Industrial Relations Commission of New South Wales CITATION : Delta Electricity v Labor Council of NSW and ors re 19 day four week work pattern [2002] NSWIRComm 301 PARTIES : Delta Electricity Labor Council of NSW and affiliated unions FILE NUMBER: IRC 6777 of 2001 CORAM: Harrison DP CATCHWORDS : Notification under s130 - employer policy to expand application of 19 day four-week work pattern in preference to 9 day fortnight or five day week - ability to accrue days off - application of award. Held - award permits limited application of 19 day four-week work pattern by accrual from negotiation of local flexibility agreements - not available to employer by advertisement of new positions, promotion or performance review - benefit to employer and employees from wider application - request for further conciliation - parties to confer on basis of findings herein. LEGISLATION CITED : Industrial Relations Act 1996 Electricity Commission Act 1950 HEARING DATES: 09/30/2002; 10/01/2002 DATE OF JUDGMENT: 11/22/2002 APPLICANT Mr J Phillips of Counsel RESPONDENT LEGAL REPRESENTATIVES: Mr A Hatcher of Counsel SOLICITOR Ms A McRobert Jones Staff & Co JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 22 November 2002 Matter No IRC 6777 OF 2001 Notification under section 130 by Delta Electricity of a dispute with Labor Council of New South Wales and others re 19 day four-week work pattern DECISION [2002] NSWIRComm 301 1 This matter was notified by Delta Electricity ("Delta") pursuant to s130 of the Industrial Relations Act 1996 ("the Act") on 16 October 2001, advising of a dispute in the following terms: · Threatened industrial action associated with Delta Electricity's policy for the working of a 19-day four-week work pattern for certain staff. · Actions taken by some individual employees to cease working a 19-day four-week work pattern and commence working a 9-day fortnight without the agreement or consent of Delta Electricity. 2 The notification listed the other parties involved in the dispute as: ¨ The Labor Council of New South Wales ("Labor Council"); ¨ Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA); ¨ Association of Professional Engineers, Scientists and Managers, Australia (New South Wales Branch) (APESMA); ¨ Electrical Trades Union of Australia, New South Wales Branch (ETU); ¨ Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division (FMSCEU); ¨ The Australian Workers' Union, New South Wales (AWU); ¨ Construction, Forestry, Mining and Energy Union (New South Wales Branch) (CFMEU); ¨ The Australian Institute of Marine and Power Engineers, New South Wales District (AIMPE); and ¨ The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AFME&PKIU). 3 The matter was subject to extensive conciliation and discussions between the parties commencing on 18 October 2000, resulting in the issue of a Certificate of Attempted Conciliation on 25 February 2002 and the issue of directions to bring the matter to hearing. 4 A status quo position requiring those persons who had commenced working on a 19 day month to continue to do so on a without prejudice basis pending resolution of the dispute was set out in published statements arising from the proceedings of 19 October, 9 November and 30 November 2001. 5 Arbitration was delayed at the request of the parties pending proceedings in Matter No IRC 2211 of 2001 going to the same issues. In the event, IRC 2211 of 2001 was discontinued and the instant proceedings agitated. 6 On hearing Mr J Phillips of Counsel appeared on behalf of Delta with Mr E McLachlan. Mr A Hatcher of Counsel, instructed by Ms A McRobert, solicitor, appeared on behalf of the respondent organisations with Mr Turner of the PSA. 7 Mr Hatcher brought evidence from Mr Turner, Senior Industrial Officer of the PSA. 8 Mr Phillips brought evidence from Mr Paul Blume, employed by Delta as General Manager/Human Resources; Mr Brian Roby, employed by Delta as Asset Manager/Western Production; Mr Vincent Reedy, employed by Delta as Team Leader Instrumentation, Control & Electrical/ Assets/Western Production; and Ms Mary Woodcock, employed by Delta as Workers' Compensation and Recruitment Manager. STRUCTURAL FRAMEWORK 9 The generation and transmission of electrical power in the state of New South Wales was carried out by the Electricity Commission of New South Wales ("the EC") from the formation of that body in 1952. The EC was established by the Electricity Commission Act 1950. 10 The EC became known as Pacific Power by amendment to the Electricity Commission Act 1950, the legislation subsequently titled Electricity (Pacific Power) Act 1950. Pacific Power continued to be the sole generator of electricity within New South Wales. 11 In 1996 Pacific Power was "disaggregated" by legislative imperative, resulting in the establishment of three entities undertaking the generation of electricity, one of which is Delta. The others are Macquarie Generation and Pacific Power which was subsequently further separated into Pacific Power and Eraring Energy. A further body, known as TransGrid, is responsible for the transmission of electrical power. 12 Delta operates power stations on the Central Coast of New South Wales at Munmorah and Vales Point; and in the Lithgow area at Wallerawang and Mt Piper. RELEVANT AWARD PRESCRIPTION 13 The relevant award is the Delta Electricity Employees Award 2001 332 IG 771 ("the 2001 award"), made by the Commission as presently constituted by consent of the parties to apply from the first pay period to commence on or after 8 June 2001 and to remain in force until 11 March 2003. 14 The particular provisions of the 2001 award central to the present dispute are Clause 6, Hours of work, and Clause 24, Local workplace flexibility. These provisions are in the following terms: 6. Hours of Work Hours of Work 6.1 The ordinary hours of work for day workers will not exceed 35 hours per week or 70 hours per fortnight where a nine-day fortnight is observed. Ordinary hours for shift workers are in 10.3. How are working 6.2 The commencing and finishing times for each hours determined? day are determined by local management in consultation with affected employees or their representatives taking into account the needs of the business. Hours for day 6.3 Day workers are employees who work their workers ordinary hours from Monday to Friday inclusive and who are not entitled to a paid meal break during their ordinary working hours. The span, of ordinary working hours for day workers is 7:00am to 5:30pm, Monday to Friday. Flexible or 6.4 Employees working at Head Office may elect staggered to work a flexible or staggered working hours - working hours system in accordance with procedures set down by Delta Electricity. Accrual of 6.5 Employees engaged on flexitime, staggered days off working hours or a nine day fortnight may elect to accrue up to a maximum of 5 flexidays, rostered days off or special days off for the purposes of taking time off for any reason including time off to attend to family related matters. The time off will be on a date agreed to by employees and local management. 24. Local Workplace Flexibility Intention 24.1 This clause is intended to provide the means by which the conditions of employment may be varied as a result of an arrangement which is agreed at the local workplace and by the affected and relevant union/s. What clauses 24.2 A local workplace agreement provides for maybe varied? flexibility in the conditions of employment in relation to the provisions of this Award and in accordance with the following: (a) Within the award span of hours for day workers, work may be extended outside of the normal hours for that day and the number of additional hours worked taken off at a later time. The ordinary hours accumulated must not exceed a total of 35 hours. (b) Except as provided in (a) above, the hours of work cannot be altered so that they exceed the maximum ordinary hours allowed in 6 - Hours of Work. (c) The meal break provisions of the award relating to work in ordinary hours shall not be varied in local workplace flexibility agreements. (d) The provisions in (a) and (b) above do not prevent a local workplace flexibility agreement from providing for work to commence from 6.30 am. Requirements 24.3 A local workplace agreement shall only provide for negotiation for flexibility of award and employment conditions where the following requirements have been complied with: (a) The majority of employees affected agree after taking all views into consideration including the need to maintain effective working relationships. (b) The agreement is not contrary to any law and does not jeopardise safety. (c) The agreement will improve efficiency and/or customer service and/or job satisfaction. (d) The employees are not disadvantaged when the agreement is viewed as a whole. (e) The appropriate union has acknowledged the agreement reached with the employees concerned. (f) Managers shall give fair consideration to requests from staff for flexible work arrangements and ensure that work arrangements do not discriminate or work against particular employees. Where 75% of union members affected by a proposed workplace flexibility agreement vote in favour of the agreement, the relevant union/s' agreement is not required under clause 24.1. 24.4 Individual employees may opt out of an agreement if its operation will cause him/her genuine personal or family hardship. Transfer to another equivalent position will be considered in these circumstances. Term of an 24.5 A local workplace agreement will expire after agreement three months. A renewal of an agreement may have a longer term as agreed between the parties to that agreement. 24.6 A local workplace flexibility agreement will not be used as a precedent in other local workplace flexibility agreement discussions or negotiations. 24.7 Any party may refer any difficulties arising under this clause to the Labor Council of New South Wales THE EVIDENCE 15 The evidence of Mr Turner is that he is a Senior Industrial Officer of the PSA and has been responsible for providing services to members engaged in the power industry for approximately 10 years. 16 Mr Turner deposed that he first became aware that Delta was advertising jobs in power stations on a 19 day four week work pattern (colloquially referred to as the 19 day month) in approximately 1996. His evidence is that on his understanding, the option to work a 19 day month was and is confined to employees engaged in head office, which on his evidence was Pacific Power Tower on the corner of Park and Elizabeth Streets, Sydney. 17 Mr Turner's evidence is that when he became aware of these circumstances he raised the matter with other unions and the Labor Council, resulting in ongoing discussions with Delta concerning the issue, culminating in these proceedings. 18 Mr Turner's evidence canvassed the history of introduction of the 37½ hour week, and subsequently the 35 hour week, into the EC, then the single power generation entity in the state of New South Wales. 19 Mr Turner's evidence is that subsequent to the disaggregation of the EC and the concurrent establishment of Delta (and others), Delta has sought the introduction of a provision allowing a 19 day month into the award. 20 Mr Turner deposed that the introduction of award prescription specifically providing for the working of a 19 day month were rejected by the Labor Council and unions and not pursued by Delta. 21 Mr Turner advised that he subsequently became aware of a position adopted by Delta management to introduce the 19 day month in all circumstances where it is perceived necessary for business needs. Mr Turner's evidence is that the business need has never been specified, nor substantiated by Delta. 22 Mr Turner deposed that the PSA is aware of employees who have voluntarily moved to a 19 day four week working pattern and other arrangements, putting that: "This can be negotiated and discussed under the flexibility clause of the award and the PSA has no problem with that approach by agreement between employer and employees. We oppose any unilateral change forced on employees by having to: a) apply for a job that has the new arrangement; or b) being denied incremental advancement within the current job without agreeing to a change to a 19 day month." 23 The evidence of Mr Blume is that he commenced employment with the EC in 1978 and is now employed by Delta as the General Manager/Human Resources. 24 Mr Blume deposed that he has been involved in all of the consultation and negotiation with the Labor Council and affiliated unions concerning Delta's desire to introduce a 19 day month within Delta. 25 Mr Blume's evidence details discussion and correspondence between Delta, the Labor Council and unions in 1996, 1997, 1998 and 1999 concerning the working of the 19 day month, including dispute proceedings before Mr Commissioner Cambridge in April 1999 and April 2000 in Matter No IRC 1113 of 2000 which failed to resolve the issues. 26 Mr Blume's evidence is that on expiry of the Delta Electricity Award 2000 319 IG 40 ("the 2000 Award") on 13 March 2001 the Labor Council and unions proffered a claim that the replacement award should have a 9 day fortnight as the base form of employment; whilst Delta proposed that the award to be made should formally recognise the working of a 19 day month. 27 On 27 February 2001 Delta tabled a proposed revision of the Hours of work clause in pursuit of their position. The provision sought by Delta are found in at Attch V of Ex 5 in the following terms: Hours of Work 6.1 The ordinary hours of work for day workers will not exceed: (a) 35 hours per week; or (b) 70 hours per fortnight where a nine-day fortnight is observed; or (c) 140 hours per four weeks Ordinary hours for shift workers are in 10.3. 6.2 For the term of this Award, employees working a nine day fortnight will not move to a 140 hours per four weeks working pattern other than in the following circumstances: (a) by agreement; or (b) for administrative, professional and engineering officers, in accordance with Delta Electricity's policy for working a 19-day four week work pattern. 28 In the event, there were no changes to the hours of work provision from the 2000 Award to the 2001 Award, the current industrial instrument. 29 Subsequent to the making of the 2001 Award by consent, discussion and disputation continued between the parties concerning the working of a 19 day month and Delta's policy. 30 Correspondence dated 17 September 2001 from Delta to the Labor Council, tendered within Mr Blume's affidavit of evidence (Ex 5 Attch. X), describes the position advanced by Delta at that time in the following terms: Proposed 19 Day Month Changes Further to recent discussions between Delta and Union representatives and our discussion today it appears that there is some confusion in relation to changes being proposed to Delta's 19 day month policy which I would like to clear up. The proposed changes apply to Administrative, Professional and Engineering Officers working a nine day fortnight. Other employees, such Powerworkers, Tradespersons or those working shiftwork, will not be impacted. Delta proposes to introduce the changes progressively allowing many staff to advance to a higher salary point before the changes apply to them. The changes will be introduced as follows. There is no change proposed for those employees who are already working to these arrangements (for example, those in Corporate Office, those in field locations who are direct reports to an Executive Manager or who are in the range SP 33 to 34 or above). 1. From now, all Administrative, Professional and Engineering Officer appointments at SP 28 and above and progressions to PR2 (Superior performance level) to SP 30 and above. 2. From 1 February 2002, all other Administrative, Professional and Engineering Officers appointments to another salary point range and progressions to PR2. 3. From 1 February 2002, all Administrative, Professional and Engineering Officers above SP 30. These are team leaders or senior team members. They will be asked to move to a 19 day month as employees below them move progressively to a 19 day month. Staying on a nine day fortnight may involve a change in duties. The 19 day month is a compromise that has less adverse business impact whilst recognising the benefits to employees of having some working time off for personal and family needs. In addition, a 19 day month allows for a shorter working day and brings with it the opportunity for greater flexibility in starting and finishing times. 31 The number of people above SP 30 then working on a nine day fortnight are set out in an attached table in the following terms: CURRENT POSITIONS ABOVE SALARY POINT 30 WORKING 9 DAY FORTNIGHT Classification Mt Piper/W'wang Vales Pt/MM Maintenance Services Administrative 4 2 1 officer Engineering 8 1 7 Officer Professional 16 13 8 Officer 32 Mr Blume's evidence is that subsequent to this correspondence there were a number of discussions between Delta, the Labor Council and unions involving the advancement of "without prejudice" propositions which also failed to resolve the matter. 33 Mr Blume deposed that business needs are detailed in a document titled "Corporate Standard, Standard Procedure For Working A 19-Day Four Week Working Pattern" (Ex 5 Attch. EE) communicated to the Labor Council and unions on 22 January 2002 subsequent to attempts at conciliation in this matter and Matter No IRC 2211 of 2001 before the Commission as presently constituted. These are set out in Point 2, Criteria and consultation of Attch EE to Ex 5 in the following terms: 2. CRITERIA AND CONSULTATION Clause 6.2 of the Delta Electricity Employees Award provides: The commencing and finishing times for each day are determined by local management in consultation with affected employees or their representatives taking into account the needs of the business. Delta is operating in a commercial environment, which means there is an increasing need for staff to be available at work on more days than the 9-day fortnight provides. Most office-based staff have customers who may require their services on five days a week. This means that, in general, a 19-day four-week pattern is one that better suits Delta's business needs than a 9-day fortnight. In determining the hours of work pattern for a position consideration will be given to a range of business needs factors including the following: · Extent and nature of contact with people external to Delta; · Extent and nature of contact with other Delta people; · Extent and nature of contact with senior staff; · Extent and nature of contact with shift work staff; · Involvement of the position in team and other meetings; · Role in terms or projects; · Management/Team Leader responsibilities; · Involvement in budgeting processes; · Provision of support for operating and maintenance staff; · Working pattern for the Team Leader and other positions within the team; · Size of the team. On this basis a 19-day or 20-day month or a 9-day fortnight may be appropriate for Administrative Officers, Professional Officers and Engineering Officers not working shiftwork. Any change in work pattern will be made in consultation with staff or their representatives, as appropriate, in accordance with Clause 6.2 of the Award. Delta will advise the Labor Council with 14 days notice of any new or re-evaluated positions in field locations that it is Delta's intention to advertise internally on the basis that the successful applicant work a 19-day month. Where there is no change to current working arrangements the position will be advertised without such notice to the Labor Council. Where it is Delta's intention to move an individual to a 19-day month at a field location other than by advertising the position, such move will be done in consultation with the individual concerned. 34 This document also detailed the method of working a 19 day month in the following terms: 3. DEFINITION Bandwidth is the span of hours within which the daily hours, excluding overtime, may be worked, and is 7.00 a.m. to 5.30 p.m. 4. CONDITIONS 4.1 The nominal hours for each normal working day are 7 hours 25 minutes (see table below for calculation). 4.2 A targeted start and finish time is determined by Delta in consultation with each employee. By agreement with their Team Leader these times may be varied on a daily basis (within the bandwidth) consistent with a 140 hours four-week period. Subject to meeting these requirements, an employee may accrue one ROS day per period (to a maximum five days). Annual leave and public holidays during a period do not affect the accumulation of ROS days. 4.3 The taking of ROS days should be agreed with the Team Leader, consistent with business needs and having regard to the individual's wishes. With Team Leader agreement: · ROS days may be added to the start or end of a period of leave; · Half-ROS days may be taken. 4.4 Employees should take one roster day per four-week period, but may accrue up to five ROS days. Once five days are accumulated a person may continue to work a 19-day work pattern but must take a ROS in each subsequent period (to avoid exceeding the maximum five days that may be accumulated). If, for any reason (including personal reasons, illness or work requirements), a person with five days already accumulated, is unable to take a ROS in a period then that day may be carried forward into the next period. However, for that and subsequent periods until the carryover ROS is taken, the person will work a 20-day month work pattern based an a seven hour day. Once the carry-over ROS is taken the person may revert to a 19-day four-week work pattern from the next period. A person working a 20-day work pattern still has the flexibility to vary their work times as set out in 4.2 above. 35 It is Mr Blume's evidence that he regards the current arrangements in which Delta is progressively moving staff to the 19 day month to be appropriate and equitable, describing the process at para 49 of Ex 5 in the following terms: 49) I consider that the current arrangements under which Delta is progressively moving staff to a 19-day month are appropriate and equitable. In most cases, employees move to the 19-day month associated with a promotion, or salary increase, or some other benefit (such as access to a vehicle for their private use [either for travel to and from work or full private use]). Where a position is to be advertised with a 19-day month, two weeks notice is provided to the Labor Council to enable consultation. If no agreement is reached, a notation is placed with the advertisement that the position will be required to work a 19-day month, subject to any change thereto in arbitration proceedings. In all such movements, the business needs (as outlined in attachment "EE") are considered by senior management before deciding how the position will be filled. 36 In a further affidavit (Ex 6) Mr Blume addressed the assertion that the working of a 19 day month was and is confined to head office, being the building located on the corner of Park and Elizabeth Streets, Sydney. He deposed that prior to disaggregation of Pacific Power, the successor to the EC, approximately three thousand staff were located at head office. 37 Mr Blume's evidence is that Delta currently employs approximately 750 staff and has no head office as such, with many of the functions formerly undertaken in the city now deployed to Delta's power stations. Mr Blume deposed that Delta has structured its business into four groups, which he identified as Corporate, Western Production, Central Coast Production and Maintenance. His evidence is that of the 55 award based staff attached to the Corporate Group, 25 are located at power station sites. 38 Mr Blume reiterated the policy position of Delta limiting the requirement to convert to a 19 day month to a relatively small range of engineering, professional, technical and management staff, generally but not exclusively at senior levels where business needs require. 39 Mr Blume deposed that a number of arrangements have been made by negotiation which afforded staff working a 19 day month to accumulate up to five rostered days off to be taken as a single period of leave or added to annual leave or public holidays by mutual arrangement the employee and immediate supervisor and/or relevant sectional management. 40 Mr Blume deposed that these arrangements provide a flexibility of significant benefit to the employees concerned. 41 Attch A to Ex 6 (evidence in reply by Mr Blume) sets out the number of administrative officers, engineering officers and professional officers working a nine day fortnight, 19 day month and 20 day month by organisational unit in each of the four sections of Delta. 42 The utility of this evidence is challenged by Mr Turner on the basis that it does not reveal whether employees came to a 19 day month by historically working that pattern in head office, by negotiation, promotional criteria, or conditional on employment. 43 The evidence of Mr Roby is that he is employed by Delta as the Asset Manager/Western Production and as such is responsible for engineering management at Mount Piper and Wallerawang Power Stations. 44 Mr Roby works a 20 day month, or a conventional five day week, and has in his team a number of people working a nine day fortnight, 19 day month, and 20 day month. 45 Mr Roby's evidence details the communication required between his staff, internal clients and external clients, which he deposes supports the business need for the working of the 19 day month. 46 Mr Reedy is employed by Delta as the Team Leader Instrumentation, Control and Electrical/Assets/Western Production and reports to Mr Roby. Like other Team Leaders, he works a 20 day month or conventional five day week. Within Mr Reedy's team are a number of people who work a 19 day month or 9 day fortnight. 47 Mr Reedy's evidence is that he moved to a 20 day month in July 1999 consequent upon negotiation of a new contract of employment with Delta, which included full private use of a motor vehicle supplied and maintained by Delta. Mr Reedy deposed that he accepted the 19 day four week work pattern as it demonstrated his commitment and flexibility to Delta and made him more available to his customers. 48 Mr Reedy provides an analysis of the advantages of the 19 day month and the difficulties arising from the working of a nine day fortnight. 49 Ms Woodcock is employed by Delta as the Workers Compensation and Recruitment Manager and reports to Mr Blume. 50 Ms Woodcock deposed that she commenced working the 19 day month in December 2000 when her position was re-evaluated on the addition of recruitment duties to her responsibilities. Ms Woodcock deposed that her position requires a substantial amount of travel, resulting in her frequent absence from any one location on an irregular and extended basis, in turn requiring a greater flexibility by other staff members than possible on a nine day fortnight in order to maintain communication. 51 Ms Woodcock's evidence is that she consistently works in excess of 35 hours per week including substantial amounts of unpaid overtime in order to meet job requirements to the standards she has set herself. This evidence gives rise to concern in respect to reasonable hours and reasonable task type issues which should be subject to review and consideration. 52 Ms Woodcock deposes that there are two employees reporting directly to her, one of whom works a 9 day fortnight and the other a 19 day month, which she asserts results in communication and equity issues. SUBMISSIONS 53 Mr Hatcher submitted that the issues in dispute are swiftly resolved by reference to clause 6, Hours of work, of the 2001 Award, which he contends does not permit the working of a 19 day, four week cycle; and accordingly Delta should be directed to regulate its affairs consistent with the award. 54 Mr Hatcher contends that clause 6.4, which allows flexible or staggered work hours for employees at head office, is a reference to the former Pacific Power, and later Delta, head office in Sydney; is not relevant to employees engaged on power station sites or outside the Sydney Central Business District; and accordingly has no relevance to the employees subject to the instant proceedings. 55 Mr Hatcher notes that clause 6.5, which permits accrual of days off, only applies to those working in accordance with clause 6.4 and is equally inapplicable to the employees subject to these proceedings. 56 Mr Hatcher referred to the evidence of the proposed clause sought by Delta, which was put in the following terms: 6.1 The ordinary hours of work for day workers will not exceed: (a) 35 hours per week; or (b) 70 hours per fortnight where a nine-day fortnight is observed; or (c) 140 hours per four weeks. Ordinary hours for shift workers are in 10.3. 57 Mr Hatcher submits that this clause, if implemented, would have accommodated the pattern of hours sought by Delta, the fact that it was not leading to the conclusion that the arrangements Delta seeks to pursue are not open to it. 58 Mr Phillips also referred to clause 6 of the 2001 Award, submitting that apart from the nine day fortnight possible working patterns for a day worker are numerous. He provided five examples, two of which involved the working of a 19 day month. The five examples are: a) A 4-day week; b) A five day week; c) A 19-day four-week pattern comprising three weeks of 35 hours worked over 5 days per week and a fourth week of 35 hours worked over 4 days; d) A 19-day four-week pattern comprising two weeks of 35 hours worked over 5 days per week and then a 9-day fortnight; or e) A 20-day four-week pattern comprising 35 hours each week, worked over five days per week. 59 Mr Phillips submitted that the nine day fortnight was introduced as one of the possible working patterns for day workers on introduction of the 37½ hour week. He relied upon the detail of the agreement introducing the 37½ hour and 35 hour weeks made between the Government of New South Wales, the Labor Council and affiliated unions in December 1980, found in attachments to Mr Turner's statement of evidence (Ex 3). 60 Mr Phillips put that the relevant provision of the agreement is clause 5, Rosters and time off, which states: ROSTERS AND TIME OFF (a) General Additional time off as a result of the adoption of a 37½ hour week and the working of other than 7½ hours per ordinary working day or ordinary shift shall be taken off at an appropriate time and not later than 14 days after the date on which the day became due provided, that when holidays or days in lieu thereof fall on consecutive days, or when there is a breakdown of equipment affecting the Electricity Commission's generating capacity, or in the case of other emergency, such day off may be deferred for a period not exceeding 28 days. (b) Day Workers (i) Special Day off- Major Groups, Minor Groups The working of a nine day fortnight may be arranged by the Commission so that on one day each fortnight the majority of employees are granted time off and on an alternative day, the remaining employees are granted time off. This grouping of the workforce into major and minor groups will be arranged so as to provide a plant maintenance coverage each week, Monday to Friday, at the establishment concerned. (ii) Nine Day Fortnight At each location where a nine day fortnight is preferred by the majority of employees and the Electricity Commission agrees thereto arrangements will be made to introduce an eight hour twenty minute day as an ordinary working day. At locations where the method of working is an eight hour twenty minute day the Electricity Commission shall allow one day each fortnight as a special day off, which providing the needs and efficient functioning of the Electricity Commission will allow shall be observed on a Monday. If this special day off falls on a public holiday the Electricity Commission will allow an alternative day off by mutual arrangement. Should agreement not be reached the Electricity Commission shall determine which day shall be allowed as the day off. (iii) Other than a Nine Day Fortnight Where it is mutually agreed employees may work other than as outlined in (b)(ii) above, e.g. work extended hours and accumulate time towards a special day off over a longer period than a fortnight. 61 Mr Phillips submitted that the inclusion of item (iii) in this agreement clearly provided for the working of other than a nine day fortnight, which he put embraced the 19 day month. 62 Mr Phillips put that the proposition advanced by Delta for the inclusion of clause 6.1 into the award as detailed above was not an acknowledgment that the 19 day month is in breach of the award, rather a proposition that the award should formally recognise the working of a 19 day month, one of a number of practices implemented pursuant to item (iii), Other than a nine day fortnight, in the fundamental agreement giving rise to the reduction in working hours set out above. 63 Mr Phillips submitted that Delta has a history of permitting flexible working hours in line with its employees wishes, subject to the needs of the business, which he put is the foundation of the working of a 19 day month and the manner in which it continues to be implemented and performed. 64 Mr Phillips put that the Labor Council's submission introduces excessive rigidity into the working arrangements and that in all of the circumstances it would be against public interest to issue directions of the type sought. 65 Mr Phillips put an alternative submission that should the Commission find that Delta is in breach of the award, an appropriate resolution of the dispute would be to vary the 2001 award to provide for a 19 day, four week work pattern for day workers in the terms of Attch V to Mr Blume's affidavit (Ex 5). 66 Mr Phillips put that an inability to offer employees the option of a 19 day month would, where business needs dictate, require the working of a 20 day month or conventional five day working week, which he contended would be to the disadvantage of employees concerned. 67 Mr Hatcher opposed the remedy sought by Mr Phillips, submitting that it would be inappropriate and contrary to the scheme of the Act for the 2001 award to be varied in these proceedings in the terms proposed. 68 Both parties sought determination in respect to fundamental issues, putting that once decided, the Commission should further engage the parties in conciliation with the benefit of the determination arising from this matter. CONSIDERATION 69 This matter, as argued by Mr Hatcher, turns upon the proper application of clauses 6 and 24 of the 2001 Award. This is a simple proposition which ignores some years of discussion and negotiation, albeit fruitless, between the parties on the issue. 70 Clause 6 of the 2001 Award, which remains in its nominal term, prescribes the scope and method of working ordinary hours available to the employee. Clause 24 prescribes scope for local flexibility agreements to be made in a specified form. 71 There is no dispute that during the course of negotiations leading to the making of the 2001 award Delta sought amendment of Clause 6 to include the working of a 19 day month by accrual within the scope of ordinary hours. This was not agreed and not pressed and accordingly Clause 6 as it currently stands does not permit the working of a 19 day month by accrual other than in Head Office or by agreement pursuant to Clause 24 of the award. 72 A 19 day month may be worked within the constraints of no more than 35 ordinary hours per week in the manner advanced by Mr Phillips, however, this is neither the intention nor desire of the employer nor employees as accrual of time off up to a maximum of five days is an integral component of the benefit for all parties. Clause 24 Agreements 73 Clause 24 allows for specific exception to Clause 6 and prescribes the process by which those arrangements must be made. 74 Arrangements to work a 19 day four week work pattern pursuant to clause 24 of the Award are not contested. The validity of these arrangements are sustainable having regard to the provisions of clause 24.2(a) which specifically allows accumulation of up to 35 hours to be taken off at a later time. 75 Both Mr Hatcher and Mr Phillips relied upon examples of flexible working arrangements negotiated between Delta and employees pursuant to clause 24 of the award. It is not necessary to detail these arrangements here, it is sufficient to note that the arrangements are quire varied and in many cases personalised. 76 It is desirable that where these arrangements are made they be formalised by appropriate documentation. Promotional Criteria 77 The award does not sanction the imposition of a 19 day four week work pattern as a promotional criteria. The achievement of one or more additional salary points in recognition of performance based solely upon a willingness to alter working hours is an undesirable manner of recognising achievement and brings with it a taint of duress which is to be avoided. However, agreement to a particular working pattern pursuant to the mechanism prescribed by Clause 24 of the 2001 Award is not prohibited from being a factor. Performance should properly be judged on output and achievement not the input of hours worked or the method of working those hours. Head Office 78 I accept the argument advanced by Mr Hatcher that the current award provisions referring to Head Office are relevant to a Sydney Central Business District location, not by job type or function. 79 I am assisted to this conclusion by the evidence of Mr Blume that when this provision was first applicable to the Head Office of the EC it applied to some 3,000 employees at that location. 80 It is safe to consider that the salary range and functions found within those 3,000 employees was diverse, most probably encompassing staff at both ends of the salary spectrum. 81 This diverse range of function and responsibility mitigates against a finding that the provision was introduced to meet business needs and suggests that issues of logistics, including access to public transport and other CBD services, may have been more prominent in consideration. 82 Clause 6.4 of the 2001 award continues to refer to "Employees working at Head Office" [emphasis added] which is a reference to a specific geographic location. There is no aspect of clause 6.4 which could be regarded as a functional descriptor. 83 The reduction in number and relocation of specific tasks to power station sites emerges as an issue hitherto unaddressed in this award. I note the example of the Eraring Energy Employees Consent Award 2001 326 IG 286 advanced by Mr Hatcher. The evidence brought by Delta of business need and current practice clearly supports a finding that there are genuine business needs which support the continuation of a 19 day four week work pattern in respect to functions transferred to site. This should be appropriately acknowledged in the award. Advertisement of New and Vacant Positions 84 In the absence of provision within clause 6 of the 2001 Award to allow the working of a 19 day month by accrual, it is not open to Delta to advertise positions covered by the Award on this basis. However, there is nothing in the Award to prevent Delta from advertising these positions on a 20 day four week pattern. 85 It is plain from the evidence that there is a genuine desire by some employees to work a 19 day four week work pattern by accrual, and acknowledged business advantages to the employer where that occurs. 86 It is my view that the award should be varied to enable such arrangements to be made. It is equally desirable that such variation be by consent of the parties arising from genuine negotiation between them. Variation of the Award 87 There is no impediment imposed by the Act to variation of the award in these proceedings, however, a variation of the type sought here should be approached with caution. Having regard to the mutual request by the parties for further conciliation post this decision, I refrain from variation of the Award. 88 This matter is stood over to allow the parties to consider the findings made herein. The matter will be listed for further conciliation at the request of either party or by the Commission on its own initiative in the event that the parties make no request prior to 28 February 2003. oo0oo 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.