Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation T/A Sydney Water - [2011] FWA 734

[2011] FWA 734

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Australian Municipal, Administrative, Clerical and Services Union
v
Sydney Water Corporation T/A Sydney Water
(C2010/275)

DEPUTY PRESIDENT SAMS

SYDNEY, 25 FEBRUARY 2011

Application of schedule 6 - facilitative provisions - work value - whether changes in the nature of the work, skill and responsibility or the conditions under which the work is performed constitute a significant net addition to the value of the work - case made out - increases of 3% for all levels in the pay structure.

THE APPLICATION

[1] Schedule 6(a) of the Sydney Water Enterprise Agreement 2009 (‘the Agreement’) is a curious and interesting provision. It is expressed as follows:

Civil Maintenance work value

(i) By 31 March 2010 the parties will conduct a review into the work value of Civil Maintenance Production Employees levels 1-6.

(ii) If the employer and the Unions cannot reach agreement under point (i) (above) the union may refer the matter to Fair Work Australia for arbitration using the Industrial Relations Commission of NSW Wage Fixing Principles referred to in the State Wage Case Decision 2009.

[2] This decision arises from the implementation of the terms of the Schedule in accordance with the consent position of the parties that Fair Work Australia (FWA) undertake a work value review of the work of civil production employees, pursuant to the Work Value Principle in the New South Wales State Wage Case 2009 [2009] NSWIRComm 120. The relevant principle is expressed as follows:

6. Work Value Changes

(a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.

In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classification to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position.

These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle.

(b) In applying the Work Value Changes principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed.

(c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.

(d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989, 30 IR 107.

(e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle.

(f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.

(g) The expression ‘the conditions under which the work is performed’ relates to the environment in which the work is done.

(h) The Commission will guard against contrived classifications and over-classification of jobs.

(i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle.

(j) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award.

[3] This matter originated as an application for FWA to deal with a dispute in accordance with the Agreement’s Dispute Settlement Procedure. The application was lodged by the Australian Municipal, Administrative, Clerical and Services Union - New South Wales Branch (‘the Union’) under s 739 of the Fair Work Act 2009 (‘the Act’) on 14 May 2010, and listed for conference on 25 May 2010. It will be immediately apparent that the date set for completion of the parties’ negotiations about the review had been significantly delayed. I note however, that in a letter dated 12 March 2010 from Mr Raymond Ferrier, Industrial Relations Manager, Sydney Water Corporation (‘Sydney Water’), to Ms Sally McManus, Secretary of the Union, Mr Ferrier responded to each of the Union’s nominated changes in the work of production employees and concluded as follows:

“The changes to Production Employee roles work value do not qualify for any change in rates, as accounted for in the comments columns in the previous tables. This is because they are either:

• Evolutionary, in other words they are simply due to evolutionary changes in processes or technology that affect all workers, and do not affect job size substantially;

• Improvements from a health and safety that do not change job size;

• Have already been accounted for by a change in rate;

• Have already been considered by the IRC and received no support for a pay increase for Sydney Water workers;

• Do not apply to all workers.”

[4] Notwithstanding Sydney Water’s position, negotiations continued through April and May 2010 and on 4 June 2010, the Union invoked its right to refer the matter to FWA for determination. Directions were issued on 15 July 2010 for the preparation of an outline of contentions, an Agreed Statement of Facts and evidence. The directions were subsequently amended, by consent, and the matter proceeded to hearing for six days, including two days of inspections of the work of the civil maintenance production employees. The knowledge gained and experience of the inspections underpin this decision. The inspections proved to be a very useful exercise in understanding the nature and scope of the employees’ work in the context of the Work Value Principle.

[5] An Agreed Statement of Facts (Annexure 1) and Itinerary of the Inspections (Annexure 2) are annexed to this decision.

The Claim

[6] The Union seeks an increase in the wages of the employees as follows:

Production Employee	Current pay point	Current hourly rate	Applicant seeks new pay point	Applicant seeks new hourly rate	Increase sought
Level 1	2B	$24.76077	3B	$26.61908	7.51%
Level 2	2D	$25.72278	3D	$27.54913	7.10%
Level 3	3B	$26.61908	4A	$28.64079	7.59%
Level 4	3D	$27.54913	4D	$29.59925	7.44%
Level 5	4E	$29.92308	5F	$32.05787	7.13%
Level 6	5E	$31.75831	7A	$34.23646	7.80%

Background to the claim

[7] Ms McManus described her Union’s coverage of Sydney Water’s civil maintenance production employees (‘the employees’) and outlined a history of wage movements of the employees since 1990. Her evidence was uncontested. Ms McManus said that around 30 years ago there were 7,000 civil maintenance and construction workers employed by the predecessor body of Sydney Water. There are presently 410 production employees whose work is to repair sewer and water pipes in a network of approximately 20,824km of water main pipes and 23,500km of sewerage pipes. Many of the employees have long service records and more than half are from non-English speaking backgrounds. Employees work out of nine depots in the Sydney / Illawarra area. Each depot groups employees into teams of one to four employees. There are also individual workers known as First Call Responders (‘FCR’) who go into the field to assess the needs of each job. Work is allocated through a call centre to the depot schedulers. Work is assessed as Level 2 repairs not requiring urgent assistance to Level 6 which are major breaks in the network or blocked sewers which require urgent attention.

Industrial Coverage

[8] Prior to 2006, the wages and conditions of the employees were regulated by agreements or awards of the Industrial Relations Commission of New South Wales.

[9] In 1990, the employees were covered by the Water and Sewerage Employees - Wages Division (Metropolitan) Award (NSW) 1984, which had been made in 1984. The Award provided for two classifications of Maintenance Employees - Sewerage and Maintenance Employees - Water, with employees only working in one, but not both classifications. At that time, sewerage employees received slightly higher rates of pay ($4.15 per week).

[10] On 14 December 1990, a new clause in the Award created the six level pay structure which currently applies to employees. Subclause (iii) and (iv) of the clause 5 were expressed as follows:

(iii) Progression within the system and the rate of pay for employees in the streams shall be determined by ongoing learning/skills, ongoing evaluation, accreditation and on-the-job performance review process as contained within the agreed Principles and Rules, and System Design (including workplace reform) documents for the Operations and Maintenance (Water and Sewer) Business (“the Principles, Rules and Design”).

(iv) the rates of pay prescribed by this Part of this award, are designed to cover all work and disabilities associated with the Water and Sewer businesses.

[11] Subclause 6(i) and (ii) were expressed as follows:

(i) Provided that all employees employed in the Water and Sewer Businesses shall be evaluated and accredited into a Class and Level in the above scale of wages as determined in accordance with the agreed initial evaluation process which is the subject of the Principles, Rules and Design.

(ii) Provided that progression between the Levels within each Stream shall be in accordance with the agreed ongoing evaluation and accreditation process set out in the Principles, Rules and Design.

[12] On 16 June 1994, Cullen J made the Water Board Rates of Pay and Allowances Award [1993] NSWIRComm 45 (‘the Cullen decision’). The Award made a significant break from the past Award coverage and 100 years of distinction between ‘blue’ and ‘white’ collar workers through an Integrated Pay Structure (IPS). In the decision, his Honour said:

I am satisfied... that the Award complies with the Industrial Relations Act 1991 and the Wage Fixing Principles of the Industrial Relations Commission of New South Wales, and that the 5% and 3% increases in rates of pay are appropriate recognition of the increases which are permissible pursuant to the current State Wage Case Principles, including structural efficiency and any past productivity claims which have been available to the Unions up to the making of the new Award. The changes affected in the workplace negotiated between the parties accordingly can be properly dealt with in terms of the Act without the necessity of establishing a Special Case. The reforms negotiated by the parties give and will give effect to the economic performance referred to in the State Wage Case decision - December 1993.

[13] No employee suffered a reduction in pay as a result of moving to the IPS which is tied to the pay scale of all other employees. Ms McManus said the six level pay structure had not changed since 1991 as the process for the employees involved a roll up of allowances and a transfer to the nearest highest pay point, underpinned by a Skills Development Program.

[14] Between 1994 and 2004, the Award was not varied by State Wage Case increases but through enterprise bargaining between the parties underpinned by the Sydney Water Award 1994. One such enterprise agreement in 1995, the Sydney Water Corporation Limited Utilities Business Enterprise Agreement, included pay increases for employees who chose to cross skill in both ‘water’ and ‘waste water’ (sewerage). This is known as ‘dual streaming’. A staged integration of the two functions occurred (cl 5.4.1). Level 1 and 2 employees were trained in water and waste water functions and received an allowance. Levels 3 to 6 could cross skill on a voluntary basis with two pay scales operating.

[15] From 1997 to 2004, various enterprise agreements provided for wage increases for all employees which did not differentiate between the civil maintenance employees and the rest of the workforce.

[16] In 2004, the 2003 enterprise agreement and the 1994 Award were replaced by the Sydney Water Award 2004. Clause 5 of that Award provided for a job evaluation process for all employees who believe their job has changed in skill and complexity. However, the civil maintenance employees continued to operate on the six level pay structure underpinned by the Skills Development Program which was agreed in 1991 and were not eligible for job evaluation.

[17] Since 2004, all Sydney Water employees have received the same wage increases through direct negotiations between the parties, including the most recently approved Sydney Water Enterprise Agreement 2009 (AG2009/14491). The Union had insisted that the wage rates for the civil maintenance employees should be increased for work value reasons. Schedule 6(a) was the result of this claim and negotiations commenced on 22 December 2009, in light of the new Schedule. For completeness, Sydney Water undertook an internal review in early 2010 and concluded as referred to in par 3.

[18] Before moving to the evidence, I set out below a glossary of terms which will appear frequently throughout this decision.

Dual Streaming: The ability to work on both water and wastewater systems; multi-skilling.

E-developer: a role that coordinates connection to the water and wastewater networks, primarily with developers.

FRM: Field Resource Management - a small laptop computer that is used for dispatching work orders, providing access to documents and system mapping.

Hydra: Sydney Water’s geographic information system (GIS).

Jetter Truck: Jetters use high-pressure water to clear blockages in pipes as an alternative to solid rods.

Mains to meter: Repairs of water services between water mains and the meter.

Ticket: Licence

MR/HR Licence: Medium Rigid / Heavy Rigid Truck licence.

WAMS: Works and Asset Management System.

Chokes: Blocked water or sewerage pipes.

Vega Crimping Gun: Device used to crimp pipes together.

Rodding: Manual system for clearing blockages in pipes using metal rods.

FCR: First Call Responder - a senior employee who first assesses the job and determines what is required.

Aquaphone: Leak detection device.

Corelator: Device to measure the distance of a leak between two points.

Ezy-volt: Device for testing whether an electrical current is flowing through a pipe.

THE EVIDENCE

[19] The following persons provided evidence in the proceedings:

Mr Geoff Fuller - Master Assessor

Mr Scott Hamill - Production Employee, Level 4

Mr Ryan O’Shea - Production Employee, Level 2

Mr Vaughan Francis - Production Employee, Level 5

Mr Craig Martin - Production Employee, Level 6

Mr Raymond David Ferrier - Industrial Relations Manager

Mr Douglass Stuart Hobart - Safety Support Coordinator, Health and Safety Division

Mr Richard John Reidy - Contract Officer, Civil Delivery Business

Ms Jennie Kirstin Thompson - Operational Health and Safety Manager

Mr Paul Dominic Ferguson - Project Manager, Network Technicians Trial

Mr Geoffrey James Vickers - Manager, Scheduling

Mr Ian Andrew Nisbet - Southern Area Manager, Civil Delivery

Mr John Lyle Campbell - Team Manager

Mr Ivan Joseph Pavlovec - Manager, Civil Projects, Civil Delivery

Ms Maria Elizabeth Steel - Manager, Organisational Capability, Human Resources.

Mr Jeffrey Micallef - Business Project Manager

Mr Leslie Kenneth Dallis - Traineeship Coordinator, Organisational Capabilities

A statement of Ms Sally McManus was tendered into evidence. She was not required for cross-examination.

[20] Mr Geoff Fuller commenced working for Sydney Water in August 1978 as a Construction Worker Level 2. His work consisted mainly of excavating mains using picks and shovels. If a large main was involved a large backhoe and tipper trucks would be called from the Major Repair Crew who would take over the job. Mr Fuller transferred to this crew in 1982. In 1984, he was promoted to Acting Overseer and he gained a Backhoe Ticket.

[21] Mr Fuller was involved in the development of the 1991 Skills Development Program. This process aligned 75 different classifications into two roles called Maintenance Man-Water and Maintenance Man-Waste Water. He said there were 164 competency tasks and 13 electives for Water and 137 competency tasks and nine electives for Waste Water across six levels. Mr Fuller annexed to his statement the 1991 Skills Development Program and Workbook for both streams. Mr Fuller described the process of transferring employees to the new structure and the ‘on the job’ training required. Mr Fuller said that in October 1993 the Skills Development Program was revised to remove redundant tasks, add technology requirements and group like tasks into ‘Units of Competency’. Mr Fuller attached the Water and Waste Water Integrated Competency Standards Profile Levels 1 to 6 and the Training Guides which he had helped design, implement, train and assess other employees. Many of the earlier electives became mandatory competencies.

[22] In 2000, Mr Fuller became an Acting Facilitators’ Leader and in 2005 was appointed a Skills Development Assessor. This involved delivering training and hearing appeals under the Competency Program. A revised Skills Development Program took effect in 2005 and remains current. Employees are now required to complete an oral exam as well as satisfy the Assessor they can complete the task. All Assessors are now required to obtain a Certificate IV in Training and Assessment. In 2007, Mr Fuller was appointed a Master Assessor. He said that during his period of involvement in developing competencies he had observed a number of changes in the way that work is performed from 1991 to today. He identified these changes under the following headings:

Electrical Safety

[23] In 2005, electrical safety training was introduced and in March 2010 the Skills Development Program was updated to include electrical safety units placed in the Level 1 competency. Employees are required to have knowledge and understanding of complex electrical circuits. This has increased their skills and responsibility.

Use of Jetters

[24] In 1991, there were only two or three jetters in use with 12 employees trained in their use who would be allocated to operating the jetter. In 2001 to 2002, jetters were introduced across all depots and were included in the Skills Development Program as a core unit in 2005. All crews are required to use jetters. Jetters are more efficient and safer than the old manual system of using rods and employees must exercise a higher degree of skill. Each depot has three jetters operated by Level 3 employees.

Operate Excavator (and other plant)

[25] In 1991, production employees used mostly picks, shovels and jackhammers. A small number of backhoes were available and no employee below Level 3 (about 20%) would be required to operate a backhoe. Excavators were widely introduced in 2003 and all levels of employees are required to operate an excavator if they hold the relevant National licence and have attended a two day training course on high risk work. These skills are now used across a broader group of employees. Employees must be highly skilled to constantly check for underground and above ground cables and to ensure the protection of people in the vicinity. The control system is complex and complexity increases in confined spaces or near footpaths and roadways.

Traffic Control

[26] In 1991, maintenance crews required to work on or near roads and traffic would use common sense to decide how to best divert traffic. Level 3 employees would make these decisions. Today all production employees are required to be certified by the RTA Blue Card system which permits them to control traffic. This requires a one day training course and assessment and employees must hold a current driver’s licence. The certification required is a one day refresher course each three years.

[27] All production employees above Level 3 must hold an RTA Yellow Card. This requires a current driver’s licence, a Blue Card and attendance at a training course. Yellow cards permit the employee to set up traffic control according to a traffic control plan. Control plans are implemented on a daily basis. Some field supervisors hold a Red Card which permits them to draw their own traffic control plans and submit them to the RTA for approval. These requirements have significantly increased the skill and responsibility of employees.

Chlorination

[28] In 1991, water was chlorinated using chlorine in gas form which was both dangerous and difficult. A select group of employees were trained and called on to use this skill. Water is now chlorinated using Sodium Hydrochloride tablets or liquid with a large number of employees now trained to do so.

‘Mains to Meter’ Repairs

[29] This work was not carried out in 1991 but was performed by a certified plumber. From 1993 to 1994, employees (Level 3) were trained on the use of acetylene welding and this required a two day training course.

E-Developer

[30] This role did not exist in 1991 and was performed by a Production Employee Support Officer. It involves ensuring Sydney Water assets are constructed according to certain external and internal standards and the person in the role also organises planned and trial shutdowns, disinfecting water mains, conducts audits and negotiates with contractors. The E-Developer role was created in 1998/1999 and employees at Level 4 may be required to undertake the role which may be rotated. There is one E-Developer for Waste Water and one for Water in each of the nine depots.

First Call Responder (‘FCR’)

[31] This role was performed by a specialist leak detection unit in 1991 (not production employees). The FCR was introduced in 1994/1995 and became more widespread in 1997. Level 4 and above may be asked to be a FCR of which there are one to three in each depot.

Higher Level Projects

[32] In order to progress to Level 5 an employee needs to complete two higher level projects and a Level 6 - an additional three higher level projects. This was not required in 1991 and higher level projects were completed on an ad-hoc basis.

Field Resource Management (FRM)

[33] This was introduced in 2005 and all employees are required to use this computer technology and have greater responsibilities in recording the work performed. Previously Team Leaders filled out Job Cards. This is a significant change in the way the work is allocated and recorded.

[34] Mr Fuller concluded that there have been significant changes to the work performed by employees in respect to the nature of the work, skill and responsibility required and the conditions under which the work is performed. As to the later matter, Mr Fuller referred to the large scale voluntary redundancies in 1996, 2002 and 2005/2006 which reduced work crews from five to one, meaning employees are required to work flexibly, use greater skills and take on increased responsibilities.

[35] In cross-examination, Mr Fuller agreed that one of the purposes of the Skills Development Program was to describe the work as it was being done at the time. Mr Fuller agreed that the actual task of locating and adjusting a surface filling and the tools used in 1991 was the same task in 1993 and 1995 when the training documents were developed.

[36] Mr Fuller acknowledged that he had progressed within Sydney Water by application and appointment to positions beyond Level 6. He accepted that the six level structure was designed to enable employees to progress up the levels based on the acquisition of skills. Mr Fuller agreed that the changes in chlorination reduced the danger in handling the chemical.

[37] Mr Fuller said the computer skill he was referring to in the use of FRM included knowledge of how to use a keyboard, scroll through basic Windows Excel and how to interpret data from hard copy to soft copy. He denied that these tasks were just replacing the manual imputing of data by computer imputing. He said it is a different skill than using a pen and paper, although the information may be same.

[38] In a reply statement, Mr Fuller said that the training required for the Aquaphone prior to 1991 was limited to a small number of employees. He said the setting of pressure of the jetter is a design specification, as well as for safety reasons. Prior to 2005, bridging conductor alligator clamps were used in an ad hoc fashion. Mr Fuller rejected Ms Steel’s evidence that traffic control was only about informed common sense. He denied that higher level projects were only an assessment device. They include a consistent high level of work, including timeframes, outcomes and risk assessments. There was no formal assessment prior to 2005. Mr Fuller agreed that ‘one out’ working had occurred before 1991, but only occasionally. It is now far more common. Mr Fuller rejected the emphasis on excavators being introduced for safety only. They were introduced for a variety of reasons, including productivity. They are obviously more complex than using a shovel.

[39] A number of employees provided witness statements, gave oral evidence and informally outlined their roles and duties during the inspections. To the extent possible, I shall not repeat their evidence, as much of it was either covered in the Agreed Statement of Facts or was acknowledged by other witnesses.

[40] Mr Scott Hamill joined Sydney Water Corporation as a Sewer Maintenance Man in 1991. He achieved Level 4 in 1997 by passing a critical incident response test. He is based at the Ryde depot. He described his typical work day in 1991 which involved dig jobs, choke clearing and tree root cutting. He said that four employees were allocated to the Choke Truck who would receive jobs during the day from schedulers by radio call. Preventative work was done when emergency work was not required. He detailed the work which was performed using long metal rods. Only one person in the Northern Districts at that time had been trained to operate a Jetter. Other work performed less frequently than today involved critical sewerage incident reporting and environmental clean ups.

[41] Mr Hamill said that in 1991 he did not have to consider electrical safety as he did not work in this area, he was not trained to operate an excavator and did not perform any work on ‘mains to meter’ jobs. He was not required to control traffic or do chlorination work. Mr Hamill said that since ‘dual streaming’ was introduced, his work has changed dramatically and he was exposed to new tasks and jobs. From 1993 until 1995, he was a CCTV operator. This involved inserting a small camera into a pipe to locate the problem. The images would be relayed to a TV screen.

[42] Mr Hamill described the training he had been required to undertake since 1991. This included:

• Confined space;

• Environmental awareness;

• Manual handling;

• Using the Jetter;

• Operating excavators;

• RTA Blue Traffic Control ticket;

• Use of gas detection equipment;

• Electrical awareness; and

• FRM.

[43] Mr Hamill outlined his work in 2010, which now involves ‘dual streaming’, the use of FRM and ‘mains to meter’ repairs which is one of the more common jobs he is assigned to. (This work was observed on the inspections.) Another common job is repairing broken water mains, which are often close to roads and traffic. This involves identifying potential hazards, excavation, electrical safety procedures, repairing the pipe and clean up. A typical job may take four to six hours.

[44] Jetter crews were reduced from three to two in 2002 when hand rodding was replaced. Mr Hamill said he is only required to use the jetter about once a month. Maintenance of the jetters involves checking fluids, filters and hoses. Using the jetter involves judgement about size of the cutter, pressures and vibrations of the equipment.

[45] Mr Hamill described the less frequent job of critical sewerage incident reporting and Rapid Water Identification. In 2009, Mr Hamill was required to upgrade his truck licence to Medium Rigid (MR).

[46] Mr Hamill challenged Sydney Water’s evidence in a number of respects. He said the use of jetters involves a lot more consideration of the environment and knowledge of how to maintain the equipment. Pressures are not the same and must be closely monitored. Care must be taken to ensure there is no kinking in the hose which may cause it to blow. The old rodding system was just a simple manual tool. Mr Hamill said that ‘bridge clamps’ were not used for electrical safety prior to 2005. Mr Hamill agreed that the use of FRM reduced paperwork, but it requires different skills and additional imputing compared to 1991. Mr Hamill said that traffic control is more than ‘common sense’ and the traffic situation is very different from 1991. Mr Hamill said that electrical training was more than just at the ‘basic level’. Assessments are required to be made about the levels of control which might be required. Mr Hamill claimed that operating an excavator is nothing like driving a car. It has the potential to cause significant damage. It requires considerable care and skill in considering unseen underground dangers.

[47] In oral evidence, Mr Hamill described the use of the bridging clamps in electrical safety. If the process identifies the presence of ‘live’ power, an electrician will be called. He also gave details of the additional information which is required to be entered into the FRM, which included identifying valves and broken valves on maps and entering incident logs and safety audits. He agreed that these tasks had been previously performed by ‘writing them up’. As to receipt of information about jobs from the depot, he agreed that this had been previously communicated by radio. Mr Hamill described the use of job cards in 1991 compared to what is required today. However, he agreed that much of what is required to be entered was previously done in paper form.

[48] Mr Ryan O’Shea is a Level 2 employee at the Miranda Depot. He commenced employment with Sydney Water in 2007 and he is a qualified Fabrication Engineer. Mr O’Shea is allocated to a ‘Break Truck’ which is equipped to fix broken water mains. Mr O’Shea described his typical work day. He often drives the truck with his Team Leader to the job. Mr O’Shea said he would undertake risk assessment and the Team Leader would decide on a Traffic Control Plan. FRM is used to ascertain the location of valves and the properties affected by the break, the shutdown and the times and duration of the shutoff. While Mr O’Shea does not hold an excavation ticket, he assists the Team Leader with observing the excavator, helping set up electrical safety controls, assisting anchoring the new pipes, opening valves and clean up. FRM is used to record material and equipment used, stop leak times, sundry debting, Council restoration requirements and new work orders.

[49] Mr O’Shea described his role in ‘mains to meter’ repairs, repairing leaking hydrants and stop valves, poor pressure complaints, lack of water and installation of temporary water supplies. Mr O’Shea also described the various jetters in his yard and his role in checking the engine, components and gas detection checks. At the job, which are usually emergency 5 or 6 priorities, FRM is used to locate the manhole. Mr O’Shea will operate the jetter control panel which controls water pressure and speed while the Team Leader will manipulate the hose up the line to the blockage. Mr O’Shea said operating the control panel requires concentration and competence to ensure hazards are not created.

[50] Mr O’Shea described some typical programmed sewer maintenance jobs as:

• Sewer Pumping Station (SPS) Flushing;

• ‘Dig and Repairs’ (of pipes);

• Raising manholes;

• Overflow inspections (at designated stormwater overflow points);

• programmed Jetter root cutting;

• manhole clearing;

• sewer traverses;

• buried asset location;

• SPS shutdowns; and

• CCTV inspections.

All of these jobs require risk assessment, use of FRM, gas detection and confined space entry permits. He said the most challenging jobs are overflow inspections, traverses and manhole clearing.

[51] Mr O’Shea described some of the work of a programmed water maintenance man which included:

• rewashering hydrants;

• cutting new valves;

• shutdowns for The Alliance or Civil Projects;

• critical valve inspections;

• trial shutdowns of trunk and reticulation mains;

• chlorination of new mains and reservoirs;

• Woronora Pipe Line inspections;

• Chip and Plating;

• Bush Fire Hydrant inspections; and

• Pumping Station shutdowns.

All these tasks required risk assessments and use of FRM maps and knowledge of the tools and equipment needed.

[52] In response to Sydney Water’s evidence, Mr O’Shea said that a great deal of skill and attention goes into operating and maintaining jetters and jetter attachments. As to electrical safety, Mr O’Shea said that he is required to apply skill and care before many jobs. It is not a simple safety task and involves skill and learning about complex and critical electrical circuits.

[53] Mr O’Shea disputed that FRM merely replicated what was already required. He said FRM Phase I includes integrated, expanded or new functions including:

• SMS messaging sending and receiving to other FRM’s and schedulers

• Ability to raise new Safety Hazard alerts

• Ability to create new work orders G3’s

• Incident logging

• Dig/cut permits

• Hot work permit

• More in depth risk assessment

• Free Text fields for comments/information upon completion suspension or referral of work orders

• Emergency situation button

[54] He said that using FRM requires significant training and application of computer skills. In addition to one and two day training at the Centre, three days of field training was provided. As to FRM Phase 2, Mr O’Shea was selected as a field based traininer (super user) and said the rollout of Phase 2 included:

• At our depot three employees were selected to be super users (training and support) of the new FRM2 mobile maps and documents.

• Prior to formal training I gave in depot training to some staff over a period of 2 weeks.

• Employees had the choice to attend 1 or 2 days formal training many took up the 2 day option.

• After formal training employees identified as needing more training were assigned to me and I gave them further support.

• For the field rollout (go live) of FRM2 at Miranda depot, a training and support team was created. The team consisted of 3 super users from our depot and 2 from City East depot also 2 external consultants. We travelled with crews giving them field support and training for a number of days.

• After the initial rollout I continued to give training and support to employees in the field. I still take phone calls from production employees regarding the use of FRM1 and FRM2.

[55] In cross-examination, Mr O’Shea said that, in using the jetter, he had experienced (over four years) about 20 occasions of a burst disc flow. He was aware of three occasions where the hose had blown causing injury in the last 12 months.

[56] Mr O’Shea described the electrical safety requirements which often require him to lead multiple cables to bridge the workers from electric currents. These are physically attached to the pipes.

[57] Mr O’Shea reaffirmed that using FRM requires employees to enter more data and information than previously done by verbalising a work plan or writing it down. He mentioned a couple of hundred different task codes that need to be allocated to the work order being created. As to SMSing requirements, Mr O’Shea agreed that this had been previously done by radio or phone. However, safety hazard alerts and creating new work orders require more information and more options to be considered. Incident logs, dig/out permits and hot work permits were previously created on paper. Hard copy maps were previously available. Mr O’Shea said that whereas paper reports were submitted to the Field Supervisor, using FRM means all reports are transmitted in real time. Mr O’Shea explained that previously, with incomplete maps, further information had to be sourced from somewhere else, usually a scheduler. Now with Hydra (see Glossary) and FRM, access to information is direct to those in the field, bypassing the scheduling or administration functions.

[58] Mr Vaughan Francis commenced employment with Sydney Water in October 2001. He is presently a Level 5 employee based at the Miranda depot. Mr Francis works 70% water reactive work and 30% programmed and reactive sewer work. He described a typical water reactive job when he was at Level 1. These would usually be a broken or leaking water main which would require shutting off the water. The Team Leader would check printed plans and work out the likely location of the break and instruct him to shut down relevant valves. Holes would be created in the road and probing bars inserted. Jackhammers and shovels would be used to dig up the area, the pipe repaired and restoration work would then be undertaken. This was all time consuming and difficult work. Mr Francis described the use of metal rods to unblock sewer chokes (this was observed during the inspection). Mr Francis said that while the method was simple it was very physically demanding and dangerous. Back injuries were common. It would usually involve a crew of one Team Leader and two maintenance men. Broken sewer pipes would involve hand digging with shovels to locate the break which would be replaced and joined with concrete. Restoration work was then required.

[59] Mr Francis described the changes to electrical safety requirements after a fatal incident in 2005. He attached to his statement Safe Work Method Statements which contain the many different processes the employees need to choose from depending on the type of repair and electrical hazard. Each process requires at least two forms of control. He said that while some jobs are simple many others are highly complex.

[60] Mr Francis said that training on FRM takes four full days. He said that the most complex and difficult to master function was mobile documents and mobile maps which have a 97 page training manual and require two days of training.

[61] Mr Francis said that each depot has two excavators and one loader (front end / backhoe) because the old system was dangerous and inefficient. He attended a two day course to become a plant operator. The Use of Excavator Guidelines outlines some of the hazards and risks as:

• Striking bystanders with the moving plant;

• Severing gas mains with resultant explosion;

• Tipping over from working on unstable ground near broken water mains;

• Lifting odd shaped objects with resultant risk of losing load and hitting bystanders;

• ‘Zone of Influence’: the risk of plant falling into the hole.

• Damage to roads and paths;

• Damage to fences and other property from moving plant.

[62] Mr Francis said that operating a backhoe makes the job more complex and requires skill and knowledge to operate safely and efficiently. He outlined the operations of both the excavator and the backhoe.

[63] Mr Francis referred to the factors to be taken into account with traffic management. These include:

...time of day (for example whether or not it is peak hour), the amount of traffic, type of street (for example whether the street is residential or a main road), width of street, speed limit, likely job duration, type of traffic on the road (for example whether the traffic is commercial/industrial), visibility (for example whether it is night or day) and weather conditions.

[64] Mr Francis said that about six months ago he was trained in testing for fluoride in water which is used to identify whether a water problem is Sydney Water’s responsibility. For about half his time, Mr Francis is assigned as a FCR. The role was created to increase productivity and allow Sydney Water to better respond to breakdowns. FCR functions include:

...locate the source of the leak (leak detection), marking out services (using detection gear to mark out the location of water mains and other utility’s services for following crews so they don’t damage them), liaise with customers, confirm the job’s priority (jobs are set with a priority level depending on its urgency), assess the need for specialised equipment, represent Sydney Water’s interests when plumbers are asserting that their private jobs are Sydney Water’s responsibility.

[65] Mr Francis described how leaks are detected using an insulated listening device to listen to meters, stop valves and hydrants in an attempt to ‘zero in’ on the leak. It amplifies the sound of running water underground. The higher the pitch, the nearness of a leak. Another device is a locating device which uses a small electric current to ‘map’ the line of the pipe.

[66] Mr Francis described his duties as a reactive Water Team Leader when called out to broken water mains. Most are on, or near roadways, and require traffic control plans. Risk assessments and the use of FRM are involved. Mr Francis also described the use of ‘crimping guns’ for joining pipes in a typical ‘mains to meter’ repair job.

[67] Mr Francis said that Planned Water Work may require him to do the following:

• Trial main shutdowns;

• rewashering hydrants;

• cutting new valves;

• chlorination of new mains and reservoirs;

• Chip and Plating;

• critical valve inspections;

• shutdowns for The Alliance or Civil Projects;

• Woronora Pipe Line inspections;

• Bush Fire Hydrant inspections; and

• Pumping Station shutdowns.

[68] Mr Francis responded to the opposing evidence as follows. Listening devices are used in the majority of reactive leak situations. He agreed that using a jetter was for the same task, but the work is quite different, involving high pressure water and control panels. There are a variety of different pressures, for different nozzles and root cutters which were not available for the old rod method. Mr Francis believed that the safe use of jetters requires a high degree of skill, to avoid disc blows and injury. It involves two days of training.

[69] Mr Francis said that while the level of complexity of electrical safety does not approach that of a licensed electrician, he is required to be well versed in the procedures and activities concerning electrical safety. This requires diligence, concentration and learning new skills. Interaction with angry customers and ensuring safety are now common aspects of the work. It is not just ‘thinking’ about safety.

[70] Mr Francis said that much of his working life involved little more than digging holes. FRM has brought a huge change in terms of a new skill required for his job. He is now a confident user of computers. Mr Francis said that prior to 2001 there were no traffic plans to follow.

[71] Mr Francis believed the FCR constitutes a significant change to his work and requires increased levels of skill and responsibility. He must accurately mark out water mains, copper pipes and other services such as gas, optical fibre and phone cables.

[72] Prior to 2001, a Specialist Leak Detector was called for difficult leak detection. He said the FCR is not rostered but selected by depot management between competent employees, depending on availability. Mr Francis found electrical safety procedures to be complex and ever changing.

[73] Mr Francis said the oxy welding equipment is still regularly used in addition to the Vega Crimping Gun (which cannot be used for copper pipes). Mr Francis said he had never heard any production employees say ‘but we’re still doing the same job’.

[74] In cross-examination, Mr Francis described how he moved through the various levels one to five and agreed that more responsibility comes with each level. He agreed that the higher rates for each level were directed towards employees taking on additional responsibilities.

[75] As to the use of jetters, Mr Francis accepted they are safer than the rod method, but still involve other risks; four or five had blown up in his depot in the last year. He described the tasks involved in the daily checking of the jetter which is recorded on a check sheet each day. Mr Francis believed that just about everybody had been trained to get their Yellow RTA ticket, whereas before 2005 most employees were certified with the Blue ticket.

[76] Mr Francis described the additional tasks of a one man crew which involves doing the job and dealing with the customer or resident. He also described the setting up of electrical safety procedures. Mr Francis acknowledged that from his commencement with Sydney Water there was always associated paperwork to be filled out.

[77] Mr Craig Martin has been with Sydney Water since 1976. His only function at that time was to dig holes. He became a Leading Hand and is now a Level 6 at the Hills Depot.

[78] In 1991, Mr Martin was working at Riverstone Depot which had nine maintenance employees working in two crews. He described a typical day assigned to either the ‘reactive crew’ or the ‘planned work crew’. Jobs were allocated by job cards. The cards contained the following information:

• Size of the water main;

• Type of water main;

• Type of pipe;

• Depth of pipe;

• Type of break;

• Space for us to record what was shut down;

• Space for us to record the time spent on job; and

• Space for us to record who responded to the job.

[79] At the time he did not fill out the job cards. This was done by the supervisor. In the reactive crew, jobs would be taken over the two way radio and administered by the supervisor.

[80] Leaking pipes would be identified and attended by four or five employees, three of whom would manually dig to locate the leak. Availability of backhoes was limited and waiting times caused delays. Not many employees had a backhoe ticket. Initially detecting a leak would be by using a crowbar to listen for the water hissing. In 1998, an Aquaphone was used and later an electronic detection device was utilised. Valves would be located and turned off and the broken pipe replaced.

[81] Mr Martin said that in 1991 electrical safety was not an issue and employees regularly worked without taking any precautions. In respect to chlorination, Mr Martin said the process was the same, but it now uses liquid, not gas. Mr Martin also described the work in 1991 of ‘mains to meter’ breaks, repairing broken valves and changing path taps, leaking hydrants and traffic control.

[82] Mr Martin compared the work between 1991 and 2010. He described the introduction of ‘dual streaming’ in 1995 and changes to the competency structure requiring progression to Level 4 by means of completing critical incident training. Graduation to Level 6 requires being put in charge of a major project. This does not arise very often. Mr Martin believed ‘dual streaming’ made the work more complete with a lot more information being required. In 2004, traffic control training was particularly encouraged.

[83] Mr Martin described the role of the E-Developer which commenced in 2004. Four people in his depot perform the role which includes organising and informing developers of:

• Shutting off or turning on valves when work is being completed on mains;

• Tapping into water services while still under pressure (under pressure tapping or ‘hot tapping’ - for example for the installation of fire hydrants or sprinklers into a new building);

• Organising the chlorination of new water mains;

• Providing quotes on installation of products such as a fire service;

• Working out costing on some jobs that may need to be done by contractors;

• Checking the installation of new water mains to make sure they comply with our specifications.

Sometimes plans need to be amended and meetings take place with development companies.

[84] Mr Martin described a typical working day in 2010. There are weekly team briefs, monthly Safety and Business Improvement meetings. He described his role in using the FRM system to identify work, plan and assign tasks and imputing information continuously throughout the day. Leaking pipes and main repairs are performed by a team of two. Several methods are used to detect a leak. Excavations are used for 90% of jobs.

[85] Mr Martin said that there are a number of safety concerns using an excavator. Care must be taken in confined spaces so as to ensure that damage is not done to other pipes, mains or services. Digging must be very precise and careful attention is required to ensure the excavator does not tip over. Manual digging had none of these pitfalls.

[86] Mr Martin undertook electrical safety training in 2005 and it is much more complicated than in 1991. In ‘mains to meter’ repairs, oxy and silver soldering qualifications are required and also a new tool - a Vega Crimping Gun, is used for installing new sections of piping. This replaces the need for flame. Mr Martin was trained in the use of the jetter.

[87] All employees can be qualified and perform chlorination but must be qualified by attending a two day course to work with dangerous goods. Mr Martin detailed the process of tablet chlorination of reservoirs (viewed on inspections). Safety equipment must be checked. New water mains must be chlorinated and tested (also seen on inspections).

[88] Mr Martin described his duties as an active supervisor and, in particular, the organisation of planned work. He is also required to advise and assist the field crews with difficult or complex problems and dealing with customers. Occasionally he is required to complete complex Higher Level projects and gave two examples he had been involved with in 2010.

[89] In a reply statement, Mr Martin said there was limited use of Aquaphones from 1988 and they were rolled out in 1992. Rapid Water Identification is not limited to a few employees. At his depot, eight employees are trained for it. Mr Martin agreed that there was less reliance on heavy manual labour. However, employees are better trained, are more skilled, work more efficiently and with better results.

[90] Mr Martin disagreed that electrical safety is no more complicated than in 1991. There are more steps in the process and new technology to deal with. There are specific skills in the competency program with six various types of procedures. Employees are trained in understanding electrical circuiting, how electricity gets into pipes and what needs to be done to avoid danger. It involves additional skills and responsibility and is not merely ‘thinking’ about safety.

[91] Mr Martin disagreed that FRM does not require detailed computer skills. Employees must undertake training courses, have support manuals and the work is far more complex than the paperwork. It is not a five minute exercise, but requires setting up, checking and updating of the system.

[92] Mr Martin said that prior to 2005, employees were not trained in traffic control plans. Contractors are not requested because the situation is too difficult, but because it means more cost and time when submitting plans. It is not just about ‘common sense’ but requires extra skills. Mr Martin said that prior to seven years ago there was no Safe Work Method Statement Book dealing with traffic control plans. Mr Martin said that since plumbers were no longer employed, production employees are required to do their own welding. Confined spaces has always been a feature of the work. Mr Martin conceded that jobs are now safer, but they are more complicated.

[93] Mr Martin said that employees are required to work in confined spaces and do welding in confined spaces. Mr Martin added that employees can be required to work ‘one out’ on ‘mains to meter’ work.

[94] In cross-examination, Mr Martin was asked to distinguish Level 6 work with the other levels. He agreed that moving through the levels occurs by way of obtaining additional skills and knowledge without the need to apply for, and be selected for a vacant position. Mr Martin also agreed that FRM provides a means whereby the same information which was recorded on paper, is entered into an electronic device.

Respondent’s Evidence

[95] To avoid repetition, I shall not attempt to reproduce descriptions of the work of the employees or other associated matters which have been earlier referred to and is not the subject of any contest between the parties. Generally, each of the Sydney Water witnesses dealt with a particular aspect of the employees’ work with which they were most familiar.

[96] Mr Raymond David Ferrier’s statement was not disputed and he was not required for cross-examination. Mr Ferrier has been employed by Sydney Water since 1990 and has been employed in human resources and industrial relations for over 30 years. Mr Ferrier reproduced a folder of industrial instruments and related documents which have applied to the production employees since 1984 and tabulated the percentage wage increases which have been granted to employees since 1994. Mr Ferrier also annexed to his statement a review undertaken by Sydney Water according to schedule 6(a) of the Agreement.

[97] Mr Douglass Stuart Hobart is responsible for occupational health and safety matters for the Maintenance Division and is involved in work in relation to electrical safety. He has been employed by Sydney Water for 31 years and is a qualified electrician.

[98] Mr Hobart described the incident in 2005 when a civil maintenance employee was electrocuted whilst undertaking a ‘mains to meter’ repair. He agreed that prior to this, electrical safety had not received sufficient attention. Arising from this incident, and after consultation with WorkCover, a number of changes of work practices were implemented. These included:

(a) a two day training course for employees dealing with electrical safety in ‘mains to meter’ work (delivered in mid to late 2005).

Mr Hobart said the training is at a basic level to ensure employees easily understand the safety risks and how to protect their safety. Refresher training and reassessments are maintained to keep employees up to date.

(b) A two level Work Instruction was issued to all employees in February 2005 on how to perform ‘mains to meter’ work safety, taking account the risk of electricity. This became the Safe Work Method Instruction which has been implemented since first introduced in 2005.

(d) A second form of control is the use of bridging conductors. The first conductors used had a spring loader / alligator clip but these were made safer by having a hook over the pipe then a screw which is screwed in to prevent the clamp being ‘kicked’ off the pipe.

(e) An additional safety measure was introduced in mid 2005 which involves the use of electrical testing known as Ezy-Volt. This is a hand held tester that detects the presence of electricity by earthing one of the probes and touching various locations.

(f) In 2009, a further testing procedure was introduced.

[99] Mr Hobart believed that these measures were solely introduced in the interests of safety following the 2005 incident and are not highly complex.

[100] Mr Hobart responded to Mr Francis’ statement concerning the complexity of the processes as follows:

a) The SWMS is 8 pages for water services repair work and 3 pages for water main works;

b) Both SWMS 21 and 22a repeat the same mandatory requirements of inspection of equipment, inspection of worksite, isolate flow of water and notify customers. The employees have always had to check their equipment, check the worksite, manage the flow of water and deal with customers;

c) SWMS deals with safety procedures for three work tasks the employees perform;

d) Each task has two options of control;

e) There is a common safety methodology for each task. They are not greatly different processes (but there is a subtle change for main tap replacement with the use of bridging saddle).

[101] Mr Hobart deposed that it is a matter of identifying the location where electricity flows through a pipe which needs to be repaired and then using bridging conductors to create a path so that the electricity is diverted from the work area. He agreed that the processes required the workers to have knowledge about their safety and how best to divert an electrical flow.

[102] Mr Hobart did not agree with Mr Martin, Mr O’Shea and Mr Hamill that electrical safety is much more complicated than in 1991. He agreed there is a stronger focus on safety and more training. However, it does not require an understanding of complex electrical circuits. He did not believe that the electrical safety requirements involve additional skills and responsibility.

[103] In further evidence in chief, Mr Hobart said the development of the screw type bridging conductor arose from the 2005 incident.

[104] In cross-examination, Mr Hobart agreed that he had never been a maintenance employee, but he had been involved in electrical maintenance. Mr Hobart accepted that he had no knowledge of what had occurred in respect to clamping prior to 2005 or what was expected of employees in the field in 1991. He agreed that the new training is to provide employees with skills to be exercised by them in the field and this involves applying controls.

[105] Mr Richard John Reidy has been employed by Sydney Water for over 30 years and is presently a Contract Officer in the Civil Delivery Business. This involves him:

a. managing contractors who check water mains for leaks and report any faults to Sydney Water for repair;

b. undertaking some leak detection work from time to time when requested; and

c. undertaking training on leak detection when required.

[106] Mr Reidy’s statement dealt primarily with leak detection processes. Mr Reidy had previously been employed as a Specialised Leak Detector. However, the specific need to employ leak detectors was eliminated in 1990 and leak detector work was taken up by maintenance employees. This involved a 10 day training course. A training manual was put together in 1990.

[107] Mr Reidy agreed that there is skill involved in interpreting the sound emanating from the use of the Aquaphone which was introduced in 1991. Different sounds are conveyed depending on how far away the source of the leak is and taking account of traffic and other noises.

[108] For at least 10 years employees have been using a Correlator to assist in leak detection. Training involves a demonstration by the supplier. Mr Reidy said that two to three years ago an insulated listening stick was introduced. Mr Reidy said that not all employees would use listening devices to detect a leak and they are not used all the time, as there are many occasions where leaks are obvious.

[109] In cross-examination, Mr Reidy said that the 1990 training manual is presently being replaced by a new training package which is currently being put together and being ‘fine tuned’.

[110] Mr Reidy detailed the nature and use of the Aquaphone and the Correlator. He agreed that in the early 1990s the testing for sounds was done by using a metal rod to the pipe and listening for different sounds.

[111] Ms Jennie Kirstin Thompson has been in her role for the last seven years. Ms Thompson outlined Sydney Water’s obligations under the New South Wales Occupational Health and Safety Act 2000 (‘OH&S Act’). Ms Thompson said that each production employee receives a safety induction folder on commencement of employment (it was annexed to her statement). It contains various Safe Work Method Statements, Traffic Control Plans and Material Safety Data Sheets. In addition, employees receive specific training in other areas such as electrical safety, use of excavators, jetters and chlorination etc.

[112] Ms Thompson generally supported the respondent’s other evidence, that new control measures and work practices in respect to electrical safety was implemented purely for safety reasons. The wider use of excavators, backhoes and jetters was similarly for safety reasons and injury management issues. The previous use of shovel and jackhammers and rods was physically demanding and resulted in many injuries. Injuries have now been significantly reduced.

[113] Ms Thompson agreed that prior to 2005, traffic control training was not coordinated or well done. In 2005, for safety reasons, the RTA implemented a Blue, Yellow, Red and Orange licencing system. This required production employees to have appropriate licences so as to perform their work safely in the vicinity of traffic.

[114] In further evidence in chief, Ms Thompson described the role of the Dial Before You Dig organisation, an external body which maps underground services and makes these details available to utilities, councils and individuals. The service normally takes up to two days.

[115] In cross-examination, Ms Thompson gave further evidence of her knowledge of changes to traffic plans, electrical safety, the use of excavators and the development and delivery of training plans for the employees. She agreed that the use of excavators is more efficient, but still involves some dangers which mean the operators must develop different skills, rather than simply digging holes with shovels.

[116] Mr Paul Dominic Ferguson has been employed by Sydney Water for about 30 years and commenced employment as a maintenance man (now production employee). He is presently Project Manager, Network Technicians Trial.

[117] In describing how ‘chokes’ were removed, Mr Ferguson said he had used both rods and jetters. He also believed the wider use of jetters was for safety reasons and improved efficiency. Two employees are required rather than three and the time taken is usually less than for the rods. However, he claimed that the work and tasks undertaken are largely the same. He believed the use of the jetter involved no significant additional skills for employees. He believed the Union’s evidence about the difficulties in using the jetter, was ‘debatable’ as training occurs for all equipment and plant.

[118] Mr Ferguson did not believe the Rapid Water Identification process introduced in 2009 involved any significant change in the work normally undertaken. The sample water is merely collected and urgently sent to the laboratory for testing. Water sampling has always been undertaken by employees. Mr Ferguson did not believe that the reductions in the workforce have adversely impacted on the job of the employees.

[119] Mr Ferguson summarised his evidence as follows:

Sydney Water has introduced new work processes which are safer and much more efficient. The use of new tools and technology has reduced the reliance on heavy manual labour which was inefficient and time consuming labour. Production Employees are also now better trained. All these changes mean that Production Employees are now able to complete their work quicker than what was previously the case and as such, the reduction of employees has not, in my view, had a negative impact on Production Employees.

[120] In further evidence in chief, Mr Ferguson described the various pressures required for the use of the jetters and the daily checking process of the equipment. Similar safety precautions and checking were required when using the metal rods. In cross-examination, Mr Ferguson agreed that the jetter operators must turn the pressure up or down, in appropriate circumstances. He said it is less physically demanding, more efficient, safer and uses less operators.

[121] Mr Ferguson outlined the process of leak detection and the repairing of a leaking pipe.

[122] Mr Geoffrey James Vickers has been employed by Sydney Water for 34 years. He started work as a Construction Labourer, then as a Maintenance Plumber, Foreman and Manager. He is now Manager, Scheduling. In 1991, he was Production Unit Manager for Water, supervising some 70 to 120 production employees. He has also worked on the committees which developed skills and competencies for production employees.

[123] Mr Vickers agreed that prior to 1993 ‘mains to meter’ repairs were performed by in house plumbers. In 1993, production employees undertook the permanent repair themselves because:

• In nine out of ten jobs, the repair was a simple process and did not require a plumber;

• Other than welding, Production Employees did all the other work and had the skills to do a permanent repair; and

• It was my knowledge and experience that a significant portion of Production Employees at the time in any event had welding skills from other work experience or trade qualifications.

[124] As a result, production employees undertook two days of training in the safe use of welding equipment. He agreed that welding does require some additional skill. In 2009, the Vega Crimping Gun was introduced which reduced the use of welding equipment and made the job easier and safer (the work was viewed on inspection).

[125] In summary, Mr Vickers said that changes to electrical safety and chlorination, the wider use of excavators and jetters were for safety and injury management reasons. Changes in terms of skill were ‘subtle’. Mr Vickers believed the FRM did not introduce new systems and processes but replicated existing systems and processes electronically. He concluded by saying:

In my view, Production Employees perform the same job today as they did in 1991. That job is now performed in a safer manner and using better equipment and tools. Sydney Water has a stronger focus on safety and there is better communication with Production Employees.

...

In my view, the changes made have not added additional skills and responsibilities to the job other than a need to safely perform their job tasks.

[126] In oral testimony, Mr Vickers elaborated on his evidence concerning welding and the Vega Crimping Gun. The latter was more suitable for thin pipes. However, the industry standards have reduced a lot of the welding required, particularly in housing. Mr Vickers did not believe that welding in confined spaces was a common occurrence.

[127] Mr Ian Andrew Nisbet has been employed in a supervisory or management role for 25 of his 30 year’s service with Sydney Water. Mr Nisbet agreed that single person FCR work was implemented in 1995. Its purpose was to better deal with customer demands and allow Sydney Water to appropriately respond to breakdowns by having a trained employee assess the severity of the fault and organise maintenance and support. However, not all production employees undertake FCR duties (usually three to six FCRs per depot). Mr Nisbet said that FCR work does not constitute a significant change to the work and does not require increased levels of skills and responsibilities. He said that single persons working one out has always been a feature of the work. FCR’s are only at Levels 3 to 6.

[128] Mr Nisbett agreed with other of the respondent’s witnesses as to the effect of changes in the work of employees since 1991. He said:

In my view, in comparing the job of Production Employees in 1991 to today, the main differences are:

a. A stronger focus on customer service;

b. An awareness of the work environment and surrounds;

c. A focus on risk assessment prior to starting and during work activities; and

d. A heavy focus on occupational health and safety responsibilities, and I would say this is the biggest change to work since 1991 with a far greater focus on workplace safety.

[129] In oral evidence, Mr Nisbet was shown the 1995 Agreement which, in part, said in respect to single person response:

Where a single person is required to respond and make an assessment on a single stream then a level 3 in training for a level 4, or a level 4, 5 or 6 employee will be required to attend normal and after hours work in accordance with Occupational Health and Safety policies and legislation.

Mr Nisbet did not agree that electrical safety required an understanding of complex electrical procedures.

[130] In cross-examination, Mr Nisbet acknowledged that he had never been a ‘hands on’ production employee.

[131] Mr John Lyle Campbell is a Team Manager and has worked for Sydney Water for 34 years. He has been involved in civil maintenance activities since 1980 as a maintenance employee, supervisor and work plan co-ordinator. Mr Campbell provided a detailed analysis of the FRM project. He described the project in two phases; the first is for the dispatching of jobs and recording job processes and the second, is to extend FRM to include mobile maps and other documents. Mr Campbell coordinated the FRM training of all production employees. He described FRM as a programme that is contained in a mobile device similar to a laptop but without functions such as USB, internet or email. He believed it largely replicated the work processes and data recorded from hard copy.

[132] Mr Campbell detailed the system in use prior to 1991, which included two way radio communication, job cards and other paperwork and sometimes verbal reporting.

[133] Mr Campbell said the FRM training involved one day basic training and one day user training. Mr Campbell provided a demonstration of FRM to the Tribunal. Mr O’Shea supplemented this demonstration. The process moved through:

Signing on by user name and passwords;

Accessing a work order in order of priority;

Notification that the team is on route to the job;

Notification of arrival at the job;

Enter information concerning

(a) risk assessment

(b) Health and Safety

(d) Completing any permits;

Accessing maps to identify location of Sydney Water assets;

Entering details of assets and properties affected;

Entering details of shut down;

After repairs are completed, ensuring that entering the time water is turned back on, and

Completing work order by entering details of the job including material and plant used, cause of problem, restoration details and labour used (previously recorded on job cards).

[134] Mr Campbell said mobile documents are now kept electronically. These include Safe Work Method Statements and other work procedures. Mr Campbell noted that ‘super users’ are no longer used and a review of FRM Phase 2 is taking place. Mr Campbell said that he no longer hears complaints from employees about the amount of paperwork. He believed that FRM is simple and easier to use, replicates the paperwork and improves work processes and practices. In cross-examination, Mr Campbell said that when FRM was rolled out some employees had difficulties, but they were assisted in the field by a supervisor. However, these ‘super users’ are no longer necessary.

[135] In oral evidence, Mr Campbell described the process above by reference to a demonstration of the FRM equipment. Mr O’Shea demonstrated the SMS messaging function, the host inquiry feature (details of work previously done in the location and not previously accessible), the creation of a new work order in the field, raising a hazard, permits, traffic control plans and identification of property rebates. Mr O’Shea said that generally there is now an increased amount of information available to the field staff.

[136] Mr Ivan Joseph Pavlovec commenced employment as a maintenance man 22 years ago and has since held various supervisory and management positions. Mr Pavlovec’s evidence dealt primarily with the use of excavators and backhoes. He holds licences for front end loader / Backhoe / Skid Steer. Mr Pavlovec generally agreed with the Union’s evidence as to use of shovels, picks or jackhammers prior to 1991, although some production employees at the time held licences to operate excavators and backhoes. However, Sydney Water has never required employees to hold a licence and the competency is elective and voluntary.

[137] Mr Pavlovec said that in 2002 the use of excavators and backhoes became more wide spread, both for safety and efficiency reasons. Mr Pavlovec accepted that the ability to use an excavator or backhoe involves some skill, but is not ‘highly skilled’ or ‘complex’ and not a significant change. Whether a backhoe or shovel is used, it is still the same job; digging a hole. They both require care not to damage or harm surrounding property and persons. He compared the operation of a backhoe to driving a car and said that proficiency comes with experience. Mr Pavlovec summarised his evidence as follows:

The use of excavators and back hoes has made the work of Production Employees more efficient, less onerous and safer. To use an excavator or back hoe does involve the obtaining of some additional skills. However, obtaining those skills is not difficult. You can be trained in the use of excavators and or back hoes. Once trained, operating an excavator and back hoe is like driving a car. It is a motor function that stays with you. The proficiency at which people use an excavator and or back hoe varies, just like the proficiency of different drivers.

[138] In cross-examination, Mr Pavlovec said he had not actually operated a backhoe or excavator for the last 10 or 15 years. Mr Pavlovec agreed there were new and additional risks in operating an excavator or backhoe. If there is uncertainty about the location of any services or cables, hand digging is still used. He agreed that the Dial Before You Dig service is not always available in time and the services are not always where they are supposed to be. Mr Pavlovec also agreed that over the last 10 years, Telstra has been laying fibre optic cables in close proximity to Sydney Water assets.

[139] Ms Maria Elizabeth Steel commenced employment with Sydney Water in 2005. She was unavailable for cross-examination. By consent, her statement was admitted on the basis of an acknowledgement that she does not hold any ticket or licence in traffic control duties. Her comments as to higher level projects were not pressed. Ms Steel’s evidence dealt primarily with the training and accreditation of employees in traffic control. She said about 100 production employees hold a Red ticket and seven an Orange ticket. It was Ms Steel’s view that undertaking traffic control duties does not involve the use of greater skills by employees. In the past it was based on common sense and now with training it is ‘informed common sense’.

[140] Mr Jeffrey Micallef has been employed by Sydney Water for 38 years; firstly, as a Survey Draughtsman and more recently as Business Project Manager. Mr Micallef was involved in developing a business case for FRM - the tender evaluation process, consultation with stakeholders, design, construction and implementation. I will not repeat Mr Micallef’s evidence as to how the work was performed prior to 1991 and subsequently using FRM, as the evidence is replicated elsewhere in this decision.

[141] Attached to Mr Micallef’s statement were the various 2007 job cards used by employees prior to 1991. In 2000, Sydney Water introduced Work & Asset Management System (WAMS). Mr Micallef said that the aim of FRM was:

Job scheduling and dispatch processes;

The provision of information in the field to perform the job;

Data quality by collecting at the source rather than have someone enter the data days after the work reading job cards complete by someone else; and

address employee complaints about too much paper work and delays in contacting schedulers.

[142] The design of FRM was to:

Follow the usual work flow process that previously existed (i.e. job allocation, travelling to the job, provision of job information, undertake risk assessment, identify resources, perform the work etc);

Replicate data entry fields in the job card on the FRM system (I do accept that some data entry fields were added to the FRM but this was minimal);

Make FRM user friendly and not require any detailed computer skills to operate.

[143] Mr Micallef said that FRM was introduced in two stages. Training was as earlier described in Mr Campbell’s evidence. The Procedures and Manual documents were annexed to Mr Micallef’s statement.

[144] Mr Micallef said that the computer only contains FRM and no other programmes - unlike an office computer. He said that feedback from training did not disclose that employees found FRM difficult or complex and did not require detailed computer skills. Mr Micallef did not believe employees would spend 45 minutes a day using FRM. He described it as navigating through an electronic form of paperwork. In oral evidence, Mr Micallef did not believe Mr O’Shea’s description of new and expanded functions was correct. It was simply replacing what was always required. Mr Micallef gave further evidence on the training on FRM and the initial deployment of ‘super users’. Mr Micallef said that using FRM will, over time, reduce the time that was previously required in filling out paperwork.

[145] In cross-examination, Mr Micallef conceded that navigating through the FRM system does involve computer skills. Mr Micallef agreed that the job cards changed significantly from the early 1990s to 2007. He agreed that his evidence referred to practices in place, just prior to the introduction of FRM and not in the early 1990s.

[146] Mr Micallef said he was not aware of any expectation that once Phase 2 had been implemented some work in the field would take over work previously done by administrative staff in the depots.

[147] Mr Leslie Kenneth Dallis commenced employment with Sydney Water in 1992 as a production employee. He is now a Traineeship Coordinator. Mr Dallis’ evidence dealt primarily with the chlorination process. This occurs at reservoirs, after a water main is repaired or in new pipes. In 2002, Sydney Water changed from gas chlorine to liquid chlorine for safety reasons and tablets are used in the reservoirs. Level 4 employees and higher are trained in this work, which involves a two day course. The training focuses on the need for chlorination, the risks and safety issues, the characteristics, safe storage and handling of chlorine.

[148] Chlorination of a new pipe was observed on the inspections. Mr Dallis described what the employees do in this task and when chlorinating a reservoir. Mr Dallis believed that the job performed by production employees compared to 1991 has not resulted in significant additional skills or responsibilities. It is the same job, but performed by different, safer and more efficient methods. He highlighted the areas of electrical safety, use of excavators and jetters and traffic control. He said that the main change, other than in safety, is the use of computers (FRM). He accepted that employees have had to become skilled and accustomed in the use of computers, even though FRM is ‘user friendly’.

[149] In oral evidence, Mr Dallis described using an excavator as being similar to driving a car. In cross-examination, Mr Dallis agreed that in 1992 the current electrical safety requirements were not in place. He agreed that in 1992 there were not many excavators being used and jetters were not widely available. Traffic licencing requirements were not in place and the chlorination was performed by specialist chlorinators. ‘Mains to meter’ repairs were previously done by plumbers and leak detection was performed by specialists. New listening devices were introduced. The E-developer role was not in place in 1992.

SUBMISSIONS

[150] In written and oral submissions, Mr A Slevin of Counsel relied on a number of authorities in respect to the principles to be applied by the Tribunal in regard to work value; Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award, Re (1962) (NSW) AR 250; Public Hospitals Nurses’ (State) Award (No 4) (2003) 131 IR 17; Mineral Sands (State) Award (1980) (NSW) AR 107; BHP Steel (AIS) Pty Ltd - Hot Strip Mill Restructured Ironworker Award [1996] NSWIRComm 49; Australian Liquor, Hospitality and Miscellaneous Workers Union re: Child Care Industry (Australian Capital Territory) Award 1998 and Children’s Services (Victoria) Award 1998 - re: Wage rates [2005] AIRC 28; Sydney City Council v Federated Municipal & Shire Council Employees Union of Australia (NSW) (1989) 28 IR 317; Federated Storemen and Packers Union of Australia v Monroe Australia [Print G8263, 30 June 1987 per Donaldson C]; Alcoa of Australia (Vic) Award, [Print G3738, 15 July 1986 per Boulton J]; Copper and Non-Ferrous Metal Industry Consolidated Award 1975 (1986) 302 CAR 527; Austral Pacific Fertilisers Ltd (Agricultural Chemical Industry) Award 1984, [Print G6405, 4 February 1987 per Leary C]; Australian Public Service Assn v Public Service Commissioner of NT, [Print G6934, 1 April 1987 per Griffin C].

[174] Mr Murphy concluded that the employees are doing the same job, but by more efficient and safer work methods. No case is, or can be, established for a wage increase on work value grounds. No significant net addition to the work has been established.

[175] In oral submissions, Mr Murphy put that it was not the case that there was no potential for ‘leap frogging’ or ‘flow on’ arising from any increase awarded in this case. The same work is performed by local government employees outside of the Sydney area and other groups within Sydney Water will be watching, very closely, at the outcome of this case.

[176] Mr Murphy rejected Mr Slevin’s reliance on the Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award in 1962 which only dealt with the value of the work, not whether the work had changed significantly.

[177] Mr Murphy also rejected reliance on the Health and Community Employees Psychologists (State) Award, as there was no deficiency in the pay structure here as was identified in that case. In addition, the conclusions from the evidence in this case are contested. Sydney Water in this case, gave careful consideration to each of the changes identified by the Union and determined that neither individually, nor collectively, did these changes meet the strict test of work value.

[178] Mr Murphy submitted that there has been a tendency in this case for the Union to blend, merge or blur the distinction between work value and productivity and efficiency. Mr Murphy gave the two examples of the use of jetters and FRM as being the same job, only a different means of doing it. It is easier and safer, but does not result in a significant net addition to the value of the work.

[179] Mr Murphy did not resile from the fact that the work has changed, but these changes were specifically recognised in the creation of a six level pay structure that allowed employees to progress to higher wages through the acquisition of new and additional skills. As such, there can be no ‘double counting’. Mr Murphy described the claim of around 7% for all levels as producing a ‘double bunger’ re-grade with some employees jumping as many as eight salary steps in the IPS. More particularly, there has been very little said about the work of Level 1 employees who would jump two salary steps. Mr Murphy said that not all employees have been affected by all the changes identified by the Union. Nor do all the employees perform the changed work, all of the time (chlorination for example). He noted that not all employees were licenced to work excavators and other tasks were electives, such as the use of jetters. The E-Developer role was restricted to Level 4 and higher.

In reply

[180] Mr Slevin eschewed the prospect of ‘flow on’ as this case was quarantined by the express terms of the 2009 Agreement.

[181] Mr Slevin said that the parties’ agreement acknowledged the work of the employees should be reviewed on work value grounds. He added that the Union was not pursuing ‘dual streaming’ as part of this claim.

[182] Mr Slevin rejected the inference that employees have already been compensated for the development of skills and continuous improvement in current rates of pay. It would be contrary to the express provisions in the various Agreements and Awards since 1991, which identify the reasons for those wage increases. He identified these as follows:

a. The 1995 Agreement at tab 4 of Mr Ferrier’s folder of industrial instruments provides for increases linked to a number of matters (See clause 5.4) including dual streaming, starting finishing and meal breaks in the field, single person responses and business review. As stated the ASU has dropped any claim for an increase for dual streaming and has distinguished the single person response from the first call responder role that is an expansion of that role.

b. The wage increases in the 1997 Agreement (Tab 5) are dealt with at clause 9.1 and were based on productivity, cost reductions, accident reduction and customer satisfaction formulae which are specific and are set out in detail at clauses 10,11, 12 and 14 respectively. These were increases linked to meeting business targets rather than work value.

c. The 2% increase in the letter behind Tab 6 was granted for “in recognition of your efforts over the past year and some of the work ahead of us”.

d. The 2000 enterprise agreement dealt with organisational changes and performance and dealt with matters such as the introduction of flexible work arrangements, excessive accruals of entitlements and the rolling up of leave loading into rates.

e. The Sydney Water Award 1994 review which was conducted in 2001, behind tab 8 provided for increases across Sydney Water in accordance with the applicable wage fixing and award review principles (see clause 2).

f. The 2003 Enterprise Agreement behind tab 9 also applied across the board and involved commitments to further award review and the implementation of the Acirrt report of November 2002 (see clause 3.5).

g. The Sydney Water Award 2004 behind tab 10 was the outcome of the review conducted in accordance with the 2003 agreement. It applied to all Sydney Water employees.

h. The Sydney Water Agreement 2006 provided increases across the board.

None of the agreements, save for the 1995 dual streaming increase and limited introduction of one out work, dealt with work value changes for production employees.

[183] Mr Slevin said that the submissions that the Union’s case was deficient because of the lack of direct evidence on Level 1 employees, departs from the parties’ agreed approach that the levels would be grouped (1-2), (3-4) and 5-6).

[184] Mr Slevin put that the Union does not seek wage increases merely because of increased responsibilities in the areas of health and safety. The changes have amounted to the acquisition of new skills and knowledge.

[185] Ms Slevin relied on the Water Waste Management Integrated Competency Standard Profile which applied until June 2007. This Profile disclosed that:

a. There is minimal reference to electrical safety in this technical Manual. Each of Levels 1, 2, 3 and 4 include a generalist safety module entitled Implement Current Legislation, Work Practices and Standards which incorporate an element “Take responsibility for the health and safety of self and others.” See 1.27, 2.29, 3.17 & 4.16. These are all generalist modules and include no direct reference to electrical safety.

b. There is no reference to FRM. The competency unit “Operate a personal computer” is only included as an elective at the end of the manual.

c. The use of plant including backhoe and mobile crane are included only as elective at the end of the manual. There is no reference to the use of excavators.

d. Jetters are only referred to as elective units at the back of the manual.

e. There no (sic) direct reference to traffic control other than in the context of the generalist OH&S units described above.

f. There is no reference to drivers licences in this manual other than as an elective at the end of the manual.

g. There is no to (sic) chlorination other than as an elective at the end of the manual.

h. There is no reference to MR/HR licences other than as an elective at the end of the manual.

i. There is no reference to mains to meter repairs in this manual.

j. There is no reference to leak detection other than as an elective at the back of the manual under the title “operate pipe and cable detection equipment”.

k. There is no reference to first call responders.

l. There is no reference to rapid water detection.

[186] These documents demonstrate that the Skills Development Program did not provide a means for gaining wage increases as asserted by Sydney Water.

CONSIDERATION

Principles of Work Value

[187] Both Counsel helpfully provided the Tribunal with a number of authorities of both the New South Wales and Federal industrial relations systems which have considered the principles of work value. For present purposes, these principles are relevantly similar and have been consistently applied by State and Federal tribunals over many years. Both Counsel referred me to the following passages from Re Public Hospitals Nurses (State) Award (No 4) (2003) 131 IR 17:

[188] At par [16]:

16 The work value principle allows for award wages to be increased if it can be demonstrated that there have been changes in the nature of the work, skill and responsibility required or the conditions under which work is performed to such an extent that the changes constitute a significant net addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification. The principle refers to this test as a "strict test". There must be no likelihood of wage leap frogging either within the internal award structure or against external classifications to which that structure is related.

[189] At par [18]:

18 These requirements under the work value principle impose a significant burden on an applicant, particularly because of the strict test requiring the applicant to demonstrate a "significant net addition to work requirements so as to warrant the creation of a new classification or upgrading to a higher classification". It might be asked how such a burden exists in a decade or more of rapid and continuing workplace change and the almost universal impact that phenomenon has had on employees. But as the principle makes clear, changes in work by themselves may not justify an increase in wages. Some changes bring about a net reduction in work requirements. Others merely reflect the evolving nature of the particular occupation where skills or responsibilities are lost and new ones gained without producing a net addition to work requirements. In many occupations, particularly professional occupations, change, and the requirement to cope with it by coming to terms with new methods and new technology, is an inherent and accepted characteristic of the employment and rarely will this evolutionary process attract extraordinary wage increases under the work value principle. In this respect, we note the observations of Fisher P in Re Medical Officers – Hospital Specialists (State) Award (1990) 33 IR 79 at 84 where, after referring to the work value principle, his Honour said:

One of the problems with the application of the “strict test” to professional or managerial employment lies in the nature of the change. Change must be accommodated, being an essential part of what professional practice is all about. It does not follow therefore without more, that changes even spectacular changes, necessarily fall within the work value principle.

Secondly it is to be understood that new techniques and procedures bring with them their own advantages. For every new technological advance there is likely to be somewhere an inferior technology in part or in whole abandoned. Superior technologies give superior results and tend to free practitioners from laborious, uncertain and stressful practice. Changes, subject to habitation, do not necessarily make things more difficult or more demanding. They may, but equally they may remove problems, decrease anxieties and uncertainties and as well be more rewarding and more productive.

[190] At par [20]:

20 A tribunal charged with determining whether the tests under the work value principle have been met must carefully sift through the material that has been placed before it and separate out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation. An objective assessment then has to be made as to whether the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. The change is to be measured from the last time wages were increased on the basis of work value or from the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989, whichever is the later. An assessment is then to be made as to how that change should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.

[191] In Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award at 278, the New South Wales Industrial Relations Commission in Court Session described the task of assessing work value as:

We have referred earlier to the sense in which the Commission’s wage-fixing function can be regarded as the valuation of work. In so far as it does involve the valuation of work, the function is not limited to the ascertainment of the market value or of any absolute value discoverable by other means. The function, truly understood, is to consider all relevant features of the work, to take into account all relevant material, including such as will furnish a guide to fair valuation, to bear in mind the contentions of the parties to the arbitration, and, in light of these things, to fix amounts which the tribunal itself deems to be just and reasonable to meet the circumstances of the case. The amounts so fixed will represent the tribunal’s view of the case.

[192] In Australian Liquor, Hospitality and Miscellaneous Workers Union re: Child Care Industry (Australian Capital Territory) Award 1998 and Children’s Services (Victoria) Award 1998 - re: Wage rates, the Full Bench of the Australian Industrial Relations Commission (AIRC) said at par [190]:

[190] Previous decisions of the Commission suggest that a range of factors may, depending on the circumstances, be relevant to the assessment of whether or not the changes in question constitute the required "significant net addition to work requirements". The following considerations are relevant in this regard:

Rapidly changing technology, dramatic or unanticipated changes which result in a need for new skills and/or increased responsibility may justify a wage increase on work value grounds.^[84] But progressive or evolutionary change is insufficient.^[85]

An increase in the skills, knowledge or other expertise required to adequately undertake the duties concerned demonstrates an increase in work value.^[86]

The mere introduction of a statutory requirement to hold a certificate of competency does not of itself constitute a significant net addition to work requirements. It must be demonstrated that there has been some change in the work itself or in the skills and/or responsibility required.^[87] However, where additional training is required to become certified and hence to fulfil a statutory requirement a wage increase may be warranted.^[88]

A requirement to exercise care and caution is, of itself, insufficient to warrant a work value increase.^[89] But an increase in the level of responsibility required to be exercised may warrant a wage increase on work value grounds.^[90] Such a change may be demonstrated by a requirement to work with less supervision.^[91]

The requirement to exercise a quality control function may constitute a significant net addition to work requirements when associated with increased accountability.^[92]

The fact that the emphasis on some aspects of the work has changed does not in itself constitute a significant net addition to work requirements.^[93]

The introduction of a new training program or the necessity to undertake additional training is illustrative of the increased level of skill required due to the change in the nature of the work.^[94] But keeping abreast of changes and developments in any trade or profession is part of the requirements of that trade or profession and generally only some basic changes in the educational requirements can be regarded, of itself, as constituting a change in work value.^[95]

Increased workload generally goes to the issue of manning levels not work value.^[96] But, where an increase in workload leads to increased pressure on skills and the speed with which vital decisions must be made then it may be a relevant consideration.^[97]

[193] In my view, the principles to be applied in this case may be summarised as follows:

The onus rests on an applicant to demonstrate that the changes in the nature of the work, skill and responsibility or the conditions under which the work is performed constitute a significant net addition to the value of the work. This is a strict test and not all changes in work will be relevant to the assessment of work value. Changes of an evolutionary nature or changes to work for occupational health and safety reasons or to improve the safety of employees and the public, might not necessarily be characterised as work value changes. There must be no double counting where wage increases have been based on previous work value considerations.

[194] In addition, I accept the general proposition that a requirement to gain increased knowledge, expertise and experience through formal and in field training, in order to perform the work required to be done, can be taken into account as a relevant work value change.

[195] It seems to me that the word ‘significant’ is the key to whether the ‘strict test’ has been satisfied. The Macquarie Dictionary’s definition is 1. Importance: consequence. 2. Expressing a meaning; indicative. 3. Having a special or covert meaning; suggestive.

[196] Liddy J in Mineral Sands (State) Award at 114, described the word as follows:

...’Significant’ does not necessarily mean ‘major’, but ‘to a meaningful degree, not insignificant, not immaterial, not trivial’. To be significant a factor does not have to be dramatic, sudden or eye-catching. A change, as in this case, may occur subtly, gradually, even covertly but on examination prove to be significant.

[197] Hungerford J in BHP Steel (AIS) Pty Ltd - Hot Strip Mill Restructured Ironworker Award, noted that changes may be ‘cumulatively significant’ but individually incremental in nature. I am satisfied that this description is appropriate to describe the many changes in work identified and agreed upon in this case. In addition, I note that Mr Vickers described some of the changes as ‘subtle’.

[198] Moreover, in my opinion, the use by all employees of FRM is one of the significant changes identified in this case. In this respect, I adopt what was said by the Full Bench of the AIRC in Federated Storemen and Packers Union of Australia v Monroe Australia [Print G8263, 30 June 1987 per Donaldson C]:

(a) There is an increasing utilisation of VDU’s throughout commerce and industry generally by a variety of classifications represented in the workforce.

(b) There are a variety of uses for, and reasons for the adoption of, VDU’s as an alternative to pre-existing manual systems or systems involving lesser technology.

(d) Justification for increased remuneration is dependent upon increased demands on skills and/or responsibilities associated with the complexity of functions and information being processed by the system behind the VDU.

(e) To date, decisions have been made on a case by case basis according to the circumstances and merit of each case.

[199] The thrust of the respondent’s evidence, and the principle basis of its opposition to the Union’s claim, was that the tasks performed by the employees has not changed since 1991. While the premise of this conclusion is largely correct, it is a fundamental misunderstanding of what constitutes the test of whether an increase in the value of the work performed by the employees measured against the Work Value Principle, is justified. Nor is the test watered down or discounted by matters which go to whether the work of employees is less dangerous, or more efficiently performed.

[200] The correct test is whether the skills and/or responsibility of the employees who perform the task/s (put simply, the way it is done), or the conditions under which the task/s are performed, have changed significantly such as to prove an increase in the value of the work. Most work value cases, as have been commonly understood and long accepted in the industrial community, do not result in a change of the task or tasks to be performed. To give a classic example: the task/s of John Fairfax’s employees in 2010 is the same task/s that were performed by its employees in the 1950s. It was the task of producing a newspaper. However, no one could seriously suggest that there has not been a seismic change in the way the task/s of producing newspapers has developed in 60 years. This had required employees to attain new and different skills, undertake retraining and work in different conditions.

[201] So it is - although less dramatic, I agree - with this case. The task of maintaining and repairing Sydney Water’s assets may not have changed in 20 years, but it does not necessarily follow that there has not been a change in the value of the employees’ work. It seems to me, therefore, that Sydney Water has approached its case premised on a fundamental misconception of what the case is truly about. That is not to say, however, that the Union has necessarily proved the onus it bears in demonstrating that the requirements of the Work Value Principle have been satisfied, such as to warrant a reclassification of the employees concerned to the levels it seeks, or at all. Nor do I reject out of hand, the evidence brought by Sydney Water from its managers who have had many years of experience, notwithstanding Mr Slevin’s submissions that none of them had any recent ‘hands on’ experience. In reality, the evidence brought by both parties as to the work performed in 1991 compared to today was largely undisputed; as is obvious from the Agreed Statement of Facts. The controversy arises as to what conclusions are to be drawn from the evidence in the context of the Work Value Principle.

[202] It is to these matters which I will now turn. The first task of the Tribunal is to establish the datum point from which the changes are to be measured. A pertinent consideration in this respect might be said to be the Cullen decision which relevantly expressed the proposition that the increases of 5% and 3%:

“... take into account and are in recognition of all increases allowable under both the current wage fixation principles of the Australian Industrial Relations Commission and the Industrial Relations Commission of New South Wales, including work value and structural efficiency considerations and includes all past productivity claims up to the time of the making of the Awards.”

[203] Despite Mr Murphy’s submission, it cannot be ignored that the 1994 case was presented to Cullen J as a consent position of the parties. Obviously, there was no detailed evidence before his Honour as to the nature and extent of the work value changes. There were no inspections of the work. These general wage increases were awarded across the entire workforce, with no differentiation between the extent and effect of the changes within discrete work groups or classifications. It seems to me that the decision of his Honour can be distinguished on these bases, noting in particular, another time honoured industrial principle - consent applications have little precedential value when compared to comprehensive and hotly contested arbitral outcomes.

[204] For these reasons, I reject the submissions of Counsel for Sydney Water that the correct datum point for measuring any changes in the work is the Cullen decision. In any event, the approach adopted by the parties, both in the earlier negotiations between them and during the course of preparing and presenting this case, appears to demonstrate that it was accepted, at all relevant times, that 1991 was the correct datum point for measuring the changes. In this respect, I note that in all of the respondent’s evidence the various witnesses made comparisons between 1991 and 2010. It is somewhat late in the day to alter that agreed position after so much time and effort was put into the case by both parties on the basis of the agreed understanding as to datum point. Accordingly, I adopt 1991 as the date from which the work value assessment should be made.

[205] In my opinion, the following changes, since 1991, in the skills, responsibilities and conditions under which the work is performed, may be relevantly taken into account when assessing the work value of production maintenance employees for the purposes of this case. I have attempted to list them in a rather loose order of significance.

FRM

[206] While it is true that many of the functions undertaken by employees on the FRM system, replicates what was previously reported through two way radios and recorded on paper through job cards, the universal use of FRM in the field is a fundamental change in how the work is performed. It has required additional training in the acquisition of computer skills and expanded an employee’s knowledge and skills in properly understanding the use of FRM as the primary tool for the electronic reporting of all the necessary information of Sydney Water jobs, including, inter alia, risk assessments, mapping functions, identifying valves for closure, affected properties and properties eligible for rebates. It is far too simplistic to say that FRM involves merely ‘navigating through an electronic form of paperwork’. FRM is one of the more significant of the changes identified in this case and, it is particularly relevant to note that FRM is used by all employees at all six levels.

Use of Jetters

[207] There is no doubt that the use of jetters is more efficient, less physically onerous and safer than the old hand rodding system. However, it is not just about making the task of clearing chokes safer and more efficient. This change represents a fundamentally different way of performing the work of clearing chokes. Employees must undergo training and exercise different skills in operating high pressure equipment. It requires the employees to have knowledge about the operation and maintenance of different machinery, checking of fuel, oil and water pressures and ensuring filters, hoses and attachments are able to be operated effectively.

Electrical safety

[208] Employees are now required to have a greater awareness of the dangers associated with working on ‘main to metre’ pipes which may carry potentially lethal electrical currents. This requires additional training, ability to conduct risk assessments and knowledge of Safe Work Method Statements. It is not just about the work being safer. These requirements were not as thorough or sophisticated in 1991 and now require a greater and different level of skill and expertise to be demonstrated at all levels of the pay structure.

Use of excavators

[209] Today, there is a much wider use of excavators and backhoes than in 1991 and, consequently, a greater number of employees who are required to obtain the appropriate licences and develop their operating skills in the field. There is no doubt that this has reduced the manual (and more onerous and risk prone) nature of the work and improved efficiency. On the other hand, I do not accept the proposition that operating an excavator / backhoe is similar to ‘driving a car’. Nor do I accept that it is merely about making the job safer. There is a requirement on employees to exercise greater care and skill in safely working heavy, expensive equipment in confined areas which may be in close proximity to other cabling, other services, roads and traffic and the general public.

‘Mains to Meter’ Repairs

[210] It is accepted that since 1993 this work once performed by plumbers, is now performed by the employees. It involves training and knowledge of oxyacetylene, welding and solder usage through Safe Work Method Statements. This is a new and additional skill and responsibility for the employees which demonstrates a significant net addition to the value of the work performed by the employees so trained.

Leak Detection

[211] Employees at Levels 3 to 6 regularly perform leak detection using more sophisticated equipment such as Aquaphones, listening sticks and Correlators, than the previous crude crowbar detection technique. While I accept that the task performed is similar, the different and more sophisticated leak detection techniques represent an additional and different skill than was previously required, in that leak detection was performed by specialist teams.

E-Developer Role

[212] This role was created in 1998/9 and involves Level 4 and above employees who rotate through the role. There are two in each depot (one for waste water and one for water). The role involves the use of the computer in organising planned shutdowns, trials, disinfecting water mains, conducting audits and negotiating with contractors. This role involves a significant level of skill, responsibility, knowledge and personal skills and a multiplicity of functions and duties. It is a significant additional work value component for the relatively limited number of E-Developer employees when performing these functions.

First Call Responder (‘FCR’)

[213] Nominated employees (between one and three per depot) on Levels 3 to 6 may be assigned as a FCR. Mr Nisbet’s evidence was that FCR work was implemented in 1995. I accept the evidence that the use of FCR became more widespread around 1997 and that it is not a full time role. However, it requires the employee to work alone and perform tasks such as leak detection, assessing and calling for appropriate response needs and customer liaison. I acknowledge that this involves a greater degree of responsibility and flexibility for the affected employees when performing the FCR role.

Traffic Control

[214] A far greater number of employees are now required to be accredited by the RTA in traffic control. These requirements were not as onerous in 1991 and employees must undergo training in order to obtain the various levels of accreditation. This does not amount to employees merely exercising ‘common sense’ when setting up traffic plans in the field. Ms Steel at least conceded it was now a more ‘informed common sense’.

Chlorination

[215] Chlorination work was previously performed by specialists. Training of general employees now involves the acquisition of different skills and responsibility in chlorinating reservoirs and new pipes. The previous use of gaseous chlorine, rather than liquid or tablets was more dangerous. While there are different skills required for specific designated employees, I do not consider this component to be a significant work value factor in this case.

Rapid Water Identification

[216] Production employees at Levels 3 to 6 are required to perform Rapid Water Identification. This role was not required in 1991. Employees collect water samples and undertake the initial testing of the samples for remittance to the laboratory. It is not a particularly difficult task or one which requires a high level of skill or training. Nevertheless, it is an additional task to the suite of duties that did not exist in 1991.

MR / HR Licences

[217] There is a greater requirement for more employees to drive larger trucks requiring medium rigid and heavy rigid licences. This involves further training and accreditation. It represents additional skills and responsibilities for the employees affected.

Compulsory Driver’s Licence

[218] Sydney Water requires all employees to have and maintain a driver’s licence. In 1991 there were designated drivers of Sydney Water’s trucks and other vehicles. However, I do not consider this requirement to be a significant influence in this case.

[219] More generally, I would conclude that the clearest demonstration of the changes which have occurred (albeit some being evolutionary) and their cumulative effect on work value, is the document entitled ‘Water and Waste Management Water Integrated Competency Standards Profile’ which was the manual to integrate water and waste water competencies to meet regulatory standards which applied until June 2007. I accept the conclusions about this Manual outlined by Mr Slevin in his reply submissions (see par 185).

[220] Balanced against the aforementioned changes, is the undisputed fact that the six level pay structure established in 1990 takes into account the fact that employees move through the structure by obtaining additional skills and responsibilities. However, it must be steadily borne in mind that this structure was introduced with the knowledge of the parties as to the skills and responsibilities which existed at that time. The structure does not, and could not, comprehend the changes, their extent or their intensity which has occurred since that time. FRM is an obvious example of this proposition.

[221] Mr Murphy undertook a detailed analysis of the relevant terms of Sydney Water’s Agreement and Awards since 1994, which speak of various objectives such as:

“Enhanced skills and career opportunities” (1994)

“Career enhancement and employability through developing people and their skills” (1997)

“Support for organisational change and continuous improvement” (2000)

“Agreed ongoing evaluation and accreditation processes” (2001 and 2004)

[222] Mr Murphy submitted that it could be inferred from this analysis that the employees have been compensated for the development of skills and continuous improvement. I reject this inference. Not only is it no more than inference, but aside from the Cullen decision which I referred to earlier, there is no reference, either implicitly or expressly, to the principles of work value in the earlier Agreements and Awards. Each of the instruments are to be analysed by reference to their express terms and not by importing a term which is neither expressed or available to be inferred. Moreover, the increases under these instruments were invariably available by consent arrangements across the workforce and applied uniformly across all levels of the IPS. This would tend to infer the opposite to what Mr Murphy contends. Unlike the present case, there was no discrete examination of the value of the work, by group, classification, section or trade.

[223] In addition, I find the analysis of comparing wage increases over the relevant period to CPI adjustments to be an arid and unhelpful exercise. I can find no basis to assume, by reference to the analysis earlier undertaken, that any of the increases during this time, disaggregated a component for the CPI. Moreover, it is highly likely (although I have not undertaken the actual exercise) that the total of increases above the CPI of 19.5%, generally reflected increases that occurred in this period across many other industries, which may or may not have included any reference to considerations of work value.

[224] One further general matter needs to be addressed. I accept unreservedly, that the changes, to which I have earlier referred, have impacted on the six levels of employees in varying degrees and sometimes, not at all. The roles of Rapid Water Detection, FCR and Leak Detection are examples of this and are only performed by Level 3 employees and higher. This reflects not only the acquisition of additional skills as employees move through the pay structure, but also demonstrates the self-evident proposition that in most work value cases, the impact and effect of every change in skill and responsibility will not always be the same for each employee or classification. In those circumstances, the relevant approaches to be adopted by the Tribunal are twofold. That is, the value of the work might result in the award of different outcomes for different groups or classifications or the Tribunal might adopt an ‘averaging’ approach so as to award the same percentage increases to all employees under review. I intend to adopt this later course. One of the attractions for doing so is that a single percentage increase will not disturb the existing relativities between the six levels in the pay structure, which have been maintained since 1990 and which appear to have been generally accepted as being relevantly appropriate since that time. In addition, a single percentage increase was the course pressed upon me by the Union; albeit at a much higher level than I am prepared to award.

[225] I would also address the respondent’s argument that the increases awarded by the Tribunal might have the potential to lead to a ‘flow on’ to other employees. In my view, this submission is misconceived. There was no suggestion, let alone evidence that the work of production employees was comparable to any other of Sydney Water’s employees. The fact that a specific leave reserved provision was agreed to in the 2009 Agreement fortifies the conclusion that the increases that might flow directly from a strongly contested arbitrated case, are in respect to a specific and discrete section of the workforce. Consequently, to the extent it is necessary for me to say so, the outcome of this case can have no relationship to, or bearing upon, any other claim that might in future be advanced for other groups or classifications under the Sydney Water Agreement.

[226] There is one aspect of the respondent’s case with which I find myself in agreement. That concerns the alleged changes which occurred in the workplace through voluntary redundancies in recent years. In my opinion, these workforce reductions are not matters relevant to how the work is performed or under what conditions it is performed. The improvements in efficiency and improvements in technology (which are virtually universal across the workforce; albeit to varying degrees) will undoubtedly produce as a corollary the need to have the work performed by fewer people. However, I accept that this is a factor which goes to improvements in productivity; not work value. In my view, it cannot be a basis for a claim brought under the Work Value Principle.

CONCLUSION

[227] It follows, from the foregoing consideration, that I am satisfied that the Union has met the onus it bears in demonstrating that the changes in work, skill and responsibility of the civil production employees, since 1991, constitute a significant net addition in the value of their work. In short, the Union has made out their case justifying a wage increase for the employees on work value grounds. As earlier mentioned the extent of the work value changes is not uniform across all classifications. It varies between the six levels of the pay structure and does not impact upon them all at the same time, or to the same degree, when they undertake various functions, at different times, in the working day.

[228] However, I do not consider the changes I have earlier identified can be quantified such to warrant wage increases of between 7.1% and 7.8%, or an average of 7.4%. My assessment of the value of the changes, having regard for all the facts and circumstances described throughout this judgement, is 3% for all levels in the pay structure. The increases will apply from the first full pay period on or after today 25 February 2011. The parties are directed to correlate the 3% adjustment to the rates by reference to the next highest pay point in the Agreement’s Integrated Pay Scale (IPS). Any disagreement as to this exercise may be referred to the Tribunal for determination. To give formal effect to this decision, the parties are further directed to prepare a draft order of variation to the Sydney Water Enterprise Agreement 2009, pursuant to Pt 2-4 Div 7 of the Fair Work Act 2009. The draft order shall be forwarded to my Chambers within seven days, after which formal orders concluding this matter will be made in Chambers.

[229] Finally, I wish to formally record my thanks to Sydney Water’s managers and the Union’s members who contributed to providing the evidence in this case and who assisted in organising and participating in the proceedings, most particularly during the inspections.

DEPUTY PRESIDENT

Appearances:

Mr A Slevin of Counsel for the Union

Mr J Murphy of Counsel for Sydney Water

Hearing details:

2010
SYDNEY
8 9 10 11 12 and 22 November

Printed by authority of the Commonwealth Government Printer

Annexure 1

Annexure 2