Transport NSW (Transport Agencies Conditions of
Employment) Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 781 of 2015)
|
Before Commissioner Stanton
|
15 December 2015
|
REVIEWED
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.
Head of a Public Service Agency - As
defined in section 3 of the GSE Act.
Industrial Relations Secretary – As defined in
section 49 of the GSE Act 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 9(i) 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.
GSE Act - Government
Sector Employment Act 2013
IRC - Industrial Relations Commission of NSW
Public Service Commissioner - As defined in section 3
of the GSE Act
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 for NSW - The employment group of the
Transport Service of NSW established by the Secretary under the TAA, or its
predecessor or 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 2009 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 7(v), 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 9(i). 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 for NSW to whom this Award applies are engaged in the
service of the Crown as defined by the GSE Act, but are not employed under 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
(iv)(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 (iv)(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 GSE Act, the Government Sector
Employment Regulation 2014, the Government Sector Employment Rules 2014,
guidelines or other forms of direction released in accordance with the GSE Act
or Government policies (including those issued by the Industrial Relations Secretary or the Public Service
Commissioner) in so far as those instruments apply to a Transport
Authority.
(viii) In particular,
this Award shall not apply to positions created under Part 7A of the TAA or
Part 4 of the GSE Act, nor shall it affect or impose any obligations on
Transport for NSW with respect to the creation, filling or deletion of such
positions or other similar acts by Transport for 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.
(xi) The changes made to the award
pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for
Review of Awards made by the Industrial Relations Commission of New South Wales
on 28 April 1999 (310 I.G. 359) take effect on and from 15 December 2015.
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. D. STANTON, Commissioner
____________________
Printed by the authority of the Industrial Registrar.