Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award No 2 [2011] NSWIRComm 1027 Hearing dates: 11/6/2011, 12/5/2011, 3/6/2011 and 9/6/2011 Decision date: 22 June 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Award variation declined Catchwords: APPLICATION FOR AWARD VARIATION - motor registry staff - allowance for work in positions involving higher duties removed for weekend work - claim for its restoration - role of a manager - application dismissed Legislation Cited: ndustrial Relations Act 1996 Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 Cases Cited: Club Employees (State) Award) Case Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff) Award Case [2011] NSWIRComm 1017 Department of Corrective Services v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2006] NSWIRComm 1079 Layton v North Goonyella Coal Mines Pty Limited (2007) 166 IR 394 San Remo (Southland) Pty Limited v Farrell (1987) 22 IR 291 Scientific Officers Case (1962) AR 250 State Wage Case No 2 [2011] NSWIR Comm 29 Category: Principal judgment Parties: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (applicant) Roads and Traffic Authority of New South Wales (respondent) Representation: Mark Gibian (applicant) Simon Meehan (respondent) File Number(s): IRC 334 and 1360 of 2010 DECISION BACKGROUND 1On Monday, 3 May, 2010 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales lodged a notification of an industrial dispute under s.130 of the Industrial Relations Act 1996 . The dispute was with the New South Wales Roads and Traffic Authority and it concerned the conditions under which officers employed in motor registries by the RTA were engaged. In particular, at issue was the conditions under which staff worked on Saturdays when the motor registries were open. 2That s.130 matter was allocated initially to Ritchie C who on Thursday, 20 May, 2010 and Thursday, 3 June, 2010 attempted to settle the dispute with conciliation. He was unsuccessful in the conciliation and he subsequently issued the certificate of attempted conciliation required by s.135, lodging it in the prescribed manner, to permit the matter to proceed to arbitration. Directions were also made by Ritchie C for the arbitration of the matter but the PSA made an application under s.173 for the matter to be arbitrated before another member of the Commission. The file was allocated to me for that arbitration. 3I set the matter down for a mention and programming on Friday, 18 June, 2010, Friday, 25 June, 2010 and Wednesday, 25 August, 2010. The hearing was ultimately scheduled for Friday, 12 November, 2010 and Friday, 19 November, 2010. However, on Tuesday, 9 November, 2010 solicitors representing the PSA wrote to inform me that it proposed to no longer proceed with the original claim. It was its intention to proceed to seek a variation to the appropriate Crown award covering the employees in those s.130 proceedings. Whilst I will deal with the current claim in more detail later in this decision, simply stated, what was then being sought by the PSA was the payment of a higher duties allowance [HDA] to motor registry staff working in managerial positions on Saturday on a daily basis . The PSA sees that claim as preserving an existing entitlement. The RTA does not. 4However, I was not convinced that what was then being sought by the PSA would fall within the ambit of the original s.130 proceedings. Whilst the PSA initially argued otherwise, it subsequently chose to lodge a separate application to give effect to its claims. It nevertheless sought to preserve the original s.130 notification and I have consequently heard both matters together, setting the matters down for mention and programming on Thursday, 25 November, 2010, Thursday, 16 December, 2010 and Friday, 4 February, 2011. 5On Monday, 14 January, 2011 the RTA filed a notice of motion asserting that in the claim now before the Commission the PSA was contravening the "no extra claims" commitment made by the employees in compliance with the current wage fixation principles (confirmed in the decision of the Full Bench of the Commission (Boland J - President, Walton J - Vice President, Harrison and Grayson DPP and Tabbaa C) on Thursday, 17 February, 2011 in the 2010 State Wage Case No.2 [2011] NSWIRComm 29) . Mr Meehan , representing the RTA, sought in the proceedings before me on Friday, 4 February, 2011 that the RTA notice of motion be considered as a threshold issue in a preliminary hearing, ie whether the claim now mounted by the PSA on behalf of motor registry staff breached the "no extra claims" commitment made on behalf of the RTA salaried staff. 6Mr Gibian , representing the PSA in the proceedings, requested that the issue proceed to a substantive hearing to consider all issues in dispute, including any issues arising out of the "no extra claims" commitment. Nevertheless, I set the matter down for a preliminary hearing on that notice of motion on Thursday, 14 April, 2011. I also set aside days for the substantive hearing of the matter should it proceed beyond the preliminary hearing. 7In my interlocutory decision of Friday, 29 April, 2011 - the Crown Employees (Roads and Traffic Authority of New South Wales Salaried Staff) Award Case [2011] NSWIRComm 1017 - I concluded that the PSA application did not contravene the "no extra claims" commitment it gave and I dismissed the notice of motion filed by the RTA. The condition which the PSA was seeking to preserve - the payment of the HDA on a daily basis for those staff called upon to supervise motor registries - was, in my opinion, a condition of employment for them at the time that the PSA gave the "no extra claims" commitment on their behalf - Tuesday, 1 July, 2008. The payment of the allowance on a daily basis was removed from Monday, 4 January, 2010 with a decision of the RTA, formalised in the Operations (DVS) Realignment Determination of Tuesday, 15 September, 2009. 8In my interlocutory decision I commented (at para.21) that in my opinion: ".... to be caught by the "no extra claims" commitment, conditions of employment...must be the conditions of employment at the time that the "no extra claims" commitment was given. As Mr Gibian asserted in his submissions, that entitlement to the payment of the higher duties allowance on a daily basis was subsequently changed to the detriment of the RTA salaried staff after that undertaking was given and therefore in his view, and mine, outside the restrictions imposed by the "no extra claims" commitment given by the PSA on their behalf..." 9Nevertheless, I noted that up to this time the payment of the HDA on a daily basis had not been a feature of the relevant Crown award and I commented (at para.24) that: "... this is not to establish in this hearing that the claim in its present form actually has merit. For instance, the question remains in my mind whether or not the RTA motor registry staff actually do assume all of the responsibilities of the (customer service centre managers) when they work on Saturday to justify the higher duties allowance to be paid to them and whether the variation to the (Crown award) actually does reflect what the RTA salaried staff lost on Monday, 4 January, 2010 with the implementation of the Realignment Determination. Indeed, since the arrangement which the PSA is attempting to preserve has not been a State award provision in the past, the question is whether it is appropriate to make it one now..." 10In any event, the matter proceeded to a hearing to consider the merits of the PSA application on the days already allocated for that hearing - Wednesday, 11 May, 2011, Thursday, 12 May, 2011, Friday, 3 June, 2011 and Friday, 9 June, 2011. Mr Gibian continued to represent the PSA and Mr Meehan to represent the RTA. Annexed to this decision is a list of the witnesses who gave evidence in the proceedings. THE APPLICATION 11As I indicated in my interlocutory decision of Friday, 29 April, 2011, there are two current consent Crown awards covering the RTA salaried staff which are read concurrently, viz: (i) the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award which was reviewed by Ritchie C pursuant to s.19 on Monday, 3 March, 2008 and which remains in force until it is rescinded (which has not happened) and, despite its title, appears to be confined currently to deal with conditions of employment issues - and which I will refer to in this decision as the Conditions Award; and (ii) the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award which was made by the Full Bench of the Commission (Walton J - Vice President, Schmidt J, Sams DP and McLeay and Murphy CC) on Thursday, 2 October, 2008 and is due to expire on Monday, 30 June, 2011 - and which I will refer to in this decision as the Salaries Award. 12The application lodged by the PSA seeks a variation to the Conditions Award by the insertion of new provisions - Clause 10D, Short Loading for Certain Ordinary Hours (with consequent amendments), viz: "(5) Where in any period of relief (Monday to Saturday inclusive) an employee in a motor registry relieves in a higher graded position for one day or more and performs the whole of the duties of this position, they shall be paid for the full period of relief the minimum salary of the higher graded position on a daily basis. (6) Where in any one period of relief an employee in a motor registry (Monday to Saturday inclusive) relieves in a higher graded position for one working day or more and does not perform the whole of the duties of such employee in the higher graded position, they shall be paid that proportion of the allowance referred to in subclause (5) that the duties performed and responsibilities assumed bear to the whole of the duties and responsibilities of that position and prior to entering on relief shall be advised of the allowance to be paid and the basis for its assessment. (7) For the avoidance of doubt where another employee performs work at a motor registry (Monday to Saturday inclusive) and is in charge of the registry in the absence of the Customer Service Centre Manager (or equivalent position), they shall be paid for that shift the minimum salary of the Customer Service Centre Manager position." 13The provision for the payment of the HDA on a daily basis is not currently a feature of either the Salaries Award or the Conditions Award. From Monday to Friday, the HDA to the level of manager is paid to the staff who supervise motor registries. But it is not paid when staff supervise motor registries on Saturdays and that is the gist of the PSA application, contained in subclause (7) above. 14It appears that subclauses (5) and (6) of the proposed variation to the Conditions Award are not contentious and reflect what is currently the position for staff in motor registries. Nevertheless Mr Gibian has proposed that the provisions be enshrined in the Conditions Award to ensure that that existing entitlement is protected. Mr Meehan argues that, since the issues covered is not in dispute, there is no reason to insert them in the Conditions Award. I believe it is appropriate at this stage to confine my decision to the issue which is actually in dispute between the parties. 15Historically, the Commission has assessed the wages and working conditions of employees coming before it as what is fair, just and reasonable [the Scientific Officers Case (1962) AR 250 at p.274 and the Club Employees (State) Award Case (2002) 122 IR 272 at para.102]. It is presently a fundamental object of the State IR Act to provide a framework for the conduct of industrial relations that is fair and just [s.3(a)] and for me to act according to equity, good conscience and the substantial merits of the case [s.163(1)(c)]. In written submissions Mr Gibian described that requirement of fairness as the "...ordinary touchstone in determining an application for a new award or a variation to an existing award...". That task must also be considered in the context and restrictions of current wage fixation principles. 16However, Mr Meehan spoke of the imminent enactment of the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 and the effect it may have on the current proceedings before me if it were to apply retrospectively, as he believes it may well do. (That amending legislation is now in place. I understand that it does have an impact on part heard applications to vary Crown awards or applications with respect to which decisions are reserved prior to its enactment - as is the case here.) Mr Meehan explained the situation baldly in written submissions, viz: "....It is possible that the Commission will not be empowered to make the proposed award variation because it does not conform with the New South Wales Government's wages policy... 17I did not propose to address that matter in this decision but I reserved the right of either the PSA or the RTA to seek to re-list this matter in the light of the enactment of that amending legislation and prior to me handing down my decision. They have not done so. In any event, in the light of my decision in this matter - not to vary the Crown award at all - on this occasion at least the new more restrictive regime flowing from the amending legislation would not alter the outcome of these proceedings. I have reached my decision independent of the new legislation. 18Mr Gibian also submitted that retrospectivity on the variation to the Conditions Award being sought by the PSA should be granted in accordance with s.15(3)(c) from the date that the original dispute was lodged by the PSA - Wednesday, 3 May, 2011 - or, alternatively, from the date of lodgement of the separate application by the PSA - Monday, 22 November, 2010. Mr Meehan opposes the application in its entirety but, in any event, certainly opposes any retrospectivity on the proposed variation to the Conditions Award. THE ISSUE IN DISPUTE 19The history of this particular issue can be gleaned chiefly from the evidence of Mr Evan Cole, a PSA industrial officer, and Mr Brian Turner, a PSA organiser, who were called as witnesses in the hearing by Mr Gibian , and Mr Frank Partridge, a sector manager of customer services (Sydney) and Mr Stephen Doran, the acting manager of workplace change and culture, who were called as witnesses in the hearing by Mr Meehan . I regard their combined evidence as an uncontested outline of that history. 20From that evidence I conclude that from approximately 1993 a number of motor registries opened on Saturdays. Motor registry staff at that time worked 35 hours per week from Monday to Friday and were initially paid overtime for their work on Saturdays. Mr Partridge asserted in his evidence that in 1998 in recognition of customer demand and with a view to improving customer service, extended trading hours, including Saturday trading, was introduced in approximately 70 motor registries. Motor registry staff were required to make themselves available for every second Saturday and to be rostered on work on those days: some employees did so but other employees did not; some motor registries were opened on Saturday and some were not. Those employees who worked on Saturdays did so on a nine day fortnight and were paid a 50% loading on their ordinary salary for their Saturday work. 21With the commencement of trials for Saturday trading for motor registries in 1998 negotiations between the RTA and the PSA culminated in an agreement over a restructure of motor registry employment conditions which, among other things, confirmed a prior arrangement (from 1986, as I understand the position) that a HDA be paid to motor registry staff on a daily basis. Initially, as I understand the position, motor registry staff worked a nine day fortnight with every second Saturday off duties. On the Saturdays that they worked they initially received a 50% loading. 22Prior to Monday, 4 January, 2010 customer service centre co-ordinators [CSCO's] and customer service officers [CSO's] in charge of motor registries from Monday to Saturday acting in the absence of the customer service centre managers [CSCM's] received a HDA on a daily basis. That concession departs from what I understand to be the standard approach generally in the State public service where work in a higher position does not attract additional remuneration for work of less than five days. Under the shift roster, the CSCM's would be rostered off every second Saturday and a CSCO or CSO would be required to relieve them. Such relief may also be required from time to time to meet occasions when the CSCM's were not available on Saturdays, eg the CSCM taking sick leave, annual leave or otherwise being absent unexpectedly. 23Subsequently, a decision was made by the RTA on Tuesday, 15 September, 2009 (published as the Realignment Determination) which came into operation from Monday, 4 January, 2010. From that time the CSCM's were no longer required to attend motor registry offices on Saturdays and, consequently, arrangement for the HDA to be paid on a daily basis to the CSCO's was removed. The supervision of the motor registries on Saturday was still to be carried out by the CSCO's (or a suitably qualified staff member to act in place of the CSCO and receiving payment at the CSCO rate of pay - but not at the rate of pay of the CSCM). Since the implementation of the Realignment Determination, CSCO's working on weekends and supervising the operation of the motor registries have not been paid any additional payment for allegedly taking on managerial responsibilities. As I indicated earlier in this decision, the CSCO's continue to be paid a HDA on a daily basis when they relieve the CSCM's from Monday to Friday but not on Saturdays. 24The PSA application seeks to vary the Conditions Award to preserve the entitlement of the CSCO's to receive the HDA for their supervision of the motor registries on Saturday. The RTA argues that, with the removal of CSCM's for work on Saturday, there was really no managerial functions for the CSCO's to perform that was not something already covered by their existing statement of duties. The PSA disputes that assertion. 25In that respect, the Realignment Determination provides [Clause 3.3.3] as follows: "....Customer service centre managers will no longer be required in customer service centres on Saturdays as in general the work undertaken on Saturdays is limited to the processing of customer transactions. Consideration may be given in urgent situations at the discretion of the sector manager/business manager for a customer service centre manager to work overtime on a Saturday. However, this would only be available when all other possible options have been exhausted and where there is a perceived impact to customer service on a Saturday. There is no requirement within customer service centres for management function on Saturdays. Management functions such as staff performance management, rostering function, ANVIS audits, work and development discussions, work checking, rostering, invoice payment, performance management, SAP, RRA and coaching etc are not performed on Saturdays. There is a continuing requirement for supervisory functions of the staff and the counter. The RTA has previously resourced Saturdays with registry services managers qualified to perform these management functions even though their full managerial skills have not been required for Saturday trading. The level of staff and counter supervision required in customer service centres on Saturday is that of the standard customer service co-ordinator (formerly registry services co-ordinator). A supervisory function will be resourced to provide for staff and this can best be provided by an on-site customer service co-ordinator [CSCO] or where there is not normally a CSCO positioned at that location, an allowance to the salary level of CSCO will be paid to a responsible officer. The RTA does not consider there is a requirement for management functions on Saturdays, however, further information has been requested from the PSA and the RTA has given an undertaking to continue discussions in relation to the HDA paid on a Saturday post the determination. The CSCO currently has the responsibility and ability to give staff lawful directions in relation to customers, customer transactions, counter work and staff requirements: these roles are currently performed by CSCO's as part of their standard business practice. All other customer service centre staff will be rostered according to their headquarters location from Monday to Saturday as is the case currently and in accordance with customer demand. On occasions where customer service centres know they will be short staffed, these will be filled by drawing on the pool of staff resources available across their cluster. Customer service centre managers who manage locations that do not trade on Saturdays will continue to be rostered in accordance with the award and business demands..." 26ANVIS is an audit formerly conducted of car dealerships. It is no longer being conducted by the RTA. SAP is the RTA's electronic payroll system. Mr Gibian argues that there is some evidence before me that SAP is updated on Saturdays (by the CSCO's) but, in any event, it appears to be a routine administrative task representing no significant responsibility for a CSCM. RRA (a record management system) has apparently decreased in recent years with the introduction of new computer systems. THE EVIDENCE AND SUBMISSIONS 27As I see the position, there is a fundamental question flowing from Mr Gibian's submissions for the preservation of an entitlement for the CSCO's to receive the HDA for their work in the motor registry offices on Saturdays. How can they be entitled to a HDA for acting in a position when that position remains vacant on that day? That is essentially Mr Meehan's submission, ie that the RTA does not require CSCO's performing work on Saturdays to perform the managerial duties required of the CSCM's. But the issue before me turns rather on whether or not for their work of being effectively in charge of a motor registry on Saturdays they are exercising managerial responsibilities in excess of what would ordinarily be contemplated and expected to be within the range of duties they are required to perform as CSCO's. 28Mr Meehan argues that the work actually performed by the CSCO's on Saturdays when they are the officer in charge of the motor registries falls within the ordinary range of their duties. Mr Gibian argues that it does not and that, in effect, they are working at the level of CSCM's when they (or the CSO's who act in their place) are officers in charge of motor registries on Saturdays. Of course, if the motive behind the removal of the CSCM's from Saturday work was simply an exercise in cost cutting, the payment of CSCO's (or CSO's) at the level of CSCM's for the Saturday work would defeat the purpose of the arrangements for the change to Saturday trading. 29Mr Cole recorded in a written statement which formed the basis of his evidence: "....The PSA does not agree that management functions are not required to be carried out on a Saturday. There have been no changes to the actual duties performed by our CSCM or CSCO members who are rostered on Saturday. These duties can include managing and directing staff and additional hours for part time staff, oversight of and approval of cash balance anomalies as required, proof of identity decisions and computer overrides..." 30But that begs a fundamental question. When the CSCM's worked on Saturdays in the past, did they actually perform work at the CSCM level? Mr Meehan would suggest not. 31Mr Turner asserted in a statement (in reply) that he provided that: "....a CSCO rostered on a Saturday in the absence of the CSCM is responsible for the effective management of the registry on that day. The CSCO/CSO is responsible, on the busiest day of the week, for the effective and efficient delivery of business transactions, ensuring timely and quality response and service, supervising other staff and customer management. The effective day to day management of the motor registry is the fundamental responsibility of the CSCM. A CSCO or CSO who is (in) charge of a registry on a Saturday takes on the responsibility of the CSCM of ensuring the effective and efficient operation of the motor registry. During the week if a CSCO is required to be in charge of the registry they receive HSA at the CSCM rate, but not on Saturdays..." 32I accept that Saturdays are busy for all motor registry staff - it would appear from the evidence that it is the busiest day of the week. But it is not the amount of work that is the appropriate test but the type of work actually performed by the CSCO's when they supervise the motor registries on a Saturday. Nor in cases of this type it is the designation given to the occupant of a particular position. It is the nature of the work actually performed by the occupant of that position. In San Remo (Southland) Pty Limited v Farrell (1987) 22 IR 291 Macken J of the former State Industrial Commission explained the position (at pp.293 and 294) in the following manner: "...It is trite law that merely designating (an employee) as the 'manager' cannot be conclusive of his occupation... It is the work done by an employee which determines the rate of pay to which the employee will become entitled and not the designation which may be given to it by the parties..." 33The tasks of a manager are to provide general oversight and ultimate control of particular operations. As far as the CSCM's are concerned, their position description indicates that the person occupying that position is: "....responsible for the effective day to day business of the customer service centre to meet the effective and efficient delivery of business transactions, staff and customer management to meet key performance indicators..." 34And sets out key accountabilities in the performance of that function, ie essentially the implementation and compliance with RTA management policies and procedures, staff development, the management of customer service staff, ensuring the effective and efficient administration of all customer service centre correspondence, etc. 35The position description for the position of CSCO indicates that the person occupying that position is: "...responsible for the effective co-ordination of motor registry functions to provide quality customer service, by leading and developing the customer service team..." 36That position description refers to a co-ordinating role and assistance to the CSCM in a range of functions, including development and promotion of team-work, providing team leadership and effective communication, providing ongoing training and support in the development of staff, rostering of staff, recruitment and selection, the protection of assets, records and staff by ensuring compliance with security and fraud prevention procedures. It does not strictly speak of a management role in that respect. 37Mr Turner recorded in his written statement that: "....Monday to Friday CSCO's undertake these tasks under the supervision and direction of the CSCM. For example a CSCO may be the first port of call for escalated complaints from customers. However, if the CSCO needs guidance or is unable to resolve the complaint, he or she will consult with the CSCM. On Saturdays, in the absence of the CSCM, the CSCO will have ultimate responsibility for resolving the complaint..." 38Mr Gibian has examined specific functions performed by the CSCM's and considered those functions in the context of the position description of the CSCO's. Mr Tony Heathwood and Ms Karen McIlwain, CSCM's attached to the Shellharbour motor registry, who were called to give evidence in the hearing by Mr Gibian , outlined the range of functions which they claimed they performed as CSCM's on Saturdays and which would now fall to be performed by CSCO's on Saturdays, viz: * directing staff in all aspects of service to customers; * making decisions on emergency situations that may arise, including calling police or other emergency services; * approving unexpected overtime or additional hours for staff to meet unexpected business demands; * giving approval to accept various types of proof of identity for customers; * approving overrides of the DRIVES database controls as circumstances demand; * approving and waiver of non-balances by staff; * approving certain waivers of fees; * making various decisions that are outside the standard guidelines provided in front line help; * responsibility for balancing, accounting and securing monies received; and * responsibility for securing assets of the RTA and opening and closing the motor registry. 39Mr Heathwood asserted that the managerial responsibilities described in the Realignment Determination as not necessarily required to be performed on a Saturday in motor registries - staff performance management, rostering functions, audits, work development, work checking, rostering, invoice payment, performance management and coaching, etc - really did not represent the bulk of the managerial responsibilities of the CSCM's and he asserted in a written statement which formed the basis of his evidence that: "....there are times however on Saturdays where customer demands may allow for the CSCM and/or acting CSCM to perform some of those tasks..." 40Mr Heathwood added in his written statement that: "...often the transactions performed were more complicated than during weekdays and that often high level complicated transactions require substantial management experience and decision making skills. Further, one of the duties of a CSCM is to serve on the counter when required. This applies not only on a Saturday but any day of the week to meet customer demand..." 41Mr Peter Waugh, a CSCM attached to the RTA motor registry at Penrith, was also called as a witness by Mr Gibian . He shares the views of Mr Heathwood and Ms McIlwain, ie that management functions are still performed on Saturdays in motor registries. He recorded in a written statement that: "....when I worked on a Saturday I would perform managerial functions such as making the decision to waive fees, approving the issue or non-issue of a licence where manager's delegation is required. I would also be called upon where a customer had asked to speak to the manager where they were not satisfied with a staff member's decision. I sometimes had to performance manage a staff member if an issue could be, or had to be, dealt with immediately. Also on occasions I may have to change the roster if a staff member requested leave for the following week. Also in relation to my functions in relation to SAP every second Saturday was the cut off to process the payroll so I would update it on a Saturday if it needed to be updated..." 42Mr Gibian referred in his submissions to my decision of Friday, 2 June, 2006 in Department of Corrective Services v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2006] NSWIRComm 1079 in support of his argument for the HDA to be paid on Saturdays to CSCO's who assume responsibility for the motor registries. At issue in that decision was the payment of a higher duties allowance to prison officers whilst they relieved in commissioned officer positions. I examined the type of work performed by the prison officers and what they were required to assume when they acted as commissioned officers. I believed that there was a requirement for the prison officers to be paid at the higher rate of pay, with a minor discount. I indicated in my decision (at paras.45 and 46): "....I accept that the responsibilities which...(have been) identified as not being performed by those prison officers who act up in commissioned officer positions are all still very important functions for commissioned officers and they are essentially long-term issues. They are not something which may be performed effectively in short-term relief. Consequently, prison officers relieving in commissioned officers positions would not necessarily be called upon to perform those functions, at least to the same level as a permanent commissioned officer. Nevertheless, there may still be some functions - liaison with line managers, oversighting intelligence gathering, maintenance of security of the correctional centre, etc with respect to which some daily activity may, of necessity, arise and, in any event, the essential day to day operations of the correctional centres would apply to prison officers relieving in commissioned officer positions..." In my opinion, that should suffice to give them the entitlement to the salary of the more senior position .." 43But as Mr Meehan argued in his submissions, the essential difference in these proceedings is that there is no position in which to relieve on a Saturday. The RTA does not seek for the CSCM role to be performed on Saturdays at all. 44I note also that the position description of the CSCM's provides that the occupant of that position is "...responsible for the effective day to day business..." of the motor registries. Mr Gibian highlighted that fact in written submissions, viz: "....The bulk of the responsibilities set out in the position description for the CSCM position are responsibilities which necessarily arise each and every day of the motor registry's operation, including Saturdays. For example, ensuring compliance with RTA policies and procedures, managing and monitoring staff, ensuring security and occupational health and safety requirements are complied with and ensuring the collection, accounting and banking of all monies are necessarily responsibilities which arise on each and every day. This is made clear in the position description itself which repeatedly refers to the responsibilities of the CSCM as arising 'day to day ' or ' daily '..." 45But I believe that it is not necessarily always a useful course to adopt to itemise each and every task separately to determine whether or not it falls under the heading of a role confined to a manager . In my opinion, the appropriate way to determine whether a particular task falls under a manager's responsibilities is to determine the work holistically, to give a broad overview if the work. I note in that respect what was said by the Full Bench of the former Australian Industrial Relations Commission (Watson VP, O'Callaghan SDP and Gay C) in Layton v North Goonyella Coal Mines Pty Limited (2007) 166 IR 394 at p.402, viz: "....the task of interpretation is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical - notwithstanding that the role involves various recording and ordinary administrative office functions..." 46Moreover, to my mind, there is often a level of overlap between different levels of management in any business operation - and in this case I believe between CSCM's and CSCO's - and what is contemplated by purely managerial duties may often not be so clearly drawn. The distinction between the position of CSCM and the position of CSCO is blurred, in my opinion. 47Ms Carolyne Hartwig, a CSCM attached to the Albury motor registry was called to give evidence by Mr Meehan in the hearing. She asserted in an affidavit she provided as the basis of her evidence: "....When I worked Saturdays, I worked on the counter alongside the CSO's, performing the same frontline, client facing role that they were performing. I was not there on a Saturday to attend to my management tasks. For example, I was not there to complete leave approvals, rostering, performance management, training or investigating complaints. I was there to assist in dealing with approximately 100 to 120 customers who would attend the Albury motor registry on a Saturday, to co-ordinate the CSO's, to complete overrides and to assist CSO's with the interpretation of policy, if the CSO's could not resolve it amongst themselves. Saturday transactions are customer focussed, such as licence renewals, registration renewals, processing work diaries for heavy vehicle operators. If any complex issues or queries came in, then the matter would be placed on hold until Monday. The only time that I performed any of my management functions on a Saturday was if it was quiet, in which case, in between customers coming up to my counter, I would use the quiet time to make a start on my tasks for the following week. For example, I would sometimes start running the payroll. However, this was not the reason that I was rostered to work. The time for me to perform my managerial functions was during the working week Monday to Friday. Equally, where the CSCO was rostered to work a Saturday, he was not expected or required by me to perform the management tasks. On a Saturday, as well as transactional work, there is a lot of other customer focused work that needs to be done if there are quiet spells, such as tidying up the motor registry, processing dealer work, filling up the application forms, processing any transactions that customers have put in the 'drop-box' and boxing plates that have been returned..." 48Ms Judy Blight, a CSCM for the Gosford motor registry of the RTA was also called as a witness in the hearing by Mr Meehan . She took a similar view, recording in an affidavit which formed the basis of her evidence: "...Since I have stopped working as the CSCM on Saturdays, there have been very few issues which have not been resolved in my absence. Staff can call me on my mobile phone on Saturdays if an issue arises which they do not feel comfortable in resolving. I have only received two or three phone calls on a Saturday since I ceased working Saturdays. These calls were mainly to do with property issues. By property issues I mean issues with water or electricity at the RTA motor registry. The CSCO on the day resolved the issues, whether it was customer related or property related. My experience is that the CSCO was contacting me on these occasions to make me aware of a situation or to ask who they should contact to help resolve the issue. During the week, if a CSCO identifies a property issue, they will usually notify me so that I am aware but escalate the matter themselves..." CONCLUSION 49Mr Gibian recorded in his written submissions that: "....the inescapable inference to be drawn from the evidence taken as a whole is that the essential duties and responsibilities of the CSCM position are, by necessity, taken on by the CSCO (or other member of staff in charge) on a Saturday. Whilst the RTA may wish not to roster CSCM's on Saturday, it is unavoidable that someone will be in charge of the motor registry on that day. That person (the CSCO or other staff member in charge) will be performing the job of the CSCM and should be remunerated by way of the payment of a higher duties allowance at the manager's rate..." 50But in my opinion being in charge of a motor registry on a Saturday is not necessarily the same thing as managing it. That is the fundamental distinction between a CSCM and a CSCO, as I see the position. 51It is Mr Meehan's submission that those functions performed by CSCO's on Saturday actually fall under work which would ordinarily be expected of them. Indeed, the evidence before me appears to support Mr Meehan's submission that the CSCO's on Saturday are predominantly involved in work at the counter alongside the CSO's. I share his view. It is clear that the RTA does not require the CSCO's to perform managerial functions. It is for that reason that the RTA believed that it could remove the CSCM's from Saturday work in the first place. If the CSCO's supervising motor registries on Saturday do actually perform managerial work at the level of the CSCM's - and on the basis of the evidence before me in this hearing I do not consider that they actually perform work outside the range of duties which would ordinarily be expected of them as CSCO's - they are not actually called upon to do so by the RTA. 52For those reasons, I reject the PSA claims made in this hearing and dismiss the PSA's application to vary the Conditions Award and the accompanying s.130 notification. P J CONNOR Commissioner Statement Attachment 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. Decision last updated: 22 June 2011