Commission refuses to intervene in rostering dispute

Commission refuses to intervene in rostering dispute
By Jim Wilson on 20 December 2016 The NSW Industrial Relations Commission has upheld the principles of managerial discretion and authority and refused to intervene in a rostering dispute.

In following an earlier decision, the commission ruled that: “the way in which issues of this nature are assessed… involving as they do potential intervention in the employer’s operation and management of its business, requires the commission not to assume the role of the employer.” 


The employer – Riverina Water County Council – is a special purpose council set up to provide water-related location, treatment, storage, transport and delivery services to 70,000 people.

There were several water treatment operators rostered in an on-call, seven days a week, system that ran outside of normal working hours. 

For six of the days there was one employee on call. However, on the hand-over day, Monday, there were two operators on call as the council required two on-call operators to carry out a smooth handover. 

Management decided in 2013, after consultations, to change the pay cycle and rostering period from a Wednesday-Tuesday week to a Monday-Sunday week. That change would accommodate a new accounting system and allow time for correcting any errors prior to payment.

Two problems

However, there were two problems – public holidays and penalty rates.

Where an employee was on call during a public holiday then an additional day’s leave would be granted to that employee under clause 26(v) of the Riverina Water Council Enterprise Award 2013.

There are several public holidays that fall on a Monday. And the two handover employees were also both eligible for penalty rates each time a public holiday fell on a Monday.

Council sought to contain public holiday costs by rostering so that there would be a changeover on either the Sunday before, or the Tuesday after, a public holiday Monday. That meant there would only be one employee on call. It also meant one operator would work a six-day week and another would work an eight-day week. 

A dispute then arose as the employees wanted to retain the benefits (extra leave and penalty rates) of working a public holiday while the council sought to contain costs. The employees were represented by the NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union.

Management sought to resolve the dispute by offering to roster each operator so that, sooner or later, each employee would be on call on a public holiday (although this would take five or six years to go through a complete cycle). 

Held by the commission

It was noted by the commission that there was no clause in the award limiting the council’s discretion as to the on-call duration. Meanwhile, clause 4 of the award said that the union- and employer-agreed objectives of the award were, among other things, to reduce operating and maintenance costs. 

Given a lack of limitation on the council’s discretion, the ‘objects’ clause of clause 4 (the consultations),  the offer to fairly roster each employee on a public holiday and, most importantly, the principle that the commission should not assume the role of the employer, the commission dismissed the union’s application.

New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Riverina Water County Council [2016] NSWIRComm 1039 (31 October 2016).


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