PR973421 AG841273�� PR973421 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW - Application for settlement of dispute (certification of agreement) Australian Rail, Tram and Bus Industry Union and RailCorp (C2006/1862) RAIL CORPORATION NEW SOUTH WALES, RAIL INFRASTRUCTURE CORPORATION AND STATE RAIL AUTHORITY OF NEW SOUTH WALES ENTERPRISE AGREEMENT 2005 (ODN AG2005/4337) [AG841273�� PR960346 ] Public transport industry COMMISSIONER LARKIN SYDNEY, 4 AUGUST 2006 Dispute over the application of an agreement - jurisdiction DECISION [1] On 8 February 2006 the Australian Rail, Tram and Bus Industry Union (RTBU) filed an application under s.170LW of the Workplace Relations Act 1996 for settlement of a dispute over the application of an agreement. The dispute was said to be between the RTBU and RailCorp in relation to an alleged failure by RailCorp to comply with various provisions of the Rail Corporation New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005 1 (the 2005 agreement). [2] The RTBU’s notice of dispute, lodged on 8 February 2006, outlined the issues in dispute as: “Failure of RailCorp to fill vacant positions in accordance with Clause 22 of the Agreement. Failure of RailCorp to consult with employees employed as stations Wages Staff, concerning changes proposed as a result of the number of vacant positions at various stations in accordance with the provisions of Clause 7 of the Agreement. Failure of RailCorp to deal with changes to Rosters in accordance with the provisions of clause 29 of the Agreement. Refusal of RailCorp to restore the status quo which applied prior to the Dispute arising in accordance with the specific provisions of Clause 8.” 2 [3] The matter was listed for conference on 15 and 24 February 2006. At the conference on 24 February 2006 the parties advised that they had not resolved the issues subject to the RTBU’s notification. Directions were issued for the filing and serving of material and the matter was listed for hearing on 20 March 2006. The matter did not proceed on that day as I upheld the RTBU’s objection to counsel appearing on behalf of RailCorp. The matter was then listed and heard on 13 April 2006 and 1 May 2006. Ms. Carruthers appeared for the RTBU. Mr. Greenhill appeared for RailCorp. The witnesses called to give evidence during the proceedings were: Mr. Kessey, Organiser with the RTBU, Mr. Winsor, Acting Project Manager Station Operations, Mr. Eid, General Manager Station Operations and Mr. Greenhalgh, Manager Industrial Relations Customer Services. [4] At the conclusion of the hearing of the matter on 1 May 2006 RailCorp submitted “that this is not a dispute about the filling of positions”. 3 I put to RailCorp, a number of times 4 , the question of whether the Commission’s jurisdiction was now being challenged. No acceptable answer was forthcoming. This was an unacceptable set of circumstances. [5] At the conclusion of the conference with the parties on 24 February 2006 I stated that if the Commission’s jurisdiction was to be challenged then that advice was to be provided as soon as possible. No advice was received. Directions were then issued for the filing and serving of witness statements and outline of submissions. The RailCorp outline of submissions did not raise any jurisdictional issue. The issue of the Commission’s jurisdiction to deal with the matter as a dispute over the application of an agreement was not raised until the conclusion of the RailCorp submissions, after the parties had led their respective evidence and that evidence had been subject to cross-examination. [6] It is not for the Commission to seize jurisdiction if that jurisdiction does not exist, whether or not that jurisdiction is put in doubt by a party to proceedings. The power exercised by the Commission is only those powers conferred upon it by the Act. 5 Therefore, on 4 May 2006 I directed RailCorp “to file in the Commission and serve on the RTBU a clear statement as to its position in relation to the Commission’s jurisdiction to hear and determine the matter before it by Tuesday 9 May 2006”. [7] On 9 May 2006 RailCorp replied and, inter alia, stated: “As a result RailCorp has pursued the argument that the dispute is about the allocation of overtime. There is therefore now a substantial question of fact as to what the dispute before the Commission is about. If the Commission accepts RailCorp’s proposition, the RTBU has not made out that this aspect of the dispute before the Commission is one which falls within step 6 of clause 8.2 of the 2005 Agreement, regardless of arguments about the relationship between clause 3.10 of the 2002 StateRail Agreement and the 2005 Agreement. As a consequence, the only order that the Commission can make is to dismiss that part of the proceedings as the RTBU has failed to make out that the Commission has jurisdiction. If the Commission finds that the dispute is not in fact about the allocation of overtime and is a genuine dispute about a failure to fill permanent positions, RailCorp accepts that the Commission has jurisdiction and that it must proceed to consider the correct interpretation of the 2005 Agreement and its application to the facts before the Commission. RailCorp accepts that in respect of the alleged breaches of clauses 7 and 29 of the 2005 Agreement that these are disputes that fall within step 6 of clause 8.2 of the 2005 Agreement. Our arguments in respect of these issues stand.” [8] The parties were directed to file and serve full written submissions on the jurisdictional point raised. That matter will be determined on the basis of the written material filed. [9] On 27 March 2006 the Workplace Relations Act 1996 (the pre-reform Act) was amended by the Workplace Relations Amendment (Work Choices) Act 2005. Schedule 7 of the amended Act sets out transitional arrangements for existing pre-reform Federal agreements. The 2005 agreement is a pre-reform Federal agreement. [10] Clause 2, Division 1, Part 2 of Schedule 7 of the amended Act, for present purposes, provides: (1) Subject to this Schedule, the following provisions of the pre-reform Act continue to apply in relation to a pre-reform certified agreement, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005: … (e) section 170LW … (r) any other provision relating to the operation of the provisions mentioned in the preceding paragraphs. (2) Regulations made under the pre-reform Act, to the extent that they relate to the provisions mentioned in subclause (1), continue to apply in relation to a pre-reform certified agreement. [11] Under the schedule the Commission has jurisdiction to hear and determine an application pursuant to s.170LW of the pre-reform Act if the matter concerns a dispute over the application of a pre-reform Federal agreement. [12] Clause 8, Dispute Settlement Procedure, of the 2005 agreement, for present purposes, states: “8.1 Purpose and Objectives of Procedure (a) The purpose of this DSP is to provide an equitable and mutually binding process for dealing with grievances, claims, disputes or problems arising between the parties to this Agreement. Such matters also include, but are not limited to, issues that fall within the following: (i) Safety Issues (ii) Demarcation Issues (iii) Matters arising from decisions of Unions NSW, or the Australian Council of Trade Unions shall be dealt with in accordance with the terms contained in this DSP. (b) The objectives of the parties in these procedures are to avoid disputes and settle any grievance, claim, dispute or problem promptly, fairly and by direct consultation and negotiation at the workplace, wherever possible. Where any matter is referred away from direct negotiations at the workplace, it is the objective of the parties to avoid interruption to services and the performance of work, and to ensure that the issues to be dealt with are settled in a fair, equitable manner, consistent with the obligations of the parties to the Agreement. 8.2 Any dispute, grievance, claim or problem between the parties shall be processed in accordance with the steps set out below:- … STEP 6: In addition to Step 5, it is agreed if conciliation fails to resolve a dispute, the Australian Industrial Relations Commission is empowered under sections 111AA and s170LW or any other provisions of the Workplace Relations Act 1996 considered relevant to arbitrate over the matter, provided that arbitration is limited to disputes that involve the interpretation, application or process of implementation of a term or the terms of this Agreement.” JURISDICTION [13] The jurisdictional point to be determined is whether the Commission has before it a dispute involving the interpretation, application or process of implementation of clause 22, Filling of Authorised Positions, of the 2005 agreement, in particular 22.4. Subclause 22.4 states: “The Employer will fill vacant positions, which it intends to maintain on its establishment, within six months from the time that the position becomes vacant.” RailCorp’s submissions [14] RailCorp’s written submissions referred to step 6 of clause 8.2 of the 2005 agreement, which provides to the Commission the power to arbitrate a matter between the parties “provided that arbitration is limited to disputes that involve the interpretation, application or process of implementation of a term or the terms of this Agreement”. It was submitted that an allegation that there is a dispute over a term of the 2005 agreement would not be enough to satisfy the criteria and that the evidence before the Commission must establish that there is a dispute that meets the criteria of step 6. [15] It was submitted that the RTBU’s notification of dispute, as it relates to clause 22.4, was in fact “about decisions by RailCorp as to how it will staff a period roster on a day-to-day basis and in particular its decisions on the allocation of overtime to fill vacancies in the roster”. 6 On that basis, the dispute was not a dispute caught by step 6 of clause 8.2 of the 2005 agreement. In support of its argument, RailCorp referred to the evidence of Mr. Kessey, on behalf of the RTBU, and Mr. Eid, on behalf of RailCorp, and specific correspondence attached to their statements. [16] Annexure I to Mr. Kessey’s statement, it was argued, “is clearly a reference to the assertion that there has been a change in policy on the covering of positions by the use of overtime”. 7 Annexure J “in the third and final paragraph the issue for discussion is about the allocation of station resources for the coverage of shifts, ie the allocation of existing resources”. 8 It was submitted that on 5 January 2006 an amended working or period roster was posted at Central station. That roster involved the use of employees acting up in higher grades to fill lines in the roster and therefore decreased the use of overtime to fill those lines. It was submitted that, on the evidence of Mr. Eid, Mr. Kessey contacted him to discuss the roster changes. Reference was made to Mr. Eid’s evidence in cross examination, as follows: “…Mr Kessey rang you on 9 January to inform you that a position hadn’t been filled?---He rang me about the changes to the roster. Now, if that happened to talk about in detail about whether a position had not been filled, I don’t recall it. So Mr Kessey didn’t ring you to talk about, complain about positions not being filled?---Mr Kessey rang me that day to talk about how the staff were unhappy because of changes made to the roster at Central.” 9 [17] It was submitted that the RTBU’s correspondence to RailCorp on 9 January 2006, annexure L to Mr. Kessey’s statement, concerned changes in the use of overtime and the impact of that change on a single day’s line of roster. Annexure M, RTBU correspondence on 10 January 2006, it was submitted, concerned managing resources and the impact upon another single day’s roster. In was argued: “Clause 22, and in particular clause 22.4, cannot be about the filling of positions identified in the RTBU’s letters of 9 and 10 January 2006 (annexures L and M to Mr Kessey’s statement). You need only look at the process in clause 22 to make this abundantly clear. The failure to cover positions on any particular day which are covered on other days in the same roster or even in immediately preceding roster periods, cannot be addressed through the procedure in clause 22.” 10 [18] Mr. Kessey’s statement, at paragraphs 20 and 21, it was submitted, stated that the roster change was the issue for members. It was argued that “[t]his is a daily resource allocation issue”. 11 Mr. Eid’s evidence 12 was that the complaint from staff concerned overtime. Mr. Kessey’s evidence 13 , it was submitted, while not conceding that overtime was a big issue with staff, agreed that it was an issue. [19] The RTBU’s letter to RailCorp on 18 January 2006 14 , invoking step 5 of clause 8.2, it was submitted, specifically refers to the RTBU correspondence of 9 and 10 January 2006 and identifies the rostering change at Central as giving rise to a failure to consult and a failure “to revert to the previous working roster (referred to in the fourth paragraph) as a direct result of failing to comply with clause 22. The following paragraph refers to the ‘working and rostering principles adopted at Central, which remain in dispute’”. 15 That dispute, it was argued, related to Central station’s rostering arrangements. The RTBU’s preferred approach, it was argued, was to use overtime to fill vacancies in a line of roster. [20] In conclusion, it was argued: “Whatever concern the RTBU had about proceeding with the completion of the recruitment procedures which were restarted by Mr Eid on 25 August 2005, the chronology, correspondence and evidence in these proceedings is clearly and directly related to the changes to the working roster at Central made by Mr Eid as a result of a decision to act staff into higher grades rather than continuing to fill vacant lines in a roster by the use of overtime as the issue. These are clearly overtime and staff resource management issues on a daily basis which are not matters which fall within the scope of clause 22.4. As a result, that aspect of these proceedings does not invoke the criteria of clause 8.2, step 6 which will allow the Commission to arbitrate a dispute.” 16 RTBU’s submissions [21] The RTBU submitted that the RailCorp argument, as it related to the nature of the jurisdictional issues in the matter, was misconceived. It was argued that under s.170LW the establishment of a dispute was not obligatory on the basis of the relevant head of power for the making and certifying of certified agreements. There were only two issues, it was argued, relevant to these proceedings, the second being whether the matter involved the application of the agreement. It was argued that: “The proceedings in this matter concern the application of Clause 22 of the 2005 Agreement to the issues that arose between the parties over the period January 2005 to date, where the RTBU complains that the failure to fill authorised positions resulted in a series of disputes/complaints, which were finally brought to the Commission under the terms provided for in the Agreement which was certified in July 2005. The only jurisdictional argument possible in this matter is whether the claim sought applies to the matters that the parties have agreed may be subject to the exercise of the powers vested in the Commission by virtue of s170LW. Since the claims sought involve the provisions of Clause 22 allegedly not being applied, and since Clause 22 forms part of the agreement which also provides at Clause 8.2 that the Commission may exercise the powers granted by s170LW, then the Commission may deal with disputes arising from allegations that RailCorp has failed to fill authorised positions within six months of their being vacant. It is our submission that in this matter, the exercise of the Commission’s powers are properly directed in establishing the facts of the claim made by the RTBU as to the alleged failure to fill authorised positions at the time when RailCorp was obliged by the terms of the 2005 Agreement to do so. In our submissions, the facts clearly establish that RailCorp breached its obligations under Clause 22 to fill authorised positions within the stipulated period of six months. If the Commission finds this to be the case, then there is no further argument or issues that can be agitated in respect of the exercise of power reposed in s170LW.” 17 [22] The RTBU’s statement of claim, it was submitted, was contained in its Outline of Submissions 18 , in particular paragraphs 4 and 5. It was argued: “At paragraph 4 of the Claim it is clear that the RTBU’s concerns in respect of rostering practices in this matter go to the complaint that the failure to fill positions as required by Clause 22 of the Agreement, resulted in RailCorp making changes to long standing practices in the way rostering was carried out in stations in CityRail, and that these changes were not dealt with in accordance with Clause 29 of the Agreement. It should be noted that the respondent concedes that claim made by the RTBU that RailCorp failed to consult in respect of changes to rostering. At paragraph 5 of the Claim, the RTBU makes it clear that its complaint involves the denial of RailCorp that any breach of Clause 22 occurred, and the refusal of RailCorp to agree in any case, that Clause 22, rather than Clause 3.10 of an earlier Agreement was the appropriate obligation on RailCorp in respect of filling of authorised positions, at least after July 2005, when the provisions of Clause 22 became enforceable. Clause 3.10 of the earlier agreement was agitated by RailCorp in an attempt to establish that they were not bound to fill any positions ‘under review’ and RailCorp tried to argue that stations wages positions were positions ‘under review’ during the time complained of. The time complained of for the purposes of these proceedings are when the 2005 Agreement containing Clause 22 became enforceable; that is, after 19 th July 2005. Paragraph 5 of the RTBU claim also states that in fact advertisements for vacant positions did occur all through the period January 2005 to July 2005, (at the time supposedly that the positions were under review) and that in the event, after July 2005, the provisions of Clause 22 of the 2005 Agreement applied, irrespective of whether there was a ‘review’ of stations wages positions or not.” 19 [23] The written submission referred to the statements of Messrs. Eid 20 and Greenhalgh 21 , on behalf of RailCorp. Particular reference was made to that evidence in relation to the following points: the fact that positions were advertised; the relationship between clause 3.10 of the State Rail Authority of New South Wales Enterprise Agreement 2002 22 and clause 22 of the 2005 agreement; the process of station reform, which commenced in 2004; and that the recruitment of CSRs was an issue for the RTBU. [24] With reference to the evidence of Mr. Eid 23 , it was submitted that Mr. Eid had conceded that the RTBU were “agitating the issue of unfilled positions with him” . 24 [25] It was argued that Mr. Kessey’s letter to RailCorp of 25 November 2005 25 was clear in relation to the RTBU’s concerns that positions had not been covered and referred to the non-staffing of stations. Mr. Kessey’s letter of 9 January 2006 26 , it was submitted, concerned staff shortages, perceptions in relation to overtime and agreed staffing levels and “the RTBU’s complaint all through this matter that the issues complained of arose because RailCorp was not abiding by:- ‘agreed staffing levels’ ”. 27 It was argued that if RailCorp had abided by clause 22 of the 2005 agreement the letter would not have been required. RailCorp’s letter to the RTBU, dated 12 January 2006 28 , made no mention of the issue of overtime. It was submitted that the issue of overtime, which was a source of constant dispute and grievance, was due to a failure to fill authorised positions. The RTBU submitted: “It is our claim in this matter that the failure of RailCorp to fill vacant station wages positions at Central created a series of events, including changes to the way rosters were dealt with, and to a practice of temporarily transferring staff from other locations to ‘act up’ in positions which were vacant because of the failure to fill positions. If the concern of the RTBU was to ensure a continuing flow of overtime, why would the issue of properly filling positions and staffing the station to the full extent of the agreed positions be agitated at all by the union?” 29 CONCLUSION ON JURISDICTIONAL ARGUMENT [26] It is appropriate, given the difference of view between the parties as to the nature and extent of the Commission’s jurisdiction under s.170LW and clause 8 of the 2005 agreement, that I outline some, but not all, authority on the issue. [27] Justice Munro in Re: British Aerospace Australia Ltd (Australian Centre for Remote Sensing) Certified Agreement 1995 30 , after setting out the terms of s.170LW, said: “Hence, if the Commission has any power or jurisdiction to exercise in relation to such matters, jurisdiction derives from the power quite expressly conferred on the Commission under section 170LW. There are limits to the types of dispute that may competently be dealt with under that power. The dispute must be over the application of the agreement. Often there will be no objection raised to the Commission acting informally to deal with a type of grievance or dispute that lies outside the scope of the power conferred by section 170LW. But it is desirable that the Commission and the parties be seised of the difference. If the Commission were to make an arbitral determination about a dispute properly within an exercise of the power under section 170LW, the determination would be read as though it were a part of the agreement under which the dispute was referred. It would be enforceable, if it is enforceable at all, only as a breach of that agreement.” [28] The Commission’s jurisdiction or power to settle a dispute over the application of an agreement arises under s.170LW and the terms of the parties’ dispute resolution procedures. As his Honour stated, however, that power is limited to a dispute over the application of an agreement. Further, any determination made about the dispute would be read as part of the agreement and “be enforceable, if it is enforceable at all, only as a breach of that agreement”. [29] The next authority I will refer to is the Full Bench decision in Construction, Forestry, Mining and Energy Union v. Macmahon Contractors Pty Ltd 31 . While the following extract is lengthy, it is relevant to the case as it deals with the Commission’s powers under the legislation in relation to disputes that are not over the application of an agreement. “The Commissioner found that the dispute was not one the Commission was empowered to deal with pursuant to s.170LW(a) because it was not a dispute over the application of the agreement. He found, nevertheless, that by cl.14.1 of the agreement the parties had agreed to submit unresolved disputes arising through the course of employment to the Commission for determination and that their agreement was legally binding. In the following passage the Commissioner described the jurisdictional foundation for his decision. ‘[11] The Commission is satisfied that the parties have empowered the Commission to determine a grievance that arises through the course of employment. This grievance arises through the course of employment. Accordingly the Commission is empowered by the parties to determine the grievance. The jurisdictional objections of Macmahon are refused other than to accept that this application is not consistent with s.170LW. Any application made in accordance with s.170LW must be limited to disputes over the application of the agreement. This is not such a dispute. The CFMEU application is accepted as a ‘referral’ of a dispute to the Commission in accordance with subclause 14.1.(d) of the agreement.’ … The Commissioner relied on the following passage from the Private Arbitration Case : ’33 Although it is by no means clear, it may be assumed, for present purposes, that cll 21 and 22 are designed to ensure more than the maintenance of the Agreement. That, however, does not have the consequence that those clauses are wholly invalid. Nor does it follow that they are wholly invalid because they extend beyond what is authorised by s 170MH of the IR Act. 34 The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted whether by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award. 35 It was not suggested that the general law operates to render cll 21 and 22 of the Agreement wholly invalid. Nor does s 170MH proceed on the basis that an agreed dispute resolution procedure is valid only if it is confined to disputes over the application of an agreement. That being so, there is no reason why cll 21 and 22 should not operate so far as it is concerned with disputes of that kind. Accordingly, this aspect of Kestrel’s argument for special leave to cross-appeal should also be dismissed.’ The Commissioner concluded that the agreement could validly confer dispute-settling powers on the Commission pursuant to the general law, even though those powers went beyond the powers in s.170LW(a). He said: ‘[20] I am satisfied that the Private Arbitration Case is authority which establishes that the Commission in this case has been empowered by the parties to the certified agreement to determine disputes that arise in the course of employment by, if necessary, private arbitration and in doing so the Commission is not limited by s.170LW.’ We think, with respect, that the Commissioner’s conclusion is wrong. There are three interrelated reasons. The first is one of statutory construction. Section 170LW(a) prescribes the powers which the parties may confer on the Commission by agreement. In specifying and limiting those powers the section implicitly excludes the conferral of other, broader powers. Secondly, the Commissioner appears to have misconstrued the passage from the Private Arbitration Case. In particular, he did not give sufficient weight to the second last sentence in paragraph 34. In that sentence the Court indicated that where an agreement exceeds what is permitted by the Act, it cannot operate with that effect. Here the relevant term of the dispute settlement procedure purported to give the Commission a role which exceeded what is permitted by s.170LW of the Act. To that extent the dispute settlement procedure was of no effect. Finally, the Commission, being a statutory creation, only has the powers which the Act confers upon it. This principle has been articulated by the High Court and the Commission in a number of cases. It follows that the Commission cannot increase its own jurisdiction by an award or decision it makes and nor can the parties to an agreement.” 32 (References omitted) [30] The Commission is a creature of statute and, therefore, can only exercise the power conferred upon it by the Act. Neither the Commission nor the parties can confer jurisdiction where that jurisdiction does not exist. The exercise of power, conferred by s.170LW, is the settlement of a dispute over the application of the agreement and not some other kind of dispute. [31] The Full Bench in Seven Network (Operations) Limited v CPSU 33 considered the term a dispute over the application of an agreement. In its reasoning the Full Bench had regard to the decision in Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services 34 and the decision of Senior Deputy President Lacy in Maritime Union of Australia v Australian Plant Services Pty Ltd 35 . In considering the question the Full Bench stated: “The first issue to be resolved is whether or not the dispute was over the application of the agreement. The AMRS decision states: ‘…dispute over the application of the agreement (a dotaa). The existence of a dotaa is also a condition precedent to the exercise of jurisdiction under section 170 LW in conjunction with an empowerment in a certified agreement. ’ … In this case, it is a requirement of the clause in the Agreement which empowers the Commission to settle disputes that the dispute be ‘over the application of the Agreement’ . That is, clause 16.2 not only refers to s.170LW of the Act, but also itself specifies those disputes which the Commission is empowered to settle as ‘ disputes over the application of the Agreement’ . It is common ground between the parties that to determine whether a dispute is over the application of the agreement requires a finding which characterises the dispute. This requires a finding as to jurisdictional fact . The first issue on appeal which the Full Bench must be concerned with is whether a dispute existed, on the evidence, over the application of the agreement . There is a need to characterise the dispute and then to decide whether the dispute, thus characterised, has nexus or sufficient nexus to the provisions of the agreement itself. If a dispute is found to exist over the application of the agreement, the terms of any arising order must be reasonably incidental to the application of the agreement to which the dispute relates.” 36 (emphasis added) [32] The Commission does not have jurisdiction to settle a dispute over the application of the 2005 agreement unless there exists a dispute of that nature. Further, the terms of any order or determination must be “reasonably incidental to the application of the agreement to which the dispute relates”. The character of the dispute and its existence must first be ascertained and a finding made, which represents a finding of fact. Regardless of the Constitutional head of power underpinning a Part VIB Division 2 or Division 3 agreement 37 , the term dispute over the application of the agreement is a reference to a dispute as outlined in the agreed terms of the 2005 agreement (clause 8) arising from the statutory provisions of s.170LW. [33] RailCorp argue that the dispute is directly related to management’s decision to change the working roster at Central by filling vacant lines in the roster with staff acting in higher grades as opposed to the use of overtime. The RTBU dispute this assertion and claim that the failure of RailCorp to fill vacant station wages positions at Central created a series of events “including changes to the way rosters were dealt with, and to a practice of temporarily transferring staff from other locations to ‘act up’ in positions which were vacant because of the failure to fill positions”. 38 What is the character of this particular dispute? Can it be said to be a dispute over the “interpretation, application or process of implementation” of clause 22 of the 2005 agreement? [34] Clause 22 states: “22. Filling of Authorised Positions 22.1 When a position becomes vacant the Employer shall, within four weeks, determine if the position is to continue as an authorised position. 22.2 Where the position is to be continued, a review will be undertaken, within two weeks, to determine whether there are any wages or salaried employees on the displaced list undergoing a retraining program who may be suitable for redeployment, either temporarily or by accepting appointment into the position. 22.3 Where the position cannot be filled through redeployment / retraining, the Employer will commence to advertise and fill the position by merit selection within four weeks of the completion of the redeployment review process. 22.4 The Employer will fill vacant positions, which it intends to maintain on its establishment, within six months from the time that the position becomes vacant. 22.5 Whilst Rail specific positions will generally be advertised internally in the first instance, the Employer will reserve the right to concurrently advertise positions internally and externally. 22.6 The Employer will select, appoint and promote people on the basis of merit as determined by the skills, competence, qualifications and experience required for the position. The Employer will maintain its commitment to non-discrimination and equal employment opportunity in making these decisions. 22.7 This clause does not apply to the transfer between depots and obtaining lines on rosters for train crews.” [35] Annexure I to Mr. Kessey’s statement 39 is a letter from the RTBU to RailCorp dated 25 November 2005. That correspondence is concerned with “assurances were given to this union…that overtime restrictions were not in place” and “that overtime would not be used as a means of determining whether a position was filled or not as long as all attempts were made to utilise other means to fill positions”. The correspondence continues with references to RailCorp’s initiation of an overtime approval process to ensure accountability and the equal distribution of overtime and the RTBU’s concern in relation to any reduction of staffing levels having regard to issues of safety. It concludes with reference to RailCorp’s change in policy and the RTBU’s concern “that restricting the ability of members to fill authorised positions, regardless of what level those positions are at, will adversely affect the delivery of service and safety to your passengers and our members” . [36] In considering the terms used and the nature of the above correspondence, I am persuaded that in November 2005 the RTBU’s concerns were with the existing allocation of staff/members and not with issues associated with clause 22, Filling of Authorised Positions. In my opinion, the issue was not concerned with a position that had become vacant and a RailCorp decision to continue the position as an authorised position, which required filling within six months of its vacancy. Whilst the correspondence stated “the coverage of positions on stations which will restrict our member’s ability to ensure that stations are staffed in accordance with the agreed resources” , this statement of itself does not, in my view, characterise the dispute as one over the application of clause 22. [37] Annexure L is correspondence from the RTBU to RailCorp, dated 9 January 2006 and concerns “RE: CHANGING OF WORK PRACTICES CITY RAIL STATIONS”. It addressed the perception of station staff that there existed an overtime ban and outlined a number of positions not covered and “[t]his equates to 23 positions not covered in one day out of 125 authorised positions”. It stated that RailCorp were not abiding by agreed staffing levels. In the correspondence the RTBU sought an urgent meeting under clause 8 as it had a resolution from its members for a two hour stop work meeting over a concern in relation to RailCorp’s “new way” of managing resources. The RTBU correspondence of 10 January 2006 40 addressed the same issues. [38] The RTBU’s January 2006 letters to RailCorp, as outlined above, clearly address work practices and not the issue of filling authorised positions as envisaged by clause 22. The term not covered , in the above context, is associated with positions to be occupied on particular shifts and/or lines in the roster as opposed to the terminology used in clause 22 of positions, vacant position and specific positions that the employer seeks to continue as an authorised position. A vacant position, as defined in the 2005 agreement, is a position which is not occupied by an employee who has been appointed to the position and the position is authorised to be filled 41 . While the correspondence 42 stated that “it appears that you are not abiding by agreed staffing levels” and requests that RailCorp “cease from restricting our members from filling authorised positions”, this, in my view, is associated with the working arrangements of existing staff at Central station. [39] RailCorp’s 12 January 2006 reply to the RTBU’s correspondence and its reply to the meeting of the parties on 11 January 2006, inter alia, stated “Whilst RailCorp endeavours to cover all Station shifts, this is not always possible as a result of the high level of sick leave, drug and alcohol rehabilitation, health assessments, family leave, disciplinary matters and the number of vacancies held up in the appeals process. In order to alleviate the situation, every vacant Station wages position, including those at Central, has been advertised and are at various stages of the recruitment process”. 43 The correspondence continues with an outline of the strategy to be used by RailCorp, which includes asking staff to act up in higher grades and that “RailCorp does not concur with your view that we are not complying with the outcome of the staff review conducted at Central in 2003. RailCorp accepts the outcome of this staff review and, as previously advised, all vacant established positions have been advertised and are at various stages of the recruitment process” . The correspondence clearly acknowledges that there are “vacant Station wages” positions, however, it is not clear when those positions became vacant nor is it clear when those positions became authorised positions to be maintained and filled within six months. [40] The RTBU’s letter to RailCorp of 18 January 2006 44 is concerned with “RE: STATION STORTAGES” and invokes step 5 of clause 8. The correspondence outlines the RTBU’s position and view that RailCorp were in direct breach of the 2005 agreement, “[i]n particular” by not abiding by the status quo provisions (clause 8.6) and failing to consult in accordance with clause 29, Rostering Principles (shift workers). The correspondence goes on to state: “…the situation which led to you breaching the EBA as above is as a direct result of RailCorp failing to abide with clause 22 of the agreement by not filling authorised positions in accordance with this clause.” [41] The second last paragraph of the letter, in my view, is very telling as it refers to “the working and rostering principles adopted at Central, which remain in dispute .” [42] Mr. Eid’s evidence at PN1411 in the proceedings on 13 April 2006 was not, in my view, a concession that the RTBU were agitating the issue of unfilled positions, as argued by the RTBU in its written submissions. The issue associated with Mr. Kessey’s contact with Mr. Eid on 15 June 2005 concerned a situation where positions had been advertised, staff had applied for the positions and Mr. Eid had made a decision to withdraw those positions. It is appropriate to outline that evidence: “What did you say to Mr Kessey when he contacted you?---That the freeze was on during – to remember the exact words, to be quite honest, I don’t know, but it went along the lines of this. Mr Kessey rang me about – that he had a lot of complaints about staff members, that we’d withdrawn the positions. He demanded that we put them back. We said we’d consider it. … I gave an instruction to the centralised recruitment after talking with Mr Kessey to withdraw – sorry, to put the positions back I guess is the best way to put it, so I rang the centralised recruitment centre and said I’ve had a discussion with the RTBU. Rather than withdrawing all those positions, put them back and they did so in the next job op. That’s the notice they put out. … Well, I thought there was a lot of nervous people out there that have applied for positions and then all of a sudden, they were withdrawn. Likewise, I had some calls in my office as well, so it was really worth considering.” 45 [43] The above evidence, in my opinion, does not support the argument that the RTBU were agitating the filling of vacant positions in accordance with clause 22 of the 2005 agreement. The concern of the RTBU in June 2005 was that RailCorp had advertised positions and staff/members had applied for those positions, which were then withdrawn by RailCorp. [44] In my view, it is correct that in September 2005 the RTBU raised the issue of recruitment at CityRail stations to which RailCorp replied. 46 On that occasion the RTBU sought confirmation from RailCorp that it had, in early 2005, recruited 95 new external recruits with an intention to recruit 212 more by the end of 2005 and that panels had been formed to conduct interviews. Further, the RTBU sought a break down of the advertised positions still outstanding. However, the November 2005 correspondence between the parties, in my view, is concerned with specific staffing issues of shift coverage and the RTBU’s concern that its members were restricted in filling “authorised positions, regardless of what level those positions are at” . 47 [45] Section 170LW provides that an agreement’s dispute settling provision may, for the purpose of this argument, empower the Commission to settle disputes between the parties over the application of the agreement. The parties’ particular provision empowers the Commission to “arbitrate over the matter, provided that arbitration is limited to disputes that involve the interpretation, application or process of implementation of a term or the terms of this agreement”. [46] The dispute may have arisen, as claimed by the RTBU 48 , due to RailCorp’s non-compliance with its obligations under clause 22. That situation, however, even if correct, does not convert the dispute to one over the interpretation, application or process of implementation of clause 22. I cannot be satisfied that the rostering issue has “sufficient nexus” to the obligations contained in clause 22 to convert that dispute, as characterised, to one over the application of the 2005 agreement. Clause 22 was not the “initial dispute” 49 . The alleged breach of clause 22 by RailCorp, if in fact it was a breach, may have or may not have been the catalyst for the dispute that arose between the parties. Even if it was the catalyst, it was not the dispute itself. There is another difficulty with the argument. That difficulty arises due to the undisputed fact that RailCorp are and have been recruiting positions relevant to station operations. The RTBU was advised of that situation by at the very least January 2006. [47] The RTBU’s written submission, in the substantive matter, concluded: “It is the submission of the RTBU that the dispute between RailCorp and the RTBU arises directly from the failure of RailCorp to observe the obligations which are required of it under the terms of the RailCorp Enterprise Agreement 2005, and in our submission, the Commission is empowered in accordance with the provisions of the Dispute Settlement Procedure contained within that Agreement, to resolve the matter by determining that the processes contained in the agreement for filling authorised positions, and for consulting with the staff concerning changes to rostering arrangements, be implemented forthwith by RailCorp”. 50 [48] The resolution to this particular matter, as argued by the RTBU, is a determination that RailCorp implement forthwith the processes contained in the 2005 agreement for the filling of authorised positions. On my understanding that process commenced during 2005 and is continuing. On the basis of the written submissions filed, it would appear that the RTBU seek a determination from the Commission that RailCorp breached its obligations under the 2005 agreement to fill authorised positions at the relevant time, “within the stipulated period of six months”. 51 The Commission’s power under s.170LW and the parties’ agreed dispute settling provisions do not, in my view, involve the simple finding of fact that a breach of an agreement has occurred with nothing more to do. A finding as to the character of the dispute must be made. Once made the Commission must then make a determination as to whether that dispute, as found, has nexus or sufficient nexus to the provisions of the agreement, which would then form the basis of an order/determination that was reasonably incidental to the application of the agreement to which the dispute relates. [49] Ms. Carruthers outlined the unions’ concern in relation to compliance with the 2005 agreement and the future conduct of the parties to that agreement. It was submitted: “[T]his is a very important matter that the Commission has to consider because arising from a failure to actually carry out its obligations under the agreement, disputes arose concerning a range of other matters, failure to consult about the rosters, changes to positions and a whole range of things occurred that created disputation. We need a determination that RailCorp apply clause 22 as it applies to any vacant authorised position and that such positions be filled within six months. We need a determination that occur. In a sense it’s a peculiar application to make, because it’s saying we want a determination that a party bound by an agreement acknowledges that they’re bound by an agreement.” 52 [50] I am not satisfied that a dispute exists between the parties over the interpretation, application or process of implementation of clause 22 of the 2005 agreement. While it may appear on its face that the implementation of clause 22 is in dispute, in that authorised vacant positions be filled within a period of six months that was not the issue/dispute that brought the matter to the Commission. The dispute between the parties, in my view, can be characterised as a dispute over the rostering arrangements at Central station. It is doubtful that a dispute notification to the Commission would have been lodged, at the time it was lodged, but for Mr. Eid’s change to the rostering arrangements at Central station. It should also be noted that on the evidence of Mr. Eid 53 , which was not seriously contested, the responsible personnel at Central station were not complying with his instructions on 25 August 2005 54 that vacant wages positions within Station Operations be progressed and filled. On the evidence, a number of these positions were not filled but held for the purpose of providing overtime opportunities for staff. The parties met on 24 January 2006 and RailCorp forwarded correspondence to the RTBU on 27 January 2006 55 outlining its view on the issues raised, which involved clauses 22, 29, 7 and 8.6. In relation to clause 22 it was RailCorp’s view “that these issues have been resolved through our commitment to implement the following” . The correspondence continued by addressing the other provisions of the 2005 agreement said to be in dispute. The RTBU replied on 31 January 2006 stating that the dispute had not been resolved. 56 I have had regard to this correspondence and I am of the view that the major issues which remained in dispute between the parties concerned the rostering arrangements and the issue of the status quo. I am not persuaded that clause 22 remained an issue in dispute. [51] In conclusion, I am not persuaded that the dispute is a dispute over the application of clause 22 of the 2005 agreement. This part of the application is dismissed. REMAINING ISSUES [52] The RTBU notice of dispute outlined four provisions of the 2005 agreement, which, it was alleged, RailCorp had failed to honour. Those provisions were clauses 22, 7, 29 and clause 8, dispute settling provisions, in relation to restoring the status quo. Clause 22 was subject to the jurisdictional argument as addressed above. No submissions were put in respect to clause 8 and therefore I do not address that provision of the 2005 agreement. The only submission put in relation to clause 7 was contained in the RTBU’s outline of submission 57 as follows: “RailCorp was obliged in accordance with the provisions of Clause 7, Consultation of the Agreement, to consult (in the event of any organisational changes among other things), in the event it may have found its obligations in respect of Clause 22 difficult, for the time being, to discharge.” [53] As I have found that the dispute between the parties does not concern clause 22, I will not consider the requirements of clause 7 of the 2005 agreement. Therefore, clause 29, Rostering Principles (Shift Workers), is the only remaining issue to consider. RTBU Submission [54] The RTBU submitted that due to RailCorp’s failure to comply with the requirements of clause 22 of the 2005 agreement various issues arose at Central station. One such issue concerned the variation of roster arrangements, which, it was argued, called up the obligations under clause 29. It was submitted that RailCorp varied the rostering arrangements across CityRail stations. Those variations were implemented, it was argued, without consultation with affected employees as required by clause 29, in particular clause 29.5. [55] The evidence, it was submitted, supported the RTBU argument of a failure to consult, in particular “correspondence where the RTBU raised the failure to consult about the variations in the rosters”. 58 It was submitted that prior to the certification of the 2005 agreement in July 2005 the obligation to consult in relation to variations to rosters did not exist in any industrial instrument binding the parties. The 2005 agreement provisions provide for that obligation. [56] In submissions, Ms. Carruthers acknowledged that the issue in dispute concerned “a variation to the way the rosters were normally dealt with” 59 , in that there was no consultation in respect to a change to the way the rosters were filled, as opposed to an actual roster variation. [57] Ms. Carruthers submitted: “29.5 deals with consultation generally. I want to go to 29.4. 29.4 is headed Notice of Changes of Rosters and it says: The notice required for changes will be 14 days. Then when it comes to period roster and daily roster it says: The notice required for changes to the period or daily roster shall be determined within the functional units having regard to the employer’s core rostering principles. That just simply means the principles that ought to be applied. The provisions concerning consultation makes no distinction between master or period roster at all. You cannot read that clause down and say, ‘that only applies to master rosters, it doesn’t apply to period rosters and daily rosters.’ That is simply an assertion. … The core rostering principles are set out in clause 29.3. They’re principles concerning rostering. The clause on consultation does not simply apply to master rosters. It basically says that where rosters are required they be implemented and developed in accordance with the principles set out in 29.3. That means all rosters will be, the master roster, the period roster, the working roster,… That is the intent, that’s how it reads. It does not say, ‘This only applies to master rosters and shall not apply to variations in period or working rosters which shall be outside and excluded from the provisions of this clause.’ It doesn’t say that.” 60 RailCorp Submission [58] The RailCorp submission referred to particular provisions of clause 29 and the obligations contained therein. It was argued that the issue subject to the proceedings revolved around rosters implemented at Central station with no change to the master roster. Consultation as required by clause 29.5, it was argued, “does not relate to the changes in the working roster that were implemented”. 61 It was submitted that it was ludicrous to suggest that the movement of staff within a working roster would be subject to the development of a rostering or local consultative committee. It was submitted that individuals are consulted when moved within a working roster. In the case of Central station, it was argued, “there was a meeting with staff on 20 January 2005 to discuss the proposed changes to the working rosters on an ongoing basis. The roster commencing on 22 January 2006 was finalised and posted after that meeting and the confirmation by staff of their willingness to act up”. 62 [59] In relation to the working roster, Mr. Greenhill referred to the following affidavit evidence of Mr. Eid: “The working roster, amended in accordance with my direction to the station Manager Central for 8 to 21 January, was posted at Central on 5 January 2006. The custom and practice is that working roster entries can be changed with as little as 24 hours notice. When staff are affected by a change in the working roster the standard procedure is that they are contacted by the rostering officer to confirm if they are willing to work in the changed time or position. If staff are not working at the time, the rostering officer telephones them at home or leaves a note for them to collect when next at the station. I believe that this process was implemented for the changes to the working roster as posted on 5 January 2006.” 63 [60] Mr. Greenhill submitted that Mr. Eid’s evidence was that he spoke to Mr. Kessey and agreed to meet staff to discuss the roster changes. It was submitted: “Commissioner, when individual staff members are moved within a working/period roster, they are consulted and were in this case. A meeting was held with staff on 20 January 2006 to discuss the proposed changes to the working rosters on an ongoing basis. The roster commencing on 22 January 2006 was finalised and posted after that meeting and the confirmation by staff is seen in their willingness to act up and that’s found at points 35 and 38 of Mr Eid’s affidavit. When I asked him under cross-examination if that occurred, Mr Kessey agreed with me that it did. Again we would say on that basis we can’t see why the determination sought by the RTBU that we failed to consult that could be found.” 64 CONSIDERATIONS [61] Mr. Kessey gave both affidavit and oral evidence in the proceedings. Mr. Kessey’s affidavit outlined his experience and knowledge in relation to station operations and the system of rostering. At paragraphs 9 and 10 of his affidavit, Mr. Kessey outlined the process followed in the case of employee absences. In that event, he stated, the rostering officer or station manager contacts employees of the same grade, as that of the absent employee, who have not lodged a Non Availability Form or not indicated on the roster that they are unavailable to work. If an employee of the same grade is not available to fill the vacancy other employees are approached to “act up” to fill the vacancy. He stated that “the rostering principles applicable has been that attempts would be made to be (sic) fill every rostered shifts without exception in accordance with the latest Staff Review Document. The Staff Review Document details all the positions in CityRail which are to be filled. This document is a statement of the work which is to be allocated and ensures that all the positions in the document will operate, that is, that they will be filled”. 65 [62] At paragraphs 19 and 20 of his affidavit, Mr. Kessey stated that several members at Central station had advised him that RailCorp intended to change rosters without consulting affected employees. He continued: “I had some discussions with members at Central about this new way of rostering. I was told that this change had been introduced because RailCorp intended only to cover ‘Safety Critical postions’. RailCorp created this term in an attempt to categorise positions at stations in an attempt to fill them in accordance with its own criteria, as opposed to the agreements which detail the positions which have to be covered each day as established by the Staffing Guidelines. A ‘rail safety employee’ is defined within the Rail Safety Act. There is no definition of a ‘Safety Critical Position’ other than the definition given to it by RailCorp.” 66 [63] Mr. Kessey stated that members at Lidcombe, Strathfield, Liverpool and Burwood also contacted him “about the introduction of new rostering principles. All stations represented the same concerns as outlined by the members at Central”. 67 On 11 January 2006 he attended a meeting with RailCorp to outline the RTBU’s concerns and received RailCorp’s written response by letter dated 12 January 2006 68 . On 18 January 2006 the RTBU initiated step 5 of the dispute settling provisions of the 2005 agreement and advised, inter alia, “In particular you have breached clause 8 of the agreement by not abiding by the Status Quo provision in that you failed to revert back to previous working and rostering principles at Central. In changing the rostering arrangements at Central you failed to consult with members affected and therefore you are in breach of clause 29 of the agreement”. 69 The parties met on 24 January 2006 and the RTBU received the RailCorp written response to the dispute by letter dated 27 January 2006 70 . Mr. Kessey stated that on 23 February 2006 a member at Lidcombe station forwarded to him a notice to staff from the Station Manager, “which clearly outlines a change in rostering principles in accordance with directions issued by Mr. Eid”. 71 [64] Mr. Winsor gave both affidavit 72 and oral evidence during the proceedings on behalf of RailCorp. In his affidavit Mr. Winsor outlined his experience within RailCorp, which commenced in 1983. In his affidavit, Mr. Winsor stated that the Stations Operations Workforce Allocations Centre (WAC) is responsible for the rostering of staff throughout the rail network with the exception of Central station. At Central station the function is performed by a Rostering Officer under the direction of the Station Manager. He stated that it was normal rostering practice for station staff on the working roster to act up in higher grades. This practice was not considered to be a change to the master roster. Mr. Winsor stated that the use of overtime did not form part of rostering principles with the exception of the guiding principles that overtime should be shared equally, with the requirement that rosters be cost efficient. He referred to the list of rostering principles contained in the 2005 agreement at clause 29.3. At paragraph 11 of his affidavit, Mr. Winsor stated: “The rostering done in relation to each station is created and managed on an ad hoc station by station basis. Accordingly, the practices and techniques used at each station can vary slightly. When looking to cover lines in a working roster, a Station Manager would contact the WAC to check if ‘spare’ staff are available. After consulting with the WAC if the manager still had shifts to cover, the Station Manager should fill the roster ensuring shifts that carry out safety work are filled first. This will be done by considering the staff available at the station who could act up and/or work some overtime. If vacancies remain they would contact WAC to fill the shifts from other stations in their area and relief staff.” [65] Mr. Winsor outlined his review of the statistics, obtained from the centralised database, Microster, for Central station staff hours attributed to acting up versus overtime, over specific periods. Mr. Winsor disputed Mr. Kessey’s evidence 73 in relation to the process of filling a vacancy by giving preference to persons from the same grade who had not lodged a non-availability form. Mr. Winsor stated that on 20 January 2006 he attended a staff briefing chaired by Mr. Eid at Central station in relation to the filling of positions and rostering staff to work in higher grades. Mr. Winsor’s notes of that briefing were attached to his affidavit 74 . [66] Mr. Eid gave oral and affidavit 75 evidence in the proceedings. Mr. Eid, in his affidavit, stated that in August 2005 he authorised the filling of a number of vacant station wages positions 76 . He stated that in January 2006 he was concerned with the overtime situation at Central station and was advised that vacant positions were not being filled in that location. Further, “I was informed by them that Central was operating on the basis that a number of positions were held vacant across the different grades to provide overtime opportunities for staff” 77 . In relation to the issue of rostering, Mr. Eid stated: “As there was no basis for this artificial creation of overtime to continue, I instructed Mr Armstrong to hand the filling of vacant positions at Central to the centralised recruitment centre and I also instructed the Station Manager, Central to review the working roster for the fortnight 8 to 21 January 2006 and rather than utilising overtime to fill CSTL and CSA2 positions to do so by staff acting up in higher grades. Vacancies that then remained at the CSA1 level could be filled through relief staff supplied via RailCorp’s Workforce Allocation Unit and if necessary, positions which have been identified as non-safety critical could be left vacant. The positions that for this purpose were considered to be non-safety critical were those that did not involve the movement of trains or working on platforms. The changes that I directed to be made to the roster did not involve a change to the master roster. What did change was the way in which individuals were allocated to lines in the working roster. The nature of this change is no different to changes which occur to the working roster on a daily basis due to absences. The only difference was that this involved a change across the fortnightly roster.” 78 [67] The difference between the master roster and the working roster was explained by Mr. Eid as follows: “Commissioner, they’re two separate rosters. One is a master roster which never alters and that roster is posed on the wall all the time. It is a set roster that has quite a few lines and people work to that as the rule. The posted roster is where the alterations come from. Assume someone goes on leave, sick leave or what have you, a roster is then posted at the start of every fortnight which gives them 14 days’ notice before they use it, which determines what they’re doing for that fortnight and it references the master roster. The master roster doesn’t alter, the posted roster alters quite frequently. It could be as low as 24 hours. You’d be making an alteration to it quite frequently. That’s the difference between a master and a posted roster.” 79 [68] Mr. Eid stated that the amended working roster for the fortnight 8 to 21 January 2006 was posted at Central on 5 January 2006. He stated that custom and practice was that an entry on a working roster could be changed with 24 hours notice and standard procedure was that affected staff would be contacted by the rostering officer to confirm their willingness to work in the changed time or position. He stated that Mr. Kessey contacted him on 9 January 2006 and on 11 January 2006: “I met with Mr Kessey and Mr Farhat of the RTBU and 2 of the wages staff from Central Station together with Mr Armstrong and Mr Kececi. During the course of the meeting, I informed Mr Kessey and the Central staff that the reason I changed the rosters was because there had been improper use of overtime by not having staff act up. Complaints were expressed about the effect of the change in the working roster on arrangements that staff had otherwise made. I considered these complaints and agreed to reinstate the original working roster for the balance of the fortnight ending 21 January 2006. I reaffirmed that not allowing staff the opportunity to act up in a higher grade was unfair to staff, unethical and against RailCorp policy and procedures. I informed them that I would not let this continue and the changes in the roster consistent with the previously revised roster for the fortnight ending 21 January 2006 would proceed for subsequent rosters.” 80 [69] In reply to Mr. Kessey’s evidence 81 , in relation to the process of filling roster line vacancies by offering overtime to persons from the same grade, Mr. Eid stated that from his experience “this is not absolute. Certainly this occurs from time to time, but the choice is a management decision based on the full range of available staff, the work patterns of the staff and the length of the absence. Using same grade overtime is not a rostering principle, it is an option”. 82 [70] Mr. Eid stated that he attempted to attend a meeting of the RTBU and station staff on 16 January 2006 without success. Following that meeting a number of staff indicated that they would refuse any offer to act up in higher grades. He stated that he then held a meeting with staff on 20 January 2006 “to discuss the roster changes, permanent filling of positions, working in higher grade and overtime use”. 83 Mr. Eid continued: “Following the meeting a steady stream of staff confirmed their availability to act up. A revised roster for the fortnight commencing 22 January was posted on 20 January with a significant number of staff acting up. Vacancies were then filled with available staff from other locations. The roster was worked without incident. Since 22 January the Central roster has continued to operate with a higher level of staff acting up and with some working overtime, but the reliance on overtime has been greatly reduced.” 84 CONCLUSION ON THE REMAINING ISSUE [71] At this point it is appropriate that I make a general comment in relation to the manner in which this case was conducted. Earlier in this decision I outlined the situation associated with RailCorp’s jurisdictional argument in relation to clause 22. In my opinion, the timing of that argument placed the union at a disadvantage. The submissions and evidence primarily addressed the situation and events concerning the requirements of clause 22. In my determination of the case I have had regard to what I consider to be a disadvantage to one party and in that regard I have scrutinised all the evidence before me in relation to the issue of rostering in an attempt to rectify any disadvantage that may have existed. This situation should not occur in the future. The ink is barely dry on the 2005 agreement and, considering its history, I would venture to say many more issues will arise during its life. In future, from my perspective, the parties will be required to clearly articulate the issue and their respective arguments prior to any hearing of the matter as envisaged by step 6 of clause 8, Dispute Settling Procedure, of the 2005 agreement. [72] On my understanding, the issue in relation to rostering concerns consultation and the requirements of clause 29 of the 2005 agreement. The RTBU argue that RailCorp did not consult affected employees of a change to rosters. RailCorp argue that consultation did occur. [73] Clause 29 states: 29. Rostering Principles (Shift Workers) 29.1 This clause excludes Infrastructure Workers (IWs) (including Team Managers) classified in accordance with the Infrastructure Division IW classification structure. 29.2 Introduction (i) All rosters will be developed in accordance with the Employer's Core Rostering Principles set out in Sub-clause 29.3 below and be subject to local level consultation (in accordance with Clause 7.2) prior to implementation. (ii) The Employer shall ensure that all rosters are: (a) developed in accordance with any laws governing the number of consecutive hours, days or shifts that may be worked. (b) compliant with relevant award provisions concerning number of shifts to be worked, intervals between shifts, lengths of shifts, consecutive days off, right to notice periods concerning duty. 29.3 Core Rostering Principles (i) All Master Rosters shall be developed and implemented in accordance with the following principles: (a) the health and safety of employees; (b) fatigue management obligations; (c) operational and business requirements; (d) duty of care obligations; (e) a fair and equitable distribution of the rostered work between employees of like classification; (f) local level consultation; (g) patterns of working which assist quality of life considerations; and (h) reasonable periods of notice of change to rostered working. 29.4 Notice of Change of Rosters (i) Master Roster The notice required for changes to the master roster will be fourteen (14) days unless otherwise agreed by the relevant parties to this Agreement. (ii) Period Roster and Daily Roster The notice required for changes to the period or daily roster shall be determined within functional units having regard to the Employer's Core Rostering Principles. 29.5 Consultation (i) Variations in operational and business requirements for rostered work across organisational business units may require the variation of rosters. (ii) Variations to roster will be subject to local level consultation prior to implementation and be developed and implemented in accordance with Core Rostering Principles of this Agreement in accordance with Sub Clause 29.3. Relevant unions and affected employees will be advised prior to implementation. (iii) Where a rostering committee has been formed, management will consult with that Committee. At locations where no rostering committee exists, consultation will occur in accordance with Clause 7 Consultative Process. (iv) In the event of any dispute concerning the review, development or implementation of rosters, the provisions of the DSP shall apply. 29.6 Exchange of shifts Employees may mutually agree to exchange shifts, subject to approval by management.” [74] Clauses 3.8 and 3.9 of the 2005 agreement define the master and working or period rosters as: “3.8 Master Roster is a roster that operates over an extended timeframe and refers to the allocation of work as determined by business and operations requirements. It identifies lines of roster only and contains starting times for each day’s work and diagrams/schedule numbers for train crews. The Master roster also provides Rostered Days Off (RDOs) for each line of roster and where applicable Accrued Days Off (ADOs) arising from the working of a 19 day month. 3.9 Working/Period Roster is a roster that operates on a weekly/fortnightly/four week cycle basis as defined in functional areas. All known actual work, including overtime, is displayed in the working/period roster.” [75] I have decided that I will not make a finding on the question of whether or not clause 29.5 applies to the working or period roster. The evidence and submissions on that point were limited, given the focus of the argument in the case on clause 22. It is not in the interests of the parties to the agreement that the Commission, at this stage, makes findings/determinations on such an important agreement provision without the benefit of specific evidence and submissions on the point. [76] Mr. Kessey explained the change to the rostering arrangements as follows: “The rostering arrangements as they were at Central and other larger locations are that in the first instance a vacant line, a temporary vacancy occurs at a location at any time then the rostering officer would contact a person or a staff member of the same grade, of the same grade prior to going through everybody that was available to work of the same grade prior to going down to lower graded positions to act up. The change was that a direction was issued by the general manager of station operations that everybody must act up, that there will be no searching for people of the same grade, that people would just be pushed up onto lines in the roster above their normal grade and that would become standard practice as opposed to what had occurred for some time.” 85 [77] If it is correct that overtime for persons of the same grade is the custom and practice for filling vacant lines on a roster, in particular at Central Station, this situation is most unsatisfactory from a business efficiency perspective and a staff development perspective. On the evidence, same grade overtime to fill/cover a vacant line on a roster is utilised on a needs basis. The situation of filling a vacant line on the roster with same grade overtime, however, is not and should not be the preferred and/or first option available to rostering personnel. [78] What occurred in this matter was a change to the working/period roster as those rosters relate to stations, in particular Central station. Clause 29.4, as it relates to the period and daily roster provides that “The notice required for changes to the period or daily roster shall be determined within functional units having regard to the Employer’s Core Rostering Principles”. Clause 29.3, Core Rostering Principles, provides for local level consultation and reasonable periods of notice of change to rostered working, amongst other issues. [79] The dictionary meaning of consultation is “the act of consulting; conference. A meeting for deliberation”. The meaning of consult is: “to seek counsel from; ask advice of…to have regard for (a person’s interest, convenience, etc) in making plans”. 86 Clause 29.3 clearly establishes a principle of local level consultation, which, in my view, does not mean the simple act of stating a fact but involves discussion between the relevant persons which may or may not make a difference to the issue at hand and the ultimate decision to be made. Clause 29.4 requires that regard be had to that principle. [80] RailCorp submitted that when staff are moved within a working roster they are consulted. Mr. Eid’s evidence was that he instructed the Station Master at Central to review the working roster for the fortnight 8 to 21 January 2006. His evidence was that the amended working roster was posted at Central on 5 January 2006. He stated that “[t]he custom and practice is that working roster entries can be changed with as little as 24 hours notice”. 87 Mr. Eid stated that the rostering officer is responsible for contacting staff in relation to any changes on the working roster and that he believed this process was implemented in this case. After a meeting with RTBU officials and two Central station employees on 11 January 2006 he reinstated the original working roster for the remaining period to 21 January 2006. [81] The evidence suggests that RailCorp did consult staff and/or their representatives on 11 January 2006. This meeting, however, was held after the changed roster had been posted. Mr. Eid’s evidence of the meeting was “staff that came up complained about two things, one, that we’d taken away their overtime, like, making changes to the working roster and the second one, they were concerned that they were not going to work the days that they thought they were going to”. 88 [82] There is no evidence that RailCorp consulted affected staff prior to the posting of the revised roster for Central on 5 January 2006. The only evidence adduced by RailCorp in the proceedings was that of Mr. Eid on what should happen 89 . What should happen does not necessarily reflect what in fact does or did happen. [83] The evidence does show that Mr. Eid met with approximately 22 wages staff on 20 January 2006 90 in relation to the issue. This meeting, however, was in response to staff reaction to the roster changes and, in my view, not local level consultation as envisaged by clause 29.3. [84] The difficulty I have with this issue is the lack of evidence and submissions on the extent of local level consultation and reasonable period of notice or the lack thereof. Obviously, given the time and energy expended on this matter, there did exist an issue with wages staff in relation to the changes to the rostering arrangements, in particular as those arrangements affected staff at Central station. However, on the evidence of Mr. Eid: “Following the meeting (20 January 2006) a steady stream of staff confirmed their availability to act up. A revised roster for the fortnight commencing 22 January was posted on 20 January with a significant number of staff acting up. Vacancies were then filled with available staff from other locations. The roster was worked without incident. Since 22 January the Central roster has continued to operate with a higher level of staff acting up and with some working overtime, but the reliance on overtime has been greatly reduced.” 91 [85] It is doubtful that the Commission can take this matter any further given the circumstances of the case as previously outlined. I have made some general comments on the basis of the limited material before me on the issues associated with clause 29, in particular the principle of local level consultation and what that principle envisages. [86] I have decided, however, that this is not the appropriate case to address the application of clause 29.5. That question may or may not arise in future. BY THE COMMISSION: COMMISSIONER Appearances: L. Carruthers for the Australian Rail, Tram and Bus Industry Union, with P. Kessey and M. Farhat. M. Greenhill for RailCorp. Hearing details: 2006. Sydney: March 20; April 13; May 1. Printed by authority of the Commonwealth Government Printer <Price code G> 1 AG841273 PR960346 2 The RTBU’s outline of submissions (Exhibit RTBU 2) addressed three provisions of the 2005 agreement, being Clauses 22, 29 and 7. I do not intend to address the status quo provisions of clause 8 as those provisions were not raised in the proceedings. 3 PN2223 4 See PN2231 to PN2277 5 CEPU v. Telstra (Giudice P, Harrison SDP and Simmonds C), 128 IR 385 @ 393; CFMEU v. MacMahon Contractors Pty Ltd (Giudice P, Lawler VP and Raffaelli C, 24 November 2005), PR965459 @ [14]. 6 Written submissions 18 May 2006 @ point 5. 7 Ibid. @ point 6. 8 Ibid. @ point 7 9 PN1718; PN1719 10 Written submissions 18 May 2006 @ point 16. 11 Written submissions 18 May 2006 @ point 11. 12 PN1744 – 1745; PN1750; PN1791 13 PN339 to PN360 14 Exhibit RTBU 1 @ Annexure O 15 Written submissions 18 May 2006 @ point 15 16 Ibid. @ point 20. 17 Written submissions @ points 8 and 9 18 Exhibit RTBU 2 @ page 2, points 1 to 6 19 Written submissions @ points 10 and 11 20 Exhibit RailCorp 3 21 Exhibit RailCorp 1 22 AG819338 PR924041 23 At PN1411 24 Written submission @ point 15 25 Exhibit RTBU 2 @ annexure I 26 Exhibit RTBU 2 @ annexure L 27 Written submission @ point 18 28 Exhibit RTBU 2 @ annexure N 29 Written submission @ point 26 30 Print Q1215, (Munro J, 29 May 1998) @ paragraph 8 31 PR965459 (Giudice P, Lawler VP and Raffaelli C, 24 November 2005) 32 Ibid. @ [6]; [10] to [14] 33 PR933766 (Marsh SDP, Cartwright SDP and Redmond C, 1 July 2003). 34 PR922053 (Munro J, Kaufman SDP and Cribb C, 23 April 2003). 35 PR908236 (Lacy SDP, 3 September 2001). 36 PR933766 @ [29] and [32]. 37 The application for certification of the 2005 agreement was made under Division 3 of Part VIB for the certification of a multi-business agreement pursuant to s.170LC. PR959710 (Harrison SDP, Duncan SDP and Larkin C, 5 July 2005) 38 Written submissions @ 26 39 Exhibit RTBU 1 40 Exhibit RTBU 1 @ annexure M 41 Clause 3.12 of the 2005 agreement 42 Exhibit RTBU 1 @ annexure L 43 Exhibit RTBU1 @ annexure N 44 Ibid. @ annexure O 45 PN1411; PN1417; PN1418 46 Exhibit RTBU 1 @ annexures F and G 47 Exhibit RTBU 1 @ annexures H and I 48 Exhibit RTBU 2 @ point 6; PN2056 49 PN2056 50 Exhibit RTBU 2 @ point 6 51 Written submissions @ point 9 52 PN2066; PN2067 53 Exhibit RailCorp 3 @ paragraphs 21 to 24 54 Ibid. @ annexure K 55 Exhibit RTBU 1 @ annexure S 56 Exhibit RTBU 1 @ annexure T 57 Exhibit RTBU 2 58 PN2018 59 PN2022 60 PN2306 to PN2312 61 Exhibit RailCorp 4, written submissions, @ point 16 62 Ibid. @ point 18 63 Exhibit RailCorp 3 @ point 27 64 PN2221 65 Exhibit RTBU 1 @ 10 Annexure C to Mr. Kessey’s affidavit is the Staff Review Document for Central Station dated 1 July 2003 66 Exhibit RTBU 1 @ 21 67 Ibid. @ 25 68 Exhibit RTBU 1 @ annexure N 69 Exhibit RTBU 1 @ annexure O 70 Exhibit RTBU 1 @ annexure S 71 Exhibit RTBU 1 @ 34 and annexure V 72 Exhibit RailCorp 2 73 At paragraph 9 of Mr. Kessey’s affidavit (Exhibit RTBU 1) 74 Exhibit RailCorp 2 @ annexure B 75 Exhibit RailCorp 3 76 Ibid. @ paragraphs 12 to 18. These positions had previously been advertised, during the period January 2005 to June 2005, by the centralised recruitment centre and on Mr. Eid’s instructions withdrawn in June 2005. Mr. Eid subsequently reversed this decision. 77 Ibid. @ paragraph 22 78 Exhibit RailCorp 3 @ paragraphs 24 and 25 79 PN1647 80 Exhibit RailCorp 3. @ paragraph 29 81 At paragraph 9 of Mr. Kessey’s affidavit (RTBU 1) 82 Exhibit RailCorp 3 @ paragraph 31 83 Ibid. @ paragraph 34 84 Ibid. @ paragraphs 36 to 38 85 PN1000 86 The Macquarie Dictionary 87 Exhibit RailCorp 3 @ paragraph 27 88 PN1751 89 Exhibit RailCorp 3 @ paragraph 27 90 Exhibit RailCorp 2 @ annexure B; Exhibit RailCorp 3 @ paragraph 35 91 Exhibit RailCorp 3 @ paragraphs 36 to 38