Transport
NSW (Transport Agencies Conditions of Employment) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Transport
NSW.
(No. IRC 189 of 2011)
|
Before Mr Deputy
President Grayson
|
3 March 2011
|
AWARD
1. Arrangement
Clause No. Subject Matter
1. Arrangement
2. Parties to
the Award
3. Definitions
4. Statement
of Intent
5. Content
6. Employee
Travel Passes
7. Dispute
Settlement Procedures
8. Anti-Discrimination
9. Area,
Incidence and Duration
Schedule A - Former Industrial Instruments
2. Parties to the
Award
Parties to the Award include:
Transport NSW
RailCorp
Roads and Traffic Authority
State Transit Authority
Sydney Ferries
Transport Construction Authority
Country Rail Infrastructure Authority
Independent Transport Safety Regulator
Association of Professional Engineers, Scientists and
Managers, Australia (New South Wales Branch)
Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union (New South Wales Branch)
Australian Institute of Marine and Power Engineers, New
South Wales District
Australian Maritime Officers Union of New South Wales
Australian Services Union of New South Wales
NSW Plumbers and Gasfitters Employees Union
Electrical Trades Union of Australia, NSW Branch
Australian Workers’ Union, New South Wales
Australian Rail, Tram and Bus Industry Union, New South
Wales
Construction, Forestry, Mining and Energy Union (New
South Wales Branch)
The Seamens Union of Australia, NSW Branch
Transport Workers Union of Australia (New South Wales
Branch)
Public Service Association and Professional Officers’
Association Amalgamated Union of New South Wales
Transport Workers Union of New South Wales
Unions NSW.
3. Definitions
Chief Executive - Chief Executive of a Transport
Authority, as defined in the TAA.
Division Head - As defined in section 4D of the PSEM
Act.
DPE - Director of Public Employment.
Employer - The Transport Authority to which an Employee
has been transferred under s 66 of the TAA. A reference in a Former Industrial
Instrument to an employer shall be taken to be the employer as defined in this
Award.
Employee - whether appearing on its own or as part of
another definition means an employee to whom this Award applies in accordance
with clause 9i. of this Award.
Former Industrial Instrument - An award or agreement
listed in the Schedule to this Award, or its successor, as it applied to an
Employee immediately prior to transfer from one Transport Authority to another
under section 66 of the TAA.
Industrial Instrument - Industrial Instrument has the
same meaning as defined by the Industrial Relations Act 1996.
PSEM Act - Public Sector Employment and Management Act
2002
IRC - Industrial Relations Commission of NSW
TAA - Transport Administration Act 1988
Transport Authority - As defined in Division 4 of Part
7 of the TAA.
Former Authority - The Transport Authority from which
an Employee is transferred under section 66 of the TAA.
Receiving Authority - The Transport Authority to which
an Employee is transferred under section 66 of the TAA.
Transport NSW - The Department established under Part 1
of Schedule 1 of the PSEM Act, or its successor.
Union -The industrial organisation that was eligible to
represent an employee immediately prior to transfer under section 66 of the
TAA.
4. Statement of
Intent
(i) This Award is
intended to cover those employees who have been transferred from one Transport
Authority to another Transport Authority (the Employer) under section 66 of the
TAA.
(ii) The purpose of
this Award is to incorporate in this industrial instrument the terms and
conditions of employment of the transferred employee in place immediately
before the date of transfer, as provided for in section 67(1) of the TAA at the
time of the making of this Award.
(iii) This clause is
subject to clause 9 of this Award.
5. Content
(i) This Award
incorporates all the terms and conditions, including future benefits, as
contained in the Former Industrial Instrument as applying to an employee
immediately prior to his or her transfer pursuant to section 66 of the TAA and,
by virtue of this Award, those terms and conditions, including future benefits,
shall continue to apply to the Employee on and from the transfer date as if the
Receiving Authority was party to and/or bound by the Former Industrial
Instrument.
(ii) To the extent
that a Former Industrial Instrument was made under the Fair Work Act 2010 and
did not contain all of the provisions of the National Employment Standards
under that Act, those Standards that applied immediately prior to transfer will
be deemed to apply to a transferred employee to whom the Former Industrial
Instrument applied.
6. Employee Travel
Passes
(i) Where an
Employee immediately prior to transfer from one Transport Authority to another
Transport Authority under section 66 of the TAA had existing or accruing
Employee Travel Pass entitlements, then such existing or accruing entitlements
shall continue to apply as if the Employee had not been transferred.
(ii) Where an Employee
to whom clause 6(i) applies is, in accordance with the applicable policy for
managing excess employees, subsequently redeployed to a different position
within the Receiving Authority, or another Transport Authority, then any
existing or accruing Employee Travel Pass entitlements shall continue to apply
as if the employee had not been redeployed.
7. Dispute Settlement
Procedures
(i) Subject to
clause 7v., should a dispute arise in relation to the interpretation or
operation of this Award, the parties to the dispute shall advise in writing of
their respective positions.
(ii) Negotiations
about the dispute will be held between the parties and/or their nominee, who
will meet and conclude their discussions within two working days, excluding
weekends and public holidays.
(iii) If the dispute
remains unresolved any party may refer the matter to the Industrial Relations
Commission of New South Wales for conciliation, and, if necessary,
arbitration.
(iv) By mutual
agreement confirmed in writing, sub-clause iii. may be avoided, and the parties
to the dispute may seek the assistance of the Industrial Relations Commission
of New South Wales.
(v) Should any
dispute arise in relation to the interpretation or operation of any of the
provisions contained within a Former Industrial Instrument, such a dispute
shall be dealt with under the Dispute Settlement Procedure provision of that
Instrument.
8.
Anti-Discrimination
(i) It is the
intention of the parties bound by this Award to seek to achieve the object in section
3(f) of the Industrial Relations Act 1996 to prevent and eliminate
discrimination in the workplace. This
includes discrimination on the grounds of race, sex, marital status,
disability, homosexuality, transgender identity, age and responsibilities as a
carer.
(ii) It follows
that in fulfilling their obligations under the dispute resolution procedure
prescribed by this Award the parties have obligations to take all reasonable
steps to ensure that the operation of the provisions of this Award are not
directly or indirectly discriminatory in the effects. It will be consistent with the fulfilment of these obligations
for the parties to make application to vary any provisions of this Award, which
by its terms or operation, has a direct or indirect discriminatory effect.
(iii) Under the Anti-Discrimination
Act 1977, it is unlawful to victimise an Employee because the Employee has
made or may make or has been involved in a complaint of unlawful discrimination
or harassment.
(iv) Nothing in this
clause is to be taken to affect:
(a) Any conduct or
act which is specifically exempted from anti-discrimination legislation;
(b) Offering or
providing junior rates of pay to persons under 21 years of age;
(c) Any act or
practice of a body established to propagate religion which is exempted under
section 56(d) of the Anti-Discrimination Act 1977;
(d) A party to this
Award from pursuing matters of unlawful discrimination in any State or federal
jurisdiction.
(v) This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by the legislation referred to in this clause.
NOTES
(1) Employers and
Employees may also be subject to Commonwealth anti-discrimination legislation.
(2) Section 56(d) of
the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
9. Area, Incidence
and Duration
(i) This Award
shall apply to persons employed in a Transport Authority who have been
transferred from one Transport Authority to another Transport Authority under
section 66 of the TAA and:
(a) whose employment
was regulated by a Former Industrial Instrument;
(b) who, at the time
of transfer, were permanently or temporarily employed by the Former Authority;
and
(c) who have not
accepted, prior to transfer or subsequently, an offer of employment in the
Receiving Authority under the terms and conditions of employment that apply to
employees of that Receiving Authority who were not transferred under section 66
of the TAA.
(ii) This Award
shall only apply to temporary Employees referred to in clause 9i. above for the
remainder of the period of employment determined by their contract of
employment (or other similar arrangement) with the Former Authority that was
current on the day immediately prior to the date of their transfer.
(iii) Employees
employed in Transport NSW to whom this Award applies are engaged in the service
of the Crown as defined by the PSEM Act, but are not employed under either
Chapter 1A or Chapter 2 of that Act.
(iv) This Award
operates to the exclusion of any Industrial Instrument that regulates the
employment of the employees of a Receiving Authority who were not transferred
under section 66 of the TAA.
(v) Redeployment
(a) For the life of
this Award, where an Employee is transferred to a Receiving Authority and, as a
result of an organisational restructure, is then redeployed in accordance with
the applicable policy for managing excess or displaced Employees to another
position (a subsequent position) within one of the Transport Authorities, this
Award shall continue to apply to that Employee whilst the Employee continues to
be employed in that subsequent position.
(b) Subclause (v)(a)
.shall not apply in cases where redeployment involves a promotion (i.e. the
substantive maximum pay rate of the new position is more than 5% above the
Employee’s existing substantive maximum rate of pay), other than any
entitlement to an Employee Travel Pass, which shall continue in accordance with
clause 6ii.
(c) Nor shall
subclause (v)(a) apply if the Employee elects to be redeployed to the
subsequent position in the Receiving Authority under the terms and conditions
of employment that apply to Employees of that Receiving Authority who are not
Employees as defined by this Award.
(vi) Nothing in this
Award shall be read as imposing an obligation upon a Transport Authority in
respect of its employees to whom this Award does not apply or in relation to
the Transport Authority as a whole, its management or workplace policies.
(vii) Nothing in this
Award shall affect the operation of the PSEM Act, the Public Sector Employment
and Management Regulation 2009, guidelines released in accordance with the PSEM
Act or Government policies (including those issued by the Director of Public
Employment) in so far as those instruments apply to a Transport Authority.
(viii) In particular,
this Award shall not apply to positions created under either Chapter 1A or
Chapter 2 of the PSEM Act nor shall it affect or impose any obligations on
Transport NSW with respect to the creation, filling or deletion of such
positions or other similar acts by Transport NSW.
(ix) In the event of
inconsistency, this Award shall take precedence over a Former Industrial
Instrument.
(x) This Award shall
take effect on and from 3 March 2011 with a nominal term of three years
thereafter.
Schedule A
The Former Industrial Instruments applicable to the
Transport Authorities at the time of the making of this Award include:
Transport NSW
Crown Employees (Public Service Conditions of
Employment) Award 2009
Crown Employees (Public Sector - Salaries 2008) Award
Department of Transport Officers Employment Conditions
-Agreement No. 2548 of 1998
RailCorp
RailCorp Enterprise Agreement 2010
Sydney Ferries
Sydney Ferries Salaried and Senior Officers Agreement
2009
Sydney Ferries Maritime (AIMPE) Agreement 2009
Sydney Ferries Maritime (AMOU & MUA) Agreement 2009
Sydney Ferries Balmain Shipyard Employees Agreement
2009-2012
State Transit Authority
State Transit Authority of NSW Senior and Salaried
Officers Enterprise (State) Award 2009
State Transit Authority Division of the Government
Service Bus Operators Award 2009
State Transit Authority Division of the New South Wales
Government Service Bus Engineering and Maintenance Enterprise (State) Award
2009
State Transit Authority Division of the Government
Service Newcastle Ferry Operations, General Purpose Hand Enterprise (State)
Agreement 2009
State Transit Division of the Government Service
Newcastle Ferry Masters Enterprise Agreement 2009
Port Services Award 1997
State Ferries Award 2001
Western Sydney Buses Bus Operators' Transitway
Enterprise (State) Award 2011
Roads & Traffic Authority of NSW
Crown Employees (Roads and Traffic Authority of New
South Wales - Salaried Staff) Award
Crown Employees (Roads and Traffic Authority of New
South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2008
Professional Engineers (Roads and Traffic Authority
Division of the Government Service of NSW - Salaries) Award 2008
Crown Employees (Roads and Traffic Authority of New
South Wales - Traffic Signals Staff) Award 2008
Crown Employees (Roads and Traffic Authority of New
South Wales - Wages Staff) Award 2008
Crown Employees (Roads and Traffic Authority of New
South Wales - School Crossing Supervisors) Award
Country Rail Infrastructure Authority
Rail Infrastructure Corporation Enterprise Agreement
2009
Independent Transport Safety Regulator
The Crown Employees (Independent Transport Safety and
Reliability Regulator) Award 2009
Transport Construction Authority
Rail Industry Award 2010
J.
P. GRAYSON D.P.
____________________
Printed by
the authority of the Industrial Registrar.