Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by Minister for Transport of a dispute with unions re a range of issues at RailCorp [2007] NSWIRComm 209 APPLICANTS New South Wales Minister for Transport RailCorp PARTIES: RESPONDENTS Unions NSW Electrical Trades Union, New South Wales Branch Rail, Tram and Bus Industry Union, New South Wales Branch Australian Manufacturing Workers' Union, New South Wales Branch Australian Workers' Union, New South Wales Branch FILE NUMBER(S): 1164 of 2007 CORAM: Sams DP CATCHWORDS: Industrial dispute - various issues at maintenance workshops - negotiations between the parties under Commission's auspices - inspections of workplaces - three phase plan - first phase completed - second phase largely agreed - significant progress on all issues - one outstanding issue - recommendation of Commission - meetings of employees - further proceedings on 100 Day Plan. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 23,25,26 July 2007, 1,8,9,14,15,16 August 2007 DATE OF JUDGMENT: 17 August 2007 APPLICANT Mr M Greenhill RailCorp LEGAL REPRESENTATIVES: RESPONDENT Mr M Thistlethwaite UnionsNSW JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP Friday, 17 August 2007 Matter IRC07/1164 Notification under section 130 by Minister for Transport of a dispute with unions re: a range of issues at RailCorp STATEMENT AND RECOMMENDATION [2007] NSWIRComm 209 1 This is the fourth week of proceedings in this dispute and the Commission has spent many hours in private conferences with the parties, and has also inspected the relevant workshops and other associated facilities, including MainTrain. From this experience I have gathered a good understanding of the industrial issues which are the subject of these proceedings. For this, the Commission wishes to record its indebtedness, in particular, to the Union delegates and local managements for their detailed technical knowledge of the relevant issues. 2 It is within this context that the Commission is able to confidently report that there has been significant progress on the issues identified by the NSW Government in the 3 Stage Plan which forms the basis of the Commission's involvement in the current negotiations. As I have already reported, the first 10 Day Plan was introduced in full, on time, and with two additional matters identified in the second phase of the plan, introduced at the earlier time. 3 The second 30 Day Plan is due for completion today, 17 August 2007. The Commission notes that when the parties met with the Government there was no agreement by the Unions to those items in the 30 or 100 Day Plans. Rather, the agreement by the Unions was to consider these items, in good faith and, subject to agreement by the employees, seek to reach agreement to the changes and issues therein. As I have said, commitments have been given and delivered in respect to the 10 Day Plan. 4 At this point of the negotiations four of the eight items in the 30 Day Plan have been agreed in principle by the parties and two have been introduced. One item has been referred to the 100 Day Plan and the last item will be the subject of my later recommendation. In other words, it is evident that the Unions have made substantial and significant concessions in the negotiations. 5 The Unions have identified a number of their own issues, (described as management issues) which they insist should be considered by RailCorp in a real and positive way. It is said that many of these issues have been complained about for years. These issues include the need for training, the lack of apprentices, improved consultative processes, changes to the parts procurement policy and importantly, a commitment to negotiating a 5 Year Plan for the maintenance depots. Yesterday, RailCorp responded to these issues (see Annexure A). In my opinion, RailCorp has provided a genuine and positive response to each of these matters and, in particular has offered a commitment to negotiate a 5 Year Plan in the next phase of negotiations. 6 It is important to emphasise that these negotiations are not about balancing one side's "wish list" against the other's. It is, primarily to seek real and long lasting improvements in the industrial relationships between the parties and to identify, and hopefully address matters which serve as impediments to ensuring the long term survival of rolling stock maintenance in public ownership. This includes confronting the reasonable and long standing concerns of the Unions as to Management's failures in this regard. Improved industrial relations is obviously crucial to this objective. 7 That being said, the negotiations have reached an impasse on one issue in the 30 Day Plan. It is the following: Removal of demarcation where staff are already qualified to undertake task. This includes the use of welding and oxy equipment by fitters already trained. 8 I emphasised to the parties that I had hoped that the Commission would not be called upon to make recommendations, directions or orders in this dispute, but rather my role would be to steer, guide, cajole or make suggestions as to the parties reaching agreements themselves. Nevertheless, in accordance with my statutory duty under s 136 of the Industrial Relations Act 1996, I am satisfied that the stage has been reached where an impasse must be resolved by the Commission's intervention. I propose to do so. 9 As to the unresolved matter, the Commission has had the benefit of extensive and detailed negotiations with the parties and has carefully considered the arguments advanced in support of the opposing propositions. 10 At the outset, I would observe that some of the demarcations identified by RailCorp apply in some workshops, but not in others. Some alleged demarcations do not exist and others require tools which are not readily available. The Unions have positively addressed four demarcations recently identified by RailCorp and have sought to defer further negotiations on more than 20 other items identified yesterday. The Unions proposed the following words in respect to demarcations: Barriers to Flexible work practices Where barriers to flexible work practices exist with respect to: 1. Applying yellow tags to roof hatches; 2. Removal of roof hatches; 3. Checking the contents of, and replacing contents of equipment boxes and fire extinguishers; and 4. The use of drills for DVA modifications. It is agreed that such barriers will be removed. 11 RailCorp argue that what is sought is a statement of principle which would simply require employees to perform tasks which they are able to perform. The 1997 MOU does not assist in this regard and the issue of cross skilling will be discussed in the 100 Day Plan. Moreover, this item was regarded by RailCorp and Government as a 'big ticket' issue which would demonstrate a real commitment to change the 'culture' at the depots. 12 Unsurprisingly, the Unions harbour some suspicion that Management has a wider agenda and to agree to its proposition would be the "thin edge of the wedge". The Unions further sought to link this issue to the 1997 MOU on multi and cross skilling, which, in truth, has not been fully implemented due, in part, to the failure of Management to provide the necessary training. There is some validity to this claim. 13 However, in my view, the principle sought by RailCorp is conceptually and practically different to the notion of cross skilling envisaged by the 100 Day Plan. It must also be accepted that many of the issues raised by RailCorp do not fall under the 1997 MOU. To that extent it is, in my view, inappropriate to link cross skilling to the proposal here under consideration. In addition, the Commission accepts that this issue is a critical one for RailCorp and the Government and agreement to it will demonstrate a real change in the 'culture' of the depots. 14 It seems to me that as a matter of positively moving forward, if not just plain logical commonsense, that it is not possible to sustain a proposition that an employee should be prevented, (be it by custom and practice or Management's failure to manage), from undertaking a task or function that is within the limits of the employee's skills and qualifications. This is not about cross skilling, but simply utilising one's skills and qualifications in a sensible and efficient way. 15 I would add two riders to this proposition: the requirement to perform these tasks must be reasonable within the context of the employee's overall duties and responsibilities and be subject to the ready availability of the necessary tools to perform the task. Any dispute about these matters should be referred to the Commission. 16 It is for these reasons that I recommend, in respect to the contested issue, the following wording should be adopted: "The parties agree to the removal of demarcations in circumstances where employees can undertake a particular task within the limits of their skills and qualifications." 17 The Commission understands the Unions' processes require meetings of the employees to vote on the proposals. These should be organised as soon as practicable with the attached agreements and my recommendation being put to the employees. 18 A report back to the Commission is listed for 3:00pm Wednesday, 22 August 2007. The next listing will include consideration of further proceedings relevant to the 100 Day Plan and such other matters as raised by the parties. Peter J Sams, AM Deputy President Annexure A The parties have agreed (subject to meetings of employees) to the following matters arising from the 30 Day Plan as at 17 August 2007. Use of Contractors (a) The parties confirm their commitment to the Core Principles of the EBA, in particular Cl 15.1 which states: The Employer will use direct permanent employment as the preferred and predominant employment option within the organisation. (b) Access to be given to contractors to perform: (i) Upgrade modifications (ii) Existing modifications (iii) Specific projects (c) Prior to the engagement of a contractor, Railcorp will consult with unions and the workforce and provide information concerning: (i) The proposed period of engagement of the contract; (ii) The expected number of contract employees to be engaged; (iii) The workstations and locations the contractor shall be engaged at. It is noted that Railcorp will abide by State Government standards on contractors rates of pay. (d) Contractor access will be implemented after consultation on the site safety plan with the OHS committee and it is signed off by management. Flemington Wheel Mill The parties commit to attempting to improve the productivity of the Flemington wheel mill. The workforce shall aim to achieve machining of 8 axles per shift. Further, Railcorp Rolling stock division management and staff engage in a consultative process under the auspices of Clause 7 of the RailCorp EBA 2005 to analyse any barriers that may exist in moving beyond 8 wheels per shift. That the parties shall report back to the Commission within 2-3 weeks as to progress. Data Loggers RailCorp management and relevant staff will commence a local consultative process for a period of two weeks with a view to aiming to achieving a two hour standard for Dataloggers servicing. After 2 weeks the parties report back to the Commission on progress. COMMISSION'S RECOMMENDATION: Demarcations The parties agree to the removal of demarcations in circumstances where employees can undertake a particular task within the limits of their skills and qualifications. RailCorp has agreed to the following matters arising from the issues raised by the Unions. Training RailCorp will provide coaching to refresh skills upon request, to any staff member for tasks that they have not undertaken for a period of time. Any issues or concerns with respect to training can be raised and addressed through the existing consultative committee. Apprentices RailCorp's commitment to our apprentice program is reinforced in the RailCorp EBA 2005. Any issues or concerns with respect to apprentices can be raised and addressed through the existing consultative committee. Parts procurement Where accurate information is provided and the failure can be clearly attributed to the defective component from the supplier within its warranty period, such failures are attributed to the supplier. Equipment RailCorp already has an equipment audit process in place. Any equipment that is deemed unsafe should be immediately reported to maintenance centre management and it will be removed and replaced. RailCorp has the view that the OHS Committee is duty bound to raise any concern it has in relation to equipment. Consultation Meeting with Unions NSW to discuss PPP and Drug and Alcohol matters has been scheduled for 6 September 2007. Business plan RailCorp is prepared to commence discussions on the business plan during the 100 day phase. 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.