Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority T/A Queensland Rail
[2024] FWC 2086
•13 AUGUST 2024
| [2024] FWC 2086 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Transit Authority T/A Queensland Rail
(C2024/4456)
| COMMISSIONER HUNT | BRISBANE, 13 AUGUST 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 2 July 2024, the Australian Rail, Tram and Bus Industry Union (RTBU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 24 of the Queensland Rail Traincrew Enterprise Agreement 2020 (the Agreement).
The Agreement came into operation on 23 November 2020 with a nominal expiry date of 29 February 2024. The Agreement covers the RTBU, the Australian Federated Union of Locomotive Employees (AFULE), Queensland Rail Transit Authority T/A Queensland Rail (the Employer) and its relevant employees.
Background
Upon commencement with the Employer, employees are allocated to one of several “traincrew depots” in the Employer’s railway network which determines an employee’s sign on and sign off point for the purposes of commencing and ending their shifts.
These depots include, amongst others:
· Mayne Depot, located in Bowen Hills, Queensland;
· Beenleigh Depot, located in Beenleigh, Queensland; and
· Robina Depot, located in Robina, Queensland.
On 19 June 2023, the Employer published an email with the email heading:
“Expression of Interest are hereby called for qualified Rail Traffic Crew (RTC) for all SEQ Out Depots and Regional Depots”.
The email set out the terms and conditions of the transfer process, including a nominated closing period of 9 July 2023 for expression of interest. The email further stipulated the period for when the transfer period would end:
“All expressions of Interest will only apply for vacancies within this EOI process: JUNE to DECEMBER 2023”.
The transfer of employees pursuant to the Agreement is based on the amount of transfer points each employee has accrued.
Upon receiving the email, Rail Traffic Guard 1 (RTG1), Rail Traffic Guard 2 (RTG2) and several other employees submitted an expression of interest with the Robina Depot being their first preference. While RTG2’s first preference was the Robina Depot, their second preference was the Beenleigh Depot.
Rail Traffic Guard 3 (RTG3) also applied for a transfer as part of this process. RTG3 had fewer transfer points than RTG2.
All the vacant positions at the Robina Depot were filled as part of the transfer process by employees who had accrued more transfer points than RTG2, including RTG1, and all transfer dates were set for no later than December 2023, which was the end of the transfer period. For clarity, it was understood that RTG1 would transfer to the Robina Depot prior to 31 December 2023.
As all the Robina Depot vacancies had been filled, RTG2 accepted a transfer to their second depot preference being the Beenleigh Depot and received a transfer date of 4 December 2023.
Due to unforeseen circumstances in or around November 2023, RTG1 could no longer fulfil the transfer to the Robina Depot. The Employer gave RTG1 revised transfer dates of 29 January 2024, and later 26 February 2024.
On 2 February 2024, the RTBU received a digital copy the “SEQ Transfer List” via email. The list was valid as of 25 January 2024 and included the names of the employees who were transferring, along with the depot they were transferring to and the date of the transfer, including RTG1.
Due to RTG3 not having accepted a transfer during this transfer period, RTG3’s name was not included on the SEQ Transfer List.
RTG1 later withdrew from the accepted position at the Robina Depot entirely, leaving the position vacant.
Transfer into the vacant position at the Robina Depot was subsequently offered to RTG3 as they were the next most senior applicant for the Robina Depot vacancy who had not previously accepted a transfer offer during the June 2023 – December 2023 Transfer Period.
On 10 April 2024, the RTBU was alerted by RTG2 that RTG3 had been approved to transfer to the Robina Depot.
On or around 10 April 2024, the RTBU participated in multiple meetings with members of the Employer’s management team and a representative from the AFULE, representing its member, RTG3. The RTBU advised that it considered there had been a breach of the Agreement’s transfer process and the transfer of RTG3 to the Robina Depot would be disputed.
The RTBU contended that RTG3’s transfer was in breach of the Agreement as:
· the transfer had occurred outside of the nominated Transfer Period of June 2023 to December 2023, so the Robina Depot position should have remained vacant until the next transfer process; and
· RTG2 had more transfer points than RTG3, and so should have been offered the transfer opportunity before RTG3.
On 19 April 2024, by way of a telephone call, the RTBU informed RTG3 that the RTBU considered the proposed transfer of RTG3 to the Robina Depot to be in breach of the transfer process of the Agreement.
On 19 April 2024, the RTBU met with the Employer to further discuss the alleged breach of the Agreement.
On 22 April 2024, RTG3 worked their first shift from the Robina Depot.
Between 22 April 2024 and 1 May 2024, multiple meetings were held between the RTBU, AFULE, and the Employer to discuss the issue of the transfer.
On 1 May 2024, the RTBU issued the Employer with a written dispute notice regarding the transfer issue.
On 13 May 2024, the RTBU and the Employer had a meeting to discuss the dispute and reach a solution. It was agreed that the Employer would act to transfer RTG3 back to their original depot in the next cycle of transfers. On 16 May 2024, the Employer advised the RTBU that RTG3 would be transferred back to their original depot on 17 June 2024.
Subsequent to the Employer acting to transfer RTG3 back to their original depot, the AFULE and RTG3 commenced proceedings, including in the Supreme Court of Queensland, to prevent the Employer from returning RTG3 back to their original depot.
Clause 36 and Consultation
Clause 36 of the Agreement provides that prior to expressions of interest and the transfer process being initiated, the Employer is to consult with the relevant union parties to the Agreement.
Throughout this consultation process, the parties decide how many vacant positions will need filling and ensure the vacancies will be filled in accordance with the Agreement and the terms and conditions set through the consultation process.
Where it was agreed to by the parties that the transfer period would be in effect from June 2023 to December 2023, it follows that no applications to transfer should be accepted outside of the expression of interest period and all transfers should be completed before the transfer period expired in December 2023.
The parties to this dispute concur that the Agreement provides that upon completion of the expression of interest period, the employees with the highest number of transfer points ought to be given first preference to their selected depots of choice, and a date for the transfer to take effect.
Any positions that become vacant after the expression of interest has been published or the transfer period has expired, should remain vacant until the next transfer period is initiated. If there is no active transfer period, no transfers should be facilitated.
When the Employer requires additional vacant positions to be filled, the Employer ought to initiate a new transfer process, commencing with consultation with the union parties.
Request for Recommendation
The RTBU has requested the Commission provide a Recommendation to the parties and more broadly for the benefit of membership of the RTBU. This is not opposed by the Employer, and the Employer is contrite in respect of his handling of the matters raised in this Recommendation.
It is appropriate to exercise caution in any Recommendation given by the Commission on account of proceedings commenced by AFULE and RTG3 in the Supreme Court of Queensland.
Recommendation
The RTBU and the Employer conclude that the Employer appears to have breached the Agreement through;
· failing to comply with clause 36.6 of the Agreement by facilitating a depot transfer outside of a valid transfer period; and/or
· failing to comply with clause 36.7 of the Agreement by filling a vacancy with an applicant who did not hold the highest number of transfer points compared to other applicants.
The discussions and attempted rectification of the matter during the dispute process suggests that the Employer agrees with the RTBU that the transfer of RTG3 was inconsistent with the provisions of the Agreement.
The Employer accepts that its conduct has added delays to the opportunities for employees to transfer to their chosen depots.
The Commission recommends that in future, the Employer take all necessary steps to ensure that this type of issue does not arise again.
In the circumstances, it is my recommendation that the Employer issues correspondence to the employees who expressed interest in the transfer to the Robina Depot and who held more transfer points than the employee who was transferred, to apologise for any inconvenience incurred in relation to this dispute. Further, it is my recommendation that the Employer continues to work with the RTBU and AFULE to ensure that all future transfer processes will be undertaken in accordance with the Agreement and the agreed consultative framework.
COMMISSIONER
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