EMPLOYMENT POSITIONS TO BE ABOLISHED

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH

APPLICANT

-v-

PUBLIC TRANSPORT AUTHORITY

RESPONDENT

CORAM COMMISSIONER J H SMITH

DATE FRIDAY, 4 MARCH 2005

FILE NOS. CR 171 OF 2004 and APPLA 1068 OF 2004

CITATION NO. 2005 WAIRC 00513

CatchWords Industrial dispute - positions not genuinely redundant - turns on own facts - Industrial Relations Act 1979 (WA) ss 4, 26 and 44; Public Sector Management Act 1994 (WA); Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA); Minimum Conditions of Employment Act 1993 (WA) s 40(1).

Result Declaration made.

Representation 

Applicant Mr G Ferguson

Respondent Ms J Bishop

Reasons for Decision

1          On 25 October 2004, pursuant to s 44 of the Industrial Relations Act 1979 ("the Act") the Commission referred the following matters for hearing and determination:–

1. The Australian Rail, Tram and Bus Union of Employees, West Australian Branch ("the Union") and the Public Transport Authority ("the PTA") are parties to the Public Transport Authority Railway Employees Enterprise Agreement 2004 AG 110 of 2004 ("the Agreement"), which was registered by the Commission on 9 July 2004.

2. Clause 38.1 of the Agreement provides that –

"The Employer agrees that upon registration of this Agreement it will forthwith submit to review the classification of positions contained in the following Schedules to this Agreement:

Schedule 1 – Help Telephone Operators"

Clause 38.2 provides that –

"Where positions are reclassified to a higher level of classification, the effective date of the reclassification shall be the date of the reclassification or 1 July 2004 whichever is the sooner."

3. Schedule 1 sets out the hours of duty and wages paid to Help Telephone Operators.

4. The PTA has advised the Union that it intends to abolish the position of Help Telephone Operators due to the introduction of new surveillance technology and supersede or replace those positions with the position entitled "Operator Surveillance Level 1".  The PTA has also advised that it has made an application to the Australian Industrial Relations Commission to insert the classification of Operator Surveillance Level 1 into the Federal Public Transport (Railways) Salaried Officers Award of Western Australia 2003 ("the Federal Award").

5. The Union says the PTA's actions are an attempt to remove their Union's coverage of the Help Telephone Operators.  The Union says the industrial coverage is provided for in the Area/Scope clause of the Railway Employees' Award No 18 of 1969 ("the REA").

6. The Union seeks a declaration from the Commission that –

(a) the position of Help Telephone Operator is in substance a position utilizing skills, tasks and responsibilities as is envisaged for the proposed Operator Surveillance position and that the employment positions are one and the same.

(b) the position of Help Telephone Operator be made redundant is not a genuine redundancy – but rather an employment position that is having a name change with the associated introduction of expanded visual technology – utilizing upgraded software computer tools.

(c) the position of Operator Surveillance is a position capable of being graded within the REA as per recognition that all other security grades of employment, that are subject to the classification grades of employment contained in the Agreement and capable of inclusion within the REA.

(d) the proposed reclassification of Help Telephone Operators to the position of Operator Surveillance Level 1 in the Federal Award will distort the classification structure currently applying to other security grades and unleash a reclassification argument for other security grades that is not in the public interest.

(e) it is an implied term of the Agreement that the position of Help Telephone Operator will be reclassified within the classification structure of the Agreement and as such places a bar upon the employer to reclassify these workers outside the terms of the Agreement and/or place them in another award.

7. The Union seeks orders to the effect that the Operator Surveillance classification remains within the terms and conditions of employment contained within the Agreement and that the employment positions/classification be inserted into the REA.

8. The PTA says –

(a) The job of Help Telephone Operator is not the same as the newly created salaried position of Operator Surveillance.  The skills, duties, responsibilities and conditions differ between the two roles.  The new positions have already been created as Level One salaried officers and selection procedures commenced.  As redeployees affected by the restructure in this area, Help Telephone Operators are being given first preference in applications for the new positions.

(b) The employer has made the decision that the positions are redundant.  Once these new positions have been filled, the Help Telephone Operators will not be needed in addition to the new salaried jobs.  The Union and the Australian Municipal, Administrative, Clerical and Services Union, WA Clerical and Administrative Branch ("the ASU") are both affected by the restructure in the Central Monitoring Room and both unions have been consulted as part of the organisational structure.

(c) The position of Operator Surveillance is not covered by the REA and an application has already been made to formally add the positions in the Central Monitoring Room to Schedule A of the Federal Award.  Applications C4403 and C4409 of 2004 were filed by the PTA with the consent of the ASU. The Federal body of the Union has now filed Application C2004/4411 under s 111AAA of the Workplace Relations Act 1996 in opposition to such a variation of the Salaried Officers award.

(d) This decision has no flow-on consequences affecting other classification structures within the PTA.  Reclassification procedures are unaffected by the restructure.

(e) The terms and conditions in the Agreement do not preclude organisational restructuring and change, redundancies, reclassifications or the creation of new positions by the employer.  There was a commitment to commence reclassification procedures, and such procedures may involve reclassifying positions up or down, depending on the competencies, skills and duties involved in the position.  That review was commenced as agreed but overtaken by the operational requirements associated with technological change.

9. The PTA says that an order to retain the position of Help Telephone Operator within the terms and conditions of the Agreement is unnecessary as those positions will remain in place until the positions are abolished and in any case this does not preclude employees from applying for other wages or salaried jobs within the PTA or elsewhere in the public sector.

10. The PTA has objected to a separate application (APPL 1068 of 2004) to insert the classification of Help Telephone Operators into the REA.

11. Alternatively, the PTA objects to the adding of the position of Operator Surveillance into the Agreement and point out that as Level One salaried officer positions, the positions are covered by the Federal Public Transport Authority Salaried Officers Certified Agreement.

12. In all the circumstances the PTA seeks that this Commission defer hearing this matter until the Federal applications are dealt with by the Australian Industrial Relations Commission.

2          Prior to the hearing commencing on 20 December 2004, the parties entered into an agreement in relation to coverage of the positions in dispute in the Australian Industrial Relations Commission.  The Union made an application to the Australian Industrial Relations Commission, pursuant to s 111AAA of the Workplace Relations Act.  The matter was heard by Deputy President Blain in early December 2004.  The Agreement which was reached by the parties in those proceedings is reflected in the following transcript: 

"MR FERGUSON:  Now, I have sought to reach an agreement, which I have reached with the employer, and that is that the ARTBU will cease its 111AAA application before yourself to allow the PTA to have inserted into the award the level, the position which they wish to insert.  Now, that deal is done on the basis that once the West Australian Industrial Relations had heard the substantive matter, which is the argument if it is a true redundancy, and if the redundancy is found not to be –not to have occurred and the position has not substantially changed in its character and skills and work load, then the PTA has given a commitment that it will apply to the Commission to revoke the classification that it seeks to insert today.

…

My learned friend next to me may wish to clarify any words that I've words, but the thrust of it is if the State Commission finds that it [sic] not a genuine redundancy and there has not been significant change to the character of that job, then my good friends will move to revoke the – their – that classification that they seek to insert today.

…

MS BISHOP: …In the event of a determination in the State Commission that the Help Telephone Operator position is substantially the same position as a Surveillance Operator and that the ARTBU have coverage of that, then the ASU and PTA will apply to delete the Surveillance Operator position from the Federal Award.  That is the position as agreed during the adjournment, thank you."

3          Ms Bishop, on behalf of the PTA, says that there are two issues for this Commission to determine.  The first issue is whether the position of Help Telephone Operator is the same as the position of Surveillance Operator.  The second issue relates to "coverage".  In relation to this issue the PTA says it is open for the Commission to conclude that it is not in the public interest to vary the Railway Employees' Award No 18 of 1969 ("the REA Award") to include the classification of Help Telephone Operator (Transcript page 91). 

4          In this matter the Commission also dealt with APPLA 1068 of 2004, which is an application to vary the REA Award to insert in clause 44(1)(a) of the REA Award under the subheading of Urban Passenger, the classification Level 6 – 110% – Help Telephone Operators. 

Background

5          The Commission conducted inspections of the work of Help Telephone Operator and Operator Surveillance on 5 October 2004 and 20 December 2004.  As at July 2004 the PTA employed six Help Telephone Operators. 

6          On 5 October 2004, the Help Telephone Operators were operating their role with limited close circuit television ("CCTV") equipment at the Perth Railway Station with fixed cameras at some other railway stations.  The Help Telephone Operators had access to three pan, tilt and zoom cameras at the Perth Railway Station.  They could also access online cameras at Fremantle and at other stations, such as, Hilton Park.  The Perth station's cameras record onto video tape.  The Help Telephone Operators were responsible for changing the tapes over at midnight.  They were not responsible for "pulling" the tapes when an incident occurs.  That was the role of the Video Officer.  The Video Officer was responsible for downloading videos of any incidents which related to offences and presenting that information in court. 

7          At the time of the inspection the Commission observed that the majority of the duties of the Help Telephone Operator was to answer the emergency telephone and to assist members of the public through the use of that system.  At that time one Help Telephone Operator was rostered to work each shift in a 24 hour continuous roster. 

8          When the Commission conducted its inspection on 20 December 2004, it was able to inspect the role and duties of Operator Surveillance in that acting Operators Surveillance had been appointed and one railway station was being operated utilising the new CCTV equipment.  From January 2005 there will be two Operators Surveillance rostered each shift as more stations come on line.  When the system is fully operational, in April 2005, 83 stations will have 5 to 12 operational cameras that will be able to be viewed by each Operator Surveillance using the new CCTV equipment.  Consequently, there will be approximately 800 controlled pan, tilt and zoom cameras across the system.  With the implementation of the extension of the railway to Thornlie in March/April 2005, the PTA estimate they will require 10 Operator Surveillance positions and five new level 4 salaried officer shift commander positions to coordinate the activities of the Operators Surveillance.  Each Operator Surveillance will be responsible to make decisions about what uses may be made of the new technology on the basis of the information they will constantly survey and monitor.  The system will also have a long line public address system which the Operators Surveillance will be able to use to communicate with the public on the stations.

9          The positions of Help Telephone Operator were award free.  The positions were created in 1998 or 1999.  The terms and conditions of employment of these positions were initially covered by workplace agreements.  It is common ground that the position of Help Telephone Operator has never been “formally” classified.  The parties reached an agreement some time in the past that the positions would be paid at the REA Award level 6 and this is reflected in the job description form (JDF) for the Help Telephone Operator (Exhibit B).  It was also agreed with the Union that the positions be regulated by a registered industrial agreement.  The positions of Help Telephone Operator are presently covered by Public Transport Authority Railway Employees Enterprise Agreement 2004 AG 110 of 2004 ("the Agreement"), which was registered by the Commission 9 July 2004.  As set out in paragraph [1] of these reasons, clause 38.1 of the Agreement records that the PTA agreed upon registration of the Agreement that it would forthwith submit to review the classification of the position of Help Telephone Operator. 

10       When the Help Telephone Operator positions were created in 1998 or 1999, the only equipment available to the Help Telephone Operators was the emergency telephones located throughout the urban rail stations.  Every urban station platform has on it a passenger information module in which an emergency telephone unit is located.  Each unit consists of a dedicated computer unit, an emergency call button, a standard handset and a microphone and loudspeaker for hands free operation.  These emergency telephone modules are still in operation at all urban stations and will be integrated into the new CCTV monitoring system.

11       The Help Telephone Operator's duties were to communicate with members of the public who initiated an emergency call.  The Help Telephone Operator's role was to deal with requests by the public for help or assistance in a variety of circumstances including physical assault, vandalism, extortion and intimidation, train operations emergencies, medical emergencies, hazardous situations, fire and bomb threats (Exhibit K, page 5).  The emergency telephone system enables the operator to put the caller on hold and to contact assistance including the Transit Guards, fire, police and ambulance services.  The system enables the operator to continue to talk to the member of the public seeking assistance either by the handset or by using the speaker phone.  In the Emergency Telephone Operator's Manual (Exhibit K) the Help Telephone Operator was also required to ask questions about what the problem was and obtain information.  For example, if an assault was occurring, they were directed to ask the caller how many people are involved and for a description of the offenders.  The Help Telephone Operator was required to forward information in relation to descriptions of perpetrators, any injuries, the location of the assault to the response crews and to complete a call log and an incident report form.  The Emergency Telephone Operator's Manual made no mention of the use of visual surveillance equipment. 

12       The use of the CCTV equipment is reflected in the Help Telephone Operator JDF as follows:

"Role Of This Position

• Responds to incoming calls from emergency telephones throughout the Transperth Train Operations network in accordance with established procedures.
• Monitors CCTV system in accordance with established procedures.
• Assists with base radio communications.

Responsibilities Of This Position

Monitoring and Surveillance

• Responds, as per the Operating Manual, to incoming calls from emergency telephones throughout the Urban Network, the Base Radio and as required from the station Customer Assistance Line.
• Provides operational staff/emergency service authorities with relevant information to enable them resolve the reported security or hazardous situation.  Ensures all security /hazardous situations are handled through to completion.
• Monitors various alarms throughout the Division and ensures that an appropriate response is initiated in relation to specific events.
• Monitors the CCTV system for security or hazardous situations and alerts appropriate services and/or external Agencies as per established procedures.
• Reports all defective monitoring equipment to nominated service providers and other relevant parties.

Other

• Advises relevant operational staff of the particular requests for assistance from customers with special needs.
• Assists the Monitoring Control Supervisor, Ticketing Control Officer or the Transit Guard Support Coordinator with routine tasks as required.
• Provides administrative support such as data entry and routine clerical tasks to other areas within the Division as directed by the duty supervisor."

(Exhibit B)

13       Sometime in late 2004, expressions of interest were called for the Operator Surveillance positions.  Five out of the six Help Telephone Operators submitted expressions of interest to act in the Operator Surveillance roles.  It is clear from the evidence of Mr Gillam and other witnesses in these proceedings that these persons will act in those positions and no permanent appointments will be made until the decision in this matter is given. 

14       The job description for Operator Surveillance set out below applied from 9 August 2004, although the positions of Operator Surveillance did not commence until late October 2004.  The role and responsibilities of this position is set out in the Operator Surveillance JDF as follows:

"Role Of This Position

• Operates a comprehensive CCTV surveillance and recording system and alarm-driven incident management system within the CCTV Control System Central Monitoring Room to improve the safety and security of the public when travelling on trains and while on Public Transport Authority's (PTA's) property.
• Using the CCTV surveillance systems, Public Address system, Base Radio, Emergency Telephones and other communications media provided, assists Patrons, Transit Guards and other PTA personnel throughout the Transperth Network.
• Provides assistance and information to passengers in a timely, responsible and professional manner at all times, including emergency situations, in accordance with current operational policy and procedure.
• Deters crime at all PTA facilities covered by the scope of the CCTV surveillance by providing accurate and reliable visual identification and tracking of offenders, thus increasing probability of detection and prosecution.
• Assist in the contact and co-ordination of emergency services and personnel as required.

Responsibilities Of This Position

• Responds to Base Radio, incoming alarms and other communications media provided and evaluates developing situations, assisting and directing both passengers and Public Transport Authority personnel in the event of emergencies, system failures and operational needs, in accordance with procedures described in the CCTV Control System Operations Manual.
• Utilises the CCTV surveillance system to observe and assess each situation, and where appropriate, uses the Public Address system, Emergency Telephone and other communications media to give verbal directions or advice to those at the scene.
• Responds promptly to developing situations in order to minimise incidents or injuries.
• Contacts appropriate external service and/or PTA staff in the event of medical and operational emergencies.
• Ensures that appropriate video images of incidents are correctly recorded and that cameras are positioned to maximise visual images of the situation (including images identifying offenders, victims and others) in order to record evidence suitable for later prosecutions, inquiries and other follow-up activity.
• Observes, manually records and promptly responds to incidents in order to deter vandalism, anti-social behaviour and petty crime.
• Maintains ongoing surveillance of known trouble areas and vigilantly observes, records and responds effectively to breaches of relevant Western Australian legislation, predominantly the Public Transport Authority Act and Regulations, Government Railways Act and By-Laws, Rail Safety Act, and other criminal or anti-social activity in accordance with the Public Transport Authority's Code of Ethics and Code of Conduct.
• Responds to incoming equipment alarms that may indicate equipment or system faults or failures, determining the nature of the problem (within the limitations of remote location of the Central Monitoring Room), and where appropriate, raising Maintenance Requests and alerting relevant maintenance staff to take remedial action.
• Observes and reports on abnormalities, malfunctions or unusual events that may affect the safety and wellbeing of customers, the public or other employees, or the Public Transport Authority's infrastructure, equipment, systems or services.
• Assists the Monitoring Control Supervisor, Ticketing Control Officer or the Transit Guard Support Co-ordinator with routine tasks as requested.
• Advises operational staff of requests for assistance from all customers, especially those with special needs.
• Provides administrative support to the Division, such as data entry and routine clerical tasks as directed by the Monitoring Control Supervisor and or his/her nominated delegates.
• Carries out as directed, such other tasks and functions as are within the limits of the employee's skills, competence and training."

(Exhibit 1)

The Union's Evidence

15       Robert Christison, the Secretary of the Union, testified that it was the Union's understanding when they entered into the Agreement to submit for reclassification the positions of Help Telephone Operator that the positions would be reclassified to a level higher than their current level of REA level 6. 

16       Jason Greer testified that he has been employed by the PTA for about three years.  In 2004, he worked as a Help Telephone Operator.  At the time of giving evidence he was acting in the position of Operator Surveillance.  Prior to working as a Help Telephone Operator, Mr Greer was employed as a PTA Special Constable. 

17       Mr Greer has received training as an Operator Surveillance during which he completed a four or five day training course.  He was provided with a draft manual, which is the operation manual for the CCTV Control System Central Monitoring Room Operations Manual ("the draft manual").  During the training he read through the draft manual and operated the cameras.  He was shown how to operate the system and the various applications, including how to be able to playback recorded visual information.  When asked, after having competed the training could he see any substantial changes in the roles, responsibilities and functions, he said that at this stage, "No, that there are more … toys".  It is his opinion that but the core of the responsibility of the job is the same.  In particular, he testified that the equipment was easy to operate, that it is like operating a Windows program, whereby you click on an icon and follow the prompts through.  He said that the equipment was no more difficult to operate than the existing CCTV equipment.

18       In examination-in-chief, Mr Greer was asked to address whether the roles and responsibilities set out in the JDF of the Operator Surveillance were any different to the roles and responsibilities of a Help Telephone Operator.  Mr Greer testified that the roles are the same but the difference is that the CCTV "toys" enable the operators to be provided with a far greater visual access to the urban rail system.  Mr Greer conceded that the new technology is different.  He says, however, that in some ways the features of the new system are similar to the old technology.

19       Mr Greer was also asked to address whether there had been any changes in responsibility of the position of Help Telephone Operator to Operator Surveillance.  In addressing this issue he was asked to go through each of the points under the heading "Responsibilities of the Operator Surveillance" of the Operator Surveillance JDF.  He specifically addressed each one of the points and gave examples of the responsibilities referred to in the Operator Surveillance JDF that he had carried out whilst he worked as a Help Telephone Operator.

20       When asked how the Help Telephone Operators assisted patrons, Mr Greer said that if a train had broken down they had to inform the passengers what was going on and they also had to assist special needs passengers to organise transport and for people to meet them with ramps.  They also dealt with queries for lost property and organised the return of lost property and complaints about stuck multi-rider machines.  He also says that if people had been split up on trains, they liaised with PTA staff to ensure that they could be reunited. 

21       When asked about how they used the CCTV surveillance system when he worked as a Help Telephone Operator, Mr Greer said that he had four screens which showed some of the cameras at the Fremantle, Midland, Shenton Park, Gosnells and the Perth Railway Stations.  Via the webcam they also had access to fixed view cameras on the northern line stations.  Whilst the Help Telephone Operators were unable to control the cameras on the webcam system, they were able to log on and view events through those cameras. 

22       One of the roles of an Operator Surveillance is to deter crime at all PTA facilities by providing accurate visual identification and tracking of offenders, thus increasing probity of protection and prosecution.  Mr Greer was asked if he had that role as a Help Telephone Operator.  In answer he said that in relation to incidents involving criminal behaviour he would do the same things as a Help Telephone Operator as an Operator Surveillance.  For example, recently he had been reviewing the old CCTV cameras at the Perth Railway Station and he observed a person kicking their spouse so he called station staff who arrested the offender.  He says his actions were a proactive deterrent response as required by the Operator Surveillance JDF (Transcript page 23).

23       When Mr Greer was cross-examined, Mr Greer conceded that prior to receiving training as an Operator Surveillance he did not have any training about the requirements of privacy in operating the CCTV equipment.  He was then asked what he did about a recent incident at Bassendean where the new equipment is operational, when he observed two graffiti offenders.  He said that he was using the new cameras and he noticed someone walking on the perway at Bassendean who had a shirt over their head.  The person looked suspicious, so Mr Greer tracked him using the cameras.  He observed the person tagging the side of the railway station.  Using other cameras Mr Greer was able to see that there was another person doing the same thing so he called Delta 4 to attend the scene.  Whilst waiting for Delta 4 to attend, Mr Greer continued to track the offenders as they left the scene.  He then logged onto cameras at Success Hill and moved the cameras down the lines and located the offenders again.  He informed Delta 4 where the offenders were.  Delta 4 then intercepted the offenders.  Mr Greer testified that he had performed the same task with the old CCTV equipment at the Perth Railway Station but conceded that when he used the new equipment at Bassendean he had more tools available because he had more cameras to use.  Mr Greer said that if there was an assault occurring at a railway station where there are no cameras to observe the events, it is appropriate to keep the complainant on the telephone to keep an open channel so he can obtain more information by hearing what is going on until the Delta unit arrives.

24       When cross-examined, Mr Greer agreed that the Help Telephone Operator's manual does not contain a section on the CCTV Control System Code of Practice or Code of Conduct.  It was put to Mr Greer that the new system has alarms which will direct attention of the Operator Surveillance to an incident and enable the Operator Surveillance to use the cameras to ascertain what the incident is about and this was a proactive exercise which had not previously been available when using the old technology.  Mr Greer disagreed (Transcript pages 50 and 51).  However, he agreed that it is possible with the new system to pick up suspicious behaviour before it actually occurs and he agreed that once the public address system become operative, an Operator Surveillance will be able to advise the people on the railway platform that they had called the Transit Guards or police, which may be a means of deterring the continuation of an assault. 

25       When asked to put into his own words what is required of an Operator Surveillance, Mr Greer said that he was required to have a good knowledge of the system, knowledge of the resources available and the tools, to have good judgment and be able to detect incidents either before they happen or while they are happening and provide an accurate report to the relevant people of the events that occurred.  He also said that you have to have a good knowledge of criminal offences and be able to call the relevant personnel to deal with the incident and be aware of safety issues with PTA personnel.  He agreed that the new draft manual makes it clear that the use of cameras by each Operator Surveillance will be audited and they may be called upon to justify their interest in a particular member of the public.  When asked, what was the biggest technological difference between the equipment available to the Help Telephone Operator and to the Operator Surveillance, he said that will be the long line public address system and the addition of new alarms, such as vandal alarms.  He understood that his work will be supervised by a Shift Commander and a Supervisor but he did not know exactly what a Shift Commander was going to do as these positions have not yet been filled by the PTA.

26       Another Acting Operator Surveillance gave evidence on behalf of the Union.  His name is Leslie Michael Luis.  Mr Luis has been employed by the PTA and its predecessor, Westrail, since 1989.  He commenced his career as an Operation Assistant.  He was promoted to a Guard and then to the position of Passenger Service Assistant.  He later became a Customer Service Assistant, then a Senior Passenger Service Assistant on the Joondalup line.  He became a Help Telephone Operator in March 1999.  Mr Luis testified that since he has worked as a Help Telephone Operator the system has undergone continual improvements in terms of the equipment has been provided to the Help Telephone Operators.  Initially they were provided with monitors for Perth Railway Station with keyboards and cameras.  Later, the number of cameras was increased, so they could view the station at Shenton Park, Maylands and Gosnells.  Then the system was upgraded to webcam.  He said as a result of this upgrade their additional responsibilities increased, although the same decision making skills were required.  In particular he says as the means of having visual contact with the public increased that, in turn, increased their responsibilities (Transcript page 71). 

27       Mr Luis testified that he has made use of the emergency telephone as a Help Telephone Operator when an incident has been reported to him.  He said that they can dial the emergency telephone and use the speaker phone to try to defuse a situation in much the same way as a public address system.  He says that the fundamentals and the principles of using the old equipment are the same as the new CCTV equipment except that they have different tools to use.  He also testified that he has tracked offenders using the old CCTV equipment at Perth Railway Station.  He said that when you compare the old system in place at Perth Railway Station to the new system in place at the Bassendean station there is not much difference between the systems, that the principles of use are fundamentally similar except for the enhanced software and technology.  He said that it is just like switching from analogue to digital technology (Transcript page 74).

28       Mr Luis has also undergone training for a period of five days for the new position of Operator Surveillance.  He said that the role of Help Telephone Operator and Operator Surveillance are very similar except for the enhanced technology and tools that have been provided with the new system.  He said that he has not experienced any difficulty in using the new technology or the new software.  He said that the new technology was user friendly. 

29       When asked were there any changes in the way information is recorded using the new system, Mr Luis said that when he was a Help Telephone Operator he had to manually fill in forms and write reports.  He also said that he understands that all of the reports under the new system will be computer generated and he will have to acknowledge alarms on the computer.  When asked whether he was able to be proactive in trying to prevent graffiti and assaults as a Help Telephone Operator, he said that when he worked as a Help Telephone Operator, if he received a telephone call from the public while an offence was being committed, he either dispatched the staff or used the emergency telephone speaker system to deter the offender whilst making arrangements to dispatch crew to the location of the offence.  He said that as an Operator Surveillance, they will have the use of a public address system but will still be required to use the radio that he used as a Help Telephone Operator.  In his opinion, the job will be enhanced because he will have more video surveillance cameras to use and more screens to watch but he says the skills that he has used as a Help Telephone Operator are the same skills he will apply as an Operator Surveillance.

30       When cross-examined Mr Luis conceded that as a Help Telephone Operator the major part of his duties in any one day was to answer the telephone and to fill out a record of each telephone call received.  When asked if the number of telephone calls fell by 75% what would he be able to do, he said that he could use that time to monitor the CCTV screens. 

31       Mr Luis was cross-examined as to whether there were any arguments about Help Telephone Operators undertaking any duties that were not suitable for them to perform.  Mr Luis said that at no time did they refuse to carry out any duties that they were asked to do.  He said that every time they were asked to perform additional duties they asked to be reclassified to a level 7 or level 8.  The outcome of those discussions was that they were told that if they want to be reclassified they would have to discuss the matter with the Union and put forward a case when the enterprise bargaining agreement was being negotiated in early 2004. 

32       Mr Luis was also asked as to whether he was required to keep any records of information of any incidents that he saw on the CCTV screens when he was a Help Telephone Operator.  He said that there was no requirement to write reports except when an incident occurred.  In some matters he was required to prepare a witness statement for use in the prosecution of an offender. 

Respondent's Evidence

33       Cliff Gillam testified that the Help Telephone Operator positions were abolished by the PTA on 11 November 2004 as a consequence of the impact of the new technology on the operation of the rail system.  Following discussions about the new technology the PTA concluded that the Help Telephone Operator positions would "wither away" as a result of the requirement of the operation of the new surveillance technology.  Sometime in late June 2004 (prior to registration of the Agreement on 8 July 2004), he was requested by Pat Italiano to attend a meeting with Jim Clarke and Simon Mesaric.  At that meeting Mr Gillam became aware of the scope and extent of what was proposed for the new CCTV system.  He testified that one of the things that became immediately evident was that the Help Telephone Operator positions (which are effectively a reactive response to auditory signals) would be superseded by a requirement for operators to monitor video surveillance and actively intervene in incidents.  Mr Gillam says that the new technology requires a different focus and much higher level of exercise of discretionary judgment, a requirement for a much deeply versed understanding of emergency operating procedures, including various aspects of the Criminal Code.  He says that when they looked at this technology it became very clear to him that the existing Help Telephone Operator function would be effectively redundant by the time the new technology was "rolled out" and the operators were trained.  Consequently, the PTA took the view that they needed to design a new position which allowed them to undertake an analysis of the requirements of the new technology, how the technology would impose upon employees a wider range of skills and a greater exercise of discretionary judgment.  He arranged for the Operator Surveillance JDF to be drafted in mid-July 2004 and then to be evaluated by the Bi/Pers assessment tool, which is a job evaluation tool used extensively in the Western Australian public sector. 

34       Mr Gillam said that in determining the Operator Surveillance positions he noted that similar CCTV monitoring roles undertaken by the New South Wales and Queensland rail systems were salaried positions.  They also looked at similar salaried positions at Burswood Casino and at the City of Perth. 

35       As at 11 August 2004, the PTA felt it should provide advice to the employees that were to be affected by this decision and to inform them that the positions of Help Telephone Operator would be abolished and to advise the Union that would occur.  The Union and employees were given notice that a decision had been made.  They then entered into discussions and consultation about the nature of the organisational restructure and on 11 November 2004, three months after the initial advice was given that these positions would be abolished, the Help Telephone Operator positions were abolished. 

36       Mr Gillam testified there was no ability to reclassify the Help Telephone Operator positions. He says although the new system allowed the PTA to incorporate some aspects of the Help Telephone Operator job, the Help Telephone Operator function would cease to exist as a job in its own right.  He says the Operator Surveillance function is a much broader function with a higher level of responsibility and accountability. 

37       Mr Gillam testified that by acting in the Operator Surveillance positions the re-deployees will be able to acquire a considerable extra range of skills and begin to learn about the higher levels of responsibility, accountability and decision making that will be required of them in the position of Operator Surveillance.  Mr Gillam says that the new surveillance system is in its absolute infancy as at the end of December 2004, as there were very few stations connected to the new technology. 

38       Mr Gillam said that the classification exercise they undertook resulted in the Operator Surveillance position being placed at salaried level 1.9 which is at the top of the level 1 of the Federal Award.  He said that this has resulted in an increase in the base rate of pay of $24 a week, access to more generous long service leave provisions, increased access to public holidays in the sense that the Federal Award provides for access to two extra public holidays a year in lieu of service holidays and the capacity for annualisation of leave loading to base salary.  It is apparent from Mr Gillam's evidence that there will be no salary progression within the position of Operator Surveillance as they have been placed at the highest level of increment of a level 1 of the Federal Award. 

39       It was put to Mr Gillam that there did not appear to be any decision to carry out a reclassification of the position of Operator Surveillance in relation to the other security grades that operate within the REA Award.  In response, Mr Gillam said there was a consideration of the question of security grades but there were no relevant competencies that are established in the Training, Distribution and Storage Training package upon which the railways employees' classification system in the REA Award is fundamentally built on.  It is apparent from his evidence that this task was not attempted (Transcript page 114).  Mr Gillam expressed the opinion that there were no specific surveillance roles in the REA Award; in particular he says that Transit Guards, Customer Service Assistants, railcar drivers, overhead catenary maintenance or the level 3 surveillance officers that work at Claisebrook depot surveillance office, do not carry out similar work to the work of Operator Surveillance.  He said that the role of the depot surveillance officer is constrained in terms of expectation and relationship to the broad requirements of the system by comparison to what Operator Surveillance will be required to do (Transcript page 116).  When questioned further, he said that all these positions are jobs which require the incumbents to work on or about the system, they are not office based and they are not constrained to work in a single room.  When questioned about clause 2B – Structural Efficiency of the REA Award, in particular the commitment to provide employees with career opportunities through appropriate training to acquire additional skills, Mr Gillam said that career opportunities are generally available to PTA employees for both wages and salaried officers on the basis of selection on merit.  It is apparent from his evidence that he made it plain that wages employees can be promoted to salary positions and vice versa.

40       James Clarke is engaged by the PTA as a Contract Superintendent for the Central Monitoring Room and the associated CCTV Control System.  He is also engaged as the PTA's technical consultant in relation to information technology, communications and CCTV matters.  He has held that position for approximately for two and a half years. 

41       Mr Clarke prepared the following summary of a comparison of the existing and new operator functions. 

" CCTV CONTROL SYSTEM – JOB DIFFERENCES SUMMARY

Summary

To summarise, the new CCTV Control System provides the capability for PTA to be far more proactive in regards to passenger safety and security than with the current systems.

This additional capability brings with it a number of additional duties, responsibilities and potential liabilities that need to be carefully considered.

COMPARISION OF EXISTING AND NEW OPERATOR FUNCTIONS

A brief comparison of the operator's function with the current existing systems and the new CCTV Control System is as follows:

Current Systems:

-                     ET (Emergency Telephone) – telephone calls are received by the ET operator, who passes information on to relevant response authorities and records the incident.  Generally there is no vision available and the operator's role is largely reactive only, i.e. they rely entirely on the spoken word of the caller on the ET.

-                     Existing CCTV surveillance – limited views are available of some stations and operators can undertake passive scans of camera views.  The majority of CCTV surveillance is automatically recorded onto tape without operator intervention.  In the event of an incident, tapes are pulled and the historical footage is reviewed.  The existing system is not alarm driven and generally operators have no knowledge of an incident until it is over and is reported by other means.

-                     Even in cases when an ET caller reports an incident in progress, the operators generally do not have any live vision of the scene and can do little to change the outcome of the incident except record the details and report it to the relevant response agencies.

New CCTV Control System:

-                     This will be alarm/event driven, e.g. as soon as the ET button is pressed, the operator is alerted and cameras will zoom in on the ET caller.  While the operator is talking to the caller, the operator will have close up live views of the caller and can control the camera view and several other camera views around the station to view both the caller and the surrounding area and can zoom in on  offenders and follow an incident in progress.

-                     Operators will be the first line of response and will be the first to be alerted to many types of incidents by the various incoming alarms including equipment tamper and vandalism alarms.

-                     Many of the operator's initial response functions would be similar to that of Transit Guards except that they are not physically present at the scene.  They will have live vision of the incident occurring, they can talk to people at the scene, they can immediately alert their Supervisor or the Shift Commander who can direct them in the control of the incident.  Their prompt and responsive actions may determine the outcome of the incident, depending on their responses.

-                     The operator now has the ability to talk to people on the station over the PA system, e.g. in the case of alarms that alert the operator to acts of vandalism occurring, the operator can immediately tell the offenders to stop what they are doing.

-                     The operator can also assess a situation visually and could, for example, order the evacuation of a station via the PA, or otherwise direct the actions of the public at the station, under the direction of the relevant Supervisor.

-                     Operators are likely to be exposed to much more stressful situations as they now have live vision of the incident, they are communicating directly with those involved, and their duties will require them to zoom in on and follow the events occurring.  These images may be disturbing on occasions as it is likely that operators will witness serious assaults and possibly fatalities including suicides.

-                     Operators need to exercise great diligence and probity at all times in order that the use of the system is not compromised by improper or inappropriate use of the system.  Operators will need to strictly follow detailed operating procedures covering a wide range of activities.

-                     Operators will need to carry out significant clerical and administrative duties in the use of the computer-based alarm/incident management system, by logging incident details, checking system functionality, maintaining records and logs of activities and ensuring that procedural requirements are fulfilled."

(Exhibit J)

42       Mr Clarke testified that the PTA called for tenders for a new CCTV system in 2002.  A very lengthy tendering process with an extremely rigorous assessment and tender evaluation ensued.  Some of the preferred tenderers were invited to demonstrate their different technologies.  A decision was made in December 2003 to award the contract to Honeywell.  The contract was signed in April 2004.  Mr Clarke says that prior to April 2004 they did not fully comprehend what they would be able to achieve with the new CCTV system.

43       Mr Clarke says a trial of CCTV equipment, which consisted of a number of different camera technologies, had been installed in the central monitoring room which Help Telephone Operators had to use.  Prior to the implementation of the new technology there was a hodgepodge of disparate technologies which were implemented over a period of time for a number of operational reasons.  Some were directed at significant antisocial behaviour at certain railway stations, others were implemented as a result of policy decisions when new stations were opened.  He said that the existing CCTV equipment enabled limited views being available at some stations with passive scans of camera views at other stations. 

44       Mr Clarke testified that in the new CCTV control system, the pressing of a button on the station by a patron will generate an alarm, which will then create a sequence of events.  The cameras will automatically zoom to the position where the button has been pressed and alert will be raised on the computer workstation in the central monitoring room and a number of options will be available to the Operator Surveillance responding to that alarm.  Before the telephone has rung the alarm indications and visions will be available to the Operator Surveillance.  The alarms will appear on the workstation and there will be some preliminary sorting by priority but it will be up to the operator to look at those alarms and determine which particular alarm they intend to deal with and in what order of priority.  The tools provided by the technology to make those decisions are primarily visual.  The operator will be required to make an initial judgment as to whether or not an individual alarm is important, perhaps more important than something that they are currently dealing with.  They can choose to change the order they deal with incoming alarms to suit what they perceive as the actual operational requirements at the time. 

45       Mr Clarke said that the new system also alerts the Operator Surveillance to other issues as there are a number of other alarms such as equipment tamper and vandalism alarms.  Mr Clarke says the new technology has different things to do.  There are various new alarms which have not previously been available, such as the tamper alarms for cameras, vandalism, alarms for equipment failures, duress alarms for people working on the station, intruder entry alarms, connections from fire alarms, lift alarms and escalator alarms.  Some alarms such as the ticket vending machine alarms, which already exist, are part of a separate alarms system and not part of the new CCTV control system.  The ticket vending machines and the equipment that monitors those machines is a separate function and will not be carried out by the Operator Surveillance. 

46       The new system has a facility for auditing the use of the cameras.  This is necessary to make sure that the system is being used for its correct purpose.  Any new lack of probity in the use of the system can be tracked and audited both internally and externally on a regular basis to detect any inappropriate use of the system.  Mr Clarke said there are many technical facilities provided by this new system.  The system is easy to use and the camera provides extremely good quality of images with very high magnification.  Mr Clarke wrote the draft CCTV manual that is to be used for the new system.  In preparing the draft manual he carried out substantial research including researching the roles of operators of surveillance equipment at the Burswood Casino, the Main Roads Department and the City of Perth.  He also obtained the NSW Government CCTV Code of Practice and Code of Conduct. 

47       Mr Clarke says the main differences between the two roles are the extent and magnitude of the alarms that will be used in the new system which result in the required response to be twofold.  One will be an alarm or event driven function, where the operator's attention will be drawn to a specific event or an incident occurring by means generated by the various technical alarms.  The second is the ability for the Operator Surveillance to carry out meaningful proactive video surveillance of the system.  The cameras will be placed in positions at the stations whereby an operator will be able to conduct a virtual tour of the station.  They will be able to look at all aspects of the station, by walking up and down a station.  They will be able to look at what people are doing, look at what is happening on the station and carry out continuous surveillance duties of the stations and surrounding areas.  This, he says, is a key fundamental requirement of using the technology correctly.  

48       Mr Clarke says that the new CCTV control system will require operators to have response functions similar to that of transit guards.  Whilst they will not be physically present at the scene, they will have live vision of incidents as they occur and will interact with a Shift Commander in the room.  They will also be able to intervene in incidents using the public address system.  They will also be able to use the public address system to address safety issues such as telling someone to stop skateboarding on the station near the end of a platform.  Where necessary, they will be able to order an evacuation of a station using the public address system.  They will then be able to monitor the actions of the public as they leave the station, control the panic and direct people away from the scene.  The Operator Surveillance positions will be under the direction of a Shift Commander.  As a result of the increased visual coverage and technical abilities of the system Mr Clarke says that the operators are more likely to be involved in more stressful situations. 

49       Mr Clarke says that the Shift Commander will continue to interact with the operators in the event of an incident occurring and where necessary the Shift Commander will take control of the incident from a management point of view.  It is anticipated in the case of a very serious incident, such as a train derailment or a bomb attack that the control room would become the focus of additional personnel, such as emergency services staff, senior management from the PTA, police and others, which may include special investigation officers.  Mr Clarke distinguished the responsibilities between the Shift Commander and the monitoring control supervisor function.  He said that the Shift Commander will have responsibility in relation to incidents which are happening but they will have no direct administrative responsibilities in relation to the Operator Surveillance positions.

50       Mr Clarke says that a number of nuisance calls or vandalism calls are likely to decrease, because of visual tools that will be available to the Operator Surveillance and because of the public address system which will enable the Operator Surveillance to make announcements requiring people to desist from their behaviour.  Mr Clarke says that calls will drop in volume because malicious callers will become aware that they are being monitored and aware they could be given an infringement notice for what they are doing.  He also says the immediacy of the response should reduce the number of calls.

51       Mr Clarke also points out that it is also a requirement for the new computer based system for the Operator Surveillance to carry out a number of administrative and clerical duties such as logging instrument details directly into the computer, running reports that determine the nature of technical results and reports of the types of incidents that might occur at a particular locations. 

52       Mr Clarke was cross-examined about each one of the roles and responsibilities contained in the Help Telephone Operator JDF.  He was asked in relation to each of those roles and responsibilities whether those were the roles and responsibilities of the position of Operator Surveillance.  Mr Clarke conceded that each one of the descriptors described the duties of an Operator Surveillance.  Mr Clarke, however, said that whilst each of the Help Telephone Operators had the use of limited CCTV, he was not able to comment on how much surveillance they carried out with that equipment.

53       Pasquale Italiano, General Manager of Transperth Train Operations, testified that one of his roles is to oversee and implement all new initiatives in the Transperth rail operations system.  Mr Italiano said that it is anticipated that the new CCTV and the long line public address system will be complete and operational by the end of April 2005.  However, some of the cameras at Perth Station will not become operational until June 2005.  Those cameras relate to the smart rider ticketing project which will not be operational until that time.

54       Mr Italiano testified that when the role of the Help Telephone Operator came on stream in 1998/1999, it was envisaged that the job would be a response role to the help telephone.  He says that the old CCTV equipment that they had in the central monitor control room was interim equipment.  He strongly maintained that the requirement to use the old CCTV equipment was put into the Help Telephone Operator JDF, to enable the Help Telephone Operator to get a "feel of the technologies that were about" and it was not intended the equipment was to be part of the Help Telephone Operator's direct responsibilities.  Consequently, he says the requirement to use the equipment was not included in their manual.  He says that there were no instructions by him (Mr Italiano) to the Help Telephone Operators to use the CCTV equipment.  He also said that there was no direction to the Help Telephone Operators to respond to the CCTV images.  Mr Italiano said that they told the Help Telephone Operators when they installed the equipment that, "Here it is.  If you wish you may have a look at it, but if you don't wish to do so, then so be it."

55       Mr Italiano says that the use of the speaker help telephones by the Help Telephone Operators at the railway stations to speak to the members of the public was not as a result of instructions from management, it was something they had taken on, on their own initiative. 

56       When cross-examined about the Help Telephone Operator JDF, Mr Italiano said that it was his management prerogative to exercise his discretion not to direct the Help Telephone Operator to carry out the duties set out in the Help Telephone Operator JDF.  It was also put to Mr Italiano in cross-examination (Transcript page 158) that Mr Luis had given evidence that whilst watching the CCTV system he was able to use the telephone help system to attract the attention of a young person on a skateboard and tell that person to desist what they were doing, to sit down and behave themselves and they did.  Mr Italiano said that he must applaud Mr Luis for doing that as that was not part of his duties. 

57       In a written statement prepared for the proceedings in the Australian Industrial Relations Commission, which was tendered into evidence in this matter, Mr Italiano says:

 "The CMR is an integral part of the overall USIP project.  Dramatic changes are being made in staffing roles and numbers, the layout of the office and the nature of the security equipment installed in the area.  The CMR has been fitted out with custom build [sic] operator desks, video walls and a 'state of the art' system which provides the PTA with a genuine proactive capability in managing security concerns 'live' on the network in a manner that has not been possible to date.  This will result in improvements in public safety and surveillance activities, with the aim of reducing incidents of undetected assault, theft and vandalism on and around railway property.  This will be assisted by staff upgrading skills and taking on new tasks and responsibilities possible under the new surveillance technology.  For example, if cameras are not functioning the new level one positions are responsible for generating maintenance reports and monitoring outcomes.  Also, if PTA equipment is being vandalised, staff are alerted by alarms and 'live' vision which is intended to assist in the deterrence and detection of such acts.  PTA staff have identified a range of new tasks and functions which are now possible with the new technology and this extra capability is shown in documentation presented to unions showing differences in the jobs required under the old help telephone area compared to the new system.

OPERATIONAL REQUIREMENTS IN ESTABLISHING A TEAM OF SALARIED OFFICERS WHICH INCLUDE LEVEL ONE SURVEILLANCE OPERATORS

1. The CMR area/jobs changed in response to the USIP project and the subsequent introduction of new technology with a range of new functions which will enhance overall customer and employee safety and reduce the costs to government of administering and maintaining the urban rail system.  The new technology and upgraded skills in the CMR area enable staff to be proactive in managing security concerns 'live' on the network and to deal with a wider range of security issues across the metropolitan system.  This was not possible before.  Previously the functions in the CMR evolved around responding to a telephone call from a patron located on a station platform with the Help Telephone Operator adopting a reactive approach to incoming call.  The wider range of functions which can now be managed by the PTQA through the new system requires that we adopt a much more efficient approach to job design eg teamwork, time management, and scheduling various productive tasks across all shifts.

2. The PTA intends that the CMR area will run more efficiently and effectively under the new organisational structure announced to staff and unions in August of this year, which is based on an increased number of staff who are all salaried officers and who can work together as a team, particularly during emergencies.  The introduction of the technology, training and selection processes have begun to enable this objective to occur.  The new staffi [sic] structure is intended to include new Level Four Shift Commanders, existing Level Two Ticketing Control Officers and new Level One Surveillance Operators.  The Level One's in this structure are considered salaried roles, for reasons which include:

(i)                the need for them to carry out more administrative tasks previously not done or very limited eg maintenance records and forms, proactive processing of data and running reports; forward planning & teamwork;

(ii) flexibility in task allocation and staffing in area means that 'overflow' tasks can be taken on by ticketing officer or SO, if and when needed in an emergency situation; can 'act' and 'relieve' between roles without arguments about whether asked to undertake salaried tasks; and

(iii) surveillance operators having an indirect supervisory function in that surveillance includes monitoring platforms and other areas and it is reasonable to expect operators in specified and limited circumstances will be required to issue advice/instructions to wages staff to avoid imminent dangers, etc.

3. Restrictive work practices caused difficulties in the past as the area was staffed by a mixture of salaried and wages employees.  The old Help Telephone Operator positions were involved in demarcation difficulties, demands and restrictions which increased costs and hindered the efficient operation of the area.  Problems included the following:

a) Night Shift Practices

In the night shift (midnight to 5.00am) it is necessary to have staffing for surveillance, but no trains are operating during this time frame for 5 of the 7 nights with trains only operating to 2.00am on the other two nights.  There is therefore minimal help telephone work (calls) available during this period.  Management has attempted to increase their productivity by asking them to address and fill envelopes from the branches [sic] Revenue Protection area, but initially the HTO's argued about the volume of envelopes and limited this to 40 per shift rather than the 80 per shift asked of them.  In practice however, the work was rarely ever done and within months management referred the work back to the Revenue Protection area and staff spent time 'surfing' the Internet instead.

b) Special Needs Requirements

In Mid 2002 the HTO's initially refused to answer disability/special needs phone calls, after hours, and fill in a form that went with that call.  They argued that this was not a wages task.  After extensive debate and the involvement of the corporate People and Organisational Development Division, employees took on the duty as the PTA was able to demonstrate that it was a duty currently done by another wages employee group.

c) Staffing during Unplanned Absences

The CMR help telephone function is one of several key operational duties in Transperth Train Operations where every shift must be manned to enable all emergency calls to be responded to.  So, on July 8th 2002 after unexpectedly short staffing with one of the wages staff away sick, management tried to cover this vacancy with a Ticketing Control Officer from the same area, but a salaried employee, and this was opposed by ARTBIU, as was the alternative suggestion of using  contract personnel to fill unexpected short-term vacancies.  Management was hamstrung in regard to how it could cover this short term relief arrangements.  PTA was forced to source an alternate wages employee or pay overtime to existing incumbents, the outcome which the HTO's were obviously angling for on this occasion.  As it transpired an alternate wages employee was utilised.

d) In August 2003 management requested HTO's undertake the tasks of recording radio checks from transit guards and the processing of TVM data cards.  Management request was formulated under the generic job description duty of 'Carry out as directed, such other tasks and functions that are within the limits of the employee's skills, competence and training'.

The HTO's refuse to undertake these tasks on the basis that they were considered salaried tasks.  A meeting was subsequently held with representatives HTO's and the ARTBIU and the intent to progress the implementation of these tasks was not progressed any further by management."

(Exhibit M)

58       Mr Italiano says that they are hoping that the difficulties in the coordination between the Help Telephone Operator positions and other salaried positions in the central monitoring room will disappear with the creation of the Operator Surveillance position and that all positions will be able to work in a team situation.

59       Mr Italiano was also cross-examined about the roles and responsibilities of the Help Telephone Operator JDF in relation to the duties performed by the Operator Surveillance.  When asked whether each one of those roles and responsibilities were the responsibilities to be performed by the Operator Surveillance, Mr Italiano said yes. 

60       Judith Allen-Rana is a People Services Coordinator.  She had responsibility for the process which saw the positions of Help Telephone Operator abolished and the new positions of Operator Surveillance created pursuant to the provisions of the Public Sector Management Act 1994.  She, however, did not have any involvement in the preparation of the JDF for the Operator Surveillance or prepare the Bi/Pers assessment.  She testified that the Applicants for the Acting Operator Surveillance positions were required to undergo psychological testing.  She, however, conceded when cross-examined, that psychological testing is a requirement of national medical standards determined by the Rail Regulator.

61       Simon Mesaric is the Supervisor of the central monitoring room.  Consequently, he is the direct supervisor of each of the Acting Operators Surveillance.  At the time of giving evidence on 20 December 2004, an interim roster was in place whereby one Operator Surveillance was rostered to work for eight hours within a 24 hour period 7 days a week.  In January 2005, another interim roster will be put in place for 10 Operator Surveillance positions. 

62       Mr Mesaric testified that his current duties include the supervision of all of the Operators Surveillance and two Ticketing Control Officers.  He also supervises the car park attendants and the Video Surveillance Officer.  Mr Mesaric was asked to explain why in his view employees might think that the position of Help Telephone Operators is the same as the Operator Surveillance.  He said that the system has just been developed and only has one station fully operational and that as at the end of December 2004, the Operators Surveillance were attending to their Help Telephone Operator duties and to the incidents that occur at Bassendean where the new CCTV system has been fully implemented.  On 1 October 2004, Mr Mesaric sat down with one of the Help Telephone Operators and made a note of all the duties they carried out for one hour.  He said that as a result of that exercise he concluded the majority of their work was to answer the help telephone.  At the time he conducted the exercise, the new CCTV equipment at Bassendean was not operational. 

63       Mr Mesaric also says that the majority of tasks of the Operator Surveillance will dramatically differ from that of a Help Telephone Operator.  Mr Mesaric said that the Help Telephone Operators had several CCTV screens which showed images at outlying stations and at the Perth city station but there was no record kept of the use the Help Telephone Operator made of the screens.  They were not disciplined if they did not look at the screen.

64       In relation to the new position of Operator Surveillance, Mr Mesaric said that the Operator Surveillance will have full control of the situation having both the eyes of the transit guard and the phones to assist the transit guards with all avenues of the situation, whether it be an emergency or a situation.  They will be able to zoom in on any suspects and be able to view the area for other emergencies that may arise and also be able to track offenders if they left the scene.  By monitoring the cameras and positioning them appropriately they will be able to gather identification evidence of the offender.  Mr Mesaric says that each of the Operators Surveillance will be required to attend each of the urban stations to obtain a "feel of the area", to obtain a greater knowledge of the stations and layouts as the software is two dimensional and they will have problems visualising the area unless they are familiar with the layout of the stations.

65       In relation to the use of the Help Telephone Operator system Mr Mesaric said that about 60% of all calls which are currently received in the central monitoring room are nuisance related calls.  He says that new telephone units are being set up on the stations which will have better signage which will have the effect of educating people.  Consequently, he says the PTA envisages that the volume of those calls will drop dramatically. 

66       Mr Mesaric says that they have not tested the long line public address system as it has only just been accepted as a prototype. 

67       Mr Mesaric was cross-examined about the number of cameras that will operate across the entire system when the new CCTV system is fully operational.  There will be 83 stations and each station will have between five to 12 cameras.  The monitoring system will enable the Operator Surveillance to view 16 stations at any given moment.  It is anticipated that at least two Operators Surveillance will be working at any one time.  When the Mandurah line comes online there will be additional stations and additional cameras.  Mr Mesaric conceded that even when the new network is up and running the CCTV system will not be able to monitor two-thirds of the urban stations, so that if incidents occur at stations that are not being monitored there will be a reliance on the telephone system to alert the Operator Surveillance to a problem at a particular station.  Once that occurs the cameras will automatically switch to that person at the station. 

68       Mr Mesaric recently worked with Mr Luis when there was a situation involving a recent bomb threat at a station.  He agreed that Mr Luis used the help telephone to talk to people at the other end who were providing information and he (Mr Mesaric) contacted the appropriate authorities and that during that event they worked together as a team.  Mr Mesaric said that, however, until two Operators Surveillance and one Supervisor are rostered each shift there may be events that occur when there is only one person on a shift.  Mr Mesaric also said that in the event of an emergency a Ticketing Control Officer will be able to assist Operator Surveillance as the Ticketing Control Officer has the capacity and training to use the cameras. 

69       Peter Armstrong gave evidence on behalf of the Respondent.  He is currently an acting Ticketing Control Officer.  He was previously employed as a Help Telephone Operator for a period of six months in 2004.  When he gave his evidence on 22 December 2004, he said that he would be taking up the position of Acting Operator Surveillance in the following week.  He said that he had completed the first part of his training for the position of Operator Surveillance.  Mr Armstrong testified that he sees the roles as Operator Surveillance and a Help Telephone Operator as different.  However, Mr Armstrong did not give any specific evidence as to why he had reached this conclusion.  Mr Armstrong testified that there is an overlapping of jobs between a Ticketing Control Officer and Operator Surveillance positions.  He said that they share the base radio, answer the telephone during lunchbreaks and during toilet breaks they assume each others duties. 

Submissions

70       The Union challenges the decision made by the PTA to restructure its central monitoring room as part of its comprehensive upgrade of security systems through the Urban Security Initiatives Programme ("USIP") on the basis that they contend that the decision of the PTA to declare the position of Help Telephone Operators redundant is not a genuine redundancy.  They say what has become redundant is the old technology.  Whilst the Union concedes that the introduction of the new technology which delivers expanded live vision into a central monitoring room utilising upgraded software computer tools, will enable employees to be more proactive and reactive in managing security concerns across the metropolitan rail network, the skills, tasks and responsibilities used by the former Help Telephone Operators are, in substance, the same skills, tasks and responsibilities which will be required to be used by each of the Operators Surveillance.  In summary, the Union says that the employment positions are substantially one and the same and can be best described as an addition of work warranting reclassification.

71       The Union says that should the Commission find that the decision of the PTA to declare the positions of Help Telephone Operators redundant did not constitute a genuine redundancy, the PTA is required to reclassify the positions within the bounds of the Agreement which is underpinned by the classification structure contained in the REA award.  The Union says that by entering into the Agreement the PTA is barred by law from reclassifying the positions outside of the terms of the Agreement and the REA award.  In relation to this argument, the Union argues that it is an implied term of the Agreement that the employees would be reclassified within the bounds of the classification structures referred to in the Agreement.

72       The Union says the evidence of Mr Greer and Mr Luis establishes that the skills, tasks and responsibilities contained in the Operator Surveillance JDF, are the skills, tasks and responsibilities of the Help Telephone Operators.  Their evidence establishes that the only change to the work is that they have "new toys" to use to perform their duties.

73       Mr Ferguson, on behalf of the Union, pointed out that given that Mr Mesaric's evidence establishes that from April 2005, the central monitoring room will have the capacity to only view 16 urban railway stations at any one time, that at any one point in time only one-third of the stations could be monitored, the other two-thirds of the stations will solely rely upon the telephone system.  It is contended on behalf of the Union that the PTA speculates that the use of the telephone by the public will decline in time.  The Union says that may occur but it may not.

74       Mr Ferguson pointed out that the evidence given by Mr Mesaric is contrary to the evidence given by Mr Italiano in relation to the use of the CCTV equipment by the Help Telephone Operators.  Mr Italiano said that the CCTV screens were only placed in the central monitoring room for the Help Telephone Operators to use if they wished.  This was contrary to the evidence of Mr Mesaric, whose evidence was that the Help Telephone Operators were required to carry out instructions from transit guards to assist transit guards by monitoring the situation by using the technology that was available to them (Transcript page 199).

75       The Union referred to clause 2B of the REA Award – Structural Efficiency.  They contend that insofar as the Structural Efficiency principle requires the parties to provide employees with career opportunities, appropriate training and the ability to acquire additional skills, if these jobs are taken out of the wage structure into the salary officers' structure the career opportunities that exist for other employees who work in security areas such as Transit Guards and customer service officials will be diminished.  The evidence given by Mr Greer and Mr Luis establishes that they had been able to progress through wages grades.  It is also pointed out that Transit Guards that are at REA level 5 carry out some clerical and administrative tasks, in that they are required to write up reports and they receive training in the gathering of evidence and the compilation of court briefs and they have to write tickets and infringement notices (Exhibit 4).

76       Further, it is contended on behalf of the Union that if Principle 6 – Work Value Changes – of the State Wage Principles is applied, that prima facie the work of the operators would warrant the creation of a new classification or the upgrading to higher classification to level 7 REA Award, which would bring them in line with the Transit Guard Team Leaders, who are level 7 – wages employees who play a co-ordinating role.  The Transit Guard Team Leaders write reports and supervise Transit Guards.  The Union also says that the administrative skills performed by the Transit Guard Team Leaders are similar to what is required of an Operator Surveillance (Exhibit 5).  It is argued by the Union that taking the positions out of the wages system will have an effect of seeing these people left behind as their relativities have been changed and it will disturb the internal relativities which existed within the wages structure prior to the abolition of the Help Telephone Operator positions.

77       The Union says that Mr Italiano's evidence in relation to management issues raised in the past in respect of the work performed by the Help Telephone Operators is nothing more than employees angling for a bit of overtime, and if this is the only reason put forward as to why they should be salaried officers, the Union says that this should not be a relevant consideration in declaring the positions redundant.

78       The Union seeks a declaration that the Operators Surveillance are employees of the PTA working in the Western Australian Government Railways and are positions which are capable of inclusion in the REA award.  The Union does not dispute that the process which was applied in making the Help Telephone Operators positions redundant was not properly carried out in accordance with the Public Sector Management Act and the Public Sector Management (Redeployment and Redundancy) Regulations 1994. 

79       The PTA says that the position of Operator Surveillance is a different job from that of Help Telephone Operator.  They say the argument is not about the nature of the work, not about the type of work or whether or not one union has coverage as opposed to another union.  The PTA says it is about the job itself, whether it is the same job that was abolished.  The PTA says that whether a job is a different job does not turn on whether a job is radically different.  The PTA says it has the right to restructure by abolishing the position of Help Telephone Operator and to create the position of Operator Surveillance, pursuant to the doctrine of management prerogative.  It is recognised, however, that the employer's right to organise its business in a way which it considers is the most efficient is subject to that right being exercised in a manner which could not be described as harsh, unjust or unreasonable.  The PTA says this argument goes to the Commission's discretion to refuse the orders sought by the Union, even if the Commission comes to the view that the jobs are the same. 

80       The PTA says that in determining the question whether the job of Operator Surveillance is different to that of Help Telephone Operator, the Commission should have regard to the fact that they are different jobs although there are similarities in some areas of work.  They say that the Commission should have regard to the fact that a job is made up of a complex mixture of things, including the knowledge required, skills, responsibilities, tasks done, the selection criteria, work environment, pay rates, the organisational structure and reporting relationships.  The PTA say that these are not the only matters that may determine that one job is different to another. 

81       The PTA says that there are different skills required to operate the new CCTV equipment, the software is different and the operators will need to have different skills to use the software, as emergency incidents will require quick responses. 

82       In relation to the argument as to why the job should be regarded as a salaried job rather than a wages job, the PTA says that when one has regard to similar roles in the City of Perth and the New South Wales and Queensland state rail operators, the Commission should have regard to the fact that those positions are salaried.  Further, they say the classification definitions in clause 45 of the REA Award refer to a metal trades competency based classification structure.  In particular, they contend that the Operator Surveillance would not fit within any of the classification descriptors in clause 45.  They also say that the work of the Operator Surveillance is office based, whereas none of the wages employees work at totally office based locations.  Other wages employees work near or along a railway line and they use trade skills or use tools on the maintenance of the equipment or the railway line. 

83       The PTA says that the work of the Operator Surveillance will entail more administrative work than that required by the Help Telephone Operators.  The PTA also says that the Commission should have regard to the history of how the Help Telephone Operator rates were set.  The PTA made a submission from the bar table that initially the Help Telephone Operators' rates were derived from workplace agreement rates, which were set at midrange of a level 1 officer and were advertised as salary level 1 positions.  The PTA, however, concedes that the Help Telephone Operator JDF makes it clear the positions were later set at level 6 - REA.  Further REA level 6 was the basis on which the wages had been negotiated with the Union when negotiating the Agreement.  The PTA submits that the Help Telephone Operator job had been categorised as a wages job in error.  No evidence, however, was adduced to support this contention.  They say that the Transport and Distribution Package, which is a profile used for classifying wages positions could not be used to assess the Operator Surveillance positions.  They point out that the applicants for the position of Operator Surveillance have had to undergo psychological tests to ascertain their suitability for the positions which was not a requirement of the Help Telephone Operators.

84       The PTA says that the responsibilities of the two positions are different in that the Operator Surveillance is required to be proactive, to actively intervene in situations and to pre-empt incidents.  Unlike Help Telephone Operators they will not sit passively waiting for the telephone to ring or passively watch a monitor.  They will be required to initiate tasks to go on "tours of duty" and be involved in equipment maintenance tasks.  When viewing members of the public their work will be audited. 

85       The PTA says that the consequence of the Union's argument is that if the complexity of the job and the frequency of duties have increased which warrant reclassification is acceptable, then the conclusion that must be reached is that the job is not the same.  Further, the PTA contends that an employee cannot claim a retrospective entitlement to reclassification in respect of work value that has not yet occurred. 

86       The PTA contends in reply to the argument that the PTA has not complied with clause 38 of the Agreement that it has complied with clause 6A of the REA Award – Introduction of Change.  They have also complied with the public sector legislative procedures.

87       The PTA says the creation of the new positions will provide flexibility, effectiveness, multi-skilling, teamwork and a reduction in demarcation disputes and this is consistent with s 6(af), (ag), (c) and s 26(1)(c) and (d)(vi) of the Act.

88       The PTA says that if the Union is successful the employees who are affected by this decision will have their pay reduced.  The PTA's contention is based on the assumption that the positions will not be classified beyond level 6 – REA.

89       The PTA says that it cannot be disputed that there will be an immediate reduction of 50% of telephone calls because there will be 2 operators on duty not one.

90       It is submitted on behalf of the PTA that the Help Telephone Operator:

(a) did not have the ability to zoom in and take a snapshot of offenders;

(b) did not respond to a wide range of alarms;

(c) did not conduct "tours of duty";

(d) did not conduct surveillance of school children or places within the urban rail network that are targets for vandalism or graffiti;

(e) did not write reports on what they had observed on the CCTV system;

(f) did not report to a Shift Commander; and

(g) were not required to submit psychological testing.

91       The PTA points out that the Help Telephone Operator rates of pay were set relative to a C10 tradesperson whereas the Operator Surveillance rates of pay have been set using the Bi/Pers measurement applicable to salaried officers.

92       The PTA contends that the "job" is what is directed by the JDF and what the general manager requires the incumbents of the job to do.  The job does not comprise duties which the employees have assumed and which are not authorised.

Conclusion

93       Having heard and considered all of the evidence and the submissions carefully, in my opinion the decision by the PTA to abolish the positions of Help Telephone Operator and create the positions of Operator Surveillance cannot at law or in fact be properly characterised as a redundancy or a "genuine" redundancy.  Whilst the Public Sector Management (Redeployment and Redundancy) Regulations do not define the meaning of redeployment or redundant, s 40(1) of the Minimum Conditions of Employment Act 1993 does.  Section 40(1) defines "redundant" to mean "no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person".  In Amalgamated Metal Workers and Shipwrights Union of Western Australia v Grant Electrical Industrial Pty Ltd (1989) 69 WAIG 1019 at 1022, the Full Bench unanimously led in relation to the definition of redundancy in the Metal Trades (General) Award that the core of redundancy is that:

"(1) The employer must have made a definite decision that he no longer wishes the job to be done by anyone.

(2) This must not be due to the ordinary and customary turnover of labour.  For example, a replacement of an employee with one set of skills by another with a different set of skills was held not to be a redundancy (see AMWSU v Fran Marine Services (WA) Pty Ltd 68 WAIG 894 pre George C)."

94       It is common ground that the question for determination by this Commission in this matter is whether the "job" of Help Telephone Operator is different to Operator Surveillance.  In determining that question, the Commission must first determine in the circumstances what constitutes the "job".  To do so the Commission must consider what are the tasks, roles and responsibilities of the positions.

95       I do not accept Mr Italiano's evidence that the JDF for the position of the Help Telephone Operator did not set out the tasks, roles and responsibilities of the position.  In particular, I do not accept his evidence that the Help Telephone Operator was not required to use or monitor the CCTV system that was in place.  His evidence on this point is inconsistent with the evidence given by Mr Clarke, Mr Mesaric and the evidence given by Mr Greer and Mr Luis.  It was not put to Mr Greer or Mr Luis when they were cross-examined that they had not been directed to use the old CCTV equipment when performing their duties.  It is inconceivable that any public sector organisation would put in place a JDF that requires monitoring of CCTV equipment and provide their employees with that equipment and not require them to use it.

96       In assessing whether a "job" is a different "job", the Commission must be mindful of the fact that in the 21st century most jobs do not remain static.  Changes in the way people work are often constant, particularly where jobs involve the use of technology.  In this matter the technology available to the Help Telephone Operators to deal with the security of passengers and customer assistance has increased over time.  When the positions were first created, the only equipment available to Help Telephone Operators to perform their functions was the emergency telephone system.  Over time visual information became available with the introduction of a number of limited cameras.  Later more cameras providing limited visual information were introduced.  The Help Telephone Operator's manual does not deal with the use of cameras, yet the Help Telephone Operator's manual made it clear that the duties of the Help Telephone Operator were to:

"... cater for most requests for help or assistance in a variety of circumstances including:

• Physical assault
• Vandalism
• Extortion and intimidation
• Train operation emergencies
• Medical emergencies
• Hazardous situations
• Fire
• Bomb threats"

(Exhibit K page 5)

97       These duties remain unchanged in the sense that these are duties the Operator Surveillance will be required to perform.  The technology that is available to them to perform those duties has, however, changed.  A change in the sophistication of equipment available to an employee does not necessarily mean that the job performed by an employee is no longer required. 

98       Having conducted the inspections and heard all of the evidence in this matter it is clear to me that the Operator Surveillance will be required to perform additional duties:

(a) in relation to attending to monitoring of alarms; and

(b) in the sense that the volume and intensity of visual monitoring will increase thus requiring a greater exercise of judgement.

99       Notwithstanding these additional duties, I do not accept that the job required of a Help Telephone Operator has ceased to exist.  The duties of the Help Telephone Operator set out in their JDF and paragraph [96] of these reasons are still required to be carried out.  There is no convincing evidence before me that the administrative tasks that will be required to be carried out to operate the new system constitute any significant change to the duties to be performed.  The name of the job has changed.  I do not accept the provision of a long line public address system will change the nature of the duties and responsibilities of the job.  Whilst I accept that the operators of the surveillance equipment will be able to be more proactive in preventing offences and incidents affecting the safety of the public that again does not mean the job is different.

100    Whilst the distinction is fine, there is a difference at law between reclassification of work including the creation of a new classification of work, which is fundamentally entrenched in award regulation through the operation of Principle 6 of the Statement of Principles – June 2004 (2004) 84 WAIG 1521 at 1547 and declaring a job redundant and creating an new job.  Principle 6 recognises that a job can be reclassified or a new classification created where the nature of the work constitutes a significant net addition to the work, skill and responsibility required.  Whilst I do not express a definitive opinion whether this test has been met, it is important to observe that Principle 6 contemplates that when a reclassification occurs or a new classification is created the nature of a job may change.  However, Principle 6 does not contemplate that where the criteria set out in Principle 6 is met that the job ceases to exist and a new job is created.

101    For an employer's decision to be a decision that the job will not be done by anyone, the substantial duties, roles and responsibilities of the job must not be required to be done in the employer's organisation.  In this matter the duties, roles and responsibilities of the Help Telephone Operator have been incorporated into the position of Operator Surveillance.  There are now additional duties, roles and responsibilities, but the work essentially remains the same.  In particular the duty to respond to emergency calls and requests for help from the public is a core duty.  Whether that assistance is rendered in a reactive or proactive way is immaterial to the issue whether the job is or is not still required to be carried out.

102    Whilst I accept that there is nothing prohibiting the establishment of career paths in organisations which anticipate employees move from one award structure to another, the Union's argument that the work of the Operator Surveillance positions should be measured against other REA security positions is an issue which will be relevant when undertaking the exercise of reclassifying the Help Telephone Operator positions pursuant to the terms of clause 38.1 of the Agreement.

103    Clearly the nature of the work of the Help Telephone Operator over time has changed.  Whilst I am not called upon in these proceedings to assess the extent of that change in relation to the application of the criteria in Principle 6, it is apparent that the title of the job, Help Telephone Operator, may no longer be appropriate.

104    I do not accept the contention that because surveillance positions with other rail operatives, the City of Perth and Burswood are salaried, it follows that these positions should be salaried. No evidence has been adduced as to the history of award or industrial agreement regulation of those positions or in relation to the structure of those organisations, or the duties, roles and responsibilities of those positions.

105    Further, I do not accept the contention that the Operator Surveillance position cannot be reclassified or a new classification created within the REA Award.  The evidence establishes that the PTA did not attempt to undertake this exercise despite their requirement to do so pursuant to clause 38.1 of the Agreement.

106    As to the matters raised by Mr Italiano in the statement he prepared for the proceedings in the Australian Industrial Relations Commission relating to past disputes about the performance of duties by the Help Telephone Operators, these issues are not relevant to determining the appropriate classification of a job.  If these issues were relied upon in making the decision to make the Help Telephone Operator positions redundant the decision would be open to challenge on that ground.  The issues raise consideration of the duties contained within the Help Telephone Operator JDF.  If those duties were contemplated by the JDF the PTA could have dealt with these issues as disciplinary matters.

107    For the reasons set out above I will make a declaration in the terms sought by the Union in paragraph [1](6)(a), (b) and (c) of these reasons for decision.

108    I do not find it necessary to consider the Union's argument that it is an implied term of the Agreement that the position of Help Telephone Operator would be reclassified within the classification structure of the Agreement as it is clear from my reasons for decision that the job as it now exists in the Operator Surveillance JDF should be submitted for reclassification as required by clause 38.1 of the Agreement.

109    I do not intend to make an order in relation to APPLA 1068 of 2004 until the PTA have completed the reclassification process.