Industrial Relations Commission of New South Wales CITATION : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Public Works and Services and Crown Employees (Department of Public Works and Services) Award 1998 [2000] NSWIRComm 109 PARTIES : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales Department of Public Works and Services FILE NUMBER: 4010 and 6713 of 1999 CORAM: Sams DP Industrial Dispute - application to vary expired award - public interest - Wage Fixing Principles - flex time arrangement not transferred between Departments. CATCHWORDS : Held, Special Case Principle applies - flex time arrangements fair and reasonable - potential for conflict - existing opportunities not utilised - survey results treated with caution - Special Case not made out - application refused - proceedings concluded. Industrial Relations Act 1996 LEGISLATION CITED : AWARDS: Crown Employees (Department of Public Works and Services) Award 1998 Crown Employees (Public Service Conditions of Employment 1997) Award State Wage Case 1999, 88 IR 363 State Wage Case 2000 (unreported) Matters IRC1873 and 1930 of 2000, 30 May 2000 CASES CITED : O'Sullivan v Farrer (1989) 168 CLR 210 New South Wales Port Corporations Award 1999 - Matter No. IRC 4207 of 1999, New South Wales Port Corporations Award 1999 - Matter No. IRC 4570 of 1999, and Maritime Services Board (Masters, Engineers, Pilot Vessels and Dredging Plant, Pilots Minor Trading Ports) Award - Matter No IRC4571 of 1999 (unreported) Wright P, 30 September 1999 Re Distpute: NSW Office of the Board of Studies and the NSW Teachers Federation (unreported) Schmidt J, Matter IRC6190 of 1999, 17 December 1999 HEARING DATES: 04/17/2000; 04/18/2000 DATE OF JUDGMENT: 06/28/2000 NOTIFIER/APPLICANT: Mr P Ginters of Counsel Solicitor: Ms J Wright, Jones Staff & Co Union: LEGAL REPRESENTATIVES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales RESPONDENT: Mr S Benson of Counsel Mr R Handmer for Public Employment Office and Department of Public Works & Services JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 28 June 2000 Matter No IRC99/4010 Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Department of Public Works and Services re provisions of award Matter No IRC99/6713 CROWN EMPLOYEES (DEPARTMENT OF PUBLIC WORKS AND SERVICES) AWARD 1998 Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for variation re flex time provisions State Valuation Office DECISION 1 These are two matters relevant to the same issue which have been joined and which were arbitrated concurrently. The first is a dispute notification, pursuant to s130 of the Industrial Relations Act 1996 ("the Act"), filed by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA"), on 27 July 1999. The dispute is with the Department of Public Works and Services and was expressed in short terms as follows: Failure of Department of Public Works and Services to afford State Valuation Office employees the provisions of the Crown Employee (Valuation Manager and Valuers - All Classes - State Valuation Office, DLWC) Consent Award 1998. 2 The second matter is an application to vary the Crown Employees (Department of Public Works and Services) Award 1998, to give effect to existing flex time arrangements for the employees who were transferred from the State Valuation Office ("SVO") with the Department of Land and Water Conservation ("DLWC") to the Department of Public Works and Services ("DPWS") in April 1999. The application originally came before Redman C, who subsequently referred the applications to his Honour, Maidment J, Duty Judge, for reallocation to me as it directly related to the dispute remaining extant in Matter 4010 of 1999. 3 Compulsory conferences were convened by the Commission on five occasions, during which certain proposals for settlement were advanced, considered and rejected. 4 Following an unsuccessful conciliation conference on 4 November, involving Ms Murphy from the PSA and Mr Handmer for the Department, I formed the view that conciliation had been exhausted. Pursuant to s135 of the Act, I provided a certificate of attempted conciliation to his Honour, the President, and issued the following directions: (1) That the notifier of the dispute file and serve any affidavit material upon which the notifier relies by 4pm on 18 October. Such material should also include the manner in which this matter is to be settled, either through an award variation or an order of the Commission. (2) That the respondent file and serve any affidavit material upon which the respondent relies by 4pm on 2 December. (3) The notifier to file and serve any material in reply by 4pm on 9 December. 5 At a report back requested by the PSA on 8 December, Mr Ginters of Counsel (now representing the Association) advised that an application to vary the Award had that day been filed and that the Commission's directions had not been complied with. He requested the dates for hearing be vacated and new dates set. Mr Benson, of Counsel, now appearing for the Department, consented to the vacation of hearing dates. The Commission thereupon amended its earlier directions and set new hearing dates for 17 and 18 April, 2000. 6 Matter 6713 was listed for mention on 14 February and, by consent, was joined with the dispute notification for arbitration. An amended application was filed on 19 January 2000 and formed the basis of the Association's claim. 7 A preliminary matter was raised, for the first time, on 17 April 2000, namely whether the application to vary the Award should be dealt with as a Special Case. After hearing the submissions of Mr Ginters and Mr Benson I said on p39 of transcript: I am satisfied that the matter should be referred to his Honour the President. However, I am not prepared to have the timetable disturbed in which case I will consult the President over the luncheon adjournment. The case will proceed now and if the matter is not either remitted to me or it is remitted to a Full Bench, then the parties will just have to wear the fact that the case, to the extent that it has been followed during the course and up to the point of his Honour's decision, might have been wasted. We will act on that presumption. 8 Having consulted the President, his Honour determined the issue, on 10 May 2000, in the following terms: Having considered the Reference by Deputy President Sams in this matter dated 17 April 2000 to the President of the Commission pursuant to s 193 of the Industrial Relations Act 1996 and Principle 10 of the State Wage Case 1999 principles, and having also considered the transcript of the proceedings before Deputy President Sams of that day, I determine that these proceedings, including any Special Case aspect of them, are to be dealt with by Deputy President Sams. 9 I shall later deal with the Special Case Principle and its application to the present matters. 10 In opening the Association's case, Mr Ginters tendered an outline of submissions (Ex'3') which I now summarise: i) the application seeks to retain and reflect flexible working hour arrangements which applied to employees of the State Valuation Office under a local unregistered and expired arrangement known as the Department of Land and Water Conservation Flexible Working Hours Agreement (Annexure A to Exhibit '5'); ii) flexible working hour agreements were tailored having regard to the particular working conditions of State Valuation Office employees, notably the busiest period between July and November when the General Valuation Programme ("G-Val") is undertaken. Employees are permitted to accrue up to five days' flex time which can be taken after the busy period; iii) on 8 April 1999, the functions of the State Valuation Office were transferred from the Department of Land and Water Conservation to the Department of Public Works and Services. Employees were not consulted, although their duties and work location remained unchanged. iv) on 8 July 1999, employees were advised that the terms and conditions applying to the Department of Public Works and Services were to be applied to them. This resulted in significant differences in the flex time arrangements, relating particularly to the new accrual maximum of three days, whereas the employees had previously enjoyed five days. Such other differences are revealed in the following table: PREVIOUS CURRENT TOPIC ARRANGEMENT ARRANGEMENT Settlement Period Four weeks Four weeks Contract Hours per Settlement Period 140 hours 140 hours Span of Hours in which 10.5 hours standard band width must fall 7.00am to 7.00pm 6.30am to 7.30pm Standard Coretime 10.00am to 3.00pm 9.30am to 3.30pm Flex Days per Settlement Period 2 days (or 4 half days) 1 day (or 2 half days) Maximum Accumulated Days 5 days 3 days Maximum Accrual Rate of 5 days per 1 day per Accumulated Days settlement period settlement period Maximum Flex Hour Carry Over 10 hours 10 hours v) the accrual of additional hours was a trade off for the Department in not paying overtime and to meet the specific work demands of the Valuation Office; vi) the change has caused hardship for the employees', dampened morale and caused disruption to the operation of the State Valuation Office; vii) the Award variation should be made pursuant to s17(3)(d) of the Act; particularly as it would not be contrary to the public interest to do so (see O'Sullivan v Farrer (1989) 168 CLR 210 and New South Wales Port Corporations Award 1999 and Maritime Services board (Masters, Engineers Pilot Vessels and Dredging Plant, Pilots Minor Trading Ports) Award (unreported) Wright P, 30 September 1999. 11 Mr Ginters called evidence from: Ms Brigid Mary Chapman Valuer Mr George Rodney Ridding Senior Valuer Mr Joseph Carlin Industrial Officer, PSA Ms Janine Louise Fitzgerald Area Assistant Ms Brianna Caroline Royal Valuer 12 Ms Brigid Chapman gave evidence that she had been employed by the State Valuation Office since 1987. She said that in August 1995, the flex time arrangements were introduced and supported by management as they assisted with the effective running of the business. The arrangements were particularly utilised at the G-Val time - but not limited to that period. Accrual of up to five days was allowed in each flex period. 13 Ms Chapman said that core time was another important issue; particularly for employees with young families. These arrangements allowed a starting time of 10.00am and finishing at 3.00pm. Benefits for employees and the employer included: - high morale - less stress - support for family and personal relations outside of work - reduced overtime costs - more effective use of time during heavy workloads. 14 Ms Chapman said she was shocked when the changes were made on 8 July 1999, as there had been no consultation. Later, in November 1999, Ms Chapman conducted a survey of employees and received ninety-nine responses. She gave evidence that the survey disclosed; - loss of many hours of unpaid overtime - loss of the opportunity for flex time days - morale had been affected - productivity had fallen - costs were increased - staff would only work contracted hours - quality of work affected 15 Ms Chapman said that prior to the altered arrangements she used to take two flex days per month to care for her two young children. She now must use additional recreational days for this purpose. 16 In oral evidence, Ms Chapman said the change in core time was not a concern to her. She was taken to her time sheets for July to November 1999 (Ex'D'). In this period she agreed that her certified hours were only six more than the contracted hours. She said she had worked hours greater than shown in Ex'D', but had not applied for overtime, because it had to be approved in advance. She acknowledged that the accrual issue had not affected her, as she hadn't accrued five days in the period. 17 In cross examination, Ms Chapman was questioned on the survey she had prepared and distributed. Some of the questions produced answers that would have been applicable under the old arrangements (T.p53) and two-thirds of those who responded took flex days during the busiest period of the year (G-Val). 18 She further acknowledged that core hours can be moulded to suit a particular employee's needs, by agreement, and accepted that such a request would not likely be rejected. Overtime was also accessed during the survey period with fifty-three staff indicating overtime worked; twenty-four of whom had three days overtime. 19 In re-examination, Ms Chapman clarified Ex'D' to the extent of indicating that she had four days off during the period and that, any time in excess of ten hours carried forward, was lost. She said that while she was offered overtime in the last G-Val period she couldn't accept for personal reasons. 20 Mr George Ridding has been employed by the Valuer General's Department since 1962 and since 1997, as a senior valuer. He said (in Ex'5') that the main aim of flex time (as it applied to him) was to allow employees to commence and finish work outside peak traffic times. He said that prior to changes in arrangements in 1997, the G-Val period was handled through overtime, rather than hiring extra staff. This was expensive and the new arrangements represented costs savings. 21 Mr Ridding described the 1999 arrangement as being unilaterally changed without consultation with employees. He believed the change was a "teething problem" in the transfer between Departments and he continued to work long hours, in the mistaken belief he would be compensated in accordance with the old arrangements. 22 Mr Ridding's particular circumstances were effected by the change in core hours requiring him to finish at 6.00pm, rather than 7.00pm. The latter time shortened his travel time from Bankstown to Cronulla. 23 Mr Ridding said there were difficulties in co-ordination and communication between the State Valuation Office and the Valuer General's Department, which has retained the old flex time arrangements. Mr Ridding said he worked many unrecorded and unpaid hours from August to October 1999, for which he received three accrued flex time days. Under the previous arrangements he would have received five days - thus losing two days. 24 In examination in chief, Mr Ridding was asked about a memo from his Manager, dated July 8 1999 (Ex'6') which contained the following sentence: It is acknowledged that some of the content will not necessarily suit our business eg flex time changes - and these will be taken up in due course. 25 In cross examination Mr Ridding was asked whether he had sought to change his band width hours. He said he had made inquiries, but his area manager didn't like the idea and he could see the merits in what he said. Further, he was asked, and agreed, that his usual start time (nineteen out of twenty times) was between 9.00 and 9.30am. Mr Ridding said his practice for field inspections was to conduct them during the day and write up his reports late in the afternoon or early evening. 26 Mr Joseph Carlin, an Industrial Officer for the PSA, provided written and oral evidence. In Ex'7', he attests that the Department agreed to continue the existing flex time arrangements during negotiations in 1997 for a new flexible working hours agreement for the whole of the Department of Land and Water Conservation. He gave two examples where existing conditions of employment were carried over when employees in one Government department moved to another: 1) Daily allowance for higher duties paid to former Department of Motor Transport employees when the Roads and Traffic Authority was established. 2) Redundancy entitlements retained by former State Bank employees when they were made redundant in 1996 by the Rural Assistance Authority. 27 Mr Carlin said the old arrangements were entered into after considerable consultation and negotiations which took into account the specific needs of the State Valuation office. These included the peak period when overtime would be otherwise required. The arrangements maintained morale and accommodated family responsibilities and other personal commitments. 28 In cross examination, Mr Carlin was asked about the difficulties which might arise when two groups within the same department had different flex time arrangements. He said this was not unusual, and in any event the State Valuation Office staff were a different entity to the remainder of the Public Works employees. He was not aware, however, of a proposal to co-locate the functions of the State Valuation Office with the Department of Public Works and Services. He was asked whether he had personal knowledge of the two transfer examples he cited in his affidavit. He said his information was based on general knowledge and information from work colleagues. 29 Mr Carlin acknowledged that the local arrangement between the PSA and the Land and Water Conservation Department had expired in December 1998 and did not involve the Department of Public Works and Services. 30 Mr Carlin agreed that the flexible work arrangements in the Department of Works and Services Award were "marginally" better than in the Crown Employees (Public Service Conditions of Employment 1997) Award, made under a local agreement pursuant to cl 10 of that Award; the difference being an extra day's flex accrual. Mr Carlin did not regard the difference as significant. 31 In re-examination, Mr Carlin said that despite the Department of Land and Water Conservation agreement having expired in December 1998, it continued to remain in effect. 32 Mr Carlin said there were continuing pressures for the Department to compete with private providers. To do so, it needed to reduce overtime costs. 33 Ms Brianna Royal is a part time senior valuer, working three days a week in the Wollongong office. She has worked for the State Valuation Office (or its predecessors) for eighteen years. 34 Ms Royal, in Ex'9', said she relied heavily on the flex time arrangements to carry out her responsibilities as the President of her children's school's P & C Association. She had experienced difficulty attending meetings, before and after, school hours. 35 Her other commitments with the Local Area Health Service have also been affected. 36 The changes have caused her great stress and anxiety, and the running of the Wollongong office has been undermined by low morale and a high rate of sick leave. Employees were now determined not to work more than seven hours a day and some were refusing to work overtime. 37 She said that the previous arrangements benefited the general running of the office and benefited the staff. She was also aware that, in the period since the transfer, all staff had worked a substantial amount of additional time, without compensation. 38 Ms Royal was questioned as to her time sheets (Ex'F'). These revealed that in the four months from March to June 1999, Ms Royal worked less than the contracted hours in March and April and had 2½ flex days during the period. She acknowledged her commitments were not really affected during this period. 39 Ms Royal said she had only recently been made aware that core time and band width could be changed by agreement. She said the concerns of staff may be moderated if they knew the flexibility which exists in the new arrangements. 40 In re-examination, Ms Royal referred to the workload in the second half of the year during G-Val and when the extra time would ordinarily be worked and flex time accrued. She would use this time during the Christmas School Holidays. 41 Mr Ginters tendered a further statement of Janine Louise Fitzgerald (Ex'10') who was unavailable for cross examination. It was admitted - subject to the weight given to untested evidence. 42 Ms Fitzgerald has been employed by the respondent since 1995 and is the area assistant in the Wagga Wagga office. She said she was shocked and dismayed by the change in flex time arrangements. She said that due to contractual deadlines, she had lost many hours and the pressures on fellow staff caused resentment. There was a reduction in flexibility in running the office and other work was compromised, which jeopardised contract payments. 43 Ms Fitzgerald said she liked the previous arrangements which allowed her to attend to family needs and personal business. 44 In opening, Mr Benson put the Department's primary position, that it was opposed to having different sets of arrangements applying to employees in the same Department, particularly when co-location was being pursued. 45 Mr Robert Handmer is Manager, Industrial Relations for the respondent Department. He provided affidavit evidence, marked Ex'E', attached to which were the relevant Awards and agreements referred to by both parties. 46 Mr Handmer gave evidence that the Department has some 2700 employees, of which approximately one hundred and fifty are employees of the State Valuation Office. He described the Department of Land and Water Conservation Flexible Working Hours Agreement - which expired in December 1998. It does not bind, and has not bound, the Department of Public Works and Services. He referred particularly to cl 20 of the Agreement, which is in these terms: TRANSFERS A staff member of the Department who transfers to another Department may transfer only ten (10) accumulated credit hours, if a staff member is in excess of ten (10) hours an effort should be made to take the appropriate flex leave prior to transferring in order to reduce excess credit. and said that this clause makes it clear that the arrangements do not automatically continue when employees transfer to another Department. 47 Nevertheless, Mr Handmer said, the provisions did continue until the Director General decided on 8 July 1999 that the flex time arrangements would be those applying generally in the Department of Public Works and Services. 48 He said the PSA was briefed on the new arrangements on 3 June and advised that State Valuation Office staff would be advised of the changes. This occurred in early July (Annexure G to Ex'E'). 49 Mr Handmer described the needs of a contract in 1999 which required overtime to be worked at Tamworth, Taree, Wagga Wagga, Dubbo, Orange and Coffs Harbour. 50 Mr Handmer gave evidence of two departmental restructures, one in 1995 involving the establishment of the Department of Public Works and Services and the other involving the Premier's Department, in 1998, in which the conditions of the larger department were applied to employees of the smaller agency or department which had merged or amalgamated. He said this was the usual practice and rejected Mr Carlin's examples to the contrary. 51 As to core time, Mr Handmer gave evidence that there is no barrier to moving core time between 6.30am and 7.30pm, subject to agreement. Such an agreement can be on a regular or irregular basis. This is less restrictive than the Land and Water Conservation Flexible Working Conditions Agreement (7.00am to 7.00pm). 52 Ms Royal's concerns, he said, could be remedied at the local level by seeking approval to move core times, pursuant to the Award. The same concerns of Ms Fitzgerald and Ms Chapman could be likewise resolved. Mr Ridding's evidence discloses a misunderstanding of the band width arrangements, which are easily accommodated under the Award. 53 In oral evidence, Mr Handmer attested that there was no difficulty in agreement being reached to move core times to meet client needs. He further explained the process of approval for overtime and said it was paid during the last G-Val period in six regional locations. Mr Handmer gave evidence as to the state of co-location plans for the State Valuation Office functions and the Department of Public Works and Services. 54 Mr Handmer said there were a number of technical difficulties with the application going to the management structure and titles. In cross examination, Mr Handmer accepted that he had received the amended application in December, but had not pointed out these technical difficulties until now. I noted, lite pendente, that, if the application was to succeed on merit, technical correction could be easily accommodated pursuant to the Commission's rules and practice. 55 Mr Handmer did not agree that one of the advantages of the old arrangement was to reduce overtime. He was asked whether the SVO was, and is, a stand alone business unit. He said it was similar to the Department's other forty business units, and was being integrated into the main stream of the Department. Mr Handmer agreed that the sharing of clerical staff across the Department had not occurred in the context of the SVO and would be accompanied by consultation and negotiation involving the Association. 56 Mr Handmer was asked about his interpretation of the transfer clause (20) of the Land and Water Conservation Agreement and said it contemplated transfers of individuals or whole departments. 57 Mr Ginters questioned Mr Handmer as to when the Department contacted the PSA to discuss the different flex time arrangements that were to be introduced, and which gave only two days' notice to the employees. 58 Mr Handmer agreed that if the old arrangements had been in place, neither Ms Royal, Ms Fitzgerald or Ms Chapman would have needed approval to change the core times. 59 As to the arrangements in respect to the State Mail Service, Mr Handmer agreed the employees had separate flex time arrangements in respect to the State Mail Service. Mr Handmer agreed these employees had the same flex time arrangements as previously enjoyed by the SVO employees. SUBMISSIONS 60 For the applicant, Mr Ginters' submissions may be summarised as follows: i) there was a unilateral transfer of employees of the SVO from the Department of Land and Water Conservation to the Department of Works and Services; ii) this transfer resulted in employees being denied their previous flex time arrangements under a continuing expired agreement; iii) the application seeks to do no more than restore the employees' entitlements to that which were previously enjoyed; iv) there was a reluctance by the Department to entertain more generous flex time arrangements and the Commission should exercise its discretion to grant the application; v) the test to be applied under s17(3)(d) is to firstly, determine that the application has industrial merit, and then decide whether it is not contrary to the public interest to approve the application (see New South Wales Port Corporations Award 1999 and Maritime Services Board (Masters, Engineers Pilot Vessels and Dredging Plant, Pilots Minor Trading Ports) Award ); vi) the evidence reveals a unique working environment for the employees which demonstrates the value of the application; vii) there is an overwhelming desire by the employees to retain their previous entitlements; viii) the previous flex time arrangements were family friendly and allowed employees to conduct personal and business matters outside work times; ix) the new arrangements were adversely affecting productivity and morale; x) reliance should not be available to the respondent's contention that co- location was a factor against approving the application; xi) no great weight should be put on the respondent's argument that the integration of functions was being developed. There had been no consultation with the PSA and the proposals are only in preliminary stages; xii) there is no prospect for flow on, as the application is directed to the specific needs of the SVO employees; xiii) the application is consistent with the objects of the Act, particularly Objects (a), (b) and (h). 61 For the respondent, Mr Benson submitted as follows: i) the industrial regulation of the employees is an award which has ongoing operative effect; ii) the previous flex time arrangements were negotiated with another Department, for particular application and for a limited period. It was an agreement, not an award, and did not create substantive rights that were expected to continue indefinitely; iii) management properly reviewed the desirability of retaining the old arrangements, particularly in light of the arrangements applying generally across the Department; iv) the management decision was to treat all employees of the Department equally; v) the evidence revealed a lack of understanding of the Department's flexible working arrangements and steps would be taken to communicate the arrangements more widely and effectively; vi) the survey results should be treated with great evidentiary care; vii) the application can only be dealt with according to the Special Case Principles and the relevant authorities ( Re Dispute: NSW Office of the Board of Studies and the NSW Teachers Federation , (unreported) Schmidt J, Matter IRC6190 of 1999, 17 December 1999); viii) there is no merit to the application and no public interest considerations in approving it. CONSIDERATION Is this a Special Case? 62 This application falls to be considered pursuant to s17(3)(d) of the Act and the Commission's Wage Fixing Principles. 63 s17(3) prescribes the only circumstances in which an award may be varied. Where the nominal term of the Award has expired (as in this case) para (d) is relevant: 17(3) An award may be varied or rescinded in any of the following circumstances only: ........ (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. 64 Concomitantly, with s17(3)(d), the Commission is required to apply the State Wage Fixing Principles to all claims brought before it. Pertinent to this application are Principle 2 and Principle 10. 65 As the application was filed on 8 December 1999, I refer to the State Wage Case 1999, 88 IR 363, published on 3 June 1999, noting that neither principle was altered by the State Wage Case 2000 (Decision of Full Bench, 30 May, 2000 in Matters IRC1873 and 1930 of 2000): Principle 2 is in the following terms When an Award may be Varied or Another Award Made Without the Claim Requiring Consideration as a Special Case In the following circumstances an award may, on application, be varied or another award made without the application requiring consideration as a special case: (a) to include previous State Wage Case increases in accordance with Principle 3; (b) to incorporate test case standards in accordance with Principle 4; (c) to adjust allowances and service increments in accordance with Principle 5; (d) to adjust wages pursuant to work value changes in accordance with Principle 6; (e) where the application is consented to by the parties; (f) to adjust wages for the State Wage Case 2000 in accordance with Principle 8; and (g) to approve of an enterprise agreement reached in accordance with Principle 11. 66 Mr Ginters' primary submission was that the application may fall for determination under Principle 2(c) because the claim relates to the adjustment of an allowance for flex time. Consequently, he said it would not attract consideration as a Special Case. Mr Ginters did not put this submission with any great force or gusto - correctly recognising the inherent difficulties with the argument. Leaving aside how the claim would fit with the adjustment mechanism for allowances in Principle 5, I fail to see how it could possibly be described as an allowance. It is stretching a very long bow indeed to so describe the claim. 67 Accordingly, the submission is rejected. 68 Thus, it must be found that the application can only be determined under the Special Case Principle. Having regard for his Honour the President's determination of 10 May 2000, I propose to deal with it on that basis. 69 The Special Case Principle is expressed in the following terms: 10. Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. 70 The onus of making out a Special Case undoubtedly falls upon the applicant. This onus was discussed by Schmidt J in Re Dispute: NSW Office of the Board of Studies and the NSW Teachers Federation, where her Honour discussed the pertinent Full Bench authorities and the principles to be distilled therefrom: In Occupational Health Nurses' Superannuation (State) Award (unreported; Bauer J, Schmidt J and French C; 6 November 1996), a Full Bench of the Commission discussed the onus which fell on an applicant in special case proceedings, which was that described by the Commission in Court Session Teachers (Non Government Schools) (State) Award and other Awards (unreported; Fisher P, Sweeney J and Varnum DP; 17 August 1990). Applicants in a special case must meet the ordinary requirements that a case must be made out on the evidence and matters of the cost of the claim and the public interest also arise for consideration. 71 From this passage one can readily identify a happy synergy of public interest considerations applying to both the legislative authority to vary an Award, and the Special Case Principle. 72 In my view this is not a case where employees have lost an actual benefit or entitlement. Rather, it must be viewed as a loss of an arrangement whereby an accrued entitlement is able to be "cashed in", "realised" or "traded off". 73 Having regard for these circumstances, it is difficult to see how an argument could be constructed to validate this application as being "special" and thereby meeting the ordinary tests for approval under the Special Case Principle. Put another way, I am not convinced that the applicant has discharged the onus of establishing this application as a Special Case warranting its grant. Industrial Merit 74 Mr Ginters invited the Commission to approve the application based on a pleading of industrial merit. In deference to his submissions, I also provide reasons as to why I would dismiss the application as lacking industrial merit: 1) There is no current, or former, Award provision which governs the old arrangements. The arrangements were the subject of a local agreement which, while still in use in the Department of Land and Water Conservation, has now expired. 2) The evidence of the employees discloses a lack of knowledge of what the new flex time arrangements actually provide and how they might be tailored to meet individual circumstances. It seemed that most of the employees' concerns with flexibility could have been addressed by simply asking for a change within the new arrangements. It hardly needs to be said that if there is any refusal to agree to an employee's reasonable request, recourse is available through the disputes procedure and, if necessary, this Commission. 3) The Department is able to arrange its business as it sees fit, providing employees are treated fairly and reasonably. I am not satisfied that the new arrangements are either, unfair, or unreasonable. 4) There is one pellucidly obvious answer to employees working unpaid hours. They are not legally, or morally, bound to do so. If the work cannot be completed within the contractual hours, it is a management problem, that must be addressed by Management. Nevertheless, I acknowledge and praise the commitment and dedication of the employees for working unpaid hours. However, the fact they do so, voluntarily, is not a proper basis for interfering with what, in my view, is a clear management prerogative to arrange its business as it sees fit. 5) I am also concerned with the potential for industrial discontent and conflict if different arrangements apply to employees within the same Department. The evidence also reveals a management objective for greater integration and co-location; albeit that the process is only in its embryonic phases. 6) The results of the survey, prepared by Ms Chapman, should be treated with great caution. With respect, the questions are framed to ensure the desired result. The answers were as predictable as asking someone if they believe in "mom and apple pie". In my opinion, the survey is well meaning, but so subjective as to be of very little probative value. CONCLUSION 75 In rejecting the Association's application, I feel it is pertinent to observe the following: 1) The Union indicated its intention to pursue this claim for all employees of the Department of Public Works and Services (T.p44). The current Award has expired. The next round of negotiations would appear to be the most convenient means of pursuing the claim. Whether it is successful, of course, is an entirely different matter. 2) The claim might, in futuro , be revisited in the light of any operational difficulties that emerge during the G-Val period this year. In any event, I recommend such a review in December this year. 3) I commend the Department's undertaking, to make available to all SVO employees the options that are available according to the Department of Public Works and Services flexible working arrangements. I recommend that, by agreement, employees avail themselves of such opportunities should the need arise. 76 Application IRC6713 of 1999 is dismissed and compulsory conference proceedings in matter IRC4010 of 1999 are formally terminated. Peter Sams Deputy President 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.