No judgment structure available for this case.

[2015] FWC 1682

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited
(C2015/1454)

COMMISSIONER SPENCER

BRISBANE, 21 APRIL 2015

Part-time hours after maternity leave not a ‘compassionate’ category of work. No basis to reduce part-time pay rate - alleged discriminatory conduct.

[1] This decision relates to an application by the Rail, Tram and Bus Industry Union (the RTBU/the Applicant/the Union), and concerns the return to work at Aurizon Operations Limited (the Respondent/Employer) after Ms Shannon Thompson took a period of maternity leave. Ms Thompson is employed as a Locomotive Driver Class II.

[2] In summary, the dispute between the parties concerns the application by Ms Thompson to return to part-time work with the Employer, after a period of maternity leave. In her application for return to part-time work, Ms Thompson specifically sought part-time hours in line with available childcare hours, and a roster of hours was agreed upon, working these hours. The Respondent agreed to Ms Thompson’s return to work part-time. However, the Respondent sought to pay Ms Thompson for these rostered part-time hours under the clause in the QR National Traincrew Enterprise Agreement 2010 (the Agreement) entitled “Work Restrictions on Compassionate Grounds/Short Term Medical Disability” (clause 54), at a rate less than the pro rata part-time rate of remuneration. The Union strongly opposed the Respondent’s application of clause 54 and the categorisation of the return to work as involving disability on compassionate grounds.

[3] The Applicant was represented by Ms Carla Jones of the RTBU. The Respondent was represented by Mr Darren Hooper, of Aurizon.

[4] Directions were set for the filing of material relevant to the dispute. After the conference, the parties requested that, pursuant to clause 31.15 of the disputes procedure in the Agreement, the Commission resolve the dispute by arbitration. The parties agreed that after providing information at the conference and the provision of further submissions, that the matter could be decided on the papers.

[5] The resulting agreed part-time roster between the Respondent and Ms Thompson was as follows:

The roster
Mon	Tue	Wed	Thu	Fri	Sat	Sun
Week 1	0700-1730	0700-1730	Night
Week 2	0700-1730	0700-1730	Night

[6] The roster included fixed work each week, on Monday and Tuesday, a shift on Thursday night and in the following fortnight, a shift on Saturday night in lieu of the Thursday night. The Union emphasised that this fortnightly roster of work includes shift-work, night and weekend work.

[7] In providing the part-time work roster, the Respondent described it as a “permanent part-time roster” or a fixed roster and that the resulting remuneration to Ms Thompson will reduce from the full-time rate, paid to her prior to maternity leave, not to a pro-rata part-time rate (the Union considered is applicable), but to a lesser rate. The Respondent, in remunerating Ms Thompson, submitted that she was working a restricted roster and therefore, relied on clause 54 Work Restrictions on Compassionate Grounds/Short Term Medical Disability of the Agreement.

[8] The Union, on behalf of Ms Thompson, submitted that there was no basis in the Agreement for this reduction in rate, and that the Agreement did not provide a distinction between flexible and fixed part-time rosters, that supported such a reduction in wages. The Applicant argued that the Respondent’s application of clause 54, instead of the part-time provisions, to this return to work on a part-time basis (due to parental responsibilities), was discriminatory conduct.

Relevant Agreement and Legislative Clauses

[9] 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.

[10] The Disputes Procedure provides as follows:

31. DISPUTE PROCEDURE

...
31.15 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 FWA is authorised to resolve the dispute by private arbitration…..

31.18 Where the dispute is subject to private arbitration, the decision of FWA is binding.

[11] The following clauses in the Agreement were relied upon by the parties.

8. CONTRACT OF EMPLOYMENT

…
Part-Time Employment

8.6 Part-time employees are those who work less than full-time hours.

8.7 Part-time Employees can be employed for;

8.7.1 part of a whole year working full 8 week roster cycles; or
8.7.2 part of a 8 week cycle, for each roster cycle across each year; or
8.7.3 part of a 8 week cycle across a reduced number of roster cycles each year

8.8 The agreed maximum ordinary hours are to be less than the full-time 2080 hours

8.9 The agreed minimum ordinary hours are to be set at no less than 25% of the ordinary hours of a full-time employee.

8.10 Employees may work any variations of the agreed ordinary hours, between the maximum and minimum hours.

8.11 Part-time employees receive, on a pro-rata basis, equivalent pay and conditions to those of full-time permanent employees who do the same kind of work.

8.12 Part-time employees will have their agreed ordinary hours annualised in the same way as full-time employees, and the parts of this Agreement applying to annual hours and roster cycles apply to part-time employees, with any necessary modifications.

8.13 Where a part-time employee works for only part of each year, they will have their hours reconciled at the cessation of their yearly workings. The provisions of the Excess Time subclause will apply with appropriate modification

8.14 For a part-time employee, excess hours means all hours credited to the employee in excess of their agreed ordinary hours, averaged over the year, or, where the employee works only part of the year, averaged over that part of the year.

8.15 Where an employee and the Company agree in writing, part-time employment may be converted to full-time, and vice-versa, on a permanent basis or for a specified period of time. If such an employee transfers from full-time to part-time (or vice-versa), all accrued entitlements will be maintained. Following transfer to part-time employment, accrual will occur in accordance with the clauses relevant to part-time employment.

8.16 At the time of engagement, the Company and employee will agree in writing on the number of ordinary hours to be worked per week.

8.17 The agreed number of ordinary hours per week may only be amended by agreement and will be recorded in writing.

8.18 Any amendment to the normal weekly pattern of work will be by agreement with the employee/s directly affected.

17. ANNUAL LEAVE

Entitlement to annual leave

17.1 Permanent and fixed-term full-time train crew accrue 200 hours annual leave per year of service. An employee’s entitlement to annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Payment of annual leave

17.6 For each ordinary hour of annual leave taken, employees will be paid at the full flat rate received by the employee immediately before taking annual leave.

17.7 Annual leave loading will not be paid to an employee who is paid the full flat rate as this loading is incorporated into the full flat rate…

54. WORK RESTRICTIONS ON COMPASSIONATE GROUNDS/SHORT TERM MEDICAL DISABILITY

54.1 Where an employee is not able to perform full depot duties for compassionate reasons, or due to a short term medical disability, they will retain their full flat rate for a period of 6 weeks.

54.2 Periods which exceed 6 weeks will be reviewed on a case by case basis to determine the percentage of the full flat rate to be paid to the employee for the period exceeding 6 weeks. The amount paid will be no less than the base rate of pay for traincrew set out in schedule 1 (wage rates).

54.3 This determination will be made in consultation with state workplace representatives and be referred to the Traincrew Agreement Implementation Committee as set out in Clause 27 (Communication and consultation).

106. WAGES NOT TO BE REDUCED

106.1 Employees will receive not less than their classified rate of pay, irrespective of the class of work performed except where set out in the clauses referring to work restrictions on medical grounds and for short term medical disability and compassionate grounds.

(emphasis added)

Summary of the Applicant’s submissions

[12] In terms of the relevant payment applicable to Ms Thompson, the RTBU stated that the penalty allowance (a component of the full flat rate) is an amount which includes compensation for working shift work, working weekend penalties and annual leave loading.

[13] The RTBU submitted that Ms Thompson is working a roster which includes shift work and weekend work, and therefore the allowance was applicable.

[14] It was submitted that, as Ms Thompson is working 75% of a full-time roster, which includes shift work, night shifts and weekend work, she should therefore be paid 75% of the full flat rate including the penalty allowance, as the Agreement makes allowance for such part-time work on this basis. The full flat rate is listed in Schedule 1 as $120,473. This is an annual rate.

[15] The RTBU submitted that the Agreement provisions make no distinction, about whether a person is required to work flexibly across the range of part-time hours. The RTBU submitted that this was an artificial distinction, with no basis in the Agreement.

[16] The RTBU argued that the Respondent was improperly using clause 54 which referenced “compassionate grounds” and submitted that the clause is to apply for short periods of time only. In addition, it was submitted that the 6 week period included in clause 54 demonstrated the short-term nature of the clause, and that it is not intended to apply to employees, who require a longer period of part-time work such as Ms Thompson.

[17] Further, the RTBU submitted that having the care of a child should not be considered as a “compassionate” ground and it is insulting to those who have raised children and the approach is discriminatory.

[18] Ms Jones submitted this was discrimination on the grounds of a person’s family responsibilities, as Ms Thompson can only access childcare on specific days and at specific times, and that she is being treated differently than someone who is also working part-time but can work more flexibly.

[19] The RTBU submitted that the relevant part-time clauses made no mention of reducing the annualised penalty allowance, in the manner adopted by the Respondent.

[20] The RTBU referred to another employee, whose situation had been allegedly treated differently to Ms Thompson. The other employee had been employed on a part-time basis since her return from parental leave; she had fixed work hours and received the full flat rate of pay, including the penalty allowance, at a pro rata rate. The RTBU submitted that after this matter was raised with Aurizon, the Respondent approached this other employee and asked for flexibility to her start times. It was submitted that she was also advised that, should she not accept those flexible times, her hourly rate of payment will be reduced. That other employee was able to accept the flexible start times and maintained her pay rate and has not raised a complaint. The RTBU stated that this highlighted the discrimination in relation to employees, who were working mothers and not able to meet such a flexible roster given the rigid nature of childcare placements.

[21] The RTBU also noted that sick leave and long service leave is paid at the full flat rate.

[22] The RTBU stated that all hours of work are paid equally under the Agreement - and if employee A was by chance rostered on Monday-Friday day shifts they would receive full flat rate.

Summary of the Respondent’s submissions

[23] The Respondent submitted that employees under the Agreement are paid a base rate of pay ($34.66/hour) and a penalty allowance ($23.25/hour) and that together this is the full flat rate ($57.91/hour). According to Schedule 1 to the Agreement, Drivers at Coal 1 (Jilalan, Coppabella, Callemondah, Bluff), are paid a base rate of pay $72,103 per annum and a penalty allowance of $48,370 per annum. Together these two payments equal the “full flat rate” of $120,473 per annum.

[24] The penalty rate includes compensation for penalty loadings and allowances for working shift work, weekends, and annual leave loading.

[25] The Respondent relied on clause 54 to support its position of reducing Ms Thompson’s penalty rate as a consequence of not being able to perform full depot duties.

[26] The Respondent referred to a Table in their submissions, that details the reductions to the penalty allowance depending on the restricted roster and submitted that the model remuneration works by detailing the percentage reductions to the penalty allowance, where an employee works a restricted roster and makes themselves available for certain shifts:

Monday to Friday: Day shift only	0% of the penalty allowance plus base rate for all hours worked
Monday to Sunday: Day shift only	30% of the penalty allowance plus base rate for all hours worked
Monday to Friday: Days and nights	50% of the penalty allowance plus base rate for all hours worked
Saturdays and Sundays only	100% of the penalty allowance plus base rate for all hours worked

[27] The Respondent submitted in relation to the above table that:

“(the) model is based on spans of availability in which the amount of loading is considered along with the frequency of the loaded hours. Therefore while weekend shifts generally enjoy a higher loading than night work, weekends are less frequent than nights and as a result an employee who makes themselves available to work days and nights Monday to Friday will receive a greater percentage of the penalty rate for all hours worked than an employee who makes themselves available to work weekends but only during the day.”

[28] The Respondent submitted that Ms Thompson has not made herself available for a span of shifts (as contemplated in the Table), but has requested to work set shifts only. Therefore, the Respondent submitted that the Table could not apply in this case, and accordingly applied clause 54.

[29] The Respondent submitted that in Ms Thompson’s case, and in others where there is a set shift (rather than a fully flexible roster), the determination is based on the value of each shift using the formula in the Table, and then averaging the percentages to determine the penalty allowance for all hours worked.

[30] The Respondent submitted that, using this methodology, the average hourly rate is $40.48.

[31] Ms Thompson’s set fortnightly shifts involve four Monday-Friday day shifts (0%), one Monday-Friday night shift (50%), and one Saturday or Sunday shift (100%). The average of the percentages of penalty allowance for the six shifts per roster is 25%. Accordingly, 25% of the penalty allowance ($23.25) is $5.8125. The Respondent argued that Ms Thompson’s penalty allowance for all hours worked should be at this rate. This equates to a total rate [Base rate ($34.66) + penalty allowance ($5.8125)] of $40.4725, or $40.48, as the Respondent submitted.

Considerations

[32] The Respondent relied on clause 54 of the Agreement in determining Ms Thompson’s return to work to be considered on compassionate grounds, therefore providing a full-time rate of pay for the first six weeks of Ms Thompson’s return to work, with a review after that. The Respondent proposed a reduced rate of pay for Ms Thompson, lesser than the pro-rata part-time remuneration as per clause 8.11. The review had not occurred given the matter was placed in dispute.

[33] The Respondent argued that the Employer was at liberty to rely on clause 54, as being applicable to the roster arrangements, in the circumstances where Ms Thompson cannot work the full-time roster or a flexible part-time roster. Accordingly, the Employer considered, in line with clause 54, that the full wage components of the aggregated salary relevant to shift-work and weekend work (where Ms Thompson had no available flexibility to undertake such work, to the level of other fully flexible employees), should not form part of the remuneration offered to Ms Thompson.

[34] In contrast, the Union’s position was that there was no foundation in the Agreement to offer this reduced remuneration for this part-time work to Ms Thompson. The Union considered that the reliance on clause 54 simply provided an artificial basis, to pay Ms Thompson a reduced amount for her rostered part-time hours, and was designed to assist in reducing the Respondent’s applicable overall wages bill.

[35] The Union was significantly opposed to this conduct by the Respondent, indicating that to treat a parent’s return to work, working part-time hours around available childcare arrangements, and for the employer to categorise such an arrangement, under clause 54 (Work restrictions on compassionate grounds/short term medical disability) was offensive and discriminatory.

[36] It was recognised by the Employer that clause 54 was regularly used for employees with medical conditions whom could not, for a period, fulfil the requirements of the position due to illness or injury. The Union argued that these were clearly not the circumstances of a return from maternity leave and to describe the care of a child in the terms of the provision, on compassionate grounds or due to medical disability, was misplaced and discriminatory conduct.

[37] The Union claimed the reliance on clause 54 was manufactured and that further, the Employer had not even endeavoured to engage in the required process in clause 54, that is, that any determination will be made in consultation with State Workplace Representatives and would be referred to the Traincrew Agreement Implementation Committee as set out in Consultation.

[38] At the conference, various examples were provided by both parties, as to how clause 54 had been used in the past. The use of clause 54 on compassionate grounds has been to accommodate temporary or transitory medical conditions where, for limited circumstances, an employee cannot fulfil the inherent requirements of the position. To use such a clause in the current circumstances misrepresents the situation.

[39] The current circumstances of Ms Thompson are markedly different from the application to the circumstances, set out in clause 54. The return from maternity leave and the ongoing care and responsibility for a child cannot be said to be equivalent to the circumstances of clause 54. Further, on Ms Thompson’s application for flexible working arrangements (which she is entitled to request as per s.65 of the Act), Ms Thompson recorded that she sought such part-time arrangements on a five year term. This does not reflect a temporary arrangement, reflective of the circumstances applicable to clause 54.

[40] In arguing for the relevance of clause 54 as the appropriate provision for payment for the part-time work, the Respondent particularly emphasised that clause 8.11 was not applicable, as it sets out that part-time employees receive, on a pro-rata basis, equivalent pay and conditions to those of full-time employees, “who do the same kind of work”.

[41] On this basis, the Respondent argued that if a part-time employee cannot hold themselves fully available, as a full-time employee is required to do, over a 24 hour/7 day period, from which the employer can select the relevant full-time or part-time hours, then the part-time employee is effectively only able to work a restricted roster. Therefore, the Respondent stated, this invokes the need for the Employer to respond on a compassionate basis via clause 54. On this basis, Respondent then is able to, after 6 weeks, undertake the review and to assess the roster and the associated remuneration for the 'restricted roster'. The Respondent referred to guidelines drawn up by the Human Resources department (which developed the Table for payment as previously included), which attributed particular percentages to the penalty allowances (as set out in Schedule 1 to the Agreement), depending on what hours the employee was rostered.

[42] On the methodology devised by the Employer, a percentage of the fixed roster penalty allowance provided a payment to Ms Thompson of $40.48 per hour (ordinary base rate plus $5.82 penalty allowance). The Respondent conceded this methodology does not form part of the Agreement.

[43] This is compared with the amount sought by the Union; where 75% of the full-time hours are being worked by Ms Thompson and therefore, on a pro rata basis, Ms Thompson should be paid 75% of annual salary on the full flat rate of $57.91/hour, which is equivalent to $90,354.75 per annum (75% of the full-time full flat rate per annum as set out in Schedule 1).

[44] Clause 54 allows for an initial six week period of full remuneration to respond to a situation requiring the compassionate consideration of the Employer. Many examples of such were discussed between the parties, in the conciliation of this matter. Predominantly, such examples referred to emergent medical, family, caring or personal situations that lent themselves to the framework of clause 54, whereby the employees were retained on the full-time rate for 6 weeks to deal with the situation, and then as agreed, to allow for a review of the circumstances after appropriate consultation.

[45] In this matter Ms Thompson clearly held out that she wished to return to part-time hours and what hours she could work and an agreed roster was set. Nothing in this situation is suggested to alter after six weeks, further, nothing has been subject to the consultation as required by clause 54.

[46] The Agreement does not provide any basis or definition of a 'restricted roster'. The Agreement does provide specific provisions for the payment of part-time employees as set out again for convenience:

EMPLOYMENT RELATIONSHIP

8. CONTRACT OF EMPLOYMENT

…

Part-Time Employment