Transport Workers' Union of Australia v Busways Blacktown Pty Ltd
[2015] FWC 1498
•4 MARCH 2015
| [2015] FWC 1498 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 739 - Application to deal with a dispute
Transport Workers' Union of Australia
v
Busways Blacktown Pty Ltd
(C2014/6505)
DEPUTY PRESIDENT SAMS | SYDNEY, 4 MARCH 2015 |
Application for the Commission to deal with a dispute - bus operations in Western Sydney - Government contracts - introduction of new timetables - alleged ‘on time’ running issues - increase in abuse from passengers - safety of bus drivers - discrete agreement to resolve earlier dispute over new timetable - mechanism to address drivers’ concerns - Shift Survey Forms - Consultative Committee - unnecessary to establish new processes - extra claim - Union evidence not persuasive - orders sought refused - no need to determine jurisdiction and powers of the Commission - application dismissed.
[1] On 24 September 2014, the Transport Workers’ Union of Australia (the ‘Union’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the Dispute Resolution Procedure in the Busways Group (Sydney) and the Transport Workers’ Union of Australia Fair Work Agreement 2012 [AE401142] (the ‘Agreement’). The Dispute Resolution Procedure under the Agreement provides as follows:
‘31. Dispute Resolution Procedure
a) if a dispute relates to:
(i) A matter arising under the Agreement; or
(ii) Any matter pertaining to the employment relationship;
(iii) The National Employment Standards
This clause sets out procedures to settle the dispute.
b) The matter must first be discussed by the aggrieved employee(s) directly with his or her or their immediate supervisor.
c) If the matter remains in dispute, it must next be discussed with the supervisor’s immediate superior or another representative of the employer appointed for the purpose of the procedure. The TWU delegate for the worksite has the right to attend and participate in this discussion as a representative of an employee provided that the TWU delegate is the representative of the employee’s choice.
d) If the matter remains in dispute, it must next be discussed with the relevant manager of the employer. The TWU State Secretary (or his/her nominee) has the right to attend at and participate in this discussion as the representative of an employee provided that the relevant TWU State Secretary is the representative of the employee’s choice.
e) If the matter remains in dispute, it must next be submitted to The Fair Work Commission (FWC) for conciliation. For this purpose, it is agreed that the action FWC may take includes arranging conferences of the parties or their representatives at which is FWC is present; and arranging for the parties or their representatives to confer among themselves as conferences at which FWC is not present.
f) If the matter is not resolved in conciliation conducted by FWC, the parties agreed that FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute. In relation to such an arbitration, the parties agree that:
(i) FWC may give all such directions and do all such things as are necessary for the just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009.
(ii) Before making a determination, FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute.
(iii) In making its determination FWC will only have regard to the materials, including witness evidence and submissions, put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation.
g) The decision of FWC will be binding on the parties subject to the following agreed matters:
(i) There shall be a right of appeal to a Full Bench of FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow.
(ii) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.
(iii) The Full Bench (or a nominated member of the Full Bench) shall have the power to stay the decision pending the hearing and determination of the appeal.
(iv) The decision of the Full Bench in the appeal will be binding upon the parties.
h) Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.
i) The parties to the dispute agree to be bound by any decision made by The Fair Work Commission in accordance with this term. The parties undertake to resolve any disputes in a timely manner in accordance with the procedure set out in this clause and will co-operate to ensure that these procedures are carried out expeditiously.’
BACKGROUND
[2] Shortly stated, the dispute relates to consultation arising from changes in bus timetables and rosters by Busways Blacktown Pty Ltd (‘Busways’ or the ‘respondent’) following its successful tender with the New South Wales Government though its Agency, Transport for New South Wales (‘Transport NSW’) to provide privately operated public bus services in a region known as ‘Contract 1’ in Western Sydney (previously operated by ComfortDelGro), commencing 6 October 2013. The bus depot is based in Penrith, New South Wales.
[3] The history of this application is as follows. On 30 April 2014, Busways filed an application, pursuant to s 418 of the Act, seeking orders that the Union and the employees of Busways not engage in, or organise unlawful industrial action. These orders were granted; See: Busways Blacktown Pty Ltd v Transport Workers’ Union of Australia [2014] FWC 2993. On the same day, the Union filed an application, pursuant to s 739 of the Act (Matter C2014/4245), seeking to have the Commission deal with a dispute under the Agreement. The Union contended that the changes in timetables and rosters resulted in drivers being behind the wheel for unreasonable extended periods of time. Additionally, the timetable was not realistic in its deadlines, meaning that there was a risk of drivers being subject to abuse by passengers and incentives for them to drive unsafely or unlawfully.
[4] While the Union had sought that the status quo prevail while the matter was in dispute, Busways had indicated that they would go ahead with the proposed changes. Nevertheless, the parties subsequently reached a settlement of that dispute on 9 May 2014 in the following terms (the ‘Settlement Agreement’):
‘Agreement for Busways Penrith Depot
1. New timetable to be implemented on 18 May 2014 across Region 1.
2. Consultative Committee to meet:
(a) weekly for 6 weeks; and
(b) as agreed thereafter.
3. Purpose of Consultative Committee Meetings will be to resolve issues associated with 18 May timetable.
4. If an issue is raised:
(a) Consultative Committee will discuss;
(b) if Consultative Committee agrees that there is a problem, Busways will undertake a timed re-test of the relevant route (with a TWU representative).
5. If re-test proves there is a timetabling problem, Busways will:
(a) implement a Head Off Bus where practicable;
(b) if not practicable, implement any other available measure;
(c) as soon as practicable make changes to shift and timetable.
6. There will be a re-test of Route 794 as soon as possible. If a problem is identified as part of the re-test, steps 5(a) to (c) will be implemented.
7. A dedicated Head Off Bus will be appointed to Route 794 for first two weeks of the 18 May timetable’s operation.
8. The above process will be overseen by David Collins.
9. Steps 1 to 8 above apply for a fixed period of three months in order to address the implementation of the 18 May timetable;
10. Two weeks before expiration of this three month period, Busways is to consult with the TWU regarding whether this arrangement continues. Busways will ultimately reassess this issue after such consultation.
11. This Agreement is without prejudice to either parties’ substantive rights.
12. TWU undertakes not to lodge a dispute under s 739 in relation to this issue prior to 19 May 2014.’
[5] Relevantly, clauses 30 of the Agreement relating to the Consultative Committee is expressed as follows:
’30. Consultative Committee
The parties agree to establish a Consultative Committee on each site that shall be made up of management representatives from the Company and at least 2 employee representatives. When a TWU delegate/s is in place on the site then at least one TWU delegate shall serve on the Consultative Committee.
The Committee shall meet at least quarterly at a set date and time and shall discuss issues that include but are not limited to the following:
(a) Measures to improve efficiency and productivity
(b) The rostering of work
(c) The application of this Agreement
(d) Industrial concerns and grievances’
[6] On 24 September 2014, the Union filed this application, claiming that Busways had failed to comply with its obligations under the Settlement Agreement. After conferences I conducted on 8 and 23 October 2014 and with the consent of the parties, I issued directions, listed the matter for arbitration and granted the Union permission to file an amended application. The amended application described the dispute in the following terms:
‘1. The Transport Workers’ Union of Australia, NSW Branch (TWU) seeks to amend the application filed on 24 September 2014 to reflect further issues what [sic] have arisen since that date. Busways Blacktown Pty Ltd (Busways) consents to such an amendment. The issues contained in the former application are still live, save for the orders sought which are confined to this document.
2. The further issues have arisen in respect to a planned timetable change in Contract 1 by Busways to take place on 16 November 2014. The change will also alter the hours of work and rosters performed by the drivers employed by Busways.
3. The TWU understands the need for Busways to change the timetables for Contract 1. The TWU disputes the process which Busways has utilised to bring about such a change. There has been a distinct lack of consultation and the concerns of the drivers in relation particular issues [sic] which have been raised to this time have not been adequately addressed.
4. The Agreement provides for the establishment of a body designed to deal with issues arising due to the rostering of work to be known as the Consultative Committee. This is the appropriate body to deal with the issues which invariably arise during timetable changes. The use of this body to resolve such issues is desirable to ensure drivers are being consulted and to avoid enduring industrial unrest over such issues.
5. Once an issue has been referred to an [sic] identified by the Consultative Committee, Busways should be required to take positive steps to address the issue, be that to dismiss the issue with comprehensive reasoning, or address the issue transparently and in an expeditious manner.
6. Supplementing the original application, if existing issues have been raised in relation to a run that remains unchanged after the implementation of the November 2014 timetable, then those issues are subject to the Settlement Agreement reached on 8 May 2014. The process should be worked through to ensure the issues are properly resolved as per the agreement between the parties.
7. Nothing that the TWU seeks is contrary to the terms of the Agreement and all are reasonable in the context of the relationship between the parties since the takeover of Contract 1 in October 2013.’
[7] The dispute was listed for expedited hearing on 11 November 2014 as a new timetable was scheduled to be introduced on 16 November 2014. However, on 7 November, Mr L Izzo, Solicitor, acting on behalf of Busways, advised that the required approval of the new timetable by the New South Wales Government (Transport NSW) had not been given and hence the urgency of the hearing of the matter, was no longer necessary. Amended directions were issued and the matter was relisted for hearing on 16 and 17 December 2014.
[8] The relief sought by the Union is as follows:
‘a. An order that any remaining unchanged runs from the May 2014 timetable after the implementation of the November 2014 timetable, which had issues arise (including under Shift Survey Forms) during the nominal term of the Settlement Agreement, are subject to the remaining steps of the Settlement Agreement.
b. A finding that the Consultative Committee under the Agreement is the appropriate body to review the issues arising due to roster changes and that it is appropriate for the Consultative Committee to be convened when such an issue arises.
c. An order that the Consultative Committee meet when a significant issue arises in relation to on-road or running-time issues. After such a meeting, Busways shall:
i. Dismiss the issue providing clear reasons for doing so; or
ii. Accept that the issue exists and provide the Committee with details of the remedial action that will be taken to quickly and transparently rectify the issue.
d. A finding that rostering practices can create unsafe working conditions for drivers and that ensuring on time running in consultation with drivers alleviates such a problem.’
THE EVIDENCE
[9] The following persons gave written and/or oral evidence in the proceeding:
- Mr Rippon Singh, Driver, Busways and Delegate for the Union;
- Mr Barry Hupton, Driver, Busways and Delegate for the Union;
- Mr Nimrod Nyols, an Official of the Union.
- Mr Steven Hawkins, Group Operations Support Manager, Busways;
- Mr Daniel Clinton, Region Six Operations Manager, Busways; and
- Mr Robert Gibson, Contract One Operations Manager, Busways.
For the applicant
Mr Nimrod Nyols
[10] Mr Nyols is the Union Official responsible for the bus industry. He conducts semi-regular yard meetings with Union members at the respondent’s depots in Penrith. He is generally there every week.
[11] In his written statement, Mr Nyols said that he had warned the New South Wales Government of the Union’s concerns that competitive tendering would erode employees’ terms and conditions. Mr Nyols was aware that bus companies were contractually obliged to maintain a 95% ‘on time’ running KPI. He referred to a Customer Satisfaction report, released by the New South Wales Government, which set out that 19% of passengers in Contract 1 were dissatisfied with the punctuality of their buses. Only the Eastern Suburbs and Inner West regions had similar figures and they had greater issues with traffic congestion.
[12] Mr Nyols referred to the Settlement Agreement (see para [4]) and said that he had directed member drivers to fill in a Shift Survey Form (a blank copy of which is annexed to this decision and marked ‘Annexure A’) and submit it to Busways. Mr David Collins, Group Operations Manager, had been aware of this and had not raised any objection at the time. Mr Nyols annexed a bundle of the Shift Survey Forms and the responses from Busways. He did not believe that any of the issues raised in these reports had been through the Consultative Committee process.
[13] Mr Nyols claimed that he had spoken to a number of members one on one, who had described abuse and swearing from passengers when buses ran late. He would always receive a lot more phone calls from his members whenever there was a timetable change at Busways. He did not think that there was enough consultation with the drivers and cited an example of Busways putting up shifts to be chosen by drivers with a 24 hour deadline. Drivers had been told that if they did not pick a shift in this time, one would be picked for them. The notice had been in the following terms:
‘TO ALL PERMANENT DRIVERS
Please see below the New School Day roster commencing Sunday 16th November 2014.
Drivers will be required to pick in Seniority within 24 hours or a line of [sic] will be picked for you.
If you have any question please see Ali or George.’
[14] In cross examination, Mr Nyols acknowledged that he had not seen, and did not know the rates Busways had tendered for to win the New South Wales Government contract for Region 1. He relied on the Minister’s announcement that the Government’s two key objectives in awarding the bus contracts were to save taxpayers’ money and to improve services to the public. Based on this criteria, he believed Busways was the cheapest tender. He agreed he did not know if Busways’ quotes were realistic or not.
[15] Mr Nyols agreed that a number of other regions had similar passenger punctuality dissatisfaction ratings to Contract 1. He accepted that Contract Regions 7 and 15 are not inner city regions, but have similar ratings to Contract 1.
[16] Mr Nyols accepted that the vast majority of Shift Survey Forms are not discussed in the Consultative Committee. Mr Nyols said that while the drivers have the ability to choose lines of work based on seniority, they do not control what work they want to do and can only choose from the work Busways decides to offer. He agreed that the most senior drivers select their roster on the first day (about 10 drivers) and the roster pick is conducted over a number of days because of the driver numbers (106). This cascading process may take up to 10-14 days.
[17] When Mr Nyols was asked if his position was that every Shift Survey Form (numbering over 100 in recent times) should be dealt with by the Consultative Committee, he replied that they should be, ‘if it was about an issue contained in the Settlement Agreement, which was about problems about buses running late.’ The proposal was not about having the Consultative Committee process used to ‘bog the company down’. He explained further by agreeing that if the Shift Survey Form dealt with ‘on time’ running issues, it should be dealt with by the Consultative Committee.
[18] Mr Nyols agreed that if the Consultative Committee accepted that there was a problem, there would be a retest of the route. However, in these circumstances, the issue would not even get to the Consultative Committee.
Mr Barry Hupton
[19] Mr Hupton is employed by the respondent at the Penrith Depot and is the Union’s site Delegate. Prior to Busways taking over the contract for the region, he was employed by ComfortDelGro. He was involved in the discussions which resulted in the Settlement Agreement in May 2014 and participated in the Consultative Committee. In his written statement, Mr Hupton said he was familiar with the routes in Contract 1 and the particular issues which arise on those routes which affect timeliness.
[20] Mr Hupton had suggested that the parties do ‘test runs’ on routes which were the subject of Shift Survey Forms provided to the Committee. However, Busways had rejected this suggestion and indicated their preference to rely on the data provided by the Public Transport Information and Priority System (PTIPS), a satellite tracking system which monitors a bus’s ‘on time’ running at commencement, mid points and end of trip.
[21] Mr Hupton raised doubts about the methodology used by Busways to test the new 794 route, which he said had been conducted in the middle of the day with minimal congestion. Another test on the 775 route had been performed by himself and Mr Gibson on a Friday. However, on that day the road was uncharacteristically clear and they encountered an unusually high number of green lights. Mr Gibson had agreed with Mr Hupton’s assessment that this test was not reflective of the normal route and that a further test should be done in the following week. However, it was subsequently decided to monitor the routes and rely on PTIPS data.
[22] Mr Hupton described the run and ‘chokepoints’ of route 775 and claimed that he was consistently 10-15 minutes late on this route. He had submitted Shift Survey Forms in relation to this route on 27 May and 5 August, setting out areas which he thought required more time. He believed that route 775 could be rerouted to use a traffic light which allowed a turn onto Mount Druitt Rd. He did not think there had been sufficient consultation with drivers. He had also filed Shift Survey Forms in relation to other routes on 28 May, 5 June and 1 August 2014.
[23] Mr Hupton explained that there were issues with the bus parking arrangements at Penrith station. While the standby buses had their own parking area, they often parked in the area reserved for Busways Penrith. This area could be congested through the peak periods in the morning. Nevertheless, while Mr Hupton accepted that some of these issues were out of the respondent’s control, more time should be allowed between the station and the Depot.
[24] Mr Hupton complained of frequent abuse from passengers due to the lateness of their buses. When questioned by passengers, he would offer a telephone number to provide feedback. However, they always made a complaint about the driver. Common complaints involved parents who needed to pick up children, attendance at doctors’ appointments, passengers waiting late at night in bad weather and missed connections.
[25] Mr Hupton provided a specific example where he had arrived at a stop in Cranebrook in a bus which did not lower the entry way for easier access. Two women with prams said words to the effect of ‘Where the fuck have you been?’ They had asked how were they to enter the bus. He told them that they would need to break their prams down. After they entered, they continued to ‘mouth off’ about how ‘this fucking driver is always late. I can’t get to my appointment on time, I need to go shopping. Always fucking late.’
[26] Mr Hupton said that if he responded to such abuse in any way, he would likely get more abuse. While he acknowledged that he was entitled to refuse abusive passengers entry to the bus, the processes instituted by Busways were ineffective. He admitted that because of the abuse, he and other drivers had engaged in speeding, ‘pushing the boundaries’ at amber lights, moving before passengers had taken a seat, not stopping for passengers who waved, but were not quite at the bus stop, closing doors too quickly and high speed cornering. It also often meant that he would not have sufficient time in between runs for toilet breaks. He was aware of a driver who was behind the wheel for 4.5 hours before getting a break. He said that a bus driver could not simply stop the bus while he/she went to the toilet.
[27] Mr Hupton explained that there were quarterly meetings of the Consultative Committee. The Committee consists of one Delegate, two other driver representatives, the direct manager and two other representatives of Busways Management. An agenda is generated from a notice board in the Depot to which all drivers can contribute. Typically, these meetings would be 2-3 hours in duration. He described these meetings as ‘very effective’ in that Busways would review and address any issues raised. He believed that this type of body would be ideal to deal with the issues around timetabling and ‘on time’ running.
[28] Mr Hupton was uncertain as to whether the runs from May 2014 were maintained in the timetable in November 2014. It would take time to determine whether similar issues would arise. The two days given to the employee representatives to examine the timetable had been insufficient, although he and the Union had endeavoured to provide feedback in a spreadsheet in which they had noted that there was insufficient time between Garswood Rd and Penrith station. He believed the Union should have been provided with a ‘block roster’ to properly anticipate issues which may arise with the new shifts.
[29] In cross examination, Mr Hupton agreed that the number of Shift Survey Forms discussed in the Consultative Committee under the Settlement Agreement was possibly up to 20. In the meeting, Mr Gibson would give Busways’ response; either management did not agree there was a problem or a solution requiring changes was discussed. Only in two cases had Mr Gibson agreed to retest the run (Routes 775 and 794).
[30] Nevertheless, Mr Hupton suggested a number of other trips be retested, but only one was agreed to by the Consultative Committee. Mr Hupton agreed that on the main run, (794), the subject of the Settlement Agreement, the retest had been conducted in the morning, midday and afternoon. However, as a retest, no passengers were picked up and there was minimal traffic. Mr Hupton now conceded that the bus did stop to simulate passenger pick-ups.
[31] In respect to Route 775, which Mr Hupton drives Thursday and Friday, he conceded that of the 61 times he had driven the route, there were 59 occasions where the bus arrived within 6 minutes of the scheduled buffer time (not 10-15 minutes as in his statement). He then claimed he had to speed to meet the 6 minute buffer (contradicting his statement evidence). Despite PTIPS evidence which demonstrated that Route 775 arrived on time or within the buffer 96.72% of the time, Mr Hupton insisted that he was ‘never on time’.
[32] Mr Hupton accepted that Busways directs all its drivers not to speed and if they do, they may be subject to disciplinary action. He accepted that if a bus is running late, Busways directs the driver to call in to the Operations Control Centre (OCC).
[33] Mr Hupton acknowledged that he had never been the subject of physical abuse from a passenger, but believed he was the exception. He claimed that other drivers were too frightened to report such incidents. He further claimed that the drivers commonly experience complaints, such as people being left out late at night. However, Mr Hupton does not work at night. Mr Hupton agreed that Busways tells drivers to take toilet breaks if necessary.
[34] After equivocating for some time, Mr Hupton agreed that prior to the Settlement Agreement in May, the process was for drivers to provide the Shift Survey Forms to Busways and for Busways management to respond. Mr Hupton conceded that for the proposed November timetable (the ‘third timetable’), the drivers received a copy of the shifts with two days to consider them. The shifts show all the stops and times for each route. Mr Hupton accepted that the drivers raised issues with the shifts and identified problems in comparison to the existing shifts. He conceded he had access to the existing shifts and the new shifts.
[35] In re-examination, Mr Hupton said that the Consultative Committee did not vote on problems - Mr Gibson just said no.
[36] Mr Hupton said that the drivers ‘pushed the boundaries’ in order to meet the timetable. Mr Hupton also said that there was no work in the new shifts that was not in the old shifts.
Mr Rippon Singh
[37] Mr Singh has been employed by the respondent at the Penrith Depot since October 2013, having previously worked for ComfortDelGro. He is the co-Delegate for the Union at the workplace.
[38] In his written statement, Mr Singh claimed that there had been significant problems in relation to the ‘on time’ running of buses since the respondent had taken over the contract and immediately changed the timetables in October 2013. While most trips start on time, they can become late as the bus’ trip goes on. Sometimes a standby bus will be utilised, meaning that passengers may need to change buses through part of their trip.
[39] Mr Singh described specific occurences of abuse from passengers, while driving the Route 780 bus, which he claimed were frequent. On one occasion, a female passenger accused Mr Singh of arriving five minutes early. When he explained to her that he was actually running ten minutes late, she accused him of lying. She continued to ‘carry on’ after entering the bus, using words like ‘fuck’ and ‘cunt’. She had initially refused to sit down, but complied with Mr Singh’s direction to sit, so the bus could move. However, she stated that she was going to report him to the ‘Ministry’ for being rude and unhelpful. It was not clear if a complaint had ever been made in relation to this incident.
[40] Mr Singh said that when another female passenger had exited his bus in a rush when it terminated at Mount Druitt, she had tripped over a plastic bag outside the bus. He had walked up to her to ask if he could help. However, she had told him that she had tripped over because she was rushing to get a connecting bus, as the bus he had been driving was late. She thought she had pulled a muscle in her leg. Mr Singh then called the Pymble office to ask if he should stay with the passenger or start the next trip. He was directed to ensure he started his next trip at the correct time.
[41] Mr Singh complained that the reduction in layover time meant that drivers had less time to stretch their legs and go to the toilet. On one occasion, he had needed to use the toilet while driving and had reported this to the controllers in Pymble. He acknowledged he had been told to start the next trip late, if necessary, so he could use the toilet. However, he believed this problem had not arisen before the recent timetable changes.
[42] Mr Singh annexed to his statement Shift Survey Forms he had completed on 19 March and 10 April 2014. Busways had responded to the first of these, in part, as follows on 31 March 2014:
‘Regarding the running time issue on the 775, 776, 4567 & 797 services currently on 140Z shift, we were already aware of this issue and a solution has been implemented effective Monday 24 March 2014. We will continually monitor this fix and make further adjustments, if required.’
[43] Busways answered the second Shift Survey, in part, as follows on 2 May 2014:
‘Regarding the running time issue on the 4567, 774, 776, 791, 797 services currently on 140Z shift, your concerns have been thoroughly investigated and found on average the trip operates on or close to time. Busways will continue to monitor this trip and, if needed in the future, make any adjustments necessary.
Regarding the running time issue on the 774 & 775 services currently on 140Z shift, your concerns have been confirmed and shift adjustments to rectify this issue will commence in May 2014.’
Both the correspondence of 31 March and that of 2 May 2014 ended with a direction to never speed, and to continue to provide feedback.
[44] In cross examination, Mr Singh explained that there was a layover time (turnaround time) between the end of one trip and the start of the next, so that drivers can stretch their legs, recover lost property, have a drink or use the restroom. When Mr Singh worked for ComfortDelGro prior to Busways, the layover time was 5-15 minutes, depending on the trip, but could be more than 30 minutes.
[45] Mr Singh agreed that in the previous 12 months, he had submitted 11 Driver Occurrence Reports, none of which related to passenger abuse. He explained that he did not want to take any stress home and he was fearful about the abuse, which he believed was frequent and serious. Mr Singh acknowledged that he had never been required to work 5 hours, 15 minutes, without a 15 minute rest break.
For the respondent
Mr Steven Hawkins
[46] Mr Hawkins is Busways’ Group Operations Support Manager. He provides operational support to 16 bus depots across the State. He was previously Busways Contract 1 Regional Manager.
[47] In written evidence, Mr Hawkins set out the structure of the Busways Group, being a group of related bodies corporate. The Busways Group operates a number of route and school bus services for Transport NSW across the State. This dispute involves the Busways Group’s operations in Contract 1, Sydney Metropolitan Region, in Western Sydney, which services approximately 600,000 public transport users.
[48] Mr Hawkins explained that prior to October 2013, bus services in Western Sydney had been operated by a consortium of companies, which included those of the Busways Group. Busways ran its operation out of the Blacktown Depot. Busways had subsequently been successful in its tender for Contract 1 and had built new depots at Penrith and Mulgrave and commenced operating out of these three bus depots from 6 October 2013.
[49] Mr Hawkins acknowledged ‘teething problems’ when the new timetable was introduced on 6 October 2013. However, this was not unexpected as Busways was operating out of new bus depots and did not have access to accurate PTIPS data, which Westbus (also a member of the pre-October 2013 consortium) had provided to Transport NSW. In any event, Busways had dealt with these early issues by deploying empty buses to cover when drivers are running late or have other issues (‘head off’ buses’), through changing particular shifts and through other means. This also involved implementing shift changes and a new roster pick across all three depots in January/February 2014. The main focus at this time was the collation of reliable PTIPS data to inform a timetable issued on 18 May 2014 (the ‘second timetable’).
[50] Mr Hawkins described the dispute which had arisen when the second timetable was introduced and its resolution by way of the Settlement Agreement (see para [4]). Busways had agreed to establish a Consultative Committee, for a three month period to deal with issues in relation to the introduction of the second timetable. He and Mr Gibson had been involved in the Consultative Committee, which met on a weekly basis between 19 May and 23 July 2014 and then monthly, until the end of the three month period.
[51] Mr Hawkins said that he had not been involved in these meetings after 4 June 2014, as he had been promoted to the role of Group Operations Support Manager in the middle of this process. Nevertheless, he still received the minutes of the meetings. At these meetings, a number of issues as to the timetable, shift arrangements and other on-road issues were discussed, but issues that had been raised previously were also followed up. The meeting minutes reflected that only 16 discrete issues were addressed using this process. Shift Survey Forms had only been mentioned once by Mr Hupton, who had requested and was given copies. Completed Shift Survey Forms were not dealt with in these meetings.
[52] Mr Hawkins confirmed Busways’ intention to implement a new timetable from 16 November 2014 (the ‘third timetable’). He explained that the Busways Group operates out of its individual depots and its head office in Pymble, which contained the Scheduling Department and the OCC. The OCC tracks and monitors the Busways Group’s fleet using PTIPS and two way radio communication.
[53] Mr Hawkins explained that PTIPS was a computer based-system installed on buses which communicates wirelessly with central servers that worked by combining schedule/route information with live location data transmitted from the buses to a central point (i.e. the OCC). PTIPS was used by bus providers and Transport NSW.
[54] Mr Hawkins stated that Busways operates 64,000 services per month in Contract 1, of which approximately 15,000 were run out of the Penrith depot. Busways is expected to maintain a KPI of 95% running ‘on time’. This means that a bus departs within a ‘window’ of 5 minutes, 59 seconds after its scheduled time. Based on a report prepared for him by Mr Clinton using PTIPS data, he understood that Busways had improved its ‘on time’ running across Contract 1 from 95.6% in April 2014 to 97.02% after the introduction of the second timetable. Further, ‘on time’ running had improved from 95.6% in April 2014, to 96.7% in June, 97.2% in July, dropping to 96.45% in August and improving to 97.48% in September 2014. Out of 91,000 trips performed by the Penrith Depot in 6 months, Busways had received 32 complaints from passengers about late running of services.
[55] Mr Hawkins claimed that Busways had a comprehensive safety management program, which included;
(a) induction programs for all new bus drivers which cover traffic regulations and safe driving techniques;
(b) a driver training program for new drivers (including a buddy driver system);
(c) vehicle monitoring devices and CCTV cameras fitted in all buses;
(d) real-time GPS monitoring of all buses through PTIPS;
(e) two way radios fitted in all buses;
(f) accident and incident management and reporting mechanisms (including notification requirements to Roads & Maritime Services);
(g) vehicle maintenance plans;
(h) drug and alcohol testing programs;
(i) safety policies and procedures;
(j) work health and safety committees; and
(k) training and development for all drivers.
[56] Mr Hawkins noted that the National Heavy Vehicle Law and Regulations requires 15 minutes of continuous rest within 5 ½ hours of driving. He claimed that the average length of a morning shift is 3 hours, 24 minutes and average length of an afternoon shift is 3 hours, 38 minutes. It was also the case that drivers have some extra downtime between trips. In any event, drivers are on notice that if they needed a bathroom break, they should contact OCC and take a bathroom break between shifts. The following notice had been placed on the notice board at the Penrith Depot:
‘Notice To All Drivers
All drivers are asked to remember the following:
1) Do not exceed the speed limit whilst driving your bus. If you exceed the speed limit to keep on time the problems on your shift may not get fixed. If you get a speeding ticket you will pay the fine and lose points from your license.
2) If you need to go to the toilet whilst you are on shift, then make sure you go. It is unhealthy not to go.
3) Make sure you always drive safely and to the road rules. If this impacts on your shift report it. Every effort is made to assist drivers where needed.’
[57] Mr Hawkins acknowledged that a bus not running ‘on time’ could be attributable to a number of reasons, many of them not in the control of the driver, including heavy traffic, road work, accidents, poor weather or other irregular incidents. He emphasised that drivers were directed to observe the road rules at all times, and not speed to make up time. Instead, they were to follow reporting requirements so that remedial measures, including ‘head off’ buses could be taken. Between 19 May and 30 October 2014, ‘head off’ buses were used on 1,583 occasions from the Penrith Depot for late running buses.
[58] Mr Hawkins was not aware of any assaults that had occurred on a Busways bus due to late running. He believed that the implementation of the third timetable would actually improve safety standards and ‘on time’ running performance.
[59] Mr Hawkins said that the Scheduling Department engaged of 35 people based at the Busways Group headquarters in Pymble who were responsible for preparing new timetables, shifts and rosters for the Busways Group’s services across New South Wales. Given the level of consultation and coordination required, a new timetable could take up to six months of planning to put together. New timetables were then required to be approved by Transport NSW. In preparation for the implementation of the third timetable, Busways had:
(a) collected and reviewed 120 Shift Survey Forms (in which over 100 identified issues resulted in changes to shifts);
(b) held the Consultative Committee meetings in accordance with the Settlement Agreement;
(c) provided a copy of the draft shifts on 2 and 3 October 2014 to the Consultative Committee. The Committee recommended changes, which were taken into consideration by Busways;
(d) required a driver from the Penrith Depot to spend time with the Scheduling Department to review instructions and timeframes; and
(e) published a master roster at the Depot for employees to review in mid-October 2014. A ‘roster pick’ process was performed the day after the publication of the master roster.
[60] Mr Hawkins said that Shift Survey Forms were the primary means for drivers to raise issues relating to shifts, timetables and running times. They had been introduced in their current form at the Penrith Depot in March 2014 and consolidated an order form process of shift surveys and driver occurrence report process which had been in place since the 1990s. Once a Shift Survey Form is filed, it is referred to an appropriate person to be investigated (usually in OCC or the Scheduling Department), who should provide a response within two weeks or slightly longer. 127 forms had been submitted at the Penrith Depot since May 2014 and a table of ‘shift survey feedback actions’ was published on the noticeboard at the Depot.
[61] Mr Hawkins did not believe that the Consultative Commission was an effective process to deal with late-running issues as this would take too much time and take drivers off the road. The meeting minutes disclosed that most issues could not be resolved at the meetings as each issue would usually be referred onwards to the Scheduling Department. The use of Shift Survey Forms was a far more effective tool in that problems were raised by drivers and sent directly to the Scheduling Department. It had never been the practice to retest all routes where a Shift Survey Report demonstrated ‘on time’ running problems. This would be an unduly onerous process that would give varying results. PTIPS provided a greater body of data than would be available under the process suggested by the Union.
[62] Mr Hawkins referred to the evidence of Mr Singh and noted that none of the Driver Occurrence Reports submitted by him referred to verbal abuse from passengers. The Shift Survey Reports filed by Mr Singh on 19 March and 10 April related to issues that existed prior to the implementation of the second timetable.
[63] Mr Hawkins referred to the written evidence of Mr Nyols and explained that there was a longstanding practice, within most of the depots run by Busways that drivers are allowed to ‘pick’ their roster lines when a new roster is introduced and after the timetable, shifts and master roster are produced. This ‘roster pick’ usually takes place about four weeks prior to implementation. Generally, the roster is put on a noticeboard and each day, ten drivers pick their rosters, according to seniority. Usually, the roster would be put up approximately 1.5 days prior to the first group of ten drivers making their picks. However, in October 2014, Mr Hawkins had been told by Mr Gibson that Mr Nyols and Mr Hupton had been telling drivers not to pick rosters due to the dispute. Mr Hawkins had then decided that drivers should be told to pick lines within 24 hours or lines would be picked for them. He had put a notice to that effect up at the Penrith Depot; See: para [13]).
[64] In oral evidence, Mr Hawkins was shown a document said to be a five page sample of PTIPS data, which set out the route number, shift, date, scheduled arrival and departure times. On some occasions the GPS data may have failed, meaning there were gaps of tracking data on some trips. He could not say what percentage of trips were not tracked.
[65] In cross examination, Mr Hawkins agreed that Busways had taken part in a tendering process for this contract as a result of the New South Wales Government changing its tendering methods. However, he had not been personally involved in the tender. He could not say what price was set in the tendering process and asserted that tenders were not always based on price; they could also be based on quality of services and productivity. Mr Hawkins said that Busways had changed the timetables for Contract 1 when it had taken over from ComfortDelGro. He acknowledged that the KPIs only set out when the trip started, not if it ran late.
[66] Mr Hawkins clarified that ‘head off’ buses were not used to address a KPI issue, but to ensure good customer service. He accepted that customers could get angry if buses were late. He did not think that six minutes (as set out in the KPI) was ‘significantly late’. The timetable attempted to take into account connecting services. He was not aware of any action taken in relation to the Customer Satisfaction report which set out that 19% of customers were unhappy with the late running bus services in Contract 1.
[67] Mr Hawkins said that he had recently driven a night ride bus as a favour to a company he used to work for, but acknowledged that he did not drive buses very often. He had never been a bus driver by profession. He had encountered passenger abuse as a driver, which usually involved intoxication. It was acknowledged that customers could be rude or angry. However, Busways provided drivers with strategies to deal with these issues in the Driver Handbook.
[68] Mr Hawkins explained that drivers would see draft shifts in the consultation process for the creation of the third timetable. He acknowledged that Mr Hupton had expressed dissatisfaction with the consultation process in relation to the second timetable and that by the time drivers had been given an opportunity to provide feedback, the timetable had been locked in with Transport NSW. The drivers had already provided some feedback prior to implementation and PTIPS was relied on to create the timetable. However, drivers did not believe that this had been done.
[69] Mr Hawkins said that the use of Shift Survey Forms had begun in the early 1990s, but the current format had only been used since March 2014. The change had arisen because Busways had found it was not getting feedback from its drivers. He could not say how many of the older style Shift Survey Forms had been received between October 2013 and March 2014. Depending on the issue raised, the majority of these issues would have been sent directly to the Scheduling Department.
[70] Mr Hawkins agreed that Busways had received a high number of Shift Survey Forms after May 2014. He had not been aware that drivers believed that they would be considered by the Consultative Committee. Nor was he aware that Mr Nyols had told Mr Collins that these forms were submitted pursuant to the Settlement Agreement. He agreed that Mr Hupton had raised some of these issues in the Consultative Committee.
[71] Mr Hawkins denied that increased running time had been added to some runs due to work health and safety issues, although it should have alleviated any concerns held by the drivers and the Union. This was actually due to time loading and to improve customer service. He agreed that passenger abuse was a safety issue which could have detrimental effects on a driver’s mental health.
[72] Mr Hawkins acknowledged that the third timetable was intended to address 124 issues raised by drivers. However the third timetable was ‘on hold’, as Transport NSW had not approved it. He was not sure how these issues would now be fixed, but plans to address these issues would be the responsibility of the Scheduling Department. Busways may try to negotiate with Transport NSW. The Consultative Committee might become involved, but it would not be appropriate for the Consultative Committee to address such issues directly. The only thing that could fix the issues was a change in the timetable.
[73] Mr Hawkins was shown the Orders sought by the Union (see para [8]. He now understood that the Union was not seeking that all Shift Survey Forms be put through the Consultative Committee - only those lodged between May and November 2014. In any event, he maintained that under the Settlement Agreement, the Shift Survey Forms were part of a separate process.
[74] Mr Hawkins conceded that it was generally easier to get all passengers off a bus if the driver needed to use the bathroom mid-run, but the driver may just need to secure the vehicle, make sure it’s turned off and the maxi-brake turned on. This was not a desirable scenario, and generally drivers would take breaks between runs. He did not accept that under the new timetable there was less of a break between runs. However, if buses were running late, that could erode break times.
[75] Mr Hawkins agreed that drivers had been directed not to hand out a card to passengers which said words to the effect of ‘Don’t blame the Bus Driver’. He acknowledged that Busways’ own handbook suggested that most passengers who experience lateness or poor service would not complain, they would simply just not use the service again. Only about 4% of passengers actually complain.
[76] In re-examination, Mr Hawkins detailed other KPIs that Transport NSW required Busways to meet, including midpoint and endpoint KPIs, a maximum of 22 complaints for 100,000 boardings and a requirement that complaints be answered within two days. He described the 19% level of dissatisfaction expressed in Transport NSW’s survey data as ‘nowhere near what we conceive is actually happening to be blunt.’ Mr Hawkins explained that while timetables could not be changed once approved by Transport NSW, the shift arrangements around them could be.
[77] Mr Hawkins said that while Mr Hupton had raised issues detailed in Shift Survey Forms in Consultative Committee meetings, he had not provided individual Shift Survey Forms for the Committee’s inspection. Mr Hawkins was unaware of any workers’ compensation or other injury claims which had been filed due to ‘on time’ running issues.
Mr Daniel Clinton
[78] Mr Clinton is the Region 6 Operations Manager for Busways. Until 18 months ago, he was the OCC Manager and was responsible for, amongst other things, ‘on time’ running, analysis of PTIPS data and organising ‘head-off’ buses.
[79] In oral evidence, Mr Clinton was shown a five page document setting out raw PTIPS data. He explained that the sample he had prepared from 18 May 2014 to the current date was approximately 45,000 pages long. The identifying numbers for bus stops were not included in the sample before the Commission. He explained that data could be missing due to a malfunction in the on-board GPS unit, a drop in signal or a corruption of the data. Missing data occurred in about 5% of all trips.
[80] In cross examination, Mr Clinton explained that data demonstrating that a bus had stopped at two stops within one minute was not unusual, as some stops are as little as 100m apart. He acknowledged that the capacity for buses to fall behind, or make up time, was variable.
Mr Robert Gibson
[81] Mr Gibson has been employed as the Contract 1 Operations Manager for Busways since June 2014. Prior to June 2014, he was the Acting Operations Manager at the Mulgrave Depot. He reports to Mr Hawkins, Mr Collins and Mr Mark Rizzardo (Group Operations Support Manager).
[82] In written evidence, Mr Gibson said that he had been working closely with Mr Hawkins at the time the Settlement Agreement was entered into. The Committee consisted of himself, Mr Hawkins, Mr Clinton, Ms Georgette Golding (Penrith Deport Operations Manager), Mr Hupton and two Drivers, Ms Michelle North and Mr Glen Ryan. He had attended all Consultative Committee meetings after 11 June 2014, without Mr Hawkins. In the event that the driver representatives were not available, Ms Elizabeth Tregaskes or Mr David Austin would attend. He understood that the Committee was to meet over three months; weekly for the first six weeks and thereafter as agreed. At the meeting of 25 June 2014, he had said words to the effect of:
‘This is the last of the six required weekly meetings as per the Fair Work Agreement. From now on, we propose to hold these meetings on a monthly basis.’
Mr Hupton had been unhappy with this arrangement, but the majority of the Committee members had not raised any objections.
[83] Mr Gibson said that the employees had raised 16 separate issues concerning timetable and shift arrangements. These issues were discussed at the Consultative Committee and referred onwards, as appropriate. Typically, the issues would then be referred back to the Committee, where an update was reported and remedial action taken, if necessary. He also recalled 15 Shift Survey Forms being raised and discussed, relating to issues on shifts, running times and other issues. Mr Hupton had requested copies of Shift Survey Forms on 28 May 2014 and had raised issues arising from them in later meetings. Mr Gibson had reported to Mr Collins on the content of each meeting and minutes were distributed amongst the management team.
[84] Mr Gibson understood that the Consultative Committee process was ‘due to expire on or around 20 August 2014’ as this was three months after the implementation of the timetable. At the Consultative Committee meeting of 6 August 2014, he had said words to the effect of:
‘The Fair Work Agreement is due to expire on 20 August, so it’s Busways’ intention to finalise the Consultative Committee Meetings. We’re going to have a meeting with the TWU so that we can consult with them about the Consultative Committee no longer continuing.
If there are any major issues go and see Georgette [Golding] and she can arrange an extraordinary meeting if required. We’ve also got the standard Shift Survey Forms in place so if drivers have any issues, they can use them.’
Mr Hupton was again unhappy with this proposal, but the majority did not raise any objection. On 20 October 2014, a letter was sent from Mr Hawkins to Mr Nyols as to this proposal.
[85] Mr Gibson had met with Mr Nyols, Mr Hupton and Ms Golding on or around 9 August 2014. Mr Gibson said that it was Busways’ intention to go back to the quarterly Consultative Committee meetings as set out in the Agreement. Mr Nyols responded that Busways had not complied with the Settlement Agreement as there had not been timed re-tests conducted on routes where issues had been raised. Nor had Busways dealt with all of the Shift Survey Forms. Mr Gibson had explained that the Shift Survey Forms were not part of the Settlement Agreement. Mr Nyols had expressed his dissatisfaction with ‘Form letters’ being issued by Busways and had brought up individual issues from Shift Survey Forms. Mr Gibson, referring to a spreadsheet prepared with this information, informed Mr Nyols of the action that had been taken in relation to each of these issues. He did not comply with a request of Mr Nyols to provide a copy of this spreadsheet, as it had the individual names of drivers on it, although an extract was placed on the noticeboard at the Penrith Depot.
[86] In accordance with the Settlement Agreement, Mr Gibson stated that he had arranged for three separate timed tests of Route 794 on or around 9 and 15 May 2015 and a ‘head off’ bus for Route 794 for the first three weeks of May. The ‘head off’ bus was not deployed during this period. Mr Hupton had signed documents confirming that the bus ran ‘on time’ on all three occasions. Out of 4,921 trips on Route 794, 4,793 had commenced ‘on time’ and 4,796 had finished on time since the commencement of the second timetable. The average running time for the service was 28 minutes, 2 seconds. Mr Gibson referred to a request from Mr Hupton to have the running time test for Route 775 video-taped. This was refused as there were schoolchildren on the bus.
[87] Mr Gibson explained his view that the Shift Survey Forms were not part of the Consultative Committee process as the distribution and filing of Shift Survey Forms had already been part of Busways’ practice. No member of the Consultative Committee had requested that the Shift Survey Forms be dealt with by the Consultative Committee process, although Mr Hupton would refer to specific issues raised in approximately 15 of the Forms. The Consultative Committee would discuss each of these issues and Mr Gibson would refer to his spreadsheet to advise the Committee what action had been taken. No member of the Consultative Committee had asked that a retest be taken in relation to any of these 15 Shift Survey Forms and the issues had already been rectified.
[88] Given that Busways had a dedicated OCC and Scheduling Department and had access to PTIPS data and boarding and load numbers obtained from the ticketing system, Mr Gibson believed that the Consultative Committee was not an appropriate mechanism to deal with ‘on time’ running issues. The Shift Survey Forms were effective in gathering driver feedback and where the cause of a problem was unclear, Busways could have ‘ride checkers’ sit on individual buses. He noted that Consultative Committee meetings meant that drivers and management were taken away from their regular activities and duties, that issues were generally dealt with by the OCC or Scheduling Department, prior to coming to the Consultative Committee and that the Managers who attended these meetings were generally not equipped to directly answer questions as to scheduling. This was illustrated by the handful of issues that were able to be dealt with at the Consultative Committee itself. Shift Survey Forms would be referred directly to the person who had responsibility for the issue (e.g. the Scheduling Department). Mr Gibson said that in the time that it would take to hold one Consultative Committee meeting, PTIPS data for start points, mid points and end points for all Contract 1 trips could be assembled.
[89] Mr Gibson claimed that of the issues raised in 127 Shift Survey Forms submitted since 18 May 2014, 22 issues had already been rectified, 90 further issues were due to be rectified with the implementation of the third timetable, two issues were being investigated by the OCC or Scheduling Department, four issues had been ‘rejected’ and nine issues were still being processed and had not yet been investigated. He clarified that where an issue was examined by the OCC or the Scheduling Department, it could take time to gather appropriate tracking data.
[90] In response to Mr Hupton’s evidence, Mr Gibson said that the three timed re-tests of Route 794 were conducted at a range of times. He denied that Mr Hupton had suggested a re-test the ‘following Thursday’. In any event, different traffic conditions would be present in every re-test and PTIPS was a superior means of gathering ‘on time’ running data over time.
[91] Mr Gibson explained that a second test of route 775 was due to take place on 20 June 2014, but RMS and the New South Wales Police had conducted a surprise safety and compliance audit, meaning that Mr Hupton was taken off the road. However, he had discussed the PTIPS data relevant to this route, which had run 90 seconds late. He had told Mr Hupton that he did not intend to do a further retest. PTIPS data, organised into a spreadsheet by Mr Clinton, indicated that out of 61 trips operated by Mr Hupton, 59 commenced ‘on time’ and 60 finished ‘on time’. Letters had been sent to Mr Hupton in relation to Shift Survey Forms on 1 September and 3 November 2014. Under the third timetable, Route 775 will be allocated three minutes extra running time and three minutes additional recovery time.
[92] Mr Gibson held a meeting with Mr Hupton, himself, Ms Golding and Mr Nyols on 29 October 2014 in response to Mr Hupton being quoted in the media as to his claims of being assaulted. Mr Hupton had confirmed in this meeting that he had not been assaulted since Busways had taken over Contract 1. Mr Hupton had never submitted a Shift Survey Form relating to passenger abuse. Nor could he find any Driver Occurrence Report relating to verbal abuse due to late running buses.
[93] Mr Gibson annexed PTIPS data, collated by Mr Clinton, which disclosed that on 9 and 10 October 2014, the Route 786 services operated by Mr Hupton ran ‘on time’. PTIPS data also indicated that average scheduled and average actual speeds between May and October 2014 had not discernibly increased.
[94] Mr Gibson explained that it was not practicable to produce block rosters prior to finalisation and the master shifts being prepared.
[95] In cross examination, Mr Gibson confirmed that Busways had an obligation to consult with the Union as to the cessation of weekly Consultation Committee meetings. This had been done by speaking to Mr Hupton in a Consultative Committee meeting and with both Mr Nyols and Mr Hupton at a separate meeting. If an issue was notified to the Penrith Operations Manager, he/she could convene an extraordinary meeting. This was normal Busways practice. To his knowledge, Ms Golding had not received any such request. The Agreement set out a minimum of four quarterly Consultative Committee meetings per year.
[96] Mr Gibson did not deny that some drivers were incentivised to ‘eat into’ their hour long break by way of overtime rates, as long as they had a half hour break. He emphasised that there was no pressure on drivers not to take breaks.
[97] Mr Gibson conceded that he was not sure how the 90 issues raised in Shift Survey Forms that were to be addressed by the postponed third timetable, would be dealt with in the meantime. It could be that the current shifts were broken up to allow more recovery time. He acknowledged that shift adjustments could often not be made until the implementation of a new timetable. Drivers would be consulted by way of the availability of draft shifts.
[98] Mr Gibson said that the Scheduling Department had made the decision to add three minutes of recovery time and three minutes of run time to the Route 775 runs and that this would have been to address a problem apparent to them. He reiterated that Mr Hupton’s monitored runs had run more or less ‘on time’. He understood that drivers were given seven minutes to get to Penrith station and then another seven minutes back. The data showed that it took, on average, five minutes, 31 seconds.
[99] Mr Gibson denied that he had agreed with Mr Hupton’s assessment that the time check of Route 794 was conducted on a ‘quiet run’. Although he would not have known whether it was quiet or not, he had agreed to do another check. In any event, a bus running late is not conclusive of the existence of a timetabling issue. Traffic, weather and other issues could be relevant factors. A number of runs being late on one day would be indicative of a different problem to one run being late several times over several days. In any event, if the problem could not be identified using PTIPS data in the OCC or Scheduling Department, someone would sit on the bus with the driver.
[100] Mr Gibson was asked about passenger abuse. He said that Busways did receive Driver Occurrence Reports about passenger abuse, but it was not a frequent problem. Drivers were encouraged to report any abuse. He would not have been surprised if a driver had told him that a few passengers had become angry with them over the course of a week. Every complaint from the travelling public is thoroughly investigated. This may involve looking at CCTV footage. It was possible that if a driver was doing something wrong at the time of the abuse, he/she may be subject to disciplinary action.
[101] Mr Gibson believed that because the Consultative Committee at Penrith had no faith in the PTIPS data, it had not been shown to the Committee in any detail. He acknowledged the possibility that showing the Consultative Committee the PTIPS data could alleviate the Union’s concerns. However, when he had shown Mr Hupton PTIPS data on prior occasions, Mr Hupton had just responded by saying that Mr Gibson should ride the bus.
[102] Mr Gibson set out the process by which PTIPS was used to inform timetables and shifts. PTIPS data was collected and analysed by the Scheduling Department, then the timetables are set. Once these have been approved by Transport NSW, the draft shifts are brought to the Consultative Committee. He was unclear as to the extent of the capacity to change timetables at this point.
[103] Mr Gibson was asked about the high number of Shift Survey Forms and replied that Busways had actively sought feedback from its drivers. He was aware that Mr Nyols had told drivers that they should submit Shift Survey Forms to Busways. He was unaware of whether Mr Nyols had told them that they would be dealt with by the Consultative Committee.
[104] In re-examination, Mr Gibson explained that extraordinary Consultative Committee meetings are held very rarely and would only be held where the issue was of some importance.
[105] Mr Gibson clarified that after a timetable was approved, shifts could be modified so that there was enough recovery time to ensure that the bus would not run late. Other measures could be taken by the Scheduling Department. Shift Survey Forms were provided to the Scheduling Department and these were the appropriate means to determine whether a route was running late.
[106] Mr Gibson said that Route 775 buses would leave every half an hour. Mr Hupton would do only one Route 775 shift on Thursdays and Friday afternoons.
[107] Mr Gibson identified a number of reasons why passenger abuse may occur, including disagreements between passengers, intoxication and passengers talking loudly on their mobile phone.
[108] Mr Gibson said PTIPS data was owned by Transport NSW. Busways would not normally hand that data out. However, the Union had subpoenaed the data for this case.
SUBMISSIONS
For the Union
[109] In written submissions, Mr Warnes set out the history of the takeover of the depot by Busways, the dispute leading up to the signing of the Settlement Agreement in May 2014 and the subsequent filing of the amended application by the Union.
[110] Mr Warnes referred to cl 31(a) of the Agreement. He submitted that an order for compliance with the Settlement Agreement by the respondent was within the jurisdiction of the Commission, as the Settlement Agreement had become part of the employment relationship when it was signed by both parties on 8 May 2014.
[111] Mr Warnes drew attention to clauses 4 and 5 of the Settlement Agreement. The clauses set out that where an issue which had been raised was agreed by the Consultative Committee to be a problem, further steps are to be taken to rectify the problem. These steps had not been complied with by Busways. No action had been taken in relation to issues raised in the Shift Survey Forms. The Commission should order that the respondent comply with the requirements of the Settlement Agreement for issues that had been raised between 18 May and 18 August 2014.
[112] Mr Warnes denied that the imposition of a requirement on the respondent to convene a Consultative Committee meeting to address significant issues that arose in relation to runs, shifts or roster changes, was incompatible with cl 30 of the Agreement, which set out quarterly meetings of the Committee. It was within the Committee’s power to set dates and times for the meeting of the Consultative Committee. Mr Warnes suggested the following formulation for a ‘significant issue’ requiring the convening of a Consultative Committee:
‘A significant issue means an issue that has been the subject of 2 or more complaints expressed through the existing ‘Shift Survey Form’ system.’
[113] Mr Warnes claimed that the evidence of Mr Nyols demonstrated that there was a high level of dissatisfaction with the running time of buses in the area serviced by the respondent. This had led to increased passenger abuse. Drivers engaged in compensatory behaviour as a result, including conduct which could result in increased risks to safety. The abuse of drivers by passengers was in itself a safety issue, which Busways was required to address. Additionally, fatigue was a serious issue where it was necessary for a driver to perform his/her duties over long, unbroken periods. Unlike some other workers, drivers could not simply stop to rest. The removal of lay-over and turn-around periods in order to address customer dissatisfaction, was not an acceptable solution.
[114] Mr Warnes developed his submissions by putting that it was in the public interest to ensure that drivers drove safely at all times. Accordingly, the respondent was required to ensure that there were no pressures on drivers to do otherwise. Further, it was in the public interest to ensure that there is a minimum of industrial disputes and that buses run ‘on time’.
[115] In oral submissions, Mr Warnes said that there was really only one step in the consultative process in which drivers were able to have a say in Busways’ decision to change its timetables, being the two day period in which draft shifts were given to the Consultative Committee. This was in the context where the timetable itself could not be changed after approval by Transport NSW. In reality, the drivers should be involved, prior to the draft timetables being submitted for approval by Transport NSW.
[116] Mr Warnes denied that Orders (a)-(c) sought by the Union (see para [8] above) constituted ‘extra claims’ within the meaning of cl 6 of the Agreement. Order (i) did not represent a change in the application of an existing entitlement. It could also be implied where it was required for the administration of an entitlement; See: Electrolux Home Products Pty Ltd - Cooking Plant Dudley Park v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [PR945299] per O’Callaghan SDP and National Union of Workers v Qantas Airways Limited [2010] FWA 4991 (‘NUW v Qantas’) per Raffaelli C.
[117] Mr Warnes submitted that the Commission should give the word ‘claim’ in cl 6 of the Agreement its ordinary meaning, being something which is made by one party against another and which is unilateral in nature. The Settlement Agreement is not a ‘claim’. The Settlement Agreement had arisen as a result of an offer put by Busways to the Union, pursuant to cl 31 of the Agreement, which was broadly drafted to include any matter pertaining to the employment relationship.
[118] Mr Warnes acknowledged some ambiguity between Step 3 of the Settlement Agreement, setting out the Consultative Committee’s role in resolving issues related to the May Timetable and Step 9, which set out that Steps 1-8 would apply for a fixed period of three months. The ‘issues’ referred to in Step 3 were set out in 90 Shift Survey Forms. Busways had agreed that these were issues to be addressed. The Settlement Agreement’s processes would only apply to issues that arose during the fixed period of three months.
[119] Mr Warnes put that Order (b) sought by the Union was not seeking an order that the Settlement Agreement remain in place. It was seeking a finding by the Commission that the Consultative Committee was the appropriate body to review or discuss the changing effects in rosters on drivers. This would operate in conjunction with Order (d) sought by the Union. Mr Warnes put that Busways’ obligation as expressed in Order (c) already existed under the Agreement’s consultation clauses (30 and 32).
[120] Mr Warnes stressed that Order (b) and Order (c) were distinct. Order (b) merely sought a finding that the Consultative Committee is an appropriate body to review the issues that arise due to roster changes. Order (c) was specific and related to ‘significant issues’. The Union was not seeking to have the Consultative Committee meet in relation to every ‘issue’. He suggested that a ‘significant issue’ could be said to arise when several Shift Survey Forms were submitted by different drivers about the same issue on the same run.
[121] Mr Warnes denied that the role contemplated by the Union for the Consultative Committee would be another layer of bureaucracy - it could act in moving matters to the Scheduling Department sooner and would keep drivers ‘in the loop’ of the process. Mr Warnes stressed that the Union was not seeking weekly or even monthly meetings. Ideally it would not meet more than every three months, as contemplated in the Agreement. However, the Agreement did not prevent the Consultative Committee meeting more than once every three months; only that it occur at least every three months. Mr Gibson had acknowledged the ability to convene extraordinary meetings. The use of the words ‘a set date and time’ do not require a particular frequency, just that it be done in a proper and organised fashion as determined by the parties. If the parties could not agree on a time, then the Commission could intervene.
[122] Mr Warnes conceded that Order (d) sought by the Union was broadly drafted. It was only asking that the Commission to make a finding about the evidence and submissions in the matter before it relating to late running services based at the Penrith Depot, passenger abuse and other associated safety issues. It was not to be a finding of general application across the industry.
[123] Mr Warnes explained that after the parties entered into the Settlement Agreement, Mr Nyols had told drivers at the Penrith Depot that the best way to raise issues under the Settlement Agreement was to submit the Shift Survey Forms for the Consultative Committee’s consideration. Mr Gibson had acknowledged that Mr Nyols had told drivers they should submit Shift Survey Forms after the Settlement Agreement had been entered into. Mr Hawkins had conceded that there was a higher volume of Shift Survey Forms after the Settlement Agreement had been reached. The 127 Shift Survey Forms were submitted in relation to issues with the new timetable. They were issues which the Consultative Committee should have discussed and determined in accordance with the Settlement Agreement. This had not occurred as Busways’ view was that the issues were confined to those raised in the meetings of the Consultative Committee. Such a view was nonsensical and would mean the Settlement Agreement was ‘close to worthless’.
[124] Mr Warnes submitted that even if Busways did not believe the Consultative Committee was an effective body to deal with reviewing the issues raised by the changes in rostering of work, it was bound under the Agreement to use the Consultative Committee until the next enterprise agreement was entered into. In any event, the system advocated by Busways ignored the skills and experience of the very people who actually do the work and was tilted towards the setting of timetables by persons in managerial positions whose primary function is to ensure the KPIs of the contract with Transport NSW are met. The Consultative Committee represented a ‘perfect cross section of the business’. Both Mr Hawkins and Mr Gibson had agreed with a proposition that, if clear, unambiguous PTIPS data was put to the Consultative Committee demonstrating that a bus service ran ‘on time’, this could go some way to alleviating the drivers’ concerns.
[125] Mr Warnes acknowledged that Mr Gibson accepted that extraordinary meetings could be convened if ‘major’ problems arose. However, there had been many issues of risk since October 2013 which had not been able to be resolved in the workplace. This case was an attempt to put a system in place in the workplace to enable that resolution of issues, prior to them being escalated to the Commission. Drivers currently did not feel they were part of the process. Cl 32 required that consultation occur where Busways was considering workplace change which would have the effect of altering the hours of work of the employees and cl 31(e) required that they give genuine consideration to any issues raised during the consultative process. The latter should involve the giving of responses to genuine issues raised by employees.
[126] Mr Warnes put that a finding in accordance with Order (d) sought by the Union was open to the Commission. Mr Hawkins and Mr Gibson had both acknowledged that late running could result in passenger abuse. Alleviation of this problem would involve consultation with drivers. He noted that while Mr Gibson had said that he had not picked up a problem with Route 775 as advised by Mr Hupton, the Scheduling Department had added time to the run in the third timetable. It was also noted that 88% of Mr Singh’s shifts on Route 780 ran late and 12% started late. On the respondent’s evidence, there were 90 issues that remained unresolved, without the implementation of the third timetable.
[127] Mr Warnes said it was open to the Commission to draw an inference as to why information on KPIs on start points was emphasised in the respondent’s evidence, but not information which related to mid and end points.
For the respondent
[128] In written submissions, Australian Business Lawyers (ABL) put that Orders (a), (b) and (c) sought by the Union constituted ‘extra claims’ and were therefore prohibited by cl 6 of the Agreement. In addition, Order (d) did not fall within the scope of the dispute settlement procedure at cl 31. Accordingly, the orders were outside the jurisdiction of the Commission. In the event that the Commission found it did have jurisdiction, it should not grant the orders sought, as Busways had appropriate measures to deal with ‘on time’ running issues and the implementation of new timetables and rosters which were superior to those sought in the Union’s proposals. In any event, there were no substantive concerns in relation to ‘on time’ running of buses based at the Penrith Depot and there were no safety issues to ground the making of these orders. To make these orders would be a fetter on managerial prerogative. The application should be dismissed.
[129] ABL noted that s 739(5) of the Act prevents the Commission from arbitrating a dispute under an enterprise agreement in a manner which is inconsistent with a ‘no extra claims’ clause; See: Boral Resources (NSW) Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 8437; “Automotive, Food, Metals Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) Pty Ltd [2013] FWC 1079; and United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17. The definition of what constitutes an ‘extra claim’ was set out in Marmara v Toyota Motor Corporation Australia Limited [2013] FCA 1351 (‘Marmara v Toyota’) and endorsed in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84 (‘Toyota v Marmara’).
[130] ABL set out the ‘no extra claims’ clause at cl 6 of the Agreement, which was said to be analogous to the clause in Australian Municipal, Administrative, Clerical and Services Union v North East Water[2014] FWC 6922 per Wilson C.
[131] ABL submitted that Order (a) imposed a new requirement at the Busways Penrith Depot in relation to Shift Survey Forms. Their use had been intended take a method of gaining feedback from drivers, but if the order sought by the Union was imposed, there would be a further requirement, where a Shift Survey Form identified an issue in running times, to conduct a timed test of the nominated route with a Union representative present. This was an attempt to compel Busways to take specific steps to deal with employee grievances, in addition to those under the Agreement’s dispute resolution procedures and was not one that had ever operated at the Penrith Depot. It would effectively change employee rights within the workplace and be inconsistent with the Agreement’s Dispute Resolution clause.
[132] ABL also said that Order (b) would impose specific consultation obligations on Busways that were beyond those contemplated in cl 32 of the Agreement. Cl 32 only required that discussions with, and the provision of information to the relevant employees and the Union, not the Consultative Committee. This would give employees increased rights in relation to consultation and would be inconsistent with the Agreement’s Consultation clause.
[133] ABL examined cl 30 of the Agreement, which required the Consultative Committee to meet ‘at least quarterly’ and that meetings be held at ‘a set date and time’. This contemplated meetings being held periodically. The effect of Order (c) would be to change what was agreed between the parties and it seemed that Order (c) would be enlivened when two or more Shift Survey Forms were submitted in relation to the same issue. There was no limit on how many Consultative Committee meetings may be held per quarter. Order (c) also envisaged only two possible outcome of that consultation process. This would be contrary to the Agreement’s Consultation clause.
[134] ABL claimed that Order (d) asked the Commission to make a finding of general application, rather than a matter arising under the Agreement, pertaining to Busways and its employees or arising under the NES. It could not be said to fall under the Dispute Resolution Procedure of the Agreement.
[135] Turning to the merits of the application, ABL said that there were already appropriate measures in place for dealing with ‘on time’ running of bus services including:
- live and recorded PTIPS data;
- live two-way radio communication with drivers;
- live monitoring of all bus services at the OCC, based on satellite tracking data; and
- Shift Survey Forms.
Shift Survey Forms are referred to the OCC or Scheduling Department for investigation, which involved monitoring through PTIPS. If the cause of lateness was unclear, a ‘ride checker’ would ride on the bus to collect data on the buses. Drivers would receive advice of the outcome, setting out whether Busways had determined there was a problem, if a change could be made immediately, or in a new timetable, or if it was to continue to monitor the issue. A spreadsheet of all of these Shift Survey Forms had been published at the Penrith Depot since 10 September 2014.
[136] ABL contrasted the Union’s proposed processes, which required that ‘on time’ running concerns be routed through the Consultative Committee, resulting in drivers being taken off the road and 3-4 Management staff attending. Issues could not be addressed instantaneously and would often need to be referred to the OCC and/or the Scheduling Department. The requirement to conduct timed tests of bus routes was an unduly onerous burden on Busways’ resources. Given that 127 Shift Survey Forms had been submitted, it was also impractical that this occur. Lastly, Busways’ view was that PTIPS data presented a more accurate picture over time. Mr Hupton’s evidence as to the unusually quiet run he had had on the day of the timed test supported this submission.
[137] ABL asserted that the content of the contract with Transport NSW was commercial in confidence, but disputed that Transport NSW relied heavily on PTIPS data to monitor the performance of bus companies.
[138] ABL set out the process that led to Busways’ development of a timetable. It was based on the collection of a substantial amount of data derived from PTIPS and the Shift Survey Forms. Once the timetable is prepared and shifts are available, the Consultative Committee would take two days to review the draft shifts and would usually recommend some changes. Busways would respond to these proposals. A driver would then spend time with the Scheduling Department to review instructions and timeframes in the new shifts pertaining to trips between routes. The master roster would then be prepared, assigning shifts to roster lines. Employees would be permitted to choose their own lines of work through a ‘roster picking’ process unique to the industry. The master roster is displayed 24 hours prior to the first group being allowed to pick its roster on the basis of seniority. These processes were appropriate, technologically sophisticated and allowed the employees and Consultative Committee to be involved. The expert role of the Scheduling Department was emphasised.
[139] ABL rejected the proposition that any of the Union’s concerns in relation to ‘on time’ running was substantiated. Busways’ evidence in relation to its KPIs showed that buses started their journeys ‘on time’ more than 95% of the time and was generally increasing. Busways was operating at a level higher than that required by its contract with Transport NSW. The number of complaints received was minimal. Nor were there any substantiated safety risks made out. The Union had not presented any evidence of physical threats to drivers as a result of late running buses. Mr Hupton and Mr Singh had given isolated examples of verbal abuse. It was emphasised that drivers were expected to always drive safely and this was reinforced in Busways’ policies and training. The Union had not presented any evidence to support a finding that the timetables were causative of driver fatigue, apart from the hearsay evidence of Mr Singh. The shift lengths fell within the National Heavy Vehicle Regulation and drivers had the opportunity to take breaks in a shift as each shift consisted of numerous trips. There was no direct evidence that employees had been unable to go to the toilet and, in any event, they were instructed to take toilet breaks, regardless of running time. This was corroborated by the evidence of Mr Singh and Mr Hawkins.
[140] ABL cautioned against interference with management prerogative; See: Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188 (‘AFULE v SRA’); and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Limited [PR958009]; Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2014] FWC 3615 (‘MUA v Patrick’); Pulle v Commonwealth of Australia[2011] FWA 7462; and Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288. It was not sufficient to assert that there was a viable or credible alternative process to that determined by the employer. In the absence of unjust or unreasonable conduct, the preference of a third party is irrelevant; See: ACT Minister for Health v Australian Nursing Federation [L2261]. There needs to be strong evidence before the Commission will reconsider operational matters and the Union had failed to provide persuasive evidence as to risks to safety or ‘on time’ running, in contrast to the extensive evidence provided by Busways as to its processes.
[141] ABL claimed that the Union’s basis for the making of Order (a) appeared to be that the respondent had not complied with the Settlement Agreement. In any event, Busways denied that the Settlement Agreement was breached as the Consultative Committee had met on a number of occasions, with each meeting lasting between one and two hours. Only 16 issues were raised throughout this three month period and the Consultative Committee had not agreed that there were problems requiring a timed test of any bus route. Route 794 had been retested in accordance with the Settlement Agreement and a ‘head off’ bus was ready over two weeks, but was never deployed. Mr Collins oversaw the process. Consultation was engaged in prior to the Settlement Agreement’s cessation.
[142] ABL emphasised that cl 4 set out that the Consultative Committee was to discuss ‘issues raised’ within the Consultative Committee meetings. A number of Shift Survey Forms had been raised by Mr Hupton and discussed.
[143] ABL submitted that the fact that the making of Orders (b) and (c) would not contravene the Agreement was not in itself a persuasive reason for those orders to be made. In any event, it was maintained that they were inconsistent with the Agreement. The Union had submitted that there would be continual disputation without the orders it sought and Busways considered this to be a veiled threat. The Union could reserve its right to file any industrial dispute it saw fit, but this did not provide a basis for the orders sought. Order (d) did not appear to directly relate to Busways’ workplace.
[144] In oral submissions, Mr Izzo noted that cl 6 of the Agreement was broadly drafted to exclude extra claims in relation to conditions of employment, as well as pay and allowances. This would operate to exclude the matters which were the subject of the current dispute. Cl 31(a)(ii) set out that the Dispute Resolution Procedure can deal with a dispute relating to any matter pertaining to the employment relationship, but this was tempered by the operation of cl 6. Marmara v Toyota and Toyota v Marmara were authorities for the proposition that ‘claim’ has a broad meaning and a ‘no extra claims’ clause does prohibit an employer or Union from seeking better terms and conditions or a better state of affairs. Mr Izzo could not say how this was relevant to the Commission’s power to issue a recommendation or opinion.
[145] Mr Izzo said that the facts of this case could be distinguished from those in United Firefighters. While the Agreement in this case did contemplate the establishment of the Consultative Committee and its terms of reference, what Busways had put in place was consistent with it. The Union was seeking that it meet on a sporadic ad hoc basis, which was actually inconsistent with cl 30, setting out that the Committee would meet ‘at a set date and time’. There was no suggestion that Busways was not complying with cl 30. However, this would not prevent the parties agreeing to meet on an ad hoc basis, although either party may have a veto power on such a meeting going ahead. Mr Izzo put that the Union was seeking to codify an alternative means of dealing with disputes through the Settlement Agreement. This was an extra claim.
[146] Mr Izzo distinguished the roles of the Dispute Settlement Procedure and the Consultation Procedures. Once Busways had consulted and been made aware of a problem, it was Busways’ responsibility to rectify it. If the employees or the Union were unhappy with this, then they could file a dispute notification. However, this did not mean that the Consultative Committee should be allowed to step into the ‘shoes’ of management.
[147] Mr Izzo rejected the submission that because the Settlement Agreement was made pursuant to the Dispute Resolution Procedure, the former made up part of the latter. This was so, because the twelve points of the Settlement Agreement were inconsistent with the Dispute Resolution procedure. A finding that the Consultative Committee was an appropriate body to deal with this issue as opposed to the appropriate body, would not take the dispute very far, as it was vague and not sufficiently prescriptive. In any event, such a finding was opposed because Busways maintained there were better placed bodies (the OCC and the Scheduling Department) in the respondent’s business to deal with these issues. Nevertheless, Mr Izzo acknowledged that Busways had agreed to use the Consultative Committee as part of the Settlement Agreement.
[148] Mr Izzo compared Order (b) with cl 32 of the Agreement, which dealt with major change and consultation and noted that cl 32 did not prescribe the process Busways needed to adopt when it consults, except that it must give prompt and genuine consideration to the views of the employees and provide certain information to the relevant employees and their representative. The Union was now requiring that the Consultative Committee must be consulted, not just in cases involving major change, but wherever there is an issue as to running times. Giving effect to the order would essentially be rewriting the Consultation clause.
[149] Mr Izzo submitted that Busways’ witnesses had answered in a forthright manner, even where their answers did not assist its case; for example, admitting that Mr Singh’s runs on route 780 tended to run late. In contrast, Mr Nyols had been evasive and argumentative in his cross-examination. Mr Hupton had given written evidence that the Route 775 bus ran approximately 10-15 minutes late every day, but when shown PTIPS data illustrating it did not, he changed his evidence to say that he sped up to ensure that he was ‘on time’. His evidence was generally unhelpful.
[150] Mr Izzo referred to the PTIPS data adduced as evidence in this matter. What had been provided were very small extracts of vast, comprehensive data about the time at which each bus stopped at each individual stop. Graphic representations could be extrapolated to show a bus’ scheduled route and its actual route. Busways had access to this type of data at its OCC every minute of the day and could communicate with its drivers through a two way radio system. This was far more effective than anything the Consultative Committee could provide. It was acknowledged that data drop outs account for about 5%, but Busways had not sought to provide the most favourable evidence to its case in this form.
[151] Mr Izzo conceded that some problems could not be fixed outside of a larger timetable change, but drivers would be aware of how individual issues raised in Shift Survey Forms were being dealt with by way of the spreadsheet on the noticeboard at the Penrith Depot. Busways could also split shifts to have them performed by two drivers and two buses, provide a ‘Head off’ bus and even ask Transport NSW for permission to add run time outside of a new timetable (although this was rare).
[152] Mr Izzo understood the Union’s position to be that an ‘issue’ was raised under the Settlement Agreement when a Shift Survey Form was submitted. Busways took the view that an ‘issue’ was raised when it was brought up in the Consultative Committee. Mr Nyols had been unclear as to which of the Shift Survey Forms he expected the Consultative Committee to deal with. Busways denied breaching the Settlement Agreement.
[153] Mr Izzo acknowledged the drafting of Point 4 of the Settlement Agreement was unsatisfactory, which was unsurprising given that it was handwritten on the back of an A4 folder in the foyer of the Commission in the early evening and in the context of the possibility of an urgent arbitration. It was only ever meant to be a temporary fix.
[154] Mr Izzo noted that review by the Consultative Committee of draft timetables to be sent to Transport NSW was not something that the Union had sought orders for in this case. It was unclear what the Consultative Committee could do outside of this process that could not be done more efficiently by other bodies. Mr Hupton’s evidence that he was not in a position to provide substantive feedback when reviewing the shifts, should not be accepted as a summary of the issues raised by him. Rather, it demonstrated he had raised specific issues and that his issues had been examined. Mr Izzo denied that the shift consultation process was undertaken too late. Shifts could still be changed and feedback could be obtained from the drivers through the Shift Survey Forms to assist in formulating future timetables. It was a rolling process.
[155] Mr Izzo highlighted that the Consultative Committee was not a technical or investigative body. It was not intended to sit in the place of bodies like the Scheduling Department or Management. The Commission should not interfere with the right of an employer to manage their business, unless the employer is seeking something unjust or unreasonable; See: AFULE v SRA.
[156] Mr Izzo conceded that verbal abuse by an angry passenger could become so aggressive that it gets to a point that it threatens health and safety, but there was no cogent evidence that this had occurred in this case. There were no workers’ compensation claims on the subject. Intoxication of passengers and disagreements between passengers were more present threats. While drivers ‘cop the brunt of that’, Busways can only deal with real and present threats. Speeding and unsafe driving practices are strictly prohibited and all employees were aware of their responsibilities in this respect.
[157] Mr Izzo addressed the Transport NSW survey data adduced by the Union and put that it did not seem to illustrate that Contract 1 was startlingly different in its rates of dissatisfaction compared to other Contract Regions. Indeed, there were very few formal complaints from passengers.
[158] Mr Izzo sought that the application be dismissed and that the Commission make the following determinations on the basis of Busways’ jurisdictional objections:
‘1. Any claim made by a Party that seeks to resolve roster or timetable grievances in a manner different to the process outlined in clause 31 of the EA constitutes an “extra claim” and is not permitted by the EA.
2. Any claim made by a Party to the effect that the Consultative Committee is the appropriate body to review issues arising due to roster changes constitutes an “extra claim” and is not permitted by the EA.
3. Any claim made by a Party to the effect that the Consultative Committee should be convened when timetabling or rostering issues arise constitutes an “extra claim” and is not permitted by the EA.
4. Any claim made by a Party to the effect that the Consultative Committee should meet when a significant issue arises at the Busways enterprise constitutes an “extra claim” and is not permitted by the EA.
For the purposes of the above terminations:
"Consultative Committee” refers to the Consultative Committee that meets at Busways’ Penrith Bus Depot pursuant to clause 30 of the EA.
“EA” means the Busways Group (Sydney) and the Transport Workers Union of Australia Fair Work Agreement 2012.
“Party” means any of the persons referred to in clause 2 of the EA.’
[159] In reply, Mr Warnes disagreed with the distinction drawn by Mr Izzo between the ‘no extra claims’ clause in NUW v Qantas and that in the present case. The Union was not seeking that the Settlement Agreement be enshrined in an order of the Commission. Rather, it was seeking that the Commission interpret the Settlement Agreement on the evidence before it and determine whether the issues raised in the Shift Survey Forms were ‘issues’ in the sense contemplated by the Settlement Agreement.
[160] Mr Warnes noted that very little concrete evidence had been adduced by the respondent as to the Scheduling Department. It was accepted that this body had expertise in setting timetables and other areas, but what it did could not be tested by the Union in this case.
[161] Mr Warnes denied that the result of the orders sought by the Union would be that the Consultative Committee met ‘twice a week’. Rather the orders may relieve some industrial tension at the site. Mr Warnes said it was unfortunate that Busways did not appear to take verbal abuse by passengers seriously in and of itself.
CONSIDERATION
[162] Before dealing with the proposed orders sought by the Union, I intend to make some observations about the evidence it adduced, particularly in respect to the major concern of the Union and its members that the new roster results in serious ‘on time’ running complaints from passengers, who then take out their anger on the driver with verbal and physical abuse. It must be observed that:
(a) There was no evidence of any workers’ compensation claims from any of the drivers relating to abuse from disgruntled passengers.
(b) There was no evidence that any driver at the Penrith Depot had ever been physically threatened or assaulted by any passenger as a result of ‘on time’ running issues.
(c) Not one of the numerous Driver Occurrence Reports related to verbal abuse from passengers due to late running.
(d) It was the evidence of Mr Hupton, the Union’s Delegate, that no driver had reported physical abuse as a consequence of a bus running late.
(e) Mr Hupton himself has never reported to management any incident of being abused by a passenger.
(f) Another driver, Mr Singh, gave evidence that he was now so used to passenger abuse that he ignores it and provides minimal customer service.
(g) Of the 11 driver complaints made by Mr Singh, not one concerned his alleged ‘frequent abuse’ claim.
(h) The drivers’ evidence disclosed that Busways investigates the drivers’ concerns and if found to be justified, makes the necessary adjustments to the rosters. It is not correct or fair to Busways that it is accused of paying ‘lip service’ to the drivers’ concerns.
[163] One feature of this dispute, which cannot be lost sight of, is that it is absolutely not in Busways’ interests to risk its contracts with the New South Wales Government by not seriously addressing and rectifying its ‘on time’ running difficulties. The Government insists on a KPI dealing with this very issue. Of course, as genuinely accepted by Busways, one of the inputs into those considerations is from the drivers themselves. It would be a foolish bus company indeed, which chose to ignore the genuine concerns of those who know best how the runs operate; but that does not mean that the drivers have a right to insist on how Busways manages its business.
[164] That said, I do not doubt the sincerity of the bus drivers’ evidence as to the complaints received from disgruntled passengers. Nor do I doubt that the drivers have understandable concerns for their safety. However, the real question is whether their concerns are justifiable in the context of the introduction of new rosters. A bus driver’s job is not easy or pleasant. I readily acknowledge that passenger verbal abuse is an unfortunate occupational hazard. No one should be subject to verbal abuse at work, particularly when the reason for such abuse is predicated on circumstances completely out of the drivers’ control. Sadly, it has become a feature of the industry and it is a damning indictment of contemporary societal standards.
[165] Nevertheless, from the evidence adduced in this case - much of it speculative - I am not satisfied that the frequency and severity of the verbal abuse is to the extent or ferocity of the Union’s claims. Thankfully, there was simply no evidence of any physical abuse, assault or violence perpetrated on any of the relevant bus drivers. That is not to say that there is simply no risk of that circumstance ever occurring. But I hazard a guess that if there had been the slightest threat of physical violence, the Union would have adduced evidence of it. Such a risk, of course, is not just limited to the Penrith drivers, but to public and private transport employees generally.
[166] In the present context, it should not be overlooked that passenger abuse of drivers does not necessarily arise from a late running service. As is self-evident, abuse may follow from:
(a) traffic congestion and accidents;
(b) bad weather;
(c) passenger intoxication;
(d) passengers refusing to pay a fare;
(e) passengers skylarking;
(f) youthful bravado;
(g) mental illness;
(h) just plain unjustifiable passenger anger management issues.
[167] The Union also relied on Transport NSW dissatisfaction surveys in May 2014 to demonstrate that services in Contract 1 are regarded as poor, with 19% satisfaction figures for ‘on time’ running. On any proper analysis, these low numbers are similar to most of the other regions and are the same at least in two others. Mr Nyols accepted this to be the case.
[168] Moving away from the safety issues which were said to underlie the drivers’ concerns, the evidence of Mr Nyols was that drivers only have 24 hours notice of the roster changes arising from the Government approved bus timetables. The reality is that there is an agreed selection process, based on seniority, by which those drivers with the longest service get to pick the rosters they want first. In getting first pick, this happens on the first day the roster is posted and usually only involves about ten of the most senior drivers. There is then a sequential cascade selection process based on length of service, which usually takes place over a 10-14 day period. Mr Nyols’ written evidence did not elaborate on his claim that drivers only receive 24 hours notice to pick their rosters. As is seen from the above, this assertion is not strictly correct. The seniority pick of rosters is a longstanding agreed custom and practice in the industry, which, for my own part, I find a little curious, if not a little outdated.
[169] In addition, I also found Mr Hupton’s evidence to be exaggerated and at times difficult to reconcile. For example, he claimed in his statement that his regular 775 run would always be 10-15 minutes late, but agreed in cross-examination that 59 of the 61 times he had driven the route, the bus arrived within six minutes of the scheduled arrival time. He explained this by saying that he was speeding to meet the six minutes ‘ window’. In other words, the run was either 10-15 minutes late or within the six minutes arrival time. It cannot be both circumstances and his evidence was undermined by this contradiction.
[170] Mr Hupton also claimed the retesting which he conducted on Route 794 was in the middle of the day. However, in cross examination, he conceded the testing was in the morning, midday and the afternoon. Mr Hupton further claimed that drivers commonly experience complaints such as people being left at bus stops late at night. However, Mr Hupton does not work nights. So this evidence is, at best, hearsay. Mr Hupton gave evidence that he was subject to abuse on Route 786 on 9 October 2014. However, the bus actually ran 1½ minutes early. Mr Hupton’s propensity to exaggerate his evidence to bolster the Union’s argument achieved precisely the opposite result to that intended.
Ongoing application of the Settlement Agreement
[171] There can be little doubt that the Settlement Agreement was intended to apply to a given set of circumstances and had a limited life of three months. While I can understand the Union’s submission that the Settlement Agreement should continue to be used to deal with issues which were notified during the three month period, such a submission completely ignores the precise and unequivocal meaning of paras 9 and 10 of the Settlement Agreement and the intention of the parties. The fact that there have been unforeseen circumstances (the Government not approving the new timetable from 1 November 2014) does not and cannot invalidate the Settlement Agreement’s plain terms. One answer may have been to seek a renegotiation of the Settlement Agreement to accommodate the unforeseen changed circumstances (as perhaps envisaged by cl 10).
[172] In addition, the evidence of Mr Gibson, which was not seriously challenged, was that of the outstanding 127 Shift Survey Forms:
- 22 issues had been rectified;
- 2 issues were being investigated;
- 9 issues were still being processed; and
- 90 further issues were to be rectified by the new third timetable.
In other words, the vast majority of the outstanding issues, cannot, in any event, be addressed through the Consultative Committee, because they are timetable related and can only be properly addressed when the third timetable is implemented. Put another way, the Settlement Agreement has done its job.
[173] But in any event, it is obvious that the proposed orders sought by the Union go much further than simply utilising the Settlement Agreement for any outstanding matters from the 18 May timetable. Whether the Settlement Agreement was a raging success or abject failure, is really not the point. Just because the Union believes the experience of the Settlement Agreement should continue, does not translate to a conclusion that the Consultative Committee is the only appropriate body or preferred body to deal with Shift Survey Forms or ‘on time’ running.
[174] As just mentioned, the Settlement Agreement was made as a consequence of a specific dispute and discrete issue - the implementation of the 18 May 2014 timetable across Contract 1. It operated under, and according to its own terms, as agreed to by the parties. It does not necessarily follow that it should be an ongoing mechanism for dealing with the Shift Survey Forms or ‘on time’ running issues. In my view, there are a number of merit based factors which mitigate against this proposition:
(1) It would be impractical and onerous for the Consultative Committee to review and consider every Shift Survey Form, given the recent experience of some 127 forms submitted over a three month period. Mr Nyols’ evidence on this point was confusing and imprecise.
(2) There is simply no history of all Shift Survey Forms being considered by the Consultative Committee, save for the specific context of the dispute resulting in the Settlement Agreement.
(3) The existing Agreement already establishes a Consultative Committee (cl 30) which is expressly charged with discussing issues, including the rostering of work. On one view, given the broad ambit of the Consultative Committee’s charter, the orders sought by the Union are unnecessary or superfluous.
(4) In my view, the orders sought by the Union are too broad and ambiguous such as to likely be the source of ongoing argument and dispute between the parties. For example, Order (b) seeks to have the Consultative Committee as ‘the appropriate body to review issues arising due to roster changes’. Order (c) refers to a ‘significant issue’ in relation to ‘on road’ or ‘running time’ issues. However, this dispute directly concerns the relationship between ‘on time running’ and rostering. It is not too difficult to imagine ongoing arguments as to the apparent contradictions between ‘significant issue’ and any issue arising due to roster changes or, indeed, the meaning of ‘significant issue’ in itself.
(5) There is some substance to Mr Izzo’s submission that the ongoing utilisation of the Consultative Committee for employee grievances would be to establish a separate and distinct, but invalid or impermissible alternative disputes procedure where one already exists (cl 31). In pursuing such a claim, it might well be said that the Union is effectively seeking an ‘extra claim’ which is impermissible by the force of cl 6 of the Agreement.
(6) It was further submitted that the Major Change and Consultation Provision (cl 32) is also relevant to any change of the type being discussed here. It is significant to note that this provision makes no reference to the charter or operation of the Consultative Committee. It is at least arguable that by seeking a new and separate consultative mechanism for major change, the Union is seeking an impermissible ‘extra claim’.
(7) The orders sought by the Union limit Busways to only two outcomes from the Consultative Committee process - dismissing the issue or accepting the issue exists and providing prompt remedial action. In my opinion, binding Busways to only two outcomes may well not be in the Union’s interests, particularly when the Agreement is not so limiting.
(8) There can be little doubt that Busways has the best possible ‘state of the art’ technical systems to identify when and where a bus is either, late, early or ‘on time’. This is largely driven by PTIPS. In addition, Busways relies on two way communications with the drivers and their driver Shift Survey Forms and Occurrence Incident Reports.
(9) I am well satisfied that the existing process of dealing with issues arising from the Shift Survey Forms is appropriate and comprehensive. It was outlined as follows:
(a) the Shift Survey Form is referred to the OCC or Scheduling Department for investigation;
(b) the investigation ordinarily involves monitoring bus progress through PTIPS. This is because late running issues may often be caused by a variety of events - not all within the control of the bus operator;
(c) where root causes of problems are unclear, ‘ride checkers’, who ride on particular buses to collect data about the bus route in person; and
(d) the driver is notified of the outcome of the investigation in writing. The most common outcomes are that:
(i) Busways agrees there is a problem and rectifies the problem by making a change (which the driver would be aware of, given that he drives on the shift);
(ii) Busways agrees there is a problem, but cannot implement desired changes immediately due to the constraints of the timetable. In these cases, changes are scheduled for implementation with a new timetable;
(iii) Busways has not determined whether there is a problem, and wishes to continue monitoring the issue; or
(iv) Busways rejects the issues of a problem on the Shift; and
(e) finally, since 10 September 2014, Busways has published a spreadsheet of Shift Survey Forms at its Penrith Depot, collectively identifying the issues raised by drivers and the response Busways is taking.
(10) It must be accepted that not all the issues raised by drivers can be resolved without an actual timetable change. This is a much wider and extensive process, ultimately requiring New South Wales Government approval. This would be necessary whether the Consultative Committee was involved or not.
[175] For the aforementioned reasons, firstly, I am not satisfied that the orders sought by the Union should be made. Secondly, I do not perceive any utility in making the determinations sought by Mr Izzo. Thirdly, given these conclusions, it is unnecessary to make any findings on the jurisdiction or the powers of the Commission to make the orders, findings or determinations sought.
DEPUTY PRESIDENT
Appearances:
Mr T Warnes for the Transport Workers’ Union of Australia.
Mr L Izzo and Mr K Scott for Busways Blacktown Pty Ltd.
Hearing details:
2014:
Sydney.
16, 17 December.
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