DECISION

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

Australian Rail, Tram and Bus Industry Union
v
NSW Trains
(C2015/7219)

DEPUTY PRESIDENT SAMS

SYDNEY, 31 MARCH 2016

Application to deal with a dispute under an enterprise agreement – rostering of Train Drivers – requirement to work ‘excess’ shift in addition to ordinary hours of work – interpretation of sick leave clause – whether sick leave payable on an excess shift not worked – principles of interpretation – context and purpose of disputed provision – no evidence of custom and practice – no ambiguity or uncertainty – sick leave clause to be read in the context of the Act and the Agreement as a whole – ordinary meaning of overtime – no entitlement to sick leave for an ‘excess’ or overtime shift not worked – matter concluded.

[1] This decision will determine an application, filed by the Australian Rail, Tram and Bus Industry Union (the ‘Union’) on 9 November 2015, in which the Fair Work Commission (the ‘Commission’) is asked to deal with a dispute the Union has with NSW Trains in accordance with cl 8, the Dispute Settlement Procedure in the NSW Trains Enterprise Agreement 2014 [AE410460] (the ‘Agreement’).

[2] The Commission is empowered by the terms of the Dispute Settlement Procedure (Step 4, cl 8.4), to arbitrate any dispute that arises about the following:

(a) matters pertaining to the relationship between the Employer and Employees;
(b) matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the agreement and / or the relationship between the Employer and Employees;
(c) deductions from wages for any purpose authorised by an Employee who will be covered by the agreement;
(d) the National Employment Standards; and
(e) the operation and application of this agreement.

[3] The dispute arises in respect to the application of cl 27.4 – Sick Leave, in circumstances where an employee claims sick leave for an ‘excess’ shift not worked. It is therefore a dispute about ‘the operation and application of this Agreement’. The Union framed the relief it seeks in a slightly different way, as ‘a determination from the Commission as to whether or not sick leave is payable on an ‘excess’ (pre-determined) shift that is posted on the Period Roster.’

[4] At this point, I set out the terms of the disputed clause below:

27.4 Sick Leave

(a) Sick leave on full pay accrues to an Employee at the rate of 15 days (maximum of 114 hours) each calendar year, and any such accrued leave, which is not taken, is cumulative.

(b) Employees are required to provide medical certificates when sick leave:

i. exceeds 3 consecutive working days;

ii. joins a public holiday, day in lieu of bank holiday, or picnic day; or

iii. occurs immediately before and after a Rostered Day Off (RDO) or Accrued Day Off (ADO) (including weekends for Monday to Friday workers).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Australian Rail, Tram and Bus Industry Union v NSW Trains

Details

AGLC: Australian Rail, Tram and Bus Industry Union v NSW Trains [2016] FWC 1968
Case: [2016] FWC 1968
Decision Date: 31 MARCH 2016

CaseChat Overview and Summary

The case before the court involved a dispute between Australian Rail, Tram and Bus Industry Union and NSW Trains. The union sought an order regarding the rostering of train drivers and the entitlement to sick leave for an 'excess' shift not worked. The Fair Work Commission was the court that heard the case.

The primary legal issue was the interpretation of a sick leave clause within the relevant enterprise agreement. Specifically, the union argued that sick leave should be payable for an 'excess' shift that a train driver did not work. The court needed to determine whether the clause should be interpreted to include such shifts and whether the ordinary meaning of overtime applied in this context.

The Fair Work Commission examined the context and purpose of the sick leave clause, considering the overall agreement and the relevant legislation. The court found that there was no evidence of a custom and practice that would support an interpretation that included 'excess' shifts. It concluded that the clause was not ambiguous or uncertain and should be read in the context of the Act and the Agreement as a whole. The ordinary meaning of overtime, which does not entitle an employee to sick leave for a shift not worked, was applied. Consequently, the union's claim for sick leave entitlement for an 'excess' shift not worked was dismissed.

The Fair Work Commission determined that there was no entitlement to sick leave for an 'excess' or overtime shift not worked and concluded the matter. No further orders were made as the dispute was resolved based on the interpretation of the sick leave clause within the enterprise agreement.

Orders