Industrial Relations Commission New South Wales Medium Neutral Citation: USU v Botany Bay City Council [2012] NSWIRComm 1023 Hearing dates: 26/06/12 Decision date: 14 September 2012 Before: Ritchie C Decision: Catchwords: Section 130 dispute notification- payment of Productivity Bonus- dispute between parties re formulation of measurement. Conciliation unsuccessful -dispute proceeded to arbitration- hearing took place-prior to determination parties reached agreement-Consent Order made. Legislation Cited: Industrial Relations Act, 1996 Category: Principal judgment Parties: Applicant-New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union. Respondent- Botany Bay City Council Representation: Mr M Barnes (applicant) from White Barnes Solicitors Mr P Bell (respondent) from Local Government Association of New South Wales File Number(s): IRC 31 of 2012 DECISION Background. 1The New South Wales Local Government , Clerical, Administrative, Energy, Airlines & Utilities Union ( the applicant) filed a dispute under section 130 of the Industrial Relations Act, 1996 against Botany Bay City Council ( the respondent) re DARG Productivity Payments. 2The dispute came before the Commission on eight separate occasions without reaching a final agreement. The matter was therefore listed for arbitration and the parties were provided with a timetable for the filing and serving of evidentiary material. 3Whilst the original dispute notification listed a number of issues that were in dispute between the parties, through negotiation a number of these issues were resolved. 4The hearing of the dispute was held on 26 June 2012 and the decision was reserved. 5Prior to the decision being published the two parties came back before the Commission on 5 September 2012 and advised that a consent position had been arrived at. 6 As a consequence the parties were directed to submit consent Orders. 7I now make the following consent Orders in settlement of this dispute . Orders (1)The recruitment of an additional Waste Services employee shall commence within seven (7) days of the filing of these consent orders. The recruitment process shall be completed as soon as is reasonably practicable and will result in the core employees in Waste Services being increased by one (1) to nine (9). (2)All new appointments to Waste Services will be employed pursuant to the terms and conditions of the City of Botany Bay Council Waste Services Enterprise Agreement [IRC 9/1504] (the Agreement). (3)Pursuant to sub-clause 6.1 of the Agreement the core eight (8) Waste Services employees shall each be paid, for the period 1 September 2010 to 30 June 2011, an allowance of $43.75 a week for all purposes (excluding overtime) calculated by reference to 1,000 additional bins collected at a premium of 35 cents per bin. (4)Pursuant to sub-clause 6.1 of the Agreement the core eight (8) Waste Services employees shall each be paid, for the period 1 July 2011 to the date on which the core number is increased to nine (9) employees, an allowance of $87.94 a week for all purposes (excluding overtime) calculated by reference to 2,011 additional bins collected at a premium of 35 cents per bin.Pursuant to sub-clause 6.1 of the Agreement the core eight (8) Waste Services employees shall each be paid, for the period 1 July 2011 to the date on which the core number is increased to nine (9) employees, an allowance of $87.94 a week for all purposes (excluding overtime) calculated by reference to 2,011 additional bins collected at a premium of 35 cents per bin. (5)Effective from the date on which the core number is increased from eight (8) to nine (9) and pursuant to sub-clause 6.1 of the Agreement the Productivity Allowance, detailed in sub-clause 3.2, shall be increased by the percentage increase in the number of bins collected by the employees for the period between 1 September 2009 and 1 April 2012 (from 13,100 to 15,111 an increase of 15.35%). This will result in the current Productivity Allowance increasing by $26.27 (the new Productivity Allowance will be $197.36). (6)The amount determined in clauses 3, 4 and 5 above shall, consistent with clause 3 of the Agreement:- (a)Not be the subject of any Award absorption and the employees will not suffer any financial detriment as a result of absorbing any award increases or any other increases in the Local Government (State) Award (the Award). (b)The Productivity Allowance will be paid for all purposes and as applicable will be increased each year in line with Award variations. (c)The current agreement for the relief staff will remain unchanged in relation to the payment of the Productivity Allowance for relief employees (i.e. consistent with the decision of Tabbaa C. in IRC 990/1993). (7)The Union, members and Council agree to review the service as necessary in the future. This may include, but not be limited to, discussion of workloads, resourcing of the section and changing waste disposal requirements. The parties are committed to consultation. The Union and its members deny that entering into a review constitutes an admission an admission for any purposes of the necessity for the review or any consequential change. (8)A further count of bins will be undertaken in December and June in each year of the Agreement and the increase in the number of bins will be applied, consistent with the simple percentage formula detailed above, to the Productivity Payment. These percentage increases will be operative from the beginning of the first full pay period to commence on or after 1 January and 1 July each year. Increases as applied to the rates of pay and allowances in the Award shall also apply to the Productivity Allowance and shall be operative on the same date as the Award increases. D. Ritchie Commissioner 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: 14 September 2012