DECISION

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

Australian Rail, Tram and Bus Industry Union
v
NSW Trains
(C2015/5990)

DEPUTY PRESIDENT SAMS

SYDNEY, 12 FEBRUARY 2016

Rostering of Train Drivers – Master and Period Rosters – requirement to work ‘excess’ shifts – natural disaster relief leave (Special Leave) – whether entitlement to payment for Special Leave for an ‘excess’ shift not worked due to a natural disaster – interpretation of enterprise agreement – principles of interpretation – context and purpose of disputed provision – no evidence as to custom and practice – general principles of when overtime is not worked – ‘excess’ shift is an overtime shift – no entitlement to payment for an ‘excess’ shift not worked due to a natural disaster – matter concluded.

BACKGROUND

[1] Train Drivers working for NSW Trains are employed under the terms of the NSW Trains Enterprise Agreement 2014 [AE410460] (the ‘Agreement’). Drivers obtain work at their Depot in accordance with the Drivers Rostering and Working Arrangements 2009 Policy and the Transfer and Roster Placement Policy. Read in conjunction with the relevant terms of the Agreement, a Driver’s work is allocated according to both a Master Roster and a Working (or Period) Roster. These rosters are defined in the Agreement as follows:

Master Roster is a roster that operates over an extended time frame and refers to the allocation of work as determined by business and operational requirements. It identifies lines of roster only and contains starting times for each day’s work and diagrams / schedule numbers for train crew. The master roster also provides Rostered Days Off (RDOs) for each line of roster and where applicable Accrued Days Off (ADOs) arising from the working of a 19 day month.

…

Working / Period Roster is a roster that operates on a weekly / fortnightly / four week cycle basis as defined in functional areas. All known actual work, including overtime and RDOs / ADOs, is displayed in the working / period roster. Any RDOs / ADOs shown will reflect the relevant Master Roster and may be varied in accordance with the current rostering arrangements applicable to the functional area or by agreement with the affected Employee(s).

[2] It may be seen that the Master Roster is prepared well in advance of the Period Roster and does not allocate a particular Driver to specific lines of work. It contains all known work, based on train timetables. The Period Roster is usually notified five days before it commences and contains any required alteration or amendment, at the local Depot level, due to operational needs or to meet unplanned absences.

[3] Drivers are also required to work at least one additional shift to their ordinary fortnightly roster of nine or ten shifts. This is to provide cover for annual leave or other short notice Driver absences or as a result of the operational needs of the business and is posted on the Period…

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 978
Case: [2016] FWC 978
Decision Date: 12 FEBRUARY 2016

CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union v NSW Trains, the dispute centred around the rostering of train drivers and the interpretation of provisions within the enterprise agreement concerning the payment for shifts not worked due to a natural disaster. The case was heard and determined by the Fair Work Commission. The union argued that employees were entitled to payment for shifts that were designated as 'excess' but not worked because of a natural disaster, contending that such shifts fell under the category of 'special leave'. NSW Trains, on the other hand, argued that employees were not entitled to such payments, as the 'excess' shifts were overtime shifts, and there was no entitlement to payment for overtime shifts not worked.

The key legal issue before the Commission was the interpretation of the enterprise agreement and the determination of whether the employees were entitled to payment for 'excess' shifts not worked due to a natural disaster. The Commission had to consider the context and purpose of the disputed provisions within the enterprise agreement, as well as the general principles of when overtime is not worked. The Commission found that there was no evidence of a custom and practice that would support the union's interpretation of the agreement.

The Commission concluded that an 'excess' shift is an overtime shift and, therefore, not entitled to payment when not worked due to a natural disaster. The Commission based its decision on the absence of any evidence to suggest that the parties intended for 'excess' shifts to be treated differently from other overtime shifts. The Commission also noted that the context and purpose of the enterprise agreement did not support the union's interpretation. Consequently, the Commission ruled that employees were not entitled to payment for 'excess' shifts not worked due to a natural disaster. The matter was concluded with this determination.

Orders