[2017] FWC 955

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 Ltd
(C2015/7015)

COMMISSIONER SPENCER

BRISBANE, 20 FEBRUARY 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Further to Interim Decision [2016] FWC 4830 – direction to perform additional duties, not previously performed, for no additional remuneration – seeking higher grade allowance or work value – difficulties with application of claim - identification of ambiguity over application of new Agreement provisions and further material sought – interpretation of words required – limited further evidence and submissions provided on the interpretation of the clauses.

Introduction

[1] This Decision relates to an application filed by the Australian Rail, Tram and Bus Industry Union (the Applicant/the RTBU/the Union), pursuant to s.739 of the Fair Work Act 2009 (the Act), to deal with a dispute concerning additional work that Transport Operators (Shunters) are being directed to perform by Aurizon Operations Limited (the Respondent/Employer/Aurizon) at the Pring Depot in Queensland.

[2] An Interim Decision was released in this matter following a hearing. 1 The dispute arises in relation to the application of various clauses of the Aurizon Train Crew and Transport Operations Enterprise Agreement 2015 (the Agreement) and the Applicant’s claim that these employees are entitled to the Higher Grade Allowance (in clause 35) for the time undertaking these new duties. In summary, the Applicant claimed that the Respondent’s use of the Agreement provisions to have these additional duties undertaken, for no additional payment, was not agreed during the recent negotiations and was not permitted under the Agreement. The Respondent argued the combination of a number of clauses provided the basis for the duties to be undertaken with no additional payment.

[3] The Interim Decision identified that there was a lack of material provided by the parties relevant to the issues of ambiguity with the Agreement provisions, an absence of evidence on how these issues were dealt with at the negotiations and the basis for the amount that the Union was seeking as compensation for the additional duties. This decision should be read in conjunction with the Interim Decision.

[4] Further to the Interim Decision, Directions were issued to the parties, firstly, for the Applicant to file further material relating to their remuneration claim. The Applicant filed this material and a further conference was held and further Directions issued.

[5] Further Directions were issued for submissions in relation to Question 2a) of the Questions for Arbitration (set out below), given the Applicant no longer sought a work-value assessment, and for the filing of material in relation to the issue of ambiguity regarding the interpretation of the provision and the circumstances of their negotiation. Both parties agreed to file material in accordance with these Directions and confirmed the matter may be further determined on the papers.

[6] There is disparity between the parties as to whether these proposed additional duties in the current matter were addressed in the negotiations of this new Agreement as falling within the classification structure and the intent of clause 29. The Respondent stated the classification tasks and the clauses of the Agreement allow them to direct the employees to perform those duties. The Applicant stated there was no clear indication from the negotiations that the application of the new Agreement was going to be used in this way, to assign these additional duties, within the current pay range. The Respondent disagreed with this. However, the material provided did not advance past these general references.

[7] The authority of AMIEU v Golden Cockerel Pty Limited 2 is relevant in circumstances where ambiguity exists between the parties, in relation to the application of the wording of an Agreement clause. In the current circumstances, the ambiguity is whether the clauses relevant to these duties and the existing remuneration, allows the Employer to direct employees to undertake these new tasks.

[8] Further ambiguity exists in this matter, given that the Union has conceded that the employees are not performing the full duties relevant to an Advanced Trainee Driver/Train Crew Support payment, but are still seeking this Higher Grade Allowance based on the level of an Advanced Trainee Driver/Train Crew Support employee (who is not in receipt of the aggregate rate). Regarding the alternative remuneration claim (set out in the Interim Decision), there were no submissions based on a work value payment, which is relevant to Question 2(a) of the Questions for Arbitration.

[9] A further complicating factor with the remuneration claim was that, by applying the claimed wage differential to the hours of work whilst performing these additional duties, this amount would be compounded (by the application of this increased amount to a range of other payments as per clause 35.6 of the new Agreement.) That is, by applying it to the payment of overtime shift loadings and weekend loadings.

[10] The parties have rival contentions in relation to the use of these new Agreement provisions. Aurizon is relying on a broad reading of clause 29 and 42 to have these employees undertake duties which are clearly new in contrast with the long performed Shunters’ duties. No comparison of the changes to the Agreement provisions applicable to the duties was provided. The Union is aggrieved at the use of the clauses in this way given that the Agreement was so recently concluded and that the Employer’s interpretation gives rise to a marked change to Shunters’ work, that they argue was not discussed. Further this approach to extending the duties of a classification in this way could be applied, more broadly than just the current classification.

[11] In terms of the principles of AMIEU v Golden Cockerel Pty Limited, the Employer has not addressed evidence of such an interpretation from the negotiations, substantiating a mutual agreement in relation to this approach or, alternatively, whether this was simply the Employer’s intended approach and how they substantiate such in terms of the new Agreement. The new duties, on the evidence of the Union, provide a marked departure from the regular duties for this classification. In addition, the Union contends that the interpretation of the Agreement clauses in this way provides ambiguity, and does not afford the basis for the new duties.

[12] The assessment from the Interim Decision was that the parties are clearly in dispute and probative evidence, in terms of the requirements in AMIEU v Golden Cockerel Pty Limited relating to these matters is required. In addition, further consideration should be provided by the Union as to their remuneration claim as sought, given their concession that the employees would not fulfil the criteria of the higher grade or the allowance, and that no submissions were filed on a work value claim.

[13] Accordingly in setting further Directions to deal with these issues of ambiguity, the Applicant was first asked to deal with the remuneration claim in light of the comments made in the Interim Decision. Further submissions and evidence by these Directions was sought from the parties to decide the issue of the ambiguity and the outcome in relation to the direction to perform these additional duties.

Questions for determination

[14] The parties agreed on the following questions for arbitration:

1. Do the additional competencies that the Freight Operators at the Pring depot, are being trained in, fall within the scope of the “role for which they are employed” for the purposes of clause 29.4 of the Aurizon Train Crew and Transport Operations Enterprise Agreement 2015?

2. If question 1 is answered in the negative, should they be compensated for the relevant tasks at the rate equivalent of a Traincrew Support employee for the period of time that they are carrying out these tasks? (Clauses 35.4 – 35.8 “Higher Grade Allowance” apply.)

2(a). If question 2 is answered in the negative, should they be compensated for the period of time they are performing the relevant tasks based on the work value of those tasks?

3. Should the Freight Operators who have been trained and carrying out these tasks be back-paid for the period of time that they have been carrying them out?

[15] The duties in question are set out in the Interim Decision as follows:

“[4] The employees affected by this dispute are Transport Operators working for Aurizon (Transport Operators were previously known as “Shunters” and are still referred to as such), at the rail depot at Pring, which is on the outskirts of Bowen in North Queensland. These employees do not work outside of the rail yard and are covered by the Transport Operations Stream clauses of the Agreement. The employees in question are classified as “Operations Employee Level 4” under the Agreement. However, the Respondent confirmed that, subject to the outcome of this application, it was the Employer’s intention to introduce the additional duties on the same basis, not just at the Pring Depot, but where required, throughout the Employer’s operations.

[5] The Applicant alleged that Transport Operators/Shunters are being asked to undertake training and carry out additional duties (learnt via the newly provided training) to undertake tasks that they would not normally discharge and, which the Applicant argued, do not form part of the current role, for which they were employed.

[6] The Applicant submitted that the Respondent is refusing to pay Transport Operators/Shunters more than the current wage rate for an Operations Employee Level 4, to carry out these additional tasks, which carry additional responsibilities. The Applicant submitted that the additional duties had previously been undertaken by Train Crew employees. The Respondent submitted that the duties contained in the classification in the new Agreement accommodate the additional duties and therefore the employees are not entitled to additional remuneration.

[7] In consideration of the additional duties, it was commonly accepted that, before a train can be driven, certain set up tasks and safety checks must be performed. The explanation of the duties include:

a. Ensuring that the wagons are all facing the right direction;
b. Testing brakes;
c. Ensuring the wagons are linked up correctly;
d. Ensuring that each of the (up to three) locomotives are all communicating with each other correctly.

…

[11] The additional tasks that the Transport Operators are being asked to perform, as per the Statement of Agreed Facts are:

a. Walk the train
b. Access the locomotive
c. Open locomotive switch board close two switches (battery and fire screen)
d. Walk to cab (1 metre)
e. Operate two toggle switches (engine run and control/fuel pump)
f. Return to switch board push engine pre lube button wait 30 seconds
g. Push button start (locomotive will start)
h. Return to cab and sit in driver’s seat
i. Wait for fire screens to boot up (computer screens)
j. Follow on screen commands (lead locomotive would mean approximately pushing 8 prompts on fire screen to link all locomotives. Remote locomotives a few less prompts)
k. Once linked push tile prompt on fire screen to commence auto test for locomotives and train brakes. If test fails (unlikely) notify Yard Coordinator who will call Loco maintenance staff to attend
l. Walk to back of cab wall and push park brake button on/off to test (1 metre)
m. Select a direction with reverser apply and release brake, results confirmed with other team members in remote locomotives.
n. To shut down reverse steps g & e.

[12] The Commission undertook an inspection of these proposed duties at the Pring Depot, with representatives of the Applicant and the Respondent also present. The Commission, in these inspections, viewed the duties said by the Applicant to be normally undertaken by Shunters (the Applicant categorised these duties as being associated with the train operations, but duties that were, and have always been, performed on the ground). The alleged additional duties were then viewed; these duties were signified by the Shunters moving up onto the locomotive to perform functions, to ready the locomotive for the driver. The completion of the duties would add to the efficiency of the operations by allowing the driver to be able to step into the locomotive, instead of undertaking these range of pre-start duties (set out above), and simply enable the driver to commence driving the train.” 3

Relevant Legislation and Agreement Clauses

[16] Sections 738 and 739 of the 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.

[17] The disputes procedure is contained in Clause 7 of the Agreement as follows:

7. DISPUTE RESOLUTION

7.1. In the event of a dispute about a matter arising under this Agreement, or in relation to the NES the following steps will be followed:

Step 1: Discussions will be held between the employee/s concerned and the relevant supervisor. If the discussions do not resolve the dispute either party may refer it to the next step. Such a referral must be made within 48 hours of the dispute being raised;

Step 2: Discussions will be held between the employee/s concerned and more senior levels of management as appropriate. If the discussions do not resolve the dispute either party may refer it to the next step. Such a referral must be made within 48 hours of the dispute being referred to Step 2.

Step 3: The employee/s or the Company may refer the dispute to the FWC. Where such an application is made, the FWC shall first attempt to resolve the dispute through conciliation. Where conciliation does not resolve the dispute the matter may be determined by arbitration. Where the dispute is subject to arbitration the decision of the FWC is binding.

7.2. The Company or employee/s may appoint another person, organisation or association to accompany and/or represent them during the steps contained in this procedure.

7.3. Where the timeframes in this process are not met, the Company may proceed to implement the change and the dispute may only proceed to conciliation.

7.4. Where the timeframes have been met and:

a dispute is referred to the FWC in accordance with Step 3, the company must not implement the disputed changes until the conciliation conference has been completed; or

a dispute is referred to the FWC in accordance with Step 3 and the dispute arises from a decision of the Company which would result in the termination of employment due to redundancy, the company will not implement the disputed changes until this step in the disputes procedure has been completed.

7.5. While the dispute resolution procedure is being followed work must continue in accordance with this Agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the Company to perform work that is safe and appropriate for the employee to perform.

(emphasis added)

[18] Clause 29 of the Agreement relates to reasonable work directions. The Respondent broadly argued that the combination of the provisions in clause 29 and the classification structure enable the Respondent to direct the performance of the duties in question. The significant part of the dispute regarded the use of these clauses to enable the duties to be performed without additional remuneration.

29. EMPLOYEES TO COMPLY WITH REASONABLE DIRECTION

29.1. An employee will carry out such duties as are reasonably within the limits of the employee's skill, assessed competencies and training.

29.2. The Company may direct an employee to carry out such duties and use such tools and equipment as may be required, provided that the employee has been properly trained in the use of such tools and equipment (where relevant).

29.3. Any direction issued by the Company pursuant to the above subclauses will be consistent with the Company’s responsibilities to provide a safe and healthy workplace.

29.4. An employee will participate in training provided by the employer as required to perform the role for which they are employed.

29.5. If given reasonable training, it is a requirement of employees to:

29.5.1. acquire the competency required to perform the role for which they are employed; and

29.5.2. utilise all competencies, once acquired, relevant to perform the functions associated with the role for which they are employed provided the Company has provided reasonable opportunity to for the employee to acquire the competency prior to any performance management arising from the failure to acquire or utilise a competency. Nothing in this clause prevents an employee from expressing an interest in, or participation in training, and/or work experience for the purpose of gaining skills and competencies outside the scope of their current role.

29.6. Approval for such participation will be determined by the Company on the basis of merit.

29.7. Voluntary participation in training and/or work experience for the purpose of gaining skills and competencies outside the scope of their current role will not entitle an employee to a higher grade allowance.

(emphasis added)

[19] The Applicant claimed the payment of the Higher Grade Allowance for the additional duties in question. Alternatively, they originally sought a work value payment, but have now revised this part of their claim. The original decision provided a reasoning on why the higher duties payment, was not applicable in the circumstances of the claim.

35. ALLOWANCES

…

Higher grade allowance

35.4. Where the Company requires an employee to act in a higher graded role the employee will be paid a “higher grade” allowance for each ordinary hour worked in the higher graded role.

35.5. The amount of the higher grade allowance is the difference between the employee’s base wage and the base wage of the higher graded role.

35.6. The higher grade allowance will be included in the calculation of the payment of overtime, shift loadings, and weekend loadings.

35.7. Where the Company requires an employee to act in a higher graded role for a specified period, the employee will be paid the higher grade allowance for any leave taken within that period.

35.8. To avoid doubt this clause does not result in the employee being reclassified to the higher graded role. The employee remains in their existing role and is paid an allowance for acting in the higher graded role.

(emphasis added)

[20] Clause 42 contains the classification tasks and functions for the Transport Operations Stream. The employees being asked to perform the new duties are classified at Level 4. The duties at this level include any of the tasks in the 3 below levels and a range of other duties. The Respondent submitted that the new duties came within the scope of duties in the classification. The Respondent referenced the duties (bolded in the table below) working back from the classification Level 4 to indicate, in their submission, how the duties were within the classification tasks and functions and were within the limits of the employee’s skills, competencies and training. In addition they stated, the duties were consistent with the requirements of the role, for which the employees were employed. On this basis, they argued, undertaking these duties without further payment, was a permissible direction in accordance with the Agreement.

42. THE TRANSPORT OPERATIONS STREAM

42.1. Employees covered by this schedule are engaged in the Transport Operations Stream:

Classification

Tasks and Functions

Operations Employee

Level 1

Employees at this level will perform a range of tasks / activities consistent with the position of freight operator level 1 in rail yard, including but not limited to:

• Operate/Monitor customer info systems

• Maintain and clean workplace and/or machinery / vehicles

• Accept, handle, deliver and weigh freight and enter freight records

• Fuel and provision locomotives

• Conduct basic Freight Accounting procedures

• Operate communication and computer equipment

• Operate light lifting and vehicular equipment (including forklifts)

• Conduct minor servicing & maintenance of plant and equipment

• Operate manual handling Equipment

• Operate RVP or similar: 300 tonne and under lifting capacity

• Operate light rigid vehicle (up to 8 tonnes)

• Conduct modified testing of train

Couple / uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rolling stock under the appropriate supervision.

• Replace brake blocks adjust rigging (not 2800compression links) under the appropriate supervision

• Repair / change out toilets (locomotive’s)

• Conduct minor repairs on auxiliary equipment

• Check / fill: engine oil; water; fuel on locomotives

• Decant toilets and sludge tank

• Wash and clean locomotives / cabs

• Contribute towards serviceability checks & certificates on rolling stock and Locomotives within the competency of the employee.

• Conduct limited Safe Working

Classification

Tasks and Functions

Operations Employee

Level 2

Employees at this level will perform a range of tasks / activities consistent with the position of freight operator level 2 in a rail yard, including but not limited to:

• Any of the tasks / activities in Level 1; and

• Operating signals, zone release and switching devices etc.

• Conduct shunting (non DOO) and functions associated with shunting (e.g. Points)

• Replace hose bags and repair sand hoses

• Perform Brake travel adjustments

• Clean of sand pipes and filling of sandboxes

• Plug in/Plug out electrical equipment/ appliances that comply with

legislative requirements (e.g. within Test)

• Conduct train safety testing

Couple / uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rolling stock

• Replace brake blocks adjust rigging (not 2800compression links)

Employees at this level will perform a range of tasks / activities consistent with the position of freight operator level 2 in an intermodal depot, including but not limited to:

• Any of the tasks / activities in Level 1; and

• Operate Light Rigid vehicle (more than 4.5 t GVM but not more than 9 t GVM)

• Operate light lifting and vehicular equipment (including forklifts up to and including 16 tonne).

• Load/unload and secure freight for transport (including labelling and sealing wagons/containers)

• Complete load manifest paperwork including use of freight management system if required

• Conduct container washing and inspections

Classification

Tasks and Functions

Operations Employee

Level 3

Employees at this level will perform a range of tasks / activities consistent with the position of freight operator level 3 in an intermodal depot, including but not limited to

• Any of the tasks / activities in Level 2; and

• Operate Medium/Heavy Rigid Vehicle (more than 8 t GVM with or without a trailer of not more than 9 t GVM)

Classification

Tasks and Functions

Operations Employee

Level 4

Employees at this level will perform a range of tasks / activities consistent with the position of freight operator level 4 in a rail yard, including but not limited to:

• Any of the tasks / activities in Level 3; and

• Operate medium / heavy vehicle (including multi-combinational vehicles)

• Provision, service, clean and perform lower level maintenance on rolling stock / locomotives

• Serviceability checks & certificates on rolling stock and locomotives within the competency of the employee

• Operate and maintain heavy lifting equipment (exceeding 16 tonne) and other sundry terminal / site equipment

• Shunting operations - DOO Yards

• Operate other vehicle/ sundry machinery. e.g.: tug / mafi trailer / side loader / etc.

• Conduct snow shooting and servicing of refrigerated containers

• Operate RVP or similar: lifting capacity exceeding 300 tonne for general operations, shunting & moving locomotives and rolling stock

Employees at this level will perform a range of tasks / activities consistent with the position of freight operator level 4 in an intermodal depot, including but not limited to

• Any of the tasks /activities in Level 3; and

• Operate Heavy Combination vehicle (a truck or prime mover more than 8 t GVM with a trailer of more than 9 t GVM).

• Operate a Multi-Combination vehicle (a B-double or road train)

• Operate and maintain heavy lifting equipment (exceeding 16 tonne) and other sundry terminal/site equipment

• Operate other vehicle/sundry machinery e.g. tug, mafi trailer, side loader etc.

• Plug in/out electrical equipment, including power packs and cable

connections for refrigerator containers.

• Perform shunting operations

Submissions of the Applicant

Remuneration Claim

[21] The Applicant sought for affected employees to be paid at the higher duties rate of $6.4428 per hour (as applicable at the time that this dispute arose). The Applicant noted that there has been a subsequent annual increase of 4% under the agreement as of 10 September 2016, which would increase this figure commensurate with that rise.

[22] The Applicant clarified that the justification of this higher duties rate was notbecause the employees are performing all of the duties that a Traincrew Support or Trainee Driver would be completing, but that additional higher duties were to be performed. However, the Applicant noted that a Traincrew Support Employee/ Advanced Trainee Driver might carry out these tasks if Aurizon were employing any employees in these classifications.

[23] The Applicant stated that the amount sought derived from the fact that the duties that Shunters are being asked to perform are those that would usually be carried out by a Train Driver, which is another classification higher again, than the classification the Applicant is seeking payment at.

[24] The Applicant submitted that evidence of this was contained in the Affidavit of Mr Denis Yasso, at paragraph 8 where he stated:

“The tasks that we are now being asked to perform are tasks that were always carried out by Train Drivers, not Shunters.” 4

[25] The Applicant submitted that further evidence existed in the form of the training itself which the Shunters are being required to undertake. The Applicant submitted that this training derives from the Train Driver training package at both an organisational level and a national qualifications framework level.

[26] The Applicant submitted that it was arguable that their claim should have been to have the Shunters paid at the higher rate of a Train Driver for the period of time that they were carrying out these duties. However, the Applicant submitted they took a logical approach and sought to have them paid at the only rate within the agreement that sits between the Drivers’ rate and the Shunters’ rate; that is the Advanced Trainee Driver or Driver’s Assistant rate.

[27] It was submitted that the level of responsibility attached to those tasks has been pressed by the Applicant from the outset and that drivers rely on the additional tasks (now asked of Shunters) to be carried out accurately and efficiently so that they can run to time and do so in a manner that ensures the safety of the Driver and other rail and road users.

[28] The Applicant confirmed they did not seek to have a work-value assessment completed.

Questions for Arbitration

[29] The Applicant submitted that there did not need to be a work-value assessment completed to determine the correct rate of pay, to which the Shunters are entitled. It was submitted that the correct rate of pay for the hours that Shunters perform the additional duties, was the Higher Grade Allowance.

[30] The Applicant submitted that Questions 2 and 2a of the arbitration were only of value if Question 1 was to be answered in the negative. If Question 1 was answered in the negative, the Applicant submitted, then the question for the Commission to determine is which rate of pay Shunters should receive and by which method that should be determined.

[31] It was further stated by the Applicant that the two methods by which the rate of pay could be determined, based on the questions before the Commission, were by way of the applicable allowance under the Agreement; or by conducting a work-value assessment.

[32] The Applicant’s position was that the correct method for determination of the rate of pay is by way of a classification under the Agreement. The Applicant did not consider that a work-value assessment was warranted given that they submitted the additional tasks derive from the role of a Train Driver.

[33] However, the Applicant did not seek to have the option of a work value assessment taken away from the Commission should the Commission determine that the classifications under the agreement are not the correct way to determine the rate of pay for Shunters.

[34] Therefore, the Applicant did not seek to amend the Questions but submitted that should a work-value assessment be imposed upon the Applicant by a decision of the Commission, the Applicant would participate in the process. The onus is on the Applicant to conduct their case and the case has not been advanced on the basis of Work Value Claim.

The Compounding Issue - Cl 35.6

[35] The Interim Decision raised that there was a potential complexity involved with the compounding of a Higher Grade Allowance sought by the Applicant. The Applicant submitted that the compounding factor, brought about by clause 35.6 of the Agreement, should not pose a difficulty for Aurizon’s payroll system to handle. Part of the difficulty is that the higher grade is not applicable, given that not all of the duties of the higher grade are being performed, the Applicantis not fully acting in the higher grade.

[36] The Applicant submitted that there are many people who temporarily act in higher grades and that, when this occurs, Aurizon currently have no problems with accrual of leave or the rate of pay that the employee ought to be on while they are on leave. The Applicant submitted that the same would be true for the Shunters and Aurizon already had adequate processes in place for the management of this situation. However, the situation is not equivalent to an employee acting up in a higher classification. Only part of the higher duties is being performed by the Shunters.

Ambiguities

[37] As a result of the discussion in relation to the ambiguities addressed in the Interim Decision, the Applicant addressed the negotiations between the parties for the Agreement and stated that their position remained as initially submitted.

[38] The Applicant submitted that their evidence in respect of clause 29 was put forward by Mr Shayne Kummerfeld who clearly identified that these discussions were had in respect of Train Drivers only (as opposed to Shunters).

[39] The Applicant referred to Mr Kummerfeld’s original Affidavit as follows:

“12. However, at no point during the negotiations did we discuss having Shunters perform current train crew tasks as Aurizon have suggested. I am very certain of this.” 5

[40] The Applicant was clear on the evidence that discussions were not held during negotiations about extending the tasks of the Shunters to include the new tasks.

[41] The Applicant submitted that in the conference of 14 October 2016, Mr Walker confirmed on behalf of the Respondent that these discussions did not occur in respect of the Shunters. The Applicant submitted that as there is no dispute over the facts, there was no further evidence that the Applicant could offer in respect of discussions between the parties during negotiations.

Submissions of the Respondent

[42] The Respondent noted that the Interim Decision identified a range of matters related to the ambiguity and interpretation exercise of the agreement, in respect of the meaning, application or intent of the duties described in the classifications for the role of Shunters in clause 42 and the associated training and directions in clause 29.

Clause 29 - comply with reasonable directions

[43] The Respondent submitted that, arising from recent discussions with the Applicant, the parties did not disagree that employees can carry out duties that are within the employees’ skill, competency and training in clause 29.1.

[44] The Applicant submitted that the disagreement was that Shunters should not undertake training to perform the start-up, relinking and shutting down of a locomotive because that training was not required to perform the role for which they are employed. In particular whilst the Applicant did not oppose the up skilling of their members, they opposed the additional duties for no extra remuneration.

[45] It was submitted by the Respondent that prior to the current Agreement, Shunters were covered by the QR National Coal and Regional Freight Logistics Enterprise Agreement 2010 6 (the 2010 Agreement).

[46] The Respondent submitted that the 2010 Agreement (at clause 9.4) contained a provision similar to clause 29.1 of the current Agreement. Clause 9.4 of the 2010 Agreement is extracted as follows:

“9.4 An employee will carry out such duties as are reasonably within the limits of the employee's skill, competence and training.”

[47] Cause 29.1 of the current Agreement is repeated for ease of reference:

“29.1. An employee will carry out such duties as are reasonably within the limits of the employee's skill, assessed competencies and training.”

[48] The Respondent noted there was no provision in the 2010 Agreement similar to the current clause 29.4, extracted as follows:

“29.4. An employee will participate in training provided by the employer as required to perform the role for which they are employed.”

[49] The Respondent submitted that there were no discussions during bargaining that specifically focussed on Shunters performing the starting up, relinking and shutting down of locomotives because directing Shunters to perform this work was not contemplated by

Aurizon at that time. The Applicant had in any event identified these duties as relevant to the duties associated, with a higher classification than that of Shunters.

[50] The Respondent acknowledged that there was also no mutual agreement between employees and Aurizon to perform these additional duties. The Applicant statedthey were also not duties, contrary to cl 29.4, for the role for which they were employed.

[51] It was submitted that, during negotiations, the specific focus was on Train Crew and the requirement that they perform shunting, whilst ensuring they could perform beyond their training and assessed competence.

[52] The Respondent submitted that the intention in this respect, was to ensure employees were trained, as well as competent, to perform any new tasks which they might be required to perform as part of their employment. The Respondent referred to the initial Affidavit of Michael Heenan in relation to the development of clause 29. It is extracted as follows:

“18. There were discussions during bargaining in the train crew group, that included Mr Kummerfeld, which centred on a concern raised by train drivers that they may be required to perform shunting duties beyond the limit of their training and competence.

19. Ultimately agreement in principle with unions was reached on the clause entitled "Employees to comply with reasonable direction" which became clause 29 in the TTO EA.

20. The change from the clause as originally proposed by Aurizon in the TOMI EA was the insertion of the word "assessed" between the words "skill" and "competencies" in clause 29.1

21. The intention of including that word was to ensure that employees were not only trained but also assessed as competent to perform any new tasks which they might be required to perform as part of their employment…” 7

[53] Further, the Respondent submitted that the intent was also for employees to expand their skills through training to perform additional tasks so that clause 29 could be applied equally to Train Crew, Shunters or Transport Operators with safeguards in place.

[54] Therefore, the Respondent submitted, there was no restriction on the application of clause 29 to a specific group of employees and that explained why it is located in the core conditions in the Agreement.

Clause 42 - The Transport Operations Stream

[55] The Respondent submitted that the tasks and functions in clause 42 were not considered during bargaining because it was not contemplated that Shunters would perform start up shut down activities.

[56] However, the Respondent submitted that the descriptions of tasks and functions are not exclusive. They submitted that the lists of indicative tasks and functions were largely taken from the previous agreement, the 2010 Agreement.

[57] Clause 37 of the 2010 Agreement provided a table with the indicative tasks and classifications for the classifications. Clause 37 is extracted as follows:

“37. INDICATIVE TASKS AND RESPONSIBILITIES

General principles

37.1 Employees will undertake a range of tasks which may include but not be limited to the details as listed in the Classifications below.
37.2 Employees at each level are required to perform all work at their substantive level and levels below. The work flexibility clause is to be read in conjunction with these tasks and responsibilities.

37.3 Employees who have been trained and are competent to act in a higher grade will not unreasonably refuse higher grade duties.

37.4 Employees who believe that they have been performing higher grade duties for an
unreasonable period of time will be entitled to raise the matter through the Resolving
Workplace Issues clause.

…

Indicative tasks and responsibilities

Classification level

Position title

Indicative tasks and responsibilities

OS 1.1

Freight Operator Entry

Completes all induction requirements

C Class Licence Mandatory (QR’s expectation is that employees will obtain a licence where ever possible.)

OS 1.2

Freight Operator

level 1

Employees at this level plan and undertake a range of routine tasks / competencies associated with the business location and may include:

• Operate/Monitor customer info systems

• Operate 2- way radios

• Undertake routine tasks / activities

• Maintain and clean workplace environs and facilities

• Clean machinery/vehicles

• Use office equipment including computers; enquiries (customer / QR / client)

• Pallet control procedures

• Apply OH&S procedures

• Follow DG procedures

Employees at this level are required to perform all work at this level and below.

OS 1.3

Freight Operator

level 2

Employees at this level plan and undertake a range of routine tasks / competencies associated with the business location and may include:

• Enter freight records

• Weigh freight using weigh bridges and scales

• Load / Unload and secure freight for transport (including labelling and sealing wagons/containers)

• Drive light vehicle

• Accept, handle and deliver freight

• Apply Dangerous Goods codes / freight

• Includes training for job role functions and assessment

• Completion of training in preparation and operation of a shunt tractor

• Fuel and provision locomotives

• Assist in cash balances

• Participate in allocation and completion of team tasks

• Identify and resolve routine problems in semiautonomous environment.

Employees at this level are required to perform all work at this level and below.

OS 1.5

Freight Operator

level 3

Employees at this level plan and undertake a range of routine and non-routine tasks / competencies of some complexity associated with the business location and may include:

• Basic Freight Accounting procedures

• Operate communication and computer equipment

• Operate Light Lifting and vehicular equipment (including forklifts up to and including 16 tonne)

• Minor Servicing & maintenance of plant and equipment

• Operate Manual Handling Equipment

• Accept, Handle and Deliver Freight including minor cash transactions

• Warehousing activities

Employees at this level are required to perform all work at this level and below.

OS 1.6

Freight Operator

level 4

Employees at this level plan and undertake a range of routine and non-routine tasks / competencies of some complexity associated with the business location and may include:

• Shunting (non DOO)

• Operate RVP or similar: 300 tonne and under lifting capacity

• Operating signals, zone release and switching devices etc

• Provide effective customer service

• Operate light rigid vehicle (up to 8 tonnes)

• Limited Safe working

• Conduct functions associated with minor shunting (e.g. Points)

• Perform specialised loading and securing

• Conduct container washing and container inspections

• Minor cash handling / quote basic freight rates

• Identify and solve routine problems in an semiautonomous

/ autonomous environment

• Modified testing of train

Employees at this level are required to perform all work at this level and below.

OS 2.1

Freight Operator

level 5

Employees at this level plan and undertake a range of routine and non-routine tasks / competencies of some complexity associated with the business location and may include:

• Lashings and Rough Loading

• Operate medium / heavy rigid vehicle

• Handle bulk dangerous goods

• Train Safety Testing

• Couple / uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rollingstock.

Low Level Maintenance:

Provision, service, clean and perform lower level maintenance on rolling stock / locomotives: Duties include (but not limited to):

• Plug in/Plug out electrical equipment/ appliances that comply with legislative requirements (e.g. within Test)

• Replace brake blocks adjust rigging (not 2800 compression links)

• Replace hose bags, repair sand hoses

• Perform Brake travel adjustments

• Cleaning of sand pipes and filling of sandboxes

• Repairs / change out toilets (locomotive’s)

• Minor repairs on auxiliary equipment, such as

• Change / replace light bulbs (cab / ditch / step, etc)

• Wipers / headlights / ground lights

• Check / fill: engine oil; water; fuel on locomotives

• Decant toilets and sludge tank

• Wash outside of locomotives

• Clean locomotive’s / cabs

• Other work agreed locally by consultative committee

Contributes towards serviceability checks & certificates on Rollingstock and Locomotives within the competency of the employee.

Employees at this level are required to perform all work at this level and below

OS2.3

Freight Operator

level 6

Employees at this level plan and undertake a range of routine and non-routine tasks / competencies of some complexity associated with the business location and may include:

• Operate Heavy combination vehicle exceeding 9 tonne

Employees at this level are required to perform work at this level and below.

OS 2.4

Freight Operator

level 7

Employees at this level plan and undertake a range of routine and non-routine tasks / competencies of some complexity associated with the business location and may include:

• Operate a multi-combinational vehicle

• Operate and maintain heavy lifting equipment (exceeding 16 tonne) and other sundry terminal / site equipment

• Working autonomously offsite

• Shunting Operations - DOO Yards

• Applicable Safe working

• Provide visual assistance

• Operate other vehicle/ sundry machinery. eg: tug / mafi trailer / side loader / etc

• Plug in/out electrical equipment, including power packs; cable connections for refrigerator containers; rollingstock, locomotives and any other equipment

• Conduct snow shooting and servicing of refrigerated containers

• Operate RVP or similar: lifting capacity exceeding 300 tonne for general operations, shunting & moving locomotives and rolling stock.

Employees at this level are required to perform all work at this level and below.

OS3.3

Freight Operator

level 8

Employees at this level supervise, plan and undertake a range of routine and non-routine tasks / competencies of some complexity associated with the business location and may include:

• Undertake employee tuition or assessments after they have completed training e.g. tutor freight operator

• Apply business processes and supervise employees to ensure required outcomes.

• Provide coaching / guidance and direction; ensuring productivity, attendance, safe work are all occurring

• Provide effective quality service; identify, analyse and resolve problems within team and customers

• Control WPHS, productivity, quality, attendance within area of responsibility

• Provides Quality Customer Service

• Assists supervisors/managers as required.

Employees at this level are required to perform all work at this level and below.

Above OS3.3

Positions and other tasks outside the range of tasks and responsibilities in the positions above will be evaluated as required using QR’s remuneration evaluation system.

[58] The Respondent submitted that clause 42 of the current Agreement directs that “Employees... perform a range of tasks/activities consistent with the position of freight operator ... in a rail yard, including but not limited to ..”.

[59] Aurizon submitted that indicative tasks and functions in clause 42 of the current Agreement should not be restricted to what is written because it is not an exhaustive list of functions and there is a nexus between performing work on the ground in preparation of a locomotive operating and starting it up or shutting it down.

[60] The Respondent submitted that there is no prohibition in the Agreement or legislation against providing training to Shunters to perform starting up, relinking and shutting down work given that they submitted the tasks and functions in clause 42 were not limited to the indicative tasks described.

Clause 35 - Higher grade allowance

[61] The Respondent submitted as follows with respect to the higher grade allowance:

“A. Any annual increase using the difference in hourly rate previously described is calculated by reference to the pay tables in clause 43.4 within the Transport Operations stream.

B. Overtime, shift loadings and week end loadings would not apply to the allowance as they are paid on the base rate of pay and the allowance is paid for the time taken to perform the task rather than acting at a higher grade over a shift or shifts.”

[62] It was submitted that the higher grade allowance provisions would have no impact on a Shunter working for an estimated 60 to 75 minutes during an ordinary hours shift.

[63] The Respondent submitted in conclusion that the provisions in clauses 29 and 42 were not considered during bargaining in the context of Shunters being required to perform the additional tasks and that the changes arose in the context of eliminating demarcation and drivers performing ground work.

[64] Further, Aurizon submitted its approach was to apply clause 29.4 by providing training to enable employees to perform the tasks which were considered to be within the role of a Shunter in addition to those of a driver.

[65] Aurizon submitted that the provisions in clause 35.6 will not apply because an employee will not be working in a higher grade for their shift. Aurizon noted that the submissions from both parties to date were that an allowance is paid for the period during which the additional tasks are performed.

[66] Further, it was submitted that the provisions of the previous 2010 Agreement were of no assistance in interpreting the ambit or meaning of the provisions in dispute.

[67] Aurizon submitted it was unable to assist the Commission with any case authority that either supports or is opposed to its interpretation and application of the provisions in dispute.

Consideration

[68] Despite a reference to the case, in the Interim Decision (and a discussion on it at the further Conference), neither party relevantly addressed the Full Bench case authority in relation to the Agreement (of Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 8(Golden Cockerel))with reference to the circumstances of the interpretation of the provisions that particularly was sought from Aurizon, in these proceedings.

[69] At paragraph [41] of the Decision in Golden Cockerel, the Full Bench summarised the principles of agreement interpretation as follows:

“1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[70] The parties addressed the issue of the ambiguity only by confirming that the current duties were not contemplated at the negotiations of the new agreement. It was not intended at that time that Shunters would perform these additional duties. The relevant clauses, on the evidence, are now being used for a different purpose, than intended.

[71] The Interim Decision provided detailed reasons on the duties sought to be undertaken against the provisions and the issues with the Applicant’s claim. The further submissions do not alter the findings previously set out.

[72] The Questions for determination are repeated as follows:

2(a). If question 2 is answered in the negative, should they be compensated for the period of time they are performing the relevant tasks based on the work value of those tasks?

3. Should the Freight Operators who have been trained and carrying out these tasks be back-paid for the period of time that they have been carrying them out?

[73] With respect to Question 1, the Respondent submitted that the additional tasks fell within the scope of the duties contemplated in the classification of a Transport Operator Level 4 (Shunter) under clause 42. The Respondent further submitted that the tasks contained in the classification were non-exhaustive, and the performance of the duties of a Shunter were not limited to only those tasks.

[74] The additional tasks to be performed were agreed between the parties as follows:

a. Walk the train
b. Access the locomotive
c. Open locomotive switch board close two switches (battery and fire screen)
d. Walk to cab (1 metre)
e. Operate two toggle switches (engine run and control/fuel pump)
f. Return to switch board push engine pre lube button wait 30 seconds
g. Push button start (locomotive will start)
h. Return to cab and sit in driver’s seat
i. Wait for fire screens to boot up (computer screens)
j. Follow on screen commands (lead locomotive would mean approximately pushing 8 prompts on fire screen to link all locomotives. Remote locomotives a few less prompts)
k. Once linked push tile prompt on fire screen to commence auto test for locomotives and train brakes. If test fails (unlikely) notify Yard Coordinator who will call Loco maintenance staff to attend
l. Walk to back of cab wall and push park brake button on/off to test (1 metre)
m. Select a direction with reverser apply and release brake, results confirmed with other team members in remote locomotives.
n. To shut down reverse steps g & e.

[75] In comparing the Agreement provisions relied on by the Employer as to whether the additional tasks fall within classification T04; the tasks while indicative and non-exhaustive do not align with the additional tasks. The relevant training modules for these additional Shunters duties fall within the trading modules for the higher classification of train drivers. The employer relies on clause 29.4 to direct them to undertake these additional duties. However in contrast to the clause, these duties are not within the classification/ job for which the Shunters were employed. The new duties are commensurate with the training for the higher grade classification. It is conceded by the Union that these employees are not performing, trained, employed or qualified to perform the full range of duties relevant to the higher classification and the allowance. In terms of the correct classification it is also relevant that the duties also fall within training modules, for the classification of the higher grade train drivers.

[76] Relevant to the determination in this matter is an assessment of the nature of the additional duties required of Shunters, added to their existing job. The duties are not a process that can be undertaken in a few minutes, they have some complexity and responsibility attached to them. These duties were previously undertaken within the domain of a higher classification, within the work of trainee train drivers a role on the evidence that is no longer a classification in which employees are employed. Undertaking these duties in this manner, effectively blurs the lines between the classifications, in a way not contemplated by the Agreement.

[77] The change in wording in the Agreement referred to, is not sufficient to justify the incorporation of these additional duties, for no extra remuneration. However these set of extra duties, do not entitle the employees to the Higher Grade Allowance, given only a subset of the duties within the higher grade are being performed. The minimal change to the wording of the agreement provisions, as referred to, is not sufficient to justify the direction to have Shunters perform these extra duties, for no extra remuneration. The wording of clause 29.4 does not provide a basis, for directing these employees, to undertake these additional duties.

[78] Having concluded that the duties are not part of the Shunters current role, a separate allowance could be formulated by the Parties to be applicable to the period when the work is undertaken.

Conclusion

[79] Accordingly for the aforementioned reasons the answers to the questions for arbitration are as follows

2(a). If question 2 is answered in the negative, should they be compensated for the period of time they are performing the relevant tasks based on the work value of those tasks?
No, this was not pursued in the Applicant’s claim.

3. Should the Freight Operators who have been trained and carrying out these tasks be back-paid for the period of time that they have been carrying them out?
No. (Not made out on the claim sought.)

[80] For the aforementioned reasons the claimed remuneration of the Higher Grade Allowance was not applicable to the subset of duties sought to be undertaken. In addition, the extra duties the Shunters are being directed to perform by the Respondent, do not fall within their classification, and therefore the direction is not in accordance with the applicable Agreement provisions.

[81] I Order accordingly.

COMMISSIONER

Appearances:

Ms C. Jones, Industrial and Women’s Officer, Australian Rail Tram and Bus Industry Union.

Mr A. Walker with Ms L. Vella, Employee Relations, Aurizon Operations Limited.

1 Australian Rail, Tram and Bus Industry Union v Aurizon Operations Ltd[2016] FWC 4830.

2 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.

3 Australian Rail, Tram and Bus Industry Union v Aurizon Operations Ltd[2016] FWC 4830 at [4] – [7] & [11] – [12]

4 Affidavit of Mr Denis Yasso sworn 2 May 2016 at [8].

5 Affidavit of Shayne Kummerfeld sworn 3 May 2016.

6 AE880772

7 Affidavit of Michael Heenan dated 20 May 2016.

8 [2014] FWCFB 7447.

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