Australian Rail, Tram and Bus Industry Union v Rail Commissioner

[2014] FWC 53

[2014] FWC 53

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union
v
Rail Commissioner
(C2013/4976)

Rail industry
COMMISSIONER HAMPTON	ADELAIDE, 17 JANUARY 2014

Section 739 - application to deal with a dispute - enterprise agreement - introduction of electrification of part of Adelaide rail network - dispute over impact of changes - arbitration of wage adjustments - various work groups - some agreed outcomes - agreed facts and milestones - competing proposals for most groups - transitional issues - assessment of work value and change - relevance of relativities - determination made.

1. The dispute notification and progress of the matter

[1] In July 2013, the Australian Rail, Tram and Bus Industry Union (the ARTBIU) made an application under s.739 of the Fair Work Act 2009 for the Fair Work Commission to deal with a dispute with the Rail Commissioner under the terms of the Rail Commissioner Rail Operations Enterprise Agreement 2011 1 (the EA).

[2] The Rail Commissioner is a statutory authority 2 responsible for the operation of the rail network in Adelaide and surrounding areas.3 The Rail Commissioner and the ARTBIU are covered by the EA and it applies to the employees who are the subject of this matter.

[3] The immediate context for the dispute was that progression of the electrification of part of the Adelaide rail network would impact upon the work and operations of employees who are covered by the EA. The electrification measures involve rail controllers, suburban train drivers and many other relevant positions operating in a modified environment, including with overhead high-voltage electrical infrastructure and new trains, known as Electrical Multiple Units (EMUs). The electrification involves only some of the rail network and the rest of the network continues to utilise diesel trains.

[4] When made in 2011, the EA comprehended the electrification of part of the rail network and relevantly provided as follows:

“35. INITIATIVES AND UNDERTAKINGS TO APPLY DURING LIFE OF AGREEMENT

35.1 The parties to this Agreement acknowledge that preparation for the electrification of the train network and the introduction of Electrical Multiple Units (EMU's) are expected to commence during the life of this Agreement. The parties to this Agreement commit to undertake an effective consultative process, prior to implementation, through the establishment of a working party as selected by the Train Operations Consultative Committee, which will comprise employee representative's (from the effected work groups) and management representatives. The role of the working party will be to develop agreed arrangements to ensure that associated issues are identified and addressed. Progress, recommendations and outcomes will be reported back through the Train Operations Consultative Committee. If agreement, through consultation, cannot be reached, the Dispute Resolution Process will be applied.”

[5] The dispute resolution process (DRP) referred to in that clause is provided by clause 23 of the EA in the following terms:

“23 RESOLVING WORKPLACE CONCERNS OR DISPUTES

23.1 Any industrial dispute or matter likely to create an industrial dispute arising under this agreement or the National Employment Standards should be dealt with in the following manner:

23.2 The parties to the agreement are obliged to make every endeavour to facilitate the effective functioning of these procedures.

23.3 The employee or employee representative should discuss any matter affecting an employee with the supervisor in charge of the section or sections in which the dispute or likely dispute exists.

23.4 If the matter is not resolved at this level the employee or employee representative should ask for it to be referred to an appropriate manager who shall arrange a conference to discuss the matter. If requested by the manager, the subject of the dispute shall be put in writing, so far as is reasonably practicable.

23.5 The consultation process as prescribed in clause 23.3 shall be commenced within 48 business hours of the dispute or likely dispute having been indicated, or within such longer or shorter period as may be agreed by the parties.

23.6 If a matter cannot be resolved when the above referred to procedures have been availed of, the parties should enter into consultation at a higher level on both sides, as the parties consider appropriate.

23.7 At any stage in the procedures after consultation between the parties has taken place in accordance with the procedure, either party may request and be entitled to receive a response to its representations within 5 working days.

23.8 If a dispute arising from any industrial matter, including a dispute arising under this agreement or the National Employment Standards is unable to be resolved at the workplace, and all agreed steps for resolving it have been exhausted, the dispute shall be referred to Fair Work Australia for resolution by mediation and/or conciliation and if necessary arbitration.

23.9 If arbitration is necessary Fair Work Australia may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective, in accordance with the provisions of the Fair Work Act 2009.

23.10 Any dispute referred to Fair Work Australia under this clause should be dealt with by a member nominated by either the head of the relevant panel or the President.

23.11 The decision of Fair Work Australia will bind the parties, subject to either party exercising a right of appeal against the decision.

23.12 It is a term of this agreement that except where there is a genuine health or safety concern, the status quo existing immediately before the matter giving rise to the dispute will remain while the dispute resolution procedure is being conducted.”

[6] The EA also contains a no extra claims provision in the following terms:

“8 No Extra Claims

During the life of this Agreement, the parties bound undertake not to pursue claims except where consistent with and contemplated by this Agreement.”

[7] Comprehensive conferences were conducted by the Commission in accordance with the DRP during July, September and November 2013. Detailed recommendations were made by the Commission and followed by the parties. These recommendations involved the parties continuing to progress the implementation of the electrification process on the understanding that if the outcomes of the changes could not be agreed, the issues could be subject to arbitration as contemplated by clause 23 of the EA.

[8] The parties constructively progressed certain matters through joint working parties including the establishment and implementation of appropriate training modules to operate in the electrified parts of the network, the identification of relevant changes and the potential quantification of those changes for wage adjustment purposes.

[9] Ultimately the electrification process has progressed to the point that the implementation of fee paying services, on one of the main suburban lines concerned, is likely very early this year and commissioning and limited operation of the EMUs has already commenced for training purposes.

[10] The parties have also agreed 4 that the EA contemplates wage adjustments arising from the electrification process where relevant change has impacted upon the work groups and in the case of two such work groups, an agreed adjustment has been settled. However, in the case of the remaining work groups, whilst the general nature of change has been agreed, the ARTBIU and the Rail Commissioner have not agreed upon the extent of the wage adjustment to follow.

[11] The parties have agreed that the outstanding issues can and should be determined by the Commission under the terms of the EA. This decision represents that determination.

[12] I note that in the lead up to the arbitration of this matter, I conducted a comprehensive inspection of the work of each work group concerned. This included a consideration of the work involved, both prior to and with the impact of the electrification of part of the network, and an inspection of an EMU. The inspection schedule is set out in Attachment F. This inspection was greatly assisted by the cooperation and constructive participation of senior management from the Rail Commissioner and officials and delegates of the RTBIU.

2. The agreed matters

[13] In accordance with a process recommended by the Commission, the parties have agreed the scope of the work groups to be included within the arbitration.

[14] The following work groups are covered by this arbitration:  5

Workgroups

Suburban Train Drivers – All groups

Operations Controllers / Shift Managers

Network Operations Supervisors (NOS)

Shift Coordinators

Senior Passenger Service Assistants

Passengers Service Assistants (PSA)

Platform Coordinators (PC)

[15] The parties have also agreed the following fundamental questions to be considered as part of this arbitration, and in the case of some questions, the answers have also been agreed:

“AGREED QUESTIONS TO BE DETERMINED AND PARTIALLY AGREED ANSWERS

1. What are the changes that affect each work group as a result of electrification?

2. Having regard to the changes in 1, what should the wage increase be and what should the operative date of that wage increase be?

2.1 Of the workgroups included in the scope of this arbitration two of them have reached an in principle agreement in regard to a remuneration increase. It is respectfully submitted by both parties that the increase be reflected in the arbitration determination by Fair Work Commission. The outcome for the Network Operations Supervisors is 3.5 percent and the Shift Coordinators is 2.5 percent which is to be applies to their base rate of pay.

2.2 The parties agree that the milestone implementation dates as they occur for the work group concerned should be applied in respect to the operative dates. These will be supplied to the Commission in the parties’ submissions.

3. To what extent do the provisions in the present enterprise agreement allow the Commission to make such a determination that will then be applied to the terms and conditions of employees – if there are limitations how do the parties propose to implement the Commission’s decision?

The parties agree that the Commission is empowered to make a determination about the rates of pay that should apply to electrification under the terms of the current enterprise agreement (clause 35.1) – submissions thereto will be provided by the parties in due course.

4. Do the parties agree that the determination of this matter is in full and final settlement of the wage claims attached to the introduction and implementation of the partially electrified Adelaide suburban train network, for the employees included in the scope of the arbitrated decision?

Yes.”  6

[16] The agreed questions contemplated agreed milestones and links to the timing of any adjustments determined by the Commission. These were revised during the course of the hearing in this matter and the final agreed position is set out in Attachment A of the decision.

[17] The parties also agreed a comprehensive set of facts concerning the changes brought about by the partial electrification of the rail network and related developments. These agreed facts are set out in Attachment B. Further, an agreed training matrix setting out the nature of the training to be provided as part of the implementation of the electrification was provided by the parties and is set out in Attachment C.

[18] In terms of how any determination was to be given practical effect, the parties asserted that any decision of the Commission would not be a variation to the EA, but rather, agreed that a determination or order made would arise from the application of clause 35, which would be given effect to by the parties. This would also include the outcome being incorporated by the parties in any subsequent enterprise agreement. 7 There may be some issues about the power of the Commission to make orders in the present context that would alter the existing wage rates within the EA, and I will return to this in my determination of the matter.

[19] At the outset of the hearing in this matter, I also raised a number of questions with the parties on other issues arising from the agreed questions. These included how transitional changes should be treated for present purposes. Ultimately, this led to a different proposal from each of the parties and these have been reflected in the positions outlined to follow.

3. The positions of the parties

[20] As outlined above, it is common ground in this arbitration that there has been relevant change for each of the work groups and that an adjustment to wages is appropriate in the circumstances.

[21] It is also agreed that the wage adjustments for the Network Operations Supervisors (NOSs) and the Shift Coordinators (SCs) should be an increase of 3.5% and 2.5% to the base rate of pay respectively. I note that in each case these adjustments are marginally higher than the final work value assessments made by the Rail Commissioner 8.

[22] However, the parties have different positions in relation to each of the remaining work groups. I have set out below the competing proposals, including a brief summary of the justification for that position and their approach to the issue of transitional changes. In considering and determining this matter I have had regard to the detailed evidence and supporting arguments.

[23] By agreement between the parties, all witness statements were admitted as evidence without being required for cross-examination. Mr Robert Stopp, Director Rail Operations, gave sworn evidence about the Rail Commissioner’s position in relation to transitional issues and he was cross-examined on those matters.

3.1 The ARTBIU

[24] The ARTBIU proposed that wage increases for each of the non-agreed groups should be made having regard to a range of potential adjustments in each case. These were derived from assessments made by representatives of the union who were involved in the actual work in question and who had undertaken a review of the changes and the proposals made by the Rail Commissioner.

[25] The substantive view of the ARTBIU is that the work value assessment undertaken by the Rail Commissioner undervalued the impact of the changes upon each of the work groups. The ARTBIU submitted that this was the result of a number of factors including that the assessor was not qualified or trained in the work being assessed; the weighting of the changes was not fair; and the changes as assessed were only based upon job descriptions and ignored other factors relied upon by each of the work groups.

[26] In relation to transitional changes, the ARTBIU proposed that these be recognised as additional matters, with - in most cases - an additional pay adjustment being implemented, that would be subject to the continued application of the transitional factors. Once no longer present in the system, the additional adjustments associated with the transitional changes would cease.

[27] The following final claims were advanced by the ARTBIU for the non-agreed work groups:

Operations Controllers/Shift Managers	10.5% to 12.5% - plus up to 5.5% transitional factors
Suburban Train Drivers	5% to 10% - plus 1.5% to 2% transitional factors
Senior PSAs	4% to 12% - inclusive of 1.5% to 2% transitional factors
PSAs and Platform Coordinators	2.25% to 10% - plus 1.5% to 2% transitional factors

[28] The full explanation of the ARTBIU’s position on the wage proposals in light of the transitional issues is set out in the summary document included as Attachment D. 9

[29] The ARTBIU provided witness statements from the following in support of its position:

● Allan Bower, Suburban Train Driver Exhibit U3
● Tony Gaudio, Suburban Train Driver Exhibit U4
● Craig Rogers, Suburban Train Driver Exhibit U5
● Kym Grimson, Operations Controller (Train) Exhibit U6
● Daniel Ball, Passenger Service Assistant, Exhibit U7
● Richard Baker, Passenger Service Assistant, Exhibit U8
● Michael Williams, Senior Passenger Service Assistant Exhibit U9
● Jenny Dressler, Operations Controller (Train) Exhibit U10

3.2 The Rail Commissioner

[30] The Rail Commissioner conducted a comprehensive work value assessment 10 of the changes for each of the work groups subject to this arbitration. The proposition advanced was that the assessment included all relevant factors, had been undertaken on an objective basis, and adjusted after the consideration of feedback from the ARTBIU delegates.

[31] In applying the consequence of the relevant change, the Rail Commissioner contends that it has acted consistently with principles adopted by the Commission in cases involving work value assessments. 11

[32] In relation to transitional issues, the Rail Commissioner contends that it had included these within its work value assessment and its proposed wage adjustments. In response to the issue being raised by the Commission, the Rail Commissioner indicated that the transitional change elements could be isolated from the overall outcome; however, it did not seek to alter its proposals. Rather, it proposed that the inclusion of these elements be taken into account to the extent that any adjustment, beyond that contended by the Rail Commissioner, was considered by the Commission.

[33] The wage outcome proposals advanced by the Rail Commissioner for the non-agreed groups may be summarised as follows:

Operations Controllers/Shift Managers	4.00% - inclusive of 2% transitional factors
Suburban Train Drivers	3.75% - inclusive of 1.75% transitional factors
Senior PSAs	2.25% - no transitional factors
PSAs and Platform Coordinators	1.25% - inclusive of 0.25% transitional factors

[34] I note that the Rail Commissioner contends that there were no transitional factors with the agreed NOSs’ adjustment of 3.5% and a transitional factor of 0.25% for the agreed SCs’ outcome of 2.5%.

[35] The full explanation of the Rail Commissioner’s position on the wage proposals in light of the transitional issues is set out in the table included as Attachment E. 12

[36] The Rail Commissioner provided witness statements from the following in support of its position:

● Robert Stopp, Director Rail Operations Exhibits RC4, RC5
● Amanda Pickering, Manager People and Change Exhibits RC6, RC7
● Rade Crnjac, Operations Adviser Exhibits RC8, RC9
● Allen Maciunas, Tram Operations Manager Exhibits RC10, RC11

4. The approach to be adopted

4.1 The appropriate assessment of change for present purposes

[37] Given the terms of the EA and the agreed position of the parties on the role of the Commission in this arbitration, it is necessary to make an assessment of the nature and impact of the changes that have or will be introduced as a result of the electrification of part of the Adelaide rail network and associated matters. Subject to the final view adopted on the transitional issues, the wage adjustments determined will be added to the base rates of the employees.

[38] In making an assessment of the changes for present purposes, it is also necessary to have regard to the context. This is not the arbitration of a wage outcome from a “bargaining round” where broader considerations may be relevant. 13 Rather, this is the objective consideration of the impact of change for the purposes of adjusting base rates under a process sanctioned by an existing enterprise agreement.

[39] In that context, the assessment should in my view be fundamentally based upon work value principles. In Child Care Industry (Australian Capital Territory) Award 1998 14 a Full Bench of the AIRC said:

“[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. 15 But progressive or evolutionary change is insufficient.16

An increase in the skills, knowledge or other expertise required to adequately undertake the duties concerned demonstrates an increase in work value. 17

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. 18 However, where additional training is required to become certified and hence to fulfil a statutory requirement a wage increase may be warranted.19

A requirement to exercise care and caution is, of itself, insufficient to warrant a work value increase. 20 But an increase in the level of responsibility required to be exercised may warrant a wage increase on work value grounds.21 Such a change may be demonstrated by a requirement to work with less supervision.22

The requirement to exercise a quality control function may constitute a significant net addition to work requirements when associated with increased accountability. 23

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. 24

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. 25 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.26

Increased workload generally goes to the issue of manning levels not work value. 27 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.”28

[40] The principles outlined above are relevant in general terms to this present exercise. This is despite the fact that these are derived from principles of wage fixation that previously applied to centralised wage fixation by the Commission’s predecessors. In this case, it is the nature and context of the assessment and the need for some measurable and objective approach to the adjustment of base rates that leads to the general relevance of work value principles. However, this different context also means that these principles are a guide rather than an absolute benchmark.

4.2 The relevance of relativities

[41] The ARTBIU contends that in this exercise, a consideration of the relativities between work groups and classifications is not relevant. That is, this process involves the assessment of the impact of change as it affects different work groups and those impacts may well change existing relativities.

[42] I do note however, that in the evidence provided by the ARTBIU, reference is made to the arrangements applying in other States and some comparison is made with the introduction of new trams and extended tram operation in Adelaide, particularly in 2005. 29

[43] The Rail Commissioner contends that any adjustments should ensure that relativities between grades are not unreasonably distorted. In that regard, the Rail Commissioner referred to this concept as being the application of internal and external benchmarking and made further reference to the modern award applying to the rail industry. 30 I note that at the time of the arbitration, the parties were covered by a transitional Enterprise Award.31 It is however not necessary to deal with the differences between those awards for present purposes. The outcomes that I have determined in this matter do not significantly change the relativities between the classifications even if considered in the award context.

[44] I have considered the interstate rail and local tram comparisons provided by the ARTBIU, including what was said to be an adjustment of over 17% in the context of new trams in Adelaide some years ago. Although this sets some of the context for its position, there is insufficient material before the Commission to attribute significant weight to those aspects. This includes the absence of a full understanding of the circumstances operating at the time of the changes to the tram system, including in relation to the structural and operational matters, staffing levels and an apparent desire to change the relative position of the tram drivers’ wages. The outcome was also apparently not determined by the Commission and this also goes to the weight that should be attached. In terms of the interstate comparisons, I also do not consider that a comparison of different wage rates in itself assists with the assessment and quantification of changes in the present context.

[45] In my view, the primary consideration of this particular exercise is the impact of relevant changes on each of the work groups concerned. In that light, there may well be changes to the relativities where the impact of the changes is markedly different. However, consideration of relativities within the existing EA remains relevant to a degree. That is, in quantifying the change, it remains appropriate to take into account the relative degree of change and the impact of the adjustments in the context of the existing rates and relativities between positions. They are a reference point for this purpose.

[46] The current base rates provided by the EA are as follows: 32

SCHEDULE 1

S.1 WEEKLY WAGE REATES - RAIL OPERATIONS EMPLOYEES

From 1 Jan 2013 $
Train Driver (after 13 May 1990) - Trainee - Intermediate - Trainee Mainline - Mainline 1st year - Mainline thereafter	851.49 1035.71 1115.41 1189.46 1216.15
Train Driver (before 13 May 1990) - Mainline	1326.67
Train Driver Trainer - After 13 May 1990 - Before 13 May 1990	1285.72 1401.68
Operations Coordinator - After 13 May 1990 - Before 13 May 1990	1285.72 1401.68
Senior Driver - After 13 May 1990 - Before 13 May 1990	1363.55 1486.37
Platform Coordinator - Trainee - 1st year - After 1st year - After 2nd year	851.49 892.27 902.00 911.88
Passenger Service Assistant - Trainee - 1st year - After 1st year - After 2nd year	818 81 956.97 966.28 976.04
Senior Passenger Service Assistant - 1st year - After 1st year - After 2nd year	1032.84 1042.56 1051.24

SCHEDULE 3

WEEKLY WAGE RATES - RAIL OPERATIONS SUPPORT EMPLOYEES

From 1 Jan 2013 3.0% $
Tram Controller - Trainee - Qualified - After 1st year - After 2nd year	1115.40 1222.07 1250.54 1278.54
Network Operations Supervisor - 1st year - After 1st year - After 2nd year	1222.07 1250.54 1278.54
Shift Coordinator - 1st year - After 1st year - After 2nd year	1222.07 1250.54 1278.54
Operations Controller - Trainee - Intermediate - Qualified 1st year - Qualified after 1st year - Qualified 2nd year	1222.07 1363.02 1579.05 1627.44 1675.90
Shift Manager - 1st year - After 1st year - After 2nd year - After 3rd year	1743.03 1793.85 1842.03 1892.06

[47] I note that the above deal only with base rate payments and that the EA also establishes additional allowances and payments in various circumstances and these apply in some cases to one or more classifications. However, I am considering an adjustment to base rates for present purposes.

[48] Without overlooking the other detail of the relationships between these rates, the schedules illustrate that the additional wages due as a result of a further year’s service and experience ranges from approximately 3.0% for Operations Controllers, 2.24% for the Mainline Train Drivers to 1.0% for the PSAs, Senior PSAs and Platform Coordinators. Further, the adjustment for additional responsibilities for senior positions ranges from 7.7% in the case of the Senior PSAs to 12% in the case of the Senior Drivers (after 13 May 1990).

[49] These relativities, and others evident in the schedules, set some of the context for the assessment of the impact of the changes and their quantification for present purposes.

[50] I also consider that the increases should bear some proper relationship between each of the work groups. That is, the adjustments I determine need to properly reflect the relative degree of change for each of the work groups. This includes those work groups where the parties have agreed upon the appropriate outcome.

[51] It is appropriate that any adjustments be expressed in the form of percentages of the base rates. This is the approach adopted by the parties and its impact on the existing relativities is consistent with the basis of the determination that I will make.

4.3 The appropriate treatment of transitional changes

[52] Having conducted inspections and considered the extensive material filed by the parties, it was evident that some of the changes could properly be considered as being transitional in nature. That is, changes that would potentially not be on-going due to other developments operating in conjunction with electrification. At one level, many of the changes result from the operation of a network involving both electrified tracks (overhead 25KV high voltage systems) and trains, and non-electrified tracks and trains. This is in theory, transitional, given the commitment of the present State Government to ultimately electrify the entire Adelaide network.

[53] The parties have agreed that I should treat the mixed network as an ongoing feature for present purposes. This is appropriate given the timeframes and substantial additional funding requirements for a complete conversion. I also note that the Belair rail line is unlikely to be electrified given a number of physical and infrastructure constraints.

[54] There are other more predictable potential transitional changes including:

● The phasing out of the 2000/2100 (Jumbo) diesel trains projected to be completed by early 2015;
● Dealing with customers over service changes and other special projects during periods of construction, commissioning and repair of electrified lines and associated infrastructure;
● The likely electrification of the line to Dry Creek where heavy maintenance is conducted - avoiding the need to “shunt” the EMUs with a diesel train;
● Familiarisation of signal placement changes brought about by the nature of the rail corridor with the electrification gantry and associated infrastructure;
● Introduction of a single train management system;
● The move to a new train control centre with associated technology;
● Moving to the standardisation of train configurations; and
● The implementation of Automatic Train Protection (ATP), which is being progressively installed.

[55] I consider that the appropriate treatment of these transitional issues is to note that they are included in the package of changes being assessed and some will become less important and potentially irrelevant over time. However, I do not consider that they should be subject to a separate contingent payment or allowance as part of this exercise. My reasons for so doing include:

● There is a degree of speculation about many of these changes including their effective dates of implementation. It is difficult to assess their net impact on work value otherwise brought about by the electrification of the system in advance of that potential implementation;
● Any direct linkage to the successful implementation of some of these transitional changes is likely to lead to uncertainty and potential disputation in the future about the changes and their net impact;
● One of the work groups where the outcome has been agreed involves transitional changes and no party has proposed that the agreed arrangements be altered - and it is very undesirable that a different approach to the transitional changes operates within the rail operations employee group; and
● The determination I will make will not impact on award minimum wages and the outcome will be capable of review by the parties in the future as part of subsequent enterprise bargaining outcomes (not in the present round of bargaining just commenced), 33 at least on the basis that some or all of the transitional changes have actually been finalised and have impacted upon the net work value of the electrification changes.

[56] I would also indicate that in some respects the ARTBIU position to treat the transitional changes as an additional payment beyond their substantive claims represents a degree of duplication.

5 The assessment and quantification of the relevant changes

5.1 General observations and findings

[57] I have applied the agreed parameters in conducting this arbitration. I have however independently assessed the proposed wages outcomes for the two agreed work groups.

[58] I have considered the changes brought about by the electrification of the Adelaide rail network and associated changes in light of the approach outlined earlier in this decision and the evidence before the Commission.

[59] It is not necessary or appropriate to deal with each of the changes individually and I find that the agreed changes identified in Attachments B and C capture the great bulk of relevant changes and the training initiatives required to support those changes. Some of the elements of the training initiatives are more akin to awareness and acclimatisation, and whilst this is important, it is the training associated with new work and skills that is of most significance in this exercise.

[60] It is also appropriate to make some general observations before dealing with each of the work groups. All of the work groups are affected to some degree by the relevant changes. This particularly results from the creation of a mixed rail network and the need to operate and perform their respective roles intermittently in the context of the electrified rail infrastructure, including in connection with incident management.

[61] Without detracting from the relevant changes outlined in Attachment B, the more significant of these include:

● The electrification of the Seaford line;
● The planned electrification of the “Salisbury” line (initially to Salisbury) and the potential electrification of that line to Gawler;
● Additional track, two new stations and changes to signalling on the electrified lines;
● The operation of the EMUs, in addition to the existing trains, including changes in relation to cabin layout including controls and functions, vehicle dynamics and responsiveness, “Deadman” and braking systems, start-up procedures, coupling and configuration, and track perspectives;
● The operation of a mixed network involving both diesel and electric trains with these operating concurrently at times on some routes and clear delineation of train type on other routes;
● Revised operational and safety procedures when working in proximity to high voltage power lines;
● Revised incident management procedures given the mixed network and the issues associated with working in proximity with high voltage power lines;
● Partial electrification of platforms (lines) at Adelaide Rail Station leading to revised pathing and allocation requirements;
● The introduction of a new train control system (Rail 9000 in the context of the SigView, WestCad and WestRoll systems); and
● The progressive introduction of the automatic train control system and other train control systems on various lines.

[62] The most significant of these changes are directly relevant to the Operations Controllers and related roles who must control train movements in the context of the mixed network with its added complexities; and train drivers who must now learn and operate the EMUs, in additional to the existing trains.

[63] There are also certain aspects associated with customer relations during the transition to electrification that in my view need to be taken into account. These particularly impact upon Senior PSAs, PSAs and Platform Coordinators. Although these arise from the need to “manage” customers during periods when services are temporarily modified during periods of construction, commissioning, repair etc, these can be expected to be a feature of the network for as long as the electrification process is being implemented. These may not be work value changes in the narrow sense but add to the responsibilities of the relevant employees and are similar to other changes included in the Rail Commissioner’s work value assessment.

[64] Many of the ARTBIU witnesses emphasised the risks associated with operating in the electrified elements of the network. That is, performing work and managing trains and customers in the context of high voltage power lines and associated infrastructure. 34 Hazards and risks in themselves are not directly relevant to the assessment of work value. Rather, it is the additional skills and responsibilities associated with operating in the new environment that must be the primary consideration. These additional elements do exist for each of the work groups however the extent of such varies depending upon the roles played and the context in which they interact with the new infrastructure.

[65] In addition, some of the changes referred to by the parties are the kind of changes that occur naturally and incrementally in workplaces where new processes are being undertaken and these do not add to skills or responsibilities for the positions to any significant degree. Some of the changes are also designed to make the work more productive without increasing demands upon employees.

[66] I have also found that the work value assessment undertaken by the Rail Commissioner represents a sound and objective exercise. It was also undertaken through a consultative and constructive process that sought feedback from the ARTBIU and its members prior to being finalised. I consider that this assessment represents an appropriate reference point for the Commission’s determination. However, there are some aspects where the impact of changes that have been identified by the employees actually undertaking the work, has not been adequately reflected into that assessment.

[67] I turn now to make some more specific findings in relation to each of the work groups.

5.2 Operations Controllers

[68] I have included the Shift Managers in this consideration given the agreed common grouping adopted by the parties.

[69] Both of the parties recognise that the impact of the partial electrification of the network and associated changes is greatest with the Operations Controllers.

[70] Some of the additional complexity in these roles is associated with the mixed operating systems and the introduction of the new train management system rather than simply the mixed network itself. However, it is relied upon by the ARTBIU and the Rail Commissioner has agreed 35 that this should be taken into account to the extent that it bears upon the present arbitration. There is no doubt that the combination of the mixed rail network and the existing mixed and new rail control management systems combine to increase the work value of the Operations Controllers.

[71] The associated complexities arise from the need to modify train pathing, the constraints associated with the limitations of certain trains on certain lines and platforms, and dealing with new depots and train control and safety systems. These are particularly significant in the context of the mixed and new operating systems that are being, or will be, utilised by the Operations Controllers.

[72] The main dispute between the parties is how these changes are quantified and converted into a wage adjustment as part of this exercise.

[73] The work value assessment undertaken by the Rail Commissioner produced a recommended adjustment of 4.0% 36 and generally relied upon the same issues referred to by the ARTBIU witnesses. The ARTBIU evidence37 however placed a different weighting upon the changes and empathised some other aspects.

[74] The approach that I have outlined earlier to both relativities and transitional matters is important to each of the work groups, but particularly so with the Operations Controllers. There are significant potential transitional issues associated with their work. Further, the quantification of the change must be determined having regard to the relative change and increases being granted for the other groups, including those agreed by the parties.

[75] It is this latter element in particular that has led to my view that the Rail Commissioner’s assessment marginally undervalues the changes applying to the Operations Controllers.

[76] In all of the circumstances, I find that the appropriate wage adjustment for the Operations Controllers is 4.5%.

5.3 Suburban Train Drivers

[77] The differences between the parties largely arise from the degree to which certain changes have been comprehended into any assessment. These include issues of coupling trains, changes to signals, fault identification on the EMUs and the potential for the new trains to operate at higher speeds. In addition, the conversion of those changes to an increase in wages is in dispute.

[78] I accept as appropriate the approach taken by the Rail Commission of including many of the issues raised by drivers into the single overall assessment of the operational changes and additional skills liked to the EMUs. For reasons outlined earlier, that assessment, which produced a proposal of 3.75% in terms of work value, is also fundamentally sound. However, I consider that this assessment has marginally undervalued the impact of these changes to some degree. The evidence as to the actual changes given by the ARTBIU 38 is relevant in this regard; albeit that I have also taken a different view as to how the impact of the changes should be converted into a wage adjustment as part of this exercise.

[79] I have also assessed the impact of these changes in the context of the relativities outlined earlier in this decision and my approach to the transitional issues.

[80] In all of the circumstances, I find that the appropriate wage adjustment for the train drivers is 4.0%.

5.4 Senior PSAs

[81] There is a significant difference between the parties on this issue, based primarily around contrary views about whether this role should be directly compared to the NOS. 39

[82] It is unnecessary for me to determine the degree to which the roles are the same for present purposes. It is however relevant to consider the impact of the changes upon their work and to assess the relative impact.

[83] I am satisfied that there are certain aspects of the changes that relate more closely to the NOSs, including the roles associated with evidence gathering and certain special projects being undertaken by them as part of the transitional arrangements.

[84] In terms of incident responses, the position descriptions do indicate a different role to some degree. However, both the Senior PSAs and the NOS have a significant response accountability and it is the impact of the electrification upon those roles that I am assessing. In that context, the assessment 40 of 0.5% by the Rail Commissioner in that regard for the Senior PSAs undervalues the extent of the change to a degree.

[85] Further, the issues associated with handling passengers in the present and foreseeable context have also not been sufficiently recognised in that work value assessment.

[86] In all of the circumstances, I find that the appropriate wage adjustment for the Senior PSAs is 2.75%.

5.5 PSAs and Platform Coordinators

[87] Although the Rail Commissioner’s work value assessment for these employees is fundamentally sound, as with the Senior PSA’s, it tends to undervalue the extent to which the electrification and the mixed network impacts upon the PSAs accountabilities in terms of immediate response roles. 41

[88] More importantly, the issues associated with handling passengers in the present and foreseeable context have also not been sufficiently recognised in that work value assessment. The PSAs and Platform Controllers are on the front line in that regard and this should be better reflected in the wage assessment.

[89] In all of the circumstances, I find that the appropriate wage adjustment for the PSAs and Platform Coordinators is 2.0%.

5.6 Network Operations Supervisors

[90] I find that the assessment of the relevant changes and the quantification of the increase agreed between the parties is fair and appropriate. The agreed increase of 3.5% also bears an appropriate relativity to the changes and outcomes for the other groups I have decided upon and I will include it in my determination.

5.7 Shift Coordinators

[91] I find that the assessment of the relevant changes and the quantification of the increase agreed between the parties is fair and appropriate. The agreed increase of 2.5% also bears an appropriate relativity to the changes and outcomes for the other groups I have decided upon and I will include it in my determination.

6. Conclusions and determination

[92] I have found that a wage adjustment for each of the work groups who are subject to this arbitration is warranted as a result of the impact of the partial electrification of Adelaide rail network and associated changes.

[93] I have determined that the appropriate total adjustment in each case is to be as follows:

Operations Controllers/Shift Managers	4.5%
Suburban Train Drivers	4.0%
Senior PSAs	2.75%
PSAs and Platform Coordinators	2.0%
Network Operations Supervisors	3.5%
Shift Coordinators	2.5%

[94] The adjustments are to be applied to the base rates of each relevant classification in accordance with the agreed milestones set out in Attachment A.

[95] The parties are to give effect to the determination in accordance with the EA and it is the Commission’s expectation that they will also do so in subsequent enterprise agreements. This will not however prevent the continuation and level of adjustments being further considered by the parties, and if agreed - by the Commission, in the context of enterprise agreements made beyond that presently being negotiated.

[96] Given the nature of this matter and the present jurisdiction of the Commission, I do not consider that it is necessary to resolve the issue as to whether an order of the Commission should be issued to further formalise the determination. Leave is granted to either or both parties to seek a formal order and if this occurs, a draft order should be supplied and I will hear further from the parties on this aspect.

[97] Before concluding, I would publicly repeat the observations I made at the conclusion of the hearings in this matter. The changes that are taking place within the Adelaide rail network are relatively significant. The fact that the changes are being introduced in the context of genuine consultation, cooperation from the workforce, and a joint commitment to the process leading to the arbitration, reflects well upon the parties and their representatives.

COMMISSIONER

Appearances:

D Phillips with C Fairman for the Australian Rail, Tram and Bus Industry Union.

S Bakewell, of EMA Consulting with permission, with R Stopp for the Rail Commissioner.

Hearing details:

2013

Adelaide

December 16, 17.

Inspections:

2013

Adelaide, Seaford, Woodville

December 12.

 1   AE890191, approved 15 December 2011.

 2   Rail Commission Act 2009 (SA).

 3   Ibid at s4.

 4   Exhibit CD2.

 5   Exhibit CD1.

 6   Exhibit CD2.

 7   Transcript PN49 and PN50.

 8   Part of exhibit CD6 - final assessment dated 18 November 2013 and the evidence of Pickering (exhibits RC6 and RC7).

 9   Exhibit U13.

 10   Part of exhibit CD6 - final assessment dated 18 November 2013 and the evidence of Pickering (exhibits RC6 and RC7).

 11   These were set out in the Rail Commissioner’s outline (exhibit RC1) and relied upon Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation T/A Sydney Water[2011] FWA 734.

 12   Exhibit RC12.

 13   See Australian Licenced Aircraft Engineers Association v Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia - Engineering[2012] FWA 9444 as an example of a broader bargaining dispute.

 14   PR954938.

 15   Graphic Arts Award, (1978) 213 CAR 146; Fire Brigade Employees (ACT) Award (1981) 255 CAR 476; General Motors Holden Ltd (Pt 1) General Award 1982 (1986) 301 CAR 555; Aluminium Industry (Comalco Bell Bay Companies) Award, Print G5474, 15 October 1986 per Leary C.

 16   Graphic Arts Award (1978) 213 CAR 146; General Motors-Holden Ltd (Pt 1) General Award 1982 supra; Municipal Officers (Glenorchy City Council) Award 1981 (1986) 302 CAR 203; Printing and Kindred Industries Union v The Public Service Commissioner for the NT, Print G6607, 5 March 1987 per Palmer C; State Electricity Commission of Victoria v The Federated Ironworkers’ Association of Australia, Print G7498, 22 May 1987 per Coldham J, Cohen J and Griffin C.

 17   Alcoa of Australia (Vic) Award, Print G3738, 15 July 1986 per Boulton J; Brass, Copper and Non-Ferrous Metal Industry Consolidated Award (1986) 302 CAR 568; 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 perGriffin C.

 18   The Hydro Electric Commission of Tas v The Australian Workers Union, AIRC, (Boulton J), 9 September 1987, Print G9199; ICI Australia Metal Trades Unions Botany Site Agreement, Print G7632, 29 May 1987 per Paine C.

 19   The National Building Trades Construction Award - Laser Operation Allowance Case, AIRC, (Bennett C), 30 July 1987, Print G8697.

 20   Queensland Alumina Limited Agreement (1976) 175 CAR 894; Aluminium Industry (Commonwealth Aluminium Corporation Ltd – Qld) Award (1978) 207 CAR 852.

 21   Brass, Copper and Non-Ferrous Metals Industry Consolidated Award, Print G5798, 26 November 1986 per Leary C; Austral Pacific Fertilisers Ltd (Agricultural Chemical Industry)Award, Print G6405, 4 February 1987 per Leary C; Aircraft Industry (Domestic Airlines) Award, Print G8270, 3 July 1987 per Paine C; Australian Public Service Assn v Public Service Commission of NT AIRC, Print G6934, 1 April 1987 per Griffin C. Qantas Airways Ltd v Transport Workers’ Union of Australia, Print K2423, 24 April 1992 per McDonald C.

 22   Brass, Copper and NonFerrous Metals Industry Consolidated Award (1986) 302 CAR 568.

 23   Vinidex Tubemakers Pty Ltd, Smithfield NSW Industrial Agreement 1981, Print H4342, 2 September 1988 per Munro J.

 24   Professional Engineers (Local Governing Authorities Tas) Award (1986) 302 CAR 203.

 25   Foreman and Related Supervisory Categories (Australia Public Service) Award 1985 (1986) 301 CAR 82; Determination No 519 of 1979 (1986) 301 CAR 273; Gasfitters (Gas and Fuel Corp of Vic) Award 1982 (1986) 301 CAR 539; Ship Painters and Dockers Award 1969 (1986) 302 CAR 220; Dispute between Carlton and United Breweries (N.S.W.) Pty Ltd and Federated Clerks Union of Australia, Print G6216, 18 December 1986 per Nolan C; Railway Metal Trades Grades Award 1953, Print G6473, 4 February 1987 per Cross C; Locomotive Enginemen’s Award (1986) 302 CAR 188; Tomogo Aluminium Company Pty Ltd Award (1986) 302 CAR 570; Alcoa of Australia (WA) Award, Print G6032, 11 December 1986 per Connell C; State Rail Authority of NSW v Australian Railways Union, Print G6666, 20 February 1987 per Riordan DP; The National Building Trades Construction Award Laser Operation Allowance, Print G8697, 30 July 1987 per Bennett C.

 26   Dispute between the Printing and Kindred Industries Union and Nationwide News Pty Ltd (1986) 301 CAR 221; State Electricity Commission of Vic v The Australian Institute of Marine and Power Engineers, Print H1180, 26 February 1988 per Brown C.

 27   Nursing Staff ACT Rates of Pay Award 1970 (1976) 177 CAR 1141; Transport Workers (Oil Companies) Award, Print H3686, 22 July 1988 per Leary C.

 28   Private Hospitals’ and Doctors’ (ACT) Award (1977) 198 CAR 379; Municipal Officers (Clarence Council) Award, Print G7083, 1 May 1987, per Sheather C.

 29   Bower (exhibit U3). See also the evidence in response by Macuinas (exhibits RC 9 and RC10).

 30  Rail Industry Award 2010 [MA000015].

 31   Rail Industry (TransAdelaide) Award 2002.

 32   Schedule 1.1 Weekly Wage Rates - Rail Operations Employees and Schedule 3.1 Weekly Wage Rates - Rail Operations Support Employees. I have included all classifications (including hose not covered by this arbitration) and current rates for completeness.

 33   The parties have just commenced a new round of bargaining for an enterprise agreement to replace the current instrument.

 34   The ARTBIU referred to the Westwood Thomas report - part of exhibit CD6 - in that regard.

 35   Transcript PN53.

 36   Part of exhibit CD6 - final assessment dated 18 November 2013 and the evidence of Pickering (exhibits RC6 and RC7). See also the evidence of Crnjac (exhibits RC8 and RC9).

 37   Grimson (exhibit U6) and Dressler (exhibit U10).

 38   See the detail of the evidence of Bower (exhibit U3) in relation to the changes.

 39   Stopp (exhibits RC4 and 5), Baker (exhibit U8) and Williams (exhibit U9) and exhibit U12.

 40   Work value assessment - part of exhibit CD6.

 41   Pickering (exhibit RC6 and 7) and Ball (exhibit U7).

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<Price code C, AE890191  PR546438>