Industrial Relations Commission of New South Wales CITATION: State Transit Authority of NSW v Rail, Tram and Bus Union (NSW Branch) [2009] NSWIRComm 221 State Transit Authority of New South Wales (Notifier) PARTIES: Rail, Tram and Bus Union (NSW Branch) (Respondent) Unions NSW (Respondent) FILE NUMBER(S): IRC 1943 and 2021 of 2009 CORAM: Boland J President CATCHWORDS: INDUSTRIAL DISPUTE – industrial action – bus drivers in Sydney and Newcastle – negotiations between Rail, Tram and Bus Union and State Transit Authority – terms of new enterprise agreement – cost savings and government wages policy – conciliation conferences conducted – statement and direction issued. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 18 December 2009 DATE OF JUDGMENT: 18 December 2009 Ms E Allen with Ms C van Til (Notifier) State Transit Authority of New South Wales LEGAL REPRESENTATIVES: Mr R Baonza with Mr D Malone (Respondent) Rail, Tram and Bus Union (NSW Branch) Mr M Morey of Unions NSW JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Friday 18 December 2009 Matter No IRC 1943 of 2009 STATE TRANSIT AUTHORITY DIVISION OF THE NSW GOVERNMENT SERVICE AND RAIL TRAM BUS UNION (BUS DIVISION) Application by State Transit Authority Division of the NSW Government Service under section 10 of the Act Matter No IRC 2021 of 2009 STATE TRANSIT AUTHORITY OF THE NSW GOVERNMENT SERVICE AND RAIL TRAM AND BUS UNION, NSW BRANCH Notification of an Industrial Dispute pursuant to section 130 of the Industrial Relations Act 1996 re industrial action STATEMENT AND DIRECTION [2009] NSWIRComm 221 1 There have been long-running negotiations between the Rail, Tram and Bus Union ('RTBU') and the State Transit Authority ('STA') for a new enterprise agreement to apply to bus drivers employed by STA. In the latest conciliation proceedings before Grayson DP on 17 December 2009 the STA put forward a proposal to resolve the differences between the parties over the terms of a new agreement. The RTBU rejected that proposal and announced its intention to engage in a 24 hour strike of bus drivers in Sydney and Newcastle commencing at 4.00 am on 18 December 2009. 2 Grayson DP issued a Statement and Recommendation strongly recommending that Unions NSW and officials of the RTBU use their best endeavours to ensure the planned strike action was averted. His Honour also recommended the Union, by its officers, employees and members, refrain from taking, or threatening to take, further industrial action whilst the conciliation proceedings were continuing. 3 Late in the evening of 17 December, the STA applied to have the industrial dispute re-listed before the Commission as a matter of urgency. That occurred at 9.00 pm last night. Several attempts by the employer and by this Commission were made to contact the relevant RTBU officials, Mr Baonza and Mr Malone, to have them attend this evening's proceedings, but this was unsuccessful. Mr M Lennon, Secretary of Unions NSW, who attended last evening's proceedings, also tried, but he was unable to make contact. Regrettably, in the absence of the relevant union officials, no progress could be made towards settling the dispute. 4 Accordingly, the parties to the dispute were directed, pursuant to s 132(1) of the Industrial Relations Act 1996, to attend a further compulsory conference before me at 12 noon today. This was done in the expectation that by that time the employer would be in a position to put a firm offer to the Union. The Commission noted that if the dispute was able to be settled in those proceedings it would avoid further disruption to bus services in the afternoon peak hour. 5 At the compulsory conference a firm offer was made by the STA, the Budget subcommittee of Cabinet having approved the offer. The offer was in the following terms: Accordingly, subject to the RTBU's acceptance of the proposed Award, including the specific savings initiatives, State Transit is in a position to offer additional benefits over and above the 2.5% p.a. cost of living adjustment, specifically: a further 0.5% p.a. increase over two years, bringing the total wage increase to 3.0% p.a., with the first increase to be paid from 12 June 2009, a second increase from 12 June 2010. enhanced income protection that would operate by exchange of letters between the parties. The operation of the enhanced income protection provisions would remain in force until the award expiry date, thereafter income security would revert to the award clause provisions. The enhanced income protection would operate so that: - No shift changes which occur as a result of any roster rebuilds will result in a loss of take home pay of more than half of one percent, over a twelve month period (based on a financial year), below the average pay of each shift type e.g. AM, Day, Midday, Broken and PM (except for part time rosters); and - Any shift conversions or additional shifts, as a result of daily alterations, sporting provisions or conversion of part time shifts, will be built to a minimum eight-hour shift length of actual work time. Savings Initiatives The offer outlined above, is contingent on acceptance by the RTBU and its members of a number of savings initiatives, which have been the subject of discussions by the parties. In summary form, these include the following matters: Shed Driver Review; A clause to be inserted into the proposed award in recognition of a review of the current establishment levels for Shed Drivers, Runners and Bus Parkers, to replace the current Shed Driver role with a new classification of Yard Supervisor to include additional responsibilities for: - control of access to and from State Transit depots to eliminate reliance on static security; - monitoring and recording of details relating to variances from scheduled bus departures from depot yard; - monitoring of fleet condition and logging of defects (eg cleanliness, unreported damage etc); - monitoring and ensuring staff compliance with depot traffic management plans; and - undertaking scheduled safety inspections of depot year and reporting of risks. Cover part time bus operator absences with casuals; and This proposal involves an award clause that provides for some elimination of the limitation to use Casual Bus Operators. The proposed clause would lift the restriction that vacant shifts caused by part time employee absences, in the first instance be offered on an overtime basis to full time employees, so that part time employee absences may be offered to Casual Bus Operators in the first instance. New carer's leave arrangements; This proposal involves an award clause that provides that all carer's leave applications would need to be supported by a valid medical certificate stating the relationship to the employee, the nature of the illness (or condition), the need for the employee to provide care and/or support and the duration of the absence. 6 The main sticking point preventing acceptance by the RTBU of STA's offer was the proposal to fill planned and unplanned absences of part time bus drivers with casual drivers. Those absences are currently filled by bringing drivers in on overtime. The STA was not prepared to concede this aspect of its settlement proposal because it would produce significant employee related cost savings necessary to be achieved under the government's wages policy. That policy, in essence, requires that in order for there to be wage increase exceeding 2.5 per cent per annum the increase above 2.5 per cent is required to be funded by employee related reform measures and cost savings. 7 In view of the impasse, the Commission makes the following direction pursuant to s 134(2) of the Act: (a) that the offer, including the wages component, made by STA be accepted by the RTBU and its members in settlement of the claim, except that part of the offer relating to casual drivers; (b) that in ongoing negotiations in good faith to occur between now and 26 February 2010 the parties agree to consider a range of initiatives, including any proposal regarding the use of casual drivers, to fund cost savings in year 2 up to 0.5 per cent beyond 2.5 per cent; (c) that the parties shall report to the Commission on the progress of their negotiations at 10.00 am on Wednesday 13 January 2010 and, if necessary, at 9.30 am on Thursday 4 February 2010; (d) that should the parties in the time allowed not identify the necessary employee related reform measures and cost savings, or should any dispute arise during the process, the parties acknowledge and commit to take all necessary steps so that a Full Bench of Industrial Relations Commission shall arbitrate on and determine the employee related cost savings to fund the wage increases under the enterprise agreement; (e) the parties will make their best endeavours to achieve a cessation of the strike action as early as reasonably practicable and undertake that there will be a return to normal services by the commencement of the first shift on Saturday 19 December 2009; and (f) that whilst the process outlined in this direction is continuing, there will be no resort to any form of industrial action by either party. _____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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