Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/as Pacific National
[2016] FWC 4614
•12 AUGUST 2016
| [2016] FWC 4614 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Asciano Services Pty Ltd t/as Pacific National
(C2016/700)
DEPUTY PRESIDENT SAMS | SYDNEY, 12 AUGUST 2016 |
Application to have the Commission determine a dispute under an enterprise agreement – alleged dispute about matters arising under an enterprise agreement – abolition of supervisory roles – creation of new roles – whether the roles are relevantly similar – notification and consultation – jurisdictional objections – whether affected employees covered by the Agreement – alleged breaches of the Agreement – old and new roles not covered by the Agreement – no jurisdiction of the Commission – application dismissed.
BACKGROUND
[1] This decision will determine an application under s 739 of the Fair Work Act 2009 (the ‘Act’), filed by the Australian Rail, Tram and Bus Industry Union (the ‘Union’), to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the disputes settlement procedure of the Pacific National Bulk Rail Enterprise Agreement 2013 (the ‘2013 Agreement’ or ‘the Agreement’). The respondent to the dispute is Asciano Services Pty Ltd t/as Pacific National (‘Pacific National’ or the ‘respondent’).
[2] The dispute has its genesis in an announcement by the respondent on 20 November 2015, of its intention to restructure its southern service delivery functions, with the consequent abolition of a number of supervisory roles (Shift Manager) at Enfield, Clyde and Moss Vale, NSW and the creation of new roles; namely, Shift Leader, Shift Coordinator and Train Management Controller. The new roles were advertised internally and externally and some, but not all of the incumbents in the abolished roles were successful in applying for the new roles. The Union complained that it was neither notified of or consulted about the restructure. Therefore, Pacific National was in breach of the Consultation and Change provisions in cl 30 of the 2013 Agreement. The Union further contended that the affected roles were operational, co-ordination and supervisory roles (Support Stream) covered by Part C of the 2013 Agreement.
[3] The Union’s originating application identified one of its members, Mr Wayne Curle, as being directly and detrimentally affected by the restructure in that Mr Curle had applied for the new position of Shift Leader, but was unsuccessful. The Union contended that Mr Curle:
(a) met the selection criteria for the new position;
(b) was capable of carrying out the duties of the new position; and
(c) the duties of the new position were substantially the same as his former position.
[4] Pacific National had consistently told the Union that the duties of Mr Curle in his former role and the duties in the new roles, were not covered by the scope of the Agreement. This issue became the basis of the respondent’s jurisdictional objections to this application being determined by the Commission. I will come back to these matters later.
[5] Mr Curle’s position was made redundant and, notwithstanding that he was offered redeployment (allegedly at lower rates of pay, without salary maintenance), he was dismissed on 20 May 2016. As a result, the Union alleged that the respondent had breached a number of the 2013 Agreement’s provisions; namely cl 17 – Redundancy, cl 34 – Salary Maintenance, and cl 20 – Long Service Leave in respect to the calculation of Mr Curle’s termination payments. Pacific National denied any breach of the Agreement on the basis that Mr Curle was not covered by it. His terms and conditions were covered by a common law contract (known as an Appointment Agreement (‘AA’) with Fixed Annual Remuneration (FAR)). The AA was agreed to by Mr Curle on 6 September 2012.
[6] Notwithstanding the respondent’s jurisdictional objections, a conference of the parties was convened by the Commission on 6 April 2016. No agreement could be reached. The Union pressed for the arbitration of the dispute and requested the Commission make the following amended orders:
‘a. An order preventing the Respondent from terminating any Shift Managers on the grounds of redundancy prior to the Commission’s determination of this matter
b. An order requiring the Respondent restart the current redundancy process and consult with all relevant parties as required under the 2013 Agreement.
c. A determination that the positions of Shift Manager, Shift Leader, Shift Coordinator, Train Management Controller are covered under the 2013 Agreement.’
[7] Directions were issued the same day as to the jurisdictional objections of the respondent, such that they be determined as a preliminary matter. The matter was heard on 3 June 2016. Ms A DeBoos with Ms M Aitken were granted permission to appear for the respondent, pursuant to s 596 of the Act. Mr M Diamond, Legal Officer, appeared for the Union and Ms A Rose appeared for Professionals Australia.
Resolution of disputes under the Agreement
[8] The Agreement has somewhat novel and unusual dispute settlement arrangements. Let me explain. Clause 31 – Resolution of Disputes can be characterised as a general disputes provision which at subsection (iv)(c) provides for consent arbitration. The subsection is set out below:
‘(iv) If the dispute / grievance remains unresolved, a “cooling off period” of forty-eight (48) hours (excluding weekends and public holidays) will occur at this stage of the process. During this period, the parties may continue to have discussions at whichever level they regard as most likely to assist in resolving the dispute / grievance. The parties may agree, at this point, to utilise mediation to resolve the dispute.
(a) During, or at the conclusion of the cooling off period, either party may decide to refer the matter to a mutually acceptable independent mediator or the FWC for the purpose of conciliation of the dispute. The conciliation must occur as soon as reasonably practicable.
(b) Where a dispute / grievance is escalated to the point of involvement of either an independent mediator or the FWC in conciliation, the parties acknowledge the significance of this point being reached. Therefore, any recommendation made by the independent mediator or FWC in an attempt to assist the parties to resolve the dispute / grievance will be treated as highly influential.
(c) Where both parties agree, they may empower the mediator or member of the FWC to resolve the matter by arbitration.’
[9] However, the preceding clause (cl 30) dealing with consultation in respect to significant change, makes provision for the replacement of the dispute resolution steps in cl 31, and for a binding arbitration provision, where a party has failed to follow the notification and/or consultation process in the clause. Subclauses (i) and (j) are set out below:
‘(i) Right to Conciliation
Notwithstanding the above, once the notification has been provided or consultation has commenced in accordance with this clause, either party may notify FWC of a dispute, in accordance with Clause 31, with respect of the proposed change. In such circumstances, Clauses 31(b)(i) to (iv) need not be followed.
(j) Right to Arbitration
(i) Either party shall have the right to have FWA arbitrate a dispute arising under this clause in circumstance where a party has failed to follow the notification and or the consultation process outlined in Sub-Clauses (c) and (d) above.
(ii) The employees with their representatives shall have a further right to arbitrate a dispute where Pacific National Bulk Rail have introduced the change and the provisions of Sub-Clause (f)(i) have been enacted.’
Both clauses are set out in full as annexures A and B to this decision.
[10] Given the obvious distinction between binding and consent arbitration, one of the secondary pillars of the jurisdictional argument is which provision applies to the present facts and circumstances and ultimately to the dispute. Of course, this question will only arise if the Commission determines the first jurisdictional question by finding in the Union’s favour - that the 2013 Agreement applies to Mr Curle and his cohort.
The Agreement’s Classifications
[11] Underpinning the Union’s fundamental premise that Mr Curle was covered by the 2013 Agreement are the classifications found at Part C of the Agreement, under the heading Support Stream Classifications. For present purposes, Levels 2 and 3 are relevant and are in the following terms:
‘(b) Level 2 – Specialist Officer
Classification Level (Band) | Pay Rate | Description |
2.1 | $83502.58 | Employees at this level may be in a role with the same indicative responsibilities and accountabilities as Crew Coordinators: The following responsibilities are broad descriptors and this role encompasses the following responsibilities (but not limited to): Employees at this level should: • Ensure the Pacific National Bulk Rail’s division crew roster plans are deployed efficiently in order to meet short term requirements. • Manage divisional crew resource deployment on a live 24 hr 7 day a week basis and train other Employees as required. • To maintain accurate information regarding crew timekeeping into the crew database • Advise crew of next turn of duty |
2.2 | $90072.03 | Employees at this level may be in a role with the same indicative responsibilities and accountabilities as Crew Planners: The following responsibilities are broad descriptors and this role encompasses the following responsibilities (but not limited to): Employees at this level should: • Evaluate train program data and translate this into effective and efficient Train Crew rosters that maximise crew utilisation. • Conduct regular audits to ensure our processes and procedures are flexible and aligned to our changing service plans |
Classification Level (Band) | Pay Rate | Description |
2.3 | $10229.41 | Employees at this level may be in a role with the same indicative responsibilities and accountabilities as Operations Coordinators: The following responsibilities are broad descriptors and this role encompasses the following responsibilities (but not limited to): Employees at this level should: • Manage the development, co- ordination, implementation and monitoring of train service plans ensuring service delivery strategies, customer service specifications and other service obligations are achieved |
(c) Level 3 – Seasoned Specialist
Classification Level (Band) | Pay Rate | Description |
3.1 | $109,415 | This classification level applies to positions that have accountability for delivering high level specialist services within the frontline/operational level Bulk Rail DCC or SDC. In addition, this role does not encompass those roles as outlined in the Support Stream Classification’s Level 1 and Level 2 |
(i) There are currently no positions within Bulk Rail that fall within the scope of level 3 season specialist. Any employee who is salary maintained at level 3.1 at the commencement of this agreement will remain salary maintained at this level for the life of the agreement.’
[12] Set out below is the Scope Clause of the 2013 Agreement:
‘This Agreement shall apply to:
(a) Each of the parties; and
(b) Employees employed to perform work in positions with Pacific National within the Bulk Rail division that fall within the classification structure/s as set out in this Agreement.
This Agreement shall comprise both Part A and Classification Specific Sections which shall be read in conjunction with each other.
No employee engaged by Pacific National Bulk Rail under a Common Law Contract, performing work equivalent to the classifications contained within this agreement are to receive less than the applicable terms and conditions which apply to that classification, position or role.’
THE EVIDENCE
[13] The following persons gave written and/or oral evidence in the proceeding:
● Benjamin John Arscott, Human Resources Business Partner for Pacific National;
● Jeffrey Paul Crowe, Crew Scheduling Manager for Victoria and New South Wales for Pacific National;
● John Anthony Sain, Business Improvement Program Manager for Pacific National;
● Lizanne Bennett, Branch Organiser for the Union;
● Mr Curle;
● Kevin Thomas Pryor, Lead Freight Organiser for the Union; and
● Gregory John Cameron, Project Officer for the Union.
For the respondent (or the ‘objector’)
Mr Benjamin Arscott
[14] Mr Arscott’s role has a broad human resources management function which includes undertaking performance management and employment development and dealing with organisational change and industrial relations issues, including with enterprise bargaining. Mr Arscott commenced employment with Pacific National in September 2015, when the review of the Southern Regional leadership structure (the ‘Review’) was already underway. He joined the Project Team at the implementation and consultation stage and assisted with drafting communications to the workforce, conducting meetings with affected employees, drafting position descriptions for the new positions and organising and implementing the recruitment and redundancy processes for unsuccessful candidates.
[15] While not part of the research phase of the Review, Mr Arscott believed the Review identified a clear need for employees in leadership positions at the depots to be more focussed on people management. The existing structure restricted the employees’ ability to effectively manage operational crew, because of its focus on monitoring train movements while sitting at a computer. The train crew were not receiving the engagement or the communication required to complete their roles in an efficient and safe manner. Crew were reporting through the Superintendent and this distracted from the Superintendent’s primary duties.
[16] Mr Arscott said that after drafting the position descriptions, the consultation process with staff commenced. A memorandum was posted and provided to staff on 14 September 2015. It said:
‘We have decided that a review of the current Train/Yard Control and Supervisory functions is required for all of the Sydney Service delivery sites.
From Monday 14th September members of our Business Improvement team will be chatting to various employees of the site teams to build an understanding of the current Train/Yard Control functions.
The purpose of this review will be to understand where our operational and supervisory gaps are and to better align the service delivery and plan delivery functions.
Please note that the outcome of this review is likely to lead to change within the organisation, details of which will be communicated as matters progress.
If you have any further enquiries regarding the process or possible outcomes, please speak with your Site Superintendent or local HR representative.’
[17] Mr Arscott believed the workforce responded positively to the Review, as an earlier employee engagement survey had revealed dissatisfaction of the operational employees with the leadership of Shift Managers and Superintendents.
[18] Around 15 October 2015, Mr Arscott had responsibility for drafting the position descriptions for the three new roles of Shift Leader, Shift Coordinator and Train Management Controller. The position descriptions were designed to more definitively separate people management and leadership functions from the train and yard control functions at the depots.
[19] A second memorandum was distributed to all NSW/Victorian employees on or about 23 November 2015 advising of the new management structures. In the week prior, Mr Arscott had unsuccessfully tried to contact Mr Kevin Pryor from the Union.
[20] Mr Arscott deposed that 13 employees from the Clyde, Enfield and Moss Vale depots were directly affected by the Review. Mr Arscott conduced face to face meetings with each of the affected employees. Each meeting lasted for about 30 minutes. Mr Arscott explained how the new structure would operate and what each role would entail. He invited each employee to apply for the new roles and gave them an estimate of their redundancy entitlements. Four of the employees expressed interest in redundancy, as they were approaching retirement. Mr Arscott believed these meetings ‘went well’. Mr Arscott said that after the meetings, he and the Superintendent were in regular communication with the affected employees, which included responding to their questions.
[21] Mr Arscott said that the recruitment process commenced on 26 November 2015 and was closed before Christmas. Two Shift Managers from Moss Vale (including Mr Curle) applied for the Shift Leader role at Moss Vale. All but one of the affected employees from Clyde and Enfield depots applied for the new roles. In late December 2015, Mr Curle was advised that his application had been unsuccessful.
[22] The Union lodged a dispute notification with Pacific National on 1 December 2015 requesting that implementation of the Review cease and that the respondent consult under the terms of the 2013 Agreement. Pacific National responded and advised that the Review and its implementation were not covered by the Agreement and therefore there was no obligation to comply with the consultation clause in the Agreement (although Mr Arscott stressed that consultation had occurred with the affected employees).
[23] Mr Arscott believed that when Mr Curle commenced employment as a driver for Pacific National on 1 December 2003 he was employed under the Agreement. However, when he commenced employment as Shift Manager at Moss Vale on or about the 12 August 2012, Mr Curle signed a common law employment contract. A copy of that contract is annexed to this decision as Annexure C.
[24] Mr Curle lodged a dispute in relation to both his redundancy and unsuccessful application for the Shift Leader position. A letter was sent to him on 14 January 2016 advising that his redundancy payment was calculated in accordance with his contract of employment. The letter confirmed that the Shift Manager’s role and the new roles were not covered by the Agreement, but despite this, he had been consulted. A meeting between Pacific National, the Union and Mr Curle was held on 15 January 2016. Mr Arscott deposed that on 9 March 2016 he met with Mr Curle to advise him of his redundancy and provide him with his redundancy details and a list of current vacant positions. He asked him if he would consider redeployment as a driver. However, Mr Curle was not interested. A further meeting was scheduled for 23 March 2016.
[25] Mr Arscott said that Mr Curle’s redundancy payments were based on Asciano’s redundancy policy and his contract of employment calculations were at his rate of 3 weeks FAR (to a maximum of 52 weeks), the Short Term Incentive (STI) payment in accordance with the STI plan and long service leave under the Long Service Leave Act 1955 (NSW).
[26] On 21 March 2016 Mr Curle lodged a workers’ compensation claim for depression and anxiety. The claim was rejected by Asciano (it is a self-insurer) and Mr Curle remained on sick leave. He had not confirmed whether he accepts redundancy.
[27] Mr Arscott believed that the consultation process was designed with the employees’ wellbeing in mind. There were open lines of communication with all affected employees. Mr Arscott was unaware of any other complaints or criticisms from the workforce about the consultation process.
[28] In cross-examination, Mr Arscott said he had been involved with human resources management for about 4 years. He said that when he tried to contact Mr Pryor on 15 November 2015, he had left messages, but had not emailed him or sent him a letter. Nevertheless, he had spoken directly to the Union representatives on site.
[29] Mr Arscott was asked by Mr Diamond to identify the tasks of the former Shift Manager’s role which were people management tasks. He agreed a few of the tasks were potentially people management tasks, the majority were not and he was unsure about some others. Mr Arscott was also unsure whether the Shift Manager’s role was responsible for the development, implementation and monitoring of the train service plans. He was referred to the Level 2 Specialist Officer classification in Part C of the 2013 Agreement. Mr Arscott acknowledged that these responsibilities were set out in that job description.
[30] Mr Arscott was taken to the Position description for the Operations Coordinator role which was discussed in the 2012 negotiations. He acknowledged there was no reference to ‘people manager’ or ‘people supervisor’ in the key accountabilities for this role.
[31] In re-examination, Mr Arscott confirmed he had no role or involvement in the development of the Shift Manager’s role, as he was not employed by Pacific National at the time.
Mr Jeffrey Crowe
[32] Mr Crowe has been employed by Pacific National in a number of roles over 15 years. Presently, as Crew Scheduling Manager (in NSW), he analyses strategic and tactical workforce planning information in order to optimise the respondent’s labour and resources. This involves liaison with human resources personnel and depot managers. He has 20 direct reports.
[33] Mr Crowe was involved in negotiating the last four bulk rail enterprise agreements for Pacific National, with a particular responsibility as an expert in respect to rostering guidelines. Mr Crowe gave evidence concerning the 2013 Agreement negotiations. He said that the support staff covered by Part C of the 2013 Agreement and its predecessor 2009 Agreement, are the ‘non-operational employees’ who coordinate and manage resources within the business and meet commercial requirements. They are not involved in the day-to-day operations at the depots and many work out of the Divisional Control Centre (DCC) at Parramatta. To his knowledge, Shift Managers had not been provided with Notices of Employee Representational Rights for the 2013 Agreement.
[34] Mr Crowe said that the Part C classification descriptions were very broad and did not adequately specify which positions were covered by each level. As the Part C classifications did not describe the roles with responsibilities for the management and supervision of people, and were more related to technical or procedural matters, it was decided to remove Levels 2.4, 3.1, 3.2 and 3.3 from the 2013 Agreement. He added that the supervisory role under 3.1 was the ‘Live Run’ supervisor’s position located at Parramatta and that position was made redundant. It was the intention of the respondent’s negotiating team to raise these issues with the Union and the employees during the 2013 Agreement negotiations.
[35] It was Mr Crowe’s evidence that the Union later agreed to remove Levels 2.4, 3.1, 3.2 and 3.3 from the Agreement, meaning that Part C did not cover operational supervisors. However, by agreement, the salaries of supervisors were maintained at the 3.1 level. At a further meeting with the Union, Pacific National proposed new specific position titles: Crew Coordinator at Level 2.1, Crew Planner at Level 2.2 and Operation Coordinator at Level 2.3. At this time, these roles were held by non-operational support staff at Parramatta. Mr Crowe said there were no discussions about the classification of Shift Manager being under Part C of the 2013 Agreement.
[36] As to the present dispute, Mr Crowe said that the Union was involved in presentations to all staff in every depot in New South Wales, including where details of the proposed classification structure were discussed.
[37] Mr Crowe acknowledged that he was not involved in the Review, but understood its purpose. However, having considered the position description for the new Train Management Controller position (based at the depots) and Level 2.3 of Part C of the 2013 Agreement, which covers Operational Coordinators, he believed the two positions were different. The Level 2.3 classification makes no reference to the management of track or infrastructure maintenance and does not involve managing multiple networks – major activities of the Train Controller’s role. Mr Crowe also believed that both the Shift Leader and Shift Coordinator’s positions are supervisory roles responsible for the day-to-day leadership and management of operational staff at the depots and therefore not covered by the classifications in Part C of the 2013 Agreement.
[38] In cross-examination, Mr Crowe clarified his evidence that in the 2013 Agreement negotiations, Pacific National proposed that Levels 2.4, 3.1, 3.2 and 3.3 should be removed. While this was not agreed to by the Union, it was acknowledged that there were no supervisor positions at Parramatta. Mr Crowe said that these supervisors did not manage staff, but supervised train service plans from the Parramatta DCC.
[39] Mr Crowe said the 2013 PowerPoint presentation’s reference to the changes for support staff was a snapshot of the classification structure. Its purpose was to open up detailed conversations with the employees. He agreed that the presentation ‘did not mention the removal of people managers or people supervisors from the classifications.’
[40] Mr Crowe was not exactly aware of the former Shift Managers’ major activities and could not be more specific as to their functions at different locations.
[41] In re-examination, Mr Crowe was asked to clarify the earlier questions about Part C Table 2. The roles he referred to only applied at Parramatta, and nowhere else, because they involved managing service plans from a central location and not managing staff and train movements. The roles were in Part C and not Part B because they were support roles for the business. Generally Part B employees are operational roles at the depots. Specifically, the Crew Coordinator and Operational Coordinator roles are based at the Parramatta DCC.
Mr John Anthony Sain
[42] Mr Sain has worked for the respondent and its predecessor entity (the State Rail Authority), since June 1984. He has been in his present position for 2 ½ years. Mr Sain differentiated the roles and responsibilities of Shift Managers who work at an operational depot, and those who work at the non-operational DCC at Parramatta. Traditionally, the role of the depot Shift Manager involved 50% leadership and management responsibilities and 50% train and yard control duties. Obviously, the DCC Shift Managers have no train and yard control duties.
[43] Mr Sain identified the leadership and management functions of depot Shift Managers as including:
‘(a) providing oversight and direction to the employees in accordance with Pacific
National’s policies and procedures;
(b) delegating tasks and responsibilities;
(c) coordinating resources: including managing crew availability, qualifications, shift lengths and fatigue, scheduling meal breaks and managing leave;
(d) implementing operational and safe working procedures;
(e) providing guidance and feedback to employees where required;
(f) responding to incidents: notifying relevant authorities (emergency services, track owners, maintenance personnel) and internal Pacific National stakeholders;
(g) resolving conflicts or complaints that may occur on shift from time to time; and
(h) communicating regularly with internal Pacific National stakeholders, including the Superintendent.’
[44] Shift Managers’ train and yard duties at the depots include the following:
‘(a) managing train arrivals: checking all forecast arrival times, checking if planned or unplanned maintenance or provisioning is required, coordinating unplanned road availability, recording and graphing data;
(b) monitoring trains: managing delays, cancelations, changes to pathing, track works and maintenance;
(c) managing the communications between depot employees, train crew, customers, third party operators and the DCC;
(d) managing train departures: ensuring that all isolations are lifted and roads are clear, receiving and managing departure request, communicating with access providers, graphing departure times in multiple formats;
(e) compiling safe working documentation: yard handover, shift logs, car planner, network arrival and departure reconciliation reports and incident responses; and
(f) managing depot reports and records: documenting, recording and graphing all cancelations, delays, incidents, arrivals and departures.’
[45] As far as Mr Sain was aware, because Shift Managers are involved in significant leadership and management responsibilities, they have never been considered by Pacific National as employees covered by enterprise agreements. Support staff under Part C of the 2013 Agreement do not have responsibilities for the management of people, which is a critical aspect of the Shift Manager’s role. He understood that Part C classifications cover non-operational staff based at the DCC who support operational staff at the depots. Mr Sain distinguished the management responsibilities of employees under Part C, who manage train service plans and service delivery strategies. This is not a management of people and resources function. It is fundamentally different from working to a train service plan, which is designed to influence customers, external service providers and suppliers.
[46] Mr Sain described the reason for the Review of the southern train and yard control functions and what the Review identified. It demonstrated that depot Shift Managers were spending considerable amounts of time at a computer graphing data, recording statistics and communicating with stakeholders by phone. As a result, their critical leadership duties were not being satisfactorily performed. This had a negative effect on the culture of the business and presented possible safety risks. Mr Sain believed that these competing functions resulted in train movement delays. The Review management team decided that the Shift Manager roles at Enfield (4), Clyde (4) and Moss Vale (6) should be redesigned, so that train and yard movement duties, were separated from the leadership functions.
[47] Mr Sain said three new roles were proposed as follows:
(a) Shift Leader: responsible for general oversight, supervision and management of the shift;
(b) Train Management Controller: responsible for the train control, employed at Enfield depot only but remotely responsible for train control for Clyde and Moss Vale depots, control tasks only: and
(c) Shift Coordinator: responsible for undertaking parts of the previous Shift Manager role, but as a centralised function at the Clyde depot only.
[48] The incumbent Shift Managers were to be displaced and given the opportunity to apply for the new roles at each depot as follows:
‘(a) 5 Shift Leader roles at Enfield;
(b) 5 Shift Leader roles at Moss Vale;
(c) 4 Shift Coordinator roles at Clyde; and
(d) 5 Train Management Controllers at Enfield.’
[49] Mr Sain referred to the implementation phase of the Review and the consultation process with the affected employees. As his evidence is largely corroborative of Mr Arscott’s evidence, I will not repeat it here.
[50] Mr Sain summarised the roles and responsibilities of each of the new positions and said that none of the three positions fell within Part C of the 2013 Agreement. He attached the full position descriptions for these positions to his statement.
[51] In summary, Mr Sain said:
‘The Shift leader position is a supervisory and management role that’s over (sic) purpose is to lead, manage and direct employees in the day-to-day operations of the activities of the depot. The Shift Leader is primarily responsible for providing on-shift leadership and during the course of a shift the role involves:
(a) ensuring safe working procedures are followed;
(b) leading, delegating and supervising the performance of all tasks and activities undertaken at the depot;
(c) managing HR and IR issues, including performance management; and
(d) managing any incidents or issues that may arise.
…
On the basis of the overall purpose of the role and its key accountabilities, the Shift Leader role would not fall within the classification of Part C of the pacific National Bulk Rail Enterprise Bargaining Agreement 2013.
The Shift Coordinator role was created for the Clyde depot only.
The Clyde depot has a particularly high volume of rail traffic and Nathan Riley – Superintendent (Clyde) asked for an additional position to be created to assist with leading, overseeing and implementing the established train control functions for safety reasons.
The Shift Coordinator has no responsibility for developing the train service plains or service delivery strategies. The role is focused on providing leadership support and management assistance. …
The overall purpose of the Shift Coordinator role is for leadership support and would not fall within the classifications under Part C of the Pacific National Bulk Rail Enterprise Bargaining Agreement 2013.
The Train Management Controller (TMC) role is a technical role that is responsible for ensuring that train movements and track isolations occur safely and when they need to.
The TMC function has been centralised and consolidated so that all request for train movement and track isolations in the Southern Region are managed remotely by TMCs at the Enfield depot.’
[52] In cross-examination, Mr Sain acknowledged that he had never worked as a Shift Manager. He agreed that during the consultation phase he had asked Shift Managers to draw up position ‘process maps’ in order to identify the specific tasks of their roles. When referred to these ‘process maps’, Mr Sain was asked whether the numerous identified tasks and accountabilities were people management tasks. All but a handful were not people management tasks. Mr Sain agreed that in the key accountabilities of the Operations Coordinator’s role the words ‘people manager’ or ‘people supervisor’ are not mentioned. He also agreed that in Part C Classification Level 2.3, there is reference to responsibility for monitoring and implementing train service plans.
[53] In re-examination, Mr Sain said that the ‘process mapping’ exercise demonstrated that the existing Shift Managers were spending 50% of their time on train management to the detriment of their people and leadership functions. This impacted on the business’s engagement with its customers.
For the Union
Ms Lizanne Bennett
[54] Ms Bennett was not required for cross examination. She had a different recollection to Mr Crowe concerning the meeting on 26 March 2012 which discussed Part C of the Agreement. She said the classification structure in Part C was not discussed at that meeting. However, it was discussed in later bargaining meetings. Ms Bennett insisted that at no time had she or the RTBU delegate agreed to the classification structure in Part C. What was agreed was that the classification structure in Part C would be discussed during the life of the 2013 Agreement.
[55] In a reply statement, Mr Crowe said it was his recollection that changes to the Part C classification structure were discussed throughout the negotiations in 2012. His reference to the Union agreeing to the changes arose because the Union had agreed that the complete document, containing the changes to Part C, would be taken to the employees for a vote.
[56] Mr Crowe said that fundamentally, the change to Part C was that Level 2.4 was removed. This was the Level which applied to the ‘Live Run’ Supervisors. These were the only supervisors ever covered by the Agreement. The practical effect of their removal was that no supervisory roles were to be covered by the 2013 Agreement.
Mr Wayne Curle
[57] Mr Curle commenced employment as a Terminal Operator at Moss Vale on 1 December 2003. In mid-2004, a restructure of the Moss Vale depot resulted in the replacement of Terminal Operators with Shift Supervisors. At the time, Mr Curle applied for one of these positions, but was unsuccessful.
[58] Mr Curle’s evidence was that Shift Supervisors in 2004 performed the following functions:
‘a. to keep crews up to date on any safety or working matters
b. co-ordinate call car movements
c. arrange relief crew lift up and lay back with RCCs (After Hours Roster Clerks)
d. liaise with Parramatta DCC (Divisional Control Centre)
e. commence investigation of incidents, reports, statements, etc.’
[59] Mr Curle was often engaged as a relief Shift Supervisor during this time, until the title of the role changed in 2006 to Shift Manager. He said that at the time, the following tasks were performed:
‘a. to keep crews up to date on any safety or working matters
b. co-ordinate call car movements
c. arrange relief crew lift up and lay back with RCCs
d. liaise with Parramatta DCC
e. commence investigation of incidents, reports, statements etc
f. updating spreadsheets for the Superintendent Russell Thompson’s on time running reports.
g. maintaining the sick leave spreadsheet
h. similar tasks allocated by Superintendent Thompson.
As time progressed the workload of the Shift Manager changed. Additional tasks taken on were:
a. the signing on an signing off of crews
b. recording of fuel figures for all trains
c. issuing and recording of radios
d. updating several other databases and spreadsheets.’
[60] It was Mr Curle’s evidence that at no time prior to 2009 were Shift Managers required to manage the control of train movements; nor was this task referred to in their job descriptions.
[61] On appointment to the position of Shift Manager in 2012, Mr Curle was required to sign a common law contract that Pacific National called an Appointment Agreement. Mr Curle believed that his conditions were to be equal to, or better than those in the Agreement and his rate of pay was similar to that in the Agreement.
[62] Mr Curle said that at first, the train control duties were manageable, but as time progressed and further changes were introduced, the job of train control was almost a full time task. It was a crucial role for the business and its obligations under the Australian Transport Safety Bureau’s regulations.
[63] Mr Curle and his Shift Manager colleagues used a daily checklist as a guide to their duties. This did not include unforeseen circumstances, such as absenteeisms, emails and phone calls and mandatory phone hook ups with other depots. He said that train control duties took up a large amount of time, although it was irregular. He estimated that five hours in a twelve hour shift were dedicated solely to train movements. On an average night shift, he was involved with 80-120 phone calls and on an average day shift, 200 phone calls.
[64] It was Mr Curle’s belief that the 2015 restructure arose from additional train services from the Peppertree Quarry Cement Works and increased production at the Berrima Cement Works, with the consequent increase in workload and pressure.
[65] Mr Curle set out his views of the consultation with him and the other Shift Managers in mid-2015. On 11 September 2015, Mr Curle and his colleagues were informed of the restructure and the replacement of Shift Manager by a Shift Leader. Train control was to be moved from Moss Vale and the Shift Manager position at Clyde was to be replaced by a Shift Coordinator. They were told they could reapply for their positions and that the purpose of the restructure was to remove train control workload from the Moss Vale employees to enable them to perform the Shift Manager duties. They were also told they could remain as a Shift Manager, without train control duties, or accept voluntary redundancy. Mr Curle wished to remain as a Shift Manager. Mr Curle alleges that he was assured by a Superintendent of keeping his job if he reapplied.
[66] Mr Curle attended a one on one meeting with Mr Arscott on 26 November 2015. He told Mr Arscott he was intending to reapply for his position, as he wished to remain with Pacific National until his retirement. On 27 November 2015, five positions at Moss Vale and five at Enfield were advertised internally and externally. Mr Curle said that up to 18 December 2015 the recruitment process was a staged automated online exercise. On 18 December 2015 he had a personal interview with Mr Arscott only. On 23 December 2015, the Deputy Superintendent telephoned him to say that he had been unsuccessful in applying for a new role.
[67] As a result of a dispute with Pacific National being lodged by the Union, a meeting was held between management and the Union on 15 January 2016. Mr Curle challenged Pacific National’s view that the new roles were significantly different, due to the loss of train control functions. Mr Curle insisted that train control had never been part of, or mentioned in his job description. When the Union representative asked why Mr Curle had not secured a role, Mr Arscott simply said that he did not meet the criteria. When pressed on what criteria, Mr Arscott would not be specific. There were no discussions about alternatives to redundancy.
[68] Mr Curle attended a further meeting with the Union and Management on 9 March 2016. He was presented with a letter, a list of vacant positions and redundancy information. Mr Curle said that all of the vacancies required him to move his home and family from Moss Vale or travel 3 hours a day for a 12 hour shift. The other alternative was reverting to a Train Crew role, resulting in a salary reduction of $50,000 per annum. Both options were unacceptable.
[69] In cross examination Mr Curle was asked about his interactions with train crew in his former role. Much of the information came from the DCC. His evidence was that when the Superintendent was not on duty, he/she was still on call. Mr Curle agreed that train management and control duties increased over time, requiring additional tasks and ultimately ending up being the full time part of the job. Mr Curle said that with his driving experience, he was sometimes required to advise drivers about any of their issues.
[70] Mr Curle agreed he was keen to progress his career when he accepted the Shift Manager role in 2012. He did not fully read the contract he was offered at the time. However, he signed it, on instruction from his supervisor, and on the understanding he would not be worse off than being under the Agreement. Mr Curle accepted his pay was much higher and hours of work were different and he received a bonus which was not available under the Agreement. His bonus last year was $15,000. Each year he received a letter advising of a pay increase based on his performance. This was different to automatic pay increases under the Agreement. Although Mr Curle accepted he was in a management position, he believed other conditions such as annual leave, long service leave and redundancy were covered by the 2013 Agreement. He believed that his entitlements were underpinned by the Agreement. Mr Curle conceded that he was not involved in the bargaining process for the Agreement.
[71] In re-examination, Mr Curle agreed that the Superintendent had primary responsibility for overseeing the staff. Mr Curle acknowledged that the terms and conditions of the Agreement did not apply to him as Shift Manager.
[72] In reply statements from the respondent’s witnesses, Mr Arscott said that Mr Curle was unsuccessful in his application for Shift Supervisor because he lacked the leadership and interpersonal skills necessary for the role. He had interviewed poorly and displayed little interest in the recruitment process. Mr Arscott said that there was no option for him to remain as Shift Manager, without train control duties.
[73] Mr Arscott could not recall Mr Curle telling him that he wished to stay with Pacific National until his retirement. He disputed Mr Curle’s opinion that he would suffer a $50,000 reduction in his income by reverting to Train Crew. The average earnings for a Level 5 driver at Moss Vale from April 2015 – April 2016 was $123,416.79.
[74] Mr Crowe said that the Shift Supervisor role included more duties than Mr Curle had identified, including fatigue management and supervision of staff. Shift Managers were ultimately employed to manage Train Crews at depots, including performance management responsibilities.
[75] Mr Sain believed the role of Shift Manager was about managing people, including working with crew and managing them to deliver a safe shift. Shift managers do not always manage and control trains. Mr Sain reaffirmed that the Review had identified that up to 50% of the Shift Manager’s role was taken up by train control functions.
[76] Mr Sain said that whenever he had transferred employees to Appointment Agreement roles, he did not advise them that their conditions would be equal to, or better than the Agreement.
Mr Kevin Pryor
[77] Mr Pryor has been involved in enterprise agreement negotiations on behalf of the Union with various freight rail companies, including as lead negotiator for the 2013 Agreement. It was Mr Pryor’s evidence that at a meeting on 26 March 2012, there were no negotiations or agreement with the Union to remove supervisory positions from the coverage of the 2013 Agreement. Discussion involved removal of ‘Live Run’ positions, as the roles were no longer required. Salaries were to be maintained for these affected positions.
[78] Mr Pryor recalled other discussion about changes to the classification structure at Part C of the Agreement. Communications between Ms Bennett and Ms Obeid for Pacific National involved the respondent proposing changes to the classification structure, which were not agreed to by the Union. Mr Pryor had suggested that the parties discuss the Part C classifications during the life of the 2013 Agreement. Around 10 December 2012, Mr Pryor received and accepted assurances from Ms Obeid that coverage of employees in the classification structure in Part C would not change and would be discussed during the life of the 2013 Agreement. Part C was finalised on that basis, so that the parties could focus on finalising other outstanding matters.
[79] Mr Pryor agreed that Mr Arscott had attempted to contact him about the 2015 review and restructure. This was the usual process. However, in this case there was no written notification to the Union of the proposed restructure.
[80] In cross-examination, Mr Pryor confirmed that during the negotiations for the 2013 Agreement, the Union did not agree to remove the ‘Seasonal Specialist’ classification from Part C. Mr Pryor claimed that changes were made from the 2009 Agreement in respect to Part C which, although the Union did not agree with them, were voted up by employees in the vote for the 2013 Agreement approval. Mr Pryor acknowledged that the term Shift Manager is not mentioned in Part C, notwithstanding it was a position that existed at the time. Mr Pryor confirmed that the Union had not made a specific claim to include Shift Managers in the 2013 Agreement at the time.
[81] It was Mr Pryor’s belief that Shift Managers had received a notice of employee representational rights for the 2013 Agreement and had voted for the Agreement. His understanding was that the only classification removed from the 2009 Agreement was the ‘Live Run’ classification. Everyone else was still covered by it.
[82] In a reply statement, Mr Crowe denied that there were no discussions in 2012 about the removal of Supervisory positions from Part C. He noted that Mr Pryor was not at every meeting. Mr Crowe disputed that Part C contains classification structures applying to supervisory employees. There were changes to the Part C classification structure and it was agreed the draft document would be put to the employees for a vote.
Mr Gregory John Cameron
[83] Mr Cameron began his rail career as a Junior Station Assistant in Dungog on 7 June 1982. During his employment he has held various honorary positions with the Union. After accepting voluntary redundancy in July 2015, Mr Cameron is now a Project Officer for the Union. As a workplace delegate, Mr Cameron was involved in negotiations for the five agreements covering his employment, the last being the Pacific National Coal NSW Enterprise Agreement 2013. He also claimed a wider knowledge of negotiations for agreements covering other Pacific National employees.
[84] Mr Cameron believed that in recent years, the Union had raised issues with attempts by Pacific National to circumvent enterprise agreements by the use of common law contracts. He had been involved in various disputes about the application of the Appointment Agreements. When Pacific National first started offering Appointment Agreements to employees in 2002, assurances were given to the Union and the employees as follows:
‘ Employees who are offered Appointment Agreements remain entitled to the conditions set out in any applicable certified agreement. Indeed, I confirm that all of these employees, who are former FreightCorp employees, will be entitled to cast a vote in the ballot for approval of the Certified Agreement we are currently negotiating.
- The Appointment Agreements do not involve any departure from agreed processes or reduction of employee’s terms and conditions of employment.
- Under no circumstances will Pacific National tolerate any coercion or pressure being applied to employees to sign Appointment Agreements. This has been very clearly communicated to all of our managers. Indeed we will consider disciplining any manager who has not complied with this instruction.’
[85] It was Mr Cameron’s view, that as Pacific National split up and changed its business model on a number of occasions, the Union had been intent on maintaining a clear support stream classification covering administrative, supervisory, technical and professional employees up to a certain pay level. This was reflected in the agreements as being deliberately broad so as to capture the wide variety of roles of this nature. Mr Cameron rejected Mr Sain’s evidence that Pacific National had never considered employees with management responsibilities to be covered by enterprise agreements. He said that the 2013 and 2009 bulk rail Agreements and other Pacific National Agreements do cover such employees.
[86] Mr Cameron stated that there is an established practice of written notification to the Union of significant workplace change. No such written notice was received in this case. In any event, Mr Pryor was not even the correct contact at the Union for the support employees. Mr Cameron denied that the support roles in Part C were non-operational roles and noted that other depot operations fall within support classifications descriptions, such as administrator and personal assistant. He believed the DCC roles were also 24 hour operational roles, which support the business.
[87] Mr Cameron did not accept that the Union had consented to any changes in the Part C classifications during the 2013 negotiations. Although he was not a member of that team, he had been consulted by the delegate and Ms Bennett as to his experience that at no stage, had there been any agreement to remove anyone from the bulk rail agreements’ coverage. The wording as it appeared was understood to be conditional on a review of the Part C structure during the life of the 2013 Agreement.
[88] Mr Cameron had analysed Mr Curle’s pay arrangements under his Appointment Agreement and the FAR and arrived at a figure of $127,200 (including base rate, allowances and super). As a Support Officer Level 2.3 under the Agreement his salary would be $119,665.31 (Base salary) plus Shift Penalty Allowance rate multiplied by .2365% (28,301.18), equalling $147,966.49 (plus super) per annum.
[89] In cross examination, Mr Cameron believed that employees with signed Appointment Agreements were covered by both those AA’s and the enterprise agreement. However, he also believed that the documents at the time (2012) meant that all administrative, supervisory, technical and professional employees were covered by an enterprise agreement, even if the Agreement did not specifically refer to them and some may have been employed on common law contracts.
[90] Mr Cameron did not accept that there were two different categories of employees set out in the employee information sheet distributed during the consultation process – which referred to ‘Employees presently covered by an Enterprise Agreement’ and ‘Employees presently covered by a Staff Employment Contract’. They were still all covered by an enterprise agreement. He explained that the fact there were two categories of employees was to provide explanations as to how they were to be affected by the changes.
[91] In reply statements from the respondent’s witnesses, Mr Arscott disagreed with Mr Cameron that Pacific National was required to follow the consultation process under the 2013 Agreement. This was because neither the old or the new roles were covered by the Agreement. Mr Arscott said that he had contacted Mr Pryor in all his dealings with the Union as he believed he was the appropriate Union contact.
[92] Mr Arscott disagreed with Mr Cameron’s calculations of Mr Curle’s remuneration. There is up to a 15% STI component in addition to the FAR amount. For Mr Curle this was $13,900 in addition to FAR and pro rata long service leave was paid on this component. STI is not available to Agreement covered employees.
[93] Mr Crowe rejected Mr Cameron’s allegation that Pacific National used AA’s as a means to circumvent the enterprise agreement. Mr Crowe recalled at least two employees requesting to go back on the Agreement and this had been agreed to by Pacific National. Employees are only covered by both their AA and an enterprise agreement, if their role is covered by an applicable enterprise Agreement. If not, only the AA applies. Mr Crowe said that DCC staff are support staff to the operations and are therefore classified under Part C of the 2013 Agreement. It was Mr Crowe’s further evidence that it was agreed to remove Level 2.4 from Part C. This draft version of the Agreement was put to the employee vote. The Union had not strongly opposed the change.
[94] It was Mr Sain’s understanding that Pacific National had never considered employees with management responsibilities to be covered by the Agreement and all such employees are covered by Appointment Agreements. Mr Sain maintained that the new roles did not fall within the Part C classification structure of the 2013 Agreement.
Mr Steven Granger
[95] Mr Granger has been a Shift Manager since 2004. He said that:
(a) the role of train controller had never been part of his job description;
(b) before signing his Appointment Agreement he was assured he would not be worse off than if he was under an enterprise agreement; and
(c) he understood that the Appointment Agreement conditions were equal to, or better than an enterprise agreement in every aspect.
[96] In cross examination, Mr Granger said that the words in his statement were his own. He accepted that this dispute only related to Mr Curle. While Mr Granger had issues with his own redundancy entitlements, they were related to his earlier service with FreightCorp and not about the terms of the 2013 Agreement. Pacific National had been looking into his issues.
[97] Mr Granger believed that the enterprise agreement applied to him because at the time he accepted the job (in 2004) he was told it was ‘underlined’ by the Agreement and he would never be worse off. At the time, he had read the Appointment Agreement and understood most of it. He knew it had a higher base salary, bonuses and pay increases. He accepted it was a ‘step up into management’. He acknowledged that he was not paid wage increases or allowances, which applied to other employees covered by the 2013 Agreement.
[98] It was Mr Granger’s evidence that he was in charge when the Superintendent was not in the depot. This involved 90% of his time in train control management. This percentage had increased over time. He stressed that train control management could not be ignored.
[99] In a reply statement, Mr Arscott said that it was not possible to compare the terms and conditions of Shift Managers employed under an Appointment Agreement to the terms and conditions of the enterprise agreement. This is because of significant differences in overtime conditions, shift allowances, redundancy calculations and working hours. Mr Curle was emailed his redundancy entitlement on 20 May 2016 based on FAR and a STI payment, as well as accrued long service leave and annual leave. This had been done after he confirmed on 11 April 2016 that he wished to take redundancy, rather than redeployment.
[100] Mr Arscott said Mr Granger and another Shift Manager assisted in the transition process by helping with training and mentoring of persons for the new roles. He had not applied for any of the new roles and elected to take redundancy. There was an initial issue about calculation of past service with FreightCorp, but that has now been resolved.
[101] Mr Sain referred to the 6 weeks training of the persons appointed to the new roles which commenced on 14 March 2016. Some of the existing, but displaced Shift Managers, including Mr Granger and Mr Ross, assisted in the transitional process and mentoring. Their redundancies were pushed back in order for them to do this. All training had now been completed.
SUBMISSIONS
For Pacific National
[102] Ms DeBoos set out her understanding of the Union’s two primary claims in this dispute:
- Pacific National had not engaged in consultation in relation to the changes arising out of the Review of the frontline leadership management, as required by the 2013 Agreement; and
- the three new roles created by the Review are covered by the 2013 Agreement.
[103] Ms DeBoos firstly submitted that as the three new roles were not covered by the 2013 Agreement then the right to access to the Consultation Clause and the right to arbitration under Cl 30(j) does not arise. It follows that there is neither an obligation to consult or a right to arbitration in respect to the coverage of the roles under Part C of the Agreement.
[104] Secondly, and in the alternative, even if the Commission considers the words of cl 30(j) do not confine the right to arbitration to disputes arising under the Consultation clause, there is no jurisdiction to make the orders sought by the Union, as the roles are not covered by the 2013 Agreement.
[105] Thirdly, if the Commission determines that one or more of the roles is covered by the 2013 Agreement, the power to arbitrate is limited to the circumstances outlined in cl 30(j), which have not been satisfied in this case.
[106] Ms DeBoos submitted that to determine whether the roles are covered by the 2013 Agreement, the Commission must interpret the relevant clauses of the 2013 Agreement against the evidence in relation to the old role of Shift Manager and the three new roles. In this respect, Ms DeBoos referred to the principles of agreement construction as set out in the relevant authorities; see: Kucks v CSR Limited (1996) 66 IR 182; AMIEU v Golden Cockerel Pty Ltd (2014) 245 IR 394 (‘Golden Cockerel’); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 and JJ Richards and Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297. In applying these principles, Ms DeBoos contended that the words used in cl 30(j) are clear and unambiguous.
[107] Ms DeBoos said that in simple terms, if the abolition and restructuring of the Shift Manager’s role did not affect any employees covered by the 2013 Agreement, the Commission cannot arbitrate the dispute. Ms DeBoos relied on cl 3 of the Agreement which sets out the scope of the 2013 Agreement, inter alia, as follows:
‘(a) Each of the parties; and
(b) Employees employed to perform work in positions within Pacific National within the bulk rail division that fall within the classification structure/s as set out in this Agreement.
No employees engaged by Pacific National Bulk Rail under a Common Law Contract, performing work equivalent to the classification contained within this agreement are to receive less than the applicable terms and conditions which apply to that classification, position or role.’ (emphasis added)
[108] Ms DeBoos submitted that only those within the classification structure are covered by the 2013 Agreement. Further, there is an express recognition that employees may be covered by Appointment Agreements, performing equivalent roles, but not covered by the 2013 Agreement.
[109] Ms DeBoos stressed that Part C employees are support staff and the classifications are detailed and clear on their face. None of these descriptions relate to the substantive functions or responsibilities of any of the roles in this dispute. Moreover, the breadth of Part C was discussed during the negotiations for the 2013 Agreement. Mr Crowe’s evidence expressly established that it had been agreed that Part C did not cover the supervision of staff and the only classification which fell into that category was removed.
(c) Pacific National Bulk Rail having made a definite decision that it intends to proceed with any significant change shall issue a notification, in writing, advising:
(i) The affected Employees, or their representatives and their Union;
(ii) The nature of the change;
(iii) The reason for it;
(iv) The timing of it; and
(v) Any other relevant information.
.
(d)
(i) Pacific National Bulk Rail shall allow the Employee, their representative and the Union, an opportunity to express their view or concerns. Pacific National Bulk Rail will allow Employees, their representative and their Union to actively participate in the consultative process. That is, allow for the reasonable release and payment of Employees to attend meetings and access to entitlements as provided for in this Agreement.
(ii) Pacific National Bulk Rail shall genuinely consult and consider any views or advice from the Employees, their representative and their Union in relation to the proposed change and provide written reasons addressing concerns raised by Employees and or Employee representatives.
(e) This consultative process must be completed within a period of fourteen (14) days from the date of notification by Pacific National Bulk Rail as set out in Clause 30 (c) above, subject to the provisions of Clause 30 (d) being complied with. Failure to comply with the provisions of Clause 30 (d) will delay and or extend the fourteen (14) day period accordingly.
(f)
(i) Should Pacific National Bulk Rail fail to provide the notification as
required in Clause 30 (c) above Pacific National Bulk Rail shall not implement any of the proposed changes until such time that the proper notification of change has been provided and the consultation process set out in Clause 30 (d) has been complied with.
(ii) Further, where Pacific National Bulk Rail has failed to engage in any consultation what so ever with the affected Employees, their representative or their Union, may issue Pacific National Bulk Rail, within seven (7) days of the non compliance, with a notice of dispute, in writing, setting out the reasons for
the dispute in the form set out in Schedule 1 of this Agreement. Upon receiving such notice of dispute Pacific National Bulk Rail will not implement the change and or cease the change should it have been already implemented.
(g) It is agreed between the Parties that after the above notification and consultation process has satisfactorily taken place, Pacific National Bulk Rail, may implement change after a further fourteen (14) days.
(h) Significant Change
For the purposes of this clause and without limiting the generality thereof, significant change includes changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs.
(i) Right to Conciliation
Notwithstanding the above, once the notification has been provided or consultation has commenced in accordance with this clause, either party may notify FWC of a dispute, in accordance with Clause 31, with respect of the proposed change. In such circumstances, Clauses 31(b)(i) to (iv) need not be followed.
(j) Right to Arbitration
(i) Either party shall have the right to have FWA arbitrate a dispute arising under this clause in circumstance where a party has failed to follow the notification and or the consultation process outlined in Sub-Clauses (c) and (d) above.
(ii) The Employees with their representatives shall have a further right to arbitrate a dispute where Pacific National Bulk Rail have introduced the change and the provisions of Sub-Clause (f)(i) have been enacted.
Annexure B
31 Resolution of Disputes
(a) Employees may be represented at any stage of the Resolution of Disputes process by a representative of their choosing which representative may include a union.
(b) Where a dispute or grievance arises between Pacific National Bulk Rail and its Employees in relation to the National Employment Standards, the application of this Agreement or other workplace change, the following will occur:
(i) Where a person or their representative wish to lodge a dispute or grievance it must be done so in writing in the form as set out in Schedule 1 of this Agreement.
(a) Where the person or their representative who lodges the dispute / grievance elects to commence the dispute settling process with this step, the Employee(s) who is (are) affected by the decision will discuss the matter with their Local Manager. This may be appropriate, even where the Local Manager was not the Pacific National Bulk Rail Manager who made the decision which is subject of the dispute notice.
(b) The Local Manager will consider the issues raised and will respond to the Employee who lodged the notice within twenty-four (24) hours. This response may be verbal or in writing, if so requested.
(ii) If the dispute / grievance remains unresolved, it may be referred to the General Manager and if the Employee(s) affected so request, a Union representative for discussion. These discussions must be concluded within forty-eight (48) hours.
(iii) If the dispute / grievance remains unresolved, it may be referred to the Group General Manager of the relevant business unit and if the Employees(s) affected so request, a representative, which may include a union. Where an Employee chooses a union to represent them, the relevant State Secretary or National Secretary (or their nominee) may choose to be involved in these discussions. These discussions must be completed within forty-eight (48) hours.
(iv) If the dispute / grievance remains unresolved, a “cooling off period” of forty-eight (48) hours (excluding weekends and public holidays) will occur at this stage of the process. During this period, the parties may continue to have discussions at whichever level they regard as most likely to assist in resolving the dispute / grievance. The parties may agree, at this point, to utilise mediation to resolve the dispute.
(a) During, or at the conclusion of the cooling off period, either party may decide to refer the matter to a mutually acceptable independent mediator or the FWC for the purpose of conciliation of the dispute. The conciliation must occur as soon as reasonably practicable.
(b) Where a dispute / grievance is escalated to the point of involvement of either an independent mediator or the FWC in conciliation, the parties acknowledge the significance of this point being reached. Therefore, any recommendation made by the independent mediator or FWC in an attempt to assist the parties to resolve the dispute / grievance will be treated as highly influential.
(c) Where both parties agree, they may empower the mediator or member of the FWC to resolve the matter by arbitration.
(c) Any of the steps in the process may be removed where both parties agree. Likewise, the parties may agree to extend the timeframes within which each of the steps are to be completed.
(d) At all times during this process work shall continue in the matter it was being performed immediately before the dispute or grievance.
Annexure C
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