Ergon Energy Corporation Limited v Queensland Services, Industrial Union of Employees - [2014] FWC 4311

[2014] FWC 4311

FAIR WORK COMMISSION

DECISION

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

Ergon Energy Corporation Limited
v
Queensland Services, Industrial Union of Employees
(C2013/6070)

DEPUTY PRESIDENT ASBURY

BRISBANE, 30 JUNE 2014

Application to deal with a dispute - shift flexibility - Arbitration - Rostering - Management prerogative - The Commission should not interfere with the rights of employers to decide how a business should be efficiently conducted unless unreasonable requirements are placed on employees - No unreasonable requirements placed on employees - Ergon permitted to implement proposed shifts.

BACKGROUND

[1] Ergon Energy Corporation Limited (Ergon) applies under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute about a matter arising under the Ergon Energy Union Collective Agreement 2011 (the Agreement). The dispute relates to attempts by Ergon to introduce rostering changes and changes to “on call” arrangements, said to be required to increase flexibility in its Operational Control Centres (OCCs) in Townsville (OCCN) and Rockhampton (OCCS) through a review process set out in clause 2.5 of the Agreement. The Queensland Services Industrial Union of Employees (QSU) on behalf of members employed in the OCCs opposes the application and the outcome sought by Ergon.

[2] On Friday 13 June 2014 I issued a decision on transcript in relation to this matter and determined that Ergon should be allowed to implement proposed shifts into its rosters at OCCN and OCCS on Friday 11 July 2014. I indicated that I would issue full reasons for that decision in due course. Those reasons are set out below. The application was referred in relation to on call arrangements.

[3] The matter has some history. In 2009, Ergon sought to implement the changes to its OCC rosters that are the subject of the current proceedings. At that time the Ergon Energy Union Collective Agreement 2008 (the 2008 Agreement)applied. Ergon sought to rely on general provisions of the 2008 Agreement in relation to workplace change and flexibility to change the roster for OCCs without the agreement of employees concerned. The matter was put into dispute by the employees represented by the Australian Services Union and was arbitrated by me.

[4] In a decision issued on 1 April 2011, I decided that the provisions of Schedule 6 of the 2008 Agreement requiring the consent of 60% of employees to a roster change, were not overridden by the general provisions in clause 1.5 of the Agreement that Ergon sought to rely on. Accordingly, I determined that the 2008 Agreement did not allow Ergon to change the start and finish times and/or introduce a new shift into the OCC roster, without the agreement of 60% of affected employees. 1

[5] The negotiations for the 2011 Agreement were subject of a bargaining dispute notified to the Commission by Ergon on 2 December 2011, under s.240 of the Act. I conducted a number of conferences and an agreement was reached. In the negotiations and the conferences conducted by the Commission, Ergon continued to press for flexibility in relation to rostering to facilitate the standardisation of rosters across the OCCN and the OCCS. Employees, represented by the QSU, did not agree to the roster changes sought by Ergon. At the conclusion of the s.240 conferences, a compromise position was reached whereby the parties agreed to a review process with respect to the rosters in the OCCs.

[6] That agreed process is dealt with in clause 2.5 of Schedule 6 of the Agreement which provides for the establishment of a working party tasked with the optimisation and implementation of shift rosters and on-call arrangements for OCCs. The clause also provides that rosters will be developed considering the operational requirements of the Operational Control Centres, work load patterns, working practices, work/life balance and fatigue management.

[7] In the absence of agreement in relation to these matters, the clause provides for arbitration by the Commission, and empowers the Commission to issue a binding decision in accordance with the Grievance Procedure in clause 2.1.19 of the Agreement. Ergon submits that the review process has been completed and in the absence of agreement about the matter of rostering and on call arrangements, now seeks a binding decision requiring employees in OCCN and OCCS to work the rosters it proposes. The QSU opposes the application and maintains that Ergon has failed to properly complete the review process and that the rosters it seeks are not consistent with the principles in clause 2.6

ISSUES IN DISPUTE

Agreement provisions

[8] In relation to rosters, Schedule 6 of the Agreement applies to employees located at OCCN and OCCS who are working continuous shift work in the classifications of System Operator Grade 1 to Grade 5, employed in the roles of Network Controller or Network Operations Officer. Clause 2.1 of Schedule 6 provides that the parties (defined in clause 1.2 to include the QSU) will work towards the effective implementation of standardisation of processes, rosters and work practices across Ergon’s Operational Control Centres.

[9] Clause 2.2 of Schedule 6 provides that employees accept the need to maintain continuous twenty four hours a day seven days per week shift coverage within Ergon’s Operational Control Centres and that employees will work in accordance with a Control Centre Roster that has been agreed to by 60% of affected employees.

[10] Clause 2.5 of Schedule 6 provides:

“2.5 Operational Control Centre Shift Flexibility

The Parties to this Schedule agree to a review process that will provide for the optimisation of shift rosters, on call requirements and shift start time flexibility at the Operational Control Centre North (Townsville) and South (Rockhampton).

The Review process commits the Parties to work towards effective implementation of optimisation of processes, rosters and work practices across both Control Centres in accordance with the requirements of Clause 2.1 of this Schedule.

The review will ensure the agreed arrangements deliver the level of productivity and efficiency required to meet operational requirements. Rosters will be developed by considering the operational requirements of each control centre, work load patterns, working practices, work/life balance and fatigue management. The optimisation of rosters will be subject to consultation with those employees directly affected and will be outworked by the following process and timeline:

A working party will be established and tasked with working towards the optimisation and implementation of shift rosters and on call arrangements. The working party will include nominated employee representative Ergon Energy representatives, employee representatives from the each Control Centre and relevant union/s or their nominated employee representative delegates.

The review process will commence no later than 1st March 2012.

The working party will undertake a joint report back, to FWA, on the review by no later than 1st June 2012.

The working party will agree to the optimisation of shift rosters and on call arrangements by no later than 31st August 2012.

Where Agreement on the optimisation of shift rosters and on call arrangements is reached, Ergon Energy will provide notice of one (1) month of the implementation date. A shorter implementation date may occur where mutually agreed by the working party.

Where Agreement on the optimisation of shift rosters and on call arrangements is unable to be reached by the 31st August 2012, it will be referred to Fair Work Australia for arbitration and a binding decision on the Parties in accordance with clause 2.1.19 of the Grievance and Dispute Settlement Procedure of this Agreement.

Nothing in this process precludes either party from seeking the assistance of Fair Work Australia in conciliating an outcome prior to 31 August 2012.”

[11] Clause 2.1.19 of the Agreement provides:

“In the event the matter is not resolved through conciliation and proceeds to arbitration either party to the dispute may request another member of Fair Work Australia to arbitrate and hand down a binding decision. In arbitrating the matter Fair Work Australia will give the parties an opportunity to be heard formally on the matter(s) in dispute.”

Current shift rosters

[12] I have standardised time references in this decision on a 12 hour clock basis. The current shift rosters in the OCCN are as follows:

a. 7.00 am - 3.03 pm (day shift) Monday to Sunday

b. 9.57 am - 6.00 pm (day shift) Monday to Friday

c. 3.00 pm - 11.03 pm (afternoon shift) Monday to Sunday

d. 10.57 pm - 7.00 am (night shift) Monday to Sunday

[13] In addition to these shifts, employees in the OCCN have implemented flexible starting time arrangements whereby those who are not rostered to a “monitor and control” shift work from 8.00am to 2.03pm.

[14] The current shift rosters in the OCCS are as follows:

a. 6.30 am to 2.33 pm (day shift) Monday to Sunday

b. 2.30 pm - 10.33 pm (afternoon shift) Monday to Sunday

c. 10.30 pm - 6.33 am (night shift) Monday to Sunday

[15] Ergon seeks to introduce the following additional day shifts into the rosters:

● 9.57 am to 6.00 pm in OCCS; and

● 8.00 am to 4.03 pm in both OCCS and OCCN.

[16] Ergon maintains that it requires employees to work rosters incorporating these shifts on the basis that:

● As a Queensland Government owned corporation it is required by virtue of the Government wages policy to achieve savings initiatives to fund a productivity payment made to employees under the Agreement; and

● The shifts will ensure levels of productivity and efficiency necessary to meet the operational requirements of Ergon and in particular to meet the service obligations under the Queensland Electricity Industry Code.

[17] Ergon also contends that the rosters including the shifts it proposes will also improve the work/life balance of employees and the ability of Ergon to manage fatigue associated with shift work. Further, Ergon contends that the shifts it seeks to implement meet the criteria in clause 2.5 of the Agreement.

[18] In opposition to the application QSU submits that Ergon has failed to comply, or substantially comply with the terms of clause 2.5 of the Agreement in relation to the review process and has continued to seek the same roster change it previously sought to impose unlawfully before the 2011 Agreement was made. QSU also contends that Ergon has failed to properly consider a proposal advanced by employee representatives for the implementation of a 10.35 hour shift.

[19] QSU further submits that Ergon’s proposals would:

● Interfere with the operational requirements of control centres;
● Worsen the workload of employees;
● Negatively impact the work/life balance of employees; and
● Negatively impact fatigue management in the workplace.

On Call Arrangement

[20] Currently, there are separate on call arrangements in place in OCCN and OCCS. The on call arrangement in the OCCN operates so that Ergon requires relevant employees classified as Level 1 and 2 Network Controllers rostered to work the 9.57 am to 4.00 pm day shift to be on call outside of their rostered shift hours Monday to Sunday. The minimum requirement is for one employee classified from each level to be on call for a continuous 7 day period commencing Monday through Sunday. The on call rostered period encompasses the rostered 9.57 am to 6.00 pm day shift Monday to Friday as well as on call on the rostered days off on the weekend.

[21] According to Ergon, this on call arrangement provides certainty for additional resources including additional resources for escalation on weekends when employees are not rostered to work normal ordinary shifts.

[22] The current on call arrangements in the OCCS consist of one employee from each level being on call. During normal week days, the person on call is rostered on a 6.30 am to 2.33 pm shift. On weekends a Level 1 and 2 Network Operations Officer rostered on day shift 6.30 am to 2.33 pm is rostered on call and a Level 3 Network Controller rostered on an afternoon shift 2.30 pm to 10.33 pm provides on call outside of their afternoon shift. Ergon maintains that the current on call arrangement in the OCCS does not meet operational requirements and that there is a genuine requirement for on call arrangements in the OCCS to align with the proposed 9.57 am to 6.00 pm day shift which is required to apply more resources to the later afternoon storm season for increased continuity and accountability.

[23] Ergon contends that as the OCCS has limited manning on weekends, and these rostered employees are on call as well, there is limited capacity for escalation to respond to emergencies due to fatigue and provision of minimum breaks between rostered attendances. There is no readily available escalation for weekends from 6.30 am to 2.33 pm as Level 1 and 2 employees are already at work and no escalation of Level 3 employees from 2.00 pm to 10.33 pm as they are already at work.

[24] Ergon contends that the form and structure of on call arrangements are within its prerogative and that it can require employees to be available to perform emergency work outside of their ordinary hours under the terms of the Agreement.

[25] In relation to on call arrangements, the QSU contends that Ergon is seeking a guaranteed minimum of 3 staff (1 from each Level) to be on call over the weekends in case of escalations. According to the QSU changes to on call arrangements in the OCCS were agreed in 2012 and the arrangements in place have not resulted in escalation/emergency response issues. If Ergon’s proposal is implemented, hardships will be experienced by employees on the basis that employees will have:

● less free weekends (approaching half of all weekends in a year);
● increased difficulties planning activities and responsibilities outside of work; and
● further reduced lifestyle and family time on weekends.

MANAGEMENT PREROGATIVE

[26] Ergon conducted this case on the basis that it involves the Commission making a decision about matters of management prerogative. In relation to the additional shifts it seeks, Ergon has submitted that it requires this change to efficiently utilise tax payer funds to deliver an efficient service and that it is a productivity initiative which funds in part the productivity increase provided in the Agreement. Ergon also submits that there is nothing unreasonable about its proposed shifts and on call arrangements.

[27] There is a line of authority in relation to the circumstances in which the Commission will interfere with the right of management to decide how to efficiently conduct its business. These cases are concerned with whether certain matters were “industrial matters” or matters involving management prerogative and whether the Commission should arbitrate to make an award in settlement of a dispute in circumstances where the decision would impact on the rights of the employer to make decisions about matters such as how work will be allocated or arranged.

[28] In Re: Cram and Others; Ex Parte NSW Colliery Proprietors’ Association Limited and Others 2 the High Court considered whether a dispute about manning and recruitment was an industrial matter that could be the subject of an award and rejected the proposition that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. In holding that objections in earlier cases to the regulation and control of business by tribunals was not a matter going to jurisdiction, the Court observed that this matter is:

“...an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of industrial matters in the Commonwealth and State Acts by reference to any notion of managerial prerogatives as such”. 3

[29] There is also a general principle in cases involving issues described as managerial prerogative, that the Commission will examine all the facts and will not interfere with the right of an employer to manage, unless the employer is seeking something unreasonable from employees. 4

[30] The present case concerns the provisions of an enterprise agreement under which the parties have empowered the Commission to arbitrate about rosters in circumstances where a review process has not resulted in agreement on those rosters being reached and where a previous iteration of the Agreement did not allow the roster changes sought.

[31] Clause 2.6 of the Agreement provides for a review process and commits the parties to working towards effective implementation of optimisation of processes, rosters and work practices across both Control Centres in accordance with the requirements of clause 2.1 of Schedule 6. Clause 2.1 of Schedule 6 commits the parties to inter alia “work towards effective implementation of standardisation of processes, rosters and work practices across the Ergon Energy Operational Control Centres located at Townsville and Rockhampton.”

[32] The parties have also agreed that the Commission is empowered to arbitrate in relation to the optimisation of shift rosters and on call arrangements. The effect of an arbitrated decision in relation to the optimisation of shift rosters and on call arrangements will be that the Commission will be determining the rights of Ergon to organise work in the manner that it believes will be the most efficient and cost effective, and whether employees should be required to work rostered hours that they do not wish to work. The Commission is required to assess Ergon’s proposed shifts against the criteria in clause 2.5 of Schedule 6, which are as follows:

● operational requirements of each control centre;
● work load patterns;
● working practices;
● work/life balance; and
● fatigue management.

[33] I am of the view that the principles set out in the cases dealing with managerial prerogative are relevant to the present case and in weighing whether the rosters proposed by Ergon are consistent with the criteria in clause 2.5 of Schedule 6, and determining whether Ergon should be permitted to implement those rosters.

EVIDENCE

Witnesses

[34] Evidence was given for Ergon by:

● Mr John Passaris, OCCS Manager; 5
● Mr John Christensen, Manager Network Operations; 6
● Mr Matthew Rigano, Operations Control Manager North; 7 and
● Mr Dale Thomas McLellan, Acting OCCS Manager. 8

[35] Evidence in support of the QSU’s position was given by:

● Mr Peter Hegarty, Network Controller (System Operator Grade 3) at QCCS and QSU Delegate since 2004; 9 and
● Mr Christopher Paul Belz, Network Operations Officer at OCCS.

[36] Ergon’s witnesses were cross-examined by the QSU. Ergon elected not to cross-examine the witnesses for the QSU notwithstanding that they were available for cross-examination.

Functions of OCCs

[37] The evidence about the functions of OCCs was not contested. In summary, the OCCs are used by Ergon’s Network Operations to provide network monitoring and control services, outage co-ordination services and network analysis to meet Ergon’s operational requirements. The activities of Network Operations incorporate:

● All outage co-ordination (co-ordination for technical and clash/minimising outages) for the high voltage (HV) network;
● All monitoring and response to HV and substation issues as well as the management of the transmission interface and major customers including coal mines;
● All switching for access on HV assets including live line proximity;
● All planned network switching for access on HV assets including live line and proximity;
● All planned network switching and control on HV network and all unplanned network switching and control up to the agreed HV boundary location;

● Management of real time outage information for low and high voltage on a twenty four hour per day seven day per week basis; and
● After hours fault dispatch for all voltage levels.

The Review Process

[38] Appended to Mr Christensen’s statement was a proposal put by Ergon during the review process where requirements including the introduction of the shifts proposed by Ergon were discussed. 10 Mr Christensen also appended the response provided by the Controller Working Group. Major points of that response are:

● Agreement in principle that a review of shift rosters, on call requirements and shift start times should be regularly carried out to ensure they meet business needs;
● Cost neutral or cost savings to rosters should not be achieved at the expense of employee working conditions and work/life balance;
● Other options are available to Ergon to achieve cost savings and flexibility involving projects requiring capital expenditure;
● The requirement for a fourth shift was not mentioned in the negotiations for the Agreement and in the negotiations Ergon had indicated satisfaction with the wording of the Agreement;
● While willing to examine Ergon’s proposals, unless there is new information bringing forward compelling reasons for change, the Controller Working Group is content to let the requirements of Schedule 6 clauses 2.1 and 2.2 apply; and
● There is a regular breakdown in consultation and Ergon has shown a desire to implement change without taking into consideration what effect that change will have on employees. 11

[39] The response also asserts that Ergon’s position is that having the ability to change the days and times that employees work to meet work demand would solve all their problems but as Ergon only knows seven days in advance what the work load will be, the ability of employees to have a normal structured life would be severely curtailed. Further, it is stated that while employees appreciate the need to occasionally change start and finish times on a temporary basis, Ergon’s desire to force those changes on staff at short notice with little or no regard to the family responsibilities of employees, has led to a position of distrust and confrontation.

[40] Mr Hegarty said that he attended the following meetings: 24 April 2012 a teleconference to establish the Working Party; 29 May 2012 in Rockhampton; 15 and 16 August 2012 in Townsville and a further teleconference on 14 September 2012. Mr Hegarty was also involved in information sessions for employees in relation to the review process. According to Mr Hegarty Ergon agreed to compile rostering guidelines into a document which was to also include protocols around short notice roster changes, public holiday rostering and other roster issues. This document was not completed. Mr Hegarty maintains that there are “multiple outstanding review items” that were to be captured in the roster guidelines document.

[41] Mr Belz was a member of the Working Party and tendered notes he had made of the discussions he attended. Mr Belz’s notes of the initial telephone meeting on Tuesday 24 April 2012 indicate that the parties accepted that some or all of the time frames in the review process would not be met and that the target date of 31 August for agreement to be reached may need to be revisited. Mr Belz’s notes of the meeting on 29 May 2013 record that management wanted to revisit the issue of the introduction of a “10.00 am to 6.00 pm” shift and on call arrangements and that employees see no reason to revisit either issue as they had been previously rejected by employees. The notes also indicate that alternative proposals are to be developed.

[42] Mr Belz said that Ergon had persisted with trying to introduce the shift arrangements subject of these proceedings since 2006. Ergon’s proposal was not presented in a format or manner that provided any clear details of how the actual practical application and implementation would address agreed operational requirements and issues.

[43] Mr Belz also said that during the working party meetings, he and other employee representatives raised the issue of no minimum notice period for change of shifts. Ergon representatives indicated that they would prefer a 21 day notice period while employee representatives sought a 28 day period. This matter was to be dealt with in the roster guidelines which the Working Party agreed would be developed by a sub-group lead by Mr Rigano. These guidelines have not been developed.

[44] Under cross-examination, Mr Passaris said that the Roster Guidelines had not been developed because there had been no agreement on the shifts sought be Ergon or the on call arrangements.

Workload and Operational Requirements

[45] Mr Passaris said that the OCCS has 35 staff and works in a peer relationship with the OCCN. According to Mr Passaris, the roster resourcing does not match the workload. On week days, an increased number of staff start work at 6.30 am and at 2.33 pm the number of staff reduces. Any requirement for additional staff because of workload or to cover sick leave absences results in the payment of overtime. Historically, the spread of peak work for the OCCS is 6.00 am to 6.00 pm and the OCCN has similar requirements. The planned workload on week days (excluding public holidays) for the OCCS commences around 7.00 am through to 6.00 pm.

[46] In summer months, storms commencing in the afternoon are common. When this occurs, there is limited capacity to easily escalate, as the unplanned work that occurs from storm activity is additional to planned work that is already occurring.

[47] One of the key roles in the OCCS is switching sheet preparation, which comprises approximately 30% of rostered work. As Ergon is limited to the current shift times, the 6.30 am to 2.33 pm shift is used for this role. There are challenges getting staff to be able to prepare switching sheets starting at 6.30 am as the key contacts that the may need to discuss the switching sheet with, typically work from 8.00 am until 5.00 pm, including Outage Co-ordinators and the OCCS’s Engineering Support. This may result in low productivity and efficiency for the staff allocated to switching sheet preparation from 6.30 am until 8.00 am.

[48] From an operational perspective, the additional day shifts provide a better match to work load patterns and allow for an easier escalation over the day if unplanned events occur while the planned workload is still occurring. The response from 8.00 am to 6.00 pm for work will be enhanced by the inclusion of the shifts sought by Ergon as it is better aligned to the planned work peaks. The 8.00 am to 4.03 pm shift would be ideal to support the current switching coordination including the handovers at 2.30 pm. Several recent critical items have recently been missed at handover, and an overlapping shift would improve this process.

[49] Mr Passaris also said that the current on-call arrangements on weekends in the OCCS are not acceptable. As the OCCS is manned with a skeleton staff on weekends and these staff are on-call as well, there is limited escalation due to fatigue and nine hour breaks. There is no escalation of Level 1 and 2 staff from 6.30 am to 2.33 pm because they are already at work and no escalation of Level 3 staff from 2.00 pm to 10.23 pm because they are already at work.

[50] The proposed shifts will also contribute to improving the on-call arrangement during the week. The current on-call arrangement on week days is allocated to a person working a 6.30 am to 2.33 pm shift. If the person is required during the week day to be called in, Ergon ends up either being required to send the person home by 9.30 pm or having a nine hour break where there will be a gap in resourcing and costs to Ergon to try and back fill the gap. With the 9.57 am to 6.00 pm shift combined with the on call, Ergon will have up to 12.57 am to send someone home to avoid the nine hour break. Comparing the two shifts, Ergon will reduce the nine hour limitations with the introduction of the 9.57 am to 6.00 pm shift, which will flow on reduced costs to Ergon Energy.

[51] Mr Christensen also emphasised that OCCs have an operational requirement to have appropriately resourced on call arrangements in the event of an emergency or when escalation of resources is required and the need for OCCS on call arrangements to align with a 9.57 am to 6.00 pm day shift as they do in the OCCN, and to provide certainty for additional resources including additional resources for escalating on the weekend.

[52] Mr Christensen said that the inclusion of the day shifts sought by Ergon commencing at 8.00 am in the OCCN and at 9.57 am in the OCCS and OCCN in existing shift rosters, as well as the alignment of on call requirements, will allow Ergon to:

● Better manage peak periods of planned and unplanned outages;
● Apply more resources to the later afternoon storm season for increased continuity and accountability;
● Improve service levels minimising the need to call back additional staff for overtime or emergency work; and
● Reduce costs.

[53] Mr Christensen also said that in his view, the 10.00 am 6.00 pm is the best shift option to manage the afternoon peak because there will be staff there at the right time, and there would be no delay in calling people in early or after the event. Staff are needed there at the time and the 10.00 am to 6.00 pm shift gives Ergon an overlap from the end of the afternoon shift at 2.30 pm across the period when most storms occur.

[54] While there is a peak in the morning, the afternoon peak is spread out longer and a certain number of people are needed to manage that. Thrown on top of that peak, in the event of an unplanned outage such a storm, the numbers of people rostered on for the afternoon shift starting at 2.30 pm are not sufficient. If a 10.00 am to 6.00 pm shift is rostered on top of the afternoon shift, the overlap provides extra staff who can be ready to respond straight away to an unplanned event.

[55] In response to the proposition that there is a difference in work load between OCCN and OCCS, Mr Christensen said that there is a difference in respect of planned switching sheets, but that other activities are similar. Mr Christensen also highlighted the need to resource peaks, maintaining that workload is one thing but Ergon needs to be able to manage peak workload. According to Mr Christensen, workload is irrelevant in that the roster changes proposed by Ergon are to deal with unplanned events and on call, which is insufficient after hours and on the weekend.

[56] In response to that proposition that the OCCS has a higher workload than the OCCN Mr Christensen maintained that the workload is quite variable and there have been months when OCCN has a higher workload than OCCS. However, workload patterns are very similar and workload per se is not a key performance indicator measured by Ergon.

[57] In response to the proposition that existing rosters and Agreement allow for employees rostered to finish at 2.30 pm to stay on in the event of a storm in the afternoon and for employees who have not been on shift yet to be called in, and that there were minimal instances of this occurring, Mr Christensen said that on 22 January 2014 there was a storm which required call outs, and that there have been other occasions involving delays in getting staff and consequently in supply restoration.

[58] Mr Rigano said that several areas of the business supported by the OCCs have moved to a spread of hours between 6.00 am and 6.00 pm and the OCCN having a spread of resources across those hours allows for cost efficient service and productivity levels to be met. This is because staff are available at ordinary rates during those hours, reducing overtime costs, to address peaks such as high call volumes and planned and unplanned outages. Further flexibility is sought in the OCCN with the additional day shift from 8.00 am to 4.03 pm.

[59] These hours are already worked in the OCCN where flexible start times are agreed for staff not rostered to a “monitor and control” day shift. These arrangements allow employees to work at normal day times during their roster rotation while allowing management to address their operational requirements in terms of managing peak workloads, training and other normal duties within the centre.

[60] Formalising these hours as a day shift in the rosters for the OCCN and the OCCS will allow off-desk work such as training, meetings and site visits to be conducted more cost effectively between 8.00 am and 4.00 pm by allowing the use of ordinary time and reducing overtime cost to the business. Mr Rigano also said that the 9.57 am to 6.00 pm day shift operating in the OCCN is a suitable spread of hours across the day to respond to peak network activity that is experienced by both control centres. That shift enables workloads and peaks to be managed across the day and provides better service to customers through faster response times and increased resource availability.

[61] In relation to on call arrangements, Mr Rigano said that the OCCN operates a system whereby one employee from each classification of Level 1 and 2 Network Operations Officer and Level 3 Network Controllers rostered to work the 9.57 am to 6.00 pm day shift are on call outside their rostered shift hours.

[62] Having the on-call requirements align with the 9.57 am to 4.00 pm day shift arrangements provides greater resource availability and the right type of resource (ie. employees at appropriate Levels) to manage peak afternoon work and emergencies. Because the 9.57 am to 6.00 pm day shift is rostered Monday to Friday, employees are also required to be on call on the weekend. By having employees on call on weekends who are not rostered to work ordinary shifts, provides certainty for additional and appropriate resources to respond to emergencies.

[63] Mr McLellan said that the OCCS currently has three rotating shifts being: day shift 6.30 am to 2.33 pm (eight staff); afternoon shift 2.30 pm to 10.33 pm (six staff) and night shift 10.30 pm to 6.33 am (two staff). Weekends and public holidays are resourced with three staff on day and afternoon shift and two staff on night shift. An additional shift for staff not required in the on-shift roster is 6.30 am to 2.33 pm Monday to Friday which is used for office duties such as preparing switching sheets for planned work.

[64] According to Mr McLellan, the limitations of the current roster include limited ability to escalate resources after 2.33 pm to respond to system events as all day shift staff including those on office duties leave at 2.33 pm, leaving only six staff on afternoon shift to respond to all system events. During storm season, additional staff are usually required after 2.33 pm as storms generally begin after this time.

[65] The lack of resources in the evening leads to reduced customer service levels because fewer staff are available and increased overtime costs due to callouts and subsequent mandatory nine hour breaks. The reduced resourcing levels contribute to Reduced Service Target Incentive Scheme (STPIS) performance as well as impacting unfavourably on the System Average Incident Duration Index (SAIDI) and System Average Frequency Index (SAIFI) measures which are prescribed “Minimum Service Standards” set by the Government.

[66] Outside storm season, the six staff rostered on afternoon shift are an inefficient allocation of resources and it would be more productive to utilise some of the afternoon shift staff to cover peak workloads earlier in the day. The shifts proposed by Ergon would also allow more efficient preparation of switching sheets. This is currently done on the day shift (6.30 am to 2.33 pm) and is inefficient because other Ergon staff who need to be contacted in connection with this work typically start work at 8.00 am.

[67] Mr McLellan said that the implementation of Ergon’s shift proposal would:

● Provide flexibility of response when escalation is required due to system conditions;
● Reduce the need for overtime, particularly during storm season, as staff would be available up to 6.00 pm instead of 2.33 pm;
● Limit the number of times staff are unavailable to commence work due to the required 9 hour break after callout;
● Allow for training, OCCS project work and field visits without incurring overtime;
● Increase productivity of staff on switching sheet duties by providing greater opportunity to interact with other departments;
● Reduce the cost of team meetings as more staff would be available at no additional cost to the business when rostered on the proposed shifts;
● Contribute to improved performance in the STPIS and Ergon’s Government mandated Minimum Service Standards measures due to an immediate response being available until 6.00 pm and allowing for these resources to be held in place until on-call resources responded if needed, providing a continuity of response;
● Improve customer service and telephone answering statistics as operational departments that are OCCS customers are utilising the Agreement spread of hours from 6.00 am to 6.30 pm.

[68] Mr McLellan also said that the extra day shifts would provide an opportunity to improve shift handovers from day shift to afternoon shift because the availability of staff after 2.33 pm due to the proposed shifts, will allow for handovers with minimal interruptions. In relation to storm season, Mr McLellan said that generally by 6.00 pm there is clarity about whether storms are going to be an issue. If staff are already at work, they can respond immediately and stay at work rather than there being delays while staff are called in. Employees rostered on a shift finishing at 6.00 pm can work through to 1.00 am in the event of a storm and have a 9 hour break before starting their ordinary shift on the next day. If more staff are needed or some staff wish to leave, continuity of service can be maintained until employees who have been called in arrive.

[69] Under cross-examination Mr McLellan agreed that there had probably been minimal instances of staff staying back after day shift due to unscheduled events, because storms generally started later than 2.30 pm. Mr McLellan also agreed that Ergon has the ability to call people out in such circumstances and said that managers had been put on call to respond quickly to unplanned events. Further, Mr McLellan agreed that in a two year period there were 32 callouts with respect to employees at OCCS and 93 with respect to employees at OCCN.

[70] Mr McLellan did not accept that it would be best for employees preparing switching sheets to be able to speak with field staff first thing in the morning before they went out, and said that it would be expected that questions would be directed to the outage coordinator and not to field staff. In response to the proposition that employees had been called in on weekends to write switching sheets, Mr McLellan said that employees writing switching sheets on weekends had not been called in but rather, were working planned overtime, when it was known that there was a possibility of severe storms on the particular weekend.

[71] In relation to peak periods, Mr Hegarty said that he disagreed with Christensen’s evidence about the need to increase resources in the afternoon period, and in his experience there had been minimal callouts for escalation of resourcing for the 14.30 - 18.00 window and minimal instances of the 6.30 am to 2.33 pm rostered staff being required to remain at work to assist. Mr Hegarty said that in his experience, 7.00 am to 10.00 am is typically the highest peak in a 24 hour period.

[72] In the OCCS Mr Hegarty has seen the 6.30 am to 2.30 pm rostered support staff regularly used to man control consoles and cover personal leave absences. If the proposed 10.00 am to 6.00 pm shift was introduced, there would be less 6.30 am to 2.30 pm rostered staff for these needs. Mr Hegarty also contended that Ergon’s proposed roster would place the 6.30 am to 2.30 pm staff under considerable stress.

[73] Further, Mr Hegarty said that he had been informed that OCCN employees rostered on the 10.00 am to 6.00 pm shift are often used prior to their 10.00 am start time to assist with planned workload. In relation to workload, Mr Hegarty said that there is a significantly larger workload in the OCCS than the OCCN and tendered a report entitled Fdr STAT Report - Network Operations, showing the total number of asset events handled by the two Centres between 1 July 2012 and 30 June 2013. That Report indicates that there were 11,468 such events in OCCS and 8312 in OCCN in that period comprising a difference of some 36% more events completed by OCCS. 12

[74] Mr Hegarty also said that the OCCS has three less controllers than the OCCN. This higher workload impacts the OCCS morning workload in comparison to the OCCN. Standardisation of rosters will not provide optimisation as differences between the North and South control room are not accommodated. On the basis that the OCCS handles more events with less staff than the OCCN, Mr Hegarty is of the view that introducing the roster to the OCCS would result in no significant operating efficiencies.

[75] In relation to alignment of OCC hours with depot hours, Mr Hegarty said that approximately 67% of depots within the OCCS area have a commencement time of 07.00 hours or 7.30 am and this aligns with the 7.00 am to 9.00 am workload peak, as staff carry out all load shift switching at commencement of the day. The current OCCS 6.30 am to 2.30 pm roster aligns with depot hours allowing OCCS staff to contact depot personnel prior to them departing the depots. Contact with field staff when they are in the field is difficult and in Mr Hegarty’s experience, the information that OCCS staff need from field staff can only be obtained while they are at the depot.

[76] Mr Hegarty also disputed the evidence of Mr McLellan and Mr Passaris in relation to the need to incur overtime to attend training, field visits and project meetings. Mr Hegarty said that this only occurs if the duration of training exceeds 8.05 hours or if staff are rostered off shift. This would also be the case under the roster proposed by Ergon. According to Mr Hegarty, the practice of individuals adjusting rostered shift start times to align with training times so overtime costs are not occurred, has always been in place and is the current practice within the OCCS. All planned overtime is only worked and booked on the basis that it is pre-approved by management. It is also the case that field visits for OCCS controllers are an extremely rare occurrence. Mr Hegarty has only been required to attend one field visit in five years.

[77] In relation to peak times, Mr Belz maintained that the highest demand for resources is consistently between the hours of 6.00 am and 10.00 am when controllers are required to familiarise themselves with work for the day and commence co-ordination and switching duties related to that work. OCCN employees have advised that there are a number of instances where staff rostered from 10.00 am to 6.00 pm are called in early to assist with the morning peak load.

[78] Mr Passaris was cross-examined about this matter and said that it is possible that this occurred. Mr Passaris also said that he had asked people to working at 10.00 am to come in early because they had been working on a particular project. Otherwise employees rostered to start work at a particular time could be called in early simply to cover workloads on the basis that they are available outside of hours.

[79] Mr Belz also maintained that the reduction in staff numbers between the hours of 6.30 am and 10.00 am resulting from Ergon’s proposed arrangements would place significant increased pressure on the smaller number of staff that commence at 6.30 am. Those staff would still be required to cover the substantial switching co-ordination activities as well as absences that are not known about until close to the 6.30 am starting time. Ergon management has regularly been made aware of increased pressure on controllers during high activity times such as this and the associated increased safety risks if not adequately resourced.

[80] Mr Belz questioned whether the three minute handover period proposed by Ergon adequately addressed shift handover issues and was sufficient to allow a safe and adequate time frame for handover tasks to be completed. Mr Belz said that the usual practice is for controllers to arrive 15 minutes early to complete handover and that he has not claimed overtime for this or for staying late for a long handover. Recently Mr Belz has started to claim overtime for handovers and believes this is an increasingly common practice as employees become frustrated with the small amount of time allowed for this activity.

[81] Ergon proposes an outgoing shift at 2.33 pm and an incoming shift at 2.30 pm. This is regularly in the middle of reverse switching co-ordination duties. During the review process Ergon representatives suggested that a 10.00 am to 6.00 pm shift person would look after some phone calls and may take handover of a planned job earlier than 2.30 pm, however it is not clear how this will operate and there will be difficulties associated with someone taking a phone call regarding switching when they have not been associated with the switching sheet and do not know the current status of the network in the area being switched.

[82] In relation to writing switching sheets, OCCS consistently has higher requirements with respect to writing and coordination demands than OCCN. Ergon has not produced data to show that OCCN using the 10.00 am to 6.00 pm option has delivered the service at a lower cost, more safely or has provided better client/customer service than the OCCS. Mr Belz asserted that evidence from Frd Stat reporting and operational meetings actually shows that OCCS has a higher switching sheet writing and coordination output and that this is achieved with less staff.

[83] Mr Belz disputed Mr Pissaris’ evidence in relation to errors in switching sheets and phone service mainly in OCCS and said that he was not aware of this prior to roster optimisation meetings and that employees’ requests for comparative data had not been granted. Mr Belz also disputed Mr McLellan’s evidence that some 20 OCCS staff currently rostered on day shift all leave at 2.33 pm, leaving only six staff on afternoon shift to respond to all system events. Mr Belz said that the base roster template reflects that 21 staff are rostered on day shift, but the actual roster which reflects planned and unplanned leave, has 12 staff rostered on day shift with the net difference between day and afternoon shift being six to nine staff.

Standardisation between OCCS and OCCN

[84] According to Mr Passaris, the OCCS and OCCN are required to have similar approaches to work and rosters to provide for effective and efficient escalation during emergencies and disasters. As both Centres do similar work, with a sharing of workload throughout Ergon’s electricity network, the work patterns for both control centres are similar. The work practices for planned switching and access in Ergon are normally planned to be worked during daylight hours. This work is performed during the day for safety and visual improvement. Field staff work the spread of hours between 6.00 am to 6.30 pm as part of their ordinary work. This results in work patterns typically from 6.00 am to 6.00 pm in the OCCs.

[85] Appended to Mr Passaris’ witness statement as “JP-4”, “JP-5” and “JP-6” are documents setting out work load patterns for Line and Vegetation Management, Planned Workload and Phone Calls. These are said to indicate that there are very similar workload patterns between the two centres and Mr Passaris’ perspective, there is no reason why there should be different approaches to managing workloads in the OCCN and the OCCS.

[86] Mr Christensen gave evidence about the history of strategic projects, aimed at upgrading control centre sites and transitioning all high voltage network control to the Control Centres located in Townsville and Rockhampton. These initiatives include standardisation of switching and access procedures, control centre strategy, link project and control centre program of work. The overarching strategic principle guiding these initiatives is the concept of “One Control Centre - Two Locations”.

[87] The OCCN and the OCCS are required to have similar approaches to work and rosters to provide simple and efficient escalation during emergencies and disasters. As the type and nature of the work that the Control Centres perform is the same with a sharing of the work load throughout the electricity network, the work patterns for both OCCs are very similar.

[88] Mr Christensen also said that the optimal roster arrangement to meet this requirement is one that is common to each control room. Alignment on shift rostering will effectively allow the two Control Centres to better manage peak workloads, major contingencies and loss of systems. This will support both OCCS and OCCN to interact without roster-related impediments and inefficiencies.

[89] Mr McLellan said that Ergon is seeking to implement a two control centre model of “One Control Room, Two Locations” as both rooms are required to have the capability to provide continuity of monitoring and control should one room have to be abandoned for any reason. This includes work practices and rostering.

[90] Mr Hegarty said that the OCCS and OCCN currently work under the “One Control Room, Two Locations” model in which work processes between the two centres are closely aligned. This close alignment provides consistency and continuity to field staff if or when they under either control centre. Mr Hegarty also said that notwithstanding the need benefits of consistency, OCCS and OCCN have also had significant differences between their rosters, and these have not impacted on the work processes and practice alignment or efficiencies.

[91] Further, Mr Hegarty said that in the past when escalation has been required between control centres, such as in times of disaster or emergency, or even to assist with high workloads, the current arrangements whereby by the two control centres have different rosters, has not caused any issues or inefficiencies.

Reduction of Costs

[92] The evidence of Mr Passaris is that the current rosters have the following adverse impacts in relation to overtime which is required to be paid at the rate of double time and includes the aggregate shift loading:

● OCC staff performing field visits with outage coordination and/or engineering support staff to understand design and switching issues, need to be paid overtime due to their different starting and finishing times;
● Training attended by OCC staff is typically conducted between 8.00 am and 4.00 pm and Ergon is required to negotiate with OCC staff to change their hours on a one off basis to avoid the payment of overtime or to pay overtime where this is not agreed;
● Monthly team meetings are held from 12.30 pm to 2.30 pm and Ergon currently pays overtime to any staff not rostered on. If there were other shifts such as 9.57 am to 6.00 pm Ergon would reduce the number of staff on afternoon shift and in turn the overtime cost for staff to attend team meetings.

[93] Ergon will reduce costs by the implementation of the proposed shifts by a reduction in 9 hour breaks, reduction in overtime required between 2.33 pm and 6.00 pm, improved capability for switching sheet preparation improving output for the control centre and reduction in training and meeting costs. Improved service levels during the period between 2.33 am and 6.00 pm will assist with meeting STIPS requirements, field staff efficiency and overtime, which will in turn reduce operational costs in the business which flow through to customer costs.

[94] According to Mr Passaris, the 10.35 hour shift proposal by employees is not cost neutral. In particular, Mr Passaris pointed to the fact that the proposal increases the penalty component of worked rosters, and while this does not impact immediately, it will be bargaining point in future wages negotiations. The 10.35 hour shift would also increase the accrual of annual leave by an additional 19 hours average per employee. This occurs due to employees who are rostered off on a public holiday having 10.35 hours credited to leave instead of 8.05 hours.

[95] Under cross-examination Mr Passaris maintained that the formalisation of an 8.00 am to 4.00 pm shift in the OCCN would reduce overtime on training days but agreed that employees voluntarily move their start times on such occasions so that overtime is not payable. In response to a question from the Commission, Mr Passaris said that the 10.00 am to 6.00 pm day shift would reduce overtime because if an escalation was required in the afternoon, employees would already be at work.

[96] Mr McLellan also said that overtime costs are incurred when staff attend training sessions that normally run from 8.00 am to 4.00 pm. Overtime costs are also incurred for staff doing field visits which need to coincide with the working hours of field staff who work within a spread of hours from 6.00 am to 6.30 pm.

[97] Mr McLellan said under cross-examination that he was not sure whether the request by Controllers for more information about the claims by Ergon that overtime costs were increasing due to call outs and 9 hour breaks had been acceded to. Mr McLellan also said that he could see no reason why that information would not have been provided. Mr McLellan agreed that there had been very few field trips undertaken in recent times.

[98] Mr Belz disputed Mr Passaris’ evidence that overtime costs associated with field trips and training would be reduced and maintained that there had been minimal field trips and that staff aligned their start and finish times with the trip or training commencement. Mr Belz also said that additional annual leave accruals were the result of Controllers agreeing to a previous request by Ergon to change the way that they were rostered over public holidays.

[99] Further, Mr Belz said that there was no evidence provided by Ergon management about increased overtime costs due to call outs and subsequent mandatory nine hour breaks, despite requests from controllers during the roster optimisation process that they be provided with information relied on by Ergon to support this assertion. Any increase in aggregate rates as a result of the employee proposal would be within the range for that rate provided for in the Agreement.

[100] Mr Christensen was cross-examined about other alternatives to implement cost savings and flexibility and said that these are not in place at the time and have not commenced due to the cost of implementation.

Work/life balance

[101] Mr Passaris said that the optimum shift arrangements for the OCCS is to have a quantity of staff performing the exiting 24 hour cycle complemented by staff performing two other day shifts from 9.57 am to 6.00 pm and 8.00 am to 4.03 pm. The effect of the inclusion of these day shifts in the OCCS roster would result in a reduced quantity of 6.30 am to 2.33 pm shifts and a reduction of the need for the number of staff working the current afternoon shift.

[102] The introduction of the day shifts sought by Ergon would reduce the need for early day shift starts and afternoon shifts and would provide staff with access to more socially acceptable hours of work for improved work/life balance. Staff will also have a more normal starting and finishing time, associated with working these shifts because of the reduced number of early starts and afternoon shifts.

[103] Mr Passaris also gave evidence about the fatigue management system used by Ergon - Fatigue Audit Interdyne (FAID). This system is an assessment tool which enables Ergon to score various shift configurations to calculate a cumulative fatigue score. Mr Passaris said that fatigue levels could be reduced with the introduction of the shifts proposed by Ergon. The current shift times of 6.30 am to 2.33 pm in OCCS and 7.00 am to 3.03 pm in OCCN (based on five days) provide a cumulative FAID score of 63 and 59 respectively. The FAID scores for the shifts proposed by Ergon are: 46 for the 8.00 am to 4.03 pm shift and 38 for the 9.57 am to 6.00 pm shift, based on five days.

[104] The FAID score for the 10.35 hour shift proposed by OCC employee representatives for five days, increases the fatigue score to 77, a score that exceeds the current roster arrangements. Appended to Mr Passaris’s witness statement as “JP-2” was a FAID score summary outlining the FAID score for the existing day shifts in OCCS and OCCN; the proposed day shifts of 8.00 am to 4.03 pm and 9.57 am to 6.00 pm; and the 10.35 hour shift proposed by employees.

[105] Mr Passaris also said that the shifts proposed by Ergon do not impact on employee entitlements as Network Operations Officers and Network Controllers are on an aggregated rate which includes an all purpose loading.

[106] In relation to the objection of employees to Ergon’s proposals, Mr Passaris said that the shifts proposed by Ergon are in his opinion, the lowest impact change on all parties. The OCCN is already working the 9.57 am shift combined with the on-call role and is unofficially working the 8.00 am to 4.03 pm shift. The payroll system is already set up with the shifts as required so there would be no cost to Ergon for this change other than new rosters to be developed.

[107] The shifts proposed by Ergon in the OCCS changes two weeks of the current cycle of each Level of employee, which is two weeks in each 10 to 12 weeks depending on the level of the employee. The other change is the on-call. As the 9.57 am to 6.00 pm on-call are deployed in OCCN, Ergon has experience to draw on to make things work.

[108] Under cross-examination it was put to Mr Passaris that the FAID system did not take into account that employees would potentially have five shifts that they could be moved onto and off. Mr Passaris said that it is unlikely that this would happen and that shifts would run for blocs of five days. Mr Passaris maintained that Ergon would not swap shifts every day and it would not be smart to do so. Further, Mr Passaris said that issues such as this could be resolved by establishing the guidelines that had been discussed but not finalised as part of the review process.

[109] Mr Rigano said that the increased spread of day shift hours associated with the shifts sought by Ergon reduces calculated FAID scores with shifts starting at 8.00 am and 9.57 am allowing employees the opportunity to commence later in the day and thus provide the opportunity for a later wakeup. At present in the OCCS employees have a 6.30 am start and no other option. According to Mr Rigano, the later start times provide staff with an improved work/life balance.

[110] Mr Rigano also contended that there are no added duties or responsibilities placed on staff for simply working the different spread of hours proposed by Ergon. There is also no impact on employee entitlements, and remuneration, allowances and normal working hours are maintained, unless employees are required for escalation, at which point overtime is paid.

[111] In relation to the 10.35 hour shift proposed by employees, Mr Rigano said that although that proposal provides employees with extra days off, they would still be required to be on call. Further, this proposal would mean that employees would not be able to take children to school. This was one argument used to reject the 10 - 6 proposal put forward by Ergon but this situation is worsened by the 10.35 hour shift proposal advanced by employees.

[112] Mr McLellan said that the Ergon proposal would improve work/life balance as the extra shifts would allow at least two meals a day with family instead of only one and that as a former shift worker he would have welcomed the proposed shifts to provide him with more family time and respite from early starts. Mr McLellan also said that approximately 60% of all shifts are day shifts (on shift and office duties) and all begin at 6.30 am which leads to accumulating fatigue. Both the proposed extra shifts would reduce fatigue due to the later start times of 8.00 am and 9.57 am.

[148] It is not in dispute that storms occur in the afternoon during storm season and that Ergon needs resources in addition to employees who are already at work. I accept that it is difficult to escalate employee numbers when day shift employees have left work at 2.33 pm (before most storms occur). That there are employees at work on day shift until 6.00 pm provides the option for those employees to stay on at work to the maximum period before they are required to cease work so that they have a nine hour break before starting work on the next day, or to stay for a shorter period until other staff can be called in. The fact that there will be overlaps between groups of employees rostered on the three staggered day shifts will only enhance Ergon’s flexibility in this regard.

[149] Further, I accept that the staggered day shifts will enable more efficient preparation of switching sheets. In this regard, I accept Mr McLellan’s evidence that staff undertaking this work would direct questions to the outage co-ordinator who would be available to respond to calls from employees rostered on the day shifts starting at 8.00 am or 9.57 am.

[150] The evidence of the QSU witnesses disputing that there are operational needs for Ergon’s proposed shifts and that standardisation is required, is not compelling. Mr Hegarty and Mr Belz have generally indicated that they do not agree that there is an operational requirement for the proposed shifts, or that standardisation of rosters between the OCCN and the OCCS is necessary. The reality of the matter is that by virtue of clause 2.1 of the Agreement, the QSU and its members have committed to working towards standardised rosters and work practices between the two OCCs.

[151] I do not accept Mr Hegarty’s contention that Ergon’s proposed shifts will put additional pressure on staff rostered from 6.30 am to 2.33 pm to cover personal leave absences. I assume that Mr Hegarty is referring to coverage of personal leave absences on that shift, which would not be known about until either just before or just after the shift starts. The effect of introducing Ergon’s staggered day shifts is that there will be the same or essentially the same number of day shift employees rostered over a larger number of day shifts. The need for employees on the 6.30 am to 2.33 pm shift to cover personal leave absences on that shift, will decrease proportionately with the number of employees actually rostered on that shift.

[152] Mr Hegarty’s evidence that few staff on the 6.30 am to 2.33 pm shift have been required to remain at work after that shift is not a compelling reason to maintain the current roster in the OCCS. Ergon’s evidence is that storms generally occur after 2.30 pm when staff have left for the day, and this requires staff to be called in. The shifts proposed by Ergon will mean that there will be overlap in the day shift employees which will enable the afternoon peaks to be managed. I am also of the view that the overlap in numbers of staff in the morning will be sufficient to deal with workload. It is also clear that while there is a workload peak in the morning, there are also peaks caused by unplanned events in the afternoon. The rosters proposed by Ergon address peaks across the day.

[153] I am not satisfied that differences in workload between OCCS and OCCN are a basis for refusing Ergon’s shift proposal. In this regard, I accept the evidence of Mr Christensen to the effect that workload is variable and is irrelevant to the shifts sought by Ergon, which are to deal with unplanned events and on call.

[154] In relation to cost savings, I accept that overtime costs associated with training and site visits are not significant, given that employees generally agree to move their ordinary hours of work to attend training, and site visits are few and far between. However, I also accept that the shifts proposed by Ergon will impact favourably on its costs in relation to contributing to achieving service standards. It will also impact favourably be reducing the cost of lost productivity associated with employees being required to have nine hour breaks. Further, it may not always be the case that employees will continue to provide this flexibility, and Ergon’s proposal gives certainty in this regard.

[155] I do not accept the assertion of the QSU that the shifts proposed by Ergon will adversely impact work/life balance. All of the day shifts proposed by Ergon are rostered between spread of day shift hours in clause 2.2 of the Agreement. Essentially the QSU appears to base its objections on this ground on the assertion that the greater number of start times will result in employees having a greater number of shift changes which will result in them not having an opportunity to arrange their personal and family commitments. This concern also seems to be based on an assumption that Ergon will change starting times in a five day block of shifts, requiring employees to start at, for example, 6.30 am on day one, 8.00 am on day two and 9.57 am on day three.

[156] This concern was said to be the major reason for the opposition of employees to Ergon’s proposed shifts. In my view this concern has no basis. It would be unlikely that Ergon would roster employees so that they have a variety of start times within one bloc of the roster. The likely scenario, confirmed by Mr Passaris, is that the roster will provide for blocks of five shifts, all with the same starting time, and that employees will be rostered accordingly. The current situation is that employees in OCCS rotate between one day shift, one afternoon shift and one night shift. If Ergon’s proposal is implemented, then the same number of employees will rotate between three day shifts, one afternoon shift and one night shift.

[157] The result will be that employees will be rostered for a greater proportion of their working hours on shifts that fall within the spread of day shift hours. I also accept Mr Passaris’ evidence that it would not be smart to roster employees so that they have two or three different starting times within a bloc of day shifts and that this concern can be addressed in the discussions about rostering guidelines. The FAID score of Ergon’s proposal betters the score for the existing rosters. An increased number of day shifts is also desirable in relation to fatigue management. There are no adverse impacts of Ergon’s proposal on employees’ earnings or entitlements or in terms of duties and responsibilities that they will be required to undertake.

[158] I do not accept that the 10.35 hour shift proposed by employees is consistent with the commitment in clause 2.1 of the Agreement or that it addresses the criteria in clause 2.5 of the Agreement. The employee proposal does not provide for standardisation of rosters. Furthermore, it is not consistent with Ergon’s operational requirements, and provides for periods of down time which are inefficient and do not result in an optimal use of employees rostered time. The employee proposal is not agreed by employees at OCCN and its implementation in that centre would be problematic, and doubtless lead to disputation.

[159] In relation to on call arrangements, there is uncontested evidence from employees that the proposal advanced by Ergon will increase the number of weekends they will be required to be on call, to almost half of the weekends in a year. Ergon provided no response to this evidence and elected not to cross-examine the witnesses for the QSU. Ergon also contended that it has the right to implement its proposal under the existing terms of the Agreement.

CONCLUSIONS

[160] The question of how resources should be allocated so that Ergon can conduct its business efficiently is a matter that is within the prerogative of Ergon. Ergon has decided that it requires the implementation of additional day shifts to achieve savings initiatives and to ensure that levels of productivity and efficiency are sufficient to meet its operational requirements and service obligations.

[161] The Commission should not prevent Ergon from implementing rosters that it believes are necessary to achieve its business objectives unless Ergon is seeking something unreasonable from employees. The QSU has not established that the shifts sought by Ergon impose unreasonable obligations or demands on employees that would justify the Commission preventing Ergon from implementing them.

[162] To accept the arguments of the QSU would also require that I accept the views of Mr Hegarty and Mr Belz about how Ergon should achieve improved efficiency, over the views of Ergon’s managers. While I accept that Mr Hegarty, Mr Belz, and the other employees in OCCS that they represent do not want to work the shifts proposed by Ergon, there would need to be compelling evidence about why those shifts would not create greater efficiency before I would accept that the views of employees in relation to matters of operational requirements and efficiency should be given greater weight than the views of the relevant managers. This is particularly so when there is no evidence that the proposed rosterd place unreasonable demands or obligations on employees.

[163] To accept the evidence of Mr Belz and Mr Hegarty in relation to efficiency and operational requirements over that of Mr Passaris, Mr Christensen, Mr Rigano and Mr McLellan, would be to accept that Ergon is seeking to change rosters for no good reason or has some perverse or ulterior motive for doing so that is unrelated to productivity and efficiency. In my view, Ergon has clearly established that it has sound reasons for the roster changes it seeks, that are based on improving productivity and efficiency, and that the proposed shifts will not impose unreasonable requirements on employees.

[164] For the reasons set out above, I am satisfied that the Review process has been undertaken to the extent that is necessary, to trigger the discretion for the Commission to arbitrate this matter. After considering the evidence I am satisfied that Ergon has established that the additional shifts it seeks are necessary to optimise rosters so that they are standardised across its OCCs.

[165] I am also satisfied that the shifts proposed by Ergon meet the requirements in clause 2.6 of the Agreement. Further, I have concluded that the roster proposal advanced by employees does not meet those requirements to the necessary extent or the same extent as the proposal advanced by Ergon.

[166] In relation to on call arrangements, I am not satisfied that Ergon has established that the commission should arbitrate. The evidence that has been put before the commission by the QSU has raised serious issues of substance about the impact of the proposed arrangements. Ergon elected, although it had the opportunity to cross-examine all of the witnesses for the QSU, not to cross-examine those controllers. Further, Ergon called no evidence in reply to those substantive matters that were raised by witnesses for the QSU, in and particular in relation to the number of weekends that controllers would be required to be available for in light of the proposals put forward by Ergon.

[167] I am also of the view that in circumstances where Ergon asserts the right to implement its proposal under the existing terms of the agreement with respect to call-out arrangements and maintains that it has the right to do so under the terms of the Agreement, that it is not appropriate that the Commission arbitrate in relation to that matter and that it should be allowed to run its course under the terms of the agreement. If Ergon asserts it has the right to implement the on call arrangements under the existing terms of the Agreement, it can direct employees accordingly. If employees assert that there are unreasonable requirements placed on them, or that Ergon does not have the right to direct them to implement the on call arrangements, then they can raise the matter via the disputes procedure and it can be dealt with accordingly.

[168] I am not minded to give Ergon a further opportunity to respond to that evidence, given the time frame over which this matter has played out and the fact that Ergon had every opportunity to call some evidence in response or to cross-examine the witnesses for the QSU in relation to that matter. I am also of the view that there are some outstanding matters that should be addressed, namely the rostering principles.

[169] I also indicated that failure to resolve those rostering principles would not stop Ergon from having the right to proceed to implement its shifts on that date. The Commission is available to assist the parties in regard to the outstanding matters.

DEPUTY PRESIDENT

Appearances:

Mr B. Montgomery and Mr D. Newman on behalf of Ergon Energy Corporation Limited.

Mr B. Green and Mr J. Donaghy on behalf of the Queensland Services Industrial Union of Employees.

Hearing details:

2014.

Brisbane:

March 7; June 13.

1 Australian Municipal, Administrative, Clerical and Services Union v Ergon Energy Corporation Limited [2011] FWA 1956.

2 Re: Cram and Others; Ex Parte NSW Colliery Proprietors’ Association (1987) 163 CLR 117;

3 Ibid at 137.

4 Monash College Pty Ltd v National Tertiary Education Industry Union [2012] FWA 4725;

5 Exhibit 2 Statutory Declaration of John Passaris.

6 Exhibit 1 Statutory Declaration of John Christensen.

7 Exhibit 3 Statutory Declaration of Matthew Rigano.

8 Exhibit 4 Statutory Declaration of Dale McLellan.

9 Exhibit 5 Statement of Peter Hegarty.

10 Exhibit 1 “JC-1”.

11 Exhibit 1 “JC-2”

12 Exhibit 5 “PH2”.

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