Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Roads and Traffic Authority of New South Wales [2011] NSWIRComm 147 Hearing dates: 31/10/11 Decision date: 08 November 2011 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President; Harrison DP; Bishop C Decision: Leave to appeal is refused Catchwords: APPEAL - application for leave to appeal and appeal - findings open upon the evidence - no appealable error - leave to appeal refused Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Appellant) Roads and Traffic Authority of New South Wales (Respondent) Representation: M Gibian of counsel (Appellant) S R Meehan of counsel (Respondent) W G McNally Jones Staff (Appellant) File Number(s): IRC 1243 of 2011 Decision under appeal Citation: Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff) Award No 2 [2011] NSWIRComm 1027 Date of Decision: 2011-06-22 00:00:00 Before: Connor C File Number(s): IRC 334 of 2010 IRC 1360 of 2010 DECISION 1This is an application for leave to appeal and , if granted , appeal by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") against a decision of Commissioner Connor in Matter No's IRC 334 and 1360 of 2010. 2The issue in both matters before Connor C was whether Customer Service Centre Co-ordinators ("CSCO's") working on a Saturday should be paid a higher duties allowance to bring them to the rate of a Customer Service Centre Manager ("CSCM"). 3The Commissioner concluded that being in charge of a motor registry on a Saturday is not necessarily the same thing as managing it; and on the evidence before him CSCO's do not actually perform work outside the range of duties which would ordinarily be expected of them. 4These conclusions were available to the Commissioner on the evidence before him and do not contain appealable error. 5It was foundational to the contentions of the PSA that the CSCO provided relief each Saturday in a higher graded position. That was the essence of the application to vary and the alternative application which we shall discuss momentarily. We do not consider that the evidence enables, however , such a conclusion to be drawn. 6The respondent employer restructured its weekend registry operations so as to remove any requirement for the position of CSCM to be worked during that operating period. There is nothing in the evidence to suggest that the CSCO was, in substance, acting or relieving in that position when performing work on a Saturday after the restructuring. In short, there was no proper basis under the existing award conditions, or as a matter of merit in relation to the variation of the provisions to justify the claim. This is what the Commissioner effectively found and he was correct to do so. 7By its variation, the PSA also sought the insertion of a general adjustment to the award clause for higher duties so as to provide for the payment of such allowances on a daily basis. This did not receive a great deal of separate attention in the Commissioner's decision but the respondent was correct to submit, in our view , that this claim was very much conditioned by the PSA's primary application in relation to payment for Saturday work. The Commissioner was ultimately correct to conclude that the failure of one must lead to the failure of the other. 8Returning to the alternate claim, there was no difference in substance between the terms of the alternative claim and the primary claim that we have ruled on above for the purposes of this appeal. Whilst there was a reduction in the quantum claimed, there was no material difference in the bases for the respective alternative claim. The alternate claim should fail on the same basis , therefore, as the primary claim for the purposes of this appeal. 9Having regard to these considerations, and the absence of any feature of the appeal which might otherwise legitimately attract the grant of leave to appeal, we have decided to refuse leave to appeal and will order accordingly. ORDERS 10The Full Bench makes the following Order: 1. Leave to appeal is refused. ********** 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: 08 November 2011