Industrial Relations Commission of New South Wales CITATION: State Transit Authority of NSW v Rail Tram and Bus Union (NSW Branch) [2010] NSWIRComm 9 PARTIES: State Transit Authority of New South Wales (Notifier) Rail Tram and Bus Union (NSW Branch) (Respondent) FILE NUMBER(S): IRC 1943 and 2021 of 2009 CORAM: Boland J President CATCHWORDS: INDUSTRIAL DISPUTE - Wages and working conditions for bus operators in the government bus service - offer by employer involving 3 per cent increase per annum over two years - Cost offsets - Recommendation by Commission that offer be accepted - Recommendation by Commission that employer not withdraw payment of industry allowance to bus operators who engaged in strike action in support of increased wages and improved working conditions LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: State Transit Authority of NSW v Rail, Tram and Bus Union (NSW Branch) [2009] NSWIRComm 221 HEARING DATES: 4 February 2010 DATE OF JUDGMENT: 4 February 2010 Mr G Hanson (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) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Thursday, 4 February 2010 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 RECOMMENDATIONS [2010] NSWIRComm 9 1 These matters have been the subject of earlier proceedings before the Commission: see State Transit Authority of NSW v Rail, Tram and Bus Union (NSW Branch) [2009] NSWIRComm 221. The matters essentially involved a dispute over wages and employment conditions for bus operators. The parties had been unable to reach agreement in that respect, culminating in a 24 hour strike by bus operators from 4.00 am on 18 December 2009. 2 In the earlier proceedings, the Commission made the following directions pursuant to s 134(2) of the Industrial Relations Act 1996: (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. 3 Negotiations continued between the parties during January 2010 over the issues separating them. On 1 February 2010, the State Transit Authority of New South Wales ('STA') put a revised written offer to the RTBU. The offer was expressed to be final. The offer dealt with enhanced income protection, shed driver review, reduction of the percentage of part time and casual bus operators, standby allowance and wage increases. In relation to the last matter the offer stated: · STA has proposed and understands the RTBU has agreed to, and still agrees to an award of two years duration. · the first year of an award ratified by the Commission would have a wages rise of 2.5% plus 0.5% for the Shed Driver review, that is, 3%. · This offer of a 3% wage rise is backdated to 12 June 2009. The offer of a June 2009 backpay date remains open, conditional upon an award being agreed between the RTBU and STA and ratified by the Commission within a short timeframe. · The second year of an award ratified by the Commission would have a wages rise of 2.5%, that is the NSW Government Wages Policy of 2.5% increase in wages without any employee related cost savings comprising an additional 0.5% made up of a portion of the Shed Driver review, the use of casuals for part-time absence and the deletion of the Standby allowance, making a 3% wage rise for the second year of an award. 4 In the report back proceedings today, Mr R Baonza for the RTBU indicated that the offer gave him some cause for optimism that the dispute could be resolved. However, he referred to a further communication from the STA dated 29 January 2010 in which reference was made to an all purpose allowance known as an Industry Allowance payable under the State Transit Authority Division of the Government Service Bus Operations Enterprise (State) Award 2007. The Allowance is $38.90 per week. However, cl 38.2 of the Award reserves to the employer the right to review payment of the allowance where the dispute settlement procedure under the Award is not adhered to. The letter referred to the 24 hour strike undertaken by the RTBU and its members on 18 December 2009 and alleged that industrial action was taken contrary to the dispute settlement procedure. The letter indicated that the employer was considering withdrawing the Industry Allowance from staff who engaged in the strike, but that before making any determination in that respect, the employer indicated it was willing to listen to any views or reasons as to why the allowance should not be withdrawn. 5 STA was quite entitled to raise the Allowance in the way it did. It is apparent that the RTBU's actions in conducting the strike on 18 December 2009 were inconsistent with its obligations under cl 87 - Dispute Settlement Procedure of the Award, particularly in light of the Statement and Recommendation issued by Grayson DP on 17 December 2009 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. The strike was hugely disruptive, inconveniencing some 600,000 members of the public. 6 Further, it is not as though the RTBU was unaware that it was open to STA to withdraw the Allowance where the dispute procedure is not adhered to; the Allowance has been withdrawn on earlier occasions and the very purpose of introducing the Allowance in the first place was to encourage adherence to the disputes procedure. 7 On this occasion if the Allowance was to be withdrawn it would inevitably complicate the prospect of a settlement of the wider dispute. The dispute has been a difficult one and has been continuing for many months. The Commission has been left with the impression that but for the issue of the Allowance, the parties are very close to settlement. My recommendation would be that the Allowance is not withdrawn, but the RTBU is on notice that it may not simply ignore the Award's dispute settlement procedure with impunity in the future. This is because the Award provides the employer with an unambiguous right to review the payment of the Allowance if the Disputes Settlement Procedure is not adhered to and unless the Award is varied, the employer is entitled to exercise that right. 8 In so far as the employer's offer of 1 February 2010 is concerned, the Commission is of the view it is fair and reasonable and that the RTBU's officers should strongly recommend its acceptance. The alternative is that the dispute proceeds to arbitration where, consistent with the Government's wages policy, it would undoubtedly be the employer's position that any wage increase above 2.5 per cent was required to be funded by employee related cost savings. The Commission would be bound to have regard to that position, especially given that all public sector wage settlements have involved cost offsetting. 9 The RTBU should convey its response to the STA's offer and what it intends to recommend to its members by 4.00 pm on Friday 5 February 2010. Liberty is given to either party to have the matter relisted before the Commission at short notice. ______________________________________ 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.