Australian Rail, Tram and Bus Industry Union
[2012] FWA 4142
•14 MAY 2012
[2012] FWA 4142 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
(C2012/8)
Australian Federated Union of Locomotive Employees
(C2012/2178)v
QR Limited T/A QR National
COMMISSIONER ASBURY | BRISBANE, 14 MAY 2012 |
Applications for FWA to deal with a dispute in accordance with a dispute settlement procedure - Subject matter of applications previously determined in earlier dispute proceedings - Agreement provisions unchanged - Unions estopped from pursuing the same issue in new proceedings - Applications have no reasonable prospects of success - Applications dismissed.
THE APPLICATIONS
[1] On 5 January 2012, the Australian Rail Tram and Bus Industry Union (RTBU) made an application under s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to deal with a dispute between the RTBU and QR National (QRN) in accordance with a dispute settlement procedure. The dispute is said to be about the following issues arising under the QR National Traincrew Enterprise Agreement 2010 (the Agreement):
- QRN has undertaken a review of rostering as part of its business covering traincrew. Rosters are developed at a depot level in accordance with the requirements of the Agreement.
- QRN have adopted an approach where hours of work are averaged beyond the standard 8 week roster cycle.
- Clauses 48 and 78 of the Agreement have been determined by a decision of FWA in RTBU v QR Limited (DR2010/193) to mean that accrual of excess time is not able to be averaged beyond an 8 week period.
- The RTBU contends that QR is in breach of not only the custom and practice relating to roster development but also the settled meaning of the relevant clauses.
[2] The relief sought by the RTBU is that QRN pay for excess time at the completion of each 8 week roster period in accordance with the terms of the Agreement and its settled interpretation.
[3] On 9 January 2012 an application in similar terms was filed by the Australian Federation of Locomotive Employees (AFULE) in relation to a dispute at Bluff Depot over the proposed Master Diagram for that depot. The particulars of the dispute are said to be that QRN has failed to roster the Master Diagram in compliance with the Agreement by developing a separate diagram for Tutor Drivers and by rostering an average of more than 320 hours in each 8 week roster cycle. The relief sought by the AFULE is that QR develops a Master Diagram for the Bluff Depot that complies with the Agreement.
QRN’S JURISDICTIONAL OBJECTION
[4] QRN’s jurisdictional objection is limited to any alleged dispute that contends that QRN is prohibited by the Agreement from rostering employees for more than 320 hours in an eight week cycle. QR contends that there is no dispute of this type before FWA, on the basis that there is no capacity in the dispute procedure in clause 31 of the Agreement, for the re-agitation of a resolved dispute. Without a dispute of the requisite character, the dispute procedure and its steps are not enlivened and FWA has no jurisdiction to arbitrate a dispute already resolved.
[5] According to QRN, the contention of both Unions in the applications that lead to the decision of FWA as presently constituted in [2010] FWA 3560, was that QRN could not roster employees above 320 hours in an 8 week cycle and that to do so was a breach of clause 66 of the previous QR Traincrew Limited Union Collective Workplace Agreement 2009 (the 2009 Agreement) which is in identical terms to clause 78 of the current Agreement. One of the issues for determination in that matter was: “Can more than 320 ordinary hours be worked in a roster cycle.” QRN further submits that in that decision it was determined that employees could be rostered for more than 320 hours each 8 week cycle. Accordingly, the issue sought to be dealt with in the present applications, was intrinsic to the decision in [2010] FWA 3560.
[6] QRN also pointed to the fact that when the current Agreement was negotiated in 2010, the AFULE and RTBU had not sought to renegotiate clauses which had been subject of the dispute dealt with in the decision in [2010] FWA 3560 and agreed to the continuation of those clauses. The Unions now sought to agitate a different outcome. The 2010 dispute has an enduring resolution and any dispute over rostering above 320 hours in a cycle continues to be resolved by the dispute procedure and the FWA decision in [2010] FWA 3560. FWA does not have the power to re-enliven resolved disputes, because to do so would be inconsistent with the dispute procedure and the Act.
[7] QRN also submits that by re-agitating the dispute resolved by FWA in 2010, the Unions and their members are breaching the dispute procedure in the Agreement and that it would be problematic for the future industrial conduct of the parties if this was permitted. According to QRN, the proper course for the Unions and/or traincrew (should they desire) is to raise this issue in future enterprise bargaining negotiations.
AFULE/RTBU SUBMISSIONS
[8] The AFULE and the RTBU submit that the decision in [2010] FWA 3560 does not give rise to issue estoppel because the matters in the present dispute were not part of the essential foundations of the earlier decision. The matters arbitrated and settled in [2010] FWA 3560 are outside of the scope of the subject matter of the current dispute. The Unions contend that the decision does not determine questions relating to “diagramming”, but rather, determines questions in relation to rostering.
[9] Clause 78 of the Agreement provides for the establishment of a master diagram and clause 85 provides for the establishment of a daily roster. The current dispute relates to whether:
- QRN can diagram in the master diagram more than 320 ordinary hours per 8 week roster cycle; and
- QRN can permanently diagram excess hours as part of the master diagram.
[10] The AFULE and RTBU do not dispute that employees can be required to work beyond 320 hours in an 8 week roster cycle.
CONSIDERATION
[11] Clause 78 of the current Agreement provides for the establishment of a master diagram. That clause is substantially identical to clause 66 in the 2009 Agreement, which was considered in [2010] FWA 3560. Clause 85 of the current Agreement sets out rostering principles applicable to the daily roster. That clause is in substantially identical terms to clause 69 of the 2009 Agreement but was not specifically referred to in the decision in [2010] FWA 3560. I also note that the term “master diagram” is defined in both the 2009 and the 2010 Agreements as:
“A table outlining the anticipated work required for a depot during a nominated time frame.”
CONCLUSIONS
[12] The decision in [2010] FWA 3560 specifically determined that QRN is not limited to rostering employees for a total of 320 hours in an 8 week roster cycle. 1 QRN is limited to rostering 320 ordinary hours in an 8 week cycle. It was also determined that a roster cycle can include shifts that comprise ordinary hours and excess time or a combination of both2 and that QRN can supplement the 320 ordinary hours in an 8 week roster cycle with excess hours3. Further, it was determined that QRN is able to roster employees in available hours provided that hours worked in excess of 320 hours in an 8 week cycle are treated as excess hours, and subject to the limitations on rostering in the Agreement.4
[13] A master diagram is simply a table outlining anticipated work for a depot during a nominated time frame. Regardless of whether the master diagram is a roster, it forms the basis of rosters. For the reasons set out in [2010] FWA 3560, rosters are not limited to ordinary hours. I can see no basis for construing the provisions of the Agreement relating to master diagrams so that QRN is prohibited from including excess hours in a master diagram, when it is not prohibited from rostering excess hours.
[14] It is axiomatic that a dispute over the capacity of QRN to roster employees to work excess hours, and the maximum number of ordinary hours in a roster cycle, also dealt conclusively with the subject matter of the applications subject of these proceedings. The matters in issue have already been determined and the issue of excess hours, whether in rosters or master diagrams, sought to be agitated in the present applications, were necessarily decided by the prior decision in [2010] FWA 3560 and were “matters cardinal” to the point in issue. 5 Accordingly, the AFULE and the RTBU are estopped from pursuing the same matters in these proceedings.
[15] Further the dispute procedure in clause 31 of the Agreement does not empower FWA to deal with disputes in relation to matters that have already been dealt with under that procedure. The Applications have no reasonable prospect of success and I have decided that they should be dismissed, in accordance with s.587(1)(c) of the Act. An Order to that effect will issue with this Decision.
[16] The arguments advanced by the Unions did not address the relief sought by the RTBU with respect to payment for excess time at the completion of each roster period, and this decision does not deal with that issue.
COMMISSIONER
Appearances:
Ms A. Kent on behalf of the Australian Rail, Tram and Bus Industry Union.
Ms M. Brewer on behalf of the Australian Federated Union of Locomotive Employees.
Mr M. Heenan and Mr A. Walker on behalf of QR National.
Hearing details:
2012.
Brisbane:
February 3.
1 [2010] FWA 3560 at [88].
2 Ibid at [101].
3 Ibid at [102].
4 Ibid at [10].
5 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union v Inhams Enterprises Pty Ltd (B2010/3486) and (B2010/3487) [2011] FWA 2730 per Ryan C citing Blair v Curran (1939) 62 CLR 464 at 531 - 532 per Dixon J
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