Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd
[2023] FWC 3473
•22 DECEMBER 2023
| [2023] FWC 3473 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Federated Union of Locomotive Employees
v
Aurizon Operations Ltd
(C2023/7977)
| DEPUTY PRESIDENT LAKE | BRISBANE, 22 DECEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES – reasonable request to work on public holiday – reasonable notice provided – refusal of request reasonable – dispute determined.
Background
On 19 December 2023, the Australian Federated Union of Locomotive Employees (the AFULE) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act).
Mr Matthew Elliot and Mr Kyren Welsh (the affected employees) are train drivers represented by the AFULE. The dispute is to determine whether the affected employees are required to work during the Christmas public holiday roster period.
The AFULE’s main contention is that the affected employees are entitled to be absent on the Christmas roster period under s.114(1) of the Act and that request by the employer was not reasonable under s.114(3)(a) of the Act. Therefore, this was a breach of the NES precedence clause in 4.2 of the Aurizon Coal Enterprise Agreement 2022 (the Agreement). Aurizon have stated that their request was reasonable, and the affected employees did not provide a refusal that was reasonable under s.114(3)(b) of the Act. Therefore, the affected employees are required to work over this period.
The parties attempted to resolve the dispute through the process provided in clause 8 of the Aurizon Coal Enterprise Agreement 2022 (the Agreement). This was unsuccessful. Step 3 of clause 8 states the following:
“The Fair Work Commission shall first attempt to resolve the dispute through conciliation. Where the conciliation does not resolve the dispute, the matter may be determined by arbitration. Where the dispute is subject to arbitration, the decision is binding.”
Directions were issued by Deputy President Dobson and the matter was then allocated to me for determination. I listed a conference on 21 December 2023 to resolve the dispute through conciliation. The parties wished for the matters to be determined on the papers.
Was Aurizon’s request for the affected employees to work on Christmas Day reasonable?
Clause 84.1 of the Agreement provide that Christmas Day and Boxing Day are applicable public holidays and Clause 4.2 of the Agreement is a standard NES precedence clause which allows the Agreement to be read and interpreted in conjunction with the NES
Section 114 of the Act provides the relevant NES clause in contention:
“114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holiday
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request is reasonable, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee's personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request--the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.”
In determining whether a request, or a refusal of a request, is reasonable, the following factors have been considered in determining whether the request by Aurizon was reasonable is to be assessed objectively per s.114 of the Act.[1] Each of these factors and the weight to be given to each will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others, in others there will be a balancing exercise between factors.[2]
Has a request been made?
Before determining whether the request is reasonable, and the employee’s refusal is unreasonable, it must be demonstrated that Aurizon issued a request. In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the Full Court determined the meaning of “request”:
“[5] In this Court’s view, a “request” within the meaning of s 114(2), connotes its ordinary meaning, an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday.”
The Full Court stated that making a “request” in the ordinary sense provides an opportunity for refusal.
“[37] The use of the word “request” indicates that there is a choice and it validates it. This interpretation is consistent with the nature of other protections under the NES. Such protections only achieve their effect if they are known to exist by employees. A request impliedly signals to an employee that he or she has a right to take a paid public holiday and to refuse a request. As mandated under ss 124 and 125 of the FW Act, employers are required to provide employees with an explanatory statement as to the nature of employees’ protections under the NES. Making a “request” in the ordinary sense provides an opportunity for refusal.”[3]
The employee can turn down a request not to work on the public holiday. However, it does not preclude the employer from refusing the request if it is not reasonable. (emphasis added)
Aurizon have made the request on 9 November 2023 through a letter provided by Catherine Whipps (Regional Operations Manager) to all Callemondah Operations Employees giving the employees an opportunity to explain why they do not wish to work on the public holidays through a provisional roster.
As it was a provisional roster, the employees were still given the choice to opt out of working the public holiday had had the opportunity to refuse the request. The affected employees were not required to work on the public holiday until their reasons to refuse the request had been considered.
There is no inconsistency with Aurizon’s process with the recent decision with the Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51.
The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee (s.114(4)(a))
Aurizon provided a Witness Statement from Even Greenaway who is the Operations Superintendent at the Callemondah Depot. Mr Greenaway notes the following:
(a)The Depot operates 24 hours a day, 365 days a year to ensure it can safely meet the logistical demands of its customers across the Blackwater and Moura rail corridors. There are 48 drivers employed by Aurizon to support four customers in the Moura corridor. The only time that the operations cease is planned network closures, or customers have closure periods.
(b)There are significant financial repercussions if Aurizon fails to deliver a service for its customers, and there are difficulties in delaying the departure of trains at a later timeframe as there are other areas of operations in the supply chain that are affected such as hauling companies.
(c)Customers generally do not have access to on-demand hauling services which will delays, loss of revenue, and increase fatigue on the train drivers in dealing with these delays.
The nature of employment is transporting coal which affects the other areas of the supply chain where it cannot be stopped at any given time unless operations cease because of factors outside Aurizon’s control. The nature of the employer’s workplace and the nature of the work performed by the affected train drivers mean that they are expected to work on public holidays in order for Aurizon to continue its operations.
The employee's personal circumstances, including family responsibilities (s.114(4)(b))
Mr Ellacott’s email in response to the Respondent’s request stated as follows:
“I would like to request to be rostered off on Christmas Day and Boxing Day public holidays under the new fair work agreement ruling of rights not to work on public holidays, due to these days being important family and religious days for myself and family. I believe this is fair and reasonable notice”.
Mr Welsh’s response stated:
“…please make arrangements to have me rostered off duty on Xmas day the 25th of December 2023. As a Catholic Xmas is very important day for both myself and my family.”
Aurizon submits these responses were not substantiated via evidence and were mere assertions. While the Respondent submitted the responses could be accepted, it is likely that all employees could point to similar reasons for a preference not to work on the public holidays. Therefore, the Respondent submitted that the employees’ responses do not sufficiently demonstrate personal circumstances compared to other employees who may have more compelling reasons for a preference not to work during the Christmas period.
There is no strict requirement in form or particulars of stating the reasons for not wanting to work on a public holiday. An employee’s personal circumstances of why they wish to not work a public holiday will need to be balanced with the operational requirements of the business.
As there is not enough staff to operate the trains required if the affected employees are not rostered on, Aurizon are required to determine the personal circumstances of employees who wish to take the public holiday. Aurizon have identified that the affected employees did not have substantive answers which would cause significant inconvenience from working during the Christmas public holiday.
Whether the employee could reasonably expect that the employer might request work on the public holiday (s.114(4)(c))/ The type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork) (s.114(4)(e))
The affected employees are engaged on shiftwork and are allocated work through a roster. Given that Aurizon operates continually, it is expected that the affected employees may be rostered on a public holiday. The Applicant did not dispute the Respondent’s submissions in this regard.
Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday (s.114(4)(d))
Clause 84.5 of the Agreement provides that the affected employees will be paid at their Ordinary Hours, plus 150% of the Base Rate of Pay for the hours actually worked plus any applicable shift loading or weekend work. I am satisfied that the employees are receiving compensation that reflects an expectation of work on the public holidays and supports Aurizon’s request for the affected employees to work over the Christmas period.
The amount of notice in advance of the public holiday given by the employer when making the request (s.114(4)(f))
Aurizon submitted that the relevant master roster was made available to the employees in July 2023 and the affected employees would be aware of the likelihood of work on Christmas Day or Boxing Day.
A provisional roster was issued to the employees on 9 November 2023. It was at this time the employees were explicitly informed of their right to refuse the request on reasonable grounds. The employees were then provided with a response to their refusal by 30 November 2023. Aurizon provided the employees with six weeks’ notice, and the affected employees had an earlier opportunity to request Aurizon for the Christmas period off when the provisional roster was released.
Aurizon provided the employees with sufficient notice in advance of the public holidays when making the requests.
In relation to the refusal of a request--the amount of notice in advance of the public holiday given by the employee when refusing the request (s.114(f)(g))
Mr Ellacott sent an email to Aurizon late October and Mr Welsh sent an email to Aurizon around November of 2023 in giving notice of their refusals in advance of the public holidays.
Any other relevant matter (s.114(4)(h))
Aurizon raised that consideration should be placed on “resentment and perceptions of unfair treatment amongst the workforce” if the employees were relieved of their obligation to work on the public holidays. The Respondent stated that the success of its operations depends upon a “social ‘compact’ within the workforce that all members of the team will accept their fair share of the unsociable shifts”.
In layperson’s terms, Aurizon has asked the Commission regarding its consideration of fairness with other employees in how they administer their rosters. I would have accepted the notion if it was demonstrated that the affected employees were not previously rostered on a public holiday, or the rostering system demonstrates how the employees are allocated on a public holiday.
Are the affected employees required to work over the Christmas/Boxing Day public holiday?
Having considered all the factors outlined in s.114(4), the operational requirements of Aurizon outweigh the employees request not to work during the Christmas period. Aurizon have provided sufficient notice that the affected employees may be required to work during the Christmas period and were given an opportunity to respond. Aurizon had considered the affected employee’s response. However, the response was not sufficient to be exempt from the operational requirements of the business. Aurizon’s refusal of the affected employees’ request was reasonable.
Furthermore, the affected employees will be paid penalty rates in compensation of working during this period. Aurizon have noted in their material that they would consider the affected employees annual leave requests should they wish to take time off at an alternative time.
As a result, I have determined the following:
Aurizon have provided reasonable notice regarding Mr Ellacott and Mr Kyren’s requirement to work during the Christmas/Boxing Day period.
Aurizon have reasonable grounds to refuse Mr Ellacott and Mr Kyren’s request based on operational grounds when weighing up their reasons of refusal.
Mr Ellacott and Mr Kyren are required to work during their rostered period on the public holiday.
I Order accordingly.
DEPUTY PRESIDENT
[1] Clark v Ventura Transit Pty Ltd [2018] FCCA 468
[2] Explanatory Memorandum to the Fair Work Bill 2008 (Cth), 75 [452] – [454].
[3] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
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