Industrial Relations Commission New South Wales Medium Neutral Citation: Rail, Tram and Bus Union of New South Wales v The Transport Secretary on behalf of State Transit Authority [2020] NSWIRComm 1079 Hearing dates: 11 September 2019 and 13 December 2019 Date of orders: 23 November 2020 Decision date: 23 November 2020 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant Decision: Recommendations made Catchwords: INDUSTRIAL DISPUTE – Award interpretation – Conditions applying when Acting Out of Classification - Excess Travelling Time Legislation Cited: Industrial Relations Act 1996 (NSW), ss 10, 12, 130, 136, 175 Cases Cited: Kucks v CSR Limited (1996) 66 IR 182 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 Rail, Tram and Bus Union of New South Wales & ors v Secretary for Transport [2017] NSWIRComm 1032 Category: Principal judgment Parties: Rail, Tram and Bus Union of New South Wales (notifier) The Transport Secretary on behalf of State Transit Authority (respondent) Representation: Counsel: Mr M Baroni (respondent) Solicitors: Hall Payne Lawyers (notifier) File Number(s): 2019/138922 DeCision 1. On 3 May 2019, the Rail, Tram and Bus Union of New South Wales ("the RTBU") notified, pursuant to s 130 of the Industrial Relations Act 1996 ("the Act"), a dispute against the Transport Secretary on behalf of the State Transit Authority ("the STA") about payment of excess travelling time to Bus Operators acting up in salaried positions ("the Dispute"). 2. The Dispute Notification - Form 4 states that the question, dispute or difficulty is: The non-payment of excess travel time to bus operators acting up in salaried positions, where work is undertaken at a location other than the home depot they are contractually attached to. 1. The Dispute Notification refers to the State Transit Authority Bus Operations Enterprise (State) Award 2018 ("Operations Award") and the State Transit Authority Senior and Salaried Officers' Enterprise (State) Award 2018 ("Salaried Award") as "the award[s] which appl[y] to the employees". Matters for determination 1. The RTBU seeks determinations pursuant to s 175 of the Act to the following effect: 1. the STA cannot unilaterally change an employee's "home depot" under cl 22 of the Operations Award; 2. the "home depot" of an employee is a term of the employment contract; 3. the "Recommendation for Higher Duties - Form 124"·is part of a payroll process and does not change the employee's "home depot"; 4. by failing to pay excess travel time to employees on higher duties since about the end of March 2019, the STA has breached its obligations under the Operations Award. 1. The RTBU seeks the following recommendations pursuant to 136(1)(a) of the Act. 1. the STA revert to the excess travel time process it had prior to 18 March 2019 or, alternatively, a process that would have an equivalent outcome; 2. the STA back pay employees for excess travel time where it has failed to do so since its decision in March 2019; and 3. moving forward, the STA pay employees excess travel time when they perform higher duties at a location which is not their home depot. 1. The STA opposes each of the determinations and recommendations sought by the RTBU. 2. The parties initially filed evidence and written submissions dealing substantially with the interpretation and application of cl 22 of the Operations Award. At the hearing on 11 September 2019, a question arose as to whether the Salaried Award had any bearing on the question, dispute or difficulty set out at paragraph [2] and on the determinations and recommendations sought by the RTBU. 3. Directions were made for the parties to file an agreed list of questions for determination by the Commission taking into consideration the question of the operation of the Salaried Award, and failing an agreement between the parties as to the questions, the Commission would determine the questions. The matter was then listed for a further day's hearing on 13 December 2019. 4. The parties were unable to agree on the questions, and on 21 October 2019 the Commission directed that the questions to be determined are: 1. When a Bus Operator who is bound by the Operations Award is engaged temporarily in a Salaried Officer position pursuant to cl 21 of the Operations Award and using the Form 124 process: 1. do the employment conditions from the Operations Award continue to apply to the employee?; or 2. does sub-cl 21.2 of the Operations Award operate to incorporate or otherwise apply the employment conditions applicable to that classification under the Salaried Award to the employee?; or 3. does the Salaried Award otherwise bind the employee, within the meaning of s 12 of the Act, for the duration of the engagement? 1. When a Bus Operator who is bound by the Operations Award is engaged temporarily in a Salaried Officer position pursuant to cl 21 of the Operations Award and using the Form 124 process, and works at a location which would normally attract an excess travel time payment under the Operations Award if they were performing their substantive role, are they entitled to a payment for the excess travelling time? 2. When a Bus Operator who is covered by the Operations Award accepts a shift or shifts offered to them by the employer on a temporary basis to assume the duties of a Salaried Officer position (new position), such position is covered by the Salaried Award, is it immediately upon commencement of the new position that the Salaried Award covers the driver for the duration of the shift or shifts? 3. If the answer to Question 3 is yes, that is, that immediately upon commencement of the new position, the Salaried Award covers the driver for the duration of the shift or shifts, then when does cl 66 of the Salaried Award apply to the driver? In particular, does cl 66 apply to the engagement in the new position, as defined? 4. If the answer to Question 3 is yes, in what circumstance does cl 67 apply? 5. In the context of cl 66 and 67 of the Salaried Award, what is the driver's usual workplace? 1. At the hearing on 13 December 2019, the parties agreed that the answer to Question 3 is "no". Consequently, on their specific terms, Questions 4 and 5 fall away. However, questions related to Questions 4 and 5 arise if the Commission determines that the conditions under the Salaried Award are otherwise relevant to Bus Operators acting in classifications under the Salaried Award. Evidence and written submissions 1. The RTBU tendered: 1. an affidavit of Mark Gregory Diamond sworn 27 August 2019; 2. an affidavit by William August Ng sworn 19 July 2019; and 3. three affidavits by Ivor Donald Symington the first sworn 18 July 2019, the second sworn 27 August 2019, and the third sworn 6 November 2019. 1. The STA tendered: 1. two statements of Michael Reardon dated 20 August 2019 and 29 November 2019; and 2. a statement of Brendan Rabbitt dated 20 August 2019. 1. The statements and affidavits were all accepted into evidence on the basis that the Commission would hear from the parties as to the weight to be attached to aspects of the evidence. All witnesses other than Mr Diamond were cross-examined. 2. The RTBU filed: Submissions on 23 July 2019; Reply Submissions on 27 August 2019; and a further Outline of Submissions on 11 November 2019 ("RTBU's Further Submissions"). At the hearing on 13 December 2019, the advocate for the RTBU relied only on the RTBU's Further Submissions. 3. The STA filed Submissions on 20 August 2019 and a further Outline of Submissions on 2 December 2020 ("STA's Further Submissions"). Background 1. The RTBU asserts that "[w]hen a Bus Operator works higher duties (for example, as a Roster Clerk or a Scheduler) the STA have always paid the employee excess travelling time if the higher duties work is at a location which requires additional travelling time from their residence when compared with their home depot". 2. Mr Symington deposed in his affidavit of 18 July 2019 that his home depot is Mona Vale. This accords with the "Location" on his payslips annexed to his affidavit being recorded as "Mona Vale" which include days on which he performed higher duties at locations other than Mona Vale. Mr Symington also deposed that from July 2012 until the end of March 2019 each time he performed higher duties at a location which was not his home depot and involved excess travelling time he was paid for the excess travelling time. Payment for excess travelling time is included in Mr Symington's payslip for the period 25 March 2018 to 7 April 2018. 3. Mr Ng deposed that his home depot is Brookvale. This is reflected in the letter of offer and payslip annexed to his affidavit. Mr Ng also deposed that from late 2010 until the end of March 2019 each time he performed higher duties at a location which was further away from his home than Brookvale, he was paid for the excess travelling time. Payment for excess travelling time is included in the payslip for the period 10 March 2019 to 23 March 2019. 4. The evidence of Mr Reardon, the Executive Director, Asset Management at STA is that: 1. Bus Operators acting in Network Supervisors positions at Leichhardt which are Grades 5 and 6 under the Salaried Award, are not paid excess travelling time payments; and 2. in his experience, no Bus Engineering and Maintenance employees have been paid excess travelling time when performing higher duties work at a location which requires additional travel time from their residence when compared with their home depot. 1. As a result of a review and restructure of various parts of the STA's operations, the STA determined that, in its view, excess travelling time was not being applied consistently or in accordance with the Operations Award. Consequently, on 7 March 2019 Daniela Fontana issued a memo to "All Staff" which stated, amongst other things: "When Bus Operators are acting up in a Salaried Officer's position, they assume all the conditions of that position, including the location where the role is based. Accordingly, there is generally no entitlement to excess travel time when employees are acting up. From Monday 18 March 2019, the correct application of the procedure will be implemented to ensure consistency." 1. From 1 April 2019 the STA ceased paying the excess travelling time payment to all employees on higher duties when they were required to sign on or off at a work location which was further from their residence than their home depot. Relevant Award clauses 1. The Acting Out of Classification clause (cl 21) of the Operations Award is in the following terms: 21. Acting Out of Classification 21.1 An employee engaged temporarily in a higher grade shall be paid the rate to which they would be entitled if they were appointed to that grade. 21.2 The conditions applying to the classification in which an employee acts shall be their conditions whilst so acting. 21.3 An employee who acts in a higher-grade position for a continuous period of 124 working days shall be paid at the higher rate for any period of annual leave falling within the same twelve-month period. 1. The Excess Travelling Time clause (cl 22) of the Operations Award is in the following terms: 22. Excess Travelling Time 22.1 Employees covered under this Award when required to sign on or off at a place other than their home depot which is at a greater distance from their home than their home depot, shall be allowed payment at the appropriate rate for the day for the excess travelling time. A total of 25 minutes each day for a straight shift and 40 minutes on a broken shift will be allowed to cover time occupied in waiting for schedule connections. 22.2 Employees required to sign on or off more than once are entitled to excess travel in accordance with 22.1 of this clause. 22.3 Appropriate rate, for the purpose of this clause, means the rate paid for the classification in which the employee is employed for the day. 1. The Excess Travelling Time clause (cl 66) of the Salaried Award is in the following terms: 66.1. Any employee who takes up duty temporarily away from their usual workplace shall be paid at ordinary rates for any extra time occupied in travelling to and from such point of duty. 66.1.1. Payment shall be based on the shortest practical route in excess of that usually occupied in travelling between their residence and usual workplace. 66.1.2. In addition the employee shall be paid an allowance of 25 minutes, calculated as per sub-clause 66.4, daily in lieu of all scheduled connections. 66.2. Any employee who takes up duty temporarily away from their usual workplace shall be paid the amount of any additional fares reasonably incurred in travelling to and from such temporary point of duty. 66.3. For the purposes of this clause employees shall be regarded as not being on duty away from their usual workplace when working in any place within 3.2 kilometres of such usual workplace measured by the nearest practical route. 66.4. Ordinary rates for the purposes of sub-clause 67.1, means the rates paid for the work on which the employee is engaged for the day. 66.5. When an employee is required to travel on duty outside the hours of his/her normal rostered shift, the employee shall be paid for such travelling time at single rate, except where otherwise provided herein, to the extent that it exceeds two hours in each period of 24 hours but such payment shall be subject to a maximum of 12 hours (8 hours when a sleeping berth is provided) in each 24 hours. 66.6. The period of 24 hours shall be deemed to commence when travel commences and where the period exceeds 24 hours the time to be paid shall be computed afresh after expiration of each 24 hours absence. 66.7. Payment for travelling time on a Saturday shall be at the rate of time and a quarter, and on a Sunday or a Public Holiday shall be at the rate of time and a half. 66.8. Employees whose salary rates are in excess of the maximum prescribed for Clerk, Special Grade, shall not be eligible for the payment of travelling time. 66.9. Travelling time which is payable under this clause shall not be paid at a salary rate exceeding the maximum prescribed salary for Clerk Grade 6. 1. The Change of Usual Workplace clause (cl 67) of the Salaried Award is in the following terms: 67.1. The usual workplace of an employee shall not be altered in any case where it is known at the time of transfer or temporary relocation to another place of employment that the employee will be required to work at such place for less than six months. This clause shall not apply to officers who are surplus to requirements. The RTBU's case Relevant award 1. The RTBU contends that cl 21 expressly contemplates that a Bus Operator acting in a higher grade position remains bound by the Operations Award throughout the period of the higher grade engagement. 2. The RTBU submits, in any event, the employees could not be bound by the Salaried Award when acting in the higher grade given the express terms of that award. The term "employee" in the Salaried Award is defined as follows: "Employee" means, where that term appears in (a) PART 1 of this Award: all Salaried or Senior Officers employed as Officers of the employer (b) PART 2 of this Award: to all Salaried Officers only; … (c) PART 3 of this Award: to all Senior Officers only." 1. The RTBU relies on the evidence of Mr Symington and says that Bus Operators who perform higher duties are required to complete the "Recommendation for Higher Duties - Form 124" ("Form 124") after they have commenced the higher duties. This may be on their first shift during the higher duties period or up to the end of the payroll period. The Form 124 sets out: amongst other details, the dates the employee will perform the duties and the nature of those duties. The Form 124 is then signed by someone with HR Delegation (but may also be signed prior by a third person who provides the recommendation) before being forwarded by the employee to payroll. 2. The RTBU submits that the Form 124 is simply a payroll process and does not change the contractual terms between the parties. 3. When an employee is acting up in a higher grade, their substantive position does not change. As such, they are not "employed" as "Officers". Consequently, they are not employees under the Salaried Award and cannot be bound by it. The RTBU says further, that even if this is not correct, in order to be bound by the Salaried Award, the relevant employees would need to be engaged in one of the types of employment specified in cl 22, or be temporarily appointed under cl 23 of the Salaried Award. Neither is the case because: 1. they are not engaged on a full-time, part-time or casual basis as a Salaried Officer, they are temporarily acting in the position; and 2. they are not Temporary Employees as contemplated by sub-cll 22.13 and 22.14 as they are "already in the service of the employer" and they are not "recruited" in the sense contemplated by that sub-clause; and 3. they are not engaged on a "Temporary Appointment" as contemplated by cl 23 as they are not engaged for the minimum period of two years. 1. On those grounds, the relevant employees acting up in a Salaried Officer position are not bound by the Salaried Award, in the sense contemplated by s 12 of the Act. Clause 66 of the Salaried Award 1. The RTBU submits that when Bus Operators commence employment with the STA they are contracted to a "home depot". 2. The RTBU asserts that when a Bus Operator works higher duties (for example, as a Roster Clerk or a Scheduler) the STA has always paid the employee excess travelling time if the higher duties work is at a location which requires additional travel time from their residence when compared with their home depot. 3. The RTBU submits that cl 21.2 of the Operations Award operates to apply the conditions applicable to the higher grade classification in which an employee is acting. Where an employee acts in the position of a Salaried Officer, the employee is entitled to the conditions applicable to that classification from the Salaried Award. Accordingly, cl 66 of the Salaried Award is the source of the excess travelling time entitlement, and on the plain wording of that award, the employees ought to be paid for travelling time. 4. Clause 66 of the Salaried Award is set out at [24] above. The RTBU submits that applying the words of cl 66 to the situation of the Bus Operators: 1. their "usual workplace" is the depot at which they usually work in their substantive role, and that is specified in their contracts of employment and payslips; 2. they are being required to take up duty temporarily away from that usual workplace in the Salaried Officer position; and 3. they are consequently entitled to the excess travelling time payment under that clause. Clause 22 of the Operations Award 1. The RTBU submits, in the alternative, if the Commission does not accept that "conditions applying to the classification" means the conditions under the Salaried Award, that the employees are entitled to be paid for the excess travelling time pursuant to cl 22 of the Operations Award. 2. The RTBU contends that the plain meaning of the phrase "required to sign on or off" in cl 22, which accords with common-sense and is a sensible industrial outcome, is that the employee signs on, works a shift at a depot other than their home depot, and signs off. The RTBU contrasts this meaning with the submissions of the STA that "required" means "being compelled by the employer to work at that place". The RTBU says in response to that proposition: 1. the word "required" in the clause is not directed at the manner of the engagement or the attendance at the depot at all; 2. the STA's interpretation leads to a perverse and unjust outcome which is antithetical to the very purpose of the entitlement; 3. the approach advanced by the STA is effectively new. In the past, it paid the relevant employees in this dispute the for the excess travelling time; and 4. the relevant employees do not volunteer. They make an application and, are thereafter utilised by the STA to fill the vacant positions. Once the employees have agreed to the engagement, they are subject to the respondent's directions, policies, and procedures. 1. The RTBU says that the Commission should not depart from the meaning of "required" in cl 22 as set out by Commissioner Newall in a previous dispute before the Commission. That dispute concerned whether employees who performed voluntary overtime on Sundays were entitled to be paid for the excess travelling time. The STA contended in that dispute that because the employees had volunteered for overtime, they were not "required" and therefore not entitled to excess travelling time. Commissioner Newall rejected that argument and considered that the employees were entitled to excess travelling time, notwithstanding that the overtime was voluntary. In reaching that conclusion, the Commissioner made a recommendation, stating: "… an employee who is engaged to perform a shift, whether he has volunteered to do it or otherwise, is caught in all respects by all terms of the award and the lawful directions, policies and practices of the employer. In Its plain terms, clause 22 says, "An employee who ls required to sign on and sign off", those are the words the framers of the award have chosen to use and to advance before the Commission on at least a dozen occasions since the award was made as being what they wanted to say. What the clause says is, "An employee who is required to sign on and off at another depot'' etcetera. Even if someone volunteers to do a shift they are required to sign on and sign off and accordingly a strict interpretation of the award would mean that they were to be paid for excess travel even if they were working as a voluntary Sunday overtime shift. But that is only part of what is before the Commission at present and again I emphasise that what I am saying Is In the context of a recommendation not an order." The RTBU's submissions as to the answers to the Questions 1. The RTBU contends that the answers to Question 1 are: 1. the conditions specific to the higher duties classification in which the Bus Operator is acting, which are those in the Salaried Award, will apply. In the event the Salaried Award is silent as to any conditions or entitlements that are contained within the Operations Award, they will continue to apply; 2. sub-cl 21.2 operates to apply the conditions applicable to the classification in the Salaried Award to the relevant employees; and 3. no. 1. The RTBU contends in answer to Question 2 that the employees are entitled to be paid for the excess travelling time under cl 66 of the Salaried Award, or in the alternative, cl 22 of the Operations Award. 2. The RTBU accepts that the answer to Question 3 is "no" but contends that Question 3 is based on a false premise, that the Salaried Award "covers" the employee. The RTBU says that the employees are not bound by the Salaried Award, in the sense contemplated by s 12 of the Act, when acting in the higher grade. Rather, once a Bus Operator is engaged by the STA in the Salaried Officer position, clause 21.2 of the Operations Award operates to apply the conditions applicable to the classification in the Salaried Award. 3. The RTBU contends that the answer to Question 4 is that although the Salaried Award does not cover the relevant employees, cl 66 of the Salaried Award applies to travel both to and from the away depot pursuant to cl 21 of the Operations Award. 4. The RTBU contends that the answer to Question 5 is that cl 67 of the Salaried Award applies at the same time as cl 66. 5. The RTBU contends that the answer to Question 6 is the driver's usual workplace is the place they usually work as a Bus Operator. The STA's case Clause 22 of the Operations Award 1. The STA's fundamental contention is that cl 22 of the Operations Award operates only in circumstances where there is a requirement or a compulsion by it that an employee work a specific shift because the employee is entitled to the excess travelling time "when [the employee] is required to sign on or off". The STA asserts that because an employee voluntarily accepts the higher grade position or higher duties shifts, obligations pursuant to cl 22 do not arise. 2. The STA says that, with respect to the dispute that was before Commissioner Newall which the RTBU submits dealt with the meaning of "required": "the Commissioner's statement is, … devoid of reasoning and any analysis, and for those reasons alone the Commission would be duty bound to determine the proper construction of the clause for itself". In any event, the Commissioner's statement was made simply as a recommendation and not a binding order. 3. The second proposition according to the STA is that the substantive position of the relevant employees is "Bus Operator" and there is an arrangement which is entered into, in part orally, in part by practice, and in part by the policies which exist, which results in the employees working as Salaried Officers, receiving the terms and conditions that apply to a Salaried Officer when they are doing that work. The employees who are engaged as Bus Operators at all times remain bound or covered by the Operations Award, irrespective of what work is performed that would otherwise not fall within cl 5 of the Operations Award, the "Area, Incidents and Duration" clause. 4. The STA submits, thirdly, that because of the historical original jurisdiction of the Commission's award-making powers, the Operations Award can only apply and cover work that falls within cl 5. The Commission makes awards which are binding with respect to industries and/or callings. The Operations Award operates within the public transport industry and, as it relates to the classifications set out in Part B, Table 1; they are the callings; the Operations Award cannot purport to regulate any other calling. 5. The STA submits, fourthly, that cl 21 of the Operations Award has nothing to do with any other award; it is simply designed to compensate an employee when they are required to work in a higher classification as described in Part B, Table 1. The words "classification" and "grade" are commonly used interchangeably in the industrial context. Clause 21 does not intend, nor can it operate in such a way, that the words "classification" or "grade" could mean the classifications of grades in other awards which do not apply to the callings of the Operations Award. The Operations Award cannot operate outside of its jurisdiction and import provisions of the Salaried Award into it with legal effect. 6. The STA submits that there is no express provision in the Operations Award that evidences or supports any intention as suggested by the RTBU, that when an employee acts in the position of Roster Clerk, or any other Salaried Officer position, the Operations Award will continue to bind the employee, but the conditions applying to that classification will be those contained within the Salaried Award, and to the extent that the Salaried Award is silent on any conditions or entitlements, those in the Bus Operations will continue to apply. According to the STA, the RTBU has not provided evidence of any negotiations that could support such a proposition, and the proposition would lead to perverse and absurd outcomes, demonstrated as follows: 1. on the RTBU's analysis, the STA could direct an employee to perform work in any classification in any other award the respondent is bound by and irrespective of: 1. how remote the nature of the other award is to the Operations Award; and 2. the classification attracting a lower rate of remuneration, as cl 21 says nothing about what would happen in such a case other than sub-cl 21.2. 1. on the contention of the RTBU, it follows that if the STA was to breach cl 21 of the Operations Award, the applicant or prosecutor in such proceedings would, in effect, be required to plead a breach of the various provisions of the Salaried Award as it is those provisions that would need to be identified as being breached. 1. Fifthly, the STA contends that when a Bus Operator performs work as a Salaried Officer (which calling would be covered by the Salaried Award), they have, in effect, entered into an arrangement not covered by or contemplated by the Operations Award. 2. The STA contends that what practically occurs, as in the current Dispute, is that the Bus Operator volunteers to work the higher duties shift/s and accepts the terms and conditions relevant to working as a Salaried Officer which arrangement is subject to s 406 of the Act. The Bus Operators are still, however, covered by the Operations Award and receive, by agreement and in accordance with the State Transit Higher Duties Procedure Policy ("Policy"), remuneration and benefits relevant to a Salaried Officer's position under the Salaried Award. This has been the historical practice that has been adopted by the Bus Operators and the STA: statement of Michael Reardon of 29 November 2019. Where there are inconsistencies, the Operations Award will prevail. Further, the Form 124, is nothing more than an administrative document by which to: 1. advise "payroll" of the changed circumstances for the relevant Bus Operator; and 2. record, in part, the terms of the agreement. Clause 66 of the Salaried Award 1. The STA submits there is simply no basis in law for the RTBU's submission that by virtue of the operation of cl 21 of the Operations Award, cl 66 of the Salaried Award would apply to the Bus Operators. 2. The STA contends cl 66 would not operate for two reasons: 1. for the reasons set out above, cl 66 could never apply to an employee not bound by the Salaried Award; and 2. there is no reason why cl 66 would need to be a term or condition that falls within the "arrangement" for the employee to work in the higher duties role. There is nothing in the terms of cl 66 that would make it fall within the contemplation of cl 21 of the Operations Award. Clause 66 is a general provision in the Salaried Award which is not in any way discernible as being a term or condition specifically applicable to the classification in which the employee acts. 1. The STA submits that there is no reason why cl 66 of the Salaried Award would oust the operation of cl 22 of the Operations Award. If it did, this would be another example of the absurdity of the outcome. 2. The STA submits further, that if the Commission finds cl 66 did operate, it could only have any effect on the Bus Operator's next temporary home base change to another Salaried Officer's position. On the RTBU's contention there could be multiple awards under which a Bus Operator could perform "acting up" work. If the Bus Operator's next position is acting up away from his or her home base under another award, then presumably cl 66 would operate in relation to that move where the Bus Operator is "acting up" under a different award again, and moreover, cl 21 of the Operations Award would also be enlivened again. This example is the most absurd of all as possible outcomes if the Commission were to entertain the RTBU's contentions. The STA's submissions as to the answers to the Questions 1. The STA contends that the answers to Question 1 are: 1. yes, the employment conditions from the Operations Award continue to apply to the employee; 2. sub-clause 21.2 of the Operations Award does not operate to incorporate, or otherwise apply, the employment conditions applicable to that classification under the Salaried Award to the employee; 3. no, the Salaried Award does not otherwise bind the employee, within the meaning of s 12 of the Act, for the duration of the engagement. 1. The STA contends that the answer to Question 2 is no, they are not entitled to a payment for the excess travelling time: 2. The STA contends that the answer to Question 3 is no, as the STA's position is that the Bus Operator always remains bound by the Operations Award. 3. The STA contends that the answer to Question 4 is no, given the answer to Question 3. 4. The STA contends that the answer to Question 5 is no, given the answer to Question 3. Interpretation of the Awards 1. The Questions raised for consideration, require consideration of the proper interpretation and construction of the awards, in particular, cl 21 of the Operations Award. 2. The strict reading of an award clause or a narrow and pedantic approach are misplaced: Kucks v CSR Limited (1996) 66 IR 182 ("Kucks") at 184. However, as Madgwick J went on to say in Kucks at 184: … the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. 1. In order to determine this matter I will apply the principles governing the interpretation of awards which were set out by his Honour President Walton in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced…; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) … the meaning of the text may require consideration of the context (which includes, … consideration … [of] the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision; (5) … it is proper to pay regard to "the purposes for which a provision is intended", … provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives …[and] a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision. (Footnotes omitted) 1. Although his Honour stated at [115], as set out above, "the determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made" he went on to say at [127]-[128]: 127 Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. 128 … Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. 1. I was not taken to any evidence as to the history of cl 21, or the parties' understanding or intentions of the purpose of cl 21 at the time of its drafting. No documentation was tendered, nor evidence led, to persuade me that attention was given to the words of cl 21 in the course of negotiating the Operations Award which would lead me to form a view that the words used in the sub-cl 21.2: "[t]he conditions applying to the classification in which an employee acts shall be their conditions whilst so acting" should be read as anything other than their ordinary and grammatical meaning. 2. The STA's payment of excess travelling time to Messrs Symington and Ng and its decision to cease paying the excess travelling time is not relevant to the construction of the clause: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, at [128]. 3. The STA's contention is that sub-cl 21.2 only applies when an employee works in a higher duties role in a classification or grade within the Operations Award. The STA submits that cl 21 does not intend, nor operate such, that the words "classification" or "grade" could mean the "classifications" or "grades" in other awards which do not apply to the "callings" of the Operations Award, because the Operations Award cannot operate outside of its jurisdiction, and import provisions of the Salaried Award into it with legal effect. 4. The STA contends that a Bus Operator working in a role covered by the Salaried Award is "an arrangement not covered or contemplated by the Operations Award". "The practical reality", according to the STA's submissions, is that rather than sub-cl 21.2 operating, the Bus Operator volunteers to work the higher duties shifts and accepts the terms and conditions relevant to working as a Salaried Officer. The STA submits that the Bus Operator remains covered by the Operations Award but receives, by agreement, and in accordance with the Policy, "remuneration and benefits" relevant to a Salaried Officer's position under the Salaried Award; where there are inconsistencies between the two awards, the Operations Award will prevail. 5. The parties agree that the Bus Operator will remain covered by the Operations Award when acting in a role covered by the Salaried Award. Where the parties differ is whether the rate of pay and the conditions which will apply to the Bus Operator while acting in the higher duties role are established pursuant to cl 21 of the Operations Award, or by agreement and pursuant to the Policy. 6. I agree with the RTBU, that the meaning of "benefits" in the context submitted by the STA is unclear. The Policy is concerned with the approval process for higher duties and the relevant rates of pay to the employees while working in the higher duties roles or on leave from those roles. The Policy is silent on other conditions of employment. If the STA's construction is correct, it is necessary to undertake an evaluation of the terms of the offer and acceptance of the higher duties and to determine whether a relevant condition is condition specifically applicable to the classification in which the employee acts in order to determine whether a relevant condition is that provided under the Operations Award or the Salaried Award. 7. The RTBU's construction that the conditions are those set out in the Salaried Award results in a clearer and more certain outcome. 8. The Policy "must be reviewed every 5 years, or as required, to ensure currency": sub-cl 4.3 of the Policy. Such a review will not involve the Commission; whereas, any changes to the Salaried Award will be subject to the Commission's processes, and as the parties to the Operations Award are both parties to the Salaried Award both will have input to any variations to the relevant conditions of employment. 9. The STA submits that the RTBU's construction results in the Operations Award impermissibly operating outside of its jurisdiction and importing provisions of the Salaried Award with legal effect. However, there is nothing in the text of the sub-clause which limits the construction of it in the manner submitted by the STA. It is also incorrect to submit that the Operations Award will operate outside its jurisdiction. It is accepted by both parties that the Operations Award will continue to cover the Bus Operators while working temporarily in classifications under the Salaried Award. 10. On the other hand, the construction urged by the RTBU is, on its face, consistent with the text of the clause. It is also a fair and reasonable condition of employment: s 10 of the Act, that an employee acting in another classification will receive the remuneration and conditions of the other classification where that remuneration and those conditions are more beneficial. 11. It is also relevant that there is a higher duties clause in the Salaried Award. Clause 46 of the Salaried Award covers Salaried and Senior Officers acting in higher duties positions. 12. The construction of the Operations Award urged by the STA would result in the Bus Operators performing the duties of the classifications under the Salaried Award relying on an agreement or arrangement between the parties and the terms of the Policy to provide the terms of their conditions, remuneration and benefits; whereas employees acting up in classifications within each award have the benefit and protection of the higher duties award clauses. 13. The STA refers to s 406 of the Act and says that the employees who act in a higher duties classification under another award cannot swap between awards or award coverage. On the STA submissions, these employees are subject to the Policy and are protected by the Operations Award as a minimum protection. The STA submits that to the extent that there is any inconsistency between the two awards, the award that covers the employee will always prevail: s 406 of the Act, and that is equally so if there is an inconsistency with any other policies because you cannot contract out of an award. 14. The STA says that if the RTBU's interpretation is correct then there will be a flow-on effect to any higher duties clauses, unless there is some express prohibition. The STA submits, without evidence in support of the proposition, "this is not the way higher duties clauses have ever operated" and "[i]t would just simply not be within the proper industrial context". Any flow-on effect will depend on the terms of the other higher duties clauses, and in any event a possible flow-on effect is not a sufficient reason to construct an award clause in a manner inconsistent with the text of the clause. 15. I do not accept that the STA's construction of cl 21 of the Operations Award, which excludes anyone acting up in a "classification" not covered by the Operations Award, is the better construction of the text of the Operations Award. 16. Taking into account the matters set out by his Honour President Walton and extracted at [64], in summary: text, context and purpose, the better construction is that the relevant employees are entitled, by virtue of cl 21 of the Operations Award, and subject to s 406 of the Act which guarantees the employee's minimum conditions, to the rate of pay applicable to the grade of the position, and the conditions applicable to the classification, in whichever award the grade and classification are found. I do not accept that this is, as the STA submits, absurd. It is logical that an employee would receive the remuneration and conditions of the higher duties role they perform. 17. Accordingly, a Bus Operator performing work temporarily in a classification covered by the Salaried Award remains covered by the Operations Award, but is entitled to the rate of pay and conditions applicable to the higher duties classification pursuant to cl 21 of the Operations Award. 18. This is a reasonable and practical construction of the clause in context which pays due regard to the text of the clause and the Operations Award as a whole. 19. I reject the submission that this will result in perverse and absurd outcomes as demonstrated by the examples set out at [50] for the following reasons. 20. First, the RTBU's submissions do not, in my view, accept that the STA can direct an employee to perform work in any classification in any other award under which the STA is bound. However, if STA and the employee agree that the employee has the skills to, and will, perform work temporarily in a classification under an award by which the STA is bound, even if that award is of a nature which is remote from the Operations Award, it is reasonable and fair that the remuneration and conditions of the second "remote" award will apply when the employee performs work in a classification under that award, subject to the minimum entitlements under the Operations Award; 21. Second, sub-clause 21.1 refers to "an employee engaged temporarily in a higher grade" and sub-clause 21.3 refers to "[an] employee who acts in a higher-grade position … shall be paid at the higher rate ...". Accordingly, a proper and harmonious construction of cl 21 does not result in an interpretation that the employee may be placed in a classification attracting a lower rate of remuneration; 22. Third, the example described as "the most absurd of all possible outcomes if the Commission were to entertain the RTBU's contentions" and finds cl 66 operates, focuses on a "home base change" rather than on the "employee .. tak[ing] up duty temporarily away from their usual workplace". I agree with the STA that on the RTBU's contention it is possible that there could be multiple awards under which a Bus Operator could perform "acting up" work, and cl 21 of the Operations Award would operate in these circumstances. However, I do not agree with the STA's submission that on the RTBU's construction, cl 66 would operate where the Bus Operator is "acting up" under a different award. The conditions under that award will apply. 23. Finally, the STA points to an absurdity in the RTBU's contention that if the STA did not provide the employee with the relevant conditions as set out in the Salaried Award, then this would be a breach of cl 21 of the Operations Award, and the applicant or prosecutor in such proceedings would, in effect, plead a breach of the various provisions of the Salaried Award as it is those provisions that would need to be identified as being breached. 24. The alternative, and on the basis of the STA's argument, the construction with the less absurd result, is that if the STA did not provide the employee with the conditions relevant to the higher duties role, then the prosecutor or applicant would be unable to bring a successful award breach claim because the higher duties conditions are not terms of any award under which the relevant employees are covered, and s 406 of the Act will operate to protect the minimum entitlements or conditions under the Operations Award, being the only award covering the Bus Operators, and not the higher duties conditions. 25. I do not accept that the STA's construction is the less absurd of the two. Further, as Commissioner Newall stated in Rail, Tram and Bus Union of New South Wales & ors v Secretary for Transport [2017] NSWIRComm 1032 at [34]: … it is inappropriate to burden parties to proceedings with comments which are no more than obiter dicta. The Commission is not empowered to give advisory opinions, and it is generally unsound to purport to give opinion on matters which a court or tribunal does not have to decide: Rebenta Pty Ltd v Wise [2009] NSWCA 212 at [12]. Further, to devote time to address matters which are not required to be dealt with to resolve the proceedings would be contrary to the rationale underlying s 57 of the Civil Procedure Act 2005. 1. In circumstances where the relevant condition of employment considered in this Dispute, excess travelling time, is established in a clause set out in an industrial instrument made by the Commission pursuant to its powers to set fair and reasonable conditions of employment, is it not necessary, nor appropriate, for me to consider whether the construction of "conditions of employment in which an employee acts" in this decision may result in a prosecutor alleging a breach of the Operations Award on the basis of a condition of employment under a policy or agreement where an award term does not apply. Such a consideration will be determined on the facts and circumstances of any such matter. 2. As a consequence of the above, it is not necessary for me to construct cl 22 of the Operations Award or to consider the effect of the words "required to sign on or off". I turn now to consider cl 66 of the Salaried Award. 3. Clause 66.1 provides: Any employee who takes up duty temporarily away from their usual workplace shall be paid at ordinary rates for any extra time occupied in travelling to and from such point of duty. 1. I do not accept the STA's submissions that there is no reason why cl 66 would need to be a term or condition that falls within the "arrangement". Sub-clause 21.2 of the Operations Award refers to the conditions applying to the classification. The STA submits that cl 66 "is simply a general provision in the Salaried Award which is not in any way discernible as being a term or condition specifically applicable to the classification in which the employee acts". I understand this submission to mean that if the Commission accepts that pursuant to sub-cl 21.2 of the Operations Award the Bus Operators acting in classifications under the Salaried Award are entitled to conditions provided under the Salaried Award, then these conditions are only those specifically applying to the relevant classification. 2. "[T]he conditions applying to the classification" are the conditions applying to the classification regardless of whether these also apply to other classifications. 3. The STA says that if the Commission accepts the RTBU's submissions on cl 21 then cl 66 could only operate on the next temporary home base change. I do not agree. Clause 66 refers to the employee taking up duty away from their "usual workplace". This will be a matter of fact for each employee. In respect of Bus Operators whose workplace is a bus, their "usual workplace" for the purposes of cl 66 of the Salaried Award is their "home depot". A Bus Operator's "home depot" or "usual location" is the depot from which the Bus Operator usually commences their duties as a Bus Operator. In Mr Symington's and Mr Ng's cases, the "usual workplace" is the "Location" set out on their payslips which were before the Commission. 4. I agree with the RTBU's position as set out at [35]. Bus Operators who take up duty temporarily away from their usual workplace to perform duties in a classification set out in the Salaried Award are entitled, pursuant to cl 21 of the Operations Award to "be paid at ordinary rates for any extra time occupied in travelling to and from" the location at which they perform their higher duties. Consideration of the Questions Question 1 1. For the reasons set out above, I consider the answers to Question 1 to be: 1. the employee remains covered by the Operations Award; 2. pursuant to sub-cl 21.2 the conditions of the Salaried Award apply to the employee; 3. no. Question 2 1. For the reasons set out above, the answer to Question 2 is that that the relevant employees are entitled to be paid for any extra time occupied in travelling to and from the location where they perform their higher duties when compared with the travelling time from their residence to their "usual workplace". Question 3 1. The parties have agreed that the answer to Question 3 is no. However, I agree with the RTBU that the employees are not bound by the Salaried Award when acting in the higher grade, in the sense contemplated by s 12 of the Act. Rather, once a Bus Operator is engaged by the STA in the Salaried Officer position, clause 21.2 of the Operations Award operates to apply the conditions applicable to the classification in the Salaried Award. Question 4 1. Although the answer to Question 3 is no, for the reasons set out above, the entitlement to be paid for the extra time occupied in travelling to and from the workplace at which the higher duties is performed, applies to travel both to and from that workplace. Question 5 1. Although the answer to Question 3 is no, for the reasons set out above, the conditions in cl 67 apply at the same time as the conditions in cl 66. Question 6 1. For the reasons set out above, the Bus Operator's usual workplace is the depot to which they are attached and from which they usually work as a Bus Operator. Disposition of the matter 1. On the basis of the interpretation of sub-cl 21.2 of the Operations Award set out in this decision, the STA has acted in breach of the Operations Award by not paying excess travelling time to Bus Operators acting in classifications under the Salaried Award at locations other than their usual workplace. 2. I make the following recommendations pursuant to sub-s 136(1)(a) of the Act which are directed at resolve the Dispute as identified by the RTBU and set out at [2]: 1. from the date of this decision, the STA pay to employees covered by the Operations Award, who are engaged temporarily to perform duty in a classification set out in the Salaried Award at a location away from their usual workplace, an amount calculated at ordinary rates the employee would be paid for working in the higher duties classification, for any extra time occupied in travelling to and from the employee's temporary point of duty; and 2. STA pay to employees covered by the Operations Award, who in the period 18 March 2019 to date, took up duty temporarily away from their usual workplace to perform duty in a classification set out in the Salaried Award, an amount calculated at ordinary rates the employee would be paid for working in the higher duties classification, for any extra time occupied in travelling to and from such point of duty, where such employees have not been paid for the excess travelling time. N J Constant Chief Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020