The Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102

Industrial Relations Commission New South Wales Medium Neutral Citation: The Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 Hearing dates: 14 - 15, 29 November 2013 Decision date: 06 December 2013 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: In matter No IRC 700 of 2013, I make the following determination: Pursuant to s 136 and s 175 of the Industrial Relations Act 1996 that the State Transit Authority's proposed reform initiatives "to utilise casual bus drivers to cover all absenteeism (caused by sickness, workers compensation, unapproved leave, resignation, retirement, or additional shifts is: (i) Contrary to existing custom, practice and usage; (ii) A change which, given cl 6 (no extra claims) of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012 cannot be unilaterally introduced during the term of the Award; and (iii) Not permitted by the Award, and in particular, is contrary to cl 32.4 of the Award. In matter No IRC 701 of 2013, I make the following determination: Pursuant to s 136 and s 175 of the Industrial Relations Act 1996, a determination that the State Transit Authority's proposed reform initiatives "to introduce part-time broken shifts" is: (i) Contrary to existing custom, practice and usage; (ii) A change which, given cl 6 (no extra claims) of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012, cannot be unilaterally introduced during the term of the Award; and (iii) Not permitted by the Award, and in particular, is contrary to cl 13 of the Award. Catchwords: AWARD INTERPRETATION - INDUSTRIAL DISPUTE - ability of employer to utilise casuals and part-time employees to work broken shifts - history of Award - custom practice usage - principles - industrial merit - no extra claims clause - determination - s 136 and s 175 Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Cases Cited: Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 Kucks v CSR Ltd (1996) 66 IR 182 NSW Education Employees (Non Continuing Contract Employment) Award, Re (1999) 92 IR 239 NSW TAFE Commission (Teachers and other Educational Staff) Salaries and Conditions Award 1996, Re (1999) 123 IR 360 Re Corrections Health Service Nurses' Award (1999) 90 IR 235 at 245 Re Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs [2008] NSWIRComm 117 In re Australian Iron & Steel Limited and the Federated Ironworkers' Association of Australia, New South Wales Division re Furnace Demolishers (1960) 59 AR 670 NSW Nurses' Association v South Western Sydney Health Service [1994] NSWIRComm 147 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 State Transit Authority of New South Wales, The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K6513) State Transit Authority of New South Wales and The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K8515) Sydney Water Corporation v The Association of Professional Engineers, Scientists and Managers, Australia (NSW) Branch [2010] NSWIRComm 158 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; 79 ALJR 129; 211 ALR 342 Category: Principal judgment Parties: Australian Rail Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division (Applicant) State Transit Authority of New South Wales (Respondent) Representation: Mr I Taylor SC with Mr O Fagir of counsel (Applicant) Mr A Woods solicitor (Respondent) Australian Rail Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division (Applicant) Henry Davis York Lawyers (Respondent) File Number(s): IRC 272, 700 and 701 of 2013