Industrial Relations Commission New South Wales Medium Neutral Citation: Roads and Maritime Services (Traffic Signals Staff) Award 2019 (2023 Variation) [2023] NSWIRComm 1120 Hearing dates: 30 November 2023 Date of orders: 30 November 2023, 4 December 2023 Decision date: 30 November 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Roads and Maritime Services (Traffic Signals Staff) Award 2019 published on 20 March 2020 (387 IG 271), as varied pursuant to variations published on 23 October 2020, 10 September 2021 and 20 March 2023, be varied in the terms set out in Schedule A to the Short Minutes of Order filed on 27 November 2023, save that the proposed new clause 6.3 is to read: "The parties to this Award acknowledge that the intention of subclause 6.2 is to facilitate discussions during the term of the Award." 2.The variations to the Award are to take effect from 1 July 2023. Note: 3. The variations will result in: (a) an increase in total remuneration under the Award of 4.0% per annum from the first full pay period on or after 1 July 2023; (b) amendments to certain conditions in the Award, including in relation to domestic and family violence leave and to facilitate continued discussions between the parties; and (c) a revised no extra claims clause which is to be operative until 30 June 2024. (4) I direct the Secretary to provide to the Registrar, by 4 December 2023, a Word version of: (a) Schedule A to the Short Minutes of Order filed on 27 November 2023, amended so that the variation to cl 6 reflects Order 1; (b) a marked-up version of the Award as varied by Order 1; (c) a clean version of the Award as varied by Order 1. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation — Nominal term of Award had expired, however no proposal to amend the nominal term or to seek new award – Factual circumstances justifying variation of Award rather than making of a new award Legislation Cited: Industrial Relations Act 1996 (NSW), ss 10, 15, 16, 17, 23 Transport Administration Act 1988 (NSW), ss 68Q, 120, Sch 7 Transport Administration Amendment (RMS Dissolution) Act 2019 (NSW) Category: Principal judgment Parties: The Secretary of the Department of Transport as Head of the Transport Service (Applicant) Electrical Trades Union of Australia, New South Wales Branch (Respondent) Representation: R Hutchinson (Applicant) A Aghazarian (Respondent) File Number(s): 2023/00297741 Publication restriction: Nil DECISION Delivered ex tempore, revised from the transcript 1. On 14 September 2023 the Secretary of the Department of Transport as head of the Transport Service (Secretary) filed an application pursuant to s 17 of the Industrial Relations Act 1996 (NSW) (IR Act) seeking a variation of the Road and Maritime Services (Traffic Signals Staff) Award 2019 (Award). The parties to the Award are the Secretary and the Electrical Trades Union of Australia, New South Wales branch (ETU). 2. The applicant seeks to have the Commission vary the Award to achieve the following outcomes: 1. a 4% increase to salaries and salary related allowances on or after 1 July 2023; 2. an updated no-extra-claims clause to operate until 30 June 2024; 3. provision to facilitate continued discussions between the parties on claims raised during bargaining for the proposed award variation; and 4. updated domestic and family violence leave clauses to align to the Premier's Memorandum (M2022-13 Support for Employees Experiencing Domestic and Family Violence). 1. The application for variation was expressed to have been made with the consent of all parties to the Award and short minutes of order reflecting that consent were filed with the application on 14 September 2023. However, when the matter came before the Chief Commissioner on 27 September 2023, the ETU advised it had withdrawn its consent as there remained an ongoing dispute in respect of the classifications of employees covered by the Award as set out in Appendix B to the Award. Consequently, the matter was allocated to me for conciliation. 2. The matter came before me for conciliation on 13 October 2023, 2 November 2023 and 20 November 2023. While I understand some progress has been made by the parties toward resolving the dispute concerning classifications, the dispute has not been finally resolved. Instead, the parties have decided to commit to further discussions "on claims made during the bargaining of [the] Award" and to amend the 'no extra claims' clause in the Award to record this commitment and to allow the parties to bring proceedings before the Commission up to 30 June 2024 "with respect to the review of classifications in Appendix B and determining the rates of pay associated with any proposed changes in those classifications". 3. Accordingly, on 27 November 2023, the day the matter was listed for a report back before me, the Secretary filed short minutes of order reflecting the parties' consent to the making of a variation of the Award in the terms set out in Schedule A annexed to the short minutes. 4. Upon my review of the material filed by the Secretary, including the material that had originally been filed on 14 September 2023, and after hearing from the parties on 27 November 2023, I decided I was not in a position to make the orders sought and I directed the Secretary to file further material in order that I could be satisfied that I should order the Award to be varied in the manner proposed. Issues with the Proposed Variation 1. There were a number of reasons I was not satisfied, on 27 November 2023, that the Award should be varied as proposed. 2. First and foremost, I was concerned that the nominal term of the Award had expired. Clause 5.3 of the Award provides: "This Award: (a) Rescinds and replaces the Roads and Maritime Services (Traffic Signals Staff) Award 2017 publishing 9 February 2018 (382 I.G. 491). (b) Comes into effect on 1 July 2019 and will remain in force until 30 June 2022." 1. There is no proposal to vary clause 5.3. 2. It was unclear to me why, in circumstances where the Award on its terms was no longer in force, an application for a new award had not been made pursuant to s 10 of the IR Act. 3. The expiry of the nominal term of the Award resulted in a further issue. Proposed new clause 6.3, being a subclause of the 'no extra-claims' clause, reads as follows: "The parties to this Award acknowledge that the intention of subclause 6.2 is to facilitate discussions during the nominal term of the Award." 1. Plainly, the proposed clause does not reflect what the parties intend given that the nominal term of the Award expired on 30 June 2022. 2. Similarly, the expiry of the nominal term causes some difficulty with the operation of clause 5.6 which was also not proposed to be amended. It provides: "The parties agree to being negotiations for a new award at least six months prior to expiration of this Award." 1. A cursory examination of the Award reveals that there may be a number of other clauses which are likely to be outdated. For example, clause A7(a) in Appendix A to the Award refers to the Industrial Relations Management Guidelines December 1999 as developed by the New South Wales Government's Construction Policy Steering Committee. 2. Put simply, it appeared to me that it is time a new award was made. However, for the reasons explained below it is the desire of both parties that the Award continue, albeit with the proposed variations, at least until 30 June 2024, despite the issues I have identified above. 3. Another issue, albeit a somewhat pedantic one, concerns compliance with Practice Note 6 which obliges parties to a proposed consent award to file an affidavit setting out the basis upon which it is contended that the proposed award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value, to assist the Commission to be assured of that fact, as required by s 23 of the IR Act. 4. An affidavit sworn by Greg McDonald, the Acting Director Employee Relations at Transport for NSW, attesting to the matter required by Practice Note 6 had been filed with the application for variation of the award on 14 September 2023, however, it referred to an earlier iteration of the proposed variations, not the version now referred to in the proposed short minutes of order. 5. Lastly, as noted above, one of the proposed variations is that salary and salary related allowances be increased from 1 July 2023 and an order is sought that the variations to the Award are to take effect from 1 July 2023. That date is earlier than the date the application for the variation was lodged. This being the case, pursuant to s 15(4) of the IR Act, as applied to the Award variations by s 17(2), I must be satisfied that the Award sets conditions for employees of a single employer or for employees of two or more associated employers. Reasons why the Award should be varied rather than a new award made 1. Pursuant to my direction made on 27 November 2023, on 29 November 2023 the Secretary filed and served an affidavit of Greg McDonald, sworn on the same day which was read when the matter came on for hearing before me today. I required Mr McDonald to enter the witness box in order that I could seek some additional information from him with respect to the proposed variation to the Award. 2. The following is Mr McDonald's explanation supplemented with my own research, as to why the Award, which commenced nearly four and a half years ago, should be allowed to continue as an operative award rather than a new award made. 3. On 1 December 2019 the Transport Administration Amendment (RMS Dissolution) Act 2019 (NSW) commenced operation. The effect of this was to amend the Transport Administration Act 1988 (NSW) (TA Act) such that Roads and Maritime Services (RMS) was dissolved and incorporated within Transport for NSW (TfNSW) with TfNSW becoming the successor to RMS. 4. TfNSW does not employ staff. Staff are employed by the Government of New South Wales in the Transport Service of New South Wales and perform work for TfNSW. The Secretary exercises the employer functions on behalf of the Government of New South Wales. Pursuant to s 68Q(1) of the TA Act, the Secretary may create groups of staff, which then determines Award application and coverage. 5. Schedule 7 of the TA Act sets out saving, transitional and other provisions: s 120 of the TA Act. Part 29 of Schedule 7 sets out "provisions consequent on dissolution of RMS". Of relevance are clauses 221, 222 and 223 of schedule 7 which provide: 221 No forced redundancies for RMS staff (1) The employment of a Transport Service non-executive employee who, immediately before the dissolution of Roads and Maritime Services, was a member of staff of Roads and Maritime Services must not be terminated on the grounds of redundancy (other than voluntary redundancy). (2) This clause continues to have effect only while any of the following awards apply to any non-executive employees in the Transport Service— (a) the Roads and Maritime Services Consolidated Salaried Award 2019, (b) the Roads and Maritime Services School Crossing Supervisors Award 2019, (c) the Roads and Maritime Services (Traffic Signals Staff) Award 2019, (d) the Roads and Maritime Services (Wages Staff) Award 2019. 222 No privatisation of certain RMS work For the period of 4 years commencing on the date of the dissolution of Roads and Maritime Services— (a) any work that, immediately before that dissolution, was performed by Roads and Maritime Services must not be privatised to a non-government sector entity, and (b) any contract in force immediately before that dissolution for the carrying out of road maintenance work on behalf of Roads and Maritime Services in the Sydney metropolitan area (within the meaning of the Regional Development Act 2004) by a non-government sector entity must not be extended in scope. 223 RMS awards not to be merged into Transport Service awards (1) The Transport Secretary must ensure, for the period of 4 years commencing on the date of the dissolution of Roads and Maritime Services, that the existing RMS awards are maintained as separate awards and are not combined with any other award applying to employees in the Transport Service. (2) Subclause (1) does not apply to an existing RMS award if all the industrial organisations that are parties to the award consent to the combination. (3) In this clause, existing RMS award means the following— (a) the Roads and Maritime Services Consolidated Salaried Award 2019, (b) the Roads and Maritime Services School Crossing Supervisors Award 2019, (c) the Roads and Maritime Services (Traffic Signals Staff) Award 2019, (d) the Roads and Maritime Services (Wages Staff) Award 2019. 1. I pause at this juncture to note the that the Commission recently varied by consent the Roads and Maritime Services Consolidated Salaried Award 2019, the Roads and Maritimes Services (Wages Staff) Award 2019, and the Roads and Maritime Services (School Crossing Supervisors) Award 2019, in a manner similar to that which is proposed to the Award presently before me. 2. According to Mr McDonald, Transport Services employees not in the RMS group of staff are covered by the Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2022. 3. While I consider a legislative provision such as cl 223 of Schedule 7 of the TA Act, which obliges an employer to "ensure" that certain awards are "maintained as separate awards", to be rather curious when it is the Commission which determines whether awards are made, varied or rescinded and may do any of those things on its own initiative, the intention that the RMS Awards as referred to in cl 223 be maintained for at least four years from the date of the dissolution of RMS is clear. By coincidence, the expiry of that four-year period is today. 4. Mr McDonald also gave evidence that in addition to the provisions of Schedule 7 of the TA Act, there exists a Memorandum of Understanding (MOU) to which the Secretary and the ETU (as well as Unions NSW and other representative unions) are parties, pursuant to which the Secretary made various commitments arising from the dissolution of RMS. A copy of the MOU was annexed to Mr McDonald's affidavit. It contains the following relevant provisions: "Unions NSW and its affiliated unions have expressed concerns about the transition and potential adverse impacts on the existing terms and conditions of Transport Service of New South Wales employees performing work for and/or carrying out functions assigned to Roads and Maritime Services and concerned about potential impacts on the existing Roads and Maritime Services Awards including the issue of application or coverage. … The Secretary of the Department of Transport has given a number of commitments to address those concerns including that existing terms and conditions of employment will not be adversely impacted by the transition to the new operating model and that the RMS Awards will be maintained until they cease to have effect and are replaced with another new Award or Awards. … This Memorandum reflects the agreement and acknowledgement between Unions NSW (including its affiliated unions) of those commitments made, for the continued operation of the RMS Awards, in relation to this staff/members of the Transport Service of New South Wales who are within the RMS Group of Staff and new members who will be within the RMS Group of Staff assigned to perform work for the benefit of, and/or to carry out the exclusive functions that were previously assigned to Roads and Maritime Services. … Operation This Memorandum will commence on the date of execution by both parties and will continue to operate until the Roads and Maritime Services Awards have ceased to have effect in relation any employees within the RMS Group of Staff in the Transport Service of New South Wales and replaced by another Award or Awards." 1. In short, it is clear that the parties, and others, have been in agreement that the RMS awards, including the Award which is now before me, should continue to have effect at least for a period of four years from 1 December 2019. 2. The Secretary also drew my attention to ss 16 and 17 of the IR Act and made the following submissions: "Section 16 and 17 apply to this matter in that: a. It is apparent that an award remains in effect when past its nominal term, so long as it has not been rescinded by the Commission (ss.16(1)). b. This Award has not been rescinded, and so remains in effect. c. It is not open to the Parties to seek a nominal term that is longer than 3 years (ss.16(2)) d. As outlined in the Affidavit of Mr McDonald, the parties have agreed in 2023 to not seek a new Award due to the provisions of the Transport Administration Act 1988 that are sought to remain in effect. e. Section 17 (3) provides that "An award may be varied or rescinded in any of the following circumstances only", that is, it is only required to satisfy one of the following subsections. f. All parties consent to the proposed variation of the Award (ss.17(3)(a)). g. We submit the "not contrary to the public interest" provisions at ss.17(3)(d)) are only required to be satisfied if another of the option a) to c) are not met. That is not the case in this application, as ss.17(3)(a) has been met. h. In any event, it is not contrary to the public interest to vary the Award in this matter because: (i) The Award only applies to less than 30 employees who are all engaged within the Transport Service. (ii) The Transport Service actively communicates that the Award remains in effect, as evidenced in the affidavit of Mr McDonald. There is limited or most likely no risk of confusion as to whether it remains in effect beyond its nominal term. (iii) If an employee were confused as to the Award that applies to them Transport Service management and Human Resources professionals readily available to clarify this. (iv) The approach taken ensures additional benefits that would not otherwise be available to employees, as provided at section 221 of the Transport Administration Act 1988. Determination 1. As the Secretary pointed out, s 16(2) of the IR Act provides that the nominal term of an award must not be less than 12 months nor more than three years. Pursuant to s 19(1) the Commission is required to review awards at least once every three years. The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards. These provisions point against the Commission allowing the Award to continue. The proposed variations reflect an understanding that the award will continue to have operative effect until at least 30 June 2024 by which time it will be five years old. As I have already observed, there are provisions in the Award which appear to be outdated or the meaning of which is difficult to ascertain in circumstances where the nominal term of the Award has expired. 2. I am nevertheless, albeit reluctantly, prepared to vary the Award as requested subject to a minor modification which I will explain shortly. I agree with the submissions made by the Secretary. I am also conscious of: 1. the agreement of the parties; 2. the fact that the continuance of the Award is part of a broader agreement reached between the parties and other unions in respect of transitional arrangements arising from the introduction of a new operating model for TfNSW in 2019 and that the four-year period referred to in Part 29 of Schedule 7 of the TA Act only ends today; 3. the other three RMS awards have already been similarly varied by the Commission, including to allow for a 4% increase to salaries and salary related allowances; and 4. other employees in the public sector received a pay increase of 4% from 1 July 2023 and it would be unfair to the employees covered by the Award to delay a similar increase to their salaries and salary related allowances. 1. My other concerns regarding the application to vary the Award have now been resolved. First, the parties have agreed to further amend proposed cl 6.3 to remove the word "nominal" so that it reads: "The parties to this award acknowledge that the intention of subclause 6.2 is to facilitate discussions during the term of the award." 1. Secondly, I am satisfied that the parties' common understanding of the phrase "expiration of the award" in cl 5.6 refers to the date from which extra claims may be actively pursued which, following the variation to cl 6, will be 30 June 2024. 2. Thirdly, a further affidavit of Mr McDonald sworn today, 30 November 2024, was read in which he deposes that he believes that the proposed terms of the varied Award provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value as referred to in s 23 of the IR Act, on the basis that the proposed variations do not draw any distinction between the remuneration and conditions of employment to apply to employees on the basis of gender. 3. Lastly, I am satisfied that the Award sets conditions of employment for employees of a single employer and so, with the consent of the parties, may apply retrospectively from 1 July 2023, being a date earlier than the date on which the application for the variation to the Award was lodged. According to Mr McDonald, the Award covers less than 30 employees employed by the Secretary and who perform electrical trades qualified work in respect of traffic signals construction and maintenance on the New South Wales road network. 4. While I have determined to approve the variation to the Award, it seems to me it would be appropriate for a new award to be made in 2024 and Mr McDonald confirmed that steps will be taken over the ensuing 12 months or so to arrange for new awards to be made. 5. I make the following orders by consent: 1. Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Roads and Maritime Services (Traffic Signals Staff) Award 2019 published on 5 May 2023 (387 IG 271) be varied in the terms set out in Schedule A to the short minutes of order filed on 27 November 2023 save that the proposed new cl 6.3 is to read: "The parties to this award acknowledge that the intention of subclause 6.2 is to facilitate discussions during the term of the award." 1. The variations to the award are to take effect from 1 July 2023. 1. I note that the variations will result in: 1. an increase in total remuneration under the Award of 4% per annum from the first full pay period on or after 1 July 2023; 2. amendments to certain conditions in the Award including in relation to domestic and family violence leave and to facilitate continued discussions between the parties; and 3. a revised no-extra-claim clause which is to be operative until 30 June 2024. 1. I direct the Secretary to provide to the Registrar by 4 December 2023 a Word version of: 1. Schedule A to the short minutes of order filed on 27 November 2023 amended so that the variation to cl 6 reflects order 1; 2. a marked-up version of the Award as varied by order 1; and 3. a clean version of the award as varied by order 1. 30 November 2023 addendum 1. On 1 December 2023 I was informed by the Deputy Registrar that the publication date referred to in Order 1 made on 30 November 2023 was incorrect. Apparently the most recent variation to the Award prior to that date had been published on 20 March 2023, not 5 May 2023, as stated in the short minutes of order filed by the Secretary. 2. This error alerted me to another issue, namely that Order 1 did not identify the original publication date of the Award or the variations made following its original commencement date. In the absence of a consolidated version of the Award I consider it important that the record properly reflect all variations which have been made to the Award since it commenced. Accordingly on 4 December 2023 I had the Deputy Registrar advise the parties that I proposed to make the below order in chambers and request that they advise the Commission of any opposition to the making of the order by no later than 4:00pm on 6 December 2023. The wording of the proposed order was based on information provided to me by the Deputy Registrar. 3. Both parties informed the Registry on 4 December 2023 that they did not oppose the making of the order and accordingly I made the following order that day: 1. Order 1 made on 30 November 2023 is amended to read as follows: Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Roads and Maritime Services (Traffic Signals Staff) Award 2019 published on 20 March 2020 (387 IG 271), as varied pursuant to variations published on 23 October 2020, 10 September 2021 and 20 March 2023, be varied in the terms set out in Schedule A to the Short Minutes of Order filed on 27 November 2023, save that the proposed new clause 6.3 is to read: "The parties to this Award acknowledge that the intention of subclause 6.2 is to facilitate discussions during the term of the Award. 14 December 2023 Janet McDonald Commissioner ********** Amendments 14 December 2023 - Addendum added on 14 December 2023. 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: 14 December 2023