commissioner's recommendation led to further negotiations between the parties
regarding the evaluation system for ACs which
ultimately led to an agreement in
November 2004 known as the 'Dwyer Agreement' (see Annexure 1). This produced a
7% wage differential
between each of the AC grades. The agreement also
envisaged a fourth AC level, but, at the time, no AC positions were considered
eligible for regrading to that level.
13 At the end of 2005, a re-evaluation was requested of a number of the
busier signal boxes, including the Lidcombe panel at Strathfield
Signal Box. A
re-evaluation was subsequently undertaken through an Evaluation Working Group
(EWG) consisting of Management and Union
representatives. It was agreed that
the Lidcombe panel should be regarded as AC4, as it had scored 64 against the
benchmark panel
of 57. However, as a result of the identification of some
incorrect data in the original assessment, the data was revisited. The
reassessment did not affect the earlier result. The Chair of the EWG, Mr Brett
Perrim (Manager, Workplace Change), recommended that
the author of the original
grading methodology, Ms Jade Novakovic (the 'Jade' methodology - Annexure 2), be
engaged "to assist in the factor ranking process". Ms Novakovic
recommended against the EWG's conclusions (see Jade Review - Annexure 3) and the
dispute remained unresolved.
14 Despite further meetings between the
parties and a second review by Ms Julia Lipski (Lipski Review - Annexure 4)
which also argued
against the EWG's conclusion, the Union progressed the dispute
through steps one through five of the Disputes Resolution Procedure
cl 8 of the
Rail Corporation New South Wales Rail Infrastructure Corporation and State
Rail Authority of New South Wales Enterprise Agreement 2005 [PR 960346]
('the Agreement'); an agreement registered under the Workplace Relations
Act 1996 (Cth). I shall refer in greater detail to the 'Jade' and 'Lipski'
reviews later in this decision.
THE EVIDENCE
For the Union
15 Mr Derek Morgan-Jones commenced employment with State Rail (the
respondent's predecessor) in November 1979 as a junior station assistant. He is
presently
an AC at Sydney Signal Box and the Secretary of the Signallers'
Section of the Union.
16 In his evidence, Mr Morgan-Jones described the role and workings of
signal boxes which control the rail network. In the Sydney
Metropolitan area, a
complex network of rail lines and numerous train movements are controlled from
multiple panels controlled by
ACs. Each AC rotates within a particular complex.
Most signal boxes are set up with a large board displaying all rail lines and
points (the junction where rail lines merge). A signal is the method of
advising a train driver on the conditions of the line ahead.
Previously, most
changing of points was done by way of manually moving levers in the signal box
or at the points themselves. Now
most signal boxes operate electronically.
Each signal box is graded according to the highest grade of operator required to
operate
an individual panel. The larger signal boxes, such as Sydney and
Strathfield, are currently graded AC3.
17 Mr Morgan-Jones described the work of an AC as involving the
controlling and/or overseeing of a geographic area. This includes:
· ensuring the smooth movement of freight and passenger trains;
· coordinating track work to ensure safe working. Trackwork may be
regular or unscheduled;
· responding to problems such as incidents, breakdowns and points
failures;
· reporting obligations, such as issuing Track Occupancy Authorities
(TOA) which permit a person or organisation to be able to
enter the track;
and
· coordination with other signal boxes of freight trains which
usually don't have a set timetable.
18 Mr Morgan-Jones has been involved in the regrading of signaller
positions from 1999. He said that during the negotiations leading
to the Dwyer
Agreement, he had raised with the author of the 'Jade' methodology, Ms Jade
Novakovic, how a higher grade than AC3 could
be achieved. She had said that
increased productivity or changes in work systems would be assessed by an
Evaluation Working Group
(EWG) consisting of seven or eight persons from the
Union and Management. The Union had accepted the process at the time. Mr
Morgan-Jones
believed that the Dwyer Agreement dealt with acting in higher
grade, including as an AC4, and that any increase above AC3 would warrant
an
increase in remuneration by the same amount as between the other grades.
19 Mr Morgan-Jones' evidence dealt with the request for the grading
review in 2005. Members had requested a review for Sydney and
Strathfield
Signal Boxes to AC4. The request for Sydney arose from new sidings at
McDonaldtown and additional infrastructure at
Bondi and Edgecliff. An EWG was
established to oversee the distribution and collection of data from the Sydney
and Strathfield Signal
Boxes. The 'Jade' methodology required diaries being
distributed to each AC who worked on panels in a nominated work week (20 August
2005). This information was collated and printed into statistics which was then
compared to the data from a benchmark AC3 panel.
If the panel exceeded the
benchmark of an AC3, it was considered to be an AC4.
20 Information was collected from ACs working on the Illawarra Junction,
East Up, Sydney Yard and Lidcombe Panels. Activities recorded
were:
· The amount of track work required to be overseen and
monitored;
· The physical area of the panel which was operated;
· The amount of operators that were required to work within the
panel, including the amount of private contractors;
· The number of trains that passed through the panel during a
shift;
· The number of points, junctions or signals in the panel; and
· The number of phone calls or train radio contact that was had with
train crew, station staff, train controllers and infrastructure
workers.
Terms used in the diaries were:
TD: Train Describer which identifies trains passing through the panel.
TVS: Train Visibility System. This is a monitor that is located within a signal box. The monitor shows the area outside the boundary of the geographical area covered by the signal box.
ATRICS: An automated computer system that controls panels.
21 The diaries and other documents were stored until the information was
reviewed in February 2006. The unidentified data was then
benchmarked against
Grade 3 panels at Homebush and Wolli Creek panels in respect to:
· statistical differences in numbers;
· the change in numbers between the anchor (benchmark) panel and the
panel being reviewed; and
· noted increases in certain areas such as responsibilities,
critical alarms, safe working systems, customer service and engineering
work.
22 Mr Morgan-Jones said that the EWG formed the view that one panel
(later identified as Lidcombe) exceeded the anchor panel and was
therefore
recommended as an AC4.
23 Mr Morgan-Jones deposed that Mr Perrim had told him that he would send
the recommendation to Mr Steve Caines, Manager Metropolitan
Network Central.
24 Mr Morgan-Jones said that Mr Perrim's memorandum to Mr Caines
identified the scores achieved from the data and that there had been
a mistake
in the data relating to train terminations at Lidcombe. Mr Perrim recommended
"that the factor ranking process be undertaken again, given the incorrect
data used the first time. I would also recommend that you
engage the services
of Ms Jade Novicovik (sic), to assist in the factor ranking process. Until the
factors are rated again using
the correct terminating data, I can make no
recommendation on the validity or otherwise of the elevation in grade of the
Lidcombe
panel."
25 While Mr Morgan-Jones agreed with the error, he
said that the EWG was not consulted or reconvened following the discovery of the
error. However, the data was amended, the result adjusted and the remainder of
the information was validated. The result produced
a minimal change. Mr
Morgan-Jones believed the recommendation of the EWG should have been accepted.
He said the recommendation
of Mr Perrim to re-engage Ms Novakovic was not agreed
to by the Union or the EWG. Nevertheless, Mr Morgan-Jones had been confident
that the data would withstand any scrutiny.
26 Ms Novakovic provided a report to RailCorp in September 2006 which
recommended, inter alia, that undertaking a review of the positions was
an invalid process because there was no point having a regrading of a position
where
there was no grade to move to (see Annexure 3).
27 Mr Morgan-Jones said that as a result of the Union's disagreement with
the 'Jade' report, a formal dispute was lodged and during
further negotiations
RailCorp proposed an independent outside consultant be engaged to review the
'Jade' methodology in relation
to the classification of AC4 and whether it was
possible to reach an AC4 by the 'Jade' methodology (the Lipski report, Annexure
4).
It was Mr Morgan-Jones' belief that following further discussion, Ms Lipski
would propose a way forward to reach an AC4, if the
'Jade' system didn't provide
for it. He said Ms Lipski had agreed to this course. Despite this, Mr
Morgan-Jones said the Union
was not invited to agree on instructions to Ms
Lipski or put submissions to her.
28 Ms Lipski's report concluded, inter alia, that the request for
a review of the Lidcombe panel was invalid as the changes were not significant
and, in any event, the 'Jade'
methodology does not define an AC4 panel and,
therefore, cannot be created under the Dwyer Agreement which refers to that
methodology.
Mr Morgan-Jones said that the report did not address the agreed
matters and, in particular, it did not provide a way forward nor
recommend any
amendments to the 'Jade' methodology.
29 In oral evidence, Mr Morgan-Jones was referred to the documents
attached to his affidavit and he explained the methodology and
processes
associated with the 'Jade' evaluation system. He also explained the
documentation relating to the Track Occupancy Authorities
(TOA), the Conditions
Affecting Network form (CAN), the Special Train Notes (STN) and Safe Working
forms. He said CANs are issued
to warn drivers about any change in conditions
of the track which is to be travelled over. STNs warn the controller on a daily
basis
of anything affecting the track which is out of the normal.
30 Mr Morgan-Jones was asked about the agreed process guidelines for the
evaluation of AC positions and he explained the steps undertaken
in the process.
He said that the process in respect to Strathfield was the first time the
process had been undertaken as a review
and it was followed to the letter. He
added that the process is undertaken without identifying which panels are being
reviewed.
31 In cross-examination, Mr Morgan-Jones said that in the Sydney Signal
Box all the ACs rotate between the panels. The panels have
different levels of
complexity and business, but are all graded as an AC3. Mr Morgan-Jones agreed
that the relevant certified industrial
agreement does not presently have a
classification of AC4 and no one has been appointed to such a level. Mr
Morgan-Jones did not
accept Ms Novakovic's views that the 'Jade' system did not
allow for the creation of an AC4. It allows movement up and down from
AC1 -
AC3. He did not agree that the EWG review process in 2006 was an invalid
process. He accepted that there must be a change
in circumstances to request a
review. However, whether a change was major or minor would be a decision of the
EWG. He agreed changes
were constantly occurring which may, or may not, be
significant. Mr Morgan-Jones did not agree that the Dwyer Agreement contained
a
mistake when it mentioned an AC4 position, even though it couldn't be
accommodated by the existing methodology.
32 Mr Morgan-Jones agreed that Ms Novakovic had told him that to get a
grade higher than AC3 there would need to be increased productivity
or changes
to the work. He said this would be the basis of the review by the EWG and a
recommendation to the relevant manager.
Mr Morgan-Jones conceded that the EWG's
findings were a recommendation only. Mr Morgan-Jones agreed that Mr Caines had
rejected
the regrade, based on changes which he believed didn't warrant a
regrading. While Mr Caines had identified the Train Viewing System,
Dual Signal
Control and the implementation of the 2005 Standard Working Timetable, Mr
Morgan-Jones said these changes were only minor
components of the overall
process.
33 Mr Morgan-Jones strongly denied that the Union had agreed to have Ms
Lipski as an independent umpire in the dispute. He said her
role was to
determine whether the 'Jade' methodology could provide a higher grade than AC3
and, if not, determine how the system
might be amended to include it. He
accepted that Ms Lipski's appointment was confirmed in a letter from Mr Mark
Greenhill (Manager,
Industrial Relations, RailCorp) to the Union. Ms Lipski
visited Strathfield Signal Box with representatives of the Union and the
Area
Controllers. She observed the work and asked questions. The Union later met
with RailCorp and Ms Lipski on 8 March 2007 to
discuss her report.
34 In re-examination, Mr Morgan-Jones insisted that agreement had been
reached (the Dwyer Agreement) for future evaluation of panels
above AC3 using
the 'Jade' methodology.
35 Mr Phil Kessey is a Lead Organiser for the Union. Much of his
affidavit evidence was corroborative of Mr Morgan-Jones' affidavit evidence. To
the extent their evidence, as to the history of the dispute is not in issue, I
will not repeat it here. Mr Kessey described the
work of operating signal boxes
and the background to the negotiations of the Signallers' Functional
Agreement in 2000, the grading recommended by Larkin C and the review
by Jade Novakovic in mid 2002 to establish an evaluation system for the
classification of ACs. Mr Kessey said that
in April 2002, a working party was
established in relation to signallers. However, this was not adequate for
grading ACs, due to
the complex nature of their work.
36 In tracing the history of the dispute, Mr Kessey identified a letter
from State Rail dated 21 March 2003, which included the following
proposal:
1. the existing point score system be retained for Signaller grades 1-4;
2. a new Area Controller Level 4 grading be established;
3. the working party finalise the new evaluation system;
4. all existing Area Controller panels be assessed under the new evaluation system.
The Authority considers that the new Area Controller Level 4 rate should be in line with the incremental differences in other Area Controller rates.
37 Mr Kessey said negotiations had
continued for over a year until the Dwyer Agreement in November 2004. The
process guidelines for
evaluation of ACs was finally signed off on 14 March
2005.
38 Mr Kessey then referred to the 2005 signaller's request for a review,
the establishment of the EWG, its subsequent deliberation
and findings, the
decision of Mr Perrim and the re-evaluation undertaken by Ms Novakovic. Mr
Kessey deposed that the Union:
· did not agree to the re-evaluation of the Lidcombe panel by Ms
Novakovic;
· did not agree to re-engage Ms Novakovic;
· had no input with any instructions given to her;
· did not support her conclusions; and
· believed that the EWG's findings should be adhered to.
39 Mr Kessey said that a meeting was held on 18 October 2006 with
RailCorp representatives, Mr Kevin Wright, General Manager Operations,
Natalie
Buviet, Bill Morrison and Steve Caines. At this meeting, Mr Kessey had asked
that if there was no way the process enabled
AC3s to be regraded, why did the
review take place in the first place?
40 Mr Kessey referred to a letter he wrote on 19 October 2006 to Mr Kevin
Wright, in which he referred to a conversation between them
that day in which Mr
Wright had agreed to regrade the ACs at Strathfield to AC4. (Mr Wright denied
this conversation and Mr Kessey
later agreed that it was a 'breakdown in
communication'.) Mr Kessey said that later that day he had a conversation with
Mr Morgan-Jones
who had told him that Mr Caines had phoned Strathfield Signal
Box and had spoken to an AC, Johnathan Field. Mr Caines had congratulated
him
on Lidcombe being regraded. However, three to four hours later Mr Caines had
rang back and withdrew his earlier statement.
The Union then wrote to RailCorp
expressing serious concern with the withdrawal of the regrading.
41 Mr Kessey said a meeting was held on 25 October 2006 between the Union
and RailCorp. Ms Jan Potapof, General Manager, Human Resources,
had said that
RailCorp appreciated there was scope for a grade above AC3, but the methodology
didn't allow it. RailCorp proposed
bringing in an outside consultant (Ms
Lipski) to move the matter forward as significant infrastructure changes may
result in a change
in the duties of ACs. Alternatively, the Union proposed
taking the matter to the Industrial Relations Commission of New South Wales.
42 Mr Kessey deposed that the Union had no input in this review, nor was
it requested to participate in the review. Mr Kessey said
that the Union's
position was that the Dwyer Agreement provided that if the duties and
obligations of an AC3 were to change, the
'Jade' system would be used to review
the signal box panel and, if found appropriate, the panel would be regraded.
43 In a reply affidavit, Mr Kessey responded to Mr Greenhill's evidence
by rejecting his contentions that:
a) the Union had made a claim for an AC4;
b) the Union had accepted Ms Novakovic's response;
c) he had been at a meeting with Unions NSW on 27 November 2006; and
d) he had agreed to use Ms Lipski as an independent umpire and had agreed to her report as determining the dispute.
44 In
cross-examination, Mr Kessey was asked about his understanding of the Work Value
Principle of the State Wage Fixing Principles.
He believed it related to the
responsibility and accountability of the work and the rate of pay attached to
it. He was not familiar
with the precise details of the Work Value Principle of
the Industrial Relations Commission of New South Wales.
45 Mr Kessey said the Union was not making a claim, but was seeking the
adherence by RailCorp to the Dwyer Agreement. He agreed that
an AC4 was not an
automatic entitlement, but may be warranted under the 'Jade' methodology. That
system had found that an AC4 at
Strathfield was warranted.
46 Mr Kessey accepted that the EWG review had commenced as a result of
changes identified to the work, which then underwent the review
process. Mr
Kessey could not say if these changes were significant or not. However, the EWG
process had agreed to an AC4. Mr Kessey
did not accept that the 'Jade' system
did not allow for an AC4 as contended by Ms Novakovic.
47 Mr Kessey agreed that wage increases had occurred as a result of the
Dwyer Agreement and, shortly thereafter, (about two months),
the claim for a
review had been initiated. Mr Kessey accepted that Mr Caines had rejected the
recommendation to increase the Strathfield
Box to AC4. However, Mr Kessey
believed Mr Caines was bound to accept the recommendation of the EWG, as
provided for in the Dwyer
Agreement.
48 Mr Kessey said Ms Novakovic had only been engaged to assist in the
gathering of the factor rankings. He did not agree with Mr
Greenhill that the
Union had agreed to re-engage Ms Novakovic as a letter of 7 July 2006 made
absolutely clear. The Union had not
agreed with Ms Novakovic's report and
sought a meeting with RailCorp on 19 September 2006. He said that the Union was
"angry" with
RailCorp's position.
49 Mr Kessey deposed that in a meeting with Mr Greenhill and Ms Lipski on
18 December 2006, the Union had not agreed to her being
an independent umpire in
the dispute. He said it was possible Mr Morgan-Jones had said they didn't want
it (the dispute) to "drag
on". The Union understood that Ms Lipski would visit
Strathfield Signal Box and Mr Morgan-Jones attended with her. Mr Kessey said
that he understood Ms Lipski's role was to act as RailCorp's agent in the
dispute. However, he conceded that no one had told him
this. Mr Kessey was
away when Ms Lipski reported to a meeting on 8 March 2007. Mr Kessey agreed
that the Union did not respond
to, nor question Ms Lipski's report.
Respondent's evidence
50 Mr Steven Henry Caines has 25 years experience in the rail
industry and has been both a Signaller and an AC. From 1988 to 1995 he was an
AC at Strathfield
Signal Box. He has held various management positions and
since 2005 has been Manager (Metropolitan) responsible for the reliability
and
'on time' running of trains. This involves supervision of 480 signallers and
ACs at 33 signal boxes throughout the network.
51 In Mr Caines' evidence he described the operations at Strathfield
Signal Box. There are seven dedicated panels - Lidcombe, Flemington,
Homebush,
Strathfield, Ashfield, Olympic Park and Epping. In addition, there is a Western
Desk and Eastern Desk which serve as a
backup to assist and relieve the ACs
operating the seven panels. Their roles include:
(a) administration tasks, such as completing standard forms regarding daily working;
(b) facilitating safe working practises;
(c) making telephone calls;
(d) engaging in other forms of communications;
(e) facilitating train running where incidents interrupting usual running occurs;
(f) relieving other panel operators for their meal breaks; and
(g) relieving other panel operators for their unscheduled short breaks, which last approximately 10 minutes, and may occur multiple times per shift.
52 The Lidcombe panel is the
highest graded panel at Strathfield. Like Sydenham and Sydney whose ACs are all
AC3, Mr Caines believed
that the work of an AC3 at Strathfield is consistent
with that at Sydney and Sydenham. He said the duties of an AC3 include:
(a) operating signaling equipment;
(b) coordinating train movements within his or her area of control as per the RailCorp Daily Working Timetable;
(c) making quick and efficient day-to-day signaling decisions under the authority of a TC, in accordance with safe working procedures; and
(d) supervising junior or trainee staff to create a cooperative team environment.
53 Mr Caines outlined
the history of the present dispute and said he was disappointed that the Union
had not accepted the findings
of a third party, Ms Lipski.
54 Mr Caines deposed that, in his view, there had not been a significant
change in work or the work value of ACs at Strathfield Signal
Box since 2004.
He referred to the three identified reasons advanced by the Union in its claim
for an AC4. These were:
a) introduction of the Train Visibility System (TVS);
b) the requirement for written Train Occupancy Authorities; and
c) infrastructure changes at Auburn affecting the Lidcombe panel.
55 Mr Caines detailed the effect of each of these changes and concluded
that either separately, or cumulatively, the changes were
minimal and have not
caused a significant change in the work of AC3s at Strathfield.
56 Much of Mr Caines' affidavit evidence was in response to two
affidavits originally filed by the Union and subsequently withdrawn
given the
nature of the question to be determined by the Commission. These affidavits
were from two ACs, Mr Ray Dorman and Mr Jonathan
Field.
57 One particular matter (which also arose from Mr Kessey's evidence) was
Mr Caines' phone call to Mr Field at the Strathfield Box
on 19 October 2006, in
which he passed on information that an AC4 had been approved. Mr Caines said
that when he had overheard the
conversation Mr Wright was having on the phone,
he had formed the view that Mr Wright had agreed to the AC4 regrading. He said
that
as he wanted to be the first to pass on the news to Strathfield, he had
called Mr Field. Mr Caines claimed that the information
he gave to Mr Field
"was not intended to be and was not a formal or authoritative announcement
regarding the introduction of an AC4 classification". Shortly after, he had
told Mr Wright what had happened and Mr Wright told him he had misinterpreted
the conversation and that
management had not agreed (to the AC4). In
cross-examination, Mr Caines said that after he overheard Mr Wright agreeing to
an AC4,
he had not sought to question Mr Wright about it. In fact he had phoned
Mr Field before Mr Wright had hung up the phone. He agreed
that there was no
reason why the Strathfield staff wouldn't have accepted his statement as
authoritative. However, he had not sought
to mislead anyone.
58 In further cross-examination, Mr Caines was questioned about the
establishment and the role of the EWG. He said the EWG was to
gather and
analyse material, score points as to functional responsibilities and make a
recommendation to the Manager, Network Control.
The decision to establish an
EWG was at his discretion. He agreed that when the incorrect data was
corrected, the remainder of
the information was verified. Mr Caines agreed that
Ms Novakovic was then asked to assist in the factor ranking process in light
of
the incorrect terminating data. This had been Mr Perrim's recommendation. Mr
Caines conceded that it wouldn't have mattered
one iota whether there had been a
miscalculation or not, because the 'Jade' methodology did not provide for an AC4
position. Mr
Caines referred to the Dwyer Agreement which identified a major
change in functionality or responsibilities which equated to a 7%
differential.
Mr Caines accepted that the Dwyer Agreement envisaged a re-evaluation of AC's
positions above AC3 using the 'Jade'
methodology. Mr Caines said that the EWG
was not reconvened after Ms Novakovic gave her report, because ultimately he
believed,
that from all the subject matter experts, there had been no major
change in the AC3's work warranting an increase in classification.
59 Mr Caines accepted that the 'Jade' methodology did mention the
possibility of an AC4 position (see para 4 of Annexure 2).
60 In re-examination, Mr Caines described the approval process for any
new classification or rate of pay. Endorsement is required
from the Business
Unit Manager, Division General Manager, Group General Manager and Human
Resources.
61 Ms Julia Lipski is a Remuneration Consultant and has been
engaged in job evaluations for various rail positions since the late 1980's.
She has expertise
in systems such as the Mercer HR job evaluation system, the
Hay methodology and the McDonald system. Ms Lipski said the job evaluation
system for ACs is a unique and tailored system, commonly referred to as the
'Jade' methodology.
62 Ms Lipski described her engagement in December 2006 as to act as an
independent job evaluation consultant in the present dispute.
She had met with
RailCorp Management and Union representatives and it was agreed that both
parties would provide her with information
about changes in the work of the
Lidcombe panel. This material included information about the 'Jade' system. On
1 February 2007,
Ms Lipski visited Strathfield Signal Box with Management and
Union representatives and observed the work. In cross-examination,
Ms Lipski
said she had received input from the ACs at Strathfield and the Union during her
review and inspection of Strathfield Signal
Box.
63 Ms Lipski subsequently prepared a report and met with Management and
the Union on 8 March 2007. At the time, the Union indicated
it would consider
the report. Ms Lipski denied that the Union had "no input nor was it requested
to participate" in the review as
claimed by Mr Kessey.
64 Ms Lipski said she understood her role was to review the job of an AC
on the Lidcombe panel and consider any significant changes
to the job since
2004. She did not consider that the changes to the job were so significant as
to justify a higher grade. Ms Lipski
said she did not seek a reconvening of the
EWG, as she did not see the need to.
65 Ms Lipski said her role was not to determine whether the 'Jade'
methodology could be amended to enable a reclassification. She
said that this
was not a role she would normally undertake without all the relevant
background.
66 Mr Mark John Greenhill is Manager, Industrial Relations with
responsibility for industrial relations for all the operational divisions of
RailCorp. He
has held this position since June 2007, having commenced work with
RailCorp in January 2004.
67 Mr Greenhill said that the approval and implementation of the Dwyer
Agreement was subject to a number of other letters between
the respondent and
the Union. He said that the classification structure and rates of pay for ACs
were governed by three industrial
instruments certified by the Australian
Industrial Relations Commission. These are:
a) Rail Corporation New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005 which has a nominal term until 31 March 2008.
b) State Rail Authority of New South Wales, Signallers' Functional Agreement 2000.
c) State Rail Authority of New South Wales Enterprise Agreement, 2002 [PR 924041].
Mr Greenhill said that any new classification or any increase in a rate of pay requires the approval of the Group General Manager, Human Resources.
68 Mr Greenhill traced his understanding of the history of the present
dispute, although he was not involved in the establishment
of the EWG in
2005.
69 On 4 July 2006, Mr Greenhill wrote to Mr Kessey indicating RailCorp
would concur with Mr Perrim's recommendation to recalculate
the evaluation
process and engage Ms Novakovic. Mr Kessey's response was to reject RailCorp's
proposal. Mr Greenhill replied reinforcing
RailCorp's intentions.
70 After Ms Novakovic's report, Mr Greenhill outlined Railcorp's position
as follows:
1. The Jade system is an inappropriate tool to obtain a revision of the existing grade structure for Area Controllers. A position within the classification is reviewed against the grades available. It is not reviewed on its own in order to create another grade.
2. A grading structure is not created or changed to cater for one position.
3. A revision of the grading structure is not constituted by a change in technology or variations in the manner of work.
4. A change to a grading structure is based upon a major event which requires a totally new work classification. It requires a major review which re-examines the boundaries and differentials between all the grades to ensure that they are still relevant.
5. Where it is established and agreed to by all parties that a position is now significantly different to what was the highest level available in a grading structure, the position should be redesigned to ensure that it fits within the grading structure.
Based upon this advice, it is RailCorp's position that the introduction of the Train Visibility System (TVS) and the two dual-control signals at Auburn do not constitute a significant difference to Lidcombe Panel since its last evaluation. However, if agreement is reached in the future that a significant difference has occurred for the Lidcombe Panel then options will be considered to redesign the workload to ensure that Lidcombe Panel remains within the existing grading structure.
71 Mr Greenhill said that a meeting
with the Union was held on 19 September 2006 to progress the matter. Mr
Greenhill had advised
the meeting of the "No-extra-Claims provision" in the
industrial agreement. He believed that the Union was resigned to the fact
their
claim had failed and the dispute was concluded. A Union delegate, Mr Dorman,
had said that Management should inform the Strathfield
staff.
72 Mr Greenhill went overseas on 7 October 2006 and returned on 30
October 2006 to find, to his surprise, that the dispute had not
ended. Further
exchanges of correspondence between Mr Greenhill and Mr Kessey did not resolve
the dispute.
73 Mr Greenhill said he initiated a meeting with Unions NSW on 27
November 2006, under Step Five of the Dispute Resolution Procedure.
It was at
this meeting that Mr Greenhill proposed Ms Lipski's involvement. Mr Greenhill
claimed Mr Kessey accepted this suggestion.
74 Mr Greenhill deposed that in a meeting with Ms Lipski, Mr Kessey had
agreed to accept Ms Lipski as an independent umpire in the
dispute. Mr
Greenhill rejected the Union's claim that Ms Lipski's role was merely to amend
the Jade methodology to permit an AC4
classification.
75 On 8 March 2007, RailCorp and the Union met with Ms Lipski where she
presented an overview of her report. Mr Greenhill later wrote
to Mr Kessey and
said, in part:
Ms Lipski considered the issues involved, convened discussions with the parties and found as follows:
1. That the request to regrade the panel in question is not valid;
2. That it was not valid to re-evaluate an anchor position;
3. An AC 4 grade cannot be defined within the terms of the "Dwyer" agreement; and
4. The "Jade" review does not support the request for a grade review because of the short period of time that has elapsed since the formation of the structure.
One of the key points made by Ms Lipski is that there is not presently an Area Controller 4 grade within the structure. The classification does not go beyond an Area Controller 3. Nor has there been any attempt to define what an Area Controller 4 would look like.
RailCorp has therefore dealt with the substance of this dispute, and on the basis that the RTBU is not satisfied with the previously agreed process and outcome, we can only determine that what we have from the RTBU is a wage claim on behalf of the Area Controllers at Strathfield Signal Box
In evaluating a wage claim the parties must have regard to the "No Extra Claims" clause at 12.1 of the Multi-Employer Agreement 2005, in particular 12.1(ii) and 12.1(iv).
With regard to 12.1(iv) the functional agreement clause detailed at clause 12.2 determines the appropriate mechanism for negotiating rates of pay where productivity improvements can be realised. We do not believe that the claim made by the RTBU on this issue falls within the purview of this clause.
I trust this clarifies RailCorp's position in relation to the dispute.
76 Mr Greenhill deposed that one of the
reasons Ms Lipski was engaged was that a review needed to be undertaken when the
'Jade' methodology
did not permit an AC4 classification. Mr Greenhill said he
was surprised the Union did not accept the outcome and had he known that
this
was the Union's view, he would not have recommended the expenditure (of Ms
Lipski's engagement).
77 Mr Greenhill identified a letter from Mr Kevin Mackie, Manager
Industrial Relations, in March 2003 which proposed:
a) the existing point score system be retained for Signaller grades 1 to 4;
b) a new Area Controller Level 4 grading be established;
c) a working party finalise a new evaluation system; and
d) all existing Area Controller panels be assessed under the new evaluation system.
Mr Greenhill said it was erroneous for the Union to rely on Mr Mackie's letter, as the later working party referred to in (c) above concluded that only three ACs be established.
78 In further oral evidence, Mr Greenhill described the process of
approval for any change in classification or rates of pay. Mr
Greenhill
believed that once the review had been undertaken twice, and particularly as Ms
Lipski's involvement had been agreed, the
dispute had concluded. However, he
accepted the Union was unhappy with the outcome.
79 In cross examination, Mr Greenhill said he had not been involved in
the EWG process and had not discussed Mr Perrim's memorandum
of 31 March 2006
with him. Mr Greenhill agreed that the EWG had not been reconvened after Mr
Perrim's memorandum. Mr Greenhill
accepted that the Union had not agreed to
re-engage Ms Novakovic. Mr Greenhill said he had no idea what Ms Novakovic was
asked to
do, other than what Mr Perrim had proposed. When Ms Novakovic said an
AC4 couldn't be created using 'Jade', he had proposed a second
opinion to take
the measurements.
80 In re-examination, Mr Greenhill said that if there was substantial and
significant measurable change in the future, he would put
in place a process to
ensure that the change could be quantified. It may not necessarily mean a 7%
adjustment, but it would mean
a readjustment of all the anchor positions. Mr
Greenhill said that there is a 7% differential between AC1 and AC2 and 7%
between
AC2 and AC3.
SUBMISSIONS
For the Union
81 Ms L Carruthers opened the Union's submissions by outlining the
history which led to the making of the Dwyer Agreement in November 2004. She
said
the Agreement specifically detailed the methodology to be applied when
considering the movement of an AC3 position to AC4. She said
the methodology
itself and the Dwyer Agreement envisage an AC4 position. The means by which
that is assessed was explained by Mr
Morgan-Jones in respect to the work of the
EWG. However, when the EWG had made a recommendation it was ignored by RailCorp
and the
EWG was not even reconvened when it was intended to do so. Ms
Carruthers said there was a clear contemplation that a higher complexity
of work for an AC3 could be measured and had been measured by the EWG.
Ms
Carruthers submitted that it was difficult to establish what Ms Novakovic
was asked to look at in her review. However, it was apparent she
went much
further than simply reviewing the factor ranking process in consultation with
the EWG, which was all Mr Perrim's recommendation
had envisaged.
82 Ms Carruthers said Mr Caines had convened the EWG in response
to a request to review the workings of the Lidcombe panel. The review not only
examined
the three changes initially identified by the Union, but applied
ratings to a range of matters in accordance with the methodology.
After
undertaking the task, a score of 62 was calculated compared to the next ranking
of 57. This meant that the work was measured
in excess of an AC3's work. Mr
Morgan-Jones had believed the EWG's work was then finished and he was surprised
by Mr Perrim's memorandum.
Ms Carruthers said that Ms Novakovic had
never sought to re-engage with the EWG and although the incorrect data was
corrected, the result was the
same.
83 Ms Carruthers submitted that Mr Greenhill's evidence merely
went to managing a "disagreeable" result while Mr Caines' evidence demonstrated
that
he had no familiarity at all with the EWG or how it did its work.
84 In questioning from the Bench, Ms Carruthers said that the
Dwyer Agreement contemplated an increase of 7% for any change in excess of an
AC3 position. Ms Carruthers said that it was quite clear in 2003 that Mr
Mackie had understood that an AC4 was envisaged. The Dwyer Agreement merely
confirmed
that understanding. Ms Carruthers put that the Commission
should not give greater weight to an unfavourable report by Ms Novakovic in late
2006, than the weight which
should be given to the development of the
methodology which led to the Dwyer Agreement in November 2004. There was an
agreed process;
it contemplated an AC4; the process was followed and a
recommendation made. The Agreement itself refers to an adjustment which is
"warranted".
85 Ms Carruthers submitted that Ms Lipski's brief was not to
review the work undertaken by the EWG, but to sit down with the EWG and come up
with
a solution to the problem of the 'Jade' methodology not contemplating an
AC4 position. This, she had failed to do.
86 Ms Carruthers said the relief being sought in these proceedings
was a recommendation from the Commission that RailCorp abide by its agreement
with
the Union. It was not a work value case. No one in this case challenged
the evidence of Mr Morgan-Jones as to the methodology adopted
by the EWG and
what conclusions it arrived at. She said that RailCorp cannot simply say that
the Dwyer Agreement is flawed. The
EWG process was undertaken in good faith and
the Union does not seek to revisit the process, nor its decision. Ms
Carruthers accepted that if the Commission makes the recommendation as
sought, the question of enforcement will be a matter for the parties.
For the Respondent
87 Mr D Lloyd submitted that in light of the relief now being
sought by the Union, the respondent would no longer be pressing the
jurisdictional
issues it had earlier foreshadowed. He acknowledged that
RailCorp policy in relation to outcomes before the Industrial Relations
Commission of New South Wales was based on New South Wales Government Policy and
he relied on a memorandum from the Chief Executive
Officer, Mr Vince Graham in
that regard. Nevertheless, Mr Lloyd submitted that the question posed by
the Union should be answered in the negative and, in addition, there was no
evidence which justified
an increase in AC classifications to an AC4.
88 Mr Lloyd said that the Wage Fixing Principles of the State
Wage Case 2007 [2007] NSWIRComm 118; (2007) 163 IR 253, were relevant to this case,
notwithstanding that it was not a strict application to vary an award or
establish a new rate of pay.
Mr Lloyd agreed that a higher grade is
contemplated by the Dwyer Agreement, but the present situation does not justify
a modification to the
existing classification structure under the 'Jade'
methodology, particularly where the impact will have implications across the
whole
classification structure.
89 Mr Lloyd submitted that the only evidence relied upon by the
Union was focussed on the work of the EWG. The Union claimed that the EWG
recommendation
should be adhered to, or a further process undertaken. In
response, Mr Lloyd said that firstly, there was no conclusion to the EWG
process; secondly, in any event, the EWG can only make recommendations and
thirdly, the EWG process was fundamentally flawed.
90 Mr Lloyd developed his submission concerning the failure of the
Union's claim on work value grounds by submitting that the Union had brought
no
evidence to demonstrate a significant net addition to work value. On the other
hand, the respondent had brought comprehensive
evidence from Mr Caines and Ms
Lipski rebutting the Union's case. Indeed, Mr Kessey from the Union, was not
able to comment on whether
the changes were significant or not. Mr Lloyd
said work changes are always occurring and whilst there may be potential for
future changes, that is presently not the case.
91 Mr Lloyd referred in detail to the 'Jade' methodology. He said
that for a review to be commenced there needed to be a prerequisite test of
work
value changes being able to be identified. The EWG's role is to gather
statistical information which is profiled against previous
profiles to obtain
comparisons. The EWG then makes a recommendation which requires the approval of
senior management.
92 Mr Lloyd then referred to Ms Novakovic's report and her
conclusion that there was no point in undertaking the review process. She had
also
concluded that a review should only be conducted where there appeared to be
evidence of substantial change. The review process would
involve significant
time and resources. Mr Lloyd said that life had been given to a process,
which on Ms Novakovic's analysis, should not have been given life to. Ms
Novakovic had
concluded that there was no need to embark on a review,
particularly so soon after the structure had been implemented.
93 Mr Lloyd then dealt in detail with Ms Lipski's report and, in
particular, her view that the 'Jade' methodology cannot assess an AC4 position.
He highlighted various other aspects of Ms Lipski's report in which she referred
to Ms Novakovic's review and she had agreed that
there were no significant
changes justifying a review being undertaken.
94 Mr Lloyd concluded that the evidence was overwhelming - a new
classification was not justified on the 'Jade' methodology and from a work value
perspective.
95 Mr Lloyd put that the Dwyer Agreement had been given effect to
as far as was reasonably practicable given the limitations of the 'Jade'
methodology.
Mr Greenhill had in fact gone further and engaged a second
independent expert. Particular reliance was placed on Mr Greenhill's
evidence,
in which he had said that in the event of changes which would justify a new
classification, an investigation would occur,
either by amendment to the 'Jade'
methodology or by the adoption of some other job evaluation system. Mr
Lloyd acknowledged that there had been some work changes since early
2005, but these were not of any significance.
96 As to Mr Caines overhearing Mr Wright's conversation about approval of
an AC4 position, Mr Lloyd submitted that the conversation had been
misinterpreted. However, in any event, ultimate approval was needed from the
Group General
Manager, Human Resources.
In reply
97 Ms Carruthers referred to the industrial history and context of
the Dwyer Agreement which she submitted was crucial to understanding the more
recent
difficulties encountered by the Union. Ms Carruthers observed
that Ms Novakovic was not called to give evidence and be subject to
cross-examination. Ms Carruthers submitted that Ms Novakovic's second
report goes into much greater detail than when her methodology was first
introduced. Ms Carruthers said that the 'Jade' methodology was not about
the work value principle, but was an agreed process for identifying change and
reclassifying
an AC grade as appropriate. It is achieved through an agreed job
evaluation process.
98 Ms Carruthers emphasised that Ms Novakovic did not do what Mr
Perrim had recommended - to review the data. The eventual outcome was a report
which
went much further than what was recommended by Mr Perrim. Further, Ms
Lipski was looking for changes in work value, which was never
part of her
brief.
CONSIDERATION
99 It seems to me that the fundamental imperative at the core of this
dispute (as in many disputes) is the integrity of an agreement
entered into by
the industrial parties in good faith. In Broken Hill Commerce and Industry
Consent Award, Re (2002) 118 IR 200 a Full Bench of the Commission
said:
2. Further, the agreement reached by the parties for the operation of the Award contemplated that the Award be treated as a new minimum rates Award operating from 2001. The agreement did not involve, or contemplate, the Award being treated as if the absorption principle could be applied. We consider that Mr Bukarica's argument for the unions, that the issue of absorption was raised relatively late in the day as an attempt to buttress a fragile case on economic incapacity, is sound. We consider that what is proposed in these proceedings is plainly inconsistent with the prior agreements of the parties in respect of this Award.
8.Parties should, as a matter of principle, consider their situation very carefully and deliberately before conducting themselves in such a manner. It is extremely important in industrial and employment relations that parties adhere to considered agreements entered into by them. The serious circumstances created by the present difficult, regrettable and preventable industrial dispute are demonstrative of the problems which result from such conduct. No doubt, if considered counsel and advice had been provided to the Chamber in that regard, some of the present difficulties may have been avoided to the benefit of all concerned, including the Broken Hill community. (my emphasis)
100 It seems to me that agreements,
entered into by responsible industrial parties, must not only be honoured by
them as to their
express terms, but must also be considered in light of the
history of the making of the agreement. The agreement at issue in this
dispute
is obviously the Dwyer Agreement entered into by the parties in November 2004.
There is no doubt that the complaint of the
Union (as reflected in the wording
of the question posed to be answered by the Commission) is the integrity of the
Dwyer Agreement
in so far as it provides a mechanism to reclassify signallers
and AC positions. While the question is very specific, the answer
requires a
contextual setting as to the history of the making of the agreement and what has
flowed since its making.
101 In considering these matters, I am of the opinion that the answer to
the question: "Does the application of the Dwyer Agreement give Area
Controllers at Strathfield Signalling Complex an Area Controller Grade 4?"
must be in the affirmative. I shall explain my reasoning for reaching this
conclusion.
102 There is no doubt from the express terms of the Dwyer Agreement
itself that it contemplates the creation of an AC4 position.
At para 2 the
Agreement provides as follows:
GradeQualifications
Signaller Grade 1 & 2As per existing (Signaller Safeworking, Cert III transport & Distribution etc).
Signaller Grade 3 & 4Minimum 6 months practical experience as a Signaller. (Signaller Safeworking, Cert III in Transport and Distribution etc)
Area Controller Grade 1 & 2Minimum 12 months practical experience as a Signaller.
Area Controller Grade 3 & 4Minimum 6 months practical experience as an Area Controller.
Importantly, it appears to me that the history before the making of the Agreement and post November 2004, makes plain that the industrial parties had always contemplated the creation of an AC4 position.
103 There is no doubt in my mind that the parties entered into the
Agreement fully cognisant of the fact that it contemplated an AC4
and moreover,
provided a mechanism for achieving it. When viewed in the context of Mr
Mackie's letter to Mr Nick Lewocki (RTBU)
of 26 March 2003, the inclusion of a
reference to an AC4 in the Agreement, is hardly surprising. Mr Mackie had
proposed:
1. the existing point score system be retained for Signaller grades 1-4;
2. a new Area Controller level 4 grading be established;
3. the working party finalise the new evaluation system;
4. all existing Area Controller panels be assessed under the new evaluation system.
The Authority considers that the new Area Controller Level 4 rate should be in line with the incremental differences in other Area Controller rates.
104 It is curious, and unexplained, why
the 'Jade' methodology which post dated the Dwyer Agreement, also included
reference to an
AC4 when Ms Novakovic so vehemently discounted it in her review
of October 2006. At para 4 of the 'Jade' methodology the following
is to be
found:
After all panels were rated on all factors a rating profile was developed for each panel and they were ranked from most difficult to least difficult. Decisions were then made as to where the most logical breaks between groupings or grades should fall. The result is (3 or 4?) grades of Area Controller.
105 When I say this is unexplained,
it is because Ms Novakovic was not called to give evidence in the proceedings.
I am troubled
by this inconsistency, particularly in light of a number of other
inconsistencies about her involvement in the dispute, to which
I shall later
refer.
106 The conduct of senior management after the conclusions of the EWG
were known, also discloses a view, at the highest level of management,
that the
attainment of an AC4 was not at all out of the question. Mr Caines seemingly
didn't have any problem with it when he mistakenly
overheard Mr Wright agreeing
to its creation. Indeed, rather than express disquiet or disagreement with the
outcome, he hurredly
rushed to inform the Strathfield Signal Box of their
achievement. The foregoing history only reaffirms my own opinion, that the
parties well understood that an AC4 could be achieved through the Dwyer
Agreement. This leaves of course the alternative conclusions
reached in Ms
Novakovic's and Ms Lipski's reviews to which I now turn.
Novakovic and
Lipski Reviews
107 In my opinion, the pivotal turning point in this dispute concerned
the terms of Mr Perrim's recommendation to re-engage Ms Novakovic
after the
discovery of an error in one aspect of the calculations. Mr Perrim's
recommendation was quite specific when he said:
In summary, it is my recommendation that the factor ranking process be undertaken again, given the incorrect data used the first time. I would also recommend that you engage the services of Ms Jade Novicovik (sic), to assist in the factor ranking process. Until the factors are rated again using the correct terminating data, I can make no recommendation on the validity or otherwise of the elevation in grade of the Lidcombe panel.
108 Understandably, and notwithstanding
the Union did not agree to Ms Novakovic's engagement, the Union had an
expectation that she
would simply recalibrate the results in consultation with
the EWG, with little change expected to the ultimate outcome. (This proved
correct.) However, Ms Novakovic went much further than what Mr Perrim
recommended, or the Union expected. It is fair to say that
she completely
overturned the EWG's findings by concluding that the methodology did not permit
the creation of an AC4, and consequently,
the process was invalid. There was a
paucity of evidence as to what Ms Novakovic was asked to do by RailCorp, or if
she simply embarked
on a frolic of her own without Mr Perrim's instructions.
She was not called to give evidence in the proceedings and make herself
available for cross-examination. We simply don't know what she was asked to do.
In addition to the unexplained curious nature of
her involvement in the present
dispute, and the heavy reliance RailCorp placed on her October 2006 report, her
failure to be called
to give evidence in the proceedings is a telling factor in
my placing little reliance on her conclusions. More significantly, the
understanding of the parties as to what the Dwyer Agreement could do, must weigh
more heavily in favour of the conclusion I have
reached.
109 Ms Lipski's involvement in the dispute is, to my mind, even more
strange. I ask this rhetorical question: Why would RailCorp
agree, and expect
the Union to agree, to a second review of the issue if the methodology didn't
allow for the creation of an AC4?
The result would seemingly be a fait
accompli. I am satisfied that the Union was led to believe that the
Lipski review would provide 'a way forward'; that is, a means to break
the
deadlock. If that meant amending the 'Jade' methodology or utilising some other
mechanism, then there was no reason why this
couldn't be done. Again, it is not
entirely clear what direct instructions were given to Ms Lipski by Management.
What is clear,
however, is that the Union had a very different impression of
what she was being asked to do.
110 That said, on another view, the 'Jade' methodology, notwithstanding
the strictures placed on it by Ms Novakovic and Ms Lipski,
produced an entirely
unexceptional result as envisaged by the Dwyer Agreement; seemingly consistent
with almost everyone's expectations.
That is, a result was obtained which, by
comparison to an anchor position, was higher than an AC3.
111 The evidence of Mr Morgan-Jones concerning the establishment of the
EWG, its deliberations and conclusions was not challenged.
The evidence was
that the review was properly initiated. I reject Mr Lloyd's submission
that the review should never have been initiated in the first place. The EWG
was duly established on a joint basis and
proceeded to undertake its agreed data
collection and assessment process. Save for the slight glitch which didn't
affect the final
result, the EWG had, in my view, properly undertaken their task
and made a recommendation which, on its merits, was unassailable.
The only
problem was that the outcome couldn't fit into the pre-existing classification
structure. In my opinion, this should never
have been a reason for rejecting
the true and effective outcome of the EWG process - a result higher than the
benchmark or anchor
comparator.
112 As I said earlier, the response from senior management was, to say
the least, extraordinary. Indeed, it might be said that management
was
sympathetic to the Union's position. Mr Kessey gave evidence that Ms Potapof
had said that RailCorp appreciated that there was
scope for a grade above AC3,
but the methodology didn't allow it. This evidence was not disputed. Mr Kessey
deposed that Mr Wright
had told him that he had agreed to an AC4. Although I
understand he denied doing so, Mr Wright was not called to give evidence.
Then
there was the amazing evidence about what Mr Caines had overheard Mr Wright
saying on the phone. Mr Caines was so confident
of what he heard that he rushed
to be the first to bring the good news to the affected employees, only to be
embarrassingly forced
to withdraw his news a few hours later.
113 It was never entirely clear upon what basis Mr Caines had been moved
to phone Strathfield; whether he had been told the regrading
had, or would be
approved, or whether he simply misinterpreted what he had heard. While I impute
no improper motives to Mr Caines,
I have a profound difficulty with accepting
that a matter which had been the subject of years of dispute and was now
apparently resolved,
would be conveyed to the Strathfield Signal Box if senior
management didn't truly believe the matter was finally resolved.
114 For it was that Mr Caines was not simply a line manager or
supervisor, but the senior manager responsible for the division and
who had the
ultimate decision making responsibility for the EWG's recommendations. On one
view, his action in so informing the employees
was, in reality, the decision
approving the regrading. When it was rescinded, understandably it caused major
grief for all concerned.
The Work Value Principle
115 Mr Lloyd submitted that the Union's claim (as so described by
him) failed on two bases; either upon the application of the 'Jade' methodology
(which I have just dealt with) or on the application of general work value
principles. It is necessary therefore to quote the relevant
principle from the
State Wage Case 2007:
6. Work Value Changes
(a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classification to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position.
These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle.
(b) In applying the Work Value Changes principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed.
(c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.
(d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case August 1989 (1989) 30 IR 107.
(e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle.
(f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.
(g) The expression ‘the conditions under which the work is performed’ relates to the environment in which the work is done.
(h) The Commission will guard against contrived classifications and over-classification of jobs.
(i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle.
(j) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award.
116 Having carefully
considered the second basis upon which Mr Lloyd said the Union's claim
would fail, I must say that I cannot agree with his analysis. This case is not
about the Work Value Principle
of the State Wage Case 2007. This must be
so for the following reasons: Firstly, the Dwyer Agreement assumes no role for
this Commission - or the AIRC for
that matter - in determining and setting new
classification rates for Signallers and ACs.
117 Secondly, notwithstanding that the Work Value Principle has existed
largely unchanged for many years in the industrial lexicon
at both the State and
Federal level, the Dwyer Agreement contemplates a process of the parties
reaching agreement through a joint
consultative process - the EWG - which then
makes recommendations to senior management.
118 Thirdly, while it might be said that the 'Jade' methodology is akin
to a work value exercise, it neither requires involvement
by the Commission nor
uses the language found in the Work Value Principle to initiate a process of
assessing work changes which may
result in the regrading of various signal
boxes.
119 Fourthly, there is no suggestion that a request for a review of a
particular position below an AC3 would require a strict work
value test.
Rather, the contemplation of the Dwyer Agreement is to initiate the EWG process
to establish whether the upgrade is
justified.
120 Fifthly, it would seem that Larkin C's decision in 2000 was
not based on the Work Value Principle, but like here, was designed to settle an
industrial dispute through
a recommendation of the Commission as to a way
forward.
121 That being said, I accept unreservedly, that a recommendation of the
EWG is purely that - a recommendation. The respondent placed
much emphasis on
the fact that the decision to increase rates of pay or create a new
classification requires a sign off at various
levels of management. However, it
would be a courageous management indeed which refused to accept a recommendation
of a joint Management
- Union group, particularly if that decision was
unanimous. After all, what would be the point of it all, if Management rejected
an EWG's recommendation without very good and cogent reasons? The Dwyer
Agreement would very quickly unravel. In my opinion, the
spirit and intent of
the Dwyer Agreement must be protected to ensure the ongoing integrity of a very
important agreement to the ongoing
and cooperative interests of the parties.
122 For the aforementioned reasons, I would answer the question posed by
the Union in the affirmative. The Union conceded that the
practical effect of
answering the question in its favour would require the parties themselves
addressing how it was to be implemented.
I strongly recommend that the parties
adopt a practical approach to this task and I grant liberty to apply in the
event of any further
difficulties.
Peter J Sams, AM
Deputy President
Annexure 1
12 November 2004
Phil Kessey
RTBU
Level 4, 321 Pitt St
SYDNEY NSW 2000
Dear Phil
Re: Signaller Restructure
I am writing to confirm agreements reached with RTBU Signallers
representatives in respect to the signaller restructure.
It is RailCorp's understanding that the issues agreed upon are:
1. Evaluation System
Acceptance of the "Jade" evaluation system for Area Controllers only.
The current evaluation system to continue for Signallers.
2. Signallers Acting in Higher Grade
For Signallers to act in a higher grade the parties agree that the
following process is to be followed:
GradeQualifications
Signaller Grade 1 & 2As per existing (Signaller Safeworking, Cert III transport & Distribution etc).
Signaller Grade 3 & 4Minimum 6 months practical experience as a Signaller. (Signaller Safeworking, Cert III in Transport and Distribution etc)
Area Controller Grade 1 & 2Minimum 12 months practical experience as a Signaller.
Area Controller Grade 3 & 4Minimum 6 months practical experience as an Area Controller.
Prior to any signaller acting in higher grades
the Senior Rostering Officer will confer/meet with the Manager/Supervisor and
the Signaller
Trainer for the intended location to review the employee
qualifications and competencies, past work history, absenteeism and
performance.
Once considered suitable the employee will be offered the
opportunity to act in the higher grade at the specified signalling location
and
undergo the necessary learning time/LTA process for the location at the end of
which he/she will be assessed by the Signaller
Trainer.
Employees who are
found to be competent will take up at the required location, those found not yet
competent will be given additional
teaching and reviewed in line with current
procedure. In the event of the employee not meeting the required level of
competence
they will return to their substantiative grade with a view to up
skilling them further for future promotional opportunities.
3. Agree to implement all the findings of the completed workload studies of
the metropolitan signal control project on the condition
there is full
consultation with and input by signaller representatives. Agree to implement
the findings of further workload studies
to be undertaken in connection with the
above mentioned project on the condition there is full consultation with and
input by signaller
representatives to reach achievable outcomes. The RTBU
Signallers section reserves the right to make further claims on behalf of
Signaller grades 1 - 4 should they be affected by the workload studies in the
future.
4. Agree to enter into negotiations for amalgamation of train control and
Area Controller functions. Agree to implement the finding
of studies conducted
into the aforementioned amalgamation subject to there being full consultation
with and input by signallers representatives
and to reach achievable outcomes.
The RTBU Signallers section reserves the right to make further claims on behalf
of Signaller grades
1 - 4 should they be affected by amalgamation of train
control and signallers in the future.
5. The parties agree that in the event of future signalbox/panel
re-evaluations for Area Controllers and where these re-evaluations
indicate
under the Jade system that a classification above the existing Area Controller
grade 3 level is warranted, then such re-evaluation
will be made with a new
classification level and remuneration equivalent to the wage differential
between Area controller grades.
6. Introduce flexible working whereby Signallers and Area Controllers who are
appointed to specific boxes will be prepared to work
at other signalling
locations on a voluntary basis if and when required.
7. Increase the differential in rates of pay between area Controllers 1,2
& 3 to 7%.
Your formal advice that the above items 1 - 7 are the
agreements reached between the parties would be appreciated.
Yours
sincerely,
Ian Dwyer
Senior Industrial Relations Officer
Annexure 2
Job Evaluation of Area Controller
Positions
Job Factor Evaluation System
Background
The system was designed through a series a joint
union/management workshops to provide for a method of differentiating the
difficulty
levels of individual area controller positions and to provide for a
grading structure.
A number of factors were developed to use in comparing
difficulty levels between panels. These factors were amended and refined
through
a series of trials using a range of different panels for comparison.
Forms were developed for use in gathering the required information
from the
panel operator.
In late 2002, information was gathered on all panels
(including signaller positions). This information was transferred onto factor
sheets with each panel being presented under a randomly allocated number so that
the workshop participants could not readily identify
it.
After all
panels were rated on all factors a rating profile was developed for each panel
and they were ranked from most difficult
to least difficult. Decisions were
then made as to where the most logical breaks between groupings or grades should
fall. The result
is (3 or 4?) grades of Area
Controller.
Factors
Each factor is described by
statistical components that are taken into consideration when rating the
difficulty level of panels. Every
factor is also described by a number of
evaluative statements that were developed by the working group to guide the
judgements made
as to the difficulty level of each factor.
FactorStatistical ComponentsEvaluative Comments
Traffic Density· Number of passenger, country passenger and freight trains
· Maximum length of freight train
· Area controlled and area monitored
· Number of terminating, dividing, amalgamating and starting trains
· Number of set changes
· Number of shunting movements
· Number and length of interlockings
· Number of junctions
· Number of infrastructure movements and clearance locations
· Number of transpositions
· Support staff available and number of shifts· The greater the level of input and planning required by the operator the more difficult the position
· The greater the mix of trains and the more complex the issues of
priority the harder the position
Interlockings· Type of Frame - mechanical, electrical or
computerised
· Number and size of interlockings
· Number of
transpositions
· Number of dual control signals
· Number of
running lines, number of platforms
· Number and type of level
crossings
· Number of junctions, number of sidings
· Number of
controlled signals, sets of controlled points
· Number of adjoining
signal boxes and distance
· Number of manual yard points operated by
Signaller
· Number of ground frames - directly operated and in
controlled area
· Number of releases, switches/levers
· Number
of controlled balloon loops
· Percentage of overhead wiring and area
controlled· The greater the number of interventions the harder the
position
· The greater the complexity of decision making the harder
the position
· The greater the potential effect on traffic flow the
harder the position
· The higher the level of concentration required
the harder the position
Engineering Work· Number and type of regular operator
· Number
and type of regular maintainer
· Number of passenger and freight
trains
· Train control reporting points
· Number of train
controllers reported to
· Regular programmed maintenance
· Non
regular programmed maintenance
· Area Controlled
· Adjoining
signal boxes and distance
· Number of shunting yards
· Number of
maintenance centres· The level of complexity of the work makes the position
harder
· The greater the impact of train running the harder the
position
Customer Service· Number and type of regular operator
· Number
and type of regular maintainer
· Number of passenger & freight
trains
· Train control reporting points
· Number of train
controllers reported to
· Regular programmed maintenance
· Non
regular programmed maintenance
· Area Controlled
· Adjoining
signal boxes and distance
· Number of shunting yards
· Number of
maintenance centres· The higher the frequency and type of interaction
between operator and customer the harder
the position
· The greater
the potential impact on the customer of the operator's decisions, the higher the
position's accountability
Technology· Frame Type - mechanical, electrical or
computerised
· Equipment used regularly - train describer, IASS, SPI,
security monitors, CCTV level crossings, RIC PC, etc
· Number and type
of radio system eg metronet, WB radio etc
· Number of critical alarms -
those that require the operator to stop a train
· Number of non critical
alarms· The greater the number and type of systems and technology used the
harder the position
· The greater the number of required responses
the harder the position
· The higher the level of complexity of the
response required the harder the position
Safeworking Systems· Number of safeworking systems
· Type of
safeworking systems
· Number of safeworking forms and authorities -
written
· Number of safeworking forms and authorities -
verbal
· Number and type of level crossings - controlled, monitored and
record testing· The greater the number of systems and associated
forms the
harder the position
Experience and Knowledge· Number of passenger trains
· Number of freight trains
· Regular programmed maintenance
· Non regular programmed maintenance
· Number of running lines
· Number and type of level crossings
· Number of safeworking systems
· Adjoining signal boxes
· Overhead wiring
· Local and unique features· The greater the mix of elements the more knowledge and skills are required
Ratings
A rating scale is used to assist with the
process of comparison. It is simply a tool to allow those participating in the
job evaluation
process to have a way of describing the difference. No rating
means anything on its own it is only in comparison with others that
it becomes
useful. Each point an the rating scale is described - for example a 6 is
described as "some aspects becoming more complex/difficult
than average but most
at an average level."
In addition to the rating scale the following
statements assist the evaluation group in coming to a decision about the
relative difference
between two panels:
· If you cannot see any
difference after careful thought or the differences cancel themselves out then
there is no difference
between the positions and the positions are equal on the
Factor
· If after careful consideration you can just perceive a
difference then there is one point of difference between the positions
on the
Factor.
· If after careful thought you can see a clear difference
between the positions then there is a two point difference between
the positions
on the Factor
· If you can see a clear and evident difference even
without serious thought then there is a major difference between the positions
of three points or more
Review Process
Where a decision is
made that the work value of a position appears to have changed the panel is put
up for review.
The panel is reviewed against a number of typical panels
selected from the same current grade as the position in question and a number
of
typical panels from the grade above the position and a typical panel from the
grade below the position. Typical positions selected
are those where it is
believed that there has been no significant change in work value since the last
evaluation and that do not
have unusual features. Panels that would not be
selected as typical panels include Olympic Park, Lithgow Coal, (any others?).
In
general It is anticipated that two positions are selected from the grade
above the position, two from the current level and one from
the level
below.
If reviewing a position from the highest grade then a number of
positions 2 or 3 should be taken from that grade and two from the
next grade
below the position under review.
If reviewing a position from the lowest
grade then 2 positions should be taken from the same current grade as the
position and 2 or
3 from the grade above.
The occupant of the position
in question completes an Information Gathering Form. In relation to the other
positions selected for
comparison either an existing Information Gathering Form
is updated for use (using the same comparison week as that being completed
for
the position under review) or a new information Gathering Form is completed.
It is important for the validity of the comparison that the information
collected is for the same time period.
An Evaluation Review Committee
is set up with union and management representatives to consider the request for
review. It is important
that members of the Review Committee are familiar with
the process and should receive training in the Job Factor Evaluation System
prior to participating in a Review Committee. Representatives on the committee
should come from each grade involved in the review
process and from
country/metropolitan locations. It is anticipated that a Review Committee could
be made up of 7 or 8 representatives
or less as long as all aspects detailed
above are covered. The occupant of the position under review is not a member of
the Review
Committee nor should there be any close colleagues.
Statistical
information from each position's Information Gathering Form is transferred to a
Factor Sheet. For the typical positions
a randomly allocated number is given to
each position and the ratings applying to each Factor are transferred. See
Attachment 1
for a sample Factor Sheet.
The position under review is
rated on each Factor against the range of benchmark positions, provided in the
typical positions.
Once each Factor has been rated a profile is drawn up
and compared against the profiles for all Area Controller positions and a
decision
made as to which grade the position best fits.
A recommendation
is made by the Review Committee to the
Manager_______________.
Reviewing the Grade
Structure
The grade structure put in place represents the current
situation of the panels and their associated comparative work values. No
structure
stays valid forever and from time to time review of the grading
structure will take place to enable it to reflect the current
reality.
Where through successive reviews it becomes apparent that there
are problems with a particular grade in that it can no longer be argued
that all
the positions within that grade are similar enough to be grouped together then
consideration is given to how the structure
should be amended. This may result
in one grade being split in two or two grades that no longer show a clear
difference may be combined.
This structure, like all others, must reflect
the current reality of the work situation to be useful and valid in terms of
providing
the basis for appropriate remuneration for staff employed within its
structure.
Attachment 1
FACTOR - TRAFFIC DENSITY
The greater the level
of input and planning required by the operator the more difficult the
position
The greater the mix of trains and the more complex the issues of
priority the harder the position
Statistical Component123456Review Position
Current Ratings
No Passenger Trains
No Country Pass Trn
No Freight Trns (Peak)
Max Freight Length
Area Controlled
Area Monitored
No Terminating Trns
No Dividing Trains
Amalgamating Trains
No Starting Trains
No Set Changes
Shunting Movements
No Junctions
No Interlockings
Infrastructure Mvments (Clearance Location)
No Transpositions
Support Staff
Attachment 2 - Sample to show grades when decided.
GradeAC 3AC 1AC 1
Panel Number
Ratings3451531149063697147367420315683
101
921111
8133111111
712433231112221
621311312132133
51311112221322
41111114232
31111
21
1
COMPARING TWO PANELS ON ANY PARTICULAR FACTOR
You can see any difference, after careful thought or the differences
cancel themselves out.
Ø Then there is no difference and the
positions are equal on the factor
After careful consideration you can
just perceive a difference.
Ø Then there is one point of
difference between the positions on the factor.
After careful thought you can see a clear difference
Ø Then
there is a two point difference between the positions on the factor
You
can see a clear and evident difference even without serious
thought.
Ø Then there is a major difference between the positions
of three or more points.
RATINGS
1. Does not apply or limited application - No particular effect on the
difficulty level of the position
2. A comparatively low difficulty level - Entry level
difficulty/complexity.
3. Some aspects becoming difficult - most are
not.
4. Some difficulty/complexity appearing in most
aspect.
5. Average difficulty/complexity level across all
aspects.
6. Some aspects becoming more difficult/complex than average but most are
at an average level.
7. Many aspects difficult and complex - Level of problem solving
increasing.
8. Most aspects complex/difficult - High level of concentration and problem
solving required.
9. The most difficult/complex - requires the highest level of concentration, thinking challenges are greatest.
Annexure 3
Section 1 - Review Under Consideration
It appears that a
general review of a number of positions was requested and undertaken on 2O/2/06.
It is unclear an what basis the
reviews were requested. It is unclear what the
purpose or the review was given that all the positions involved already hold the
AC
3 grade either as lead positions (those that give the grade to the box) or
consequential positions (those that take their grade from
the lead
positions).
The positions involved were:
· Lidcombe -lead AC
3
· Sydney Yard - takes grade from Sydney East Up
· Sydney East
Up - AC 3
· Illawarra Junction -takes grade from Sydney East Up
All 4 positions are currently graded as lead positions or consequential
positions in the AC 3 grade. Undertaking a review of these
positions is an
invalid process. There is no point in reviewing the grade or regrading these
positions as there is no grade for them
to move to and there is no point in
reshuffling them within the same grade. Had the aim of the review been to
downgrade a position
then it should have been compared with lead positions in
the AC 2 grade.
The use of the Homebush and Wolli Creek panels as anchors
is also invalid as both are already AC 3. Additionally, Homebush should
never
be used in any process as it is a consequential position. Only lead positions in
a box should ever be used for comparison purposes
as they are the ones that
carry the grade. Again there is no purpose in regrading any consequential
position in the AC 3 grade.
In all job evaluation systems, each grade has a
determined band that caters for a range of jobs of varying sizes. The actual
placement
of a position within a band is irrelevant.
In my view that
there was no point in undertaking the above review process.
Section 2
- Other Comments an the Review Under Consideration
Some comments are
made below regarding other aspects of the manner in which the above review
process was undertaken that would have
application in a situation where a valid
evaluation was being conducted.
2.1 Request for Review
No
documentation was available to me to justify the above review process taking
place. This is an important part of a valid process
ensuring that a review is
only conducted where there appears to be evidence of a significant change in
circumstances. This is especially
so considering the time and resources involved
in the process.
It is my view that every request should be justified and
supported by the position's line manager and then considered independently
to
ensure that a review process is justified. At any stage management should also
be able to instigate a review particularly related
to downgrading where it is
unlikely that such a review would be requested by a position
holder.
2.2 Positions Eligible for Review and Selection as Anchor
Positions
Only lead positions in a box or a single box can seek a
review. The following panels are eligible for review and are also the only
ones
to be used as anchor positions.
· Lidcombe - AC 3 (Strathfieid
Box)
· Wolli Creek - AC 3 (Sydenham Box)
· Sydney East Up - AC
3 (Sydney Box)
· Wollongong -AC 2 -(Wollongong Box)
· Hornsby
Main - AC 2 - (Hornsby Box)
· Blacktown - AC 2 - (Blacktown box)
· Granville - AC 2 Granville Box)
· Broadmeadow Suburban - AC
l
· Enfield -AC 1
· Campbelltown-AC 1
· Gosford - AC
1
· Lithgow Coalstage-AC 1
In the current grading structure AC 3
panels can only legitimately be reviewed as to whether they should stay as AC 3
panels or be
downgraded. AC 2 panels can be reviewed for upgrades and downgrades
and AC 1 panels can only be reviewed for upgrade.
2.3 Number of
Positions being Reviewed
At any review process only one position is
reviewed at any one time against the anchor position's. Over a period of time a
number
of positions can be reviewed but they are reviewed individually against
anchor positions and not against each other.
2.4 Accuracy of Data
Collected
All data collected should be Independently audited to
ensure its accuracy prior to use in a review process.
2.5 Use of
Anchor Positions
Positions selected and used as Anchor Positions are
not re-rated during a review process. They keep the same ratings as during the
initial exercise when the grades were set but are updated in terms of the factor
information that applies to those panels. In this
way the anchor position still
provides a point of guidance for a particular rating and supports the continued
comparability of the
process. Anchor positions should be selected for their
stability and should be considered typical of their grade.
2.6
Ensuring Equality in Comparison
It is vital that 'like with like' is
compared during a review process and that only a panel/position that represents
the work of one
person is used.
During the process of creating the
grading structure different ways of grading positions was used to examine the
effect this would
have an the relativity of rankings and because there was some
dispute as to the best way of dealing with this issue. Different ways
of
presenting information for a particular panel should not be used for ongoing
reviews as it is invalid in terms of reviewing the
grade of a position. All
information should be presented as it applies to an individual and is measured
according to that able to
be performed by one person at any one time.
2.7 Independence of the Process
As far as possible members
of the evaluation panel should not know which position they are evaluating or
which anchor positions are
being used. Positions can be presented differently or
in different order on each factor sheet to further the independence of the
process. During the creation of the grading structure most people found it
difficult to concentrate on the numbers rather than their
preconceived ideas
concerning positions. The only way to ensure some independent analysis of
positions was to present them anonymously.
Additionally the group should
be composed, as far as possible, so that it does not contain current or recent
past holders of the position
under review.
2.8 Profile vs "A Simple
Score"
The profile of the position should be used for all
evaluations. The job evaluation process, as designed, relies an the
differentials
between the profiles of positions. The profile is important not
the score. The suggested use of the "simple score formula" is invalid
and
presents an incorrect view of the value of a position. The process does not rely
on "standard mathematical and statistical principles",
it relies on analysis of
the differentials between profiles of positions.
Section 3 - Creating
a New Grading Structure
The AC Grade Review process under
consideration in this report is also invalid if the purpose of the grading
review of the particular
positions selected was to create a new grading
structure. Generally the creation of a grading structure is done once and is a
set
structure for many years until some major event occurs that requires it to
be changed, for example broadbanding positions, the introduction
of a totally
new work classification or substantial validity problems caused by "grade
drift".
The creation of a grading structure is a very complex and
involved process. Considering that the grading structure for Signallers
and Area
Controllers was only finalised in March 2005, it seems very unlikely that it
would require change in early 2000. In normal
circumstances a structure is
maintained for quite some time and positions are evaluated against that
structure.
To change a grading structure should in normal circumstances
concern a situation where there are significant, clearly defined inequalities
in
the existing structure (evident over some time) and there is a need to reexamine
the boundaries and differentials between all
the grades to ensure that they are
still relevant.
A grading structure is not create or changed to cater for
one position. In particular this evaluation system that relies on comparison
of
differentials between positions end anchor positions needs to have more than one
position in each grade.
3.1 Creating the Current Grading
Structure
The creation of the current grading structure was the
result of a lengthy process in 2000/03 that involved examining every position
through a number of factors to provide a quantitative measure of the difference
between jobs. All positions were ordered from most
difficult to least difficult.
Then in 2003/04 the process of determining grade boundaries occurred. Only lead
positions were included
in determining the grade boundaries as consequential
positions in a box were to receive the grade of the highest graded panel,
provided
that they participate in job rotation through that panel.
The
grade boundaries create groups of positions that are said to be more similar
than dissimilar. This was done by looking for natural
breaks between groups of
positions. The idea is that positions grouped into one grade resemble each other
more than they resemble
jobs placed in adjacent grades. The expectation is that
the width of each group or grade should represent a significant step in demand.
The initial recommendation was that there would be three grades for all
Area Controllers and Signallers. This was not agreed to. In
the end the
agreement was that there would be three grades of Area Controller and three
grades of Signaller and that only the Area
Controllers would be evaluated by the
Job Factor Evaluation System. This decision has in effect made the differences
between the
grades less than they would have been under the original
recommendation. The decision has implications far any review of the grading
structure.
3.2 Number of Grades
There are problems with
having too many narrow bands in a grading structure in that the differentials
between the grades are not so
clear. This can results in what is known as "grade
drift", that is the unjustified upgrading of positions in response to staff or
line manager pressure.
The difference between a grade is taken from the
mid point of one grade to the mid point of the other. The width between the
grades
needs to be sufficient to avoid excessive argument about marginal cases.
If the difference between the grades is too small, many
jobs become borderline
and frequent reassessments are needed to ensure that they are still in the
correct grade. Job evaluation is
not a sufficiently discriminating tool to
identify very fine differences in marginal cases. The tendency to "grade drift"
erodes
a grade structure's validity.
On the other hand if differentials
between grades are too wide it becomes difficult to justify a move to a higher
grade for most jobs,
even though some upward movement may be
appropriate.
It is important to get the right balance in a grading
structure and any proposed changes to it need to be properly justified and
considered
as to the total effect and not in isolation.
3.3 Changing a
Grading Structure
In order to change the grading Structure a major
review would need to take place based on expressed concerns of a situation where
significant, clearly defined inequalities in the existing structure has be shown
to all concerned. This would entail re-examining
all positions in the same
manner as before to determine new relativities and setting new boundaries and
differentials between all
positions. New grades would need to be considered to
ensure that sufficiently different grades can again be recreated. In my view
there are currently more than enough grades in the combined AC Signaller
structure, which means that if the decision is made (based
on sound evidence)
that the boundaries should be different, then all grades should be reexamined.
However there does not appear to be any need for this to occur,
particularly so soon after the grading structure was implemented.
The
current structure does not in my opinion provide sufficient lead positions to
allow for a 4 banded grade structure. The creation
of additional grades as
opposed to the recommended three grades across the entire Area Controller /
Signaller classification has
minimised the choice of positions to be used in
review of grades. Any further diminishing of grades through the creation of a
fourth
grade would greatly affect the viability of the structure, particular
since it greatly reduces the number of anchor positions that
can be use for
comparison. Any future process undertaken to review the grade structure should
be looking at maintaining 3 grades,
even if the boundaries between the grades
are different.
3.4 Salary / Wage Decisions
Job evaluation
is the process of determining the relative value of jabs in the organisation,
which in turn helps to determine the
level of compensation paid. It does not of
itself determine the level of pay for a job, it simply places a job in a grade.
The decision
an monetary reward for a particular grade is a separate exercise
and can be negotiated from time to time according to organisational
and
industrial relations processes.
3.4 (sic) Signaller Restructure
Document 17 August 2004
I am informed that Point 5 of the above
document states:
"The parties agree that in the event of future
signalbox/panel re-evaluations for Area Controllers and where the re-evaluation
indicates
that under the Jade System that the classification above the existing
Area Controller Grade 3 level is warranted, then such re-evaluation
will be made
with a new classification and remuneration equivalent to the wage differential
between Area Controller Grades".
I comment in relation to the above
that:
· The "Jade System" or more correctly the "Job Factor
Evaluation System" requires that the creation of a new grading system is
based
on significant, clearly defined inequalities in the existing structure shown to
be stable over time. The system requires re-examining
all positions in the same
manner as that originally used to determine new relativities and setting new
boundaries and differentials
between all positions.
· New grading
bands would need to be considered to ensure that sufficiently different grades
could again be recreated to provide
sufficient lead and anchor positions to
enable the Job Factor Evaluation System to operate
effectively.
· The Job Factor Evaluation System requires the system
to allow for reasonable boundaries and capacity to review and evaluate
over a
longer term. Increasing the number of grades would seriously undermine the
validity of the current system.
· Should there be evidence of
inequity in the current grading structure revisiting the boundaries should be
done across the whole
classification with a view to maintaining or reducing the
current number of grades.
· The current grading structure has not
been in place for long enough, nor has there been a history of problems with the
current
structure to suggest any need for a review of the grading structure.
The argument over the number of grades has been had and the
grading structure
has been agreed.
Section 4 - Guidelines on Undertaking a Legitimate
Grade Review
· A position within the Area Controller
classification is reviewed against the grades available. It is not reviewed on
its own
in order to create another grade.
· Only lead positions and
single panel boxes can request a review.
· A requested review should be based on sound evidence of a change
in status/work value and be supported by the position's line
manager.
· Only lead positions and single panel boxes are used as
anchor positions.
· Updated information is collected for all
positions involved in the process that is the position being reviewed and anchor
position.
· See Table below for position selection in different
circumstances
Position Selection for Valid Processes
Purpose of ReviewPositions Involved
Reviewing an AC 3 lead panel for downgrading· Position under review
· A typical, stable lead AC 3 position
· A typical, stable lead
AC 2 position
Reviewing an AC 2 lead panel for upgrading· Position under
review
· A typical, stable lead AC 3 position
· A typical,
stable lead AC 2 position
Reviewing an AC 2 lead panel for downgrading· Position under
review
· A typical, stable lead AC 2 position
· A typical,
stable lead AC 1 position
Reviewing an AC 1 lead panel for upgrading· Position under review
· A typical, stable lead AC 1 position
· A typical, stable lead AC 2 position
· Each
panel under review is compared with the typical, stable anchor panels shown
using the original rating given for each factor
with the updated factor
information.
· Each process for each panel review is a separate
process of position under review against the anchor positions
selected.
· An Evaluation Review Committee is set up with union and
management representatives to consider the request for
review.
· Representatives on the committee should come from each
grade involved in the review process.
· The current or any recent
past occupant of the position under review is not a member of the Review
Committee.
· Statistical information from each position's
information Gathering Form is transferred to Factor Sheets.
· For
the anchor positions a randomly allocated identifier is given to each position
and they may also be presented in a different
order an different Factor
Sheets.
· The original ratings applying to each Factor of the anchor
positions are transferred to the Factor Sheets and are available
to the
Evaluation Review Committee.
· The position under review is rated on
each Factor using the original ratings for the anchor positions as a
guide.
· The process is about deciding in each instance if the
position under review is more like one anchor position or the
other.
· Once each Factor has been rated a profile is drawn up of
the position under review.
· The profile for the position under
review is then compared against the original profiles for the anchor
positions.
· A decision is made as to which anchor position the
position under review most closely resembles and that is the recommended
grade
of the position.
· A recommendation is made by the Review Committee
to the appropriate Manager.
4.1 Exchanging a Lead
Position
There may be circumstances in which the lead position in a
Signalbox Complex becomes unstable or where it is thought that it is no
longer
the lead position. In this circumstance management can decide to compare the
lead position with its contender through a simple
comparison process on each
factor where a judgement is made as to which position is higher in
complexity/difficulty an each factor.
Where the lead position turns out to be
lesser then the contending position takes over the status of lead position. The
new position
still maintains the grade at the box but it is the one against
which reviews of evaluations are undertaken.
The process is complete
using an Evaluation Review Committee.
Section 5 -
Recommendations
1) It is recommended that the system be referred to
by its proper name - that is the "Job Factor Evaluation System"-and not be the
"Jade" System.
2) It is recommended that same guidelines be established
to guide the situations in which a review should be conducted. The holder
of the
position and their direct manager would be expected to put up a reasonable
argument for the review based an substantial change
in circumstances. A system
should also be in place to identity and review positions that should be
downgraded following substantial
changes in circumstances.
3) It is
recommended that the current grading structure having been in place for a little
more than a year be maintained until there
is general agreement on all sides
that there are significant, clearly defined inequalities in the existing
structure (evident over
some time).
4) It is recommended that any change
to the grading structure not increase the number of grades as this will lead to
difficulties
with managing the process. Further it is essential that within each
grade, there be maintained sufficient lead positions to allow
for a review
position and a selection of typical and stable dead panels for
comparison.
5) It is recommended that the Guidelines outlined in Section
4 be adopted to be followed in further legitimate reviews of
positions.
Annexure 4
Recommendations of Lipski Review
1. Requesting a grade
review of a panel
In order to request a review of a panel grade in
the first place, it needs to be demonstrated that there has been a "significant
change"
in relation to that panel. While it is not clear just what a
"significant change" would be, on might consider that large increases
to many of
the factors measured in the "Jade" methodology might be a significant change.
Alternatively, by looking at the "smallest/least
complex" AC3 panel and
comparing it with the "largest/most complex" AC3 panel, might give a reference
point - the "difference" between
the largest and smallest panels, by definition,
could not be "significant", otherwise, the panels in question would be in
different grades. On the information provided, both in the request
for a
re-evaluation and from the interview/discussions at Strathfield with the ACs,
the changes which have occurred would not be
viewed as "significant" changes.
The request for the Lidcombe panel to be re-graded in the first place was not
valid.
2. Re-evaluating an anchor position
Although the
relevant changes to the panel/work done were noted in the original request, it
does not appear that those changes could
be considered "significant".
Importantly, according to Ms Jade Novakovic, unless there has been a major
change, it is not appropriate
to re-evaluate a panel which was used as an
anchor/reference panel, in the original evaluation process. Lidcombe was chosen
as an
anchor panel for AC3, on the basis that it was representative of the
typical work done in an AC3 panel. On this basis, it was not valid to
re-evaluate an anchor position, such as the Lidcombe panel. Reviewing an
anchor position has implications on all other panels at that grade, possibly on
panels graded at other levels and possibly
on the grade structure
itself.
3. The "Dwyer agreement"
The essence of a part of
the "Dwyer agreement" is that, if a panel is seen to be significantly different
from other AC3 panels, warranting
consideration of creation of an AC4 grade,
then creation of such grade must be done by reference to the "Jade" methodology.
However,
there is no facility within the "Jade" methodology, nor is it currently
designed, to define an AC4 panel. This infers that an AC4
panel can't be
created, under the current process/agreement. The conclusion from this is
that an AC4 panel can't be defined according to the current
processes.
4. The "Jade" review
Ms Novakovic's views
on the request to re-evaluate the Lidcombe panel were sought. Without repeating
her comments, she was not in
support of the request for a grade review, the
process of review, the application of the methodology she developed to review an
existing
anchor panel or the need to review an anchor position, just a couple of
years after the methodology was developed and
implemented.
LAST UPDATED:
8 February 2008
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