Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Goldenfields Water County Council [2016] NSWIRComm 1040 Hearing dates: 3 November 2015 Decision date: 04 November 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: 1. The duties of the position at Temora are not substantially different to those undertaken by Mr Corby in his present position at Cootamundra and therefore his position has not been made redundant. 2. Operational and other reasons set out in the decision require the position to be relocated to Temora. Council cannot require Mr Corby to reside in Temora. 3. Council is not required to continue providing Mr Corby with a Council vehicle to commute from his residence to the worksite and vice versa. Catchwords: Dispute Notification-Council restructure-Moved headquarters to Temora-Job Description revised-Union Member offered option of taking redundancy or accepting the revised position-Required to reside in Temora if he opts for the revised position-Union member contends that provision of vehicle to commute to work every day has been a custom and practice over 8 years-Council vehicle contended to be a condition of employment-Award does not require vehicle to be provided for private use-Conditions of employment do not include provision of vehicle for private use-No lease back arrangements entered into by Union Member. Legislation Cited: Industrial Relations Act 1996 Local Government Act 1993 Category: Principal judgment Parties: NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Applicant) Goldenfields Water County Council (Respondent) Representation: Mr R Oppitz (Applicant) Mr A Barwick, WilliamsonLegal (Respondent) File Number(s): 2016/19418 (formerly IRC 243 of 2015) DECISION 1. The New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the USU), on 20 April 2015, filed a notification advising of a dispute with Goldenfields Water County Council (the Respondent). The notification stated: 1. The Union on behalf of its members is attempting to resolve a large number of issues with Council. 2. Those issues have been communicated to Council in correspondence from the Union. 3. The Union has requested meetings with Council to discuss these issues. 4. Council are refusing to meet with the Union. 5. In accordance with Clause 32, Grievance and Dispute Procedure, the Union requests the assistance of the Commission. 6. The Union seeks to engage in meaningful negotiations and discussions with Council to resolve the matters of concern for our members. 1. The Respondent filed a response to the matters contained in the dispute notification on 24 April 2015 advising as follows: 1. The Council was proclaimed under the NSW Local Government Act on 24 April 1997 and, from 1 July 1997, became responsible for water supply functions within the Local Government areas of Bland, Coolamon, Cootamundra, Harden, Junee, Temora, Young and part of Narrandera. 2. With the exception of its General Manager, who is designated as "senior staff" pursuant to the Local Government Act 1993 (NSW), all employees are employed under the Goldenfields Water County Council Enterprise Award 2010. 3. The Council currently has 46 Award employees. 4. Over the past few months the Union and the Respondent have had an acrimonious relationship, arising from the failed negotiations for a new Award (now dealt with in Matter No 241 of 2015) and several disputes regarding the need for the Respondent to restructure its operations to make it more effective to carry out its essential services role. 5. Attached are copies of the recent correspondence between the Union and the Council, setting out relevant issues. 6. The Council is content to deal with all issues raised by the Union under the supervision of the Honourable Commission. 1. Conciliation proceedings held on six separate occasions identified a large number of issues in dispute between the parties. All issues, bar two, were resolved during those conciliation conferences. A further issue was resolved on 22 January 2016. 2. At the request of the parties directions were issued on 4 August 2015 in relation to arbitration of the outstanding issue while conciliation attempts continued. 3. When it was obvious that the matter was not going to settle by conciliation, a Certificate of Attempted Conciliation was issued on 26 October 2015. The matter proceeded to hearing in Temora on 3 November 2015 during which time evidence was received from the following: USU Witnesses Tony Noel Corby Water Quality Officer Robert Anthony Barrett Process Control and Information Officer George Basham Headworks Officer Alan Frederick Moston Previous Technical Officer Respondent's Witness Andrew Grant General Manager Overview 1. Goldenfields Water County Council (the GWCC), one of five in New South Wales, is a special purpose council pursuant to the Local Government Act 1993 and has the specific responsibility for the supply and distribution of water to the local government areas of Bland, Coolamon, Cootamundra, Harden, Junee, Temora, Young and part of Narrandera. 2. GWCC operates a water supply scheme across an area of approximately 22,526 square kilometres within the Southwest slopes and Riverina districts of New South Wales. 3. The GWCC system consists of five water schemes, the main ones being Jugiong and Oura and the others being Mt Arthur, Mt Daylight and Hylands Bridge. In addition, there are bores at Matong (pumping water to Ganmain) and Mt Daylight (supplying Weethalle to Tallimba and other rural areas). The Council is also undertaking the construction of additional pipelines – approximately 200 km – at Mandamah which is closer to Temora than it is to Cootamundra. 4. In addition, GWCC operates over 100 significant pieces of infrastructure (in the form of reservoirs, pipelines, pumping stations and chlorinators) spread all over its local government area. 5. Employment at Council is governed by the Goldenfields Water County Council Enterprise Award 2014. The Award does not provide for the provision of a vehicle as a condition of employment. 6. The Council is undergoing some significant changes. It is proposing to sell the Cootamundra depot and centralising a lot more of its functions at the new site at Temora across from which construction is taking place of a new workshop, stores and training room. 7. The dispute relates to the intention of GWCC to re-locate the position held by Mr Tony Noel Corby as Water Quality Officer from the Cootamundra Depot to Temora without his consent. Council argues that the relocation is part of its need to achieve the Key Objectives set out in its Business Activity Strategic Plan and its goal as expressed in the Asset Management and Long Term Financial Plans to manage its infrastructure assets in the most cost effective manner. 8. As part of achieving those goals, Council decided to downsize the Cootamundra Depot and transfer some roles to Temora where it was constructing a store/workshop, workshop office/amenity block and training room with the intention of making it into a centralised "hub and control" room for its operation. Mr Grant was given a direction by his Board on 1 May 2013 to list the Cootamundra depot for sale (Resolution 13/042). It was envisaged that a base would be maintained at Cootamundra for those undertaking repair work in the scheme. As at the time of the hearing, the Cootamundra depot was being sold under an Expression of Interest. The decision was made in consideration of the operational costs incurred and efficiencies resulting from the following: 1. The difficulty experienced in co-ordinating staff functions, meetings and training (eg first aid and specialist training) at Temora given the dispersement of staff across the region; 2. Recent technology upgrades which have resulted in a change in the way the Council undertakes its operations. Remote monitoring has lessened the need for staff to be permanently located at remote locations; and 3. Mr Corby was required to participate in the development of new sensors for the network, including chlorine and chemical sensors that will be monitored from Temora. 1. In particular, Council reasoned that relocating Mr Corby's position would improve operational efficiency in the following ways: 1. 97 per cent of his tasks can be performed at Temora or are close to Temora reducing a significant amount of driving; 2. New schemes under construction (22 km of pipeline known as the Mandamah scheme) are west of Temora and will require significant disinfection during construction over the next two years, under his supervision; 3. The eastern side of the scheme is the domain of bulk councils and GWCC has no plans to build future schemes there; 4. Significant improvements in line management, mentoring and workplace communications in view of the fact that other supervisors and Mr Corby's new Section Manager are now located at Temora; 5. Sites that may require visits by Mr Corby are significantly closer to Temora than Cootamundra; 6. Mr Corby will be integral to the development and operation of the new sensors being developed at Temora for the network; 7. Mr Corby's efficiency in the role will be improved as, firstly, he will have IT and administrative support at Temora which he currently does not have at Cootamundra and, secondly, work he currently performs in the store will no longer be required of him when the store is relocated to the new Temora facility; and 8. The water testing laboratory facilities are to be relocated to the new Temora workshop. 1. In correspondence dated 11 March 2015, the General Manager advised Mr Corby as follows: Due to proposed organisational changes your position will move to Temora. It will be a requirement of your position to live in Temora, due to on call and duty requirements. You are offered $15K plus buying and selling costs and reasonable removal costs should you move. If you decide not to accept the position change, you will be entitled to normal redundancy entitlements. The USU is being notified of the proposed changes. The new changes are proposed to be in place by the end of the current financial year…. Feedback is requested by 27 March 2015. 1. Mr Corby is permitted use of a GWCC vehicle as a tool of trade. He is required to comply with GWCC's policies and procedures in relation to vehicle usage at all times. The use of the vehicle is not a condition of his employment. He does not receive any form of allowance in relation to the use of a private vehicle. There was no lease back arrangement with Mr Corby. 2. A direction was given by the GWCC Board that no further vehicles be given to employees for travel from other locations other than on a temporary basis. 3. It was contended by the General Manager of GWCC that the position held by Mr Corby at Cootamundra was redundant. He was required to undertake the same position at Temora but without the use of a Council vehicle for private use which would mean that he may have to relocate his residence to Temora. At Temora, he would have access to a Council vehicle as part of his tools of trade. 4. The USU argued that the provision of a Council vehicle to Mr Corby was part of his contract of employment and was also custom and practice. 5. It was also argued that the Council was in breach of Clause 36.2.1 of the award which requires Council to discuss any significant alteration to the system of work or conditions of employment. 6. The USU further argued that the actions of the General Manager in regard to the issue in dispute amounted to both harassment of and discrimination against Mr Corby. 7. The USU sought the following relief from the Commission: 1. That the position of Water Quality Officer at Cootamundra be declared as not redundant; 2. That Mr Corby be maintained in the position of Water Quality Officer at Cootamundra; and 3. That Council be required to observe the agreement with Mr Corby in relation to the provision of a Council vehicle which includes travelling to and from his residence. 1. Alternatively, if the Commission was to find that the Water Quality Officer position at Cootamundra is redundant, then Council be required to maintain the agreement with Mr Corby in relation to the provision of a Council vehicle which includes travelling to and from his residence in Cootamundra. The Evidence 1. Mr Corby tendered a Statement and a Statement in reply in the proceedings. 2. Mr Corby commenced working with the Respondent on 8 October 1984 when it was originally known as South West Tablelands Water Supply. He commenced as a storeman/labourer and eight years' later worked variously as Acting Storeman/Clerical Officer/Labourer for two years until his appointment, in response to an internal advertisement, as Water Operator at the Jugiong Water Treatment Plant, a position he has held over the last eight years. He was supplied with a Council vehicle upon his appointment as a Water Operator. He lives with his family in Cootamundra. 3. The Position Description sets out that the objective of the position of Water Quality Officer is to undertake the supervision and co-ordination of Council's water treatment activities to ensure that water quality meets all regulatory standards, Council's desired high levels of service and customer expectations. Mr Corby gave evidence that there were two main aspects of his role – a supervisory function and as a co-ordinator of water treatment activities (which includes water quality). 4. Mr Corby agreed that he supervised Mr Brendon Ford who works regularly at the Jugiong water treatment plant; Mr Rob Davis who works some of the time at Oura water treatment plant and the rest of the time at other plants; and Mr George Basham who works at the Cootamundra water treatment plant. Mr Corby also agreed that his duties included supervision of the contract cleaner at the Jugiong plant. He stated that they travel to meet with him at Cootamundra but he also regularly visited them at their work sites. He agreed that the only supervisory function he undertook at Cootamundra was over Mr Basham. 5. Mr Corby confirmed that the bores at Matong and Mount Daylight are closer in travel distance to Temora than they are to Cootamundra. 6. Mr Corby also confirmed that if any of the important pieces of infrastructure failed, it would have an impact on water quality and therefore risk assessments are required by the Department of Health to be undertaken from time to time on each piece of infrastructure to assess the level of risk that attaches to them if they failed. He disagreed that some of those assessed as being of higher risk than the Jugiong plant in terms of failure and consequences have included Mount Daylight and Mount Arthur which are a fair distance from Cootamundra. He conceded, however, that they were assessed as being of similar risk. 7. The Jugiong Treatment Plant is the most complex and involved site in the scheme as it is the only site treating raw river water. A few years ago, Council spent about $10 million updating it to achieve a largely automated piece of infrastructure that is capable of shutting itself down. It is a site that he mostly visits and it is on the opposite side of Jugiong. Mr Corby stated that he has worked at Cootamundra and Jugiong for the past 21 years. 8. Mr Corby agreed, during cross-examination that, 1. There is not a lot of difference in the travel times from Temora to Oura as opposed to Cootamundra to Oura; 2. The Wylong Daylight plant is significantly further away from Cootamundra than it is from Temora – about 35 minutes longer in travel time; 3. Temora is far more centrally located within the Goldenfields water area than Cootamundra is; 4. The area has been broken down into effectively four different micro-testing runs for the purpose of weekly testing – the eastern run (which includes Cootamundra); the southern run; Temora Barellan run (which starts just outside Temora towards Ariah Park) and the Wyalong Daylight run (which takes in more of the north and over to the northwest where Daylight is). He has assigned the collection of samples to Mr Basham and his two other staff members to do sections. However, he has personally travelled to those areas to collect the samples himself. 5. The Cootamundra laboratory is fairly compact and is currently equipped with the following equipment for micro testing – a workstation, a microbiological incubator (smaller than 1m square; a sink, and a large cabinet for storing chemicals (much like a filing cabinet). 6. It was possible to relocate the laboratory into the head office at Temora. He is aware that it was Council's intention to move his position to an open plan environment. 7. He manages and accepts deliveries and unloads pallets almost daily at Cootamundra as he is the only one there. He is aware that the Council is constructing a new workshop, stores area and training room opposite the Council building at Temora and that Council intended that that part of his function will be in future be performed at Temora. (He insisted that chlorine cylinders would still be delivered to a store just outside Cootamundra.) 8. Those bringing back water samples would have less distance to travel to deliver them to a laboratory at Temora albeit those on the eastern run might take a bit longer. This is because the majority of those sites are closer to Temora than they are to Cootamundra. 9. The Council wanted Mr Corby to be involved in the development of new sensors for the GWCC network, including chlorine and chemical sensors that will be monitored from Temora. Mr Corby wanted to be more involved in the project which was likely to occur at the new workshop when it is completed after December 2015. It would involve some up-skilling of his role. The IT staff and the other supervisors involved with the development of the sensors are located at Temora although he was aware that one Supervisor travels over from Cootamundra to Temora to attend meetings in relation to the sensors. 10. It would make more sense, if he is intended to be integrally involved in the development of that technology, for him to be located in Temora with everyone else working on that project. 11. He currently resides approximately 1 km away from the Cootamundra depot. If he were to relocate to Temora without shifting residence, he would have to commute 112 km round trip or 560 kms per week (approximately 35 minutes each way per day). 12. The Council currently allows him some limited private usage of its vehicle to commute from his residence to the depot at Cootamundra which, in terms of the mileage clocked up, is minimal (some $2 per day) and which is significantly less than the 560 km private use which would be clocked up to Council if he were allowed to commute every day from Cootamundra to Temora – a significant increase to the cost of his remuneration package. 13. He was aware that two supervisors – electrical and mechanical trades respectively – had already made the move from Cootamundra to Temora. 14. Since Mr Grant commenced as General Manager of the Council in 2011, Mr Corby has been elevated five levels (an increase in salary in excess of 30%), and financed to attend a Certificate IV course in Operations and a Certificate IV in Frontline Management. 15. He would like it if there was an opportunity for him, while at Temora, to involve himself in ensuring there was appropriate disinfection in the construction of the new pipelines at Manimar. He also acknowledged that it would be easier to visit the site if he was located at Temora. 16. Communication may be improved on a whole range of issues if he was located at Temora. 17. It would be easier to attend any training required of him as all training is undertaken at Temora. 1. Mr Corby was taken to the Position Description for the role of Headworks Co-ordinator which will be his role once the relocation occurs. His participation in the development and implementation of the new remote sensor technologies was listed as one of the key duties of that position. Mr Corby stated that he would be happy to become involved in the project. During re-examination, Mr Corby confirmed that the first time he saw that position description, which was very similar to his existing position, was when he read the statement of Mr Grant. 2. Mr Corby also indicated his willingness to be involved in the training and mentoring of three trainees who were recently employed by Council at Temora. He agreed that it would be much easier to do so if he was physically located at the same place. During re-examination, he clarified that he has never been approached and asked to train or mentor them nor did he know what traineeships they had. 3. The only member of his staff who worked at Cootamundra was Mr Basham who was advised that he will not be relocated prior to March 2016. He acknowledged that if he moved to Temora, it would not significantly change the way he interacts with his team because of their location as described above, however, communication would be improved as it would be easier for him to interact with the other supervisors and manager who will mainly be located at Temora. During re-examination, Mr Corby pointed out that no issue has ever been raised with him about communication. Whilst he acknowledged that if he worked from Temora there will be improved communication with other staff in Temora, the same cannot be said for his staff at Cootamundra and other staff at the headworks. 4. Mr Corby stated that he communicated with his staff daily and would visit Jugiong approximately once a week and would visit Oura at least once a fortnight. In terms of other infrastructure, his visits were on a needs basis. As at the time of giving evidence, he has not been involved with work on the construction of the pipelines. 5. Mr Corby suggested that the Council was selling off the Cootamundra depot partly to support its argument in these proceedings. Nevertheless, he responded during cross-examination that he was aware that the sale of the depot was on the agenda even prior to the commencement of this dispute. 6. Mr Corby stated that his wife had refused to relocate to Temora and therefore he would have to rent and return to Cootamundra when he was not at work. He argued that he would find it much harder living away from his family if he was to move to Temora. While he agreed that reducing driving times is an important safety consideration, he stated that he would find it easier to drive every day from Cootamundra to Temora than to drive the same distance in Sydney. He stated that he has lived in regional New South Wales all his life and has worked in the industry in excess of 30 years and has hit kangaroos a lot of times on the road but never hit one in a Council vehicle. He did not believe that driving 35 minutes in the morning would cause him any additional strain or stress. 7. Whilst driving time from Temora to infrastructure sites in the outlying areas would be shorter, Mr Corby pointed out that it is further to Jugiong which is one of the main problem areas. Most of his attention was centred around Jugiong and Oura both of which, he estimated, produce the greatest volume of water, approximately 90% of total output. 8. Mr Corby stated that he had no qualms about travelling to Temora to attend meetings pointing out that it did occur very often. During re-examination, he pointed out that there has never been any issue raised with him about non-attendance or lateness at such meetings. 9. Mr Corby stated that the southern distribution supervisor, Sean Tiernan, who does the same work as himself, also has a council vehicle, commences his work day at Cootamundra and organises his staff from there. He also has a desk in Temora where he will travel when needed. 10. Mr Robert Anthony Barrett is employed in the position of Process Control and Information Officer, at the Council's offices at Temora. He was the supervisor of Mr Corby when he was first appointed as Water Quality Officer. 11. Even though Mr Barrett contended in his statement that he was aware that Mr Corby had a council vehicle as part of his salary package, he admitted, during cross-examination, that he was doing his best to try and reconstruct what may have occurred at the time of Mr Corby's appointment as opposed to having any actual recollection of conversations with Mr Corby, or the Operations Manager (Nick Nasser) or the General Manager at the time (Paul Urn). 12. Mr Barrett agreed with Mr Corby that Jugiong is the most complex part of Council's infrastructure and therefore if Mr Corby was required to relocate to Temora, it would be more difficult for him to fill in at Jugiong when he is required to. He confirmed that when he was based at Cootamundra, he observed that Mr Corby went to Jugiong on a regular basis. 13. Mr Barrett confirmed that Jugiong was a highly automated piece of plant but pointed out that the dosage settings, which are a critical part of the plant, are all manually set for a range of raw water quality which varies quite a bit because it is run of river – there is no off stream storage and therefore one has to treat what comes past. 14. Mr Ian George Basham, Headworks Officer, provided a statement in the proceedings. He was not required for cross-examination. 15. Mr Basham stated that he did sample runs that could add up to 2000 km a fortnight. When he went on leave, Mr Corby would sometime fill in for him. As Jugiong was 45 km away from Cootamundra and 114 km from Temora, it would result in a great deal of increased travelling time for Corby. 16. Mr Alan Frederick Moston, employed until July 2015 by GWCC in the position of Technical Officer working from both the Cootamundra and Temora depots, provided a statement in the proceedings. He was not required for cross-examination. 17. Mr Moston stated that Mr Corby would incur a financial impost due to travel costs if he had to travel to Temora and then double back if required to travel to various sites. 18. Mr Moston also stated that he was aware that Mr Corby's position has always had a vehicle attached to it for practicality to allow him the incumbent to move around the scheme. He was also aware that Mr Corby had restricted private use of the Council vehicle – he was allowed to drive it from his residence to the office and return and on personal business within the Cootamundra town boundary. Mr Moston was aware that a similar arrangement existed with Sean Tiernan and Mick Lewis, Distribution Group Co-Ordinators North & South. Mr Moston was also aware that Nigel Marion, Design and Modelling Officer, had a similar arrangement but he lives in Cootamundra and works in the Temora office. 19. Mr Andrew Grant provided a Statement in the proceedings in which he advised that the strategic business direction for GWCC is driven by the Business Activity Strategic Plan 2013/23 which was adopted by the Council's Board on 25 June 2015. 20. Earlier in 2012, the GWCC commissioned an Asset Management Plan which determined that the goal of the Council in managing infrastructure assets "is to meet the required level of service in the most cost effective manner for present and future consumers". 21. Mr Grant contended that the Board has directed that no further vehicles be allocated to employees for travel from other locations other than on a temporary basis. 22. Mr Grant interpreted that to include the circumstances relating to Mr Corby. He was adamant that he had not given Mr Corby permission to use the council vehicle for private purposes by commuting to and from home. He further contended that he had no idea that Mr Corby was using his council vehicle in that way. It was not part of his conditions of employment. He had not entered into any lease agreement regarding private use of that vehicle. The Council intended to draw a line in the sand in relation to personal use of Council vehicles and that policy included the General Manager. 23. In relation to the examples provided by the Unions' witnesses, Mr Grant responded as follows: Mr Goush has no private use of a motor vehicle apart from the use of one as a tool of trade; Mr Nigel Marion does have a car included as a specific condition in his employment contract which was negotiated directly with the Engineer and approved by the then General Manager; Messrs Tim Maguire and Shane Baldry do not have the private use of a council vehicle. They leave the council vehicle at the depot albeit Mr Baldry has slightly more leeway when he is in the position of Acting Manager. Both elected to take the compensation package and relocate to Temora. Mr Barrett entered into a lease back arrangement with Council before Mr Grant came into the job. Mr Tiernan is in charge of the southern area and has emergency response and on call functions. He is also a duty officer but a duty officer does not necessarily have to travel to sites. He sometimes takes the council vehicle home but Mr Grant was not sure how many days a week that occurs. 1. Mr Grant confirmed that Mr Corby is a duty officer. Despite the fact that Mr Corby states that he has not been required to be on call, his position description clearly sets out that a condition of his employment is a "Rostered nine day fortnight, but call out and overtime provisions apply". In addition, the Award contains call out provisions. 2. Mr Grant stated that both Mr Corby and the USU were made aware of the proposed major changes to be made – the construction of a purpose-built workshop at Temora where GWCC's principal office is located and the decision of Council to relocate Mr Corby's position to Temora. He stated that Council made an offer of continuing employment to Mr Corby for the position of "Headworks Coordinator" which would result in four key differences to his current position: 1. A requirement that he reside in Temora; 2. An offer of a one-off payment of $15,000 plus buying and selling costs and reasonable removal costs if he chose to reside in Temora; 3. Mr Corby to be a key part of emergency response; 4. Mr Corby be integrally involved in sensor development and implementation. 5. If the offer was accepted, he would continue to be provided with a Council vehicle as a tool of trade. 1. During cross-examination, Mr Grant stated that the position description had been provided to the USU official, as representative of Mr Corby, about 18 months prior as the parties were settling the award. Mr Grant reminded Mr Oppitz that the latter had given verbal instructions repeatedly that all negotiations with employees had to be conducted via the union. 2. Mr Grant pointed out that an analysis of Mr Corby's work diary which he had annexed to his statement demonstrated that a significant part of his work related to administrative functions, telephone calls and email communications which can be undertaken at Temora. As for his water testing tasks, they can also be undertaken in Temora once the new workshop is completed. In other words, approximately 97% of historical tasks were identified as being equally or more efficiently done at Temora. 3. Mr Grant considered it reasonable to make it a condition of the offer of employment at Temora that Mr Corby relocate his residence for the following reasons: 1. The position description of Headworks Coordinator requires travel out of Temora to other sites. If 560 km per week of commuting between Cootamundra and Temora is added to that, then it poses an unacceptable work, health and safety risk to him. If Mr Corby needed to undertake a sampling run to Daylight, it would involve in excess of 500 km of travel (or six hours) if driving is undertaken from Cootamundra. In addition, kangaroos on the roadway is a regular hazard on the Burley Griffin Way and Old Cootamundra Road. It was contended that at least six other GWCC have had collisions with kangaroos on these roads; and 2. Mr Corby would have less distance to travel to an emergency or call out if he was travelling out from Temora. 1. Finally, Mr Grant pointed out that Mr Corby was not being forced to relocate. His position in Cootamundra has been made redundant. He is being offered a choice between continuing employment in a new position at Temora as evidenced by the letters forwarded to him on 11 March and 4 May 2014 or redundancy pay in accordance with the Award. Submissions The submissions made by Mr Oppitz on behalf of the USU may be summarised as follows: 1. The evidence demonstrates that the position held by Mr Corby in Cootamundra of Water Quality Officer has not been made redundant. It is essentially the same position as he is being offered in Temora but titled Headworks Co-Ordinator. 2. The evidence also demonstrates that Mr Corby is capable, in this age of decentralisation and technologies, to continue to undertake his role from Cootamundra. It was pointed out that no issues have been raised in these proceedings questioning his conduct or performance. 3. The evidence further demonstrates that the work undertaken by Mr Corby is centred essentially in or around Cootamundra. Mr Corby has also given evidence that he has no problem travelling within the Council boundaries to undertake his work. 4. Council had, in breach of the award, not taken steps to mitigate the effect of the redundancy by either allowing Mr Corby to remain in Cootamundra in the new smaller depot or allowing him to travel to and from Cootamundra in a Council vehicle. 5. Mr Corby has an existing arrangement with Council regarding the private use of its vehicle. It was a condition of his employment and was also custom and practice. It was submitted that the direction from the Board related to future employees and future arrangements. 6. Council does not have a right to dictate, and it is outrageous to suggest that Council can dictate, where its employees shall reside. The requirement to reside in Temora would have an unreasonable personal impact on Mr Corby and his family. If they were required to reside in Temora in order for Mr Corby to keep his job, then a significant risk and burden will be placed on Mrs Corby who will have to travel from Temora to her job in Cootamundra every day. There is no evidence that there has ever been an emergency situation of a magnitude that requires residence in Temora to handle it. 7. If the Commission finds that the position should be relocated to Temora, then it should be offered to Mr Corby and that he should be allowed to commute from Cootamundra to Temora using a Council vehicle bearing in mind that the distance to be travelled daily would not be uncommon and would not be onerous by regional New South Wales standards. He should not be compelled to live in Temora. The risks that are associated with travel are no more than those encountered by city commuters. In addition, the two major and largest headworks are located in the Cootamundra area and he uses the Council vehicle to attend any incidents. The submissions made by Mr Barwick on behalf of the Respondent may be summarised as follows: 1. On the criterion alone, it is obvious that there are two discrete positions – it is not only that one position is at Cootamundra and the other is at Temora. The position at Temora requires the incumbent to focus on higher level duties, including participation in and development and implementation of the new remote sensor technologies. In addition, the incumbent is expected to be a major contributor to emergency responses. It was acknowledged that there are aspects of the existing role which would survive and move into the new role, however, there are aspects of the role that are expected to be performed differently. There was evidence of better interaction and communication with other employees and a capacity to be involved in training and mentoring. 2. The Union is concentrating on the current and historical role undertaken by Mr Corby. The Council, for its part, is undergoing significant organisational change and is focusing on the role of Mr Corby moving forward. The Council is implementing strategic plans to drive efficiencies and to better manage its assets which undoubtedly will have an impact on roles. Whilst Mr Corby would not be visiting all the outlying areas all the time, it would be easier for him to do so from Temora if he had to. It was acknowledged that the distance from Temora to Jugiong would be longer, the distance to Oura would be, either the same or, according to Mr Barrett, a little shorter. The change has been the subject of consultation with the union and its affected members over a considerable period of time. 3. It was an astonishing submission to make that the redundancy and the restructure were shams in view of the evidence that Council has expended a great deal of money in building a workshop, stores and training rooms across from its headquarters in Temora and that Council had listed the Cootamundra property depot for sale. An examination of the Council area would confirm that Temora is much closer to the centre of the area than Cootamundra. The Council has demonstrated that there has been a reasonable restructure and Mr Corby was being offered a different role. 4. Of significant note is the fact that two other co-ordinators, Mr Maguire and Mr Baldry, accepted a like offer to relocate and have relocated. They do not have a council vehicle as part of their renumeration package nor are they permitted personal usage of a council vehicle to commute. They do have access to a council vehicle as a tool of trade. 5. The evidence demonstrates that the laboratory contains very little equipment which can easily be relocated to the new construction at Temora. 6. There is no doubt that Mr Corby has been undertaking the role in Cootamundra for some time and doing so capably and efficiently. The restructure, however, has determined that the role can be performed better and more efficiently from Temora. It was also inevitable that the role would move to Temora Council having centralised its operations in new premises at Temora and partially shut down operations in Cootamundra. 7. It was denied that Council has not made a reasonable effort to mitigate on the issue of the restructure and attention was drawn to the significant offer made to Mr Corby in relation to the relocation. 8. It was denied that there was a uniform custom and practice of allowing employees to commute to and from work in a Council vehicle. The evidence demonstrates that somewhere along the line someone has granted permission, whether on an ad hoc basis or whether it amounted to a term of their contract, but on a case by case basis, for personal usage of Council vehicles. 9. Such permission does not impose a significant financial impost in that Mr Corby lives only one kilometre away from the Cootamundra depot and one can appreciate why Council was not overly troubled by that. However, the evidence of Mr Grant estimates that the cost to Council would be in the vicinity of $20,000 per annum if Mr Corby was to be allowed use of a Council vehicle to commute the 560 km between his home in Cootamundra and the depot in Temora. 10. In conclusion, it was submitted that Mr Corby should not be treated any differently from the two other co-ordinators who have relocated to Temora. Consideration Was the position of Water Quality Officer at Cootamundra made Redundant? 1. I do not accept that the restructure was a sham designed to either make Mr Corby redundant or take the Council vehicle off him. The evidence which I have set out in detail above does not support such a contention. 2. In relation to the redundancy being a sham, I note that in correspondence dated 11 March 2015, Mr Corby was advised by Mr Grant, in his capacity as General Manager, that "your position will move to Temora". 3. In the statement provided by Mr Grant, he attached a position description for a new position titled "Headworks Co-Ordinator" at Temora which, he stated, was the position offered to Mr Corby via his union representative. 4. The duties attached to the role, it was not disputed, did not vary in any significant way from the duties attached to the role that Mr Corby holds at Cootamundra. 5. The Respondent was unable to provide any evidence that the Position Description had ever been directly provided to, or discussed with, Mr Corby. I accept the evidence of Mr Corby that he was not aware that the position had changed, or that the duties had altered. 6. During cross-examination, Mr Corby expressed his willingness and happiness in relation to the Council's intention to have him participate in matters which would result in the upskilling of his role - the development of new sensors, mentoring and training trainees, and so on. His training and elevation within the Council, with the support of the Council, confirms his dedication to the role he is undertaking. 7. I am aware, having been involved in a number of disputes between the parties that the relationship between the General Manager of the Council and the Union members was very acrimonious. A large number of proposals were discussed with a view to settling the disputes but sufficient trust did not exist to settle the various grievances. I do not lay the blame at the feet of either party save to say that I am certain that Mr Corby was caught up in the situation that existed at the time and hence his lack of knowledge of the details of the offer made to him with respect to the position. 8. I find that the position at Temora is not substantially different to that held at Cootamundra – the major differences being that the mundane and less skilled aspects (receiving stores, administrative and so on which he has been willingly carrying out, probably because of his isolation at Cootamundra) would be undertaken by others and he will be expected to participate in more important issues. That Mr Corby be maintained in the position of Water Quality officer at Cootamundra 1. The evidence indicates that the Council commissioned an Asset Management Plan in relation to managing infrastructure assets. The Council's Business Activity Strategic Plan 2013/23 was adopted by the Council on 25 June 2015. The Council's headquarters is situated in Temora which is nearly in the centre of the area covered by the GWCC. The Union and its members were made aware of Council's resolve to make major changes in the form of the construction of a purpose-built workshop opposite its headquarters at Temora which would also house a storeroom and training room. As a result, a direction was given by the Board to Mr Grant, dated 1 May 2013, to list the Cootamundra depot for sale. The GWCC intended to maintain a very small presence in Cootamundra. 2. Mr Corby made a number of concessions during cross-examination regarding the appropriateness of him being located in Temora, if certain information now known to him as to the intentions of the Council for his upskilling, were to eventuate. 3. Having considered the evidence before the Commission regarding the restructure, the centralisation needs of the Respondent and the benefits to Mr Corby, I find that, for operational and other reasons, the position needs to be relocated to Temora. Is Council required to continue providing Mr Corby with a Council vehicle to commute from his residence to the worksite and return to his home? 1. The GWCC advertised the position of Water Quality Officer both internally and externally. Mr Corby provided the advertisements for the position. Neither advertisements referred to the provision of a motor vehicle nor do they mention anything to do with travel arrangements although the external advertisement refers to the location of the Council's sites: Council's principle (sic) office is located at Temora, with the Cootamundra Depot (some 50 kilometres away) providing the primary base for this position. In addition, major sources of water exist at Jugiong, Oura and Matong, therefore the position requires a high degree of independence and responsibility, together with the ability to communicate well from a remote location. 1. It was not a condition of his employment, therefore, that Council make available to Mr Corby a vehicle for private use. 2. There was no suggestion that it is an award requirement to make available to Mr Corby a Council vehicle for private use. 3. During working time, Mr Corby is provided with a vehicle to travel to worksites. That is not affected, whether the position is located at Cootamundra or Temora. 4. There is no evidence of any lease back arrangement between the Council and Mr Corby. 5. I accept, from the evidence, that it was the Council's custom and practice to allow private use of the Council vehicles in limited instances – for persons travelling to and from home and around Cootamundra. In Mr Corby's case, he resided approximately one kilometre from the depot. 6. I accept that the practice evolved prior to Mr Grant's appointment as General Manager and he had not upset those arrangements until the restructure. 7. I accept that the directive to Mr Grant was to ensure that the practice did not continue. 8. I note that Mr Corby has had the benefit of private use of a Council motor vehicle for in excess of 8 years and has retained the benefit during the restructure, the dispute and arbitration proceedings. 9. Other Co-Ordinators have relocated to Temora under the conditions stipulated by the Council. I accept the argument by the Council that it would be in stark contrast to the aims and objectives of the restructure to expect Council, in the absence of an award requirement, employment condition or lease back arrangement to incur an amount up to $20,000 for the private use of one of its vehicles in ferrying Mr Corby to and from Temora. Decision 1. The duties of the position at Temora are not substantially different to those undertaken by Mr Corby in his present position at Cootamundra and therefore his position has not been made redundant. 2. Operational and other reasons set out in the decision require the position to be relocated to Temora. However, Council cannot require Mr Corby to reside in Temora. 3. Council is not required to continue providing Mr Corby with a Council vehicle to commute from his residence to the worksite and vice versa. 4. Accordingly, Matter No. 19419 of 2016 is hereby concluded. I Tabbaa AM 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: 04 November 2016