Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited

[2015] FWC 2758

[2015] FWC 2758

FAIR WORK COMMISSION

STATEMENT

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

Australian Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited
(C2015/2537)

COMMISSIONER SPENCER BRISBANE, 22 APRIL 2015

Alleged dispute - application of clause 73.2 “Working of nominated leisure periods - work preferences” - rostering process alleged to indirectly discriminate against employees with family responsibilities

Introduction

[1] This Statement is made at the request of the parties, following the conference held on Wednesday 22 April 2015, in relation to the application made by the Australian Rail Tram and Bus Industry Union (the Applicant/RTBU/Union) pursuant to section 739 of the Fair Work Act (the Act), in relation to a dispute arising under the QR National Traincrew Enterprise Agreement 2010 (the Agreement).

[2] The dispute relates to the application by Aurizon Operations Limited (the Respondent) of clause 73.2 (Working of nominated leisure periods - work preferences) of the Agreement. The Applicant alleged that the management of the selection of employees for overtime rosters is “indirectly discriminatory, to employees with ‘family responsibilities’”.

Relevant legislative and agreement provisions

[3] Sections 738 and 739 of the Fair Work Act provide as follows:

738 Application of this Division

This Division applies if:

...
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
...

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.

[4] The Dispute Procedure in the Agreement provides as follows:

31. DISPUTE PROCEDURE

...

31.12 Where the dispute remains unresolved, it may be referred to Step 4 by way of an application to Fair Work Australia (FWA). The application to Fair Work Australia must be lodged within 3 working days of the employee receiving written notice of the Company’s decision. For the purposes of this clause a “working day” shall be any day other than Saturday, Sunday or Public holiday.

STEP 4:

31.13 Where an application is lodged in accordance with step 3 the Company will not implement the disputed changes until this step is completed. Where the application is lodged after 3 working days from the notice referred to in step 3, the company may implement the change and the matter may only proceed to conciliation.

31.14 FWA will first attempt to resolve the dispute by conciliation. The employee and the company will act expeditiously and without delay to progress the dispute. Due consideration will be given to any recommendation made by FWA...

[5] The following clauses in the Agreement were relied upon by the parties:

73. LEISURE PERIODS

Working of nominated leisure periods – work preferences

73.1 Employees are not required to accept work on their nominated leisure periods. No penalty will apply to employees who choose not to accept work on their nominated leisure periods.

73.2 Employees who are willing to accept work on a nominated leisure period will advise the Company whether they:

73.2.1 Can be automatically rostered on their nominated leisure period; or

73.2.2 Can be asked to accept work on their nominated leisure period.

Working of nominated leisure periods - emergency circumstances

73.3 Employees who have not nominated to accept work on their nominated leisure periods will not be approached to accept work unless they are the last resort in an emergency.

73.4 In such cases, the Company expects that the employee will accept the working if they are able to do so. However, acceptance is at the discretion of the employee.

Background

[6]  The Applicant stated that employees/Drivers are asked to advise whether they are available to work on their leisure period by indicating:

Y - Yes, I’m available
A - Ask me if I’m available; or
N - No, I’m not available

[7] In general terms, the Applicant alleged that the system in the clause disadvantages the Drivers with family responsibilities, because they tend to need to select “A” instead of “Y”. The Applicant submitted that, as the Respondent calls Drivers who select “Y” before “A” when rostering, those Drivers with family responsibilities are disadvantaged, as this practice limits their ability to earn as much as those without such responsibilities. It was argued that Aurizon are limiting access to rostered overtime to Drivers, who, due to family responsibilities, are not able to select “Y”, by first allocating work to those Drivers who select “Y”, and then secondly to those who select “A”.

[8] To remedy this, the Applicant sought to have the Respondent amend their process to ensure that those Drivers with family responsibilities are not disadvantaged by the system. The Applicant suggested that the Respondent could remove the “Y” category or treat “Y” and “A” in the same manner.

[9] In response, the Respondent stated that prior to and since the commencement of the Agreement, they have allocated work during leisure periods in the daily roster as follows:

• Employees who have advised as a “Y” in the system are allocated first on the basis they have agreed to be rostered automatically, which is consistent with clause 73.2.1 of the Agreement.



• Employees who have advised as an “A” in the system are approached after “Y” employees.

[10] Aurizon stated that utilizing the above process for allocation of work is consistent with the Agreement and that it does not accept that the process is a form of indirect discrimination.

Considerations

[11] The Applicant has alleged that the process of selection utilised by the Respondent for rostering is a form of indirect discrimination.

[12] Indirect discrimination is defined in the Anti-Discrimination Act 1991 (Qld) as follows:

11 Meaning of indirect discrimination

(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.

Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

[13] The process being utilised by the Respondent for rostering of additional shifts mirrors the process, as agreed between the parties, as set out in clause 73.2 of the Agreement.

[14] At the conference, it was recognised by the parties that those employees charged with preparing the roster, are often under pressure to complete the roster in a timely manner, to provide a reasonable amount of notice to employees on the roster. Accordingly, this was a feature in the consideration of the process for employees nominating their category of availability, that is: automatically available; or seeking to be called to confirm whether they can be available.

[15] Those employees who are automatically available are automatically rostered, which enhances the efficiency of the rostering process. Employees are at liberty to amend the nomination of the category of availability, as often as they require.

[16] After further hearing from the parties in conference, it was clear that a number of different considerations make up an employee’s decision, as to which category that employee nominates.

[17] This application was made, (for the reason as the Union stated), because some of the Union’s members, with family responsibilities, considered the selection categories (as stated) worked to their disadvantage, in terms of the number of rostered overtime shifts offered to them.

[18] However, it was acknowledged by the parties, at the conference, that a range of deliberations and considerations are made by employees, as to whether they elect to nominate themselves at a particular time, in a particular category of availability, for rostering. It is understood that those employees with family responsibilities may consider they do not have the same ability to make themselves automatically available for rostering. However, it was also recognised that some employees with family responsibilities do prioritise to make themselves automatically available for these additional rosters, to receive the associated remuneration or that working during these overtime shifts provides an easier time to accommodate family responsibilities and be available. As agreed by the parties, the considerations associated with which category of availability an employee elects to nominate, is an entirely personal decision, and may be varied by the employee at any time.

[19] It was also considered that some employees with family responsibilities or otherwise simply do not wish to be contacted for additional rosters or to compromise their 'leisure time' by working additional hours (category “N”) and that these elections must be respected. For these reasons, the three categories of optional nominations, indicating an employee’s availability, were developed and agreed between the parties. Given that the system that is being followed by the Employer, is only discharging that which was agreed and included in the Agreement provision, it cannot be concluded that the Employer is unilaterally engaging in any indirect discrimination.

[20] The agreed process between the parties, of electing a category of availability, was not designed to exclude any particular segment of the workforce, on the basis of an attribute, in particular, family responsibilities. The process accommodates (via the individual’s own election) whether employees wish to be considered for such rosters in a particular period, on an automatic basis or by confirmation by telephone first of their availability or not at all. The inclusion of the ‘automatic availability’ category does provide efficiency for the Employer, in developing a roster in a timely manner. In addition, it ensures that there is no unnecessary intrusion into an employee’s leisure time by unwarranted phone calls from the Employer, pursuing employees to work an additional roster.

[21] During the conference, various alternative methods were discussed by the parties that may provide an agreed equitable means of rostering employees. It was Recommended that these proposals should form part of the current bargaining discussions.

COMMISSIONER

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