Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd T/A Aurizon Operations Ltd
[2024] FWC 2662
•25 SEPTEMBER 2024
[2024] FWC 2662
The attached document replaces the document previously issued with the above code on 25 September 2024 to amend minor typographical and referencing errors.
Associate to Deputy President Dobson
Dated 27 September 2024
| [2024] FWC 2662 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Federated Union of Locomotive Employees
v
Aurizon Operations Ltd T/A Aurizon Operations Ltd
(C2024/3783)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 25 SEPTEMBER 2024 |
Dispute interpretation of Agreement – Compliance Provisions – Agreed Questions Answered
This Decision concerns an application made on 10 June 2024 by the Australian Federated Union of Locomotive Employees Ltd (AFULE/ the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure in the Aurizon Coal Enterprise Agreement 2022 (the Agreement). The Respondent is the Aurizon Operations Ltd T/A Aurizon Operations Ltd (Aurizon/the Respondent). The Application has been made by the AFULE in respect of their member Mr Elliot Verdeyen.
The agreed questions for determination are as follows:
Question 1:
Does Clause 69.9.1 of the Agreement allow the Respondent to roster an employee for training outside of their master roster available zone during a network shutdown?
Question 2:
If the answer to the above question is yes, did the Town Hall shift on 13 May 2024 constitute training for the purpose of clause 69.9.1 of the Agreement?
Question 3:
If the answer to either question 1 or 2 is ‘no’, what was the correct pay rule for Mr Verdeyen’s pay on 13 May 2024.
Legislation
The Act provides for the Commission to deal with disputes in relation to disputes under enterprise agreement dispute settlement terms. Section 739 of the Act states:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
The matter was allocated to my Chambers on 11 June 2024. Following a conference on 25 July 2024, I issued directions for the filing of material.
Noting that there is no dispute that the pre-requisites to the Commission’s involvement have been followed, I am satisfied that the Commission is empowered to resolve the dispute by determination of the agreed questions in accordance with the dispute settling procedures at clause 8.1 of the Agreement and s 739 of the Act.
Background
AFULE made an application under s.739 of the Act for the Commission to deal with a dispute, after they had raised concerns that Aurizon was breaching clauses 53, 69.9.1 and 54.11.1 of the Agreement by rostering Mr Verdeyen on to work at 9am on a day for which his availability zone started at 6pm and then by not paying a stand-alone overtime rate for all hours worked that day.
In response to the AFULE’s concerns, Aurizon responded that the alterations made to Mr Verdeyen’s roster were made under 69.1.1 of the Agreement for “training” and on that basis, no overtime was owed. The AFULE responded noting that the shift for which Mr Verdeyen had been rostered was not a ‘Training” shift and Aurizon could rely on clause 69.1.1 to change the roster. On 6 June 2024, Aurizon responded stating that their position was unchanged and the AFULE filed the current application.
In or around May 2024, the Respondent notified Train Crew employees covered by the Agreement of a network shutdown scheduled from 10-14 (inclusive) May 2024. The Respondent also notified that they would hold a Town Hall meeting with drivers from 9:00am 13 May 2024. The Respondent rostered Mr Verdeyen to attend this Town Hall meeting.
Mr Verdeyen’s evidence
Prior to the parties’ filing a joint statement of facts, the Applicant had also filed a Witness Statement made by Mr Verdeyen in support of the application. In his witness statement, Mr Verdeyen attested to having raised concerns with on duty Operations Leaders regarding rostering during the closure, particularly for the Town Hall meeting, which he understood would fall outside his master roster availability zone by 9 hours.
He attested to observing on the daily rostered posted on 13 May 2024 that he had been rostered to attend the Town Hall Meeting at 0900 hours outside of his master roster availability zone, and then rostered to attend a Focus Group on Sunday 12 May commencing at 0900 hours (Sunday shift), also outside his master roster availability zone.
He subsequently made arrangements with his on-duty Coordinator on 13 May 2024 to cancel his Sunday shift which would fall on Mother’s Day and, and instead be rostered on a shift at 0900 hours on the Saturday. The Applicant understood this to have been agreed on the proviso that no allowances could be claimed for lift up and/or stand-alone overtime payment for hours worked outside his “available for duty window”.
The Applicant also thought this arrangement would mean Aurizon would not have to pay him stand-alone overtime for the Sunday shift and would therefore be mutually beneficial. The Applicant attested to attending the Town Hall Meeting, but that his subsequent ‘shift management timesheet’ did not indicate an allowance approved for his attendance at the Town Hall Meeting. The Applicant attested to subsequently speaking with an Operations Leader who informed him Aurizon was entitled to change the roster as required pursuant to the Enterprise Agreement and given there was a shutdown at the relevant time. The Applicant disputed this, citing clause 54.63 of the Agreement for his position that such changes require employee agreement.
Relevant Provisions of the Agreement
Clause 53 of the Agreement provides the definitions and interpretations used in the schedule. Relevantly:
“Available: a notion in a roster covering a period from 0001 to 2359 during which an employee may be rostered to commence work. For master roster creation an available will be divided into four six hour time zones whereby forecast or daily roster shifts will be allocated to those time zones.”
And
“Additional Shift: means a shift that is in addition to the shifts identified in the master roster (including on an RDO).”
Clause 69.9 states that
“Clauses 69.7 and 69.8 do not apply in the following circumstances:
69.9.1. Where there are network disruptions which result in a whole or partial network shut an employee may be rostered as required to complete training;
69.9.2. Where there are network disruptions which result in a whole or partial network shut and employees are required to work an operational shift, changes to the start time of a rostered shift can be altered to a maximum of six hours earlier or later.”
This leads to a requirement to have regard for clauses 69.7 and 69.8 which say:
“69.7. The start time of a rostered shift can be altered to a maximum of four hours earlier or later. Any hours agreed in addition to this will be paid at ordinary time. This will be a stand-alone payment.
69.8. 12 months after commencement of the Agreement, the start time of a rostered shift can be altered to a maximum of four hours earlier or later with the fourth hour only being paid at the ordinary time. Any hours agreed in addition will also be paid at ordinary time. This will be a stand-alone payment.”
Clauses 54.11 & 54.11.1 state:
“54.11. Stand-alone overtime will be paid:
54.11.1. For all hours worked on an Additional Shift; and
54.11.2. For any hours worked on an RDO; and
54.11.3. For all hours worked beyond 12 hours.”
Applicant’s Submissions
The Applicant’s contentions are detailed in its submissions and evidence which I don’t intend to repeat, however briefly, the Applicant submitted the Respondent had breached the rostering provisions within the Agreement and subsequently refused to pay overtime to Mr Verdeyen. The Applicant submitted that the logical sectioning of the Agreement relating to Train Crew provide the relevant definitions and clearly defines the sections for like terms informing the interpretation of the provisions.
In respect to Mr Verdeyen, his master roster for 13 May 2024 was an available zone of 1800hrs to 2359hrs. For context, “availables” are 6-hour periods of availability on a Master Roster during which a shift may be assigned per the definition in Clause 53. The Applicant submitted that the Respondent breached the agreement by rostering him on a shift commencing 9 hours outside of his Master Roster available zone at 0900 hours. The shift in question was referred to as a “Town Hall” meeting. The Respondent relied on clause 69.9 which states:
“69.9 Clauses 69.7 and 69.8 do not apply in the following circumstances:
69.9.1 Where there are network disruptions which result in a whole or partial network shut an employee may be rostered as required to complete training;
69.9.2 Where there are network disruptions which result in a whole or partial network shut and employees are required to work an operational shift, changes to the start time can be altered to a maximum of six hours earlier or later.”
The Applicant further provided that section 69.6 of the daily roster section outlines how a Master Roster available can be utilised when creating the Daily Roster for posting:
“69.6 The daily roster may alter the master roster and will convert availables into either:
69.6.1 a rostered shift; or
69.6.2 an AFD Window; or
69.6.3 not required”
The Applicant submitted that the above clause puts into action the allocation of a rostered shift into the Daily Roster within the 6-hour availability zone of the Master Roster as described in the definition of available, and offers only two alternatives, being available for duty window or not required. The Applicant submitted that the Respondent breached this clause by assigning Mr Verdeyen to a shift commencing 9 hours outside his Master Roster available zone.
The Applicant states that the clauses that the Respondent is relying upon, being 69.9.1 & 69.9.2 do not apply when creating the Daily Roster. Clauses 69.7 and 69.8 referred to therein are as follows:
“69.7 The start time of a rostered shift can be altered to a maximum of four hours earlier or later. Any hours agreed in addition to this will be paid at ordinary time. This will be a stand-alone payment.
69.8 12 months after commencement of the Agreement, the start time of a rostered shift can be altered to a maximum of four hours earlier or later with the fourth hour only being paid at the ordinary time. Any hours agreed in addition will also be paid at ordinary time. This will be a stand-alone payment.’
The Applicant submitted that these clauses refer to the alteration of the start time of a rostered shift as it appears on the Master Roster when the Daily Roster is being created and is a common rostering provision for traincrew generally referred to as “lift up and lay back” or “brought forward & deferment”. The Applicant submitted that these clauses have no application to extend an available for duty zone, and that if they did, they would more than double the availability zone to a 14-hour zone. This would, in the Applicant’s submission, have significant negative impacts on employee’s work life balance and fatigue compliance for train crew. This is particularly relevant for rail safety workers.
In relation to the interpretation of the Agreement provisions, the Applicant submitted that there was no ambiguity, but if they were wrong on that, the principles in Berri[1] provide that supports construction must begin with the ordinary meaning of the words. Specifically, that “start time of a rostered shift”[2] has a clear plain English meaning and in the context of the Agreement and the Rail industry generally, refers to the point in time that an employee has been rostered to commence a shift and start work. The Applicant also submitted that an availability zone also has a clear meaning and is defined in the agreement itself. When read in the context of the Agreement as a whole, the Applicant’s position was that the ordinary meaning of the words in clauses 69.7 and 69.8 relate to the start time of a rostered shift and do not relate to availability zones. Therefore, the Respondent does not apply these two clauses to commence shifts outside available zones when creating the Daily Roster. The Applicant submitted that as laid out in Berri, post-contractual conduct such as this, which demonstrates a common understanding and settled interpretation between the parties, may be relevant to the interpretation of an industrial instrument[3].
The Applicant provided submissions regarding the bargaining that occurred for the previous 2019 Agreement, being the agreement which introduced the relevant clauses, and submitted that the documents provided during bargaining indicated that the parties had agreed intention for clause 69.7 & 69.9 to be an adjustment to the point in time that a shift on a roster is to commence. The explanatory documents described the clauses as follows:
“The start time of a rostered shift can be altered in the daily roster to a maximum of four hours earlier or later than what was in the master roster (although different provisions apply in the event of network disruptions). This is a new clause. Currently, the Company can change start times between the forecast roster and the daily roster but needs to provide notice to employees of a change by three hours or more.”
The Applicant submitted that this document could not have indicated an intention to extend the available zones as the Respondent claims, as they did not exist in the 2019 Agreement. Under the 2019 Agreement, Traincrew were on full 24-hour periods of availability, which had negative impacts on fatigue and work life balance of traincrew members, which resulted in the current availability zones implementation in the current Agreement.
The implementation of the availability zones was negotiated in the current agreement and the Applicant provided that the Respondent’s explanatory document dealt with this change as follows:
“The Company will post a daily roster at least 33 hours prior to 0001 of the day covered by the roster. Words have been inserted into the clause to say that the daily roster will posted via a readily accessible method and will show the fatigue score. There can be some changes from the master roster to the daily roster. The daily roster will convert available shifts to either a rostered shift, AFD window or not required. The start time of a rostered shift can be altered to a maximum of four hours earlier or later with any additional hours needing to be agreed to by employees.
The following is a change to the Proposed EA. 12 months after the commencement of the Proposed EA, the start time of a rostered shift can be altered to a maximum of four hour earlier or later with the fourth hour only being paid at the Ordinary time. Any hours agreed in addition will also be paid at ordinary time. This will be a standalone payment”
The Applicant submitted that the documentation did not mention any change in the coverage of clauses 69.7 and 69.9 to include adjustment to available zone, which is contrasted with the clear intention that the availables would be divided into 6-hour zones, and that shifts would be allocated into those zones.
The Applicant submitted that the Respondent was disallowed to roster Mr Verdeyen as they did on 13 May 2024, without his agreement.
Respondent’s Submissions
The Respondent’s contentions are detailed in its submissions and evidence which I don’t intend to repeat, however briefly, the Respondent submitted that they had the right to move the workers’ start time during the shutdown to align with training to be provided at the scheduled Town Hall meeting as per as per clause 69.9.1 of the agreement. The submission also contended that the worker was paid appropriately. The Respondent argued that Clause 69.9.1, contemplates periods of shut down, that during these shutdowns training may be rostered and that this has been done historically and contemporaneously to the occurrence referenced in this dispute.
The Respondent highlighted that the only relevant fact that remains disputed is whether the Town Hall meeting should be considered ‘Training’. In providing additional context, the Respondent provided that it is not the network operator in South-East Queensland, and therefore not responsible for network outages. During these outages, Aurizon notes that their ability to schedule train movements is reduced or eliminated.
The Respondent went on to detail that rostering arrangements have evolved over successive enterprise agreements, differing between regions and Master Rosters are issued for each depot in collaboration with a depot roster committee. For the relevant region, South East Queensland, this occurs twice a year in line with seasonal climates. It is explained that each employee has an allocation of shifts for the period of each roster and in SEQ at least 70% of these must have a start and finish time, where the balance can be a notice of being required to be available to work, without a set start or finish time.
The Respondent noted that the previously mentioned outages are scheduled after the Master Roster has been issued and it is therefore common to have train movements cancelled. The Respondent put to the Commission that clause 63 of the 2022 Agreement would provide Aurizon with the option to shut down its operations with limited restrictions, causing employees to be unpaid absent a leave or RDO request.
The Respondent submitted that it is preferable for all involved that training is scheduled in these circumstances, and that where it is scheduled, it is axiomatic that all employees who attend will need to be present at the same time, and in the same place if the training is face to face.
The Respondent suggested that if the preferred interpretation of the AFULE while illogical, is correct, Aurizon may be compelled to consider the use of its shut down right more often.
The conclusion of this according to the Respondent is that in this case, there is harmony between the 2022 Agreement and the sensible operation of the business which supports the plain meaning of clause 69, that this is in the interest of both themselves and their employees and that this view is also compelled by careful review of the evolution of the clause from 2015 to 2022. [4]
In addressing the interpretation of clause 69.9.1 of the 2022 Agreement, the Respondent pointed to the simple direct terms used, highlighting the term ‘as required’ to mean unrestricted by any qualification or restriction on start or finish time. The relevance of Clause 53 is rejected as irrelevant owing to the reference of rostering employees to ‘work’ and in any event being unable to displace the plain meaning of clause 69.9.1 and more specifically the reference to rostering ‘as required’.
Whilst accepting that if the clause was ambiguous, it must be read in relevant context, applying the Berri principles, the Respondent argued that it is not ambiguous and clearly allows Aurizon to roster any employee to attend training at any convenient time where they are identified on the Master Roster as either having a rostered shift or being available and therefore can be required to work.
Principles Relevant to the Interpretation of an Enterprise Agreement
The principles were conveniently summarised in the Full Bench decision of Berri[5] which are commonly known and for brevity I will not repeat here.
Consideration
Uncontested Relevant Facts
The interpretation of the relevant clauses in these circumstances are readily interpreted on their ordinary meaning. The factors relevant to the interpretation are uncontested:
It is uncontested that Mr Verdeyen is engaged at the Willowburn Depot[6]‘ and his Master Roster for 13 May 2024 had him identified as available from 6pm as the start of this 6-hour time zone.[7]
A network closure occurred affecting the Willowburn Depot from Friday 10 May 2024 to Tuesday 14 May 2024.[8]
Subsequently, further to the network disruption, Mr Verdeyen’s daily roster was changed on 10 May 2024 requiring him to attend a Town Hall commencing at 9am on 13 May 2024.[9]
Contested Relevant Fact: Application of Clause 69.9.1 Scheduling of Training during Network Shutdowns
The Applicant also submits that clause 69.6 of the Agreement sets out how a Master Roster available can be utilised to create the Daily Roster for posting.[10] That interpretation however, ignores the provisions that arise from clause 69.9. The Applicant’s position is further confusing and does not flow on a proper read of the clauses. The Applicant also expresses confusion about clauses 69.7 and 69.8 however both of those clauses are irrelevant to this situation because clause 69.9 knocks them out of action where there are network disruptions.[11] It in uncontested that there are network disruptions in this case.[12]
The Respondent’s position is that clause 69.9.1 suggests that where a network disruption results in employees having their roster changed to complete training, that training can be “rostered as required” and that clause 69.9.2 suggests that where a network disruption results in employees having their rostered changed to work on an operational shift, the start time of the rostered shift can be altered to a maximum of 6 hours earlier or later.
On a plain reading of the Hours of Work Clauses, it is clear that where network disruptions occur, clause 69.9 is relevant. At clause 69.9.1, there is a clear provision that where the employee is rostered for training, there is no restriction on when the rostered shift can be moved to. The clause says they may be rostered “as required”. As required is a very broad statement and a generous interpretation should be taken as opposed to a narrow one. In considering City of Wanneroo,[13] Such a view is consistent with the one made that “There is a long tradition of concluding a generous construction over a strictly literal approach where industrial awards are concerned.”[14]. There are no restrictions as to what “as required” is within clause 69.9.1 and one should not be read into it.
That is particularly so when considering clause 69.9.2. That is because in clause 69.9.2, it sets out that where there is a network disruption and the employee instead is rostered for an operational shift, it prescribes that the employees shift can only be altered by a maximum of 6 hours earlier or later. It excludes clause 69.7 which prescribes that a shift in different circumstances can only be altered by 4 hours earlier or later. There is a clear intention that for shifts rescheduled due to network disruptions for operational work the ordinary 4-hour restriction is given more flexibility to instead have a 6 hour restriction. The parties have given thought to all of these scenarios and have chosen not to put a restriction into the clause at 69.9.1.
Further, I note the evidence from Mr Maszczak and his long history of involvement in the business and the negotiation of the relevant Enterprise Agreements.[15] Mr Maszczak’s evidence, which is not contested by any other evidence put before the Commission, about the lack of restrictions on scheduling training when there are network shutdowns[16] is compelling and consistent with the ordinary plain meaning of the relevant clauses that I have set out in the preceding paragraphs.
Contested Relevant Fact: Town Hall – Was it Training
The other contested factor relevant to the interpretation, is whether the Town Hall meeting on 13 May 2024 constituted training. The Respondent submits that they wrote to the Applicant on 24 May 2024 and asserted that the purpose of the Train Hall meeting was to facilitate training in a new form, theory on “Situational Awareness” and Fatigue Awareness.[17] Having considered the evidence before me, I note that the topics that were said to be covered by the witnesses Mr Verdeyen,[18] and Mr Hack[19] are fairly consistent. I note that Mr Verdeyen provided a copy of the Agenda for the Town Hall in which he listed the following sessions:[20]
·Safety Share
·Maintenance Update
·Good to Go App Roll out
·Customer Presentation
·EGM Update
·Leadership Team providing an “Ask us Anything” session
·Situational Awareness
·Team Building
·Fatigue Management
These sessions in my view are difficult to describe as anything else but training. Some may say that some of the sessions are communicating to employees what is going on in their business. Training is essentially about learning. Learning is beneficial when it assists an employee to gain skills or knowledge that enable them to be more engaged, have better knowledge and tools to more effectively and safely perform their job and to have better relationships with their fellow workers and leaders. This agenda covers all these things. I find that the Town Hall was training. I don’t accept that there is an argument that the Respondent tried to make it training after the fact. The activities that occurred on that day are matters of fact and they either are or are not training. You cannot change that later by calling it something else. In any event, my finding is that as a matter of fact, the activities that were conducted at the Town Hall on 13 May 2024 were training activities.
Conclusion
For all of the reasons set out in the preceding paragraphs, the answer to the questions for arbitration are as follows:
Question 1:
Does Clause 69.9.1 of the Agreement allow the Respondent to roster an employee for training outside of their master roster available zone during a network shutdown?
The answer is Yes
Question 2:
If the answer to the above question is yes, did the Town Hall shift on 13 May 2024 constitute training for the purpose of clause 69.9.1 of the Agreement?
The answer is Yes
Question 3:
If the answer to either question 1 or 2 is ‘no’, what was the correct pay rule for Mr Verdeyen’s pay on 13 May 2024.
There is no need to answer this question.
DEPUTY PRESIDENT
[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).
[2] Aurizon Coal Enterprise Agreement 2022, clauses 69.7 & 69.8.
[3] Berri at [106]
[4] Digital Court Book (DCB) pp.281-283.
[5] Berri.
[6] Agreed Statement of Facts (ASOF) DCB p.592 at [2].
[7] Ibid at [4].
[8] Ibid at [3].
[9] Ibid at [5].
[10] Ibid p.21 at [8].
[11] Ibid p.23 at [19].
[12] Ibid p.592.
[13] City of Warnneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440 [57].
[14] Ibid.
[15] DCB p.284-283.
[16] Ibid p.283 at [11]-[16].
[17] Ibid p.265
[18] Ibid p.247 at [19] and p.256 Annexure EV4.
[19] Ibid p.442 at [16]-[18].
[20] Ibid p.256.
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