Australian Federated Union of Locomotive Employees v Queensland Rail Transit Authority T/A Queensland Rail

[2020] FWC 5675

[2020] FWC 5675

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Federated Union of Locomotive Employees
v
Queensland Rail Transit Authority T/A Queensland Rail
(C2020/7592)

COMMISSIONER HUNT BRISBANE, 27 OCTOBER 2020

Application to deal with a dispute – alleged dispute concerning the discipline process currently being required to participate in by the Respondent – artificial construct by Applicant of an alleged dispute to delay investigation – recommendation made.

[1] On 12 October 2020, the Australian Federated Union of Locomotive Employees (the AFULE) made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) on behalf of its member, Mr Kerry Woodroofe asserting that it was in dispute with Mr Woodroofe’s employer, Queensland Rail Transit Authority T/A Queensland Rail (Queensland Rail).

[2] Mr Woodroofe’s employment is governed by the Queensland Rail Traincrew Enterprise Agreement 2017 (the Agreement), and he is employed by Queensland Rail as a Locomotive Driver. The Agreement contains a disputes procedure at clause 21, providing for arbitration by the Fair Work Commission (the Commission) of disputes between employees and Queensland Rail. There are a number of steps that must be taken prior to the Commission being vested with the authority to arbitrate the dispute.

[3] On 27 May 2020, Mr Woodroofe was randomly drug tested and returned a non-negative result for Methamphetamine; a reading of 140ng/ml confirmed in a laboratory test on 29 May 2020. I am informed that such a reading is more than 5.6 times above the detectable limit of 25ng/ml.

[4] Understandably, Mr Woodroofe was stood down as a result of the testing that has been undertaken. He is stood down with pay. An investigation is currently underway.

[5] On 15 June 2020, the AFULE notified a step 1 dispute on the basis that Mr Woodroofe had not been interviewed by the investigator. This was escalated to a step 2 dispute on 22 June 2020. On 24 June 2020, Queensland Rail confirmed that Mr Woodroofe would be interviewed and on 25 June 2020 the AFULE withdrew the dispute.

[6] After information gathering occurred throughout July 2020, an investigation report was issued on 7 August 2020 to Mr Woodroofe and to the AFULE requiring Mr Woodroofe’s response by 12 August 2020.

[7] On 11 August 2020, the AFULE notified a fresh step 1 dispute asserting, “The issue in dispute has arisen as a result of a report communication of findings in relation to a single allegation of fact put to our member, which makes conclusions about allegations that were not put to our member.” The AFULE notified that Mr Woodroofe would not be responding to the investigation report.

[8] An additional step 1 dispute was notified by the AFULE, asserting, “The AFULE and QR are in dispute in relation to the failure to observe the provisions of the Drug and Alcohol Management Standard in relation to our member, Kerry Woodroofe, specifically we are in dispute over the refusal to have our member psychologically assessed.” I note that 2.15 of the Queensland Rail Standard – Alcohol and Other Drugs Version 7.0 states the following:

“Any Queensland Rail employee who tests positive for alcohol or other drugs must also be referred for an alcohol and other drugs assessment with a psychologist before resuming work.”

[9] It is clearly far too premature a step for a psychological assessment to be undertaken in Mr Woodroofe’s circumstances where he to-date has refused to respond to the investigation report.

[10] A meeting was held on 17 September 2020 between AFULE representatives and Queensland Rail representatives. It was stated by AFULE representatives that there was a dispute on foot, however Queensland Rail representatives have stated in a response to the Commission that they do not understand the nature of the dispute. On 23 September 2020, Queensland Rail wrote to the AFULE as follows:

“We remain unclear as to what you are disputing in relation to the Communication of Findings. The fact is that Mr Woodroofe presented to work with drugs in his system. There is no more to the allegation than that.

We remain unclear as to what you are disputing in relation to the psychological assessment. We have advised there is no need for a psychological assessment under our Drug and Alcohol Management Standard, however you seem to have disregarded that point and our request for further and better particulars.”

[11] With further correspondence between the parties, on 9 October 2020, the AFULE communicated that it considered Queensland Rail to be in breach of the status quo provisions on the disputes procedure. Issuing a “tracked changes” version of the investigation report to Queensland Rail, the AFULE further stated:

“I will consider advising our member to respond to the report if it is amended as outlined in the document attached. I believe the provided amended report accurately represents the allegations alleged and the responses delivered by Mr Woodroofe. However, there will be no response to the material report until the status quo dispute is resolved.”

Conference

[12] A telephone conference was convened before me on 16 October 2020. The following people participated in the conference:

•  Mr Michael McKitrick, AFULE State Secretary;

•  Ms Melissa Brewer, AFULE Industrial Officer;

•  Mr Kerry Woodroofe, Locomotive Driver;

•  Mr Dion Matley, Employee Relations Manager of Queensland Rail; and

•  Mr Michael Hawkins, Senior Manager Employee Relations of Queensland Rail.

[13] After hearing from the parties, I stated that I was inclined to make a recommendation pursuant to s.595(2) of the Act reproduced below:

“595 FWC’s power to deal with disputes

…..

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

…..”

[14] I informed the parties that I held this view because I considered that the AFULE was attempting to create a dispute when in fact it would not accept, on behalf of its member that Queensland Rail had produced an investigation report which the AFULE wanted re-written. I informed the parties that it is not for the AFULE to re-write Queensland Rail’s investigation report and insist that Mr Woodroofe will not respond to it until such time as Queensland Rail accepts the re-worded AFULE version.

[15] I recall stating to the parties that this cannot have been the first time a train driver has produced a non-negative drug or alcohol sample, and the process that is typically followed should follow; not an artificial construct of an alleged dispute in order to dramatically slow down and attempt to strangle the investigation of the issue. In my view, the AFULE is artificially creating an alleged dispute on behalf of its member, and it has been unable to articulate the dispute. The real effect of this course of action would be to require the Commission to determine an alleged dispute which could take a substantial period of time when regard is had for programming of material, a hearing and then a decision as to whether a dispute exists or not.

[16] Further, I informed the parties that if the AFULE or Mr Woodroofe had any concerns relevant to the investigation report, the course of action that should be adopted is to note such concerns within a formal response; not insist that the investigation report cannot stand because the AFULE does not agree with some of the words within it.

[17] Following the conference, the AFULE submitted that I should not make a recommendation, and that the matter in dispute was relevant to the status quo (only).

[18] I reject such construct put by the AFULE for the reasons available to the Commission at s.595(2) of the Act. It is the AFULE’s alleged dispute to which this recommendation is made. I have formed a view that it is baseless, without merit and an inappropriate course of action designed to artificially delay the obligation Mr Woodroofe has to respond to the investigation report issued to him. Given my views on the matter, if the application is pressed, I will have the application allocated to an alternative Member of the Commission.

Recommendation

[19] I recommend Mr Woodroofe respond to the investigation report as he has been directed to do so by Queensland Rail, and he do so within seven days of this recommendation.

COMMISSIONER

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