Industrial Relations Commission of New South Wales CITATION: The Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority [2007] NSWIRComm 162 APPLICANT PARTIES: The Australian Rail, Tram and Bus Industry Union, New South Wales RESPONDENT State Transit Authority FILE NUMBER(S): IRC 66 of 2007 CORAM: Harrison DP CATCHWORDS: Notification under s 130 of industrial dispute re rostering arrangements - Roster principles determined by industrial agreement - interpretation of agreement - revenue protection officers rostered to work public holidays assert agreement gives them right to work. Held - Master roster sets pattern of work, period roster is work required to meet operational needs - roster principles do not restrict consideration of business needs in construction of period roster - process of consultation supported by roster principles does not relieve management of obligation to determine operational requirements - work on public holidays is management prerogative subject to business needs - revenue protection officers should expect to observe public holiday unless required to meet operational requirements. LEGISLATION CITED: Industrial Relations Act 1996 Transport Administration Act 1988 Re Cram, ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 CASES CITED: BHP Steel (AIS) Pty Ltd v Federated Iron Workers Association of Australia [1994] NSWIRComm 127 BHP Steel (AIS) Pty Limited v Federated Ironworkers' Association of Australia, New South Wales Division (IRC94/228, Hungerford J, 7/11/94 unreported), HEARING DATES: 24/5/07 DATE OF JUDGMENT: 29 June 2007 APPLICANT Mr G Panigiris RTBU LEGAL REPRESENTATIVES: RESPONDENT Ms E Allen STA JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 29 June 2007 Matter No IRC 66 of 2007 Notification under section 130 by The Australian Rail, Tram and Bus Industry Union, New South Wales of a dispute with the State Transit Authority re rostering arrangements DECISION [2007] NSWIRComm 162 1 This matter was initiated by notification of a dispute pursuant to section 130 of the Industrial Relations Act 1996 ("the Act") by The Australian Rail, Tram and Bus Industry Union, New South Wales (RTBU) on 19 January 2007. 2 The terms of the dispute are set out in Schedule A to the notification in the following terms: 1. This dispute concerns a failure by the State Transit Authority (the STA) to comply with clause 23 "Dispute Settling Procedures" of the Agreement. 2. The RTBU is currently in dispute with the STA in relation to rostering arrangements for the upcoming Australia Day weekend for Revenue Protection Officers employed within the Revenue Protection Unit based in Newcastle. Revenue Protection Officers are employed in an audit role associated with the selling of tickets on STA buses. 3. That dispute concerns the application of the rostering provisions dealt with in cl 82 of the Agreement. The dispute is ongoing and is currently at Step 5. 4. Clause 23.5 of the Agreement provides: "While a dispute is being dealt with under one of the preceding paragraphs in this sub-clause work must continue without disruption and work practices, which existed prior to the dispute, shall apply , except where they involve the application of provisions in an industrial instrument". 5. STA has indicated that it will direct the employees at the heart of the rosters dispute that they are not required to work on the upcoming public holiday. The RTBU maintains that there is a well established custom and practice that has Revenue Protection Officers working on public holidays. 6. The failure to adhere to this well established custom and practice is contrary to the clear language of cl 23.5 of the Agreement (the status quo provision). The failure to adhere to the status quo provision has become an additional issue that itself, in the RTBU's view, is of sufficient importance to warrant an immediate referral to the Commission. The RTBU respectfully requests that the Commission list this dispute at its earliest convenience in Sydney. 3 The relevant industrial instrument is the State Transit Authority of the New South Wales Government Service Senior and Salaried Officers Enterprise Agreement ("the Agreement") approved by this Commission pursuant to the Act on 9 May 2006. 4 Commissioner Macdonald convened compulsory conference proceedings on 22 January 2007 which established that the dispute was not capable of resolution by conciliation. 5 The Commissioner issued a Certificate of Unsuccessful Conciliation, made directions for the filing and service of relevant material for arbitration, and scheduled the matter for hearing on 16 and 17 April 2007. 6 The parties sought relocation of the proceedings to Newcastle and the matter was reallocated to the Commission as presently constituted, requiring a revision of directions resulting listing of Hearing on 24 and 25 May 2007. 7 Mr G Panigiris appeared on behalf of the RTBU with Mr D Blair. Ms E Allen appeared on behalf of the State Transit Authority (STA) with Ms J Willingham. 8 At the outset of the Hearing the RTBU sought leave to withdraw, submitting that roster issues generally were subject to proceedings before his Honour Justice Marks in Matter No IRC 110 of 2007. The application was opposed by the STA, which put that the instant matter was not directly part of the proceedings in IRC 07/110 and that the dispute required resolution. 9 The application to withdraw from proceedings was refused. 10 Mr Panigiris brought evidence from Mr David Blair, a Revenue Protection Officer (RPO) based in Newcastle; and Mr Alan Karam, an RPO based in Sydney. 11 Ms Allen brought evidence from Mr Edwin (Ted) Barker, Depot Manager, Hamilton Newcastle Bus and Ferry Services; and Mr Paul Welzel, Manager, Revenue Protection Unit, STA. 12 The relevant provisions of the Agreement are: Disputes Procedure: 23.4 Nothing in this sub-clause prevents the making of an agreement to refer a dispute to a step other than the one next in sequence, in order to accelerate resolution or for some other reason; or the reference of a dispute to the relevant industrial tribunal for urgent resolution. 23.5 While a dispute is being dealt with under one of the preceding paragraphs in this sub-clause work must continue without disruption and work practices, which existed prior to the dispute, shall apply, except where they involve the application of provisions in an industrial instrument. Roster Principles: 82. REVENUE PROTECTION UNIT ROSTER PRINCIPLES 82.1 These principles only apply to those Employees that are classified or are acting in the positions of Senior Revenue Protection Officers (SRPO) or Revenue Protection Officers (RPO) and will be rostered one hundred and fifty-two (152) ordinary hours in a four (4) week cycle. 82.2 Employees will be rostered one (1) ADO in each four (4) week roster cycle. CONSULTATION 82.3 In the construction and maintenance of rosters management will consult with Employees. 82.4 When consulting with Employees the following issues should be considered: § Occupation, Health & Safety. § Carer's responsibilities. § Impact upon the family and social responsibilities of the affected Employee. MASTER ROSTER 82.5 A master roster is the template that all period rosters are based upon. INTRODUCTION OF MASTER ROSTERS 82.6 In order to meet changing customer, operational and commercial requirements, it is necessary from time to time to alter rosters to cater for changed circumstances. 82.7 Master rosters shall be adjusted on the provision of twenty-eight (28) days notice up to a maximum of twice per calendar Year, except in exceptional circumstances, and in consultation with affected Employees, master rosters will be adjusted in the following manner: 82.8 On the twenty-eighth (28th) day prior to introduction, a copy of the new duty and period roster is to be given to all affected Employees and an additional copy placed on the depot notice board. 82.9 On the twenty-first (21st) day prior to introduction, concerns raised with the rosters are to be provided to the relevant Manager. During the next seven (7) days, the relevant Manager is to modify the roster on the basis of concerns raised, providing such alterations do not impact on the overall efficiency and cost of the roster. 82.10 The roster is to be displayed on the Tuesday prior to introduction. 82.11 Rosters will be worked where they comply with all relevant policies and industrial instruments. PERIOD ROSTERS 82.12 Four (4) weekly period rosters are constructed by using the master roster as the template and then making the necessary alterations to shifts or lines of work in accordance with the business needs for the ensuing four weeks. 82.13 Period rosters will be posted on the Tuesday prior to the commencement of the new period roster on the Sunday. 82.14 When constructing the period roster, if a day off pattern in the period roster is altered to be different to the master roster, affected Employees will be consulted, except during a week where a Public Holiday falls on a weekday. In such instance, the day off may be inserted into the Public Holiday. 82.15 When constructing the period roster, vacant SRPO duties will be rostered first on a rotational basis to suitable RPO's from that team of RPO's. The suitability of a RPO to act in the SRPO's position will be at the discretion of management in consultation with a SRPO and the Employee's representative. Once rostered the SRPO shift, that Employee will be deemed to be the SRPO on that shift unless a mutual swap is arranged with a SRPO whom has been rostered a DOC. 82.16 If an Employee has had approval to clear a Public Holiday, there will be no requirement to work the Public Holiday unless otherwise agreed between the Employee and Employer. 82.17 Employees may exchange shifts by mutual agreement providing management approves the exchange, the exchange will not be in breach of fatigue management principles and will be in accordance with any industrial instruments governing the Employees. 82.18 Special events shifts are to be built into the period roster where known and will also be posted fourteen (14) days prior to the event where known. When notice of a special event is obtained after the posting of the period roster, the rosters are to be altered in consultation with affected Employees. 82.19 In general, annual leave will be rostered to enable two (2) Employees (one pair) to be off at one time, except in Newcastle where existing leave arrangements apply. 82.20 When constructing the period roster, if it is apparent that there is a single cut-out line of work and this cut-out line of work is one (1) week duration (7 calendar days) or more, then that line of work will be offered to a suitably qualified Employee from the relief pool. If the cut-out line of work is less than one (1) week duration (7 calendar days), then those shifts will be DOC'd into the existing roster if there is an Employee rostered off. DAILY MAINTENANCE OF PERIOD ROSTERS 82.21 No alteration shall be made to the hours of work d any, Employee except in cases of sickness, accident, failure of duty or suspension from duty of an Employee, attendance of an Employee at court or leave, for Employees at short notice, unless the Employee is notified of such alteration on attending for duty on the shift proceeding the one altered. The notice period can be waived by mutual agreement between the Employer and Employee. If an Employee has two (2) days off together, they must be advised of any alteration of their work on the first day of their days off. 82.22 The provisions of this clause do not apply in emergencies or unforeseen circumstances. 82.23 Where the Employer makes a decision to fill a vacant Revenue Protection Officer or Supervisor's shift, the following procedures will apply: 82.24 Whilst maintaining the period roster, if cut-out work of one (1) week duration (7 calendar days) or more becomes available, then that line of work will be offered to a suitably qualified Employee from the relief pool. If the cut-out work is less than one (1) week duration (7 calendar days), then those shifts may, at the discretion of the management, be DOC'd into the existing roster following the below procedure. 82.25 When the vacant shift is to be DOC'd into the Revenue Protection Unit's Period Roster, it will be offered to the SRPO or RPO in the order of least amount of offered DOC's for the current financial year. 82.26 Should there be no SRPO or RPO rostered off on the day and management determine that the shift must be covered, overtime can be offered to SRPO's or RPO's to cover the shift providing that the extended shift does not exceed twelve (12) hours. If this overtime cannot be worked, then the shift will be rostered to a suitably qualified Employee from the relief pool. 82.27 Employees will not be called upon to work a broken shift on a Saturday, Sunday or Public Holiday. 82.28 Any Employee that attends for duty in accordance with instructions but is not required, shall receive a minimum of five (5) hours pay unless at least twelve (12) hours notice was given to them that they were not required for duty. 82.29 If an Employee commences duty and is not required for the full shift, they will receive a minimum of seven (7) hours pay. 82.30 Employees that perform shift work will have one (1) week in every three (3) away from shifts that finish between midnight and 8am. This will only occur where it is a practical option. 13 The RTBU submits that RPO's carry out important functions, identified as fare evasion; ensuring bus operators display identification; the correct sale of tickets and cash management procedures; and prevention of unruly behaviour. It is submitted that these functions are just as, or more important, on a Public Holiday as any other day. 14 The RTBU contends that departure from the master roster by alteration of a period roster to remove the requirement for an RPO to work on a Public Holiday when rostered to work on the master roster without agreement of the individual officer is not permissible under the rostering principles of the Agreement. The RTBU reserves the right of the RPO to decline work on a Public Holiday. 15 In its outline of submissions (Ex 2) the RTBU puts: 9. It is the RTBU's submission that rostering principles are in place not only for the employer to manage its business needs but also for employees to have a reasonable quality of life whilst working shift work - this is outlined in the Consultation Clause 82.3. and 82.4. 16 The RTBU seeks the following Orders: The Rail Tram and Bus Union submits the Commission grant the following Orders to settle this dispute. That pursuant to Section 136 of the Industrial Relations Act of 1996, NSW the Commission orders that: § known work shown on master rosters which is also reflected on period rosters should be worked on Public Holidays. § in the construction and maintenance of rosters - Master and Period -management will consult with employees as outlined in Clause 80.3 of the New South Wales Government Service Senior and Salaried Officers' Enterprise Agreement 2006. 17 The STA submits that it has a legislative obligation to efficient operations mandated by s 20A of the Transport Administration Act 1988, in particular s 20A Objective of STA, which states: (1) The principal objectives of the State Transit Authority are: (a) To operate efficient, safe and reliable bus services and Newcastle ferry services, and (b) To be a successful business and, to this end: (i) To operate at least as efficiently as any comparable businesses, and (ii) To maximise the net worth of the State's investment in the Authority. 18 The STA submits that job security of all employees relying upon the ability of the STA to be operationally efficient in the competitive tender for bus operation routes conducted by the NSW Ministry of Transport is an added incentive to be operationally efficient, putting that failure to secure bus routes in the tender process could have an adverse effect for all employees. 19 The STA submits that the rostering of work for RPO's on Public Holidays is a matter of managerial prerogative subject to business needs; a proposition supported by the plain and ordinary meaning of cl 82.12 of the Agreement. 20 The STA contends that management hold the responsibility to determine operational efficiency and will do so having regard to business needs, which vary between regions, depots and occasions. The STA puts that if RPO's work on a Public Holiday in one region on any occasion/s, that is not a precedent for all regions or all occasions. 21 The STA submits that an obligation to follow the master roster in an inflexible manner resulting in RPO's working on a Public Holiday not supported by business needs is not operationally efficient. 22 The STA denies any breach of the disputes procedure, submitting that there is not a custom and practice, or established operational procedure, supporting the assertion that the "status quo is that RPO's work on a Public Holiday where rostered on by the master roster". 23 The STA asserts that prior to the present dispute there was only one occasion, in 2006, when RPO's worked on a Public Holiday. 24 The STA argues that there is a functional distinction between the master roster and the period roster which can be found on the face of the Agreement and in practice. 25 The STA's position is that the master roster is a template to be used as the foundation for the period roster, constructed to meet the circumstances of the immediate four weekly cycle. 26 The STA contends that this distinction is supported by the plain and ordinary reading of the Agreement, otherwise the Agreement is illogical, ambiguous, and results in no purpose for the period roster. 27 The STA submits that the Agreement provides ample authority for amendment of the master roster in construction of the period roster to require employees to observe the Public Holiday or work as required. 28 Clause 80.14 states: When constructing the period roster, if a day off pattern in the period roster is altered to be different from the master roster, the relevant Manager will consult with affected employees, except during a week where a public holiday falls on a weekday. In such instances, the day off may be inserted in the public holiday. Clause 82.14 states: When constructing the period roster, if a day off pattern in the period roster is altered to be different to the master roster, affected Employees will be consulted, except during a week in where a Public Holiday falls on a weekday. In such instance, the day off may be inserted into the Public Holiday. 29 The STA notes that the requirement to consult does not require agreement. 30 The STA opposes the Orders sought by the RTBU as being inconsistent with the Agreement and having potential to give rise to additional disputes about the consultative process. 31 The STA relies upon Re Cram, ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117; BHP Steel (AIS) Pty Ltd v Federated Iron Workers Association of Australia [1994] NSWIRComm 127; BHP Steel (AIS) Pty Limited v Federated Ironworkers' Association of Australia, New South Wales Division (IRC94/228, Hungerford J, 7/11/94 unreported), which caution against intervention by the Commission in matters of efficiency of operations. 32 The STA accepts that there is authority for the Commission to intervene where employees are put in harsh, onerous or unreasonable circumstances; however, submits that there is no disadvantage to an RPO required to take a day off to observe a Public Holiday. 33 The STA seeks a Determination and Orders in the following terms: State Transit is seeking a Determination and Order of the Commission in the following terms; Determination that; l.) There is no requirement in the Enterprise Agreement that the Period Roster reflect the exact shifts of the Master Roster, and 2.) There is no requirement in the Enterprise Agreement that Revenue Protection Officers be rostered to work on Public Holidays, and 3.) Management has the prerogative to roster Revenue Protection Officers in Newcastle according to business needs, and Order that; 4.) That from the time these orders take effect, the parties to the dispute must refrain from engaging in bans or any other industrial action in relation to rostering of Revenue Protection Officers on public holidays, and 5.) The Rail, Tram and Bus Union, its officials, employees and delegates must take all necessary steps to ensure these orders are complied with, including but not limited to advising members to whom the dispute relates, and 6.) These Orders take effect from <insert date of decision> and shall remain in force until the termination of the Senior and Salaried Officers' Enterprise Agreement 2006. 7.) Any other orders or directions the Commission deems appropriate. THE EVIDENCE 34 Mr Karam has been employed as an RPO in Sydney since the inception of the Revenue Protection Unit in April 2003. His evidence in this matter is by Statement (Ex 3). Mr Karam was not required for cross examination. 35 Mr Karam deposes that RPO's in Sydney work in a team of four with two officers working together. Mr Karam states that he has worked all of the Public Holidays rostered to him. 36 Mr Paul Welzel has been employed by the STA as Manager, Revenue Protection Unit from 1991. His evidence in this matter is by Statement (Ex 5) and orally in cross examination by Mr Panigiris. 37 Mr Welzel deposes that prior to employment with the STA he was employed by the NSW Police Service as a Senior Detective performing the duties of a Police Prosecutor. 38 Mr Welzel's evidence is that RPO's in Newcastle do not report to him but are responsible to the Newcastle Depot Manager. Mr Welzel puts that he may provide advice and assistance to the Depot Manager. Mr Welzel confirms the evidence of Mr Karam that RPO's in Sydney work in four person teams with two operating together, adding that there are 26 RPO's in the Sydney unit. 39 Mr Welzel's evidence is that the work of RPO's is determined by management and developed through monthly planning meetings, recommendations of RPO's, or by requests from depots or regional offices to address specific issues. 40 The evidence of Mr Welzel is that the business needs of Revenue Protection within STA varies at different times, different depots and regions. 41 Mr Welzel postulates that revenue protection requirements for events such as Australia Day celebrations may differ between Sydney and Newcastle having regard to the type and size of celebration, and at Easter where the Sydney Royal Easter Show has particular requirements associated with that event. 42 Mr Welzel provided evidence of the penalty notices issued by RPO's and the collection of fines by the Infringement Processing Bureau, noting that there are different experiences in Sydney compared to Newcastle. Mr Welzel deposed that the fare structure is a further distinction between Newcastle and Sydney in that Sydney has a section based fare structure while Newcastle has a time based fare structure. 43 Mr Welzel's evidence is that Sydney RPO's do not operate over a 24 hour seven day roster and accordingly there are times when no RPO's are rostered on services. 44 Mr Welzel confirms that the master roster for Sydney RPO's is a template which generally shows a day off pattern for the 19 day month worked without specific dates, Public Holidays, or annual leave. 45 Mr Welzel's evidence is that the master roster was established by consultation as required by the Agreement some years ago and there has been no need to revise it. The issues of annual leave, Public Holidays, starting and finishing times, work area, or other relevant issues are dealt with by a consultative process in construction of each period roster. 46 Mr Welzel desposes (Ex 5, para 38): When preparing the period roster, if a public holiday was to fall in the period roster, the senior revenue protection officer for each team is responsible for identifying if there is a need for any revenue protection officers to work on that public holiday. This information is included in the team's monthly plan when they are being prepared for my approval. If there is no justifiable need for any revenue protection officers to work on a public holiday, the officers will be given the opportunity to clear the public holiday, irrespective of what is on the master roster. 47 Mr Welzel attaches to his Statement a summary of Public Holidays rostered and worked by Sydney RPO's in 2006 (Ex 5, att. 3) which reveals that RPO's have not always been rostered to work on Public Holidays which the master roster designated as working days. 48 In response to the evidence of Mr Karam, Mr Welzel put that not all employees on a period roster are required to work on a Public Holiday, and that the days an employee may be rostered to work on a Public Holiday are irrespective of the day off pattern of the master roster. 49 Mr Welzel deposes that, while Mr Karam was rostered to work nine Public Holidays in 2006, he was not rostered to work all Public Holidays and in fact worked five Public Holidays, including one as a Day Off Cancelled (DOC). 50 Mr David Blair has been employed by Newcastle Buses from 1992, firstly as a bus operator, then from 2000 as a Customer Service Co-ordinator until taking up the position of RPO from February 2005. His evidence in this matter is by Statement (Ex 1) and orally in cross examination. 51 Mr Blair describes his duties as: a) Detection of fare evasion and assistance to the travelling public by advising of the ticketing system and pricing and the issuing of either Caution Notices or Penalty Notices as required. b) Ensuring Bus Operators are issuing the correct ticket along with the correct change to customers. c) Safety of both customers and bus operators by detecting anti social behaviour and removing the potential of escalation either by the issuing of a Penalty Notice or removal of the person or persons from the bus, at times this could require the assistance of local police. d) The job also entails ensuring all bus operators are correctly performing his or her duties, which includes correct dress, on time running as well as performance. e) Detection of an Issuing of Penalty Notice to vehicles parked within bus stops. 52 The functions of an RPO, as deposed by Mr Blair, are not directly challenged, however, the STA's evidence is that response to offensive behaviour is expected of RPO's, but it is not their primary or sole function. The STA have a roving response unit which can be called to any location required, whereas RPO's deal with such behaviour only if encountered in the ordinary course of their work. 53 Mr Blair's evidence is that the current master roster was established by negotiation between management and employees on commencement of the RPO position in Newcastle and has not been altered since. 54 Mr Blair deposes that the working of Public Holidays first became an issue in 2005 when the then Operations Manager cancelled work on some Public Holidays. Mr Blair's evidence is that this led to discussion resulting in a verbal assurance from the Operations Manager that any future Public Holidays which fell on a rostered shift would be worked. 55 Mr Blair deposes that he and his partner altered their hours of work to ensure that they could work New Year's Day from midnight to 8.00 am. Mr Blair puts that the substantial activity for that shift is mainly to remove alcohol from buses and prevent patrons from bringing alcohol on to buses. 56 Mr Blair's evidence is that management cancelled work on Australia Day 2006; then on representation from himself that RPO's in Sydney worked if rostered unless the RPO sought time off, the shift was reinstated. Mr Blair and his partner worked from 6.00 am to 2.00 pm in accordance with the master roster, though discovered that this shift did not suit revenue protection activities as it did not coincide with the Public Holiday timetable in place that day. Mr Blair and his partner carried out some administrative duties. Discussion ensued, resulting in agreement with management that starting and finishing times would be altered in the future to align RPO shift with bus operations for future Public Holidays. 57 Mr Blair deposes that over Easter 2006 management cancelled RPO work on Public Holidays, asserting that Mr Barker had informed him then "he did not want anyone booked over Easter". 58 The working of the Public Holidays over Easter 2006 was the subject of a dispute notified pursuant to s 130 of the Act (Matter No IRC 2168 of 2006) which was dealt with in compulsory conference proceedings by the Commission as presently constituted. A Recommendation was made that the shifts be reinstated and RPO's work as rostered. 59 These proceedings were concluded on 3 May 2006. A Statement issued by the Commission recorded: 3. The Commission was advised that the issue concerned roster changes for revenue protection officers over the Easter public holidays. A recommendation was made and accepted by the parties which resolved the instant dispute. 4. Proceedings were adjourned and the parties required to confer and report back on 27 April 2006 in respect to the appropriate arrangements for the future. 5. On 27 April 2006 the Commission was advised that correspondence would emanate from the STA to the RTBU as the basis for further dialogue. Mr McCarthy, appearing on behalf of the State Transit Authority of New South Wales, sought conclusion of the matter on the basis that the dispute notified had been resolved. Mr Panigiris, appearing on behalf of the RTBU, concurred. 60 The matter did not proceed to a determination and the issue was deferred on the presumption that it would not arise again until Australia Day 2007. 61 Mr Blair deposes that he discussed the matter with Mr Barker in August 2006, and was advised that there would be some Public Holidays on which work would not be required and these would be replaced by other Public Holidays on which work would be required. 62 The evidence of Mr Blair is that on posting of the period roster it was revealed that management had altered the master roster to show RPO's observing a Public Holiday on Australia Day 2007 rather than attend for work. This led to discussion in early January 2007 in which Mr Blair was advised that business needs did not require RPO's to work on Australia Day 2007. 63 It is Mr Blair's evidence that when the nature of business needs was questioned the General Manager and Acting Operations Manager replied: "We do not have to explain our rationale to you". 64 Mr Barker refutes this assertion, deposing that the response was that the subject matter of the dispute was not to debate management's interpretation of business needs, but the capacity of management to depart from the master roster to meet business needs in constructing the period roster. 65 Mr Blair asserts that an agreement was reached that the dispute would be subject to notification pursuant to the Act, giving rise to these proceedings. 66 As noted earlier the matter was not able to be resolved in conciliation. Mr Blair puts that management offered to pay RPO's as if worked should the Commission find in favour of the RTBU. RPO's observed the Australia Day Public Holiday in 2007. 67 Mr Blair reiterated the RTBU position put in the outline of submissions, that RPO's rostered to work in accordance with the master roster must be allowed to attend unless they seek not to. His evidence is (TR 24/5/07, pp21, 22): Q. Because your position was that you should be required to work public holidays unless of course you wished to clear the day? A. Our position is if the roster, the master roster basically has us working then we believe we should work those days-- Q. Unless of course you wish to change it? A. Unless we make application, yeah, for the public holiday. Q. So the period roster doesn't have to reflect the master roster, if it's at your request? A. I don't get what you mean there? Q. All I'm saying is, is what you're saying that if the master roster has you as working -- A. Yes. Q. You should also have the same shifts on the period roster? A. Yes. Q. Unless of course an employee, for example, Kathleen Lynch wanted the day cleared as a public holiday? A. Yes. Q. Unless of course an employee doesn't want to work that day? A. Yeah, if they make application, yes. 68 Mr Ted Barker has been employed by the STA from 1970. During the relevant period he held the position of Acting Operations Manager, 1 October 2005 to February 2007, when the position became Depot Manager Hamilton and Mr Barker's appointment was confirmed. Mr Barker's evidence in this matter is by Statement (Ex 4) and orally. 69 Mr Barker confirms that Mr Blair and Ms Kathleen Lynch were appointed RPO's in Newcastle from 6 February 2005 and operationally report to him. RPO's work a roster of 19 days over 28 days. There is no RPO coverage on the nine days rostered off. 70 Mr Barker deposes that a Sunday timetable used for Public Holidays schedules 382 bus services, compared to 1160 services scheduled for a Friday, or 894 services scheduled for a Saturday. 71 Mr Barker confirmed that a revenue protection service is a requirement of the Outer Metropolitan Bus Service Contract ("the Contract") for region 5, awarded by the Ministry of Transport in 2006. 72 The Contract is for a seven year period subject to satisfactory performance and requires implementation of efficiencies to achieve operating cost reductions, including administrative productivities. 73 Mr Barker's evidence is that the revenue protection services are in excess of those undertaken by private bus companies when they are required to be in competition. 74 The evidence of Mr Barker is that fines imposed by RPO's do not meet costs involved, and that a requirement that RPO's work on a Public Holiday where business needs do not justify further adds to costs, which must be funded out of the general operating budget. 75 Mr Barker deposes that the additional cost of an RPO working on a Public Holiday is approximately $309 per employee per Public Holiday and, given that RPO's must work in a team of two for operational reasons, the full additional cost is approximately $618 per Public Holiday. 76 Mr Barker deposes that the RPO roster is in accordance with the Agreement. Mr Barker described the master roster as a guide to the shifts RPO's may usually be required to work, and a period roster as the actual requirement for shifts to be worked in accordance with the business needs for the ensuing four weeks. 77 Mr Barker puts that the period roster does not always follow the master roster as the need for employees to work changes for reasons such as leave, business needs, special events which may require additional work, or requests of employees. 78 Mr Barker provides an analysis of revenue protection work on Public Holidays in 2003 and 2004 when the function was performed by CSO's; and 2005 and 2006 which confirm that RPO functions were not carried out on all Public Holidays over the three year period. 79 Mr Barker deposes that a similar dispute over the working of Public Holidays arose in 2003 and was subject to correspondence from the then General Manager to the RTBU. The correspondence (Ex 4, att. 13), dated 18 July 2003, states: I will not guarantee revenue protection shifts are rostered 7 days a week. Shift coverage is determined by the Operation Manager depending on the particular needs and priorities at any given time. …… The Operations Manager will determine what shifts are required on Public Holidays to meet the business needs as is the current practice. May I suggest a similar system that applies to DOC's could be used to allocate Public Holiday shifts evenly to all CSC's. CONSIDERATION 80 The evidence does not support the assertion by the RTBU that there is an established custom and practice that would compel the STA to afford work on Public Holidays to those RPO's rostered to work by the master roster. 81 There is no functional connection between the circumstances or business needs between Newcastle and Sydney operations. The Newcastle and Sydney services are separate and distinct situations and nothing is achieved by a comparative analysis of business needs and requirements thereto. 82 If there was to be useful comparison, the Sydney experience does not support the RTBU argument; RPO's in Sydney are rostered to work, or not work, on the basis of business needs as determined by management. The period roster is then constructed by the appropriate process of consultation. 83 The evidence does not support a finding that RPO's based in Newcastle work on Public Holidays irrespective of business needs. 84 I determine that the STA were not in breach of the disputes procedure by not requiring RPO's to work on Australia Day 2007. 85 The proposition advanced by Mr Blair that where the master roster has an RPO to work on a Public Holiday, the shift should be provided at Public Holiday penalty rates, unless the RPO's preference is to observe the Public Holiday, is totally untenable. 86 The proposition advanced by Mr Blair is not supported by the Agreement, the contract of employment, or general industrial standards of fairness, equity, or commonsense. 87 Employees should ordinarily expect to have a day off on a Public Holiday unless there are business needs which require them to work. Public Holiday penalties are not an opportunity for employees to increase their earnings, but a disincentive to employers to require employees to work on a Public Holiday. 88 Management hold a responsibility to determine business needs and may require employees to work where these needs require. The obligation of the employee is to meet all lawful and reasonable requests of the employer. 89 The process of consultation is to allow employees to understand and contribute to a consideration of business needs. Once the discussion is complete management hold the responsibility to decide upon the business needs. Employees retain a right through their union to invoke the disputes procedure should there be grounds to assert that management's decision is motivated by other than a genuine assessment of business needs. 90 That is not to say that the Commission will substitute its view of business needs over that of management, but may intervene if it were to be shown that a decision imposed harsh, onerous or unfair conditions upon employees. Merely being required to work on a Public Holiday would not of itself create such circumstances. 91 A proper interpretation of the Agreement supports management's contention that the master roster is a template from which the period roster is developed to meet the business needs and contend with other relevant considerations of the specific period. 92 I determine that the Agreement is properly applied in the manner contended by the RTA. 93 The Order sought by the RTBU that in construction of the master and period rosters management will consult with employees as outlined in cl 80.3 of the Agreement is supported. A proper application of the Agreement requires such consultation. 94 The evidence of Mr Welzel describes an effective consultation process which Newcastle management and employees could adopt to suit the local business arrangements. Consultation requires a more realistic approach than the evidence of Mr Blair conveys. 95 I make the Determination and Orders sought by the STA. 96 Matter No IRC 66 of 2007 is so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 29 June 2007 Matter No IRC 66 of 2007 Notification under section 130 by The Australian Rail, Tram and Bus Industry Union, New South Wales of a dispute with the State Transit Authority re rostering arrangements DETERMINATION AND ORDERS Pursuant to section 136 of the Industrial Relations Act 1996 I make the following Determination and Orders: l. There is no requirement in the Enterprise Agreement that the Period Roster reflect the exact shifts of the Master Roster. 2. There is no requirement in the Enterprise Agreement that Revenue Protection Officers be rostered to work on Public Holidays. 3. Management has the prerogative to roster Revenue Protection Officers in Newcastle according to business needs. Orders Issue that; 4. From the time these orders take effect, the parties to the dispute must refrain from engaging in bans or any other industrial action in relation to rostering of Revenue Protection Officers on Public Holidays. 5. The Rail, Tram and Bus Union, its officials, employees and delegates must take all necessary steps to ensure these orders are complied with, including but not limited to advising members to whom the dispute relates. 6. These Orders take effect from 29 June 2007 and shall remain in force until the termination of the State Transit Authority of the New South Wales Government Service Senior and Salaried Officers' Enterprise Agreement 2006. The Hon. R W Harrison Deputy President 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.