WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2014 WAIRC 00091 CORAM : COMMISSIONER S J KENNER HEARD : THURSDAY, 22 AUGUST 2013, FRIDAY, 23 AUGUST 2013, THURSDAY, 24 OCTOBER 2013, FRIDAY, 25 OCTOBER 2013 DELIVERED : TUESDAY, 11 FEBRUARY 2014 FILE NO. : CR 29 OF 2012 BETWEEN : THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH Applicant AND PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA Respondent Catchwords : Industrial law (WA) – Matter referred for hearing and determination under s 44(9) of the Act – Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011 – Dispute regarding changes to Passenger Ticketing Assistants’ rostering arrangements on the Armadale Line – Contracting out of Authority work – Access to the Authority’s Rostering and Payments System – Principles applied – Interpretation of Agreement – Work/life balance – Deployment of labour – Operational requirements – Managerial prerogative – Discretion cannot be exercised arbitrarily, capriciously or unreasonably – Implied duty of trust and confidence – The Authority did not act capriciously or unreasonably by maintaining the use of spare lincs on the Base Roster or engaging contracted security services – Union and rostering representatives should have full access to the Authority’s Rostering and Payments System – Application granted in part Legislation : Industrial Relations Act 1979 (WA) ss 44, 44(9) Result : Application granted in part Representation: Counsel: Applicant : Mr C Fogliani and with him Mr K Singh Respondent : Mr R Farrell and with him Ms J Allen-Rana Case(s) referred to in reasons: Abu Dhabi National Tanker Co. v Product Star Shipping Ltd. (The “Product Star”) (No. 2) [1993] 1 Lloyd’s Rep 397 Amalgamated Metal Workers and Shipwrights Union v Robe River Iron Associates (1986) 67 WAIG 2 Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 City of Wanneroo v Holmes (1989) 30 IR 362 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 259 Foggo v O’Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87 Horkulak v Cantor Fitzgerald International [2004] EWCA Civ 1287 Kucks v CSR Limited (1996) 66 IR 182 Malik v Bank of Credit and Commerce International S.A. [1998] AC 20 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority (2012) 92 WAIG 894 The Australian Workers’ Union, West Australian Branch and Ors v BHP Iron Ore Ltd (2002) 82 WAIG 2558 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 Case(s) also cited: PTA and ARTBIUWA (2009) 89 WAIG 1148 WA Prison Officers' Union of Workers v Minister for Corrective Services (1989) 69 WAIG 2217 Federated Miscellaneous Workers Union v Sir Charles Gairdner Hospital (1991) 71 WAIG 2200 ASDSTE v Mt Newman Mining (1991) 71 WAIG 1077 Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 Delooze v Healey [2007] WASCA 157 Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 Rogan-Gardiner v Woolworths [No 2] [2010] WASC 290 Whittaker v Unisys (2010) 26 VR 668 Hussain v Surrey & Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB) Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 Rankin v Marine Power International [2001] VSC 150 Mallone v BPB Industries Plc [2002] IRLR 452 Reasons for Decision Background to dispute 1 The present dispute has a lengthy history. It concerns rostering arrangements applying to Passenger Ticketing Assistants employed by the Authority on its Armadale Line. The Armadale Line runs from Perth Station to Armadale Station, within some 20 stations in between. The line is a busy line, with in excess of nine and a half million passengers in the 2012-13 year. PTAs were introduced into the urban rail network in 2006. The job of a PTA involves providing patrons with advice on train schedules, timetables and ticketing. They also assist in revenue protection, by checking tickets and issuing fare evasion infringements at fare gates. The employment of PTAs is covered by the terms of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011. 2 The present dispute concerns a change to the roster for PTAs on the Armadale Line in July 2012. At that time, a change was made to the employees’ Base Roster, in particular, by removing the Sunday Armadale 2 shift from a permanent location on the roster. As a result of an earlier dispute about this matter, an agreement was reached between the Authority and the affected employees, in February 2010. This involved the permanent allocation of the Armadale 2 shift to a line in the roster, over the fortnightly roster cycle. There were other consequences of this change, flowing from the incorporation of the Armadale 2 shift into the roster. 3 In early 2012, the situation was altered. The Authority determined that the Armadale 2 shift would no longer be permanently allocated a line in the roster and would return to being a floating shift, and would be paid as overtime and not as an ordinary weekend shift. Additionally, other changes were made. These included changes to the Thornlie shifts by reducing shift hours Monday to Thursday by 15 minutes. This enabled the Authority to increase Friday shifts at the Kelmscott Station by one hour, without incurring overtime penalties, as was the case prior to this change. The introduced changes were based on the Authority’s need for operational efficiency and budgetary constraints. 4 As a consequence of these alterations, the Union notified the Authority of a dispute in relation to the roster on the Armadale Line. A number of issues were raised by the Union with the Authority arising from the roster changes. These issues included: (a) A complaint that there are too many “spare lincs” on the Armadale Line base roster; (b) The fact that the Armadale 2 shift was not allocated to a line in the roster; (c) That the employees wished to implement a balanced roster; (d) The differing shift lengths in the new proposed roster made shift swaps difficult, if not impossible; (e) Complaints in relation to the unfair allocation of overtime and that PTAs on the Armadale Line were the lowest paid generally; (f) That contractors were being used to perform work on the line which could be performed by PTAs; and (g) That the employees’ access to the Authority’s Rostering and Payments System had been withdrawn. 5 As a result of these matters the Union made an application to the Commission under s 44 of the Industrial Relations Act 1979. A number of compulsory conferences were convened, which did not resolve the issues in dispute. The Union sought an 260 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. interim order preventing the Authority from implementing the new Base Roster. The Commission declined to make an interim order, on the basis that if the issues remained in dispute, evidence in relation to the actual workings of the new Base Roster would inform the Commission in relation to the matters to be determined. The Authority introduced the new Base Roster from 1 July 2012. Further compulsory conferences from that time up until March 2013 did not resolve the issues in dispute. Accordingly, the matter was ultimately referred for hearing and determination under s 44(9) of the Act. Orders sought 6 The Union seeks two orders, put in the alternative. The first order sought, is that the current Base Roster for PTAs on the Armadale Line be replaced by a proposed roster set out at attachment A, annexed to the notice of referral. Amongst other things, that roster provides for the Armadale 2 shift to be allocated permanently to a line in the roster. In the alternative, the Union seeks an order that the Authority be directed to further consult with the Union and the PTAs in order to produce a roster which contains the following: (a) Work day and rostered day off patterns and the start and finish times for each shift that the employees could reasonably be expected to work be shown in every linc in the Base Roster; (b) All shifts on the Armadale Line Base Roster for PTAs, wherever possible, should be ten hours in length; (c) All shifts that are typically worked by the Armadale Line PTAs (including those on the Armadale 2 Sunday shift) should be permanently allocated to a linc on the Base Roster; (d) That the Base Roster must contain balanced weeks of work; (e) That work at the Victoria Park Station between the hours of 2:35pm and 4:45pm be assigned to the Armadale Line PTAs; (f) That Union delegates, rostering representatives and PTAs on the Armadale Line be given access to RAPS; and (g) That as an alternative to (a), if the Commission finds that the existence of relief lincs in the Base Roster are consistent with cl 3.3.6(c) of the Agreement, that the number of spare lincs be reduced from the present three to two. 7 Before considering the specific issues in dispute, in terms of the orders sought, I first refer to some matters of principle dealt with in the submissions of the parties. Issues of principle 8 The Union advanced its case as one being based on the overriding principle of work/life balance. The Union contended that the current Base Roster, resulting from the changes made in July 2012, is not consistent with this broad overarching principle. It was submitted that the Authority had placed an over-reliance upon its operational requirements, to the detriment of the work/life balance of the PTAs on the Armadale Line. 9 It was submitted by the Authority, and accepted by the Union, that the principle of management’s prerogative to manage is not to be lightly interfered with. This principle found expression in some detail in Amalgamated Metal Workers and Shipwrights Union of Western Australia and Ors v Robe River Iron Associates (1986) 67 WAIG 2, a decision of the Commission in Court Session, dealing with a major industrial dispute in the iron ore industry. In that case, Gregor C referred to the relevant authorities in relation to managerial prerogative. Whilst the quotes are lengthy, they are important observations on matters of principle. They are in the following terms: The philosophy of industrial tribunals is founded on the historical rights of people to conduct their own business within the law, to employ whoever they like and be employed by whom they like. In fact early legislation in this country withheld from industrial tribunals the power to arbitrate disputes about how an employer should manage his business. An outline of the origin, development and acceptance by tribunals of their role in such disputes was set down by Wright J. in the Federated Clerks Union v. Public Service Board and Others (128 CAR 219) as follows: As stated in our reasons for decision this Commission, and the Arbitration Court before it, have throughout their existence acknowledged the right of an employer to manage and regulate his own business, subject to the protection of his employees from injustice or unreasonable demands. Because I feel that this concept is soundly based, and indeed fundamental to the jurisprudence of this Commission, I consider it appropriate to take this opportunity of tracing in outline its origin, development and acceptance by the tribunals. It was expressed thus in 1906 by the first President of the Court (O'Connor J.) in the first case dealt with under the Act: On the other hand the right of the employer is to manage his business in his own way without interference of any kind except in so far as the Court may deem it necessary to interfere for the purpose of making effective the right given by the Act to the combination of employees to fair wages. The second President (Higgins J.) put it this way: The Court refuses to dictate to employers what work they should carry on, or how; or what functionaries they should employ, or what functions for each employee . . . The Court leaves every employer free to carry on the business on his own system, so long as he does not perpetuate industrial trouble or endanger industrial peace . . .; free to make use of new machines, of improved methods, of financial advantages, . . . of superior knowledge; free to put the utmost pressure on anything and everything except human life. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 261 Another version of the same doctrine states: . . . industrial tribunals usually adopt the attitude that in the absence of evidence that the employer is abusing his powers by acting harshly, oppressively or unjustly . . . they will not interfere with his common law right to manage his own business . . . O'Mara J. in 1942 said: I do not propose to substitute my opinion or to allow the opinion of the employees to be substituted for that of the management as to the best way in which these works can be carried on in the best interest of the community. Kelly J. in 1943 said: . . . the time has, I think, come to restate the general principle that this Court will not interfere with an employer's right to regulate his own business, unless in his regulation of it he imposes unjust or unreasonable demands upon his employees. According to my experience and reading, neither the Court nor the Commission has ever deviated from these versions of the principle and numerous examples of its application by the Court and Commission are found in the Reports. E.g. Tonkin, Conciliation Commissioner and Morrison, Conciliation Commissioner. The same general principle has been adopted over a considerable period by the New South Wales' state tribunal, as is exemplified by a long line of cases dealt with in the State. In a matter involving Nabalco Pty Limited v. Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch No. C 2340 of 1974 (Print C 4814) the principle was further developed by Mr Justice Coldham particularly in respect to how it ought to be applied in circumstances involving demarcation arguments. Even though the issue then under consideration was demarcation, the principle is nevertheless relevant. It is the employer who manages the operations which give employment to the men who are members of unions which raise demarcation issues. The employer is the manager. It is his operation in his establishment which is under review. As part of the management of his operation the employer must employ men. He employs men for the purpose of commencing and maintaining his operation. He deploys men for the purpose of achieving and maintaining the more efficient conduct of his operation. His views on deployment are matters for him. Closely related to the deployment of men is demarcation of work. When demarcation issues are called before the Commission it is for the Commission to take the responsibility of deciding upon those issues. However the status of the employer must be given full recognition and his views on demarcation issues must be given special respect because of that status. Those issues must, if possible, be settled in a manner consonant with the employer's views upon the efficiency of management. The philosophy which underlies the statements made by the various tribunals over the years has been given effect in this jurisdiction on many occasions, but particularly in a matter in many ways similar to the issue currently before this Commission in Court Session. The principles are consistently applied in a decision of Mr Commissioner B.J. Collier (as he then was) in Hamersley Iron Pty Ltd (Claimant) and the Australian Workers' Union, West Australian Branch, Industrial Union of Workers and Others (Respondents), No. CR 24B of 1981 (64 WAIG 1795). In disposing of the various matters before it during that case, the Commission applied the principle against the background of the particular facts which were then described to it. At page 1800 of the decision it clearly encapsulated the principle as follows: As stated earlier an offer of reasonable overtime is clearly the prerogative of management. The Commission should not query the prudence of management in the exercise of that right or interfere unless it can be shown that employees have been unjustly treated by the manner in which the right is exercised. 10 These principles apply with equal force now, as in the past. The principle also applies in the same way where an employer proposes to introduce change to its operations. In The Australian Workers’ Union, West Australian Branch and Ors v BHP Iron Ore Ltd (2002) 82 WAIG 2558 I said at pars 16 and 17 as follows: 16 It is common ground that the respondent has the right under both the Award and had the right under the previous industrial instruments, to require employees to change from one shift to another. That proposition is clearly correct in my view. 17 It has also been an industrial principle of long standing, that where an employer has a contractual or award right to introduce change, industrial courts and tribunals will not interfere with the exercise of such a right, unless it is established by those opposing such a change, that it would be unfair or unjust for the change to be effected: BHP v FIA 1977 AILR para 493 (11) per Watson J; AMWSU v RRIA (1986) 67 WAIG 2. Not only does an employer such as the respondent have the right to manage its operations, it has a duty to do so in the most efficient matter, consistent with its obligations as a public company under the Corporations Law. However, these rights and duties must always be tempered by the concept of industrial fairness, such that the exercise of such a right is not harsh, oppressive, or unfair, or otherwise imposes undue burdens on employees. For example, matters such as excessive workloads and occupational health and safety considerations have always been relevant in this respect. 18 In the present dispute, the respondent is seeking to exercise a right that it undoubtedly has both under the Award, and under previous industrial instruments. As to the submission of the applicants that the status quo must apply, by reason of the application having been filed prior to the making of the Award, I do not accept that argument. The Commission in Court Session rejected a claim by the unions in those proceedings leading to the making of the Award that there be a general liberty in respect of all matters presently before the Commission: AFMEPKIU and Ors v BHP Iron Ore Ltd and Ors (2002) 82 WAIG 2060 at 2066. 262 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 11 Rostering is a matter prescribed by the Agreement. The provisions relevant to the Base Roster and changes to it are set out in cls 3.3.5-3.3.8. It is convenient to set out these clauses now and they are as follows: 3.3.5 Base Roster: The Employer shall construct a Base Roster for each employee group following consultation with the elected Employee Rostering Representative for that group. 3.3.6 Base Rosters will: a) be readily available for perusal by employees; b) show lines of work for all rostered employees for a typical roster cycle; c) Show work day and rostered day off patterns and show start and finish times for each line of work; d) comply with fatigue management principles; e) be balanced, to the extent that it is reasonably practicable, so that all employees work a similar number of hours over the roster cycle; f) make all reasonable endeavours to maximize the number of weekends off in a roster cycle, to the extent that this is practicable taking into account the constraints and operational requirements for employees working 24/7 shift work; g) provide for Balanced Weeks where the conditions of subclause 3.3.7 are satisfied; and h) only be modified to accommodate changes expected to persist for at least three months. 3.3.7 Where the majority of employees to whom a Base Roster applies have notified the Employer prior to the implementation of a modification to that Base Roster that they would prefer their roster to provide for Balanced Weeks, then any modification to the Base Roster will provide for Balanced Weeks. A Base Roster will provide Balanced Weeks where an employee is not rostered to work more than 43 ordinary hours in any week of the roster cycle. Where the Employer receives later notification from the majority of employees to whom a Base Roster applies that they do not prefer their roster to provide for Balanced Weeks, then any modification to the Base Roster following that notification need not provide for Balanced Weeks. 3.3.8 Where the Employer proposes to implement a modified or new Base Roster, the Employer shall: a) give 3 weeks’ notice to employees who would be affected by the change b) advise the Union, and consult with the Union regarding amendments which may be necessary to: i) any Aggregated Wage Rate, under subclause 4.3; or ii) annual leave loading calculations under subclause 6.2.11.e); and c) Advise the Employee Committee Representatives on the Consultative Committee. 12 The purpose of a Base Roster is to provide employees with advanced notice, of their proposed working patterns and rostered days off. The Operational Roster, based on the Base Roster, is the roster that the Authority will require employees to actually work, and on which employees names are physically placed: The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority (2012) 92 WAIG 894 per Kenner C at par 5. As it is clear from cl 3.3.6(h) of the Agreement, changes to the Base Roster are only to be made where they are of some significance. 13 Thus far, in the context of the relevant provisions of the Agreement, and the application of the relevant industrial principles, it is only if the employer’s exercise of a right under the Agreement regarding rosters and changes to them, is demonstrated to involve an unfair exercise of its right to manage, that the Commission should interfere. 14 The Union made some further submissions in relation to matters of principle. It was contended that the law implies into contracts of employment, a term to the effect that the employer shall not, without reasonable cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them: Malik v Bank of Credit and Commerce International S.A. [1998] AC 20. Reference was also made by the Union in its submissions, to the implied obligation of good faith, and the obligation on an employer to not exercise its managerial discretion arbitrarily, capriciously, unreasonably or for a collateral purpose: Horkulak v Cantor Fitzgerald International [2004] EWCA Civ 1287; Abu Dhabi National Tanker Co. v Product Star Shipping Ltd. (The “Product Star”) (No. 2) [1993] 1 Lloyd’s Rep 397; Foggo v O’Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87. As to the latter proposition, there can be no question that in a case where discretion is to be exercised, it should not be arbitrary or capricious. How the exercise of the discretion is to be regarded in this context will also depend on the terms of the relevant contract, and all of the circumstances of the case. 15 The issue of whether there exists an implied term of mutual trust and confidence in Australian law is more controversial. Most recently, this was recognised as part of the Australian common law by the majority (Jacobson and Lander JJ; Jessup J dissenting) in Commonwealth Bank of Australia v Barker (2013) 214 FCR 450. This decision is now on appeal to the High Court. The issue will have to await the outcome of the appeal. 16 Reference was also made by the Union to the International Labour Organisation’s Convention Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (Convention No. 156, 1981). Australia ratified this Convention in March 1990. The Convention applies to employees who have dependent children and others in their care. It refers to measures to be taken to enable employees with family responsibilities to become and remain integrated with the labour force. The terms of the Convention have been given effect in domestic law in Australia in various equal opportunity statutes. The focus of the provisions is to prevent discrimination against, for example, employees, on the grounds of family responsibilities. It is unlawful for an employer to discriminate against an employee on the grounds of family responsibilities. 17 I will now consider the issues for determination, consistent with the way in which the parties put their respective cases before the Commission. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 263 Spare lincs 18 The present Base Roster operates over two weeks and comprises ten “lincs”. A linc is a line in the roster, which shows an employee’s pattern of work for the two week period covered by the roster. Each line in the Base Roster is required under the Agreement, to show the start and finish times for each shift and the days off over the roster cycle. 19 A “spare linc” in the roster, is one to which no start and finish times, or day off patterns, are allocated. No stations are referred to. It is represented as a blank line on the roster and described as “spare”. There are presently three spare lincs on the current Base Roster. The Union says that if there are to be spare lincs, then there should be only two. The existence of spare lincs is not new. They have been a feature of rosters for the Authority since the inception of the PTA position in 2006. The purpose of a spare linc is to provide coverage for planned absences such as annual leave, long service leave, leave without pay and training etc. They are also used to provide coverage for unplanned absences, such as sick leave and workers’ compensation. According to the Authority, on the evidence of Mr Luff the Manager Customer Service for Transperth Train Operations, the objective of spare lincs is to provide relief coverage for approximately 20 per cent of staff on a particular line. Presently, according to Mr Luff, the Armadale Line has coverage of approximately 18 per cent of the staff for the line, which is consistent with most other lines on the Authority’s network. 20 The Commission notes that while the present dispute emanates from changes to the Base Roster made from July 2012, Base Rosters prior to this time, as far back as 2010, also had three spare lincs: exhibit R1 tab 2. 21 The Union contends that spare lincs deprive employees of certainty as to their hours of work and day off patterns. It was submitted that this undermines the purpose of a Base Roster, which is, amongst other things, to provide some certainty to employees in relation to their projected working hours in the future. Specifically, the Union submitted that the existence of three spare lincs means that employees cannot properly plan their personal lives; requires them to work eight hours per day on spare lincs which affects their ability to access days off; the Authority is withholding meaningful work for employees; spare lincs are being used as a tool of favouritism by the Authority; and generally, their use is capricious and unreasonable. 22 From its own analysis, the Union contended that the Authority needs to cover some 60 weeks’ of annual leave and training leave for the Armadale Line PTAs. On the basis of three spare lincs in the Base Roster, this gives the Authority some 156 weeks of coverage each year, which is 96 weeks in excess of what they need, according to the Union. Adopting two spare lincs instead, will give 104 weeks of coverage, which are some 44 weeks in excess of the coverage needed. No account however, is taken in these figures, of the need to cover for long service leave and for unplanned absences, such as sick leave and workers compensation, for example. 23 For the Authority it was contended that spare lincs are necessary to respond to both planned and unplanned absences. To reduce the spare lincs from the current three to two, would impact on the Authority’s operational flexibility. 24 Witnesses for the Union gave evidence about the impact of spare lincs. Mr Jesse Watts has been a PTA on the Armadale Line since 2006. He was also a rostering representative until 2010. Mr Watts said from his experience, most problems arise from the use of spare lincs. This relates primarily to changes to shifts that occur for employees working on spare lincs. Mr Watts gave an example of hours he worked over the Christmas period 2012. He was rostered to work on a spare linc, covering a person on holidays. He was rostered for 42 hours of work. Mr Watts was then given additional hours, which totalled 56 hours for the week. He was told by his Manager that this was allowed because he was on a relief linc and the employer could do this, as long as it did not exceed 80 hours in a fortnight. 25 Mr Watts also gave evidence in relation to more recent examples, of working on different shifts to cover for absences, when in the second week, the roster changed with different days off. Mr Watts also said he got complaints from employees on relief lincs, who were not getting weekend work. Employees do not understand why this happens and the use of spare lincs causes these sorts of problems, according to Mr Watts. Whilst in cross-examination, Mr Watts could not comment on whether in recent weeks, prior to the hearing of this matter, three lincs were necessary for the Authority to get the required coverage of annual leave, he did say in the past when two spare lincs were used, there was no need for excessive overtime to be worked. Mr Watts had prepared a proposed roster, submitted to the Authority, and which is the Union’s preferred position as set out in the annexure to the s 44(9) referral. This proposed Base Roster contains two spare lincs only. Mr Watts said he could see no reason why such a roster could not be worked. 26 Mr Singh has been a PTA on the Armadale Line for in excess of two years. He is the current rostering representative. He said the new Base Roster implemented in July 2012, had implications for him personally. The use of three spare lincs has led to uncertainty for his working arrangements. Mr Singh testified that he was not able to plan ahead and it has also meant that he is not able to spend as much time with his family as he wishes. Mr Singh previously worked as a PTA in Perth, and said there were better rosters at that location. Whilst he worked spare lincs when based in Perth, the hours worked were ten hour shifts and not eight. Mr Singh moved to the Armadale Line to be closer to his family. In cross-examination however, Mr Singh accepted that there is a trade-off between work/life balance and higher income through working shifts carrying penalty rates. 27 In relation to the working of spare lincs, Mr Singh testified that there is a predominance of eight hour shifts and an absence of weekend work. When it was put to him that the absence of weekend work may also be regarded as a positive for work/life balance, Mr Singh said he also had the need for penalty payments to help pay his mortgage. Mr Singh also testified that in one case, when an employee was off on extended workers’ compensation, the line was able to cope with two spare lincs. However, in cross-examination, it emerged that in fact, at the time, three spare lincs were in use on the then Base Roster, and the replacement employee was working on one of them. 28 Ms Catalano is a PTA and has been on the Armadale Line since 2006. As well as adult children, Ms Catalano has grandchildren. On the current Base Roster, she complained that she does not get enough time with her grandchildren. In terms of spare lincs, Ms Catalano said that there is a predominance of eight hour shifts, which means little weekend work and no penalties. She also referred to the period of time just prior to the opening of the Mandurah Line. At that time, the Authority had employed a number of extra staff in anticipation of the opening of the new line, and some of them worked on the 264 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Armadale Line, prior to their transfer to Mandurah. At that time, Ms Catalano said that they worked with only two spare lincs on the Base Roster, without difficulty. She could not see the problem in going back to that now. 29 In cross-examination however, Ms Catalano accepted that under the Agreement, the Authority has the ability to roster employees over a minimum of six and a maximum of ten to twelve hours per day. She also accepted that the Authority has an obligation to meet its customer and operational needs, when it compiles its Base Rosters. 30 Ms Flavel has also been a PTA on the Armadale Line since 2006. She moved to other positions within the Authority and returned to the Armadale Line in the last two years or so. Ms Flavel testified that at the time she first started on the Armadale Line, only one or two spare lincs were used. She did not experience a problem with absences for annual leave or any other issues, as far as she could recall. This was also the case just prior to the commencement of the Mandurah Line, when a number of extra PTAs worked on the Armadale Line. Ms Flavel also complained that on the Mandurah Line, where she is presently temporarily based, spare lincs usually contain ten hour shifts, whereas most, if not all, on the Armadale Line, are eight hour shifts. 31 Ms Flavel considered that she earns less income on the Armadale Line, because there is less opportunity to earn penalty rates. This appeared to be common ground. In cross-examination however, Ms Flavel accepted that on the Mandurah Line, because there are fare gates at all stations, operationally, that may explain the existence of ten hour shifts as opposed to eight hour shifts. A further problem identified by Ms Flavel, as with other witnesses, was the inability to plan ahead, when allocated to a spare linc on the roster. I note however, that this equally applies to the Mandurah Line, where Ms Flavel is presently working. 32 Evidence on behalf of the Authority was adduced through Mr Luff. In relation to spare lincs on the Base Roster, Mr Luff testified that the purpose of spare lincs is to cover work that is generally vacant. That is, vacancies that arise from annual leave, workers’ compensation, training, sick leave, in particular long term sick leave absences, and for any other reason when a staff member is not at work. Mr Luff also noted that as the rosters for Customer Service Assistants do not contain spare lincs, when a CSA is on annual leave, a PTA will often act up in the position on higher duties. Therefore, according to Mr Luff, whilst the PTA Base Roster for the Armadale Line contains three relief lincs covering ten employees, in effect, they also provide cover for a further seven employees on the CSA roster. As already noted, Mr Luff said that given the general rule of covering for a 20 per cent absenteeism rate, on the Armadale Line in his experience, the Authority fully utilises the three relief lincs most of the time. 33 Additionally, if there is a lower level of absenteeism at any particular time, Mr Luff testified that the PTAs on the relief lincs are assigned to in particular, the Oat Street Station and the Cannington Station, to provide additional customer service. In this respect, Mr Luff undertook some research as to the incidence of coverage at the Oats Street Station. Over the period of twenty weeks or so prior to the hearing, on only two of those weeks, did PTAs attend that station for four days of the week. Mr Luff said that this meant that three spare lincs are justified. Otherwise there would be a PTA presence at Oats Street all the time. The fact that it was only sporadic, demonstrated that three spare lincs are required to cover the other work on the Armadale Line. 34 An issue raised with Mr Luff in his evidence, in relation to predictability, was a proposal discussed some time ago with the employees, of inserting default start and finish times on the relief lincs. Mr Luff said that in the course of the last negotiations for a replacement industrial agreement, there were suggestions that default start and finish times be inserted into spare lincs Monday through to Friday. Mr Luff said however, that when he raised this matter with the rostering representatives for the PTAs on the Armadale Line, they considered that such a step would be too confusing, on the basis that when the Base Roster is populated with employees, and it becomes the Operational Roster, there would be likely significant changes anyway. For that reason, to avoid the confusion, Mr Luff said that the general view at that time seemed to be that employees prefer to leave the current arrangements as they were. 35 In this respect, Mr Luff referred to an email from himself to the employee representatives of 14 June 2013, following a meeting with the relevant rostering representatives. This document is at exhibit R1 p 67. A note under “Item 8” regarding the utilisation of relief lines refers to the general consensus that inserting default times of work and days of work on the Base Roster would be more likely to cause confusion and difficulties amongst employees than the then present arrangements. A preference was expressed, as recorded in the note, for individual arrangements between staff and the managers to overcome any difficulties. Mr Luff testified that he was then of the view that as a general proposition, that the default times appeared not to be supported. However, he did not rule out the possibility of individual lines adopting that approach. I pause to note, that there seemed to be some dispute as to whether the representatives at that particular meeting included representatives for the Armadale Line. 36 Mr Luff was asked about the implications of reducing the number of spare lincs on the Armadale Line from three to two. He said that the consequence for the Authority would be to require work to be done presently in ordinary hours, some other way, including the working of overtime. This would impose extra cost on the Authority. According to Mr Luff, on the Armadale Line, PTAs, for the 2012/13 year, worked approximately an average of 187 hours of overtime per annum. The all line average for that year was 185 hours of overtime. Further, Mr Luff said that generally speaking, with “special events”, this work is all covered on overtime. Thus, if employees wished to supplement their income through working additional hours and receive penalties, there is ample opportunity to express an interest in working these additional hours. 37 In relation to the compilation of Base Rosters and the use of spare lincs, Mr Luff referred to the difference between planned and unplanned absences. In the case of planned absences, such as annual leave or an employee acting in a higher position on higher duties for a period of time, the roster clerk, in setting up the rosters will know some time in advance if employees are taking leave and other extended absences, which are then assigned to employees working relief lincs. In the case where there are multiple relief lines on multiple rosters across the network, there is a process for allocation of coverage for absences. 38 The first position is to cover absences on the Armadale Line, for example, from those working relief lincs on that line. In the event that all available relief staff have been utilised, then the Authority will look to other lines for coverage. The practice is to try and allocate staff presently on a transfer list wishing to move from a line, because they generally are residing closer to the line where the relief is needed. If no staff are available having exhausted both of these processes, then the relief is worked on 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 265 overtime. In relation to that step, Mr Luff testified that overtime is generally allocated on the basis of those who firstly, volunteer for it. A further consideration is the amount of overtime performed by employees. The decision is generally taken to allocate overtime to the person with the least number of overtime hours worked, on the basis that all other things being equal, they are able to perform the particular work required. 39 In cross-examination Mr Luff accepted that the purpose of the Base Roster is to provide some indication of future working patterns for employees, and that spare lincs to an extent, work against that purpose. None the less, Mr Luff said they are still required to give the Authority necessary operational flexibility. In particular, Mr Luff said that spare lincs could not be removed from the Base Roster, because the Authority does not know what work might be required to be covered in advance. Even with arranged leave, given other changes that may occur, the Authority cannot determine future coverage needs, beyond a couple of weeks in advance. As it was put by Mr Luff in his evidence, the “bottom line” of reducing the spare lincs would be to remove 52 weeks of coverage that would have to be made up some other way. This would be either by working additional overtime, or, by reducing staff numbers, with some positions remaining unfilled. 40 As to this issue generally, I accept that the concerns raised by the employees who have given evidence in this matter are genuinely felt. I also accept that the issue of work/life balance is an important consideration for employees, particularly those with caring responsibilities for family members. The Commission must also, having regard to the principles referred to at the outset of these reasons, balance those considerations against the employer’s right to roster staff, in accordance with the provisions of the Agreement, to meet its operational requirements, consistent with its general right to manage its business. This must also include its budget constraints, and the need to deploy its resources, including staff, in the most efficient manner. 41 It is necessary to first observe that the Agreement, to which both the Union and the relevant employees are parties, and are bound by, provides comprehensively for rostering arrangements. The working of shifts, given the operations of the Authority, is a necessary feature of work for PTAs and others employed on the Authority’s network. It is a requirement of appointment to a position as a PTA that the person commits to working shift work, including weekends and public holidays. This is made clear in the Job Description Form for the position. 42 As noted, the Union contended that the current approach of the Authority to use spare lincs is inconsistent with cl 3.3.6 of the Agreement. Clause 3.3.6(c) of the Agreement, in relation to Base Rosters, requires a Base Roster to show “work day and rostered day off patterns and show start and finish times for each line of work”. On the face of it, this submission by the Union has some substance. However, one then must move to cl 3.3.10(e)(ii), which makes specific reference to employees working a “relief line” on a Base Roster. 43 There is no definition of “relief line” in the Agreement. However, consistent with the generous approach to the interpretation of awards and industrial agreements, a meaning should be given to the terms of the Agreement, consistent with the presumed intentions of the parties at the time the Agreement was made: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; Kucks v CSR Limited (1996) 66 IR 182; City of Wanneroo v Holmes (1989) 30 IR 362. It needs to be ascertained what a reasonable person would have understood the words in the Agreement to mean, having regard to the surrounding circumstances known to the parties, the text of the Agreement, and its object and purpose: Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165. There was no suggestion in these proceedings, that a “relief line”, as expressed in cl 3.3.10(e)(ii) has, or was intended to have, some other meaning to that accepted by both parties for the purposes of this case, that being a spare linc, which does not have days, hours of work and rostered days off referred to in it. It seems therefore, that the draftsperson of the Agreement, contemplated the use of relief shifts or spare lincs. 44 Without necessarily finally deciding the issue on this occasion, it seems to be soundly arguable at least, that the reference to “relief line” in a Base Roster for the purposes of cl 3.3.10(e)(ii) of the Agreement, was intended, and should be interpreted as, an exception to the requirements imposed by cl 3.3.6(c). To conclude otherwise, at least even provisionally at this stage, would seem to make little practical sense, and deprive the sub-clause of any meaning. Therefore, based on what is before the Commission, it is open to conclude that the Authority is not acting inconsistently with the Agreement by including spare lincs in a Base Roster. 45 Coming back to the merits of the claim by the Union, the Commission is not able to conclude on the evidence that the Authority has in some way, acted capriciously or unreasonably, by maintaining the use of three spare lincs in the Armadale Line Base Roster. There is ample evidence to support their use in my view. Whilst I accept that necessarily, the existence of spare lincs does decrease the ability of employees to plan ahead in their personal lives, this has always, to some extent at least, been the case. As already noted, spare lincs are not new. They have existed on the Base Roster since the inception of the PTA position in 2006, whether there has been two or three spare lincs in the past. There was no evidence before the Commission to support the proposition that spare lincs have been used as an instrument of favouritism by the Authority, or to punish staff. 46 In terms of access to penalty payments, there was some tension in the evidence in relation to this issue between higher earnings via penalties rates on the one hand and the assertion by employees for increased time off for family purposes, on the other. I note it is an obligation on the Authority under the Agreement, to allocate overtime and access to penalty rates, on an equitable basis. This implies that all other things being equal, any one employee should not work excessive amounts of overtime, compared to others. 47 It must be accepted in my view, that the Authority is required to have staff coverage for its rail network, for both planned and unplanned absences. Whilst the Union correctly referred to the weeks of staff coverage for planned annual leave and training leave, this does not account for long service leave (demands for which will only expand over time) and unplanned absences such as sick leave, workers’ compensation and other unanticipated absences. 48 In terms of the optimal use of its resources, the employer is in the best position to make judgements as to where and how it deploys its staff, consistent with its requirement to provide an efficient public transport service to customers, whilst having proper regard to employee welfare. The Commission cannot be satisfied on the balance of probabilities, from what is before it on this issue that the Authority has acted unfairly, regarding its right to manage the working hours of all PTAs on the Armadale Line, in connection with the use of spare lincs on the Base Roster. The manner of the deployment of labour, consistent with the terms of the Agreement, is ultimately a matter for the employer. 266 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 49 However, having concluded that the Commission should not intervene in the terms sought by the Union to order the reduction in spare lincs from three to two, a further issue arises. That issue relates to the incorporation of what were referred to as “default” start and finish times in the spare lincs in the Base Roster. On the evidence, this issue was raised some time ago and debated between the affected employees and the management. Arising out of that debate, and referred to in an email from Mr Luff of 6 August 2013 (exhibit R1 p 69), reference is made to an attempt to improve rostering consistency for PTAs when working on relief lincs. Under the heading “Relief Links” in Mr Luff’s email, is a series of five steps, as to how staff working on relief lincs would be deployed, depending on absences at any given time. When this issue was put to him in cross- examination, Mr Luff accepted that having the content of those steps set out in the Base Roster, did not cause the Authority any prejudice. It would not involve any increase in costs. In my view, the material included in Mr Luff’s email should be incorporated into the Base Roster for the Armadale Line. Whilst, of course, any reference to days, hours of work and rostered day off patterns would be subject to change in the Operational Roster, it may provide some further guidance to employees in relation to their future working arrangements. Armadale 2 shift 50 As a consequence of agreement reached in the course of the proceedings, it is no longer necessary to consider this issue. Balanced working weeks 51 As with the above, this issue has now been agreed in principle and no further consideration is necessary in these reasons. Contracting out of Authority work 52 This issue arises because the Authority presently engages a contractor, MSS Security, to attend the Victoria Park Station between 2.45pm and 4.45pm on weekdays. Two MSS personnel work between 2.45pm and 3.30pm and another two MSS personnel work between 3.30pm and 4.45pm. The Union submitted that this is work that can, and should be done by PTAs, at a lesser cost to the Authority than the present arrangements. Given this work could be done by PTAs the Union contended that the current arrangement is unfair. 53 The background to this issue was outlined in the evidence of Mr Luff. The history of customer service at the Victoria Park Station arises because the Association for the Blind of WA is across the road from the Station. On normal indicators, the Station would not warrant a staff presence, based on patronage. However, given the existence of special needs customers, a presence at the Station was necessary. Based on the customer service model used by the Authority, Mr Luff testified that customer service is generally provided to 3pm, from which time security staff take over coverage. This work is done by Transit Officers. 54 Given the shortage of Transit Officers, some of this work has been given to a contractor, MSS. The Authority does have a mobile security patrol (Delta patrol) based at the Victoria Park Station. However, they have previously been required to leave the Station to attend to other duties, including unlocking “park and ride” facilities in other locations on the Armadale Line. According to Mr Luff, when the MSS staff are not at the Victoria Park Station, they are riding on trains, providing a security presence and performing a revenue protection role. Mr Luff understood the position to be that if the MSS staff were not allocated station duties at the Victoria Park Station, they would spend the same time riding on trains. Thus, no savings would actually be generated if they ceased to perform the station work. On the other hand, Mr Luff said that if the PTA’s rostered hours were extended to cover the work done by MSS presently, this would have an impact. Approximately 10 additional hours of work would need to be found from the roster, which would mean a reduction in hours elsewhere. 55 The evidence of Mr Luff on this issue was supplemented by a witness statement of Mr Kitis, the Authority’s Transit Manager Security Services. Mr Kitis said that the reasons security personnel are based at stations are to provide safety and security to passengers; to minimise fare evasion; and to provide assistance and information to customers. To achieve these purposes, the Authority engages its own Transit Officers, and also, Revenue Protection Officers, presently under contract with MSS. 56 Mr Kitis referred to the model also mentioned by Mr Luff, in terms of the interface between customer service and security services on the Authority’s network. Up until 3pm daily, fare evasion deterrence and customer assistance is provided by customer service employees. After 3pm, these functions are undertaken by security services. Revenue Protection Officers cease train riding, and staff stations, from 3pm to about 6pm.. From 6pm onwards, they resume train riding duties. 57 At the Victoria Park Station, this model is employed, as with other stations on the Authority’s network. Mr Kitis referred to the mobile Delta squad, of Transit Officers, who, while based at the Victoria Park Station, are required to leave the Station to unlock “lock and ride” car parks on the Armadale Line, prior to the afternoon peak period. Because of the identified need to have a presence at the Victoria Park Station in their absence, the MSS personnel go to this location between 2.45pm and 5.30pm. They would otherwise be on trains. Mr Kitis said that how MSS staff this work, was a matter for them. He also referred to a review of this coverage at Victoria Park Station, with the discontinuance of “lock and ride” car parks from 1 July 2013. 58 For the Union, Mr Barry Watts said that he did not see a need for a Transit Officer or security presence at the Victoria Park Station, as it is a ”special needs station”. Along with Mr Britza, the view seemed to be that as MSS provide the same special needs services to customers, this could equally be provided by PTAs. Ms Flavel also expressed similar views. The PTAs could do the MSS work, at a lower hourly rate of pay. 59 As to this issue, the Commission is not persuaded by the Union that the MSS work should be discontinued and the PTAs have their shifts extended to cover the work in question. The principal reason the Authority uses MSS for this work is as a part of the security services, as Revenue Protection Officers. On the evidence of both Mr Luff and Mr Kitis, this work is performed because the existing Transit Officers were required to leave the Victoria Park Station to attend to other duties. If they were not required to do so previously, presumably no need would arise for the MSS involvement. It is not a case of the MSS employees replacing PTAs previously performing this work, or otherwise taking work away from them. 60 The work involved is essentially a support to the security services at the Victoria Park Station. The rest of the time the MSS personnel work on trains to provide a physical presence and revenue protection services. How the security services of the Authority request the deployment of MSS to provide coverage for Victoria Park Station, is a matter for the employer. I am not 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 267 satisfied that there has been any unfairness or injustice demonstrated, in the exercise of the Authority’s managerial discretion on this issue. Access to RAPS 61 The Authority operates a system called RAPS. It enables rosters to be constructed on the system, matching payroll data to be generated. It also enables rosters and payments made to employees to be viewed by computer access. The system enables current and historical roster and payroll data to be accessed. Also limited future data is available. Previously, PTAs could access this information. This was subsequently changed to remove access. In particular, the Union contended that the reversal of access to RAPS causes problems for Union delegates and roster representatives, who are asked by PTAs to assist with roster and payroll queries. It was submitted that the Authority’s removal of access has frustrated the role of the Union, in particular having regard to the obligations imposed by cl 9.1.4(g) of the Agreement. This enables a Union representative to have access to an employee’s work location, name and rostered hours of work. 62 On the other hand, the Authority contended that following a recommendation of the Commission in June 2012, it has given RAPS access to all customer service employees to view their current rosters. The Authority submitted it also provides a PDF copy of current rosters to employees. Accordingly, the Authority contended that it complies with its obligations under the Agreement. It also noted that in terms of historical information, at the close of a roster cycle, the RAPS system is locked so no other changes subsequently made, will appear on the system. It was contended by the Authority, that the previous access arrangements were changed, because of problems arising with PTAs accessing the system, and raising unnecessary issues, without a proper understanding of how the system worked. 63 As the current rostering representative, Mr Singh testified that the Authority had previously given access to RAPS for both current and historical rosters. This was taken away and only partially restored following the Commission’s recommendation. Mr Singh was not aware of the reason for its removal in the first place. He testified that he has had employees raise problems with him in relation to their rosters. Ms Flavel said that PTAs used to be able to access RAPS fully. In her view, currently, PTAs have less access on the RAPS system than given to Transit Officers and CSAs. Also, Ms Flavel said that employees are not able to look forward, to view rosters coming up, for the purposes of booking medical appointments and the like. 64 Mr Barry Watts also said that as a Union representative, the lack of full access to the RAPS caused him difficulties. He has had to deal with queries from members on pay issues. Because he could not check prior rosters on the system, he was not able to resolve problems. 65 For the Authority, evidence on this issue was given by Mr Luff. He testified that different levels of access to RAPS are provided for differing groups of employees. For example, Railcar Drivers have no access to the system. Transit Officers do have access at a higher level than PTAs. In the past, according to Mr Luff, PTAs had open access to RAPS but this caused problems. Staff were looking at historical information and raising issues not directly related to their particular circumstances. As a result, there was a meeting between management and the Union representatives, and it was agreed to stop RAPS access and issue PDF copies of rosters to all PTAs instead. Subsequently, the issue has been raised again. A request was made by the Union representatives to review the issue, and be given access to the RAPS as previously. 66 Prior to the present dispute, employees had access to the RAPS without restriction. Transit Officers have fuller access. In June 2012, the Commission recommended that access to the RAPS be restored, but be limited to Union delegates and rostering representatives. In my view, simply because there may have been some problems in the past with access to the system, is no good reason to prevent the restoration of access to RAPS now. In particular, the Commission considers that Union delegates have played a role in the past in relation to resolving issues with employees regarding rostering and payroll. The Joint Commitment to the Role of Management and of Union Delegates and to the Resolution of Disputes (see attachment B to the Authority’s written submissions), recognises the role of the Union and delegates in representing members’ interests in the workplace. 67 By cl 9.1.4 of the Agreement, the principles in the Joint Commitment are given effect, as minimum obligations. By cl 9.1.4(g), Union representatives are able to have access to “rostered hours of work of employees”. In accordance with the principles of interpretation of industrial instruments set out above, in my opinion this should not be read down to only include current rostered hours. To do so, would be inconsistent with the recognised role of the Union, as set out in cl 9.1 of the Agreement. Common issues arising in the workplace are queries and disputes as to pay for example. Hours of work and rosters are essential components in the resolution of such issues. It is difficult to see how a Union representative would be able to discharge their functions effectively to assist a member resolve a pay query for example, if they are not able to view available and relevant historical information. 68 Therefore consistent with the Commission’s recommendation made in June 2012, Union representatives and rostering representatives should have full access to RAPS. If problems arise of a similar nature to issues that may have arisen in the past, a general liberty to apply will be provided so that they can be brought back before the Commission, by either party, if necessary. Conclusions 69 For the foregoing reasons, the Commission will make orders that the Base Roster for the Armadale Line PTAs incorporate the information referred to in exhibit R1 at page 69. How that is best done, should be left to the parties. Additionally, Union delegates and rostering representatives should have unrestricted access to RAPS. In all other respects, the application is dismissed. 268 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 2014 WAIRC 00102 DISPUTE RE ROSTERING PRACTICES