2011 WAIRC 00157
ENTERPRISE ORDER PURSUANT TO SECTION 42I
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch
APPLICANT
-v-
PUBLIC TRANSPORT AUTHORITY
RESPONDENT
CORAM Commissioner S J Kenner
HEARD FRIDAY, 8 OCTOBER 2010, WEDNESDAY, 17 NOVEMBER 2010, Wednesday, 1 December 2010, Thursday, 2December 2010, Monday, 6 December 2010, Wednesday, 15 December 2010, WRITTEN SUBMISSIONS, Tuesday, 30 november 2010, friday, 10december 2010, monday, 13 december 2010, tuesday, 14 december 2010, friday, 17 december 2010, thursday, 23 december 2010, friday 24december 2010, SUpPLEMENTARY MATERIALS AND SUBMISSIONS MONDAY, 21 FEBRUARY 2011, TUESDAY, 22 FEBRUARY 2011, WEDNESDAY, 23 FEBRUARY 2011
DELIVERED Friday, 25 FEBRUARY 2011
FILE NO. APPL 149 OF 2010
CITATION NO. 2011 WAIRC 00157
CatchWords Industrial law (WA) – Application for enterprise order – Scope of intervention allowed under the Act - Enterprise order to contain “industrial matters” – Requirement that the enterprise order be “fair and reasonable” – Principles of comparative wage justice – Collateral attack on award variation – Application of Government Wages Policy – Industrial Relations Act 1979 s 6(a), (ac), (ae), (af), (ag), (b), (c), (ca) and (e), s 26, s 27(1)(k), s 29A, s30(1), s34(4), s37(4), s 39(3), s 40(4), s 40B(4), s 42G, s 42I, s 42(j), s42K, s44(4) and (13)
Result Enterprise order issued
2011 WAIRC 00157
Applicant Mr G Ferguson and Mr P Woodcock
Respondent Mr R Farrell and Ms L Ward
Interveners Mr P Momber of counsel on behalf of the Railcar Driver Group
Mr R Andretich of counsel on behalf of the Minister for Commerce
Reasons for Decision
The Application 3
Procedural Matters 3
Background 4
Contentions of the Parties 5
Applicant’s Submissions and Evidence 6
Railcar Driver Group Submissions and Evidence 21
Respondent’s Submissions and Evidence 27
Minister’s Submissions and Evidence 41
Consideration 44
Statutory Scheme 44
Approach to Section 42I Applications 46
Role of Interveners and Section 42I(1)(c) Act 49
General Principles 50
Intervention in Industrial Matters 52
Fair and Reasonable 56
Status of Private Arbitration 62
Form of Order 63
Term 63
Government Wages Policy 64
The State Economy 64
Terms of Enterprise Order 66
Wages 66
Driver Coordinators 72
Driver Trainers 73
Shed Driver 73
Driver Trainees 74
The SERA 74
Shift Work 75
Hours of Work 76
Leave Provisions 77
Discipline 79
Other Provisions 79
Corrections 79
Operative Date 79
Conclusion 80
The Application
1 The present matter before the Commission is one brought pursuant to s42I of the Industrial Relations Act 1979 (“the Act”) by which the applicant seeks an enterprise order. The terms of the enterprise order sought by the applicant are set out in the proposed Public Transport Authority Railcar Drivers (Transperth) Train Operations) Enterprise Order 2010 (“the applicant’s EO”). By notice of answer and counter-proposal, the respondent has objected to much of the content of the applicant’s EO and has counter proposed an enterprise order sought by it to be known as the Public Transport Authority (Transperth Train Operations Railcar Drivers) Enterprise Order 2010 (“the respondent’s EO”).
2 Apart from the proposed terms of the enterprise orders sought by both the applicant and the respondent, the main distinguishing feature between the applicant’s EO and the respondent’s EO, is that the applicant proposes that the enterprise order operate in conjunction with the terms of the existing award covering railcar drivers, that being the Public Transport Authority Railcar Drivers (Transperth Train Operations) Award 2006 (“the Award”). The respondent’s EO seeks in effect to incorporate the provisions of the Award into its proposed enterprise order, subject to some variations as set out in its counter proposal.
3 Additionally, some 253 Railcar drivers employed by the respondent sought, and were granted, leave to intervene in the proceedings pursuant to s27(1)(k) of the Act. This group, which I will describe as the Railcar Driver Group, is separately represented by MrMomber of counsel. The Railcar Driver Group has filed what is described as a “Log of Claims – The Railcar Group” which seeks wages and conditions in addition to the terms of the Award.
4 Leave to intervene pursuant to s30(1) of the Act was also granted to the Minister in relation to the operation and effect of the State Government’s Wages Policy (“Government Wages Policy”) in the present proceedings. The Minister was represented by MrAndretich of counsel.
5 The applicant appeared through MrFerguson and the respondent through MrFarrell.
Procedural Matters
6 On 17November 2010 the Commission made directions for the purposes of hearing and determining the application. Those directions required the applicant, the respondent and interveners, to file and serve witness statements and supporting material, and outlines of submissions. The application was listed for hearing on 6 to 15December 2010 inclusive.
7 By direction of 6December 2010, following the conferral of the parties, interveners and the Commission in further conciliation, it was agreed by the parties and interveners that the Commission proceed to hear and determine the application essentially “on the papers”, on the basis of the written submissions and evidence as filed. This was further supplemented by witness statements and written submissions in reply and by a hearing on 15December 2010, at which the parties and the interveners had the opportunity to make further oral submissions in support of their respective contentions. A large body of material has been filed by the parties and the interveners in support of their respective contentions.
8 Supplementary submissions and reply witness statements were filed on 17, 23 and 24 December 2010. Additionally, further materials requested by the Commission concerning recent historical comparisons of wage rates between the various State urban rail networks were provided on 21, 22 and 23 February 2011.
9 No party or intervener sought to cross-examine any of those persons who had prepared witness statements on behalf of the parties and interveners and those statements stand as the evidence in this matter.
10 The Commission records its gratitude to the parties and interveners for the detailed and helpful submissions and evidence that have been filed, supplemented by the matters dealt with at the hearing on 15 December 2010.
11 Additionally, the Commission has been assisted by conducting workplace inspections on 2December 2010, during the course of which the Commission inspected the Claisebrook Depot and its various facilities and undertook train journeys on several of the respondent’s train lines. This included opportunities to speak with and observe railcar drivers at work driving trains on the metropolitan rail passenger transport network. These inspections have been of considerable assistance to the Commission in gaining a better appreciation of the submissions and evidence adduced in the proceedings.
Background
12 The circumstances giving rise to the present proceedings have a considerable, and at times quite turbulent, history. For the purposes of placing the present application in context, I propose to briefly advert to some of the more recent history of the industrial relations between the parties and the Railcar Driver Group. That recent history, and the industrial relations between the applicant, the respondent and the Railcar Driver Group, is somewhat unusual, and indeed, may be unprecedented in recent industrial relations history in this State, if not nationally.
13 In terms of industrial instrument coverage, at the time of the making of the Award, an industrial agreement under the Act was made, entitled the Public Transport Authority Railcar Drivers (Transperth Train Operations) Enterprise Agreement 2006 (“the 2006 Agreement”).
14 The 2006 Agreement expired on 31December 2007, and thereafter effective 1January 2008, the applicant retired from the 2006 Agreement with the consequence that the wages and conditions of employment of the Railcar Driver Group were regulated by the Award. This situation continued, despite an offer made by the respondent to the applicant in May 2009 for entry into a new industrial agreement.
15 The circumstances giving rise to the present proceedings occurred in about July2010, when the applicant initiated bargaining with the respondent for a new industrial agreement to cover drivers covered by the Award. Despite bargaining taking place between the parties, no agreement was reached and ultimately, the Commission determined by declaration pursuant to s42H of the Act, that bargaining had ended. Upon that declaration having been made, the present proceedings for an enterprise order pursuant to s42I were commenced.
16 The period of the bargaining negotiations between the parties was accompanied by significant industrial action by the railcar drivers covered by the Award, which has been recorded in detail by the Commission in earlier proceedings. Suffice to say that the Railcar Driver Group have been a disaffected group of employees for some time, which is in part linked to union rules issues associated with the State and federal unions to which the railcar drivers are eligible to belong.
17 As a part of determining the industrial dispute between the parties and the Railcar Driver Group, on 24September 2010 the Commission issued interim orders, part of which provided for an interim 5% wage increase for the drivers covered by the Award, which wage increase is able to be offset from any wage increase determined as a result of these proceedings.
18 There has been no further industrial action of any kind since the Commission’s interim order was made.
Contentions of the Parties
19 As noted above, the parties and interveners have filed detailed written submissions in support of the cases put by them, as supplemented by oral submissions at the hearing before the Commission on 15December 2010. What follows, is necessarily only a summary of those submissions. I will deal with aspects of the submissions of the parties in detail, when considering aspects of the claims and counter claims advanced as a part of the present proceedings.
Applicant’s Submissions and Evidence
20 MrFerguson, on behalf of the applicant, noted the history of frustration amongst members of the Railcar Driver Group, which has spanned many years, in relation to wages and conditions of employment. In canvassing the history of industrial instrument coverage since about 2004, reference was made to an enterprise order made by the Commission in July 2004. It was contended by the applicant that a major issue in dispute at the time of the making of the enterprise order was provision for “trips and distance”, which was a condition of employment originally arising from the Locomotive Enginemen’s Award 1973.
21 Later, in 2006, the applicant negotiated with the respondent the terms of the Award. MrFerguson emphasised that at this time, as a part of the making of the Award, the applicant agreed to a “buyout” of the trips and distance provisions, in return for which the Award contained a 5.5% wage increase which was, in turn, reflected in the 2006 Agreement. The applicant referred to the Award and the 2006 Agreement as arising from the “ashes of the enterprise order”, which in MrFerguson’s submission, was seen by the applicant and the Railcar Driver Group as an unsatisfactory outcome given the issues raised at the time of the making of that enterprise order.
22 After the drivers retired from the 2006 Agreement and returned to regulation solely by the Award, a private arbitration took place to correct various provisions of the Award. The applicant submitted that the result of the private arbitration in May 2008 has never been accepted by the workforce as a fair outcome. The Railcar Driver Group have maintained since that time, that the suburban electric railcar allowance (“the SERA”), negotiated as a part of the Award and 2006 Agreement process, was unfairly reduced from a daily paid rate to a weekly amount, resulting in a reduction from some $177 per week to $35.40 per week, which is the present rate for the SERA.
23 In his submissions, MrFerguson referred to the applicant’s rejection on behalf of the drivers covered by the Award, of enterprise bargaining negotiations, in 2009, which entailed an offer of a 15% wage increase over the course of three years. The respondent’s offer was rejected by the workforce by reason of aspects of the proposed agreement considered unacceptable to them, in particular provisions concerning compulsory overtime, shift times and lengths and residual disharmony following the events outlined above.
24 MrFerguson emphasised in his submissions that the present proceedings for an enterprise order seek a resolution of the issues in dispute between the parties, issues which have fermented a history of disputation over many years, and which the applicant is keen to overcome in order to provide industrial stability and harmony for the period ahead.
25 A key theme advanced in the applicant’s submissions is the view amongst the driver workforce that there exists a significant disparity between rates of pay for drivers operating on the respondent’s urban rail passenger transport network, when compared to their counterparts in other States. It is contended that the drivers employed by the respondent are significantly lower paid than their counterparts operating in the same industry, and performing largely the same work.
26 This key theme was unashamedly advanced as a basis for a claim for comparative wage justice between the employees the subject of these proceedings in this jurisdiction, and those performing like work in other jurisdictions. In support of its claims, the applicant advanced a table of prevailing rates of pay for railcar drivers across the various States, as follows:
New South WalesPresent rate as from April 09
$1,096.45
see exhibit U2 / under negotiation - claim expectations
4% (2010) / 3.5% (2011) / 3.5% (2012)
$1140.31 / $1180.22 / $1221.53
Victoria
see exhibit U3 / negotiation concluded
July 2010 $1382.06
July 2011 $1452.02
Jan 2012 $1481.06
Queensland (City Train)
see exhibit U4 / negotiation concluded
Oct 2010 $1190.29
Oct 2011 $1237.89
South Australia
Present rate Jan 2010
$1101.69
see exhibit U5 / under negotiation
27 In addition to wage rates on a comparative basis, the applicant has identified key issues of importance to it in these proceedings including shift rosters and shift lengths; amendments to rosters once posted; shift work allowances and allowances for roster changes and operating Railcars; overtime rates; and discipline.