C2007/3012, Transcript of Proceedings [2007] AIRCTrans 644 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17704-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2007/3012

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Australian Rail, Tram and Bus Industry Union
and
Rail Corporation New South Wales
(C2007/3012)

SYDNEY

10.01AM, WEDNESDAY, 31 OCTOBER 2007

Continued from 18/10/2007

Reserved for Decision

PN78

THE SENIOR DEPUTY PRESIDENT: Just for the record are there any changes in appearances?

PN79

MR PANIGIRIS: Not on our side your Honour.

PN80

MR SCHMIDT: I’m not quite sure whether Mr Sheehan was with me on the last occasion, in that case can I just enter that with me is MR N SHEEHAN manager payroll services.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Panigiris.

PN82

MR PANIGIRIS: Yes thank you, your Honour in accordance with your directions we submitted our submissions to you and in line with those submissions we would like that document marked if you could.

EXHIBIT #RTBU 1 RTBU SUBMISSION

PN83

MR PANIGIRIS: Thank you, your Honour basically the RTBU’s position is clearly outlined in our submissions. We are not and we won’t be seeking to call any witnesses in relation to the submission however in order to put our position quite clearly and reinforce our position to you, we say simply this that clause 24 of the enterprise agreement in our view is fairly plain and fairly clear. If read in accordance with its construction we would say that the transfer of work from the payroll services area in Sydney in Pitt Street, to the payroll area in Newcastle in our view, is a restructure and it will result in the variation to a number of components which are outlined in clause 24.

PN84

In particular we say 24.1(i) we say that even though the established position in the view of RailCorp will still remain in Sydney. The work associated with that position will be transferred to Newcastle. We say there is a serious danger in that and if you look at Mr Schmidt’s letter to the RTBU in attachment (3) they clearly say that subject to Mr Williams’ situation following the expiration of his long service, they will then make a determination, whether that position is required and whether it will – sorry, the position is required and whether the work will return back to Sydney. We say that that in itself is pre-empting the outcome of a review or restructure which will then determine whether that work will come back to Sydney. There is no guarantee that that work will come back to Sydney if
Mr Williams - - -

PN85

THE SENIOR DEPUTY PRESIDENT: But isn’t it the position that of the employer that if they do want to abolish the position or transfer the work, then that would be something that would be dealt with under clause 24?

PN86

MR PANIGIRIS: Well their position your Honour is that if they seek to abolish the position it will be dealt with by clause 24.

PN87

THE SENIOR DEPUTY PRESIDENT: Right.

PN88

MR PANIGIRIS: They’re saying they have the right as an employer to transfer the work to Newcastle on the basis that the individual concerned has taken extended leave, in this case being long service leave. However in order to overcome in their view the application of clause 24, they intend to leave the position in Sydney but transfer the work to Newcastle. Now if you go to Mr Schmidt’s letter to the RTBU at attachment (4) of our application, in the last page at 3, Mr Schmidt says to the RTBU:

PN89

D Williams RailCorp confirms it’s early advice that should Mr Williams submit his resignation then RailCorp will either consult the union if the position is not to be filled or for that matter abolish in accordance with the provisions of clause 24 of the EBA or advertise the vacancy subject to prior review or a displaced list.

PN90

Now we say that by transferring the work to Newcastle, that gives the employer the opportunity to test the water in Newcastle, and then if it decides to not return the work back to Sydney, then that would be the basis of their restructure to abolish the position. We say that’s contrary to the application of clause 24. We say in relation to that particular clause the duties themselves are in fact impacted in Sydney and that should be considered. We say the skills that are required for the position are clearly identified within the structure that we provide and those skills are such skills that are carried out in Sydney.

PN91

We also say that in relation to the elimination of job opportunities it will clearly reduce those opportunities for people in Sydney to act in higher grade. We’ve presented to you the authorities acting in higher grade policy as an attachment where individuals - individuals are given that opportunity through a general expression of interest if there’s a vacancy that goes beyond six months.

PN92

THE SENIOR DEPUTY PRESIDENT: I had another question about that, if that’s okay if I can ask you now. You attach this acting in higher duties policy and it certainly deals with you know, requirement in some cases to act in a vacant position and about how you go about filling positions on an acting basis.

PN93

MR PANIGIRIS: That’s correct.

PN94

THE SENIOR DEPUTY PRESIDENT: But I guess the question that springs to my mind, is there any requirement to – if someone goes on leave even for a fairly long period of time as Mr Williams has, is there a requirement on RailCorp to actually act somebody up. I mean I’m looking in particular and I would be interested in your view on this, if you look at the policy, 7.1 the manager decides whether to fill the position with an acting arrangement based on the operational requirements of the area. Now doesn’t that mean that in accordance with the policy you don’t necessarily fill a position on an acting basis if you don’t think you need to and it’s a managerial decision?

PN95

MR PANIGIRIS: I can respond to this on this basis your Honour the general principle is that they do fill the positions. To distribute work to other employees creates workload issues and of course other issues associated with that so the general principle is that they do fill positions on higher grade and the filling of jobs in a higher grade arrangement obviously gives people the opportunity to develop, which is part of the process.

PN96

THE SENIOR DEPUTY PRESIDENT: Sure, yes.

PN97

MR PANIGIRIS: So the general application and I’m not aware of any circumstances where the organization has put in place the sort of proposal that’s been suggested here today.

PN98

THE SENIOR DEPUTY PRESIDENT: Right, but there were - and I’m sort of jumping ahead but I’d be interested in your views on this as well, I mean they haven’t in their written submissions RailCorp have put forward particular reasons if you like, why in this case they are doing this. I mean they’ve said for example that they are simply not aware of anyone who could basically step into the role in Sydney that it’s quite specialised, it requires skills, knowledge you know, and there isn’t anyone they’re aware of who could step into it and it takes quite a while to learn the job. Whereas the people in Newcastle know the job and can do it. That’s I think roughly a paraphrase of what they put, do you say that’s not true?

PN99

MR PANIGIRIS: That is not true, that is not true I mean firstly your Honour we would say a number of things. There are a number of people both in the former RIC and in the former - - -

PN100

MR SCHMIDT: Your Honour I hate to rise at this point of time but if my friend is going to make submissions - - -

PN101

THE SENIOR DEPUTY PRESIDENT: I appreciate – well no, no, I’ve asked him the question he is only replying to my question and I appreciate we haven’t got on evidence on this as such, but I’ve asked the question so I thought I would let him answer it. Sorry Mr Panigiris.

PN102

MR PANIGIRIS: Firstly your Honour, what you say is in our submissions and what we say in our submissions that there are a number of people, former RIC and former SRA who are in the what we call the support role, that we would say are capable of acting up into these positions, that is the first issue we say to you. The second issue we say to you is that there are people say, in the Granville area that would be more than happy to seek a acting higher grade opportunity or a transfer opportunity to act in such a position as Sydney. So that gets back to the fundamental issue in relation to the elimination or reduction of job opportunities.

PN103

We say that in relation to any restructure, and we are not denying the employer his capacity to restructure. What the employee is trying to do is to circumvent that, he is saying to the Commission that we wish to transfer this work to Newcastle and they raise a number of issues why they should do it. They raise issues about resourcing and lack of jobs and what have you and we say that’s all been brought about by their own mismanagement. But in putting that aside, they’re seeking to circumvent clause 24. If they want to restructure, if their intent is to transfer work from location A to location B, they can do that through the proper process and clause 24 is that process.

PN104

If they’re allowed to get away with this particular circumstance, it sets a very dangerous precedent in relation to people taking such leave, whether it’s maternity leave, whether it’s long service leave, whether it’s extended leave itself, they will say in line with the determination of this jurisdiction we are now able to transfer work from location A to location B. Now this is a huge organization that has bases down Wollongong, out west and up north. From our perspective if they seek to transfer work, all we say is you go through the proper process, you need to meet that criteria subject to that, we go through again the consultative process, then if we have an issue it can be brought through the dispute process down here.

PN105

But in this case we say they circumvented, or they are attempting to circumvent clause 24 and that’s why we say that if you look at the literal reading of clause 24 they need in our view, if it impacts on any one of those points, put a proposal to us, through the restructuring clause of the 2005 EBA.

PN106

THE SENIOR DEPUTY PRESIDENT: When you put this proposition, looking at the words of 24.1, it doesn’t actually say if any of the things that happen in (i) to (vi) happen it is to be done, you know, then the following things will happen in 24.2 et cetera. It actually says where a review or restructure is proposed, and will result in any of the following. In terms of plain English that says you’ve got to have a review and a restructure, and if you’re having a review and a restructure and they involve these things, then the rest of it flows. It doesn’t actually say if any of these things happen.

PN107

MR PANIGIRIS: No, no, we say we are - - -

PN108

THE SENIOR DEPUTY PRESIDENT: It says they are necessary but not sufficient conditions.

PN109

MR PANIGIRIS: We say that where a review or a restructure we say the term review, the transfer of work is in fact a review. They have reviewed and they’ve determined that in relation to this work, for this position will be transferred to Sydney. Now we say that within the plain meaning that is a review, whichever way you construct it, it is a review. Now they may say no it’s just a transfer of work, but in reality it is a review. They’ve reviewed that position, they’ve said, we require that work to go to Newcastle whilst this individual is on long service leave. Now that then relates to the implications in relation to (l) (2) (3) and (4) so our interpretation of that your Honour is simply do you put a defined meaning on the word review.

PN110

We say a transfer of work is a review no more or no less than that. If we don’t win on that point, then obviously we are going to have some difficulty. But to transfer work from one location to another you can only do that through a review. Now whichever way you turn how that review is undertaken is up to the employer. In our view they did conduct a review and on that basis they made a determination. So clearly our argument is based on that principle and we say that if the Commission supports this particular view we say this that it will create a very dangerous precedent in relation to this application right across RailCorp.

PN111

They will use that as I say in relation to a whole variety of issues, be it maternity leave, when people go off on that, long service leave and the like. So we say very clearly that the term restructure, the term review needs to be looked in the context of how those determinations are made by the employer and how such determinations then flow in relation to the (i), (ii), (iii) and (iv) of 24.1 and we will leave our submissions on that basis your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: Okay thank you Mr Panigiris.
Mr Schmidt?

PN113

MR SCHMIDT: Well your Honour I was just settling into listen to my friend’s submissions because he indicated we were going to be here a long time that was prior to the proceedings. I’m indebted to my friend in his summary of the union’s case. Can I say this - - -

PN114

MR PANIGIRIS: Your Honour that was said in jest I’ve got to say over coffee.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes well of course.

PN116

MR SCHMIDT: I think what I’m saying in all truth is I’m indebted we’re not going to spend too much time of this Commission needlessly and he’s been very succinct. Can I say that in the first instance we rely on the material that we’ve submitted and to that end we would ask that that be marked?

EXHIBIT #RAILCORP 1 RAILCORP SUBMISSIONS

PN117

MR SCHMIDT: Having said that and without belabouring the point, can I say in summary that what’s transpired is that we have – that is RailCorp – has written to the union on several occasions in relation to the concerns that they raised and we indicated that Mr Williams is proceeding on extended accrued leave. I think the correspondence deals with Mr Williams leave and the actions of RailCorp from attachment (3) I think is the letter of 20 August onwards. I think what we effectively say there is that at the first point:

PN118

Mr Williams will commence leave on 19 August and the placing of the driver’s guard payroll will be allocated to those payroll officers - - -

PN119

Et cetera and we then also indicate that we are not proposing to cease payroll functions at either Granville or Newcastle, but I suppose what could be suggested there is that well we might then effectively cease operations in the CBD. Well can I just refute that just in case my friend might imply that from the comment. I think we’ve been very consistent in respect to our position and that goes this way. That and I think when we were before you in conciliation we alluded to that and that is in relation to Mr Williams section that everybody’s working full bottle to the point where, in essence we’ve been able to demonstrate and we’ve indicated that in our submission that we have utilised supervisory payroll personnel to meet our payroll since Mr Williams has taken leave.

PN120

That’s probably the first point to make. The second point I suppose is this, that
Mr Williams hasn’t resigned and my friend made some play in relation to the letter from RailCorp which is found at tab 4 of RTBU 1 on the second page and that is we would consult the union’s should we decide to abolish the position, and that in essence is a de facto restructure or words to that effect.

PN121

THE SENIOR DEPUTY PRESIDENT: If the position, if you decided to transfer the position - - -

PN122

MR SCHMIDT: We’d talk to them, we’ve always indicated that.

PN123

THE SENIOR DEPUTY PRESIDENT: Under section 24, you would say that?

PN124

MR SCHMIDT: Most certainly, we’ve always indicated that.

PN125

THE SENIOR DEPUTY PRESIDENT: Okay.

PN126

MR SCHMIDT: We’ve always indicated that. Can I say, we’re very – the EBA provides a number of clear rights to both sides. I suppose in the first instance and I’ll just take you to that, I did refer to it in our submission at RailCorp 1. That is there are consultative arrangements and I don’t think my friend is saying we haven’t consulted. If you go to clause 7.2 of the enterprise agreement that’s 2005, we without it being absolute, in other words, the provision does not limit the range of consultation or the subject matter, it provides for consultation in relation to changes of the composition, the operation or size of the workforce or in the skills required. We’ve said none of that’s happening. As a matter of fact the workforce confirmed is for memory 86, and we’ve confirmed that in writing to the union.
I have referred to that in RailCorp 1. There are no elimination of job opportunities.

PN127

THE SENIOR DEPUTY PRESIDENT: Well the argument is really isn’t it that there would normally, be according to Mr Panigiris, there would normally be a higher duties opportunity.

PN128

MR SCHMIDT: I will come to that. We don’t reduce job opportunities, as a matter of fact we’ve just advertised for eight vacancies in payroll services and I think that’s about two weeks since that happened if not going a bit further. There is no alteration to the hours of work, I think we’ve confirmed in writing that the hours of work of the appointed staff that is of the 86, are what they are. I might interpose there that in relation to the eight vacancies that are being advertised, that matter now, the hours matter has been listed and I referred to that in our submission before her Honour the SDP for 30 December, so we should be able to clarify that particular problem. There is no issue about training or retraining of staff. Having said that what the EBA does, it goes on and provides for a process in dealing with disputes that might arise in consultation.

PN129

THE SENIOR DEPUTY PRESIDENT: Wouldn’t you agree or would you agree that in a sense the Newcastle employees who you are proposing to do the work of Mr Williams while he is on leave, that there is actually a transfer, would you say that there was a transfer of those employees to other work in the sense that they will be taking on work that they weren’t doing before?

PN130

MR SCHMIDT: No the issue at Newcastle and as I understand it is that there is sufficient capacity in Newcastle’s allocation for payroll processing to be able to pick up Mr Williams work without creating any real pressure. What it does do is that it removes the pressure that’s evident in the CBD with the working of what I might call excessive overtime to the point where when one does a reconciliation of the normal payroll hours for the establishment prior to Mr Williams going on leave to post, that there’s a shortfall, and we’re picking that up to some degree by the working of overtime. Yes, my friend I don’t know that I’m going to quibble with his comment that well we had the opportunity to fill positions in the interim.

PN131

Having said that I think I’d only say this that we provided a undertaking to this Commission, not necessarily this Bench, that until the hours matter was resolved, we wouldn’t fill some vacancies and that’s exacerbated the issue. Be that as it may what I’m dealing with at the moment is that my friend’s contention is clause24 is absolute. What we say that ignores the balance of the enterprise agreement should clause 24 be found to have any form of impact in relation to this particular matter. We say no, we say no, because there is no restructure. My friend did allude and I’m indebted in that regard that if we can do it in this regard, what prevents RailCorp from rearranging work when there’s maternity leave or some such other.

PN132

Well I think I’ve referred to our submissions in principle, but I think I need to touch on one matter and that goes to my friend in his submission in chief, which is RTBU 1 he made the comment that there’s an effect on the hours of work. Well there is none, if my friend was to press the point we would then do more than just take your attention to clause 8.10 and in particular the first – the preamble. Well 8.10 full stop and that is I’m not able to identify an existing custom and practice in this area, given that this is an amalgam of both former infrastructure operations and that is Rail Infrastructure Corporations operations and State Rail operations. Where I can’t identify a custom and practice then the work will continue at the instruction of the employer until such time as the matter is resolved.

PN133

What we’ve found so far is the continuing opposition on the part of the employees and the RTBU to the reallocation of work that has arisen as a result of an approved leave of absence of an employee. That’s probably, the only point I’d wish to make there. In relation to our ability as an employer to undertake reallocation of work, or anything else for that matter, but in respect we take you to clause 12.1.1 where I think there’s a clear acknowledgement that we have a right, and it is our right as the employer to propose and implement change. I think we’ve done that.

PN134

THE SENIOR DEPUTY PRESIDENT: That complies with this agreement, I think that’s what we are arguing about is whether it complies with the agreement.

PN135

MR SCHMIDT: I’m not debating that. I just simply say that when you look at the construction of the agreement it certainly puts a particular onus on the employer. I think I simply say in relation to that particular provision that reinforces our stand. Can I say then, in relation to the core principles of the enterprise agreement they are found at clause 15 and what clause 15 does it provides the process whereby and provides some assurety when issues arise from time to time, such as if you go to 15.3 it says:

PN136

Temporary and casual employees won’t be used to displace existing permanent full time or part time employees but to cover unplanned or extended leave or special programmed projects.

PN137

So clearly what the enterprise agreement contemplates is situations whereby one can use temporary or casual employees where there’s leave of some description. It doesn’t qualify what extended leave might be. I think the Achilles heel of my friend’s argument is in essence this. Had Williams taken two months leave would we be confronting this argument? Had he taken six months leave in the alternative would we be confronting this argument? Had he taken a week’s leave would we be confronting this argument? We say the agreement is silent and thereby it says to us as the employer, we manage our affairs accordingly.

PN138

Certainly the agreement provides some relevant constraints which I’ll come to. It says at 16.2:

PN139

All employees, whether temporary or casual or permanent shall possess the appropriate skills, competency and certificates for the position for which they are being employed.

PN140

What we say is this and I think we’ve said that in our submission in chief. That is, to the best of our knowledge and we don’t make that comment lightly we do not have anybody in the system that we can put into Mr Williams position.

PN141

THE SENIOR DEPUTY PRESIDENT: How do you know that? What have you done to check?

PN142

MR SCHMIDT: On the advice I think when we were before you in conciliation we’ve indicated that staff need to undertake a payroll processing course – is that right? I’m not quite sure of the title but there’s a training regime that’s supplied. One of the essential requirements for the position I think we’ve – just excuse me for a moment – if you look at attachment 9 in RailCorp 1 on the second page under the heading qualification skills and training, essential requirement is past events timekeeping or equivalent.

PN143

THE SENIOR DEPUTY PRESIDENT: Sorry the?

PN144

MR SCHMIDT: Yes my apologies.

PN145

THE SENIOR DEPUTY PRESIDENT: I get – so where are you reading from?

PN146

MR SCHMIDT: The second page of tab 9 under the heading, qualifications, skill and training, past events - - -

PN147

THE SENIOR DEPUTY PRESIDENT: So where – it’s tab 10 I think, yes, well in my copy it’s 10, you are talking about the position description?

PN148

MR SCHMIDT: Yes.

PN149

THE SENIOR DEPUTY PRESIDENT: Okay that’s 10.

PN150

MR SCHMIDT: That’s on the SRA side and that’s the payroll officer and then we have the client services officer on the infrastructure side, which is the other position description.

PN151

THE SENIOR DEPUTY PRESIDENT: Right.

PN152

MR SCHMIDT: We say that in relation to both those positions, both categories of employee for want of a better term, because we still employ them in that sense as separate classifications, given that we haven’t restructured that place at this stage and I don’t know that we’ve got it on the drawing board, just in case my friend wants to open up on that point, I think we’ve indicated that we have no plans. It is fair to say that the payroll officers are not caught by the classification restructure that is at the present time between the parties in pursuance of the undertaking under clause 9.8 of the EBA if I remember, yes 9.8 of the EBA.

PN153

So at the moment we’ve got the two streams working side by side, principally undertaking work according to past histories and in that sense what we say is based on our understanding of the training that is provided through RailCorp training, which is that course, there are not employees that are employed in other than payroll services and in that classification. So it’s difficult for us to simply say, we’ll just undertake an expression of interest or we’ll simply call for – and we identify some higher grade.

PN154

It’s fair to say even if one were to go down the path of higher grade, and we are certainly mindful of those provisions, that can I just interposing my friend indicated that staff who are attached to Granville, the inference being that they are lower grade than the Sydney positions would be more than happy to be given the opportunity. But it ignores this point, that all it does is remove the problem from one spot to another. We have the capacity to have to utilise more fully a number of employees who undertake payroll processing work at Newcastle. I understand that in relation to our CBD employees and our Granville employees they work in – or they are fully utilised.

PN155

So even though my friend relies on clause 24 as the primary driver of his submission to suggest that we can shuffle the deck chairs and thereby address our obligations if you find that 24 applies, I think is folly we would say. Clause 24 says this, if we propose a restructure from which flows certain things then we are obliged to talk to the union. That’s that, it doesn’t say that we offer acting higher grade opportunities or whatever else. So I suppose the point I was making is that I think we’ve identified that there are no employees who possess the necessary skills, competency certificates to undertake the work that has been left by Mr Williams leave.

PN156

Then if I go further, I won’t talk about part time work it’s not relevant here, but clause 16.6 talks about temporary employment and it talks about things like maternity leave and so on, but it equally doesn’t prevent RailCorp from engaging employees in a casual sense. The point I think we’re making is that we have two types of arrangements that the agreement contemplates outside of fulltime work, subject to the skills and competencies and that is to deal with issues of leave and unexpected absences, including maternity, that irrespective of the timeframe that those people, must have the competency for the position.

PN157

What it also contemplates is that for those sorts of instances, I don’t need to do a restructure. That’s the only inference one can really draw from the provisions of that clause, otherwise why have them. I have a term absence, nothing more. It is irr3elevant we would submit as to the duration of that absence, that absence is predicated on a return to duties by Mr Williams sometime in the middle of next year and nothing more and clearly would fall we contend into what was envisaged by 15 and 156 of the 2005 and it goes on and talks about casual employment and that is to meet unplanned workloads of short notice work et cetera.

PN158

THE SENIOR DEPUTY PRESIDENT: It is true isn’t it Mr Schmidt that normally when someone goes on extended leave, I mean not to use it in the
sense - - -

PN159

MR SCHMIDT: What in payroll?

PN160

THE SENIOR DEPUTY PRESIDENT: Well in payroll or anywhere I guess people would normally act up.

PN161

MR SCHMIDT: No well I don’t know that you can make that assumption. For example, it’s fair to say that in the operational areas, we bend over backwards to ensure that the position is filled. So the first issue is do we need to fill the position?

PN162

THE SENIOR DEPUTY PRESIDENT: Yes.

PN163

MR SCHMIDT: If the position and operational positions by nature suggest that we need to fill them, so you do whatever you can and acting in a higher grade is certainly something that we utilise. We certainly do in instances where we have vacancies that are of a duration, whether they are for maternity leave purposes or special projects we do, subject to the qualifications aside of the position, seek expressions of interest. No argument about that. The point we make in this one, is that there is an additional rider here. The skills for the position are very specialised and that means that the acting higher grade issue is not one that we can readily accommodate I think I’ve already addressed you on that.

PN164

THE SENIOR DEPUTY PRESIDENT: So in terms of Mr Panigiris’ fear about a precedent in terms of every time somebody goes on leave for a year or so you’re just going to shuffle people, shuffle the work around rather than act people up.

PN165

MR SCHMIDT: I could be flippant and say that’s what we’ll do, but no nothing could be further from the true.

PN166

THE SENIOR DEPUTY PRESIDENT: But you’re saying this is a relatively unusual situation, the job is a particularly specialised job which takes quite a long while to learn and you have to have people available to do it.

PN167

MR SCHMIDT: We – if I look at a clerk, a general purpose clerical position that falls vacant, no real argument there, we do that all the time. We fill them through acting higher grade and whatever else. As a matter of fact we place people where there’s a need from positions that – well from other positions, but it depends really on the task. I mean it’s akin to my friend saying look I’ve a vacancy in braking stock maintenance and the person needs to be a qualified brake assembler he needs to certify the work and so on. Very difficult to get an acting higher grade position in there. It is dependent, the higher grade is dependent on whether or not there are individuals available that have the qualification skills, et cetera and that’s the point.

PN168

THE SENIOR DEPUTY PRESIDENT: Just to – I’m still not entirely clear, with these people in Newcastle who you want to do the work, I mean it seems they sort of used to do this work I think is my understanding of what you are saying, or certainly well yes, prior to 1996, this function was carried out in Newcastle by payroll staff including Mr Williams and the current RailCorp staff in Newcastle were also located at Newcastle and carried out the same work as Mr Williams and they are sufficiently skilled, willing and able to undertake the work. You are saying that the people elsewhere in payroll services are actually flat out and having to use supervisors to take some of the work.

PN169

MR SCHMIDT: That’s my advice.

PN170

THE SENIOR DEPUTY PRESIDENT: I suppose I’m intrigued as much as anything else, what are these people in Newcastle – well this is essentially excess capacity in Newcastle, it may not necessarily have any great bearing on the decision, but I’m a bit intrigued as to why there’s this excess capacity and what are they doing? You’re saying they are able to take on the work without any problems.

PN171

MR SCHMIDT: My understanding is this and I can take some more advice on that if need be. With the advent of work with the advent of the ARTC for example, there is a movement of function away from the old Rail Infrastructure Corporation and people in Newcastle were tasked to that particular function, aside from a number of other smaller tasks. So when that work moved and without putting too fine a point on it, there was then the capacity to provide – well there was this capacity.

PN172

THE SENIOR DEPUTY PRESIDENT: Well I mean are they doing other – presumably they are doing other things?

PN173

MR SCHMIDT: Yes I think we addressed you on that in conciliation but it’s fair to say that payroll processing functions are specialised we don’t argue with that. We have a number of and I think it’s three at Newcastle, who have some capacity to undertake this work, or the work that’s presented by Mr Williams’ absence. So that deals with whether or not we’ve complied with I think our obligations in the EBA to that point. Then we come to clause 22, clause 22 talks about the filling of authorised positions. What clause 22 does it provides the trigger for RailCorp to consult when there is an absence. What my friend is basically is saying is this we contend, that Williams, because it’s such a long term absence we should deem the position vacant, the position isn’t vacant.

PN174

Mr Williams owns the position unless RailCorp were to undertake a restructure and then there’s a process that we undertake. So in essence our letter to the union that my friend referred to earlier that is RTBU1 at tab 4 was constructed on the clear understanding that should Mr Williams resign, then we are obliged to undertake certain things as specified by clause 22 of the enterprise agreement. That is we will determine whether the position is to continue as an authorised position. If the position continues, and you can see from the construction of our letter to the union that we are very mindful of clause 22.2 and that is in the first instance, we go to the displaced persons list to see if we’ve got anybody there and if not we advertise.

PN175

Well can I just say in relation to the eight vacancies that we referred to earlier, we did that, that’s why we’re advertising. We had nobody that we know that’s on the displaced list and we’re testing the ground water internally whether or not we have those bodies available or anybody that might be interested to become a payroll officer or a client services officer as the case may be, given that we’ve still got that separation of the two classifications in payroll. Now having said that let me talk or deal with 24 and I think your Honour as already taken my friend to the construction of that clause but let me be very clear. It says this:

PN176

Where a review or a restructure is proposed –

PN177

And my friend might say well I’ve proposed it, so therefore you’re going to have to do this well that would ignore the construction of the clause which says:

PN178

Prior to implementation the employer will consult with the union.

PN179

Now we say this and my friend relies on these issues, the Williams absence creates a change in the number of established positions. Well I don’t know where you can get that from when one looks at the written responses from RailCorp in relation to the payroll services staff establishment for Sydney, Granville and Newcastle. I don’t know where he gets it from, nothing changes. Changes in the duties performed on the skills required. We’ve already indicated in writing, nothing changes in relation to the duty skills of either a client services officer, or a payroll officer. They both still process the payroll according to what they’ve done up until now. Albeit in relation to Newcastle they undertake Mr Williams’ work.

PN180

THE SENIOR DEPUTY PRESIDENT: But it’s not a change in duties?

PN181

MR SCHMIDT: No there’s not. There is no elimination of job opportunities other than what my friend has indicated and he pressed in relation to a higher grade issue. Can I say that I think two things flow from that and that is that we simply say that it is our determination as the employer to determine whether or not we require to act someone in higher grade and if that be the case then certain things flow from that such as payment, depending on the provisions of either the 1992 enterprise agreement in relation to former State Rail employees and in relation to former RIC employees the 2002 RIC enterprise agreement moving forward. I can take you to the clauses need be but I don’t know that I need to at this stage.

PN182

What the clause 24 then says, it says:

PN183

Prior to the implementation of any change the employer will consult with the relevant union provide a rationale, discuss the effects of changes, dealing with adverse impact on employees. They will confer with relevant nominees and so on –

PN184

And then the union has 10 working days and then of course to take the matter to the logical conclusion, that 24.5 then provides that where there’s no agreement the chief executive or the nominee will make a decision and that will be it to put it bluntly. Let me say this, let’s presume that this is a restructure, then we consulted, we would say in the material before you post 20 August, certainly demonstrates that we have consulted in one form or another with the union, either through the auspices of this tribunal or separately since that date and we’ve done that well within the timeframes contemplated by clause 24.

PN185

Let me take it further. My friend says if there is a restructure – well my friend says you need to undertake a restructure. The risk is then also this, Mr Williams who owns the position is on leave, could well have his position abolished as a result of a restructure. I’m not sure that my friend would suggest that that be the case. Equally if I take I think something I put to you earlier and that is at what point in the period of extended leave is the clause triggered, is it the one month, the two months or subsequent? Is my friend seriously putting to this tribunal that a restructure occurs in those instances as well which could give rise then to persons who might go on extended annual leave and I think your Honour would be aware that we are at the present time clearing a significant backlog of annual leave.

PN186

Is my friend honestly saying to this tribunal and to RailCorp that we should restructure those areas where extended leave of that nature occurs? I submit he’s not really saying that. He really isn’t saying that, what I think my friend is really saying is that look we’ve got some conditions attached to SRA former SRA employees and they are in a particular type working arrangement if we move the work to Newcastle, the work while it’s getting performed is being undertaken by people who have a different set of conditions. Well 24 doesn’t provide for such an arrangement.

PN187

What 24 says is that if we change as a result of a review - I will rephrase it – if as a result of a review there is a variation in the number of established positions, elimination of their job opportunities or a change in the hours of work for the employees, then I have to talk to the union. Well we’ve already said in relation to the 86 payroll services staff there is no change in the hours of work. There are no changes in the conditions of employment. We reject the suggestion of my friend.

PN188

My friend is simply trying to stem what I think is a very simple proposition and that is we, as a result of an absence need to reallocate work. We do it all the time but in this case because it’s Mr Williams and it has this connotation because we’ve had some discussions with the union about reallocation of work in the past this is moving work from Sydney to Newcastle, can’t have it. Well it ignores what we are entitled to do under the enterprise agreement we say. I think that is all I need to say your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Schmidt. Mr Panigiris?

PN190

MR PANIGIRIS: firstly your Honour I wish to respond to another issue raised by my friend. He says that we do it all the time, that’s pretty much the last comment he made to this Commission, we would say to you that they don’t do it all the time. That is not the norm, this is something quite unusual. The reason why we are here before you today is because it is quite unusual. My friend took you to clause 14 of our enterprise agreement which is the vesting clause and my friend did not, I believe, take you to the relevant part.

PN191

MR SCHMIDT: I’m sorry I don’t think I did take you to that.

PN192

THE SENIOR DEPUTY PRESIDENT: I don’t think you did refer to clause 14.

PN193

MR PANIGIRIS: He went to the vesting arrangements.

PN194

THE SENIOR DEPUTY PRESIDENT: I don’t think he did – I may have missed it.

PN195

MR SCHMIDT: Certainly in our submission in chief we referred to - - -

PN196

THE SENIOR DEPUTY PRESIDENT: Okay, well it doesn’t – it probably really doesn’t matter.

PN197

MR PANIGIRIS: My apologies. That’s fine. It really isn’t relevant, but the point is that the vesting arrangement fully identifies that people vested into RailCorp are vested in positions that are required and we make the point that positions in Newcastle were required positions. There was no issue then about workload issues. The other fundamental point though I think your Honour is simply this that the employer seems to think there’s a difference between transferring a position versus transferring work.

PN198

The reality is whether you leave the person here in Sydney or not you are transferring the work there in essence, you are transferring the position. When the employer comes back to us, we would submit to you in due course, they will say to us, that we’ve tested the water in Newcastle, we’ve transferred the work be it not the position, we are now going to put a restructure to you on the basis of that test. We say by giving them a licence to do that in effect it is giving them the opportunity to test an opportunity on a trial basis and then come back to us and say well we’ve tested it now - - -

PN199

THE SENIOR DEPUTY PRESIDENT: Well so what, even if that’s true, I mean so what is wrong with that? I don’t want to sort of raise any problems here, but hypothetically if it’s shown that it’s fine for the work to be done in Newcastle, it hasn’t created any problems and they then have to go, then they decide Mr Williams does retire, or whatever and they decide well we actually that the work should stay up in Newcastle and we want to abolish his position in
Sydney, now they have to go through, they’ve already conceded they have to go through clause 24 but they would say what I think what you’re saying, is well we can point to the experience of the last x months and say well it didn’t seem to create any problems, assuming that’s the case, assuming it doesn’t create any problems. I mean that issue – I mean I’m not trying to prejudge what the outcome would be, but the fact that they’ve got that experience, I mean what’s wrong with that?

PN200

MR PANIGIRIS: I will only say, I will answer the question in relation to the so what your Honour. The so what is the employer approved this individual’s long service leave, knowing full well that it had these difficulties in providing their payroll outcomes. They knew they had some six odd vacancies as it was, they then create a further situation for themselves by allowing this individual and you know as well as I do that long service leave is at the discretion of the employer subject to its business needs. They then allow this individual to take approximately 12 months and then they come to this jurisdiction and say we’ve got all these problems.

PN201

We’ve got all these problems in relation to meeting our deadlines in payroll services. Now you’ve got to ask yourself the question why did they do this and we say that the suspicions we have is no more and no less the transfer of this work to Newcastle. If you are good manager and you had all these problems, why would you now say sorry we can’t and will not give you the extended long service leave.

PN202

THE SENIOR DEPUTY PRESIDENT: I think my recollection is that
Mr Sheehan was not there at the time was he, when the leave was approved I think.

PN203

MR PANIGIRIS: The other issue of course is if you look at the job description in RailCorp exhibit 1, I mean clearly when you get to the qualifications and skills of training, I mean it says, essential, pass the advanced time keeping course or equivalent. We say equivalent unless you test the water in accordance with the normal process and I think Mr Schmidt accepted and conceded that the normal process is with these circumstances you act people up in a higher grade. Unless you test the water you clearly won’t know just who is available to undertake such a task.

PN204

We also say regardless of that there’s been no evidence presented to you other than the employer’s view that it’s in dire strait and it’s for that reason the work has to be transferred to Newcastle. There’s been no evidence presented to you that the work still cannot be done by the existing workforce today in Sydney and we would suggest in our submissions where we highlighted a number of opportunities for some 15 odd different employees within the current workforce both in Pitt Street and also at Granville, that opportunity could be shared through that workforce to deliver the payroll services outcome without transferring the work to Newcastle.

PN205

So we don’t see it as a difficulty in relation to work being done, we don’t see it also as being excessive overtime. There are people in our view that can and would undertake Mr Williams’ task. We also say to you that in relation to the point that Mr Schmidt raises about the two arrangements that employees work under the current payroll services people under the functional agreement of 2002 that is fairly distinct. Those conditions relate to the payroll services 2002 employees and of course you’ve got the other group – sorry not 2002, the 92 functional agreement. Then you’ve got the other group that are covered by the RIC 2002 enterprise agreement.

PN206

The particular position in question is a functional position identified in the structure as a guards and drivers arrangement. We say and we don’t accept what the employers say in that the employees at Newcastle will automatically take that function on because they have some payroll skills. We say that those employees up there will also need training. Now whether it’s one, two or three weeks, I don’t know but they will require training. That sort of training could be given to other employees in Sydney in accordance wit the opportunities to develop their job opportunities within Sydney and given the opportunity subject to if and when this employee does decide to return to apply for that job on promotion.

PN207

So we say that in our view what the employer is seeking to do is no more or no less to circumvent the requirements in relation to providing appropriate documentation in a restructure. We say they’ve come to this Commission seeking their – sorry – the Commission’s endorsement on the basis of having the capacity and I know you said before, so what. The danger there is whether it’s this position or any other position, given the licence they will do it and we say that will set a very dangerous precedent in relation to a whole variety of leave requirements within RailCorp which currently do not apply. Thank you, your Honour.

PN208

THE SENIOR DEPUTY PRESIDENT: Mr Schmidt suggested that even if 24 did apply, I mean obviously their position is that it doesn’t but in practice effectively RailCorp have done everything they’d need to do it under 24 anyway?

PN209

MR PANIGIRIS: Well no they haven’t.

PN210

THE SENIOR DEPUTY PRESIDENT: In what way?

PN211

MR PANIGIRIS: They haven’t given us the business case in relation to – if you understand in relation to 24 your Honour, you then have to go to 24(iv) which there talks about the complexities of the documentation they’ve got to provide to the union.

PN212

THE SENIOR DEPUTY PRESIDENT: Sorry where do you mean?

PN213

MR PANIGIRIS: 24(1)(iv).

PN214

THE SENIOR DEPUTY PRESIDENT: Right.

PN215

MR PANIGIRIS: As part of this process as group general manager and or his nominee will confer with relevant unions and nominated employer representatives and in doing so provide the unions and employers with copies of the proposed organizational structure highlighting positions created, positions deleted where there’s change, no change, duty responsibilities and is intended. So that is a far more complex process than just saying to the union through the consultative process this is what we’re going to do. This is where I believe the employer is somewhat reluctant to do that because they know that there’ll be some fairly strong objections because that will bring into play the two agreements that cover the two groups of employees.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes but I mean, sorry to – it says the group general manager or his or her nominee will confer with relevant unions and nominated employer representatives.

PN217

MR PANIGIRIS: Yes.

PN218

THE SENIOR DEPUTY PRESIDENT: You wouldn’t deny this being consultation I mean?

PN219

MR PANIGIRIS: Yes.

PN220

THE SENIOR DEPUTY PRESIDENT: Sorry you would deny or you wouldn’t deny?

PN221

MR PANIGIRIS: And employees with copies of the proposed structure - - -

PN222

THE SENIOR DEPUTY PRESIDENT: Organizational structure – well it’s a pretty – I mean there is actually no change to the organizational structure, but it’s very clear what it is that’s being proposed.

PN223

MR PANIGIRIS: Well no, it’s not, it’s not your Honour because the position in question is covered by the 1999 functional agreement which is clearly defined within that agreement and also the hours of work associated with it because it’s a 70 hour work arrangement. Whereas if you transfer the job to Newcastle it then becomes a 76 hour arrangement because of the construction of the position.

PN224

THE SENIOR DEPUTY PRESIDENT: But the job isn’t I mean it’s very clear, I think it’s very clear what’s being proposed which in a sense his position is not going to be back filled in Sydney Mr Williams. The position will still be there at least for now, who knows what will happen in the future, but the position is still there but it’s going to remain empty so the work is going to be done by these people in Newcastle. No new positions are going to be created and no changes in duty statements or anything like that.

PN225

MR PANIGIRIS: There’d be changes in duties, there’s got to be changes in duties, they’ll be taking - - -

PN226

THE SENIOR DEPUTY PRESIDENT: Well they will be doing something, they will be doing his work, that they weren’t doing before, I understand that.

PN227

MR PANIGIRIS: That’s right yes.

PN228

THE SENIOR DEPUTY PRESIDENT: But there’s no – what I’m saying it’s pretty clear what’s being proposed I mean they’re not changing their hours of work. I take your point they have different hours from the people in Sydney but their hours aren’t changing. I’m not saying it’s a good thing or a bad thing, I’m just saying that it’s clear, it’s not like you haven’t been told what it is that they want to do or is it?

PN229

MR PANIGIRIS: That’s if you adopt clause 7 as the basis of consultation.

PN230

THE SENIOR DEPUTY PRESIDENT: No, no, but just as a matter of fact, isn’t it true that they’ve been very clear about what it is they want to do, leave aside the merits of it so – I suppose what I’m saying is even if 24 did apply what’s the difference in practise? I mean you’ve sort of answered that but I suppose I’m testing it out a bit because I mean effectively we’ve been over this quite a few times now and there’s quite a bit of correspondence I mean, it’s pretty clear what’s being proposed, you may not like it.

PN231

MR PANIGIRIS: The difference is that clause 24 does clearly define that the position in question will in fact be transferred to Newcastle.

PN232

THE SENIOR DEPUTY PRESIDENT: But that’s not what they are proposing.

PN233

MR PANIGIRIS: Sorry?

PN234

THE SENIOR DEPUTY PRESIDENT: Sorry with all due respect, aren’t you going against yourself there. You’re saying clause 24 does apply, they are not transferring the position, no one is saying at the moment that they are transferring the position. The work is temporarily being transferred something might happen down the track to transfer the position, maybe there’s no proposal to do that, but one could imagine, I mean I understand your point they’ll use this as a sort of argument if Mr Williams retires why don’t they and they may but they haven’t proposed it at this stage. So there’s no transfer of position, there’s transfer of some work that’s clear.

PN235

Because I suppose what I’m getting at is at the bottom line, 24 says there’s got to be all this consultation it does set out a process, but the basis of the process is really that the unions and the employees have an opportunity to respond, which they clearly have, that’s why we’re here, their response is that they don’t like it and obviously you haven’t accepted the employer’s proposal, again that’s why we’re here. Clearly outlines concerns, arguable, I mean you can tell me if I’m wrong, but – and then at the end of the day well there is no new structure in any practical sense, it is only a technical – as such, but at the end of the day I suppose 24.5 says well at the end of the day it’s up to RailCorp what they want to do. They have to consult but at the end of the day it’s the CEO or his nominee’s decision. So I’m sort of saying that even if what you say is true that they should be applying 24, in practise even if they didn’t want to do it, haven’t they ended up doing it following it. They may not have formally conceded this point that it should be done under 24 but they clearly said they don’t’ think it should be but in the end what’s the difference?

PN236

MR PANIGIRIS: The difference is subject to what argument you accept your Honour, if you accept the argument that transferring the work is not transferring the position.

PN237

THE SENIOR DEPUTY PRESIDENT: Well even if it was – let’s say it was transferring the position let’s accept that for the sake of argument.

PN238

MR PANIGIRIS: Well if you say that you suggest our argument - - -

PN239

THE SENIOR DEPUTY PRESIDENT: No, no hypothetically I’m not saying.

PN240

MR PANIGIRIS: No, no hypothetically, if you say that that is the situation then we would say the employer then needs to put the argument to us via proper correspondence and proper structures that that has occurred and that’s the basis of the application of clause 24.

PN241

THE SENIOR DEPUTY PRESIDENT: But my point is even if they do that, the bottom line is that they still get to make the decision.

PN242

MR PANIGIRIS: No not at all because that then raises the very significant argument of the application of the RIC 2002 agreement versus the former State Rail 1999 functional agreement and the application to that specific position because that position is covered by the 1999 functional agreement. That’s where I think the argument there is and that’s where you’ll have further argument from us about that position being covered. That’s why we’re saying if they’re genuine and we understand what they intend doing, let them put together to us a proper restructure.

PN243

Now what they’re trying to do here is bits and pieces off the edges and you probably will have an argument in due course about what’s going to happen in Granville in the next few weeks but the point I’m making is that they know what they want to do. We know what they are going to do, why not be up front and do it and give us a proper proposal. The way they’re doing it now, is just picking bits and pieces and hoping it will fall into place for them down the track. We say let’s be up front with each other and do it properly, no more no less than that your Honour.

PN244

THE SENIOR DEPUTY PRESIDENT: Okay I understand that. Okay well did you want to – is there anything you wanted to say Mr Schmidt?

PN245

MR SCHMIDT: Only one point, a slight correction on the part of my friend. The 1999 payroll officers functional agreement that my friend was talking about the hours of work specified by that agreement the 99 payroll officers is silent on the hours of work, you need to go back to the 92 State Rail consultative agreement. Just without making further - making a point about the work my friend did raise the question of Granville.

PN246

THE SENIOR DEPUTY PRESIDENT: Right.

PN247

MR SCHMIDT: We would say while my friend has when we were before you on the last occasion if I read the transcript indicated that you’re pressing that, we are talking about the Williams transfer of work. If he is now saying that he is foreshadowing Granville as an issue then we say the same issue arises. Clause 24 cannot be applied in relation to allocation of work and we just simply say this, no matter how much my friend talks about this, there is no restructure, there is no restructure.

PN248

THE SENIOR DEPUTY PRESIDENT: Right I got you on that. Well I’ll reserve my decision.

<ADJOURNED ACCORDINGLY [11.08AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RTBU 1 RTBU SUBMISSION PN82
EXHIBIT #RAILCORP 1 RAILCORP SUBMISSIONS PN116