Australian Federated Union of Locomotive Employees v Queensland Rail Transit Authority T/A Queensland Rail
[2025] FWC 502
•19 FEBRUARY 2025
| [2025] FWC 502 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Federated Union of Locomotive Employees
v
Queensland Rail Transit Authority T/A Queensland Rail
(C2024/6502)
| DEPUTY PRESIDENT LAKE | BRISBANE, 19 FEBRUARY 2025 |
Application to deal with a dispute – reduction to full flat rate for flexible work arrangement – arbitration – dispute determined
On 6 September 2024, the Australian Federated Union of Locomotive Employees (‘the AFULE’) filed an application pursuant to s 739 of the Fair Work Act2009 (Cth) (the Act) regarding a dispute about the deduction for a flexible work arrangement made by Queensland Rail Transit Authority T/A Queensland Rail (‘the Respondent’) under clause 27 of the Queensland Rail Traincrew Enterprise Agreement 2020 (‘the 2020 Agreement’).
The AFULE made the application pursuant to clause 24 of the 2020 Agreement.
The parties attempted to resolve the dispute on 16 October 2024 through a conciliation conference. Conciliation was unsuccessful. Following the conciliation conference, I issued directions and listed the matter for arbitration. The parties agreed that the matter may be determined on the papers. I have determined the matter on the papers.
Following the conciliation conference and following the Directions issued by my Chambers, Queensland Rail Traincrew Enterprise Agreement 2024 (‘the 2024 Agreement’) was approved by the Commission. However, the dispute has not been resolved by the changes in wording in the 2024 Agreement. I note the application for approval of the 2024 Agreement was made prior to this dispute being allocated to my Chambers.
At the time the dispute was raised, the Agreement in force, and under which the dispute resolution procedure was commenced, was the 2020 Agreement. Therefore, my answer to the question for arbitration will be in relation to that version of the Agreement. The parties have referred to both versions of the Agreement in their submissions.[1] Any material differences in wording between each version of the Agreement will be noted where it is relevant to do so.
Jurisdiction to arbitrate the dispute
Clause 24.6 of the 2020 Agreement reads as follows:
Where the dispute pertains to the application or interpretation of this Agreement or an alleged breach of this Agreement and, where the dispute remains unresolved following conciliation, the FWC is authorised to resolve the dispute by arbitration.
I am satisfied that the dispute relates to the application and interpretation of the Agreement. I am satisfied that I have the jurisdiction to arbitrate the dispute in accordance with clause 24 of the Agreement.
Question for determination
The parties presented the question to be determined before me as follows:
“Where an employee on a Flexible Working Arrangement only meets the criteria of the Concessional Table provided in Clause 27.2 for part of their workings, i.e. they only require the listed rostering limitations for a portion of their workings – does the reduction of their Full Flat Rate extend all their workings, including the periods without limitations”
In the 2024 Agreement, the Concessional Table is found in clause 31.2 rather than Clause 27.2. There are some changes in the wording of the table in clause 31.2. The parties still disagree on how the table in Clause 31.2 should be applied.
Relevant Agreement Clauses
Clause 27 of the 2020 Agreement reads:
Requests for Flexible Work Arrangements
27.1Flexible working arrangements allow an employee to balance personal or family needs and preferences with work commitments. The Business acknowledges the importance of employees maintaining a balance and provides discretionary benefits in this Agreement to allow employees to organise their working arrangements in a more flexible way, subject to operational needs. This includes:
27.1.1 Reduced Hours employment;
27.1.2 Job Sharing;
27.1.3 Concessional arrangements;
27.1.4 Transition to retirement.
27.2In respect of reduced hours employment and concessional arrangements, the following will apply:
| Category | CAT A Reduced Hours | CAT B Concessional | CAT C Concessional |
| Availability | Less than Full Time | Up to and including 160 hours | Up to and including 160 hours |
| Weekly Limitations | Nil | Monday-Sunday | Monday-Friday |
| Daily Limitations | Nil | Restricted start/finish times | Restricted start/finish times |
| Payment | Full Flat Rate | 87.5% Full Flat Rate | 80% Full Flat Rate |
27.3Requests made in accordance with the Act will not be unreasonably refused. Protections include:
27.3.1Is a parent or has responsibility for the care of a child who is school aged or younger;
27.3.2 Is a carer (under the Carer Recognition Act 2010);
27.3.3 Has a disability;
27.3.4 Is 55 or older;
27.3.5 Is experiencing family or domestic violence; or
27.3.6Provides care or support to a household member or immediate family who requires care and support because of family or domestic violence.
27.4The Business must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.
27.5The Business may only refuse the request on reasonable business grounds and this must be addressed in the employer’s written response.
27.6At any stage in the process an employee can request advice or representation from their union.
27.7The Business will provide employees with information and education highlighting the choice and flexibility provided by this Agreement in areas such as balancing work and personal lives.
27.8Where an employee transfers from full time workings to a flexible working arrangement (either concessional or reduced hours), their accrued entitlements will be “preserved” at the full-time rate at the time of transfer. However, all entitlements will accrue at the flexible arrangement rate (where applicable) from the date of transfer.
27.9Where an employee transfers from a flexible working arrangement (either concessional or reduced hours) to full time, their entitlements (hours accrued) will be maintained, but the rate at which their leave is paid, will be at the full-time rate. Their entitlements will accrue at the full-time rate from the date of transfer.
27.10For the purposes of the above two clauses two leave balances will be maintained and the higher rate will be drawn from first, unless agreed otherwise.
The wording in the 2024 agreement differs:
31Concessional Arrangements
31.1 An employee may seek to work under restricted/concessional arrangements for a period of time due to personal factors, in accordance with provisions of the Act.
31.2 In respect of concessional arrangements, the following will apply
| Category | CAT B Concessional | CAT C Concessional |
| Availability | Up to and including 160 hours* | Up to and including 160 hours* |
| Weekly Limitations | Monday-Sunday | Monday-Friday |
| Daily Limitations | Restricted start/finish times | Restricted start/finish times |
| Payment for FWA Ordinary Hours | 87.5% Full Flat Rate | 80% Full Flat Rate |
| Payment for SLP/BLPs and excess time | Full Flat Rate** | Full Flat Rate** |
* or 152 hours upon implementation of the 152 hour four (4) week cycle.
** The full flat rate will be applied to the penalties outlined in clause 67.1 (excess time) and 67.9 (leisure periods) of this Agreement.
31.3 Applications for concessional arrangements will be genuinely considered by the General Manager Train Service Delivery, however, acceptance will be determined against operational requirements at the time.
31.4 Any newly approved concessional employee after the commencement of this Agreement may be appointed to Mayne Depot for the period of their concessional arrangements, if unable to be accommodated at their home depot for operational reasons.
31.5 For those existing concessional employees at the commencement of the agreement, a review will be conducted by the General Manager Train Service Delivery to determine if an appropriate transition to Mayne Depot or alternative transition out of concessional arrangements is necessary, per the consultation provisions of the Agreement. If an existing concessional arrangement identifies a review date or end date, any transition will not occur before that date.
31.6 Availability and daily/weekly limitations will be agreed by the Business and employee, in writing, at the outset and rosters developed.
31.7 The minimum Single Leisure Period (“SLP”)/Block Leisure Period (“BLP”) allocation will be the same as full-time employees.
31.8 Meal breaks will be as per the meal break clause.
31.9 Concessional employees rostered to work on more than 26 Saturdays and 18 Sundays in a 12 month period will not receive weekend penalties beyond the 26 Saturdays and 18 Sundays.
31.10 Where an employee commences a flexible working arrangement (either concessional or reduced hours), their accrued entitlements will be “preserved” at full flat rate at the time of the transfer. However, all entitlements will accrue at the flexible arrangement rate (where applicable) from the date of transfer.
31.11 Where an employee ceases their flexible working arrangement (either concessional or reduced hours), their entitlements (hours accrued) will be maintained, but the rate at which their leave is paid, will be at the Full Flat Rate. Their entitlements will accrue at the Full Flat Rate from the date of transfer.
31.12 For the purposes of the above two clauses, two leave balances will be maintained and the higher rate will be drawn from first, unless agreed otherwise.
Background
The employee concerned is a Train Guard, Mr Rodney Smith, who has been employed with the Respondent since 2014.[2] Mr Smith has custody of his children every second week and has had a flexible work arrangement in place since 2016.[3]
Mr Smith therefore has one week where he is fully available with no restrictions and the other week he is available with some restrictions based upon his caring responsibilities. During the latter week, Mr Smith has restrictions from Monday evening through to the following Monday evening.[4]
Following clause 27.2 of the 2020 Agreement, those employees that work a concessional arrangement have a percentage reduction applied to their Full Flat Rate (FFR). The FFR is a composite of an employee’s base rate of pay, plus penalty loadings and allowances for working shift work, annual leave loading (annualised), monetary allowances (excluding meal allowances), traction based loading, and single Driver loading.[5]
Mr Smith is on a concessional arrangement rather than a reduced hours arrangement.
Clause 27.2 identifies three categories, those with no restrictions (reduced hours), those that have restrictions through a whole week (Concessional Category B) and those with restrictions that only affect Monday to Friday (Concessional Category C). There are two levels of reductions that occur: 87.5% of FFR for Category B and 80% of FFR for Category C.
Mr Smith has restrictions on alternative weeks when he is caring for his children. He receives 87.5% of the FFR as someone on a Category B concessional arrangement.
Simply put the AFULE’s claim is that the reduction should only be applied when the AFULE has limitations on his availability. In the AFULE’s case, he has rostering restrictions for approximately 58% of the roster period, but the FFR reduction is applied across 100% of the roster period.[6]
The Respondent argues that reduction should be applied on the 4 week or 160-hour basis.[7]
Relevant Law
Principles of construction
The Full Bench in AMWU v Berri Pty Ltd[8] provides the principles regarding the construction and interpretation of clauses within the Enterprise Agreement which state the following:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i)the text of the agreement viewed as a whole;
(ii)the disputed provision’s place and arrangement in the agreement;
(iii)the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd:
“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.
(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”
(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[9] [references omitted]
Is there an ambiguity in the Agreement?
AFULE’s Submissions
The AFULE submits that there is no ambiguity in the 2020 Agreement. They argue that clause 27 can be given its plain and ordinary meaning and there is no need to have recourse to surrounding circumstances.[10]
The AFULE particularly focuses on the text preceding the table in clause 27.2 of the 2020 Agreement. That clause says, “In respect of reduced hours employment and concessional arrangements, the following will apply…” The table is then set out below.
The AFULE argues that the terms “reduced hours employment” and “concessional arrangements” are qualifiers, meaning that the rest of the clause does not apply to Mr Smith until the qualification is met.[11]
The AFULE argues that Mr Smith is not on a concessional arrangement all of the time, his concessional arrangement is only in operation during his “yellow days” on his roster.[12] Therefore, according to the AFULE, the remainder of the clause, being the concessional arrangements table, does not apply when Mr Smith has no limitations on his availability.[13] That would mean the clause would only apply every second week.
Clause 30.1 of the 2020 Agreement reads as follows: “An employee may seek to work under restricted/concessional arrangements for a period of time due to personal factors, in accordance with provisions of the Fair Work Act 2009.” The AFULE argues:
Mr Smith has sought to work under his concessional arrangement for only 58% of his hours at work. He has not sought to have his concessional arrangement apply to all his workings. That is to say that the “period of time” when the “concessional arrangement” applies is when he ought to receive the reduced rate of pay.[14]
The AFULE also argues that the reduction for concessional arrangements, as currently applied by the Respondent, has the effect of being directly or indirectly discriminatory. An interpretation which upholds a discriminatory arrangement is unlawful. The AFULE’s discrimination argument will be dealt with separately.
Respondent Submissions
The Respondent also submits that the wording of the 2020 Agreement is clear and unambiguous. The Respondent submits that: “It is clear, in the Respondent’s view, that the intent of the clause 31.2 of the EA is for concessional arrangements to be considered in 160 hour (4-week) ‘blocks’.”[15]
The Respondent argues that the phrase period of time “…means that there are periods of time in which an employee requires alterations and flexibility in the way they work to support personal circumstances, and further implies that such approval is not given indefinitely.”[16]
The Respondent argues that the context in which the phrase “period of time” appears, preceding the table in clause 31.2 of the 2024 Agreement, is relevant.[17] They argue that, in context, the period of time is 160 hours, at a minimum.[18]
In the 2024 Agreement, the words “period of time” are followed immediately by a sub-clause containing the table setting out the concessional reduction scheme. In the 2020 Agreement, the reference to a “period of time” appears in clause 30.1 and the table is in clause 27.2. This somewhat undercuts the Respondent’s argument that the “period of time” phrase must be linked to the period in the table in clause 27.2, given the clauses are not adjacent in the Agreement in question. However, the clauses both appear under the section of the 2020 Agreement entitled “Employment Relationships” which indicates that they are thematically linked.
The Respondent argues that a plain reading of the table shows that the period of time to be considered is 160 hours.[19]
Conclusion on ambiguity
I agree with the AFULE’s argument that “In respect of …concessional arrangements, the following will apply…” should be interpreted to mean that the table following only applies when a concessional arrangement is in operation.
The phrase “in respect of” has been defined in the Macquarie Dictionary to mean “in relation or reference to”. The subordinate clause “in respect of concessional arrangements” qualifies the operation of the words “the following will apply”, limiting the operation of the table to concession arrangements.
However, the Respondent would likely agree with this interpretation too. The Respondent’s disagreement is about when the concessional arrangement is in operation – they argue that a concessional arrangement must be in operation for at least 160 hours.
The substance of the dispute is whether there is only a concessional arrangement in place while Mr Smith has actual limitations on his start and finish times or whether the concessional arrangement is in place over the whole roster period.
It is appropriate to address this dispute on interpretation by considering the context of the rest of the Agreement.
Clause 30.5 of the 2020 Agreement is relevant. That clause provides, in relation to concessional arrangements: “Hours of work and number of attendances will be agreed to at the outset and rosters developed.” The use of the phrase “at the outset” and the reference to developing rosters in response to a concessional arrangement indicates that the concessional arrangement is ongoing and that it applies across a whole roster period, rather than part of a roster period. Further, agreeing to the number of attendances could be interpreted to mean the number of attendances across one roster period. Clause 79.1 specifies that ordinary hours means a maximum of 19 attendances in a four-week cycle.
Clause 27.8 and 27.9 of the 2020 Agreement are as follows:
27.8 Where an employee transfers from full time workings to a flexible working arrangement (either concessional or reduced hours), their accrued entitlements will be "preserved" at the full-time rate at the time of transfer. However, all entitlements will accrue at the flexible arrangement rate (where applicable) from the date of transfer.
27.9 Where an employee transfers from a flexible working arrangement (either concessional or reduced hours) to full time, their entitlements (hours accrued) will be maintained, but the rate at which their leave is paid, will be at the full-time rate. Their entitlements will accrue at the full-time rate from the date of transfer.
Reading the two sub-clauses together, the transfer date can be taken to be either the commencement date or the cessation date of the arrangement. The plain meaning of these two clauses is clear – when an employee commences a flexible working arrangement, their entitlements accrue at the applicable “flexible working arrangement rate” from the transfer date. In the context of the rest of clause 27, the flexible working arrangement rate for a concessional arrangement can be taken to mean the applicable rate in the table in clause 27.2.
The AFULE stated: “AFULE says that during the shifts that Mr Smith works a normal roster, that he does not fall under a flexible working arrangement clause.”[20] If one were to follow this line of argument, it would suggest that Mr Smith is transferred to and from a concessional working arrangement every other week. This would mean that Mr Smith’s entitlements would need to be preserved and re-calculated on a weekly basis. While this would technically be possible, I would question why the employer would agree to a clause with this effect from a payroll perspective, given they elsewhere agreed that wages and leave accruals are credited on a fortnightly basis.[21] The Agreement should be construed in light of its purpose as an industrial instrument that is binding on the employer. One would expect that the employer would agree to terms that they could feasibly abide by.
Clause 30.1 of the 2020 Agreement states: “An employee may seek to work under restricted/concessional arrangements for a period of time due to personal factors, in accordance with provisions of the Act.” The AFULE has placed weight on the phrase “period of time”, arguing that this refers to only the period for which the restricted hours are required. However, I agree with the Respondent that the phrase must be construed in the context of the rest of the section of the agreement dealing with employment relationships. A highly pedantic approach, including interpreting one phrase in isolation, is not in accordance with the accepted rules of interpretation.
The first row of the table in clause 27.2 is titled “Availability” and for both category B concessional and category C concessional the availability is “up and including 160 hours.”
Reference must be had to rest of the Agreement to understand why the figure of 160 hours was selected. Clause 79.1 of the 2020 Agreement reads:
The ordinary hours of work for a full-time employee are 160 hours worked across four (4) weeks. Employees may be rostered a maximum of nineteen (19) attendances across the four (4) week cycle.
(emphasis added)
Therefore, the first row of the table indicates that the concessional arrangement applies at least on a 4-week basis, as it indicates that availability is assessed in 4-week increments.
The fourth row of the table is titled “Payment” in the 2020 Agreement and “Payment for FWA ordinary hours” in the 2024 Agreement. The 2020 Agreement is less clear than the 2024 Agreement in this respect. The 2020 Agreement does not specify the period for which the pay is assessed.
However, the first row of the table in the 2020 Agreement also notes that the availability is either “less than Full Time” or “up to 160 hours”. In clause 26 of the Agreement, “Full-time” employment is assessed by whether an employee, over the roster cycle works an average of 40 hours per week.[22] Again, the point of reference is confined to a 4-week cycle over 160 hours.
I find that clause 27.2 of the 2020 Agreement can be interpreted according to its plain and ordinary meaning. I find that a concessional arrangement must be in operation across at least one roster period once the context of the rest of the section dealing with Employment Relationships is considered.
For that roster period, the employee on a concessional arrangement will receive a reduction to their FFR. This is the case regardless of whether the employee has restrictions on their availability for the whole roster period or only part of the roster period. I reject the AFULE’s contention that an employee only has a flexible working arrangement “in operation” if they require flexibility for that specific week. The Agreement is clear that a concessional arrangement is negotiated between the employee and the business and once it is entered into, it remains in operation over a period of least one roster period. In the context of the rest of the Agreement, it is clear that the concessional arrangement is fixed to the reference point of a roster period over four weeks and “ordinary hours”, being 160 hours performed in a 4-week cycle.
Discrimination
The AFULE also contends that the concessional reduction is indirectly or directly discriminatory. Mr Smith possesses a protected attribute as someone with family responsibilities under s.7(p) of the Anti-Discrimination Act 1991 (Qld) (“ADA Qld”). The AFULE notes that s 578(1)(c) of the Act requires the Commission to take discrimination into account in the performance of its functions “by helping to eliminate discrimination on the basis of… family or carer’s responsibilities.”
Section 10 of the ADA Qld provides:
(1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different
(2)It is not necessary that the person who discriminates considers the treatment is less favourable.
(3)The person’s motive for discriminating is irrelevant
(4)If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5)In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant
Section 11 of the ADA Qld provides:
(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section— term includes condition, requirement or practice, whether or not written.
The AFULE contends that the method of application by the employer is discriminatory as during the two weeks over a roster period that Mr Smith is without restrictions he is working in a comparable or like way to other employees who receive no discount on their FFR.
The AFULE argues that either Mr Smith is being directly discriminated against as he is not paid the same other workers when he works a normal shift or he is being indirectly discriminated against as the Respondent has imposed a condition that he be required to be available across the entire roster and he is unable to comply due to his family responsibilities.
I note that, generally, in order for an employee to even request a concessional arrangement, they must possess a protected attribute, as is the case for flexible working arrangement requests under s.65 of the Fair Work Act. These flexible working arrangements are intended to support employees with protected attributes, recognising that those employees may require greater flexibility than employees without these attributes. Mr Smith benefits from the flexibility offered by the arrangement. As a result of the concessional arrangement, Mr Smith is able to better provide care for his children during the weeks that he has custody of them.
I reject the indirect discrimination argument that the Respondent has imposed a condition on Mr Smith that he is not able to perform due to his protected attribute. Even if the Respondent has imposed a condition by requiring Mr Smith to be available across an entire roster, this is a reasonable requirement. It is entirely unexceptional that an employer would expect an employee to be available during a whole roster period. Further, Mr Smith is afforded flexibility that other employees are not – he is able to restrict his rostered hours where other employees who are not eligible for concessional arrangements cannot.
In relation to the direct discrimination argument, the principles set down by the Full Bench in Budd v Australian Federal Police[23] are relevant:
[69] Direct discrimination is concerned with the treatment of a person less favourably in the same or not materially different circumstances because of a particular protected attribute of the person. So far as s195 of the Act is concerned, a term of an enterprise agreement will discriminate in the sense that the term treats less favourably an employee covered by the enterprise agreement because of, or for reasons including, the employee’s protected attribute identified therein. Whether a term is a discriminatory term in that it directly discriminates against an employee, is to be assessed in our view as follows.
[70] One must first determine the position of the employee covered by the enterprise agreement with the protected attribute. Secondly, one must determine the position of an employee covered by the enterprise agreement without the protected attribute or with a different attribute. Thirdly, there must be identified differential or less favourable treatment by or as a necessary consequence of the operation of the term of the enterprise agreement in circumstances that are the same or not materially different. Fourthly, one must consider whether the differential or less favourable treatment is because of, or for reasons that include the first employee’s attribute. Finally, one must consider whether one or more of the exemptions identified in s.195 are applicable....
Although the Full Bench decision deals a different section of the Act, the principles for identifying direct discrimination are still applicable. It is accepted that Mr Smith has his FFR reduced for a period that includes weeks where he is fully available, whereas other employees do not receive this deduction. However, it must be considered whether the less favourable treatment is because of Mr Smith’s protected attribute or for reasons that include that attribute. The reason for Mr Smith receiving different payment to other employees on weeks where he is fully available is because he is on a concessional arrangement, not because of his family responsibilities. If the Respondent instead paid all employees the same regardless of whether they have restrictions on their availability, employees without children may feel that they are being discriminated against as they are expected to be fully available for the whole roster period, but other employees do not have to be available for the whole period and get paid the same.
Accordingly, I reject the AFULE’s argument that the concessional reduction scheme, as currently applied in the Agreement, is directly or indirectly discriminatory.
Conclusion
In retrospect the parties could have negotiated as part of the 2024 Agreement for a concessional reduction based upon a shorter period than a 4-week cycle.
However, the reason for the reduction is that Mr Smith is not fully available in specified period and thus the employer does not have the advantage of flexibly rostering him.
The concessional reduction scheme is not sophisticated. It has two categories based upon high demand – one based on the week and another category that covers weekends. Rosters are developed over a longer period and no thought was given to accounting for limitations on a proportionate basis. One could imagine that the table in the Agreement could be fractionalised even further to a daily level where only the days that are restricted have a reduction to the FFR. However, this would be an unwieldy system for a payroll system to implement. It would be almost impossible to develop a concessional reduction that reflects accurately the actual level of availability for an employee.
Accordingly, I find that the answer to the question posed for arbitration is:
Where an employee on a Flexible Working Arrangement only meets the criteria of the Concessional Table provided in Clause 27.2 for part of their workings, i.e. they only require the listed rostering limitations for a portion of their workings – does the reduction of their Full Flat Rate extend all their workings, including the periods without limitations
Yes, the concessional arrangement reduction applies across a roster period (4-weeks). Where an employee on a concessional arrangement has rostering limitations for part of that period, the reduction in the FFR will apply to all their workings in that roster period.
DEPUTY PRESIDENT
[1] Applicant Submissions [22] – [29]; Respondent Submissions [9] – [12].
[2] Agreed Statement of Facts [1].
[3] Ibid [3].
[4] Applicant Submissions [1].
[5] Application Submissions [18].
[6] Ibid [13].
[7] Respondent Submissions [19].
[8] AMWU v Berri Pty Ltd[2017] FWCFB 3005.
[9] James Cook University v Ridd [2020] FCAFC 123 at [65].
[10] Applicant Submissions [60].
[11] Ibid [51].
[12] Ibid [52].
[13] Ibid.
[14] Ibid [29].
[15] Respondent Submissions [58].
[16] Ibid [27].
[17] Ibid [29].
[18] Ibid [30].
[19] Ibid [31].
[20] Applicant Submissions [26].
[21] Clause 44, 46, 48 and 63 of the 2020 Agreement.
[22] 2020 Agreement 78.1
[23] [2018] FWCFB 6095
Printed by authority of the Commonwealth Government Printer
<PR784540>
0
3
0