AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170MI notice of initiation of bargaining period
s.170MW suspension or termination of bargaining period
s.170MX referral to a Full Bench
Southlink Pty Ltd
and
Transport Workers' Union of Australia
C2003/6308
Private transport industry | ||
SENIOR DEPUTY PRESIDENT HARRISON DEPUTY PRESIDENT IVES COMMISSIONER MANSFIELD |
SYDNEY, 18 JUNE 2004 | |
Arbitration under s.170MX following termination of bargaining period initiated by Transport Workers Union of Australia in BP 2003/3498
DECISION
[1] This decision concerns the making of an award by arbitration following the termination of a bargaining period. The bargaining period was initiated by the Transport Workers' Union of Australia (TWU) and the negotiating party with which it sought to make an agreement is Southlink Pty Ltd (Southlink).
[2] Before us the TWU was represented by Mr S. Moore and Southlink was represented by Mr G Watson. Both parties submitted that the Commission should find that it was appropriate to exercise arbitration powers to make an award dealing with matters that were at issue between them during the bargaining period. The parties did not agree upon the content of such an award each proposing its own draft. Some background to the arbitration should be referred to.
Background
[3] The bargaining period initiated by the TWU related to its members who are employees of Southlink and engaged as bus drivers. We will later refer in more detail to the activities of Southlink but for present purposes it is sufficient to describe it as a contractor to the South Australian Government providing metropolitan bus services within Adelaide and surrounding areas. Prior to the bargaining period being initiated, the TWU and Southlink were party to the Southlink Agreement 2000 (the current agreement). This is an enterprise bargaining agreement certified under the Workplace Relations Act 1996 (the Act). It came into operation in April 2000 and has a nominal expiry date of 23 April 2003.
[4] A number of applications were made by Southlink in relation to the bargaining period and industrial action being taken pursuant to it. Each of these matters was heard in Adelaide before Commissioner Dangerfield. Applications were made under s.127 of the Act and three applications were made to suspend or terminate the bargaining period. Initially the Commissioner was not persuaded that the industrial action then occurring was such as to justify the bargaining period being terminated or suspended. He published reasons for decision in July 2003 (PR935563).
[5] In August 2003 a further application to suspend or terminate the bargaining period was lodged by Southlink. That application was made relying on s.170MW(3) of the Act. That subsection is one of several in s.170MW that describe the circumstances which are to exist prior to the Commission exercising its discretion to suspend or terminate a bargaining period. Prior to this application being lodged industrial action had occurred and further action was threatened. Throughout this period the Commissioner had been engaged in numerous conferences with the parties. From time to time he published statements and made directions.
[6] The Commissioner gave a decision in transcript on 28 August 2003 and then subsequently published his reasons on 8 September (PR937514). In his decision he noted that the application had been made by reference to s.170MW(3)(a) of the Act. Insofar as relevant to this matter that section allows an application to be made to suspend or terminate a bargaining period because industrial action that is being taken is threatening to endanger life, personal safety, health or the welfare of the population or part of it. The Commissioner found that the industrial action being taken by members of the TWU to support or advance claims in respect of a proposed enterprise bargaining agreement with Southlink was threatening to endanger the safety and welfare of the population of southern metropolitan Adelaide. He referred to the evidence upon which he had formed the view that it was appropriate to terminate the bargaining period. He noted that a high percentage of Southlink's passengers were concession holders which included sick, disabled, elderly and unemployed persons. A further significant percentage of its passenger profile was made up of students. He said it was unlikely that the majority of Southlink's passengers would have any means of transport or at least no reliable means of transport during the period of a foreshadowed five-day strike. He took account of the number of journeys undertaken by Southlink and the disruption that would be a consequence of industrial action. Additionally he took into account the impact the industrial action was having (and would continue to have) upon employers, businesses, schools and hospitals. He formed the view that the parties had reached an impasse and that it was appropriate a "circuit breaker" was introduced. The Commissioner terminated the bargaining period and, as was required under the Act, again attempted by conciliation to reach a solution to the dispute. Further conferences were held before the Commissioner and recommendations issued by him. The parties were unable to resolve the matters in issue and it was not likely further conciliation would result in settlement.
[7] Section 170MX(4) provides that, in those circumstances, arbitration powers are to be exercised by a Full Bench and so it was that the matter proceeded thereafter before us. Each party submitted that it was appropriate an award be made as an outcome of the arbitration. The outcome sought was reflected in two competing draft awards. Each was based on the terms of the current agreement. In the case of the award sought by the TWU it proposed changes of significance to several of the existing provisions in the current agreement. Southlink's proposal was largely in the same terms as the current agreement with only minor alterations.
[8] The most relevant provisions of the Act relating to this arbitration are those contained in s.170MX and s.170MY. Section 170MX is in the following terms:
"(1) This section applies if a bargaining period is terminated on the ground set out in subsection 170MW(3) or (7).
(2) As soon as practicable, the Commission must begin to exercise the conciliation powers mentioned in section 170MY:
(a) to facilitate the making of an agreement under Division 2 or 3; or
(b) otherwise to settle any matter or issue that could be covered by such an agreement.
This subsection applies even if the Commission has already attempted conciliation during the bargaining period.
(3) If, after exercising conciliation powers as required by subsection (2), the Commission is satisfied that:
(a) the negotiating parties have not settled the matters that were at issue during the bargaining period (whether or not by making an agreement); and
(b) it is not likely that further conciliation will result in the matters being settled within a reasonable time;
the Commission must, if it considers it appropriate, exercise the arbitration powers mentioned in section 170MY to make an award that deals with the matters.
(4) Despite any other provision of this Act, those arbitration powers may only be exercised by a Full Bench.
(5) In exercising those arbitration powers, the Full Bench must have regard to the following:
(a) the matters that were at issue during the bargaining period;
(b) the merits of the case;
(c) the interests of the negotiating parties and the public interest;
(d) how productivity might be improved in the business or part of the business concerned;
(e) the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;
(f) any relevant principles formulated by a Full Bench for the purposes of this subsection.
(6) Subsection (5) does not, by implication, limit the matters to which the Full Bench may have regard."
[9] Section 170MY is in the following terms:
"(1) The Commission has the conciliation and arbitration powers in relation to the matters mentioned in subsections 170MX(2) and (3) that it would have under Part VI in relation to the matters if that Part applied to conciliation and arbitration in relation to the matters instead of in relation to industrial disputes.
(2) To avoid doubt, the Commission's powers under subsection (1) are not limited by section 89A."
Summary of Evidence
[10] We refer now to the evidence. The following witnesses gave evidence for the TWU:
[11] Evidence was given on behalf of Southlink by Mr Ashley Barnes who is the Managing Director of the company. Both Southlink and the TWU also tendered documentary evidence.
[12] Little of the evidence given was contentious. It highlighted differences in the perceived advantages or disadvantages to Southlink on the one hand, and the bus drivers on the other, of the various shift rosters that are worked. A difference of opinion also exists about what alterations to the current rostering system and work practices may be achieved without sacrificing the flexibility Southlink submits is crucial to its operations. In these circumstances we do not propose to refer to the evidence given by each of the witnesses but to summarise all of the evidence highlighting particular matters that we have taken into account.
[13] Southlink, which was established in 1995, is a wholly owned subsidiary of Australian Transit Enterprises Pty Ltd (ATE). That company in turn is a joint venture between Grenda Corporation and the Hornibrook Transit Group. The ATE group operates bus services in South Australia, Western Australia, Victoria and Queensland.
[14] Transport within South Australia is operated through TransAdelaide the government owned provider of metropolitan public transport by bus, train and tram. In 1999 the South Australian Government put to tender all the metropolitan bus services within the State. The services were divided into seven contract areas; Outer North, Outer North East, East West, North-South, Outer South, Hills and City Free. Four companies were awarded the contracts for these services previously provided by TransAdelaide. TransAdelaide continues to operate the train and tram services.
[15] Southlink was successful in obtaining the contract for the Outer South area and commenced that operation in April 2000 and subsequently, in early 2001, obtained a contract for the Aldinga area. Southlink also provides charter and special event services. A company known as Transitplus Pty Ltd, which is a joint venture between ATE and TransAdelaide, was awarded the Adelaide Hills contract.
[16] Serco Australia Pty Ltd (Serco) obtained the contracts for the Outer North, Outer North East and North-South areas. Serco has the largest number of employees and its services covers the largest geographical area within South Australia. Southlink considers Serco its main competitor.
[17] A company known as Torrens Transit Pty Ltd obtained the contract for the East West area and the City Free services.
[18] When it commenced operation Southlink had some 96 drivers. Currently it has approximately 163 drivers of which 14 were categorised as either part-time or casual. The majority of the bus drivers had been previously employed in the government operated bus service. Their terms and conditions of employment had then been regulated by an agreement known as the TransAdelaide Lonsdale Bus Certified Agreement 1988 (the TransAdelaide agreement). The activities of TransAdelaide then being within the public transport industry the relevant union party to that agreement was the Australian Rail, Tram and Bus Industry Union.
[19] Little time elapsed between Southlink obtaining its first contract and its commencing to engage employees. The TWU negotiated the terms of the current agreement with Southlink. As the negotiations were largely conducted prior to Southlink commencing operations the bus drivers had little opportunity for input into the terms of that agreement but did receive a draft copy of it when an offer of employment was made to them.
[20] The company's depot is situated in the suburb of Lonsdale and it is the same depot as previously used by TransAdelaide. The work undertaken by the bus drivers is, in effect, the same work as they previously did with TransAdelaide.
[21] Since Southlink assumed the Outer South metropolitan area contract the number of trips undertaken has increased. Each weekday now in excess of 1000 trips are taken. On Saturdays there are around 500 trips and on Sundays and public holidays around 400. The trips vary in both the time they take to complete and the overall length of the journey. The shortest route covers some three kilometres and takes about eight minutes. The longer trips which cover up to 50 kilometres take between 70 to 86 minutes. The frequency of trips varies but most operate each 30 minutes during the day and each 60 minutes at times where there is less demand for the service. The amount of work undertaken for charters and special events is variable.
[22] On Mondays through to Fridays services are operated between the hours of 0421 hours until 01:42 on the following morning. On Saturdays between 05:35 in the morning and 0145 hours the next morning and on Sundays and public holidays between 0547 hours in the morning and 0140 the next morning.
[23] Bus drivers work one or a mix of shifts including early, day, split shifts, twilight and night shifts. In their evidence bus drivers spoke of their experience working the various shifts. The peculiarities of the different shifts and disadvantages associated with them were identified. We have taken into account all of this evidence. We have given consideration to the documentary evidence which reflects the duration of shifts and the span of hours over which they are worked.
[24] Detailed evidence was given in relation to the number of ordinary hours employees are rostered on the various shifts and the manner in which the current agreement allows for those employees to work reasonably long daily hours without any entitlement to be paid a loading or penalty. We note that there are very few shifts in which the ordinary daily rostered hours are less than seven.
[25] The majority of employees are rostered to work on a weekly basis for between 41 to 42 hours. The highest number of rostered hours appears to be 44 hours and 21 minutes. It is uncommon for weekly rostered hours to be less than 40.
[26] Each of the witnesses called by the TWU spoke of the particular shifts that they had worked from time to time and the reasons why they may have chosen one or other type of shifts. Personal circumstances dictated the choice of shift a driver may elect to work, but it appeared the most desirable and sought-after shifts were early straights and split shifts. The TWU witnesses each spoke of the impact on their personal circumstances of the types of shifts that they worked and the restrictions placed on their home and social interests including their participation in, for example, their own or their children's sporting activities.
[27] A number of enterprise bargaining agreements were tendered. The content of them was relied upon by the TWU as being relevant to this arbitration. Southlink submitted bargaining outcomes agreed elsewhere were of little relevance to the considerations referred to in s.170MX(5). It submitted that the only industrial instrument we should consider is the relevant federal award.
[28] We will describe briefly the various awards and agreements that were either tendered to us or the content of which was relied upon in some way by the parties.
[29] The relevant award covering passenger vehicles operating in South Australia is the Transport Workers (Passenger Vehicles) Award 2002 (the federal award). Neither Southlink nor ATE is a named respondent to the award. Serco is not named as a respondent either. A company called "Torrens Transit Services Pty Ltd" is a named respondent. We assume this is the same company as referred to in paragraph [17] of this decision. We are aware there is a state award known as the Transport Workers (Passenger Vehicles) Award. However as no mention of this award was made by either party we will not refer to it again.
[30] The TransAdelaide agreement applied to bus drivers immediately prior to their becoming employed by Southlink under the current agreement. We note that the weekly rates under the TransAdelaide agreement were significantly higher at that time (approximately $50) than those payable under the current agreement. We also note that the TWU submitted that conditions of employment were superior to the current agreement. We have not compared conditions in any detail but accept in certain respects (for example annual leave) the TransAdelaide conditions were more advantageous.
[31] Serco has been party to three enterprise bargaining agreements during the period relevant to this decision. Each has been an agreement made in accordance with s.170LJ of the Act and each called the Serco Passenger Vehicle Transport Enterprise Agreement. The first was entered into in 1997 and operated for short period until the following year. The second was made in 1998 and remained in operation until 2000. That agreement was then replaced by an agreement certified on 30 January 2004 by Commissioner Dangerfield (the 2004 Serco agreement). The TWU has been a party to each of these agreements. The 2004 Serco agreement is to remain in force until 29 July 2005.
[32] The wage increases reflected in the 2004 Serco agreement are for a 7.5% increase over an 18 month period plus a one-off payment which it is said equates to approximately 2.54%.
[33] We were given tables reflecting a comparison of wages at Serco and at Southlink from the year 2000 to date. The classification used for the comparison was, in the case of Southlink grade 4 and Serco Group 3. It is accepted that wages of employees at Southlink were initially higher than those at Serco and indeed remained so until the date of the hearing before us. The impact of the increases payable under the Serco 2004 agreement will lift its rates over those paid by Southlink. Calculations were submitted to us by the TWU concerning the re-establishment of the previous pay nexus between the two companies.
[34] We note Transitplus is a party to an enterprise agreement with rates comparable to the current agreement. We were not taken to a comparison of conditions of employment.
[35] Other enterprise bargaining agreements operating in other States covering bus drivers were also the subject of submissions by the TWU. We were given tables comparing rates of pay at Southlink with the higher rates generally paid to comparable employees within the State of Victoria. We were also taken to industrial instruments operating in Western Australia. There an award known as the WA Passenger Bus Transit Industry Award 2000 operates. Companies whose owners are related to Southlink are named respondents to that award. Its provisions concerning the payment of overtime were said to be of particular relevance to this matter. For a similar reason the TWU referred us to the Path Transit Certified Agreement 2003. The TWU also noted the superior wages paid to Path employees. That is a company related to Southlink. Other agreements were also referred to which contain provisions similar to those sought here by the TWU as an arbitrated outcome.
[36] We now turn to a consideration of each of the provisions of s.170MX(5) to which we must have regard.
The matters that were at issue during the bargaining period
[37] There is little we need say about this consideration. The matters contained in the award each party asks us to make were matters at issue during the bargaining period.
The merits of the case
[38] We have earlier observed that each party submitted that in the exercise of our discretion we should make an award. It was the content of the award that was the subject of the evidence and submissions. All of the evidence referred to by us earlier in this decision has been taken into account.
[39] We have given consideration to each of the claims made on the basis of our being satisfied whether, as a matter of equity, good conscience and the merits of the claim the provision should be granted.
[40] We have taken into account the evidence that the majority of employees were previously engaged by TransAdelaide and that the work they did had not changed in any significant respect. It would appear that employees believed that had their wages at TransAdelaide been maintained their current wages would have been significantly in excess of what is paid by Southlink and we understand this is a significant factor motivating employees seeking wage increases as an outcome of the arbitration. However we are of the opinion that a comparison of public transport sector agreements and private transport enterprise agreements will not be a particularly reliable basis to test the merit of a claim.
[41] We have taken into account the desire of the TWU to re-establish, in percentage terms, the relative wages that previously applied vis-a-vis Serco and Southlink employees. This consideration is not one upon which we have placed much weight when determining, on merit, what the wage outcome of the s.170MX award should be.
[42] Southlink criticised the use made by the TWU of the terms of other enterprise agreements operating within South Australia and elsewhere. It described the approach taken as a selective comparative wage or comparative increase justice exercise. The TWU submitted that it was one of a several valid bases upon which to submit its claims should be awarded.
[43] In our opinion uniformity in enterprise bargaining outcomes is not of itself an acceptable basis to justify a s.170MX outcome. It is not however an irrelevant consideration. The levels of remuneration and conditions of employment of the same class of workers in the same industry is one factor appropriate for us to take into account. We have attempted to strike a balance of wages and conditions of employment that provide a fair outcome to employees whilst conscious of the business objectives and contractual obligations of Southlink.
[44] Southlink submitted we should only take account of the federal award when considering the merit of any claim made. The difficulty with this submission is that the award does not bind Southlink or its employees. Additionally we have not been assisted by Southlink proposing no wage increase at all - it wishes to retain all of the flexibility it says it has but proposes no increases in wages for the next three years.
The interests of the negotiating parties and the public interest
[45] Since the contracts were awarded to Southlink and the other contractors the relevant market has grown and the amount of work undertaken has increased significantly. It is projected that there will be a continuing increase in the demand for services. Any such services are subject to the standards necessitated in the relevant contracts with the South Australian Government which are subject to the Office of Public Transport (OPT) approval. Southlink hopes to obtain further government work and also other commercial and community work. In the event work develops sufficiently it will open a new depot. The award we make should not deprive Southlink or its employees of the opportunities the need for increased services will present.
[46] The interests of the bus drivers in having fair wages and conditions of employment is also of importance. The considerations we have referred to in the earlier part of our decision about the merits of the case are also relevant to this consideration.
[47] Insofar as the public interest is concerned we have relied upon the reasons for decision given by Commissioner Dangerfield when he exercised his discretion to terminate the bargaining period. They continue to be significant considerations. A reliable and safe public transport system is essential. In respect of a number of routes undertaken by Southlink the availability of alternative public transport is limited. Members of the travelling public are entitled to expect the system will operate in accordance with published timetables. A fairly paid and experienced workforce operating that transport system is to be encouraged.
How productivity might be improved in the business or part of the business concerned
[48] Neither party provided evidence of any measures of productivity currently used or such that we could use by reference to this consideration. We are unable to make any objective assessment about how productivity would be affected by each of the claims proposed by the TWU.
[49] The TWU proposed a range of changes to the current organisation of work for drivers. These changes included:
The TWU asserted that these proposed changes would not negatively affect productivity however no firm basis for this assertion was forthcoming.
[50] Southlink equated productivity in this case with flexibility. It proposes no change of any significance to those in the current agreement. It submits the terms of that agreement provides the requisite productivity. The existing terms and conditions have been shown to be acceptable over the past three years. Southlink submits the current agreement provides a suitable package of terms and conditions of employment for bus drivers. It pays more than the federal award but accepts that is offset by the flexibility it has. It submitted that it also pays more than most of its competitors in South Australia. To accommodate both a pay increase and a reduction in flexibility will reduce the opportunities for Southlink to remain competitive and to win future work.
[51] In respect of each change proposed by the TWU the opposition of Southlink was based on it introducing a restriction on current flexibility. Additionally it believed that the cost implications of the changes, the need to meet customer demands and to win charter and special events activities would be adversely affected. One or a combination of these considerations was put as the basis upon which each change was opposed. We have taken these submissions into account.
The extent to which the conduct of the negotiating parties during the bargaining period was reasonable
[52] We are not persuaded that the conduct of either Southlink or the TWU and their representatives during the bargaining period was unreasonable. In the context of the first enterprise bargaining agreement employees had little input into its terms. It is not surprising the negotiations for its replacement were described as hard or difficult. The conduct of each party in the circumstances was reasonable. This consideration therefore has been a neutral one in the exercise of our discretion in relation to the claims made.
Any relevant principles formulated by a full bench for the purposes of this subsection
[53] There are no relevant principles we are required to have regard to.
Other matters
[54] We have considered all of the evidence by reference to one or other of the preceding matters to which we must have regard. There are no other matters we need refer to.
[55] We now turn to each of the matters in issue in the arbitration. The clauses we refer to in this part of our decision (unless we indicate otherwise) are those contained in exhibit TWU 2. Any reference to the current agreement is to the version contained in attachment "ARB 2" to the affidavit of Mr Barnes.
Clause 4 Operation (the duration clause)
[56] The TWU proposes that after coming into operation the award should remain in force for a period of two years. Southlink proposed an operative period of three years. We have decided that the award should remain in operation until 30 June 2006.
Clause 5.3 1 Part-time employment
[57] An addition to the part-time employment clause is proposed by the TWU. It seeks in proposed clause 5.3.1 that all hours worked in excess of 34 per week be paid at overtime rates. We are not persuaded that this clause should be in the award we make. We deal with this later in that part of our decision concerning clause 10 of the TWU proposal.
[58] In its proposed clause 5.10, concerning the proportion of casual and part-time employees, the TWU claims that the total number of casual and part-time employees should not exceed 5% of the total number of full-time employees. There is no similar restriction contained within the current agreement. Southlink opposes the introduction of any restraint on the mix of employees it may engage. We note the current percentage of casual and part-time employees to full-time is less than 10% but that percentage reflects an increase since the time the current agreement commenced. We accept the proportion of casual and part-timers is necessary to cover employee absences and leave. We understand it is not the intention of Southlink to increase this percentage in any significant way. We are not persuaded that this clause should be contained in the award we intend to make.
Clause 7 Hours of duty
[59] The TWU proposes a variation to the existing hours of duty clause. Its proposal is that the ordinary hours of work for full-time employees shall not exceed 38 hours per week or 7.6 hours per day. Additionally proposed clause 7.2 provides that "the ordinary hours of work for full-time employees can be rostered Monday to Saturday between the hours of 7am and 7pm and shall be worked continuously except for breaks provided by this award".
[60] The current agreement in clause 8 provides that the ordinary hours of work for full-time employees shall not exceed 38 hours per week and can be rostered Monday to Saturday. The impact of the proposed change will, in practical terms, mean that any hours worked in excess of 7.6 on a day will be paid at overtime rates. Currently overtime does not apply until 38 ordinary weekly hours are completed.
[61] The introduction of the constraint of 7.6 ordinary hours per day would have a significant cost impact on Southlink and on the manner in which employees are currently rostered. We are aware this claim was of particular importance to the bus drivers. Indeed it seems throughout the industry this claim is topical. However we have balanced this claim against other claims made by the TWU that will have a lesser cost impact on Southlink but a likely increase in the pay of bus drivers. We are not persuaded that a sufficient case on merit has been made out to include either proposed clause 7.1 or 7.2 in the award.
[62] The payment for hours worked prior to 7am and after 7pm is a matter dealt with later in this decision in that part which deals with clause 9.2.1 being the shift penalty rates to apply between Monday to Friday.
Clause 8 Rosters
[63] First we refer to clause 8.1 titled "General Principles". This clause prescribes a number of principles which regulate the manner in which employees will be rostered to work. The current agreement has a corresponding clause (clause 9). The TWU proposes in clause 8.1.2 that the rosters for each four-week period are to be posted seven days in advance of the four-week period and are to include all known work. Currently clause 9.1.2 provides that period rosters are to be posted seven days before coming into operation and to include all known duty. We understand the evidence to be that despite the provision in the current agreement providing for seven days notice in practice the period that is provided is longer. The rosters are posted on the Wednesday of each week and they reflect the shifts that are to be worked not on the next weekend but the Sunday of the weekend after that. We assume that practice will continue.
[64] We understand the requisite period of time for notice of rosters is a compromise between giving employees as much notice as possible of their rostered hours and also allowing Southlink to vary services if unexpectedly the need arises. We note in this respect the provisions of clause 8.4 (clause 9.4 in the current agreement). This clause is titled "Right to exchange shifts". The evidence is that this right to exchange is one many employees take advantage of. They regularly swap shifts with others to accommodate personal and other circumstances. A swap can be in relation to one shift or it could be for the whole of the week.
[65] We are not persuaded to alter the existing provision concerning the posting of rosters.
[66] Clause 8.1.6 of the TWU proposed award provides that employees are to be rostered to commence and finish each day's duty at the same location. There is a proviso in the clause for it to be varied with the agreement of the employee. The corresponding clause (9.1.6) in the current agreement is in similar terms. The issue here relates to the possibility of a new depot, in addition to Lonsdale, being introduced during the life of the award. We did not understand Southlink proposed any change to the current practice nor that Mr Barnes evidence was that the company was considering a change. However the matter was the subject of some evidence before us and we think it appropriate to make a comment about it. The concern was that employees do not want to be rostered to start at Lonsdale for example and to finish at a new depot. We accept that concern and record our understanding that, unless the employee agrees, they are to be rostered to commence and finish each day's duty at the same location. That location is to be what they describe as their "home" depot.
[67] We assume there is no necessity for us to comment upon clause 8.2.1(i) of TWU's proposal. It appears to deal with the same matter. We understood it would be amended to delete "Lonsdale" and insert the words "the same".
[68] In clause 8.2.1(a) the TWU proposes that the ordinary hours of duty are to be not less than 7.6 hours on any shift for a full-time employee and not less than four hours for a part-time employee. The current agreement in clause 9.2.1(a) provides that those hours should be not less than four hours of the case of a full-time employee and not less than three hours for a part-time employee.
[69] We have earlier noted the evidence established that the incidence of ordinary hours on daily shifts reflect very few to be for less than seven hours.
[70] We are persuaded that an increase in the minimum rostered ordinary hours is warranted. In the case of full-time employees it should be increased to seven hours and in the case of part-time employees to four hours.
[71] In clause 8.2.1(b) the TWU proposes that any shift outside ordinary hours of 7am to 7pm is to be for not less than four hours. The current agreement provides in clause 9.2.1(b) that the hours of duty on a Saturday, Sunday or public holiday are to be not less than three hours. The TWU proposal extends this to any shift outside ordinary hours and also to introduce an increase in the minimum number of hours from three to four hours. We are not inclined to the grant this clause proposed by the TWU. However we are persuaded that the current clause we have referred to should provide for an increase for the rostered hours of duty to be worked on (clause 9.2.1(b)) a Sunday or public holiday to be not less than four hours.
[72] In clause 8.2.1(h) the TWU proposes that employees rostered start times in any one week period shall not exceed a range of 1.5 hours. The evidence did not persuade us that this proposed variation was warranted on merit. The range of start times are generally predictable and reflected in the rosters which we have earlier noted are posted some 11 days in advance of the relevant work period.
[73] In clause 8.2.3 the TWU proposes that full-time employees are to be offered all overtime shifts (including Sunday, charters and special events) prior to such shifts being offered to part-time or casual employees. The corresponding clause in the current agreement is clause 9.2.3 which provides that full-time employees shall be offered overtime shifts in preference to part-time employees. It can be seen that the TWU proposal extends the clause to Sundays, charter and special events (which may not necessarily be overtime shifts) and also extends the preference over casual employees. We have weighed up the considerations in relation to this matter and also done so against the background that we have rejected earlier related provisions. In this respect we have in mind our ruling relating to the employment category ratios that Southlink may engage and our rejection of the proposed 7.6 hour restriction on the ordinary hours a full-time employee may work each day. We are persuaded that on merit this claim should be allowed. TWU's proposed clause 8.2.3 will be included in the award we make.
[74] In clause 8.3.2 the TWU proposes that where an unpaid meal break is taken then a minimum of 40 minutes and a maximum of 60 minutes is to be allowed. The current agreement in clause 9.3.2 provides that an unpaid meal relief of a minimum of 30 minutes and a maximum of 89 minutes shall be allowed.
[75] We have considered in this respect the clause in the current agreement and the evidence of the employees about the problems associated with the brevity of a 30 minutes lunch break on the one hand and what is an excessive period of 89 minutes on the other. We have some sympathy for the suggestion that a break of 89 minutes operates as a de facto shift break. We consider the compromise should be for a minimum of 40 minutes and maximum of 75 minutes for an unpaid meal break.
[76] A consequential change will need to be made to proposed clause 8.3.3. We do not recall that any particular attention was given to the proposal of the TWU in that clause. We note the reference in the first line is to 40 minutes and in the third line to 30 minutes. The corresponding provisions in the current agreement in clause 9.3.3 is 30 minutes and 15 minutes respectively. This is a matter we refer back to the parties to consider in light of our ruling on proposed clause 8.3.2.
[77] Clause 8.3.4 proposed by the TWU provides that all meal breaks taken away from a depot are to be paid. The corresponding clause 9.3.4 in the current agreement provides that meal relief and crib breaks can be given to employees at any reasonable place. It is said by Southlink that suitable facilities are available at locations other than Lonsdale and from an operational point of view it is desirable for breaks be taken at such alternative locations.
[78] As we understand the evidence the only other facility available for bus drivers to take a meal break is the Noarlunga Centre interchange. We consider no change need be made to the current clause on the understanding it is only these two sites that are envisaged as a "reasonable place".
Clause 9 Shift penalty rates
[79] Clause 9.1 proposes new definitions for several types of shifts that are currently worked. Clause 9.1.1 provides that all shifts are to fall within the parameters of the definitions. We accept the evidence of Southlink that a number of current shifts could not be rostered to fit within these parameters. To rearrange shifts to comply would have a significant cost impact on Southlink. In our opinion the current system of shifts already reflects, in a defacto way, certain parameters. There is no sufficient evidence to persuade us to place additional hour and time constraints on the span of hours encompassed by the current shifts.
[80] In proposed clause 9.2.1 (Monday to Friday shift penalty rates) the TWU seeks, with the exception of voluntary overtime, public holiday, Saturday, Sunday and broken shift duty, that all duty worked on straight shifts before 7am and after 7pm is to be paid a 15% penalty. We note that in the current agreement clause 10.1.1 provides that such duty worked after 7pm is to be paid the 15% penalty but there is no reference to duty at the start of the day. We are persuaded it is appropriate that duty worked before 7 am also be paid a corresponding loading. A clause reflecting proposed clause 9.2.1 will be contained within the award.
[81] Clause 9.2.5 deals with public holidays. An increase is proposed to the payment made to employees required to work on public holidays and also an additional increase if such public holidays are Christmas Day or Good Friday. We are not persuaded the increases sought are justified on merit.
Clause 10 Overtime
[82] We refer first to the claim in clause 10.2.1.There are two parts to this claim. The first relates to rostered duty in excess of 7.6 hours per day being paid at overtime rates and the second relates to the quantum of the rate to be paid for overtime.
[83] Consistent with our earlier ruling in relation to the ordinary hours of work for full-time employees not being limited to 7.6 hours per day we also do not intend to order that any rostered time in excess of those hours worked on a daily basis be paid as overtime.
[84] The second matter concerns the rate at which rostered overtime should be paid. Clause 11.2.1 of the current agreement provides that rostered duty in excess of 38 hours per week is to be paid at the rate of time and one half. The TWU proposes it should be paid at double time after the first two hours. We are not persuaded to increase the rate of payment for overtime for rostered duty Monday to Saturday. Consistent with this ruling we are not persuaded to increase the payment for voluntary overtime either.
[85] We understood Mr Moore to submit that there was a claim for an increase in the minimum length of an overtime shift from three hours to four hours. We assume this claim relates only to voluntary overtime. In proposed clause 10.3.4, there is a minimum three hours payment. This clause is in similar terms to clause 11.3.4 of the current agreement. We are unable to identify in the TWU claim any proposal to increase this to four hours. In the circumstances we are unable to make any further comment about this claim. It is a matter the union may address, if it wishes, in the settlement of the terms of the award which will be made.
[86] We are not persuaded to allow the claim contained in the proposed clause 5.3.1 in respect of overtime payments to part-time employees for hours worked in excess of 34 per week.
Clause 15 Annual leave
[87] In clause 15.2 the TWU seeks that employees accrue annual leave at the rate of 180 hours each completed year of service. The current rate of accrual is 152 hours each completed year of service. It can be seen that the proposed rate of accrual equates to the granting of five weeks annual leave per year as opposed to the existing four week entitlement in the current agreement.
[88] The rate of five weeks annual leave generally is reflected in awards of the Commission for employees who can be categorised as seven-day shift workers. The employees would be expected to regularly be rostered for work on any day of the year which would include Sundays and public holidays.
[89] The evidence does not support Southlink bus drivers being said to be continuous shift workers or workers regularly rostered over a seven-day period. It appears that they are not obliged to perform Sunday work and when their name appears on a roster for that day there is an ability to hand that work back. We also note that the claim here is made for all employees regardless of the hours worked. The current agreement reflects ordinary hours being worked on Monday to Saturday only; not on a Sunday. The award we propose to make will not increase the rate of accrual of annual leave beyond that which is currently reflected in clause 16.2 of the current agreement.
Clause 17 Sick leave
[90] The proposal of the TWU in clause 17.1.1(d) is to increase from one day to two days the absences to which an employee is entitled without producing a medical certificate from a qualified medical practitioner. The two days are to be two single day occasions.
[91] We are persuaded this claim has merit and it will be awarded.
Clause 25 Uniforms/protective clothing
[92] The requirement contained in clause 26 of the current agreement is for Southlink to issue an employee with a uniform or protective clothing. It does not refer to shoes however it does require employees to wear black shoes. The proposal by the TWU is for Southlink to issue and pay for both the existing uniforms and protective clothing and also footwear.
[93] Even though black shoes may be considered a standard item of clothing none-the-less it is a demand placed by Southlink upon its employees. We believe there is merit in requiring the employer to incur the cost of the provision of such shoes. The claim made by the TWU in this respect should be placed in the proposed award.
Clause 32 Accreditation
[94] In this proposed clause the TWU claims reimbursement of all costs incurred by employees in maintaining or obtaining accreditation in accordance with the Passenger Transport Regulations 1994. We understand that the relevant amount is $170 each five years.
[95] We are persuaded that this essential certification requirement on bus drivers is one appropriate to be reimbursed. It is fair however that bus drivers who cease employment with Southlink within 12 months of being reimbursed the relevant costs are to repay such amounts. A clause in those terms will be inserted in the proposed award.
Appendix 1 Part B - Classifications and wage rates
[96] The TWU seeks an increase in the wage rates payable to bus drivers of 6% upon the commencement of the award and a further 6% twelve months thereafter. Southlink proposes no increase to existing wages during the period of any award we make. We are persuaded that, on merit, an increase in wages is warranted. We are also persuaded that a period of retrospectivity is justified. In deciding upon an operative date for a wage increase we have taken into account the fact the current agreement nominally expired on 23 April 2003. Bargaining commenced around that time. Numerous conferences and hearings proceeded before Commissioner Dangerfield thereafter until September 2003. Hearings of the arbitration took place before us in February and March 2004. In all, the period since the expiry of the current agreement has been around fourteen months. As we stated earlier neither of the parties acted unreasonably in this matter, it is simply most unfortunate that they were unable to reach agreement during their bargaining.
[97] The award will contain a 4% increase which is to be paid from the first pay period on or after 1 February 2004 and a further 4% from the first pay period on or after 1 February 2005.
Miscellaneous matters
[98] We refer to proposed clause 3 Coverage of the award. As Southlink is not a respondent to the federal award the parties need to give some consideration to the clause that proposes that the award made pursuant s.170MX is to operate in conjunction with some nominated award. We know of no award the employer is a party to.
[99] Southlink seeks an amendment to reflect (it says to clarify) that part-time and casual employees have no entitlement to Public Holidays. No evidence was led concerning any doubts existing about this issue. It seems clear from clauses 6.3.2 and 6.4.3 of the current agreement part-time and casual employees are paid a loading in lieu of paid public holidays. Assuming similar clauses will be contained in the s.170MX award we see no need for the amendment proposed by Southlink.
[100] Numerous amendments to the terms of the current agreement were suggested by Southlink and contained in attachment "ARB 3" to Mr Barnes affidavit. They were described as "minor amendments". They appear to largely be drafting proposals. We do not propose to deal with them in this decision.
[101] The parties should agree upon the terms of a draft award in accordance with this decision and provide a copy to the members of the Full Bench. The draft should take into account the matters referred to in the preceding paragraph. The draft should be provided to us by no later than Friday 2 July. We will then decide how the terms of the award may be finally settled and, if need be, the disposal of any remaining issues that may need to be ruled upon.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
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