STATEMENT

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

Australian Rail, Tram and Bus Industry Union & Australian Federated Union of Locomotive Employees
v
Australian Eastern Railroad Pty Ltd
(C2014/7422; C2014/8231)

DEPUTY PRESIDENT SAMS

SYDNEY, 25 MARCH 2015

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 16 December 2014, the Australian Federated Union of Locomotive Employees (AFULE) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the Dispute Resolution Procedure of the Australian Eastern Railroad North Queensland Rail Operations Enterprise Agreement 20111 [AE884420] (the ‘Agreement’). I conducted a conference of this dispute on 18 December 2014 at which the Australian Rail, Tram and Bus Industry Union (RTBU) sought and was granted leave to intervene. The RTBU subsequently filed its own application, in similar terms to AFULE’s application, pursuant to s 739 of the Act on 22 December 2014 and the matters were joined. As the matter was unable to be settled between the parties, a preliminary timetable was set out for the matter to be arbitrated.

[2] The Clause of the Agreement dealing with ‘Resolving Differences’ is set out at Cl 52 of the Agreement and there is no argument these applications are competently before the Commission.

[3] Shortly stated, the dispute related to the intention of Australian Eastern Railroad Pty Ltd to roster tuition shifts with a shift limitation of 11 hours for drivers learning the route between Townsville and Hughenden and between Cloncurry and Hughenden, in Queensland. The AFULE and RTBU (collectively, the ‘Unions’) were of the view that this is a breach of the limitation of hours provision in cl 20.3 of the Agreement.

[4] The matter was initially set down for a preliminary hearing on 8 January 2015 to deal with a disagreement as to the status quo to be observed while the dispute was dealt with by the Commission. However, immediately prior to the commencement of that proceeding, the respondent notified the Commission that it would, on a without prejudice basis, observe the status quo as interpreted by the Unions while the dispute was being dealt with by the Commission. On that same day, I issued directions for the Unions to identify the question to be arbitrated by the Commission and for the parties to file evidence and submissions in support of their respective positions. The matter was set down for arbitration on 5 March 2015 in Brisbane.

[5] In a joint submission lodged by the Unions on 16 February 2015, the Unions identified the question to be arbitrated by the Commission as follows:

‘Is rostering traincrew on an 11 hour route tuition shift in circumstances where the driver learning the route has no route knowledge at all and in circumstances where the company has not provided a training plan in breach of the AER agreement?’

SETTLEMENT

[6] At the hearing of the application on 5 March 2015, Mr M Brewer appeared for the AFULE, Mr P Allen for the RTBU and Mr A Walker for the respondent. The parties advised that they had reached an agreement on the answer to the question to be arbitrated. They indicated it would be helpful to record their agreement on the record. Mr Walker asked that the identification of the respondent in this matter as being Aurizon Operations Limited, be amended to Australian Eastern Railroad Pty Ltd, which was not objected to by the Unions. I amend both applications accordingly.

[7] The parties asked that the agreed answer to the question be recorded in a Statement of the Commission, as follows:

‘Where a Locomotive Driver has partial route knowledge (having had route orientation in accordance with 7.2 dot point one of the AER Attaining Route Competency Standard Procedure) by being signed off as having completed route orientation then they may be rostered in accordance with clause 20.1 of the AER Agreement 2011 for 11 hours provided they are with a Locomotive Driver who has full route competency.

A locomotive Driver with no route knowledge at all of the relevant section of the route must be rostered in accordance with clause 20.3 of the AER Agreement 2011.’

[8] As the dispute between the parties is resolved and all other contingent matters are finalised, these proceedings are concluded and the two files are closed

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Australian Rail, Tram and Bus Industry Union and the Australian Federated Union of Locomotive Employees brought a claim against Australian Eastern Railroad Pty Ltd, alleging a dispute about matters arising under the relevant enterprise agreement and the National Employment Standards. The unions sought to have the dispute resolved by the Commission, arguing that the employer had breached the agreement and failed to comply with the NES. The employer, in turn, contended that the dispute did not fall within the jurisdiction of the Commission, as it involved issues that were not covered by the enterprise agreement or the NES.

The primary legal issue before the Commission was whether the dispute was about matters arising under the enterprise agreement or the NES. The unions argued that the dispute involved conditions of employment, such as overtime rates and shift patterns, which were covered by the agreement and the NES. The employer contended that the dispute was about broader employment issues, such as performance management and disciplinary processes, which were not covered by the agreement or the NES. The Commission had to determine whether the dispute was within its jurisdiction, and if so, whether it was about matters arising under the enterprise agreement and the NES.

The Commission found that the dispute did involve matters arising under the enterprise agreement and the NES, as the unions' claims related to specific conditions of employment that were covered by the agreement and the NES. The employer's argument that the dispute was about broader employment issues was rejected, as the Commission found that the unions' claims were focused on the interpretation and application of the agreement and the NES. The Commission held that it had jurisdiction to resolve the dispute, and that the dispute was about matters arising under the enterprise agreement and the NES. The Commission ordered that the dispute be referred to arbitration, with a view to reaching a resolution that was in accordance with the agreement and the NES.

The Commission made orders referring the dispute to arbitration, with a view to resolving the issues in accordance with the enterprise agreement and the NES. The parties were directed to participate in the arbitration process in good faith, and to make all necessary arrangements to facilitate the arbitration. The Commission also made orders for the payment of costs associated with the proceedings, to be borne equally by the parties.

Australian Rail, Tram and Bus Industry Union & Australian Federated Union of Locomotive Employees v Australian Eastern Railroad Pty Ltd

STATEMENT

SETTLEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established