Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Workers' Union, New South Wales v The Secretary of the Department of Transport as Head of the Transport Service [2024] NSWIRComm 7 Hearing dates: 16 October 2024 Date of orders: 16 October 2024 Decision date: 16 October 2024 Jurisdiction: Industrial Relations Commission Before: Taylor J, President Decision: See para [26] for Recommendation Category: Procedural rulings Parties: Australian Workers' Union, New South Wales Transport Workers' Union of New South Wales Construction, Forestry and Maritime Employees Union Electrical Trades Union of Australia, New South Wales Branch Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch Broken Hill Town Employees' Union The New South Wales Plumbers and Gasfitters Employees' Union (Applicants) The Secretary of the Department of Transport as Head of the Transport Service (Respondent) Representation: Mr J Ward for Australian Workers' Union, New South Wales Ms S Nasser for Transport Workers' Union of New South Wales Ms K Kless for The Secretary of the Department of Transport as Head of the Transport Service File Number(s): 2024/238862 Publication restriction: None STATEMENT AND RECOMMENDATION Ex tempore - Corrected from transcript 1. In these proceedings I have decided to make a recommendation, which I will read at the conclusion of this short statement. 2. On 28 June 2024, eight unions notified a dispute in respect of terms and conditions of employment of employees covered by two awards: 1. Roads and Maritime Services (Wages Award) 2019 ("the Wages Award"); and 2. Roads and Maritime Services School Crossing Supervisors Award 2019. 1. When the dispute was first before me on 24 July 2024, I noted that, with the consent of all parties, the dispute insofar as it concerned the second of those two Awards, namely the Roads and Maritime Services School Crossing Supervisors Award 2019, would no longer be dealt with as part of this dispute but would instead be part of matter 2024/237268, which was - and as I understand it remains - allocated to Justice Chin, Vice President. As a consequence the Public Service Association is no longer involved in this dispute. 2. The remaining dispute concerning the Wages Award is a dispute that concerns, on the one hand, the Transport Secretary and, on the other, seven unions, namely: 1. Australian Workers' Union, New South Wales ("AWU"); 2. Construction, Forestry and Maritime Employees Union; 3. Electrical Trades Union of Australia, New South Wales Branch; 4. Transport Workers' Union of New South Wales ("TWU"); 5. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch; 6. The NSW Plumbers and Gas Fitters Employees' Union; and 7. Broken Hill Town Employees' Union. 1. In the proceedings to date, Mr Ward has appeared for the AWU, and has announced his appearance also for the other unions, other than the TWU, which has been represented by Ms Nasser. 2. The AWU, on behalf of the joint unions, provided the Commission with the combined union's log of claims. That document was marked MFI 1. It states: Final TfNSW 2024 Log of Claims Current as at 5/7/24 1. Wages award to have the same conditions as the TfNSW Salaried Award (35hr week, 15 sick days etc) 2. Rewrite the Classification Structures for updated role descriptions, and to allow for new higher grades and pay points, particularly for harder to fill roles (Team Leaders, All trade roles, Highly skilled plant operators, PQRs) this rewrite would also give us scope to recognise additional skills like training and assessing, and other advanced learnings. 3. Greater support for 'First Responders' and mental health 4. Increase existing allowances (either in line with percentage wage increase, or increase in line with treasury circulars) 5. A wage increase of 5% per year for a 3-year agreement. 5%, 5%, 5% 6. Implement 'Income Protection' insurance policy from Chifley 1. Issues 3 and 6 in MFI 1 have been dealt with to the satisfaction of the parties by way of communications between the Transport Secretary and the AWU on behalf of itself and the other unions. It was confirmed to me today that those two matters no longer form part of the dispute that is before the Commission. 2. I will now say something about the remaining issues in the log of claims. 3. Issue number 1, is a claim that the Wages Award should have the same conditions as the Transport for NSW Salary Award. When this matter was before me on 22 August 2024 I said the following about this claim: "It's clear to me that this is a claim which would have significance to government well beyond this award. Indeed, I am informed that it is a claim that is currently being prosecuted by the Combined Trains Unions in respect of their negotiations before the Federal Commission. It is a claim which I anticipate will be all but impossible to resolve in respect of this award alone by conciliation, and would almost certainly be something, therefore, that would have to be arbitrated, either for this award alone or for a series of awards. I have identified to the parties off the record my concern that if this claim is to remain pursued, it is likely to be one that would prevent the parties otherwise reaching an agreed position in respect of this award. That is not to suggest that the unions are not entirely entitled to prosecute such a claim. It is just to indicate that I think it's likely that if they seek to do so, it's likely to hold up the resolution of this award until that arbitration is heard. It would be a very large arbitration involving various parts of government beyond the Transport Secretary." 1. Dealing next, out of order, with issue 4 in MFI 1, this claim, whilst appearing to be a claim in respect of various allowances, is in fact limited to a claim in respect of a particular clause of the Wages Award, namely, cl 27.3 dealing with an allowance for travelling to or from home to a depot outside of metropolitan Sydney. I am told the allowance went into the award in 2010 and has not been indexed since. 2. In respect of this issue, the parties have reached an in-principle agreement as to how the question of indexing might be addressed. Before the Transport Secretary can confirm that agreement, the Transport Secretary needs to obtain the appropriate approvals. It is my understanding that provided those approvals are obtained, the parties are otherwise agreed as to this matter. As at today, the Transport Secretary was not in a position to be able to inform me how long it would take for that approval to be obtained, but I was not told anything which would suggest to me that it is likely that this is going to be a substantial issue between the parties. I encourage the Transport Secretary to continue to seek that approval and to communicate to the unions the date that Transport Secretary understands the approval decision will be made. 3. Dealing next with issue 5 in the log of claims, this is a claim made by the combined unions that there be a new three-year award that would contain wage increases of 5% a year for each of those three years. Whilst the unions have not yet needed to identify with any precision how that claim would be progressed if the matter went to arbitration, I understand it is likely to be predominantly based on changes to the cost of living and changes in the work value of the work of those covered by this award. 4. All parties are aware of an offer that has been made to the Public Sector Association in respect of awards that apply to the members of that association, which in terms, at least on their face, appear to be more generous than those currently offered to the unions in this matter. As I understand it, the Transport Secretary has extended that same offer to the combined transport unions in respect of the Transport for NSW Salaried Award, and the RMS Salaries Award. 5. An offer in those terms has not however been made in respect of this award. That is despite the fact that on 4 September 2024, when this matter was last before me, in circumstances where the PSA Salaries Case was being set down for arbitration, it was submitted to me on behalf of the Transport Secretary that an inequity might arise if different outcomes were made or achieved in different awards within the same agency. At that stage it was the Transport Secretary's position to seek what was said to be a "singular, centralised, streamlined arbitration" of three matters being quantum, the extra claims clause and the term, because the position of the government was the same across the public sector. 6. The remaining issue in MFI 1 is issue 2, which in broad terms seeks a "rewrite" of classification structures, allowing for updated role descriptions and higher grades and pay points. On 22 August 2024, when this matter was before me, I identified that at that stage this involved claims in respect of eight categories of employees, namely: 1. In respect of AWU members, a team leader; 2. Trades employees, also referred to as "fleet", such as mechanics, boilermakers and fabricators, where the claim is for improved conditions that reflect conditions that currently apply in respect of Broken Hill workshop employees; 3. Senior plant operators such as graders; 4. Project quality role employees, also referred to as PQRs; 5. Tow truck attendants; 6. Traffic emergency patrollers; 7. Truck drivers, that is tow truck drivers; and 8. Traffic emergency patrol team leaders. 1. Some of the alterations to classifications are said to be justified based on attraction and retention issues which it is claimed are affecting the Department of Transport's ability to function effectively, leading, it is said, to: increased costs in the form of having to engage additional contractors; delay to the completion of work; and/or reductions in the quality of work. 2. Other changes in classifications are said to be justified on the basis of changes in the nature of work, giving rise to increases in the work value of those grades. 3. It is the Transport Secretary's position that the various changes, which, the Transport Secretary says, affect a very large percentage of all those employed under the relevant award, would lead to a significant increase in costs, quite apart from the wage claim. 4. The unions have identified and provided to the Transport Secretary productivity and efficiency improvements that would, the unions say, fund higher pay consistent with the NSW Government Fair Pay and Bargain Policy 2023. 5. I have, during the course of today, explored with both parties how to progress this matter. It is my view that there is still potential for this matter to be resolved by conciliation. It is also my view, however, that to achieve that outcome will involve some degree of effort and cannot be achieved quickly. 6. It is in the interests of all parties that this matter is resolved by conciliation to avoid the costs and delay that are associated with a full arbitration. A conciliated outcome also avoids risks to both parties of an outcome which is not one that they would be willing to accept as a compromise through a conciliation process. 7. When this matter was first before me on 24 July, I said the following: "I'm disinclined for awards to not be increased as and when an award falls due for lengthy periods of time, even if there is an understanding that there will be back payments. So, I'm encouraging the parties to give real thought to how to progress the matter, obviously, ideally by complete agreement, but to the extent to which complete agreement can't be reached, to clearly identify what can be agreed on an interim basis to allow the matter to progress in a continued conciliated fashion as far as possible, and ultimately, if necessary, by arbitration." 1. That remains my view. 2. We are dealing with a workforce who are not highly paid, who live in regional areas and who are facing what the press refers to as a "cost of living crisis". In those circumstances it is not in the interests of those employees that there be any further delay to at least an interim increase in their rates of pay. Similarly, it is not in the interest of the Transport Secretary because, to the extent to which there are attraction and retention issues, they are exacerbated by any delay in an increase in pay. I note also that an interim increase is consistent with the government's position there ought to be an increase in pay of at least 3% effective 1 July. 3. It is against that background that I make the following recommendation. RECOMMENDATION 1. I recommend: 1. The parties enter into intensive discussions in the manner described below, on the basis that: 1. the Transport Secretary agrees to an interim variation to the Wages Award to provide an immediate 3% increase backdated to 1 July; and 2. the unions give an undertaking that they will not take industrial action pending the outcome of those discussions and any subsequent arbitration. 1. Those discussions are to take the following form, unless otherwise agreed by the parties: 1. the unions are to take two weeks to consider how in those discussions they will prioritise and justify the increases in rates of pay in respect of specific classifications and specifically to identify those classification matters which, in the union's view, need to be addressed before a new award is made and which can be addressed during the life of the award; 2. the parties are to meet in light of that formulation in the first week of November to agree on an agenda and timetable for three intensive meetings, and to discuss and agree on such other procedural matters that are appropriate to be determined in advance of those meetings, including who is to attend each meeting. That agenda setting meeting should occur here at the Commission in the first week of November, immediately followed by a report back before me; 3. the parties are then to have three half-day meetings in November and December which will focus on the issues of: 1. the claims in respect of classifications; and 2. the form of any no-extra-claims commitment and the extent to which that commitment would allow any of the union claims to be progressed during the life of the award, by consent or otherwise; but the discussions need not be limited to those issues. 1. The Transport Secretary is to communicate, at the meeting to be held in the first week of November, whether, in light of the position the Secretary is taking in respect of other Transport Awards, the Secretary's position in respect of wages and/or a no-extra-claims clause has varied from that which has to date been put to the combined unions in respect of this dispute. ********** 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: 17 October 2024