Australian Rail, Tram and Bus Industry Union v Sydney Trains
[2021] FWC 2319
•17 JUNE 2021
| [2021] FWC 2319 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2019/1704)
DEPUTY PRESIDENT BULL | SYDNEY, 17 JUNE 2021 |
Alleged dispute about classification of Cleaning Attendants under enterprise agreement - Effect of no extra claims clause on claim of incorrect classification - Whether evidence demonstrates cleaner classification of train station cleaners is correct classification under enterprise agreement.
[1] The Australian Rail Tram and Bus Industry Union (NSW Branch) (the RTBU) has filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute with Sydney Trains. The application seeks to have the Fair Work Commission (the Commission), in accordance with Clause 8 – Dispute Settlement Procedure (DSP) of the Sydney Trains Enterprise Agreement 2018 (the Agreement), resolve a dispute relating to the classification of Cleaning Attendants who work in the Customer Service Directorate (now known as the Customer Operations Directorate) at Sydney Trains. 1
[2] The matter was subject to a conference before the Commission on 28 March 2019, where a recommendation by a now retired Commission member was issued for the parties to undertake a joint review of customer service provided by Cleaning Attendants at Sydney Trains. 2
[3] On 28 January 2020, the RTBU emailed the Commission advising that the parties had not been able to resolve the dispute, and requested the matter be re-opened and listed for a further conference.
[4] The dispute was allocated to my chambers and subsequently listed for a conference and directions were issued regarding the filing of written submissions and witness statements which were later amended.
[5] When the matter came before the Commission for arbitration, permission was granted for both parties to be legally represented pursuant to s.596(2)(a) of the Act. 3
Jurisdiction to deal with dispute
[6] Sections 738 and 739 of the Act authorise the Commission to arbitrate a dispute in accordance with a term of a dispute settlement procedure of an enterprise agreement. Section 739 of the Act is titled Disputes dealt with by the Fair Work Commission, and states at sub-s.739(1):
“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”
[7] Further, sub-s.739(4) states:
“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”
[8] The Agreement has a nominal expiry date of 1 May 2021 but continues to operate as no replacement agreement has yet been negotiated and agreed to and approved by the Commission. 4 Under clause 5 – Coverage of Agreement, the RTBU are noted as being bound by the Agreement.5
[9] The RTBU submits that the dispute, which is about the appropriate classification of Cleaning Attendants is a matter that can be dealt with under Clause 8 – Dispute Settlement Procedure of the Agreement as it is a matter pertaining to the relationship between the employer and employees and the operation and application of the Agreement. 6 Further, where the dispute remains unresolved, any party may refer the matter to the Commission for conciliation and, failing resolution, the Commission may arbitrate the dispute. The RTBU also noted that the term ‘dispute’ is broadly defined in the Agreement under clause 3 - Definitions to mean ‘any grievance, claim, problem or issue at work arising between the parties to the Agreement.’7
[10] However, in this matter Sydney Trains contends in the first instance, that the Commission has no jurisdiction to determine the matter as the dispute raised by the RTBU is unable to be considered as it contravenes clause 13 - No extra claims other than in accordance with this Agreement, as the matter in dispute is in essence an extra claim. 8 As this submission is also in relation to the operation and application of the Agreement,9 the Commission is satisfied that it has the requisite jurisdiction to deal with the RTBU application and Sydney Trains’ objections including dealing with its no extra claims defence pursuant to the Dispute Settlement Procedure in the Agreement and the operation of s.739(4) of the Act. As was stated by the Full Bench in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board the breath of matters arising under agreements is not to be read down by reference to a no extra claims clause for the purpose of engaging the disputes procedure. 10
The dispute to be determined
[11] In the written submissions of the RTBU, it was put that the dispute to be determined by the Commission was:
• Whether employees who are currently classified as ‘Cleaning Attendants’ 11 who perform work in Sydney Trains’ Customer Services Directorate at train stations and/or Bronwyn Kelly and Terry Ham, (employees) having regard to the customer services duties they are expected and required to perform, have been correctly classified as ‘Cleaning Attendants’ under Schedule 3A of Section 3 to the Agreement?
• If not, what is the correct classification for these employees?
• In particular, are these employees correctly classified as Customer Service Attendants Class 1 Competent (Cleaning)? 12
[12] The formulation of the above dispute was endorsed by Sydney Trains, 13 however Sydney Trains also maintained its jurisdictional objection regarding ‘no extra claims’.14
Background
[13] Sydney Trains employs cleaners who are classified and paid under the Agreement as ‘Cleaning Attendants’. 15 Cleaning Attendants perform work at two different locations under the supervision of two different directorates:
(a) On train stations as station cleaners and turnaround cleaners under the supervision of the Customer Operations Directorate, (previously titled Customer Services Directorate); and
(b) Stabling yards and maintenance centres under the supervision of the Fleet Maintenance Directorate. 16
[14] The dispute raised by the RTBU relates only to the Cleaning Attendants who perform work pursuant to (a) above, on train stations as station cleaners and turnaround cleaners (under the supervision of the Customer Operations Directorate) and does not relate to Cleaning Attendants at the stabling yards and maintenance centres (under the supervision of the Fleet Maintenance Directorate). 17
[15] Most train stations in the Sydney Trains network have one of the following arrangements:
(a) both station cleaners and turnaround cleaners;
(b) only station cleaners;
(c) no Cleaning Attendants and contract out cleaning services; or
(d) no Cleaning Attendants with cleaning performed by Customer Service Attendants, who perform both customer service and cleaning duties. 18
[16] Station cleaners are classified as Cleaning Attendants and are located on train stations and have the responsibility of picking up litter on platforms, cleaning toilets, mopping, and cleaning surfaces.
[17] Turnaround cleaners are also classified as Cleaning Attendants and are located at station platforms and have the responsibility of cleaning a train as it comes into the station including where the train is a terminating service and remains at the station for 3 to 5 minutes before resuming services. The turnaround cleaners enter and clean the train as much as possible during this period, picking up litter and undertaking cleaning services. 19
[18] Due to the role and the location of work, which involves performing cleaning work at train stations whilst the trains are in use and in the presence of customers (passengers), both station cleaners and turnaround cleaners at times may be approached by customers and asked questions.
[19] The interaction between station cleaners and turnaround cleaners and customers has in the RTBU’s submission resulted in station cleaners being misclassified by Sydney Trains under Section 3 (Schedule 3A) of the Agreement, and the RTBU contends that they should be classified as Customer Service Attendants Class 1 Competent (Cleaning) under Section 4 (Schedule 4A) of the Agreement. 20
Submissions and evidence
[20] Both parties filed a number of witness statements and not all of the RTBU’s witness were required for cross-examination. In the tendering of the witness evidence, both parties raised objections on the grounds that some of the evidence given in the various witness statements constituted either hearsay, opinion, speculation or was irrelevant. The evidence was admitted on the basis that the Commission would determine what weight would be given to such evidence. 21
RTBU Submissions
[21] It was submitted by the RTBU that in recent times, Sydney Trains has expected and required employees classified as ‘Cleaning Attendants’ who work at suburban and metropolitan train stations to perform customer service work. The RTBU submitted that Sydney Trains has equipped these workers with mobile phones for the specific purpose of enabling them to perform customer service work, and that Sydney Trains presents these Cleaning Attendants to its customers in an identical fashion to its employees who are classified as ‘Customer Service Attendants’ by requiring them to wear the same uniform. 22
[22] The RTBU submitted that Sydney Trains’ classification of Cleaning Attendant is erroneous and industrially unfair, and that Cleaning Attendants who are required to perform customer service tasks and functions have not been correctly classified and should be classified as Customer Service Attendants Class 1 Competent (Cleaning). 23
[23] The RTBU submitted that in the alternate, the Commission should hold that particular employees who gave evidence in the proceedings, namely Bronwyn Kelly and Terry Ham, should be classified as Customer Service Attendants Class 1 Competent (Cleaning) under the Agreement. 24
[24] It was submitted by the RTBU that the Agreement does not provide definitions for the classifications it contains, and in particular, ‘Cleaning Attendant’ is not defined. Therefore, in determining the nature of the duties and functions of a ‘Cleaning Attendant’, the Agreement must be properly construed, and the starting point is the ordinary meaning of the words used, read as a whole and in its context.
[25] The RTBU submitted that the classifications of ‘Cleaning Attendant’ and ‘Cleaners in Charge’ are contained in Schedule 3A to section 3 of the Agreement, and that section 3 of the Agreement deals with ‘Wages Maintenance Grades.’ The classifications contained in Section 3 are those of the employees who perform work maintaining Sydney Trains’ assets, whether those assets be trains, carriages, railways or stations and the allowances contained in Schedule 3B to Section 3 exemplify the nature of the classifications.
[26] In comparison, the RTBU submitted that Section 4 of the Agreement deals with ‘Operations’, and the classifications included in Schedule 4A encompass employees who are referred to as ‘operational wages employees’. These classifications are for employees who perform work in the operations side of Sydney Trains’ enterprise and who interact with, attend to, and assist Sydney Trains’ customers in the conduct of operations. Such classifications in Schedule 4A include, amongst others, train crew, train drivers, guards, signallers, shunters, Customer Service Attendants, and Customer Service Attendants Class 1 Competent (Cleaning). 25
[27] The RTBU submitted that the classification of Customer Service Attendant Class 1 Competent (Cleaners) set out in Schedule 4A conveys that employees falling into this classification are cleaners who perform customer service functions. 26
[28] The RTBU stated that cleaning staff employed by Sydney Trains work in both its Fleet Presentation Directorate and its Customer Services Directorate. The Fleet Presentation Directorate is responsible for managing cleaners who perform work in Sydney Trains’ stabling yards and maintenance centres, and do not interact with customers or perform customer service work. Cleaning Attendants who work in the Customer Services Directorate perform work at train stations where they interact with customers on a daily basis. 27
[29] It was the RTBU’s submission that Cleaning Attendants and Cleaners in Charge who work at train stations perform a significant amount of customer service work in addition to cleaning work. These Cleaning Attendants provide advice to customers, assist customers, direct customers, and assist in managing customers whilst they are at train stations. It was submitted that at times, the amount of customer service work required of Cleaning Attendants is such that it impedes their performance of their cleaning duties. 28
[30] Further, the RTBU submitted that at some stations or parts of stations, Cleaning Attendants are required to perform all the work that Customer Service Attendants would otherwise perform other than certain operational duties. It was submitted that Sydney Trains expects and directs Cleaning Attendants who work in its Customer Services Directorate to perform customer service work, and that the Cleaning Attendants have been equipped with resources to perform customer service work, such as mobile phones which contain information about timetabling and other such matters, to assist in servicing Sydney Trains’ customers and answering their inquiries. 29
[31] The RTBU submitted that Cleaning Attendants in the Fleet Presentation Directorate are not provided with mobile phones or any other equipment to assist them in providing customer service. 30
[32] The RTBU submitted that Sydney Trains requires Customer Service Attendants and Cleaning Attendants to wear the same uniforms. They are, so far as customers would be concerned, virtually indistinguishable. Further, it was submitted that Cleaning Attendants who work in the Fleet Presentation Directorate wear different uniforms. 31
[33] It was submitted that the true classification of their position is to be based on the highest functions they perform, which are performed on a regular basis and constitute a substantial component of their work, and that the highest functions undertaken are customer service ones. 32
[34] The RTBU submitted that Cleaning Attendants who work at train stations are subject to Sydney Trains’ Customer Service Principles, and these require Cleaning Attendants to perform tasks and duties that go well beyond the cleaning of ‘turnaround’ train services and train stations. They impose obligations on Cleaning Attendants to prioritise the provision of customer service and engage and interact with customers in a proactive manner. 33
[35] It was submitted that a failure to comply with the Customer Service Principles would mean that a Cleaning attendant would not be fulfilling their role, and that (depending on the circumstances) they could be subject to disciplinary action. 34
[36] Regarding Sydney Trains’ ‘no extra claims’ jurisdictional objection, it was submitted that the dispute does not seek anything extra or additional to what is provided for in the Agreement, but rather that the Agreement has been misapplied to the employees the subject of the dispute. The RTBU submitted that it does not seek to change any of the terms or conditions prescribed by the Agreement and that the dispute does not involve the making of any ‘extra claim’. 35
[37] The RTBU submitted that the effect of Sydney Trains’ jurisdictional objection, if upheld, would be that any employee who was misclassified by it would be precluded from seeking redress either via a dispute under the Dispute Settlement Procedure clause or by seeking declaratory relief in a Court. 36
RTBU Witnesses
[38] The RTBU tendered evidence through 11 witnesses:
Darlaine Smith | Cleaner in Charge |
Jane Gadd | Customer Service Attendant 2 |
Terry Ham | Turnaround Cleaning Attendant |
Bronwyn Kelly | Cleaning Attendant |
Helen Bellette | Organiser RTBU |
[39] Of the RTBU’s witnesses, Mr Terry Ham and Ms Helen Bellette were required for cross-examination.
Evidence of Darlaine Smith
[40] Ms Smith is a Cleaner in Charge, responsible for overseeing Cleaning Attendants at the Bondi Junction station and was formerly a Cleaning Attendant at the Kogarah station. 37
[41] It was Ms Smith’s evidence that on a regular day at Bondi Junction Station, a Cleaning Attendant will clean the station including the toilets and the platform, and when not performing cleaning duties, the Cleaning Attendant does customer service work. 38
[42] Ms Smith stated that if she is working on the platform, she estimates that she is required to assist a customer about every five minutes, and if she is working on the concourse, she estimates that she is required to assist a customer about every eight minutes. 39
[43] Ms Smith stated that there are no Customer Service Attendants that are stationed on the platform, and unless they are doing some train flagging duties, they work on the concourse. Ms Smith stated that this means that Customer Service Attendants who are on the platform doing flagging duties are too busy to answer customer questions, so customers will approach a turnaround Cleaning Attendant or a Cleaning Attendant on the platform instead. 40
[44] Ms Smith submitted that Cleaning Attendants work all over Bondi Junction Station, and for this reason they are more readily available to customers than Customer Service Attendants. 41
[45] Ms Smith stated that Cleaning Attendants who are working at the bus interchange are often not able to clean due to the volume of customer questions they receive. 42 Ms Smith’s evidence was that service disruption is very common at Bondi Junction station, occurring at least once a week, and that assisting customers during service disruptions is a regular and frequent part of a Cleaning Attendant’s job. During a service disruption, Customer Service Attendants will often be talking with the Rail Operations Centre and making announcements, and they will relay this information to Cleaning Attendants who are on the platform so they can help customers. Cleaning Attendants will also engage in crowd control, help people onto replacement buses or taxis and Ubers.43
[46] It was Ms Smith’s evidence that cleaning during a service disruption is rare and would involve emptying a bin and cleaning a toilet. Most of the time during these disruptions is spent doing customer service work. 44
[47] Ms Smith also stated that Cleaning Attendants have to do a lot of work during special events such as the City to Surf, and that the regular Cleaning Attendants will have to do most of the customer assistance work during these times. 45
[48] Regarding the provision of mobile phones, Ms Smith stated that Cleaning Attendants were given mobile phones in the middle of 2015, when she was still working at Kogarah Station, and she and other Cleaning Attendants were told that the phones were to assist customers and give them information about on time running. 46
[49] After Cleaning Attendants were given mobile phones, Ms Smith stated that they started doing a lot more customer service. Ms Smith stated that there have been times where she has radioed for a Duty Manager or Customer Service Attendant to assist a customer because she had cleaning work to do, and afterwards she was told that she should help the customer instead because she has a mobile phone with the same information as they do. Following these directions, Ms Smith stated that she and the other Cleaning Attendants have done their best to prioritise answering customer questions and assisting customers. 47
[50] Ms Smith stated that based on her observations and experience, there is no real difference between Cleaning Attendants and other station staff. 48
Evidence of Nimfa Dosado
[51] Ms Dosado is a Cleaner in Charge at Emu Plains station, overseeing the work of Cleaning Attendants, and was formerly a Cleaning Attendant at Lidcombe station. 49
[52] Ms Dosado stated that when customers depart the City train, the Cleaning Attendants are the first employees that they see. 50
[53] Ms Dosado stated that there is an Opal card machine on platform 1, and technically speaking, Cleaning Attendants are not meant to have anything to do with Opal cards. However, if a customer asks a question about the Opal machine, the Cleaning Attendants will just help them. Ms Dosado stated that it is faster and easier to do this, rather than asking a Customer Service Attendant to come over from platform 2 to help. 51
[54] Ms Dosado further stated that on her own initiative, she carries paper timetables in her cleaning cart, as often elderly customers prefer to use them over mobile phones, and she encourages her Cleaning Attendants to also use the paper timetables this way. 52
[55] Ms Dosado stated that if a customer needed her help, she would always assist them first before doing her cleaning role. 53
[56] With regard to service disruptions, Ms Dosado stated that Emu Plains isn’t as busy as some other stations, and she estimates that there may be a service disruption approximately once a month. During a service disruption, Ms Dosado stated that she would help customers, including directing them to a bus or answering questions about the trains running. 54
Evidence of Jane Gadd
[57] Ms Gadd is the Vice President of the Customer Service Attendants Sub-Division of the RTBU. 55
[58] Ms Gadd’s evidence was that she is currently a Customer Service Attendant2 56 at Caringbah Station, having formerly worked as a Customer Service Attendant 1 at other stations.57
[59] Ms Gadd stated that she has worked at Caringbah station for approximately 18 months and that her main duties at Caringbah station are cleaning and customer service. Ms Gadd will do operational duties if they are required, such as obtaining dropped objects from the track, wheelchair boarding, announcements when there is a train delay and lost property. 58
[60] It was Ms Gadd’s evidence that there is a train delay approximately once a week, and Ms Gadd will do announcements during those times and liaise with Sydney Trains’ Rail Operations Centre to find out when trains will be arriving. 59
[61] Ms Gadd stated that mostly, she spends her time assisting customers. Common questions she encounters are about Opal cards, machines, or when trains will arrive. Otherwise, Ms Gadd spends her time cleaning, sweeping, emptying bins and cleaning toilets or anything else that needs cleaning. 60
[62] Ms Gadd states that there are no Cleaning Attendants at Caringbah, and that she has worked at several stations that employed Cleaning Attendants throughout her time at Sydney Trains, such as Cronulla Station. 61
[63] Ms Gadd stated that Cleaning Attendants perform customer service work just like Customer Service Attendants, and the main difference between the roles is that Cleaning Attendants are generally required to perform cleaning work and when a Cleaning Attendant is rostered on and Customer Service Attendants are relieved from having to perform this work. 62
[64] Ms Gadd works alone at Caringbah Station, and does not have a Duty Manager overseeing her, or other staff on shift with her, including Cleaning Attendants. 63
[65] Ms Gadd stated that if she is working on a relief shift at a larger or busier station with a Cleaning Attendant, such as Cronulla, she usually won’t do much cleaning and will normally just do customer service. 64
Evidence of Terry Ham
[66] Mr Ham is currently a part-time turnaround Cleaning Attendant at Homebush station and has worked in the position for over three years, since 2018. 65
[67] Mr Ham works on weekends and public holidays, with his regular hours being 8am to 6pm on Saturdays and Sundays and he works a total of 20 hours per week. 66
[68] Mr Ham stated that as a turnaround cleaner, he waits on the platform for a train to arrive so he can clean it, and when a train pulls in Mr Ham is the first person customers see. Mr Ham stated that the Customer Service Attendants at the station work upstairs on the concourse. 67
[69] Mr Ham stated that when customers look lost, he will usually approach them and ask if they need any assistance. On weekends, the T2 Inner West line terminates at Homebush, and customers who wish to travel further west often accidentally come to Homebush and need to return to Strathfield to get the right train. Mr Ham stated that advice about how to do this is the common thing he gets asked by customers when he is on shift. 68
[70] Mr Ham stated that he is approached regularly by customers on the platform and asked for assistance. Mr Ham stated that he has to use his mobile phone that Cleaning Attendants are given maybe 10% or 15% of the time to find information to assist with customer enquiries, and that as a result of his experience and knowledge, he usually knows the answers to the most commonly asked questions by customers. 69
[71] Mr Ham stated that he works with another turnaround cleaner at Homebush station, and that he estimates that between the two of them, they would probably assist 90 customers a day. 70 During cross-examination, however, Mr Ham stated that he has never actually counted how many interactions he has had at Homebush Station, and that this estimation is just his impression.71
[72] Mr Ham stated that customer service is a significant part of his job, and that if there are customers who are lost or need his help, he will assist them. If a customer approaches Mr Ham when a train is arriving, he would help the customer. 72
[73] Mr Ham also stated that during delays and disruptions the Cleaning Attendants get a lot more customer service questions and that he will use the provided mobile phone more during delays or disruptions. During disruptions, Customer Service Attendants will be upstairs on the concourse answering phone calls and speaking to the Rail Operations Centre. Cleaning Attendants, however, are the only ones on the platforms during delays or disruptions. Customer Service Attendants give the Cleaning Attendants running updates on their radios, and the Cleaning Attendants communicate this information to customers who approach them or who look like they require information. 73
Evidence Bronwyn Kelly
[74] Ms Kelly is a part-time Cleaning Attendant at Lidcombe station who has been employed in this position since December 2015. Ms Kelly is the President of the Workshops Division of the RTBU. 74
[75] Ms Kelly works as a turnaround Cleaner at Lidcombe station. It was Ms Kelly’s evidence that when she first started at Lidcombe, her role was confined to waiting for trains to arrive and cleaning them. At this time, if a customer asked her a question, she would either direct them to a Customer Service Attendant or radio a Customer Service Attendant. 75 Very little of her day was dedicated to customer service, and she did not often speak to customers and was not encouraged or told to do so by Sydney Trains. She understood that her job was as a cleaner and that Customer Service Attendants dealt with customers.76
[76] Ms Kelly stated that in late 2017, the train timetables servicing Lidcombe Station were changed, increasing the amount of train arrivals. After the change, the volume of customers coming through the station increased significantly, and Ms Kelly started to do more customer service work. 77
[77] Ms Kelly recalled being frustrated that she was now required to do what was effectively Customer Service Attendant work, but her pay had stayed the same. 78
[78] Ms Kelly stated that for as long as she has worked at Sydney Trains, Customer Service Attendants have been provided with mobile phones to assist customers with enquiries and relevant information, and that Cleaning Attendants on stations were also provided with mobile phones in 2017. When the Cleaning Attendants were provided with phones, Ms Kelly stated that they were told the mobile phones were now part of the uniform, and that they were provided so they could give customers real time information about train running. 79
[79] It was Ms Kelly’s evidence that at Lidcombe station during day shift on usual running, 4 or 5 trains will arrive per hour, and that she will board the train and clean the carriages before it departs again. 80
[80] When a train pulls up, Ms Kelly stated that she is the first person customers see when they disembark, and if they have a question, they will typically approach her and ask her a question, usually about their next train, or directions. Ms Kelly estimated that she assists three customers per train arrival, and that she does customer service on every shift. 81
[81] Regarding service disruptions, Ms Kelly stated that when services are disrupted, she is typically directed to focus on customer service and spot cleaning. Spot cleaning might include picking up rubbish, for example. Ms Kelly estimated that service disruption happens at least once a week, and on those days, she finds it very difficult to clean trains because so many customers have questions about when trains will arrive. During service disruptions, Ms Kelly stated that she will not return to the cleaning room at all because she will be doing customer service on the platform or on the concourse. 82
[82] Ms Kelly stated that when there is a signalling fault on one of the lines that service Lidcombe station, one Cleaning Attendant will be directed to do customer service on the platform, and another will do customer service on the concourse. 83
[83] Ms Kelly believed that there was a signalling fault on one of these lines on the night of the Michael Buble concert on 7 February 2020, and that the station was extremely busy with upset customers. Ms Kelly recalled that she had to do a lot of customer service that evening and help arrange replacement bus services, and she doesn’t remember being able to do any of her cleaning duties. 84
[84] Ms Kelly also recalled in 2018 that there was a fatality at Yennora which caused significant delays at Lidcombe station, and she wasn’t able to do any cleaning that day as the Customer Service Attendants were busy answering calls, so the Cleaning Attendants had to answer customer questions. 85
[85] Ms Kelly further stated that approximately two years ago on the day of the Bledisloe Cup, a helium balloon floated into one of the train tunnels in the city and knocked out most of the signals in the Sydney Trains network. Ms Kelly stated that the trains were extremely delayed the entire weekend and she worked 2 x 12 hour shifts that weekend just so she could assist customers and her colleagues through the disruption. Ms Kelly also stated that customers were upset, and one customer threatened to punch her. 86
[86] Ms Kelly stated that when she first started, if there was a fault or delay the turnaround cleaners would just stay in the turnaround room on the station and wait for the next train to come, but now, Cleaning Attendants have to do customer service because there are too many questions for Customer Service Attendants to assist with, and very often, the Customer Service Attendants are otherwise too busy doing operational tasks. 87
[87] Ms Kelly stated that during the Easter Show, she is usually booked on to do overtime and during this time she can’t walk the full length of the platform without having to help someone. 88
[88] Ms Kelly further stated that on paper, her primary responsibility is to provide cleaning services, however she is required to do a significant amount of customer service work. Ms Kelly stated that she helps customers almost every time a train arrives during her shift, and that whilst some of the interactions she has with customers can only last a minute, this is extremely disruptive to her ability to do her turnaround cleaning duties. 89
Evidence of Michael Ang
[89] Mr Ang has been employed by Sydney Trains as a Cleaning Attendant since 2010 and is currently a turnaround cleaner at Bondi Junction station. 90
[90] Mr Ang stated that for as long as he has worked at Sydney Trains, Cleaning Attendants and Customer Service Attendants have worn the same uniform. There are different name tags with their job title, but the writing is quite small, especially from afar. Mr Ang stated that he does not think customers are able to really tell the difference, as this is not obvious. 91
[91] It was Mr Ang’s evidence that in 2015, Cleaning Attendants were issued mobile phones to assist customers who have questions about train running. Before 2015, Mr Ang stated that he did less customer service, but that it increased after the phones were introduced. 92
[92] Mr Ang stated that Cleaning Attendants work all over Bondi Junction station, but Customer Service Attendants work primarily on the concourse, and that when he is working, he will regularly do customer service work. Mr Ang stated that he answers questions from customers, including where the bus to Bondi Beach or the Airport is. 93
[93] Mr Ang stated that when he is waiting for a train to arrive, he will usually stand on the end of the escalator that is going up from the platform so that he doesn’t receive as many questions from customers who are waiting to catch a train. He stated that he does this, because as a turnaround cleaner, he is required to clean trains as they come in as quickly as possible, and even then, some customers will come over to ask him questions. 94
[94] Mr Ang stated that there have been times when he has been told off by management for not helping customers when he has had to clean a train. Mr Ang stated that this would usually happen when he would ask a Duty Manager or Customer Service Attendant to help a customer when he has to do a turnaround. 95
[95] It was Mr Ang’s evidence that in late 2019, the Duty Managers were asking Cleaning Attendants to do ‘lookout work’, which is preventing customers from accidentally boarding a terminating train and to check the train for passengers who might still be remaining on board. However recently Sydney Trains has told the Cleaning Attendants that they are not to do lookout work anymore and should instead direct customers away from the terminating trains’ platform. 96
[96] Regarding service disruptions, Mr Ang stated that if there is a signal failure or disruption, the Station Manager will normally ask Cleaning Attendants to do crowd control on the platform or stand near the stairs to the platform and ask customers to keep behind the yellow line. Cleaning Attendants will also have to relay messages transmitted to them by Customer Service Attendants on the concourse, and answer lots of questions from customers about train arrivals. 97
Evidence of Nyssa Parsons
[97] Ms Parsons is currently employed as a Cleaning Attendant in a stabling yard 98 at Sydney Trains and is the Secretary of the Workshops Division of the RTBU.99
[98] Ms Parsons stated that she wears a Fleet Maintenance uniform while performing work, which consists of a high-vis orange shirt with two reflective strips crossed over one another, blue cargo pants and work boots. Ms Parsons stated that she has to wear high-vis because she works in the danger zone, which is the area three metres horizontal to live track. 100
[99] Ms Parsons states that she has never been issued a work phone, and that only Cleaners in Charge carry mobile phones and iPads. Ms Parsons stated that she would have to ask the cleaner in Charge if she had a question about information about live running. 101
[100] Ms Parsons further stated that she has never seen a customer in her job, because the stabling yard is in the rail corridor and customers are not allowed in the rail corridor. Mr Parsons stated that herself and colleagues who work as Cleaning Attendants for Fleet Presentation Services do not do any customer service work as they do not have the opportunity to engage with customers. 102
Evidence of Brandon Steller
[101] Mr Steller is a Cleaning Attendant at the Bondi Junction station and has been employed in that position for approximately 9 years. 103
[102] Mr Steller stated that Sydney Trains gave him and the other Cleaning Attendants mobile phones in around 2017, and that when he was given the phone, he was told that it was so they could help customers with information about trains and other modes of travel. 104
[103] Mr Steller stated that Bondi Junction has a busy bus station above it, and the only person stationed there is a Cleaning Attendant, who works there from 11am to 7pm seven days a week. A Customer Service Attendant will also be posted there on special events. 105
[104] Mr Steller stated that customers often don’t know how to get where they want on the bus network, so they will often approach station staff, including the Cleaning Attendant who is stationed there, about how to get where they want. 106
[105] Mr Steller stated that the phones have transport information apps on them, such as TripView and Google Maps, and they also have the station PA system attached to them, so someone equipped with a mobile phone can make announcements on the station. 107
[106] It was Mr Steller’s evidence he has made PA announcements a few times, such as when there is track work or telling customers about replacement buses due to disruptions. Mr Steller also makes announcements when the station is closing for the evening. 108
[107] Mr Steller stated that he was told by Sydney Trains that he could check his emails, rosters and look at the safe working instructions on the phones. Mr Steller further stated that when he uses his phone, the majority of the time it is to help with customer service, but he also uses the phone to check his emails, use the rostering app, look at safe work instructions and undertake online training exercises. 109
[108] Mr Steller stated that during a shift, he estimates on average that he helps around 30 customers, and some days it could be as high as 100 or 200 depending on if the weather is nice and people want to go to the beach. When the station is crowded because people want to go to the beach, Cleaning Attendants will also often have to help with keeping customers in queues, as well as do their cleaning duties. 110
[109] Mr Steller stated that if you are a frontline station staff employee, you are expected to help customers if the need arises, such as if the trains are running off schedule, there is a fire evacuation or replacement buses are being provided. 111
[110] Mr Steller stated that he has never told a customer ‘that’s not my job’ because he doesn’t want to cause trouble or animosity at the station. Mr Steller said that throughout his training, he was taught to respect and assist customers when they ask for help, and to make them happy. 112
[111] It was Mr Steller’s evidence that being asked to do this much customer service work makes him feel uncomfortable, as he doesn’t want to be asked to do something that he’s not technically meant to do in his contract, because it exposes him to risk, however he also doesn’t want a customer to complain about him for being unhelpful. Mr Steller stated that he felt like Sydney Trains is taking advantage of his and the other Cleaning Attendants’ willingness to help customers so they can avoid having to staff the stations properly. 113
[112] Mr Steller stated that if he was classified formally as a Customer Service Attendant, it would give him peace of mind that should the station be short staffed or there is some sort of disruption, he would be able to do the job that is currently expected of him. 114
[113] Mr Steller stated that when he first started working at Bondi Junction in 2012, he wore a hi vis orange top and black pants and customers rarely approached. Around February 2014, Sydney Trains introduced new uniforms for all station staff, including Cleaning Attendants, and around this time, Sydney Trains introduced a new ‘customer service focus’ strategy to apply to all employees and policies within the organisation. 115
[114] Mr Steller stated that what this meant was that employees would be required to ‘centre the customer at everything they do’, and that Sydney Trains justified introducing the new uniforms for frontline staff by saying that it was to match the new customer focussed strategy. When Mr Steller started wearing the new uniform, he stated that he felt like part of the station staff team, and that customers started approaching him a lot more. 116
Evidence of Omar Jappie
[115] Mr Jappie is employed as a Cleaning Attendant at the Wolli Creek station and has been in that position since around 2015. Mr Jappie also worked at Revesby station for a year prior to this. 117
[116] Mr Jappie stated that when he first started at Revesby, he wore a hi vis orange shirt and blue pants, and when the new uniforms were introduced, he started doing a lot more customer service work. 118
[117] Mr Jappie’s evidence was that around the time he worked at Revesby, he was elected as a Health and Safety Representative for his work group, and he was given a mobile phone for this reason.
[118] Mr Jappie recalled that in around 2016, Susannah Le Bron began working as an Executive Director Customer Service at Sydney Trains. Mr Jappie stated that Ms Le Bron was the person who introduced a new customer service model at Sydney Trains, where customer service would be the focus in all aspects of work at the organisation. 119
[119] It was Mr Jappie’s evidence that around this time, Ms Le Bron organised a workshop event for employees to come up with new ways to implement the customer service model in their relevant areas. Mr Jappie recalled that someone mentioned that Cleaning Attendants on stations didn’t have mobile phones, and Ms Le Bron said that everyone who was ‘frontline staff’ should have a mobile phone. Not long after this meeting, Cleaning Attendants on stations were given mobile phones. 120
[120] Mr Jappie stated that Sydney Trains held ‘mobile phone sessions’ where mobile phone Ambassadors, who are Sydney Trains employees, explained the purpose of the phones and how to use them. In these sessions, there was a lot of focus and training on how to use the apps installed on the phones, such as TripView, to help customers. In particular, Mr Jappie stated that there was a focus on how to help customers when they approached staff with a question. 121
[121] Mr Jappie stated that he mostly uses his mobile phone for customer service, and he also checks his emails on it. 122
[122] Mr Jappie estimated that per shift, he would assist a customer around fifteen or twenty times, and that he does a lot more when there is a delay. Mr Jappie further provided that he would use his mobile phone for around half of those interactions. 123
[123] Mr Jappie stated that he has made a conscious effort to answer questions from customers quickly and effectively to limit their impact on his cleaning duties. If he didn’t do this, it would have a significant impact on whether he was able to complete his cleaning duties. 124
[124] Mr Jappie stated that if he didn’t have a phone, he would have to go and find the information out himself or direct the question to a Customer Service Attendant or Duty Manager, and that he doesn’t want to fob a customer off or make them wait for help if it’s something he knows he can assist with. 125
[125] Mr Jappie stated that he thinks Sydney Trains expects Cleaning Attendants to do a lot of customer service, and this expectation was raised with the new uniforms and again when they gave the mobile phones. 126
Evidence of Adrian Pickett
[126] Mr Pickett is a Cleaning Attendant at Bondi Junction station and was formerly a Customer Service Attendant. 127
[127] Mr Pickett was first employed by CityRail as a Customer Service Attendant at Bondi Junction in 2000. Mr Pickett stated that in 2009, RailCorp took over managing train services from CityRail. Mr Pickett preferred to be a Cleaning Attendant because they were not required to sell tickets, and in early 2010, he negotiated to maintain his Customer Service Attendant wage while working and being classified as a Cleaning Attendant. 128
[128] Mr Pickett stated that as a turnaround cleaner, he is required to wait for a train to arrive, then quickly clean the train and disembark before it leaves. 129
[129] Mr Pickett stated that when he is waiting for a train to arrive, customers approach him and ask questions, and if it is something he knows, or something he may be able to obtain information about from his mobile, he will assist them. 130
[130] Mr Pickett estimated that he spends approximately 25% to 30% of his time on shift assisting customers with questions, and that he generally tries to keep customer service interactions to a minimum so he can focus on cleaning.
[131] Mr Pickett stated that Cleaning Attendants work on the platform, concourse and bus interchange, and that Customer Service Attendants only work on the concourse unless they are on the platform doing flagging for the trains to depart, meaning that Cleaning Attendants perform almost all of the customer service functions on the platform and bus interchange. 131
[132] Mr Pickett stated that Cleaning Attendants are more available and visible to customers. For example, a turnaround cleaner will often be the first person a customer sees when they depart a train. 132
[133] Mr Pickett stated that in 2015, Cleaning Attendants were given mobile phones, and that he did less customer service prior to receiving the mobile phone.
[134] Mr Pickett stated that service disruptions and delays occur very frequently at Bondi Junction Station and that Customer Service Attendants have to do a lot more customer service work during a delay or disruption. 133
Evidence of Helen Bellette
[135] Ms Bellette is an organiser employed by the RTBU and has been employed in this position since 2012. Prior to this, Ms Bellette was employed by RailCorp as a Transit Officer. 134 Ms Bellette stated that she is responsible for organising Cleaning Attendants who are managed by Fleet Presentation Services, who work in stabling yards.135
[136] Ms Bellette stated that she became aware of the current dispute in early 2018, when Mr Steck the President of Customer Service Sub-Division of the RTBU and also a Customer Service Attendant at Strathfield station, asked her why Cleaning Attendants on stations were being directed to do so much customer service work. 136
[137] It was Ms Bellette’s evidence that in around June 2018, she conducted a sample survey of 23 stations in the Sydney Trains Metro area where Cleaning Attendants worked. 137
[138] Ms Bellette stated that on 28 March 2019, the RTBU and Sydney Trains attended a conference at the Fair Work Commission before Senior Deputy President Hamberger who issued a recommendation that the parties, among other things, work together to conduct another survey on Cleaning Attendant duties. Ms Bellette stated that the recommendation asked for the number of customer service interactions to be averaged over each shift. 138
[139] Ms Bellette stated that the RTBU and Sydney Trains agreed that two teams of people would conduct the Joint Survey, and that each team was comprised of one person from the RTBU and one person from Sydney Trains. 139
[140] On 12 April 2019, Ms Bellette stated that Trent Hunter provided her with an email outlining Arthur Loucas’ proposed terms of reference and worksheets for the Joint Survey. Ms Bellette stated that Mr Loucas is the Deputy Executive Director – Customer Support at Sydney Trains and Ms Bellette understood that Mr Loucas’ proposed terms were agreed to by the RTBU. 140
[141] Ms Bellette stated that the teams conducted the Joint Survey from April 2019 to June 2019 which comprised of 105 visits to 39 stations. After the Joint Survey was completed in July, Bronwyn Kelly and Ms Bellette collated the raw data together and put it into a spreadsheet. 141
[142] On 24 July 2019, Ms Bellette stated that Arthur Loucas wrote to her and said that based on the data they had collected, the claim had no merit, and he sought their position and told the RTBU that if they continued with the dispute, Sydney Trains would press their objection that the dispute was an attempt to make an extra claim to the Agreement. 142
[143] On 6 August 2019, Ms Bellette responded to Mr Loucas and outlined the RTBU’s position, and explained that the RTBU did not think Sydney Trains’ approach to averaging the customer service shifts fairly reflected the reality of the data that had been collected. 143
[144] Ms Bellette stated that rather than averaging customer service interactions per shift, Ms Bellette could see from the data that was provided to her on 24 July that Sydney Trains had simply averaged all of the shifts together over a 24 hour period, and this approach, in Ms Bellette’s view, was flawed and defective. 144
[145] Ms Bellette stated that she explained this concern in her letter and provided two examples where interactions during night shift were far lower than in day or afternoon shift. Ms Bellette further stated that she did not recall getting a response to her letter and has been unable to locate a response in the RTBU’s records. 145
[146] In cross-examination, however, Ms Bellette accepted that Sydney Trains had adjusted the average for shifts.146 Ms Bellette also accepted in cross-examination that the majority of interactions between Cleaning Attendants and customers were short interactions of up to 30 seconds’ duration, 147 and that for Cleaning Attendants, whether they are station cleaners or turnaround cleaners, the predominant part of their role is cleaning.148
Sydney Trains Submissions
[147] It was submitted by Sydney Trains that employees employed by Sydney Trains as station cleaners and turnaround cleaners located at train stations are properly classified as Cleaning Attendants under Section 3 of the Agreement. 149
[148] It was also submitted by Sydney Trains that the Commission has no jurisdiction to determine the dispute as the dispute raised by the RTBU is to be properly understood as “extra claims for any changes in remuneration or conditions of employment” of Cleaning Attendants and is prohibited by operation of sub clause 13.1(b) of the Agreement. 150
[149] Sydney Trains accepted that given their role and location, Cleaning Attendants working at train stations do on an intermittent and ad hoc basis come into contact with customers. This is said to be sporadic and infrequent and arises because Cleaning Attendants perform work at train stations whilst trains are in use and undertake cleaning tasks in the presence of customers.
[150] Following an earlier recommendation made by the Commission, both parties agreed to terms of reference and then engaged in an evidence-based approach to record and analyse the work and duties performed by Cleaning Attendants. In analysing the data and taking an approach that was overly generous to the RTBU, the outcome was that, on average, the Cleaning Attendants who were observed during the agreed undertaking, interacted with customers for 3.65% of their working shift. 151
[151] Sydney Trains submitted that the RTBU does not challenge or seek to undermine the underlying data gathered during the agreed observations, but rather, the issue taken by the RTBU is that the data is being “misrepresented” because it is being “averaged out”. Sydney Trains stated that even taking the approach advanced by the RTBU and breaking down the data by shift types, the data shows that the average customer service duties performed were between 1.86% and 4.29%. 152
[152] Sydney Trains submitted that the relevant question for the Commission is what is the principal purpose of the Cleaning Attendants who are engaged as either station cleaners or turnaround cleaners, having regard to both the quality and quantity of the duties they perform? 153
[153] It was submitted that the Agreement does not provide a definition or indicative tasks of the Cleaning Attendant classification or the Customer Service Attendant Class 1 Competent (Cleaning) classification.
[154] Sydney Trains also submitted that:
(a) whilst there are position descriptions for the Cleaning Attendant and Customer Service Attendant classifications, there is no position description for the Customer Service Attendant Class 1 Competent (Cleaning) classification;
(b) no employee of Sydney Trains has ever been employed in Customer Service Attendant Class 1 Competent (Cleaning) role;
(c) the Customer Service Attendant Class 1 Competent (Cleaning) classification is seemingly otiose;
(d) Station Cleaners and Turnaround Cleaners have been paid under the Cleaning Attendant classification (or its predecessor) since at least 2010, with no issue being raised by the RTBU; and
(e) the proper classification of the Station Cleaners and Turnaround Cleaners was not raised by the RTBU during the Agreement negotiations, where the classification and remuneration could have been clarified and subject to negotiations. 154
[155] Regarding the proper classification of Cleaning Attendants, Sydney Trains submitted that:
(a) First, the principal purpose of the Cleaning Attendant role is to provide cleaning services, and this is clear from the position description of Cleaning Attendants;
(b) Second, the data collected during the agreed observations shows that, applying the generous timing formula, the average time station cleaners and turnaround cleaners spent interacting with customers was 3.65%;
(c) Third, there is no evidence that the station cleaners and turnaround cleaners are directed to provide services to customers (other than cleaning), or to prioritise customer service work during their duties;
(d) Fourth, the fact that station cleaners and turnaround cleaners wear the same uniform as the Customer Service Attendants is of no moment;
(e) Fifth, the inclusion of Cleaning Attendants in Section 3 (and Schedule 3A) of the Agreement is to be understood in the context of the “Presentation Services” sub-category being captured in Schedule 3A, and cleaning of trains clearly falling within that description; and
(f) Finally, the surrounding circumstances of the making of the Agreement strongly support the interpretation advanced by Sydney Trains. 155
[156] Regarding the no extra claims jurisdictional argument, Sydney Trains contended that clause 13.1(b) of the Agreement, in the traditional (and enforceable) way, provides that parties will “make no extra claims for any changes in remuneration or conditions of employment”, and that the dispute seeks to change the remuneration afforded to station cleaners and turnaround cleaners. It was submitted that the RTBU is seeking to make a claim which it is not entitled to pursuant to sun clause 13.1(b) and accordingly, the Commission does not have jurisdiction to determine the dispute. 156
Sydney Trains Witnesses
[157] Sydney Trains tendered evidence through two witnesses:
Arthur Loucas | Deputy Executive Director, Customer Support |
Robert Joleski | Customer Area Manager at Strathfield |
[158] Both Mr Loucas and Mr Joleski were required for cross-examination.
Evidence of Arthur Loucas
[159] Mr Loucas is employed by Sydney Trains in the position of Deputy Executive Director, Customer Support and has held this position since December 2016. In this role Mr Loucas is responsible for, among other things, Facilities Management; Customer Operations; Procurement; Logistics and Workforce Services. 157
[160] It was Mr Loucas’ evidence that bargaining for the Agreement commenced on or around 28 June 2017, and the RTBU was one of the bargaining representatives for the Agreement. The Agreement replaced and superseded the Sydney Trains Enterprise Agreement 2014 (2014 EA), which in turn replaced and superseded the RailCorp Enterprise Agreement 2010 (2010 EA). 158
[161] Mr Loucas stated that the Agreement and the 2014 EA both included the classification of Cleaning Attendant at Schedule 3A, and that the classification of Cleaning Attendant in the 2014 EA replaced the Presentation Services Attendant classification in the 2010 EA. Mr Loucas stated that this change occurred as a consequence of the “Cleaning Reform” program which occurred in 2011/2012 and involved extensive consultation with the RTBU and the Australian Services Union, followed by consultation with impacted staff. 159
[162] Mr Loucas stated that he is not aware of the RTBU raising any claims in relation to the Cleaning Attendant classification during the Agreement negotiations. 160
[163] Mr Loucas provided that Cleaning Attendants at Sydney Trains perform work at two different locations and under the supervision of two different directorates:
(a) On train stations as station cleaners and turnaround cleaners (under the supervision of the Customer Service Directorate); and
(b) Stabling yards and maintenance centres (under the supervision of the Fleet Maintenance Directorate). 161
[164] Mr Loucas stated that in practice, when Cleaning Attendants perform work at a train station, they are subject to the day-to-day supervision of a Customer Area Manager, however, if they are performing work in stabling yards and maintenance centres, they are subject to the supervision of a manager in the Fleet Maintenance Directorate. He further stated that all Cleaning Attendants, irrespective of work location are classified and paid in accordance with Schedule 3a of the Agreement under the “Presentation Services”, as Cleaning Attendants, which has been the practice under the 2010 EA and the 2014 EA. 162
[165] Mr Loucas stated that there are approximately 550-600 Cleaning Attendants at Sydney Trains, 250 of whom work at train stations. Cleaning Attendants who work at train stations are either classified as station cleaners or turnaround cleaners. 163
[166] Mr Loucas provided the position description for the Cleaning Attendant classification, particularly noting that under the heading “Primary Purpose”, the position description provides:
“The primary responsibility of the Cleaning Attendant (CA) role is to provide consistent and high quality cleaning services in relation to the presentation of Sydney Trains and NSW Trains trains and stations. The team performs high quality, visible cleaning services to deliver a first class customer experience for the travelling public… The CA will comply with the applicable cleaning manual and will undertake any prescribed work schedules and requests for ad hoc cleaning tasks…” 164
[167] Mr Loucas stated that although the primary responsibility of the Cleaning Attendants is to provide consistent and high quality cleaning services, Cleaning Attendants do, at times, interact with customers, because the Cleaning Attendants perform work at train stations whilst the trains are in use and undertake cleaning tasks in the presence of customers. 165
[168] It was Mr Loucas’ evidence that these interactions are:
(a) Very brief interactions, lasting some seconds, where a customer may ask for the location of bathrooms, buses, and the like;
(b) Brief interactions, which may last a minute or so, where a customer may ask about train running times, train lines and up to date information about delays; and
(c) Ad hoc medical or other emergency, or special events, interactions where the number or duration of the interaction(s) between customers and Cleaning Attendants may be higher in quantity or duration. 166
[169] Mr Loucas stated that the primary purpose of Cleaning Attendants performing work at train stations is to ensure that trains and platforms are kept clean and, in turn, a quality service is provided to customers. Mr Loucas further stated that dealing with approaches by customers whilst they are performing their work is ancillary to the primary purpose of Cleaning Attendants. 167
[170] Mr Loucas provided the position description for the Customer Service Attendant classification, particularly noting that under the heading “Primary Purpose”, the position description provides:
“The Customer Service Attendant will be required to undertake a broad range of station functions with a sound knowledge of policies, procedures and guidelines. Such functions will include train operations, customer service, and station presentation.” 168
[171] Mr Loucas stated that one of the responsibilities of the Customer Service Attendants is to attend to station presentation, and in practice, this includes some cleaning functions such as emptying rubbish bins, cleaning seats and bathrooms, and generally ensuring that the concourse area is clean and free of rubbish. 169
[172] It was Mr Loucas’ evidence that the Agreement, the 2010 EA and the 2014 EA all include the classification of Customer Service Attendant, and in particular, Customer Service Attendant Class 1 Competent (Cleaning) at Schedule 4A, however, to the best of Mr Loucas’ knowledge there is not, and has never been, a position description for that classification and no employee has ever been classified in that role. 170
[173] Regarding the current dispute, Mr Loucas stated that the Agreement was made on 23 March 2018, and by letter on 30 April 2018, the RTBU notified Sydney Trains of a Step 2 Dispute Notification in relation to Cleaning Attendants performing work on train stations. 171
[174] In November 2018, Mr Loucas met with the RTBU in relation to the dispute, and on 16 December 2018, the RTBU escalated the dispute to step 3 under the Agreement. On 18 March 2019, the RTBU filed a Form F10 with the Commission. 172
[175] Mr Loucas stated that on 28 March 2019, the matter was listed for conference before SDP Hamberger in accordance with Step 4 of the Dispute Settlement Procedure in the Agreement. During the conference, SDP Hamberger recommended that the parties engage in an evidence-based approach to the concerns raised by the RTBU about work and duties performed by Cleaning Attendants. 173
[176] On 12 April 2019, Mr Loucas emailed the RTBU a draft document of proposed terms of reference for the analysis. Mr Loucas stated that the RTBU agreed to the terms of reference.
[177] Mr Loucas further stated that Sydney Trains’ analysis was concluded in July 2019, and that the process by which the information was collected was as follows:
(a) The information was collected by a team comprising one RTBU representative and one Sydney Trains representative;
(b) The information was recorded on worksheets and agreed and signed off by each member in the team;
(c) A copy of the completed worksheets appears at Annexure HB-5 of the Bellette Statement; and
(d) Once the observations were agreed between the parties, the worksheets were sent to Joseph Mercieca (Manager, Heavy Cleaning, Customer Service & Operations Delivery, Sydney Trains) and Trent Hunter (Organiser, RTBU) to be collated. 174
[178] In July 2019, Mr Loucas was provided with a spreadsheet from Mr Mercieca which summarised the data collated. To analyse the data, Mr Mercieca informed Mr Loucas that he applied the following formula:
(a) For “Short” interactions, the outer time period of 30 seconds was used, regardless of the time that was actually taken for the interaction;
(b) For “Medium” interactions, the outer time period of 2 minutes was used, regardless of the time that was actually taken for the interaction; and
(c) For “Long” interactions, the time of 4 minutes was used, regardless of the time that was actually taken for the interaction. 175
[179] On 24 July 2019, Mr Loucas emailed Ms Bellette a letter which outlined the findings of Sydney Trains’ analysis and enclosed a copy of the data analysis table provided to Mr Loucas by Mr Mercieca. 176
[180] On 6 August 2019, the RTBU sent a letter to Mr Loucas disagreeing with the analysis alleging that it was “misrepresented by being averaged out”, and the RTBU then outlined the reasons as to why they disagreed with the analysis. 177
[181] Mr Loucas stated that he carefully reviewed the concerns raised by the RTBU, and in light of the RTBU’s concerns, re-analysed the data collected. Attached to Mr Loucas’ witness statement was a copy of the spreadsheet enclosed with a letter to Ms Bellette of 24 July 2019, with three extra columns. Mr Loucas made the following comments in relation to the re-analysed data:
(a) “I have arranged the percentage of interaction time figures into “Morning / Day”, “Afternoon / Evening” and “Night” shifts so as to analyse the interactions for the different times of day. However, some of the shift times do not fall neatly within each of these categories;
(b) For “Morning / Day” shifts, the average customer service duties performed on each shift was 4.03%;
(c) For “Afternoon / Evening” shifts, the average customer service duties performed on each shift was 4.29%;
(d) For “Night” shifts, the average customer service duties performed on each shift was 1.86%; and
(e) I note that the majority of the 105 visits observed that less than 10% of customer service duties were performed on each shift; and
(i) On only 5 occasions of those observed site visits was more than 10% customer service duties performed; and
(ii) Of those 5 occasions that were over 10% customer service duties performed, two were on 17 and 19 April 2019 at Lidcombe Station during the Royal Easter Show. This event attracts a significant number of additional customers through the station.” 178
[182] Mr Loucas stated that he also considered the alternative analysis put forward by the RTBU, and in particular the observations in relation to three particular stations, namely Strathfield, Wynyard, and Lidcombe. Mr Loucas stated that he understood these stations are very busy and Cleaning Attendants working at these stations would likely have more interactions with members of the public because these stations are interchanges that permit customers to commute via various connecting train lines. From the data he analysed, Mr Loucas noted:
(a) “Strathfield Station was observed on 4 occasions in Sydney Trains’ evidence-based analysis, twice on 22 April 2019, on 24 April 2019 and on 25 April 2019 (noting that based on my experience, there would have been a significantly increased volume of customers given it was ANZAC day);
(b) The average customer service duties at Strathfield Station arising from Sydney Trains’ analysis was 10.89%; Wynyard Station was observed twice in Sydney Trains’ evidence-based analysis on 26 June 2019 and 3 July 2019;
(c) The average customer service duties at Wynyard Station arising from my analysis was 8.60%; and
(d) Lidcombe Station was observed on 9 occasions in Sydney Trains’ evidence-based analysis on 17 April 2019, 19 April 2019 (2 occasions), 8 May 2019, 13 May 2019, 14 May 2019, 16 June 2019, 21 June 2019, and 6 July 2019. The average customer service duties at Lidcombe Stations arising from Sydney Trains’ analysis was 8.27%”. 179
[183] Mr Loucas stated that he understood that the RTBU disagreed that the data should be averaged in the analysis, however, he stated that it was, and continues to be his view that averaging out the data is appropriate, as there are not different “tiers” (or pay rates) of Cleaning Attendants based on the station at which they perform work, or the shift upon which they perform work. Rather, there is a single classification and pay rate for Cleaning Attendants. 180
[184] Mr Loucas agreed that Cleaning Attendants who work at train stations have work-issued mobile phones, and Cleaning Attendants who perform work in the stabling yards and maintenance centres do not. 181
[185] Mr Loucas stated that the mobile phones were issued to Cleaning Attendants performing work on train stations in or around 2015 or 2016. Before mobile phones were issued, they would need to find a computer to log in and read their emails and communications, and this was disruptive to their core duties of cleaning services. 182
[186] Mr Loucas stated that for this reason, they were issued mobile phones, which also allowed them to communicate with a Customer Area Manager during their shift. Mr Loucas also stated that he understands Customer Service Attendants ordinarily use their mobile phones to assist customers with queries, whereas Cleaning Attendants ordinarily use their mobile phones to interact with their supervisors. 183
[187] Mr Loucas stated that Cleaning Attendants who work at train stations wear the same uniforms as Customer Service Attendants, and all Sydney Trains’ station staff wear a name badge which makes their first name visible. 184 Mr Loucas’ evidence was that the RTBU objected to the classification of Cleaning Attendant being made visible on their uniform.185
[188] Mr Loucas stated that more generally, despite some minor differences in the uniform worn by people in different roles, where Sydney Trains’ employees are visible to the public, it is important to Sydney Trains that consistency in image is maintained. 186
[189] Mr Loucas further provided that the reason why Cleaning Attendants in Fleet Maintenance have to wear a different uniform to those worn by Cleaning Attendants who work at train stations, as well as Customer Service Attendants, is because the environment in which they work, requires them to be visible to avoid an accident occurring and protective wear is issued to protect Cleaning Attendants from strong cleaning chemicals that are used to perform deep cleaning and wash ceilings, walls, floors and graffiti from train panels. 187
[190] Mr Loucas accepted that members of the public do not differentiate between Customer Service Attendants and other Sydney Trains employees including himself when he walks through a train station as he is sometimes asked questions from customers and has observed train drivers and guards being approached by customers when they are on the concourse and platforms. 188
Evidence of Robert Joleski
[191] Mr Joleski is employed by Sydney Trains in the position of Customer Area Manager at Strathfield and has held this position since July 2017. Mr Joleski stated that he has been employed by Sydney Trains and its predecessor entities, for approximately 25 years. 189
[192] In his role, Mr Joleski leads an area of station teams of front-line people and manages the delivery of standards of customer service, cleanliness, and maintenance of the station environment, including cleaning trains. This includes:
(a) Overall management of seven stations, comprising Strathfield, Lidcombe, Auburn, Clyde, Homebush, Olympic Park and Flemington;
(b) Management of 129 employees, including Station Duty Managers, Customer Service Attendants, Cleaners in Charge and Cleaning Attendants; and
(c) Overall management of 28 cleaning staff in his area comprising:
(i) 7 cleaners in charge
(ii) 21 Cleaning Attendants. 190
[193] Mr Joleski stated that Cleaning Attendants employed to work at a train station report directly to the Customer Area Manager or the Station Duty Manager on duty, and that the Cleaner in Charge is responsible for providing assistance to frontline management, with the coordination of a team of cleaning staff responsible for performing cleaning functions. 191
[194] Mr Joleski stated that Cleaning Attendants who work at train stations are generally employed in two categories, station cleaners and turnaround cleaners, however, each may occasionally work overtime shifts in the other category. Mr Joleski stated that station cleaners and turnaround cleaners who work at train stations work under the same position description. 192
[195] Mr Joleski provided copies of Staff Duty sheets for station cleaners and turnaround cleaners at the Lidcombe station. 193 Mr Joleski stated that these were developed and implemented in consultation with affected employees and/or their RTBU representatives.194
[196] Mr Joleski also provided a copy of the Turnaround Cleaning Process at Lidcombe, that had been developed in consultation with affected staff and/or their Union Representative(s) to assist turnaround cleaners. Mr Joleski stated that each Turnaround Cleaning Process includes the words “Customer Service” under the document heading, and that this is a reference to the “Customer Service Directorate”. The process itself does not refer to providing assistance to customers, other than in the form of cleanliness. 195
[197] Mr Joleski also stated that turnaround cleaners complete task and data sheets for each of their shifts and provided copies of these from Lidcombe, Homebush and Clyde which were attached to his witness statement. These documents record the number of cars cleaned, the amount of rubbish removed and record any comments related to this cleaning task. 196
[198] Regarding the rostering and work location of Cleaning Attendants, Mr Joleski stated that the complexity and demand at particular stations on the Sydney Trains network determine the Cleaning Attendant staffing levels on any one station. For example, some stations have both station and turnaround cleaners, some only have station cleaners, some have no employed Cleaning Attendants and cleaning is performed by cleaning contractors and managed by a private cleaning company, and some stations have no employed Cleaning Attendants and cleaning is performed by Customer Service Attendants who perform both customer service and cleaning duties. 197
[199] Mr Joleski stated that the primary responsibility of the Cleaning Attendant is to provide consistent and high quality cleaning services, whilst the primary responsibility of the Customer Service Attendant role is to undertake a broad range of station functions which include train operations, customer service and station presentation. 198
[200] It was Mr Joleski’s evidence that although it is not part of their primary purpose, Cleaning Attendants do help customers from time to time, as is the case with all Sydney Trains employees including cleaning and security contractors who may also work at a station. This occurs when customers approach Cleaning Attendants who are located at stations, not because they are directed to seek assistance from Cleaning Attendants, but because they wear a Sydney Trains uniform and are identifiable as Sydney Trains employees. 199
[201] Mr Joleski stated that when he first joined State Rail in 1995, he was employed as a cleaner at Circular Quay Station and tourists approached him frequently to seek assistance while performing his cleaning duties. 200
[202] Mr Joleski observed that all Sydney Trains employees who work on a station, if asked a question by a customer, will respond if they know the answer. In Mr Joleski’s experience, this is expected of all Sydney Trains employees, even if the answer is to simply direct the customer to someone else who may be able to assist. If the employee does not know the answer, then they will generally refer the customer to a Customer Service Attendant or Duty Manager. 201
[203] Mr Joleski stated that there has been customer growth at stations in his area based on Opal tap on and off data, but even though there has been an increase in patronage at some stations, from his observations, customers are less reliant on asking questions because of the introduction of technology, specifically the real time train information and transport apps such as “Next There”, “TripView”, “Opal Travel” or “Google Maps”. 202
[204] Mr Joleski disagreed with the statement that due to the amount of customer service, Cleaning Attendants are required to undertake that this has impacted on the quality of cleaning. 203
[205] Mr Joleski stated that the Customer Experience Management Program (CXMP) is designed to support employees in providing customers with exceptional service, and this includes the assessment of cleanliness on stations and trains. Cleanliness is measured on a scale of 1 (lowest) to 7 (highest), and the current cleanliness targets for Mr Joleski’s area for Station Cleanliness is 6.1 and Train Cleanliness is 6.0. 204
[206] When he first started in his current position in early 2017, the results were not meeting targets, however the ratings in his area have dramatically improved in the last 3 years. Mr Joleski provided CXMP reports for Lidcombe station, and turnaround CXMP reports from Lidcombe and Homebush stations, comparing cleanliness results between early 2017 and late 2019 demonstrating this improvement. Mr Joleski stated that during this period at Lidcombe station there has been no increase in the number of Cleaning Attendants rostered to work each shift. 205
[207] Based on the increased cleanliness ratings over the past three years, and his experience and observations, Mr Joleski stated that Cleaning Attendants are performing their cleaning duties more effectively now than they were in early 2017.
[208] Mr Joleski provided further evidence that train cleanliness and station cleanliness have both increased at Bondi Junction between early 2017 and late 2019. Mr Joleski also stated that the turnaround cleaning cycle has increased, from 2 trains per hour prior to 2017, to 4 trains per hour. 206
[209] Mr Joleski disagreed with Ms Kelly’s evidence that disruptions at Lidcombe that would have any impact on Cleaning Attendants occur weekly. Mr Joleski stated that since 3 January 2020 until 3 June 2020, based on a train transpositions document provided to him by the Customer Information Unit, it appeared that 63 changes occurred to trains scheduled to arrive on platform 5 at Lidcombe Station, and that this is very minimal considering on a daily basis on this platform approximately 45 trains are cleaned on weekdays and approximately 23 trains are cleaned on weekends. 207
[210] Mr Joleski stated that when disruptions occur where trains may be delayed, are diverted, or cancelled:
(a) Station Cleaning Attendants who work on the station will continue their usual duties; or
(b) For example, at Lidcombe station when there are no trains on platforms 0 208 or platform 5, the Turnaround Cleaners will be directed to assist Sydney Trains in other ways. In such circumstances, if turnaround cleaners were not directed to perform alternate duties, they would not be performing any duties.209
[211] Mr Joleski stated that during planned special events and track-work additional cleaners and customer service employees are rostered to work depending on the event size and demand. 210
[212] Mr Joleski disagreed with Ms Kelly’s assessment of the duties performed by Customer Service Attendants, stating that Customer Service Attendants perform a range of complex tasks, far beyond answering small customer enquiries as indicated by Ms Kelly. 211 Mr Joleski’s evidence was that on commencement of employment at Sydney Trains, the induction and training schedule for a Customer Service Attendant requires an 18 day training program, whereas a Cleaning Attendant only requires 8 days.212
[213] Mr Joleski stated that (although he cannot recall when), mobile phones were issued to all station employees including Cleaning Attendants for the following reasons, but not limited to:
(a) Easy access to internal staff communications, including monthly safety briefings, communications from the executive team; and workplace email account;
(b) Access to transport apps including train information, which enables, amongst other things, turnaround cleaners to access train running information relevant to their duties such as delays; and
(c) Access to the Safe Zone app (a duress alarm for employees). 213
Consideration
[214] The RTBU has submitted that Cleaning Attendants working at train stations as cleaners and turnaround cleaners have been incorrectly classified as Cleaning Attendants under the Agreement. It is contended that the correct classification of these employees is:
• Customer Service Attendant Class 1 Competent (Cleaning)
which is a classification found in Schedule 4A Classification & Rates of Section 4 Operations of the Agreement under the heading Station Operations.
No Extra Claims
[215] Sydney Trains has submitted that the dispute filed by the RTBU falls afoul of clause 13 of the Agreement. In essence, it is submitted that the dispute is a claim for increased wages for cleaners whose circumstances have not changed since the negotiation and approval of the Agreement. Sydney Trains contends that the dispute seeks to change the remuneration afforded to station cleaners and turnaround cleaners.214
[216] The relevant Agreement provision is sub clause 13.1(b) which, with reference to the Agreement parties, states:
“(b) except in accordance with the terms of Clause 22, shall make no extra claims for any changes in remuneration or conditions of employment;”
[217] The no extra claims objection is put forward ‘particularly in light of the historical context’ of the dispute.215 Sydney Trains submits that cleaners have been classified and paid as Cleaning Attendants over successive enterprise agreements without a claim being made in relation to the classification of Cleaning Attendants. The dispute was not raised until after the approval of the current Agreement.
[218] The question asked by the RTBU is whether certain Cleaning Attendants working within the Customer Operations Directorate at train stations are correctly classified as per the Agreement classifications.
[219] The no extra claims clause serves a purpose applicable to all parties bound by the Agreement. As stated by the Full Court in Toyota Motor Corporation Australia v Marmara (Toyota), 216in traversing the history of ‘no extra claims’ clauses, the purpose was to require the parties, usually the relevant union and its members, to foreswear any attempt to improve upon the wages, conditions and other benefits for which the relevant industrial instrument provides.217
[220] I do not accept, as appears to be contended by the RBTU, that the no extra claims clause of the Agreement is unenforceable. 218 In Toyota, the Full Court held at [110] that the no further claims provision in the relevant agreement was invalid as it was in conflict with Subdivision A of Division 7 of Part 2-4 of the Act which concerns the variation and termination of enterprise agreements. The introductory paragraph in clause 13.1 of the Agreement appears to have been inserted in response to the Toyota Full Court decision having regard to the origins of the Agreement.219 The introductory paragraph states:
“This clause is subject to the right to a variation of this Agreement in accordance with Part 2-4 Division 7 of the Fair Work Act 2009 (Cth)”.
[221] In the decision of the Full Bench in Australian Rail, Tram and Bus Industry Union v NSW Trains T/A NSW TrainLink, 220the Full Bench was dealing with an identical no extra claims clause and held that no issue of repugnancy with the ‘no extra claims’ clause existed with regard to the provisions of the Act, as the clause is subject to the right to a variation of the Agreement in accordance with Part 2-4, Division 7 of the Act.221
[222] On the above basis, I consider that the no extra claims clause is an operative and enforceable term of the Agreement. Despite this conclusion, it is only fatal to the RBTU’s dispute application if the dispute raised by the RTBU is considered an extra claim.
[223] While the circumstances surrounding the dispute have been in existence for some time, and were available to be raised by the RTBU at the negotiation of the 2018 Agreement, this in my view does not detract from the right of any party to the Agreement to seek to clarify at any time, pursuant to the dispute clause, whether the Agreement is being applied correctly and in this case the application of the classification structure to Cleaning Attendants.
[224] It is not accepted that the right to be classified correctly under the Agreement amounts to an extra claim as defined at clause 13 of the Agreement. In this dispute, an additional or new classification is not sought but rather the enforcement of terms of the Agreement as they currently exist.
[225] The question asked and remedy sought, does no more than seek to require Sydney Trains to apply the Agreement classification structure correctly to its employees. On this basis, the ‘jurisdictional’ objection raised by Sydney Trains is not upheld and the dispute is to be otherwise determined on its merits.
Interpreting the Agreement
[226] The approach to interpreting industrial instruments is well-established in decisions of this Commission and courts. The Federal Court in WorkPac Pty Ltd v Skene222 provided the following summary of the approach to the interpretation of an enterprise agreement:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes[1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: AmcorLimited v Construction, Forestry, Mining and Energy Union[2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”
[227] The Full Federal Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited AMWU.223
[228] In summary, the Commission is required to ascertain the objective intention of the Agreement’s wording having regard to its language and terms when read as a whole and having regard to its context and purpose.
[229] As indicated above, this dispute only concerns Cleaning Attendants who undertake their duties at train stations in the roles of station cleaners and turnaround cleaners. The Agreement unfortunately does not provide a definition for the classifications of either Cleaning Attendant contained in Schedule 3A Classification & Rates of Pay of Section 3 Wages Maintenance Grades under the heading Presentation Services or that of Customer Service Attendant Class 1 Competent (Cleaning)under the heading Station Operations.
[230] As the Agreement is otherwise silent on the meaning of these classifications, Sydney Trains submits that the Agreement contains an ambiguity or uncertainty with respect to these classifications.224 On this basis, it is said to be appropriate to consider extrinsic material including that station cleaners and turnaround cleaners have been paid under the Cleaning Attendant rate since at least 2010 without dispute.
[231] In attempting to resolve this dispute, the Commission has before it an Agreement with two classifications, Cleaning Attendant and Customer Service Attendant Class 1 Competent (Cleaning), that are not defined under the Agreement, 225 and the only indication that the Agreement provides to their meaning is that the two classifications are located in separate sections of the Agreement.
[232] The Cleaning Attendant classification is found under the heading Presentation Services of Schedule 3A Classification & Rates of Pay in Section 3 - Wages Maintenance Grades of the Agreement along with the classification of Cleaner in Charge. Whereas the Cleaning Attendant and Customer Service Attendant Class 1 Competent (Cleaning) classification is found in Schedule 4A Classifications & Rates of Pay under the heading Station Operations in Section 4 - Operations of the Agreement along with a number of Customer Service Attendant classifications.
[233] The RBTU contends that classifications in Schedule 3B of Section 3 of the Agreement are those of employees who are engaged in maintaining Sydney Trains’ assets which includes Cleaning Attendants and Cleaners in Charge and that Schedule 4A classifications are for those employees engaged in the operations side of Sydney Trains’ enterprise. 226 The Customer Service Attendant classifications are said by the RTBU to be appropriately located in Schedule 4A. It is then submitted by the RTBU that the Customer Service Attendant Class 1 Competent (Cleaners) classification is the appropriate classification for station and turnaround cleaners as the bracketed word ‘cleaners’ conveys that that employees falling into this classification are cleaners who perform customer service functions.227
[234] While both parties accept that the cleaning of trains and stations is part of maintaining Sydney Trains’ assets,228 the RTBU submits that Cleaning Attendants working in the Customer Operations Directorate is a significant factor indicating they are ‘operational employees’ who fall within the classifications in Schedule 4A of the Agreement.229
Principal Purpose Test
[235] In the Commission’s view, this matter must be resolved in the first instance by ascertaining the tasks undertaken by the relevant Cleaning Attendants employed at train stations and those of the Customer Service Attendant Class 1 Competent (Cleaning)classificationin order to ascertain the appropriate Agreement classification.
[236] The Commission and courts have regularly applied what is known as the ‘principal purpose test’ to ascertain the principal purpose for which an employee is engaged when looking at award coverage and/or an employee’s classification. This requires an analysis of the duties performed and the circumstances under which they are performed.
[237] In Construction Forestry, Mining, and Energy Union v Anglo Coal (Callide Management) Pty Ltd, 230Logan J described the task ofclassifying an employee in an enterprise agreement in the following manner:
“A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification subject always to the language employed in the particular industrial instrument.” 231
[238] Besanko J in Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd232stated:
“Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect (Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7)[2013] FCCA 1097 at [77]).”
[239] In Carpenter v Corona Manufacturing,233 the Full Bench stated, when looking at award coverage:
“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.”
[240] In applying the principal purpose test, it is not solely a matter of quantifying time spent on a particular task but also involves the quality of the work undertaken. 234
Duties of Cleaning Attendants
[241] It is uncontroversial that Sydney Trains’ cleaning staff work in either the Fleet Presentation Directorate or the Customer Operations Directorate. The Fleet Directorate cleaners who work in stabling yards and maintenance centres have no contact with customers whereas cleaners in the Customer Operations Directorate who work at train stations invariably have contact with Sydney Trains’ customers.
[242] As summarised above, a number of witnesses gave evidence as to the duties of Cleaning Attendants employed at train stations and those employed at stabling yards and maintenance centres.
[243] While there is no definition or list of indicative tasks under the Agreement for the classification of Cleaning Attendant there exists outside of the Agreement a Cleaning Attendant Position Details document (position description). 235
[244] The position description236 for the Cleaning Attendant states, under the heading Primary Purpose, the following:
“The primary responsibility of the Cleaning Attendant (CA) is to provide consistent and high quality cleaning services in relation to the presentation of Sydney Trains and NSW trains and stations. The team performs high quality, visible cleaning services to deliver a first class customer experience for the travelling public. Our team culture is one of safety, accountability and customer focus.
The CA will deliver customer service to TfNSW Presentation Service Standards in order to achieve Sydney Trains’ strategic objective of improving customer satisfaction and levels of cleanliness within our portfolio. The CA will comply with the applicable cleaning manual and will undertake any prescribed work schedules and requests for ad hoc cleaning tasks efficiently and effectively.”
[245] ‘Good customer service skills’ is one of eight criteria listed in the position description under the heading of Selection Criteria.
[246] A good indicator of what duties station and turnaround cleaners undertake can be drawn from the Joint Survey that was undertaken as referred to above, when this matter was subject to a conference before the Commission on 28 March 2019. A recommendation was issued for the parties to undertake a joint review of the customer service (the Joint Survey) provided by Cleaning Attendants at Sydney Trains.237
[247] The evidence before the Commission is that the Joint Survey was carried out in a comprehensive manner with Sydney Trains and RTBU representation attending on 105 occasions at 39 train stations where station cleaners and turnaround cleaners work.
[248] Information collected as part of this exercise indicated that the average amount of time station cleaners and turnaround cleaners interacted with Sydney Trains’ customers was 3.65%238 which, in the view of Sydney Trains was potentially an overestimate. The RTBU raised a number of issues which in their view compromised the results.
[249] While there are some potential issues with the Joint Survey data, and accepting the concessions made by Mr Loucas in cross-examination, 239 they were not shown to the Commission’s satisfaction to be of a sufficient significance to warrant any real concern with the Joint Survey findings. In any event, the Sydney Trains re-calculations which were based on a number of the RTBU’s concerns do not alter the results of the Joint Survey in any material way as to make it unreliable.240
[250] Sydney Trains submitted that there was no evidence that Cleaning Attendants are directed by Sydney Trains to provide services to customers or prioritise customer service work over their cleaning duties.
[251] While principally undertaking their cleaning duties, it is accepted that Cleaning Attendants employed at train stations will encounter queries from customers which can either be dealt with immediately or directed to the relevant Sydney Trains employee.
[252] The evidence of Sydney Trains is that the issuing of mobile phones to Cleaning Attendants who perform their duties at train stations is to allow them to receive communications and communicate with the Customer Area Manager.241 Mr Joleski’s evidence was that mobile phones were issued to all station employees including Cleaning Attendants for reasons that included easy access to internal communications and access to transport apps which for turnaround cleaners allows access to train running information relevant to their duties. 242
[253] Mr Loucas stated that prior to the provision of mobile phones, Cleaning Attendants working at train stations had to find a computer to login to receive communications. 243
[254] Mr Ham stated that he used his mobile phone to assist customers244 and to access his emails to look at rosters, training information and updates.245 While a mobile phone may be used by Cleaning Attendants to provide customer service, I am not satisfied that the provision of a mobile phone to cleaners employed on stations is contrary to being classified as a Cleaning Attendant or indicative of being engaged in the classification of Customer Service Attendant Class 1 Competent (Cleaning).
[255] At the same time, the Commission accepts that apart from a name badge stating ‘Cleaning Attendant’ worn on the Cleaning Attendant’s uniform, the uniform worn by a Cleaning Attendant, Train Driver, Guard and Customer Service Attendant are the same,246 which Sydney Trains states is done as a matter of uniformity and aesthetics.247
[256] Without doubt, and as the evidence supports, Cleaning Attendants wearing the same uniform as Customer Service Attendants will invite customer enquiries. Although the evidence of Mr Loucas was that the RTBU had objected to the Cleaning Attendant’s job title being made visible on their uniform. 248 It is somewhat inconsistent for the RTBU to submit that Sydney Trains presents station cleaners to customers in an identical fashion as Customer Service Attendants,249 which results in Cleaning Attendants at train stations being asked by customers for assistance, when at the same time there is opposition to having the Cleaning Attendant’s job title being made visible on their uniform.
[257] The evidence put before the Commission demonstrates that Cleaning Attendants employed at train stations do respond to questions from customers and assist customers in the course of undertaking their cleaning duties. However, it was not demonstrated that the time spent on these tasks was in anyway substantial nor that the engagement with customers was of a nature that detracted from performing cleaning tasks to the degree that would indicate that their classification under the Agreement should be anything other than Cleaning Attendant.
[258] After acknowledging that customer service work is undertaken by station cleaners, accepting the Joint Survey results, and having regard to the position description, it is clear that the preponderance of the work undertaken by Cleaning Attendants at train stations are cleaning duties, such as picking up litter on platforms, cleaning toilets, mopping, and cleaning surfaces etc. They are not engaged at train stations to undertake the role of Customer Service Attendants.
[259] With the stated primary purpose in the position description for Cleaning Attendants being to provide cleaning services in relation to the presentation of trains and stations, it follows that the Cleaning Attendant classification in Section 3 – Wages Maintenance Grades of the Agreement at Schedule 3A is appropriately found under the heading Presentation Services.
Duties of Customer Service Attendant Class 1 Competent (Cleaning)
[260] Section 4 Operations of the Agreement at Schedule 4A under the heading Station Operations contains the classifications of Customer Service Attendant and Customer Service Attendant Class 1 Competent (Cleaning). The emphasis in both of these classification titles is customer service and as set out in the position description for the Customer Service Attendant, the role is to deliver customer service which requires a sound knowledge of Sydney Trains’ policies, procedures, and guidelines.
[261] There is, on the submissions of Sydney Trains, no position description for the classification of Customer Service Attendant Class 1 Competent (Cleaning).Although, the classification has been present in the preceding enterprise agreements back to at least the 2010 enterprise agreement. 250
[262] The evidence was also that no employee had ever been employed by Sydney Trains in the classification Customer Service Attendant Class 1 Competent (Cleaning)and Cleaning Attendants have onlyever been employed in Schedule 3A classifications. 251
[263] Despite the above, I do not accept that this necessarily results in the classification of Customer Service Attendant Class 1 Competent (Cleaning) being redundant or otiose as submitted by Sydney Trains.252 It remains a classification under the Agreement with a rate of pay like all others. Unless removed from the Agreement, the classification must be accepted as capable of application to employees covered by the Agreement.
[264] The difficulty, however, is that no party could provide any evidentiary context as to the duties of theCustomer Service Attendant Class 1 Competent (Cleaning) classification. There appears to be no corporate knowledge as to the origins of the classification.
[265] While there is no position description for the classification of Customer Service Attendant Class 1 Competent (Cleaning)there is a position description253 for the classification Customer Service Attendant which states under the heading Primary Purpose:
“The Customer Service Attendant will be required to undertake a broad range of station functions with a sound knowledge of policies, procedures and guidelines. Such functions will include train operations, customer service, and station presentation. Completes designated tasks with some guidance and minimal supervision.”254
[266] It is accepted that a position description is not determinative of duties undertaken where the evidence demonstrates other tasks are required to be performed.
[267] In the Commission’s view, it is a reasonable assumption in applying a common-sense meaning to the classification title, that the classification Customer Service Attendant Class 1 Competent (Cleaning) relates to a Customer Service Attendant role that is in some way related to cleaning.
[268] It is not accepted, as contended by the RTBU, that the classification title Customer Services Attendant Class 1 Competent (Cleaning) conveys that employees falling into this classification are ‘cleaners’ who perform customer service functions. In support of its position, the RTBU refers to the bracketed word in the classification title as ‘cleaners’ whereas the actual bracketed word is ‘cleaning’. 255
[269] Whatever the exact duties of the Customer Service Attendant Class 1 Competent (Cleaning) classification may be, the customer service aspect as per its title, indicates that customer service is a dominant factor. While station cleaners engage with customers to varying degrees, it is secondary to their role. The evidence in this case is that the role focus for station cleaners and turnaround cleaners is on their cleaning duties. It is also noted that the introduction of new uniforms and mobile phones occurred well after 2010 and could not have been contemplated when the classification existed in the RailCorp Enterprise Agreement 2010.
[270] Whether applying a principal purpose test or simply assessing whether customer service duties are an integral part of a station cleaners’ duties, the Commission cannot be satisfied that the Cleaning Attendant classification is not the appropriate Agreement classification, particularly having regard to the Joint Survey results.
[271] The RTBU’s reliance on Cleaning Attendants employed at train stations being required to adhere to Sydney Trains’ Customer Service Principles does not in my view assist their case greatly, as all Sydney Trains employees are required to adhere to these principles, notwithstanding that cleaners employed at stabling yards and maintenance centres do not interact with Sydney Trains customers.256
[272] In this matter, the evidence demonstrates that the principal purpose for which the relevant Cleaning Attendants are employed is cleaning. The relevant Cleaning Attendants are not employed for the purposes of providing customer services and therefore are correctly classified as Cleaning Attendants. The functions of the relevant Cleaning Attendants in part involve customer interaction, but they do not constitute a sufficient component of a Cleaning Attendant’s role to be any other than the unavoidable consequence of being in the presence of customers while undertaking their cleaning duties, which is the principal purpose for which they are employed.
[273] Turning to the more specific claims in respect of employees Bronwyn Kelly - Cleaning Attendant, who works as a station cleaner, and - Terry Ham - Cleaning Attendant, who works as a turnaround cleaner, both provided witness statements with regard to the customer services duties they are expected and required to perform.
[274] Mr Ham was also subject to cross-examination regarding his evidence. Under cross-examination, Mr Ham acknowledged that the statistical evidence contained in his witness statement was far from robust.257 Mr Ham understandably accepted that he was unable to recall the specifics of his customer interactions. 258
[275] There were no records supporting the assertions of Ms Kelly made in her witness statement regarding time spent on customer service tasks as opposed to the Joint Survey. The evidence of customer interactions experienced by both Mr Ham and Ms Kelly was generally at odds with that demonstrated by the results of the Joint Survey. However, whether they engaged in more customer service work than the average outcome in the Joint Survey, their evidence did not indicate other than that their prime roles were to carry out the duties of a Cleaning Attendant.
[276] The dispute questions are answered with the following conclusion:
• Employees classified as ‘Cleaning Attendants’ who perform work in Sydney Trains’ Customer Services Directorate at train stations and/or Bronwyn Kelly and Terry Ham, are correctly classified as ‘Cleaning Attendants’ under Schedule 3A of Section 3 to the Agreement.
[277] As a final comment, Sydney Trains acknowledges that the similar uniform (apart from the name badge) worn by Cleaning Attendants and Customer Service Attendants may lead to customers not being able to differentiate Cleaning Attendants from Customer Service Attendants, resulting in Cleaning Attendants being approached by customers when the customer should be approaching the Customer Service Attendant.
[278] It would appear desirable and not too difficult for the Cleaning Attendant’s uniform to be designed to make it readily known to customers that they are Cleaning Attendants and not Customer Service Attendants, while at the same time maintaining the uniformity of clothing that Sydney Trains requires. Although, I note that Mr Loucas’ evidence was that the RTBU had objected to the title of Cleaning Attendant being made visible on the uniform of a Cleaning Attendant.
[279] Further, as neither the RTBU nor Sydney Trains could provide a definition for the role of the classification of Customer Service Attendant Class 1 Competent (Cleaning) it would only be appropriate that this issue be addressed in the negotiations for a replacement enterprise agreement, noting the 2018 Agreement has now passed its nominal expiry date of 1 May 2021.
DEPUTY PRESIDENT
Appearances:
P Boncardo of Counsel for the RTBU
Y Shariff SC and M Whitbread of Counsel for Sydney Trains
Hearing details:
Sydney
2021
18 March
Final written submissions:
Respondent
2021
14 April
Applicant
2021
26 April
Printed by authority of the Commonwealth Government Printer
<PR728986>
1 F10 Application at question 2.1; Applicant’s submissions of 21 April 2020 at [28]
2 Recommendation by Hamberger SDP dated 28 March 2019
3 Transcript of 18 March 2021 at PN8
4 S.58(2)(e) of the Act
5 Clause 5 of the Agreement
6 Clause 8.4 of Agreement, RBTUs closing submissions in reply of 26 April 2021 at [4]
7 Ibid at [5-8]
8 Sydney Trains’ outline of submissions of 12 June 2020 at [4.b]; Sydney Train’s closing submissions at [4.a]
9 Clause 8.2 (a) and (e)
10 [2019] FWCFB 184 at [26]
11 In the RTBU’s reply submissions of 31 July 2020 at [28] the reference to the dispute relating to Cleaners in Charge at [36] of the amended outline of submissions is said to be an error, although paragraph [11] which also contains reference to Cleaners in Charge was not corrected.
12 Applicant’s outline of submissions of 21 April 2020 (Amended on 15 March 2021) at [11] and [36].
13 Respondent’s outline of submissions of 12 June 2020 at [3-4]
14 Ibid at [4.b]
15 Ibid at [6]
16 Statement of A. Loucas of 10 June 2020 at [19]
17 Respondent’s outline of submissions of 12 June 2020 at [8]
18 Statement of Mr Joleski of 12 June 2020 at [24]
19 Statement of A Loucas of 10 June 2020 at [22]
20 Applicant’s outline of submissions of 21 April 2020 (Amended on 15 March 2021) at [3]
21 PN28, 894
22 Ibid at [1]
23 Ibid at [3]
24 Ibid at [3A]
25 Ibid at [21-22] It is noted that the bracketed word (cleaners) is incorrect and should read (Cleaning)
26 Ibid at [23]
27 Ibid at [28-30]
28 Ibid at [31.1]
29 Ibid at [31.2-31.4]
30 Ibid at [31.4]
31 Ibid at [31.5]
32 Ibid at [32-33]; Submissions of 25 March 2021 at [4]
33 Submissions of 25 March 2021 at [11-12]
34 Ibid at [14-15]
35 Submissions of 31 July 2020 at [3-8]
36 Ibid at [3-14]
37 Statement of 21 April 2020 at [1-3]
38 Ibid at [10]
39 Ibid at [11-12]
40 Ibid at [13-14]
41 Ibid at [15]
42 Ibid at [19]
43 Ibid at [18-23]
44 Ibid at [24]
45 Ibid at [26-27]
46 Ibid at [20-21]
47 Ibid at second reference to [22-23] noting new numbering sequence in statement.
48 Ibid at [25]
49 Statement of 21 April 2020 at [1-5]
50 Ibid at [13]
51 Ibid at [14-17]
52 Ibid at [18]
53 Ibid at [19]
54 Ibid at [20-24]
55 Statement of 21 April 2020 at [3-7]
56 The Agreement classification is titled Customer Service Attendant Class 2 Competent
57 Statement of 21 April 2020 at [4-7]
58 Ibid at [8-10]
59 Ibid at [12]
60 Ibid at [14-15]
61 Ibid at [20-21]
62 Ibid at [23]
63 Statement of 27 July 2020 at [6]
64 Ibid at [15]
65 Statement of 21 April 2020 at [1-3]; PN108
66 Ibid at [4]; PN350-361
67 Ibid at [6-7]
68 Ibid at [8]
69 Ibid at [12-13]
70 Ibid at [15]
71 PN186-188
72 Statement of 21 April 2020 at [18-19]
73 Ibid at [20-23]
74 Statement of 21 April 2020 at [2-3]
75 Ibid at [7]
76 Ibid at [8]
77 Ibid at [9-12]
78 Ibid at [13]
79 Ibid at [24-26]
80 Ibid at [29-31]
81 Ibid at [32-34]; Statement of 28 July 2020 at [10]
82 Ibid at [35-36]; Statement of 28 July 2020 at [9]
83 Ibid at [37]
84 Ibid at [38
85 Ibid at [39]
86 Ibid at [41-46]
87 Ibid at [47-48]
88 Ibid at [49-50]
89 Statement of 28 July 2020 at [14-25]
90 Statement of 21 April 2020 at [1-6]
91 Ibid at [7]
92 Ibid at [8-9]
93 Ibid at [10-12]
94 Ibid at [14]
95 Ibid at [17-19]
96 Ibid at [22-23]
97 Ibid at [24-25]
98 Although not stated in her witness statement it is implied
99 Statement of 21 April 2020 at [1-9]
100 Ibid at [19]
101 Ibid at [20]
102 Ibid at [21-23]
103 Statement of 30 July 2020 at [1-2]
104 Ibid at [9-11]
105 Ibid at [12]
106 Ibid at [13]
107 Ibid at [14-15]
108 Ibid at [16-18]
109 Ibid at [24-26]
110 Ibid at [30]
111 Ibid at [32]
112 Ibid at [33]
113 Ibid at [35-36]
114 Ibid at [37]
115 Ibid at [40-44]
116 Ibid at [45-49]
117 Statement of 28 July 2020 at [1-3]
118 Ibid at [4-5]
119 Ibid at [11-12]
120 Ibid at [13-17]
121 Ibid at [18-20]
122 Ibid at [21]
123 Ibid at [22-23]
124 Ibid at [24-25]
125 Ibid at [26]
126 Ibid at [38]
127 Statement of 21 April 2020 at [1-6]
128 Ibid at [3-6]
129 Ibid at [10]
130 Ibid at [11]
131 Ibid at [15]
132 Ibid at [16]
133 Ibid at [24-27]
134 Statement of 21 April 2020 at [1-2]
135 Ibid at [8-9]
136 Ibid at [4]
137 The RTBU did not rely on the findings of this survey, see closing submissions of 26 April 2021 at [24]
138 Statement of 21 April 2020 at [28-31]
139 Ibid at [33-34]
140 Ibid at [35-36]
141 Ibid at [37-38]
142 Ibid at [39-40]
143 Ibid at [41-43]
144 Ibid at [44]
145 Ibid at [45]
146 PN706-26
147 PN761-771
148 PN782
149 Submissions of 12 June 2020 at [4]
150 Ibid
151 Ibid at [16-18]
152 Ibid at [19-20]; Statement of A. Loucas of 10 June 2020 at [52]
153 Ibid at [29]
154 Ibid at [30-34]
155 Ibid at [36-43]
156 Ibid at [57]
157 Statement of 10 June 2020 at [3]
158 Ibid at [7-10]
159 Ibid at [11-13]
160 Ibid at [18]
161 Ibid at [19]
162 Ibid at [20-21]
163 Ibid at [22]
164 Ibid at [23]; AL-6
165 Ibid at [24]
166 Ibid at [24]
167 Ibid at [25]
168 Ibid at [27]; AL-7
169 Ibid at [28]
170 Ibid at [29-30]; AL-8; AL-9; AL-10
171 Ibid at [31-32]
172 Ibid at [34-38]; AL-12; AL-13
173 Ibid at [39-40]; AL-16
174 Ibid at [41-43]
175 Ibid at [44-45]
176 Ibid at [48]; AL-17
177 Ibid at [49]; AL-18
178 Ibid at [50-52]; AL-19
179 Ibid at [53-53]; AL17 to AL19
180 Ibid at [55-56]
181 Ibid at [57]
182 Ibid at [58]
183 Ibid at [59-63]
184 Ibid at [64-65]
185 Ibid at [65]
186 Ibid at [66]
187 Ibid at [68]
188 Ibid at [69]
189 Statement of 12 June 2020 at [5]
190 Ibid at [3-4]
191 Ibid at [9-10]
192 Ibid at [11-12]; RJ-1
193 Statement of 12 June 2020 at attachments RJ-3 to RJ-14
194 Ibid at [13] and [16]
195 Ibid at [20-21]; RJ-15; RJ-16
196 Ibid at [22]; RJ-17; RJ-18; RJ-19; RJ-20
197 Ibid at [24]
198 Ibid at [26]
199 Ibid at [27]
200 Ibid at [28]
201 Ibid at [29-31]
202 Ibid at [32-34]
203 Ibid at [39]; Statement of D. Smith of 21 April 2020 at [28]
204 Ibid at [35-36]; RJ-24
205 Ibid at [37-38]; RJ-25 to RJ-28
206 Ibid at [40-41]; RJ29 to RJ-32
207 Ibid at [42]; RJ-33; Statement of B. Kelly of 21 April 2020 at [35-37]
208 Platform 0 is the Olympic Park platform
209 Statement of 12 June 2020 at [43]; RJ-14; RJ-20; Statement of B. Kelly of 21 April 2020 at [47]
210 Ibid at [44]
211 Ibid at [45-47]; Statement of B. Kelly of 21 April 2020 at [12-13]; Ms Kelly states, “Customers would ask me when their trains would arrive, or ask me directions to the buses” and then stated that this work is “effectively CSA work”
212 Ibid at [48]; RJ-34; RJ-35
213 Ibid at [51]
214 Written submissions of 12 June 2020 at [57]
215 Ibid
216 Toyota Motor Corporation Australia v Marmara [2014] FCAFC 84
217 Ibid at [55]
218 Submissions of 21 April 2020 at [27]
219 See RailCorp Enterprise Agreement 2010 clause 14 and Sydney Trains Enterprise Agreement 2014 clause 13
220 [2021] FWCFB 1113
221 Ibid at [15]
222 [2018] FCAFC 131
223 [2017] FWCFB 3005
224 Written submissions of 12 June 2020 at [33]
225 Similar to the other Agreement classifications
226 Written submissions of 21 April 2020 as amended on 15 March 2021 at [19-22]
227 Ibid at [23]; In this submission the bracketed word in the Agreement is erroneously said to be ‘cleaning’ not ‘cleaners’ as is expressed in the Agreement
228 Sydney Trains written submissions of 14 April 2021 at [35], RTBU submissions 26 April 2021 at [13]
229 RTBU written submissions 26 April 2021 at [15]
230 [2015] FCA 696
231 Ibid at [39]
232 [2016] FCA 621 at [27]
233 122 IR 387 at [9]
234 Ware v O’Donnell Griffin (Television) Pty Ltd (1971) AR (NSW) 18
235 Statement of R. Joleski at attachment RJ-01
236 Titled - Position Details
237 Recommendation by Hamberger SDP dated 28 March 2019
238 Statement of A. Loucas at attachment AL-17
239 PN908-958
240 Written submissions of 14 April 2021 at [63-64]; Statement of A. Loucas of 10 June 2020 at [52-54]
241 See Statement of A. Loucas of 10 June 2020 at [58] and R. Joleski at PN1315
242 Statement of 12 June 2020 at [51]
243 Statement of A. Loucas of 10 June 2020 at [58]
244 PN335
245 PN343, 371
246 PN 364, 400
247 Sydney Trains written submissions 12 June 2020 at [41] and Statement of R. Joleski of 12 June 2020 at [49]
248 Statement of 10 June 2020 at [65]
249 Amended written submissions of 21 April 2020 at [1]
250 Statement of A. Loucas of 10 June 2020 at attachment AL-10-
251 Ibid at [30]
252 Written submissions of 14 April 2021 at [42]
253 Titled - Position Details
254 Statement of A. Loucas of 10 June 2020 at attachment AL-07
255 Written submissions of 21 April 2020 at [23]
256 Mr Loucas at PN111
257 PN188, 194, 224
258 PN265
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