Australian Rail, Tram and Bus Industry UnionvAurizon Operations Limited
[2016] FWC 4830
•22 SEPTEMBER 2016
| [2016] FWC 4830 |
| FAIR WORK COMMISSION |
INTERIM DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited
(C2015/7015)
COMMISSIONER SPENCER | BRISBANE, 22 SEPTEMBER 2016 |
Alleged dispute about any matters arising under the enterprise agreement – direction to perform additional duties, not previously performed, for no additional remuneration – seeking higher grade allowance or work value – identification of ambiguity over application of new Agreement provisions – interpretation of words required – absence of evidence - further material sought – Interim Decision
Introduction
[1] This Interim 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. The dispute arises in relation to the application of various clauses of the recently approved 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 for the time undertaking these new duties. The Applicant claimed that the use of the provisions to have these additional duties undertaken, for no additional payment, was not agreed during the recent negotiations. The Respondent argued the combination of a number of clauses provided the basis for the duties to be undertaken.
Questions for determination
[2] 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?
Background
[3] On 14 September 2015, the Aurizon Traincrew and Transport Operations Enterprise Agreement 2015 (“the Agreement”) took effect after being approved on 7 September 2015. The Agreement resulted from a lengthy period of negotiations during which a Full Bench of the Commission, on application from Aurizon, terminated 14 prior Agreements 1. This dispute relates to various provisions of the new Agreement.
[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.
[8] On 7 October 2015, the Respondent’s Service Delivery Manager, Mr Kevin Taske, indicated in writing to the Shunters, that it was the Respondent’s intention to begin training Transport Operators at the Pring Depot, to start up, shut down and re-link locomotives.
[9] On 19 October 2015, the RBTU raised its concerns regarding the Transport Operators performing these tasks for no additional remuneration.
[10] The matter was initially allocated for conciliation before Deputy President Sams and was later referred to the Commission as currently constituted for the arbitration of the dispute, pursuant to the disputes procedure under Clause 7 – Dispute Resolution, of the Agreement.
[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.
Relevant Legislation and Agreement Clauses
[13] 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.
[14] 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)
[15] The Respondent commenced the implementation of the training and implementation of the duties; given that the “status quo” provision, as per clause 7.4, only required the Respondent to refrain from implementing the disputed changes, until after the associated conciliation conference had been completed.
[16] Clause 29 of the Agreement relates to reasonable directions. The Respondent broadly argued that the combination of the clauses in clause 29 and the classification structure enable the direction to perform the duties. The parties were significantly in dispute regarding 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)
[17] Clause 35 relates to allowances, and in particular, higher grade allowances. The Applicant claimed the payment of this allowance for the additional duties, or alternatively, a work value payment.
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)
[18] No specific evidence regarding the negotiation of these clauses in relation to the current circumstances was provided. The higher grade allowance sought by the Applicant is the difference between a Transport Operator Level 4 and an Advanced Trainee Driver/Train Crew Support employee who is paid under clause 54.3, that is, the Union submitted, an Advanced Trainee Driver/Train Crew Support employee who is not in receipt of the aggregate rate. Clause 54.3 provides the rates for Traincrew employees who do not receive the penalty allowance. The Union argued that because Shunters do not have the same working regime and availability for duty hours that Traincrew employees do, they should not be paid the full aggregate rate paid to Traincrew employees, and should instead be paid the rate under clause 54.3 which is lower than that of a Traincrew employee but would attract penalty rates for weekends and night shifts. The Union submitted that the Shunters should be paid at $33.5875 per hours plus applicable penalties for performing the additional duties. Currently, the Union submitted, the hourly rate of pay for Shunters is $27.1447. The Union is seeking an additional $6.4428 per hour as the higher grade allowance.
[19] This allowance, as per clauses 35.6 and 35.7, is included in the calculation of a range of other payments. Further Directions were set for material to be filed relevant to the quantification of the claim. This was sought on the application of clause 35, in terms of the potential compounding effect of the allowance on other payments, as set out in clauses 35.4 to 35.8.
[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 at the Hearing stepped through the levels of classification duties and they submitted this demonstrated how the duties accorded with clauses 29.1, 29.2, 29.4, and 29.5 2. They referenced the duties (bolded below) working back from the classification Level 4 to indicate, in their submissions, how the duties were within the classification tasks and functions and were within the limits of the employee’s skills, competencies and the training. In addition they stated, the duties were consistent with the reasonable requirements for the role for which the employees were employed. On this basis, they argued, undertaking these duties without further payment was a reasonable direction.
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:
Couple / uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rolling stock under the appropriate supervision.
|
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:
Couple / uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rolling stock
Or 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:
|
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
|
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
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
|
[21] In general terms, the Respondent relied on the combination of the Agreement clauses 29.1, 29.2, 29.4, 29.5 and 42, which, they submitted, provided the Respondent with the ability to train the employees in those competencies associated with performing these additional duties, for no additional remuneration. In summary, the Respondent stated, in terms of these clauses, those additional duties were within the classification Level 4. The Respondent argued that the additional training was required to perform the role for which they are employed. No particularised material was provided (from the negotiation) regarding the specified intent to use these clauses in this way, nor any comparison with the prior arrangements.
[22] The Union submitted that they were surprised by the introduction of these duties. The Applicant disagreed with the Respondent’s reading that the duties were included in the classification in this way, but submitted that they were not opposed to the higher level training or up-skilling of their members, but sought appropriate payment for such additional duties by way of a higher grade allowance for the period, the duties were performed, or a work value payment. However, again limited reference was made to the negotiations or the specificity of how these payments would be applicable.
Summary of the Applicant’s submissions
[23] The Applicant submitted that the tasks that the Transport Operators are now being asked to perform are not tasks that fall within the ambit of Transport Operators Level 4, or Shunters’ tasks. The Applicant stated that, prior to the dispute arising, all of the tasks and safety checks to be performed on a train were conducted by the Train Drivers.
[24] Until this dispute arose, the Applicant submitted that Shunters have never been required to perform work on board the locomotive; all of their shunting work had been carried out on the ground. The new tasks required of the Transport Operators or Shunters involve tasks inside the locomotive.
[25] Mr Shayne Kummerfeld, Branch Organiser with the Queensland Branch of the RTBU gave evidence for the Applicant. Mr Kummerfeld has extensive experience in the rail industry as a train driver and rail industry organiser and he stated he has never considered the tasks of starting up and shutting down locomotives to fall within those tasks for which a Shunter would be employed.
[26] Mr Kummerfeld set out in his evidence that he was the lead negotiator for the RTBU for the majority of the bargaining for the new Enterprise Agreement. He provided evidence about the nature of this dispute as follows:
“Shunters traditionally carry out ground work- that is work on the ground only. This work is associated with the coupling and marshalling of trains; whilst train crew have traditionally carried out work on the train such as traction and remote control testing for which they acquire and hold competencies.” 3
[27] He disputes that there was an agreement reached to deal with demarcation as per the approach of the Employer to the changes to Shunters’ duties. He stated:
“Aurizon have suggested that they bargained for and received agreement on some level of demarcation of tasks between the roles.
I agree that there was discussion and agreement to an extent in respect of demarcation but the reason they arose is relevant to this dispute and the agreement we reached was not at all what they have suggested.
The reason that demarcation was even on the table for discussion was because the previous agreements spelled out the tasks that the train crew employees were entitled to do.
At the time at which the agreements were cancelled by an order of a full bench of the FWC, the train crew tasks became automatically demarked. It was not so much that demarcation was something that was sought through a proper negotiated process, it was something that was thrust upon us and had to become a topic of conversation.” 4
[28] In looking at his members that are Shunters, undertaking these additional duties, Mr Kummerfeld stated:
“It is common knowledge that the mining, and therefore the rail industry boom in Queensland is in a downturn. As a result of this, we are aware that there is likely to be less work for our members to carry out and even a possibility that redundancies will occur.
Because our aim is to keep people in work and avoid redundancies, we have always been open to discussing the removal of barriers to career progression and the further attainment of skills.
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.
There was definitely discussion about having train crew potentially perform ground work and we were not in a good position to argue that this was not appropriate for four reasons:
a. The demarcation had been forced upon us;
b. The aforementioned downturn in work;
c. Our desire to keep members in work rather than out of it; and
d. Because train drivers are trained in shunting as part of their training. They already carry out these tasks in a limited capacity and that is why the RTBU has insisted that they be competent, trained and assessed before they are able to carry out the tasks.
For this reason, we did not object to this occurring. However, I would point out that the RTBU raised a dispute in September 2015 in respect of the adequacy of the assessed competencies held by train crew for them to safely carry out these tasks.” 5
[29] He stated that the demarcation regarding train crew was the reason behind the provisions in clause 29. He also referred to clause 53.1 of the Agreement, which is as follows:
“53.1. Employees at each level may be required to have the competencies for the level or levels below their level. When required, employees at each level will undertake lower level duties as well as performing tasks incidental to work at their level. The Company will ensure employees undertake duties within the limits of the employee’s skills, competence and training.” 6
[30] He stated that, at the time of negotiating clause 29, the RTBU were mindful of a potential extension of this provision and therefore the words "for which they are employed" were specifically inserted to avoid such.
[31] Mr Kummerfeld stated that it is significant that the additional competencies that the Shunters are being trained in are not part of the qualification at a national level, that is, they do not form part of the Certificate II in Shunting, but form part of the training packages for Certificate IV in Train Driving. He stated:
“Aurizon used to employ people who were trained to this level and would carry out the tasks of starting up and shutting down locomotives. These people were called 'Driver Assistants'. This pay rate was expanded, through the acquisition of skills and training programs, to include Advanced Trainee Drivers.
Shunters and other grades were given opportunities to act up in the role of Traincrew Support employees under the previous terminated agreements. They were paid higher grade when they performed these duties.
There is still a pay rate contained in the agreement for these employees although Aurizon no longer employs people in the Drivers Assistant grade.
The Aurizon Operational Progression TLI 10 Profile is an older document, but it is a good visual representation of the national framework under which the rail qualifications fall and as you can see from it, and the associated information from the Industry Skills Council, the training that they are being provided, does not fall within the usual training for a Shunter.” 7
[32] He emphasised:
“I was very mindful during the negotiations to ensure that our members were only able to work 'down' within their competencies, but if they were to work 'up', then they would be paid at the higher rate.
For this reason, clauses 35.4- 35.8 appear in the agreement to ensure that when an employee acts in a higher grade, that they are paid commensurate with the skills they hold and the tasks that they are carrying out.” 8
[33] He also stated, in terms of background to the dispute:
“At the termination of the prior agreement, Aurizon did away with Driver's Assistants and Traincrew Support employees. They no longer employ anybody in this grade and therefore have no employees capable of carrying out the tasks that sit somewhere between Shunters' and Drivers' tasks.
They now want Shunters to step up to fill this void. They also want them to do it without any extra payment for holding and using the additional qualifications and competencies for which they are providing training.
Because of the downturn in the work in that area at the moment, we are not opposed to this training being provided, nor are we opposed to the Shunters carrying out the tasks. Our only concern is that they should be paid correctly for carrying out tasks and competencies that are already associated with another classification under the agreement.
We have Members who are Shunters in other areas throughout Queensland who fall under this agreement who are being paid at the agreed rate of a Shunter. They are not required to undertake the further training and they do not hold the additional competencies.
This is not what we agreed to during bargaining and it is not what clause 29 of the agreement was intended to do and Aurizon's attempt to use it in this manner is inappropriate.
If there was no intention to have at least some level of demarcation, we would do away with all classifications and different rates of pay and just have everyone paid the same rate.
If we are to apply Aurizon's reasoning, it would be akin to suggesting that Shunters could be trained to carry out Train Driver tasks and be paid the same rate as they are on now. There is no logic in this.” 9
[34] Mr Bruce Mackie, Branch Organiser for the RTBU located in Mackay provided an Affidavit. He stated he has contact with Shunters in Pring on a reasonably regular basis. He stated that, when he first became aware of the Employer’s proposed training plans, he sent correspondence to the Employer querying the training and the basis for the Direction for the additional duties, in relation to the email received by Shunters from the Service Delivery Manager, Mr Kevin Taske, on 7 October 2015. The following is an extract from Mr Taske’s email of 7 October 2015:
“… With the introduction of the new EA, the old demarcation of Transport operators performing work on locomotives no defunct. To this end I have consulted the RTBU with a proposal to train the Transport Operators to be able to Shut down/Start up and relink locomotives, at this time there has been no objection for the union in relation to this proposal.
Aurizon intends to upskill the shunters to be able to shut down, start up and link locomotives in the Pring yard, this will be stage 1 of the upskilling program and will not see you moving locomotives in this phase. It will purely be shutting them down and restarting them to get them ready for departure. Training packages have been developed and it intended it will take 4 weeks to complete this course. As it intended not to move locomotives in stage one, VTS testing will not be required. You will however receive qualifications on your history in relation to enterprise training for any possible career advancement in the future…” 10
[35] Mr Mackie also provided in his evidence the following email response, dated 12 October 2015, from Mr Taske:
“… Not sure what you are looking for here,but they will be trained to shut them down and start them up along with relinking them. This will result in them not attaining a tli competency, it will only show as manager required in their training profiles. In short it is an abridged version of the trainee drivers school without the westinghouse components and safe working.
The details of stage 2 have not been worked out, however I would imagine it will involve some stages which will require tli sign off, as vts testing is required…” 11
[36] The evidence of Mr Denis Yasso, a Tutor Shunter at the Pring yard, confirmed that such tasks on board the locomotive have never previously been required to be performed by Shunters and that these were always carried out by train drivers.
[37] The Applicant stated that the Respondent highlighted some of the indicative tasks in the Agreement that they relied on, in combination with the training for the additional tasks, to direct the tasks to be performed without any additional compensation. The Respondent argued that the tasks were incidental and peripheral to the current roles of Shunters.
[38] In relation to the duties, the Applicant referred to some of these employee’s indicative tasks as follows:
“a. Operate communication and computer equipment.
b. Conduct modified testing of train
c. Conduct train safety testing Couple/ uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rolling stock.
d. Provision, service, clean and perform lower level maintenance on rolling stock / locomotives
e. Shunting operations- DOO yards.”
[39] In relation to the duties, the Applicant argued as follows:
“They were not and nothing that is contained in the EA suggests that these additional tasks were tasks that the Respondent wanted the Shunters to perform, for the amount of money that they agreed to accept for payment.
The assertion that there is no restriction on them performing these tasks contained within the EA, is not worth a great deal. It would be a significant departure from Australian Industrial practice for parties to agreements to start listing all tasks that they are NOT required to perform, in all of their EAs.
The evidence of the Respondent’s witnesses and in the outline of submissions is that these tasks are extra tasks.
They are tasks which have not been performed by Shunters in the past and they are tasks that are not performed by any other Shunters employed by Aurizon throughout the State.
Shunters who also fall under this agreement also operate in many locations throughout Queensland. They are paid at the same rate as the Shunters in Pring and they are not required to undertake this training or conduct start up and shut down of locomotives.
This demonstrates that the tasks are additional to the “role for which they are employed” and for which they are remunerated…
…If the Applicant intended for there to be no demarcation whatsoever, there would be no list of indicative tasks required for Shunters. There would be no need for different pay-rates for Shunters and Train Drivers.
The Applicant further says that if there had been an agreement in respect of such a huge departure from the recognised demarcation of tasks, it would have been indicated in the list of indicative tasks. The fact that it is not, is evidence in itself that the alleged demarcation was not as large as the Respondent would have the Commission accept.” 12
[40] Mr Daryl Dickson, Sub-Branch Secretary of the RTBU in Bowen, and a Locomotive Train Driver at Pring, explained that these tasks were not aligned with the tasks that Shunters are being asked to now perform, and these tasks are not performed on the locomotive nor are any of the tasks, it was argued, incidental and peripheral to the tasks of a Shunter. Therefore he argued commensurate payment should be made for the additional duties.
[41] The Affidavit of Daryl Dickson in reply compared the indicative tasks in the classification tables that the Respondent relied on, to have Shunters undertake the additional tasks, in comparison with the actual additional tasks. Mr Dickson, in stepping through and analysing each of the particular Shunters’ tasks, listed the tasks as follows:
a. Operate communication and computer equipment.
b. Conduct modified testing of train
c. Conduct train safety testing Couple/ uncouple and perform all hose, cable connections and other associated functions between locomotives and/or rolling stock.
d. Provision, service, clean and perform lower level maintenance on rolling stock I locomotives
e. Shunting operations- DOO yards.
[42] Mr Dickson emphasised that none of these tasks are performed on the locomotive, for example, he stated in regards to task a. Operate communication and computer equipment, as follows:
“This task consists of the Shunters using radio equipment. Radio equipment is heavily relied upon by the Shunters because they need to communicate to the Train Drivers, when they need to move, what direction they need to move in and how far they need to move.
Computer equipment is used for the administrative tasks associated with their roles as well as emailing, filing out leave applications etc. All of this is done on computers. None of these tasks are performed on the locomotive cab.”
[43] The Applicant submitted that if the training that employees are being provided with, sits at a higher level than the current training for their classification (which the Applicant stated it did), it follows that this is not the role for which they are employed (as per clause 29.4) and that they are performing duties at a higher grade. This being the case, they submitted the employees should be paid higher grade payments, for the time performing these duties.
[44] The Applicant submitted that, during the negotiations of the Agreement, there were discussions between the parties pertaining to existing demarcations, but that they did not extend to the Shunters’ roles, only to the Train Drivers’ tasks. The Applicant submitted that the reason for the demarcation discussions was due to the termination of the prior Agreements, which clearly spelled out the tasks that a Train Driver was able to carry out.
[45] The Applicant set out that Transport and Logistics Industry (‘TLI’) competencies are National competencies overseen by the Transport and Logistics arm of the Industry Skills Council. Each qualification contains various competencies, each of which contains specific training and holds a unique TLI number. In this instance, Aurizon is an accredited trainer and determines which of the elective competencies an employee is trained in. Aurizon has selected, for the training in these duties, some modules within the competencies.
[46] The Applicant submitted that the modules within the competencies intended for Shunters to be trained in are:
1. Inspect and prepare a motive power unit;
2. Stable a motive power unit;
3. Identify, diagnose and rectify minor faults on motive power units and rolling stock; and
4. Prepare for train operations.
[47] The Applicant stated that the corresponding TLI number of competency for the above modules that are intended for the Shunters to be trained in, are competencies that appear in TLI qualification TLI42615 which is ‘Certificate IV in Train Driving’. The Applicant emphasised that none of these competencies appear in the TLI qualification TLI22015 ‘Certificate II in Shunting’.
[48] The Applicant submitted that these competencies are nationally recognised qualifications that fall under the Australian Qualifications Framework, and that it is arguable that the Respondent is further disadvantaging the Shunters, by not appropriately recognising their training at a national level.
[49] The Applicant further submitted that if the employees were to seek employment with another employer, they would not be able to demonstrate that they have been trained in these competencies with reference to the national framework and may lose the ability to use them for further employment opportunities or need to repeat the training.
[50] The Applicant also stated, that in relation to ascertaining whether the duties fell within the scope of classifications, examining the underlying Rail Industry Award 2010 (the Award) was:
“…of little assistance in this matter except to say that the following preamble is contained which is, with few exceptions, identical to the wording contained in the agreement:
Operations Classifications
Preamble
Employees at each level may be required to have the competencies for the level or levels below their level. When required, employees at each level will undertake lower level duties as well as performing tasks incidental to work at their level. The employer will ensure employees undertake duties which are within the limits of the employee’s skills, competence and training.
99. In respect of the Award, the RTBU says:
a. The training being provided to the affected employees is not at or below their level.
b. It is not incidental to work at their level
c. It is not in their usual skills, competence and training.
d. It therefore must follow that it is a higher skilled and trained duty and ought to be paid as such.”
Summary of the Respondent’s submissions
[51] The Respondent submitted that, in September 2015, a safety risk assessment was conducted that determined that Transport Operators (also known as Shunters) could perform the task of starting up, shutting down and re-linking locomotives and distributed power systems, and test the train’s braking system. These tasks had in the past been performed by train crew. The assessment identified training and the assessment of competence, in order for Shunters to perform the tasks. The Respondent states the selected modules, for Transport Operators to be trained in, are:
1. Prepare for train operation;
2. Inspect and prepare a motive power unit used; and
3. Stable a motive power unit (collectively start up and shut down of locomotives).
[52] The Respondent submitted that Shunters who complete this newly implemented training program are recognised as having partial attainment of the Certificate IV Train Driving and this is recorded in the enterprise training records.
[53] The Respondent submitted that the additional competencies, that the Transport Operators are being trained in, fall within the scope of the role for which they are employed as a Shunter:
1. They are incidental and peripheral to the duties performed by a shunter;
2. A Shunter is not being asked to perform a new role;
3. There is no prohibition in the Agreement preventing these duties from being performed by a Shunter;
4. A Train Crew Support Officer or an Advanced Trainee cannot perform the tasks as they have not completed the competencies for start up and shut down and relinking trains; and
5. The competencies compliment the non-exhaustive list of tasks in the classification as a Shunter does everything to prepare the locomotive except move it.
[54] As stated, the Respondent submitted that the tasks associated with start up and shut down are incidental or peripheral to the duties Shunters already perform, which they stated is illustrated in the classifications in clause 42 of the Agreement. Mr Walker for Aurizon argued that the additional competencies complement those indicative tasks on each of the classifications.
[55] The Respondent addressed the classification tasks and functions of an Operations Employee Level 4 as per the table contained in clause 42 of the Agreement (previously set out), and considered the additional tasks as follows:
“MR WALKER: In 29.5.2. They're associated with the role, as illustrated by the classifications in clause 42, which sets out a list of indicative tasks. If I just go to some of those tasks in clause 42, I'm talking about operate communication and computer equipment - - -…
MR WALKER: If we start at level 1. Operate communication and computer equipment. Conduct modified testing of train. Check/fill engine oil, water, fuel on locomotives.…
Employees at this level will perform a range of tasks, consistent with the position (indistinct) level 4, including but not limited to any of the tasks in level 3.
Level 3 says any of the tasks in level 2. Level 2 says any of the tasks in level 1. So it sort of cascades down. So those types of tasks that I just read out were in level 1. Level 2 says clean the sand pipes and fill in sand boxes, conduct train testing, couple/uncouple and perform all hose, cable, connections and other associated functions between locos and/or rolling stock. Then in operations employee level 4 classifications it talks about serviceability checks and certificates on rolling stock and locos within the competency of the - - -…
MR WALKER: Serviceability checks and certificates on rolling stock and locomotives within the competency of the employee. They're really the key classifications. What we say is that the additional competencies that are being taught complement those indicative tasks on each of the classifications. For instance, start up and shutdown is associated with the operation of communication and computer equipment, and making the loco ready for operation by provisioning, train testing, shutting wagons and locos generally.
We say these tasks are incidental, or associated with the tasks above, as they involve the preparation of a train for departure, and do not involve the movement of a train. The movement of a train can only be undertaken by train crew support or train drivers. Just turning to clause 29 in the EA, it permits Aurizon to direct employees to perform tasks so long as they are reasonably within their skills, competency, and training. We dispute that clause is confined to train crew, and it's a contention that I'll need to … examine Mr Kummerfeld about.
The basis for that submission is that at no stage during the negotiations were any restrictions sought to be introduced, that the classifications be restricted. That's what Mr Heenan says in paragraph 17 of his affidavit. This is really supported by clause 29, which we submit as a general application - which is why it appears in the core conditions of the EA. Mr Heenan swears to this effect in paragraph 23 of his affidavit.
So we say that the general application of clause 29 permits Aurizon to request shunters to perform tasks that are reasonably within their skills, assessed competencies and training, subject to certain safeguards, and that those safeguards are to provide a safe and healthy workplace, the employees being properly trained in the use of tools and equipment, and they're given reasonable training and provided a reasonable opportunity to acquire the competency. So those provisions are all within the EA, stated in the EA, and are the safeguards for assessing the competencies.
We say that in turn, the obligation on the employee is to participate in the training and acquire the competency to perform the role, and to utilise the competency to perform the functions associated with the role. So in short what we're saying is that the start-up, shut down, and relinking all fall within the task for which shunters are employed.
Just turning to the further questions, question 2, if question 1 is answered in the negative should they be compensated for the relevant tasks, at the rate equivalent of a trained crew support employee for the period of time they're carrying out these tasks? I.e. does the higher rate allowance apply. Well, because we answer the question in the positive, or the affirmative, there's no higher grade role for the shunters to act in, for the allowance to be triggered.
Again, this comes back to the train crew support officer. They have completely different skills to a shunter. They have completely different skills to a trainee driver. In fact, the modules that they complete are in the core programs document, which is exhibit 1 to Mr Prichard's affidavit. There's three competencies there. Work effectively in train driving environment, identify and respond to signals and track side signs, and assist with train operations. So we say that the TSO rate has no relevance or connection to the tasks that shunters are being asked to perform, the additional tasks.
In addition, clause 34(4) to 35(a) of the EA, which deals with an employee who acts in a higher graded role, there is no higher graded role. The higher graded roles are train crew support officer, or a train driver. So there is no higher grade role in which they could be remunerated.” 13
[56] The Applicant submitted that the appropriate rate of remuneration for Shunters, when they are performing the additional tasks, is that of an Advanced Trainee Driver. However, the Applicant acknowledged that there were components of the Advanced Trainee Drivers tasks that the Shunters were not carrying out. The Applicant nevertheless submitted that while performing those additional tasks, it was appropriate that Shunters should be paid at the higher rate of an Advanced Trainee Driver.
[57] The Respondent submitted that the qualified Shunters, the employees being directed to undertake these tasks, have already completed part of the training to attain a Certificate IV Train Driving qualification. The Respondent reasoned that, as parts of the 3 units being taught are part of the training for the Certificate IV, the employees are learning tasks at the same level as those required to become a Shunter, rather than performing tasks at a higher level.
[58] The Respondent submitted that the Shunters will be taught 3 out of 8 modules that form the train driving qualification. The Respondent submitted that the additional training was associated with the role of shunting, because of clause 29.5.2 of the Agreement requiring employees, if given reasonable training, to utilise all competencies, once acquired, relevant to perform the functions associated with the role for which they are employed. The Respondent submitted that the classifications indicated that the tasks listed therein were not exhaustive, and that Shunters performing tasks upon trains was not a significant change, given they already ride on locomotives in the capacity of assisting drivers.
[59] It was also submitted by the Respondent that the training in these additional duties provided Shunters with additional job security and a career path.
[60] The Respondent submitted that the compensation attached to the role of Trainee Driver could not be attached to these tasks, which are being asked of the Shunters, as this work currently fell within the scope of the Transport Operators’ duties. In addition, it was submitted that, as the attainment of an additional competency was not being completed by the training, an additional payment could not be linked to the additional tasks.
[61] The Respondent indicated that the additional training and skills were valuable to the employees as they provided a career path. In explaining the training and resulting qualifications, Mr Walker submitted as follows:
“MR WALKER: In short start up/shut down and the relinking of locos involves a shunter performing prestart visual check of loco entering the camp of the loco; turning on a number of switches, reading two gauges to ensure they display readings within certain ranges, and once they do pressing a button to start the loco. Testing is then performed that does not involve operating the throttle of the loco, and shutting down involves operating the two toggle switches and closing the loco's switchboard and battery and firescreen.
Aurizon conducted a risk assessment which identified the training and the assessment of competencies in order for shunters to perform these tasks. The appropriate training modules were identified by Aurizon Safety Health & Environment, also known as SH&E, but used parts of the training modules that were used for training trainee drivers…
Aurizon submits however that the modules selected are known as prepare for a train operation, inspect and prepare a motive power unit and stable the motive power unit.
From the modules the elements and criteria relevant to preparing and stabling a loco was selected for teaching an assessment. As parts of the three out of the eight modules are used there are no formal qualifications. The shunters that have completed the training however are recognised as having a partial attainment of Cert IV train driving and it's recorded in the enterprise training records.
…
MR WALKER: In those modules. So that's recorded in the enterprise training records, and it's also recognised as a partial attainment of a Cert IV train driving qualification.” 14
[62] Mr Walker for the Respondent explained that the tasks that are to be performed by Shunters within Aurizon were as follows:
“…Shunting can generally be defined as train or rail or vehicle movements that are not directly concerned with a through journey. The tasks include attaching wagons to a train, detaching wagons from a train, marshalling a train to accommodate operating or customer requirements, placement of trains or parts of trains for loading or unloading” 15
[63] In further explanation Mr Walker stated:
“…whilst an employee must hold competencies to drive a train they do not have to hold a competency to start up a link and shut down a loco that's not driven or moved. Against this background we submit that the start up, linking and shutting down falls within the scope of the role for which shunters were employed for a number of reasons, and they are that tasks are incidental and peripheral to the duties that they currently perform.” 16
[64] In support of directing employees to undertake the additional duties, the Respondent submitted that clause 29 requires employees to participate in training, as required to perform the role and to utilise all competencies, once acquired, relevant to perform the functions associated with the role. The Employer argued that the tasks are incidental or peripheral to the duties of the classification. Mr Walker stated:
“MR WALKER: The second proposition is that the shunters are not being asked to perform a new role such as that of a train crew support officer. The third one is that there's no prohibition in the enterprise agreement that prevents these duties from being performed by a shunter. The fourth one is that a train crew support officer or advanced trainee can't perform these tasks as they have not completed the competencies to start up, shut down and relink a loco.” 17
[65] The Employer also argued:
“…the competencies that the shunters are being asked to train complement the non-exhaustive list of tasks in the classifications for a shunter, so in clause 42, because a shunter does everything to prepare a train except move it. In addition the completion of the competencies will provide a career progression path for shunters to progress to obtain driver qualifications. So these additional competencies will give shunters added job security in addition to assisting the company by saving the time drivers need to spend starting up and shutting down…” 18
[66] The Employer explained, with reference to the training document, the three competencies of the eight modules of the training required by these employees, as follows:
“…So the first one, "Inspect and repair a motive power unit" - so the first thing to notice about this is that the parts that are highlighted in the competency are things that the shunters are not being trained to do. That's the first point.
Just running through to the elements, the first element is "Prepare for work activities". It is primarily concerned with prestart activities, for instance checking the allocation of the loco, identifying any potential hazards, being aware of safety procedures, et cetera. These are all activities that a shunter, we say, currently does before they venture into the yard to start a shunt.
Element 2, "Inspect and prepare motive power unit", involves the on ground inspection of the loco, the inspection of the log book for any deficiencies with the loco, and what we say is that these tasks fall within the scope of serviceability checks and certificates on locos, that's found in clause 42 of the classifications.
The element also requires checking consumables such as fuel and oil and water, which we say is a task within a shunter's role, for example in the classifications it refers to fuel and provision locos.
Element 5 and part of element 6 are also concerned with serviceability checks and certificates and record keeping, as are elements 1 and 2. So in respect of these elements shunters are not being asked to perform any duties over and above what they currently do.
Elements 3 and 4, "Start a motive power unit and conduct in-cab checks", are really the core functions of the module, which is concerned with starting up the loco, the shunters are being asked to perform, and that really represents 14 out of 38 tasks here, performance criteria.” 19
[67] Further, Mr Walker stated:
“MR WALKER: So what I was saying was that the starting up performance criteria are really a fraction of this module, because there's 14 performance criteria out of 38 in that module that are the core competencies that are being taught to the shunters. So that's the first of the modules. The second one is stable the motor power unit. The core performance criteria are in element 2 and 3, which are titled Stable Motor Power Unit and Carry Out Post-operational Checks.
The first criteria, determine stabling location, is not being taught because that's not considered part of what the shunters are being required to do. So what these two elements do is they require the shunters to shut down the loco and prevent it from moving, checking consumables again, and identifying any faults. The actual shutting down of the loco represents just one of the criteria. The remaining 14 either involve moving the loco, which shunters are not being asked to perform; stabling and securing it, so that it doesn't move; inspecting the consumables, fuel, fluids, etcetera; and identifying and recording the faults.
So it's submitted that these are all activities that are very closely aligned with what shunters are already doing, in respect of securing wagons and provisioning locos, which they're currently performing…
…the stowage of the loco is really akin to the stowage of wagons. So the applying of brakes, you know, testing the air, testing the brakes, those sorts of things. So that's the securing aspect. And the provisioning aspect is something they already do, because we have provisioner shunters who sand the train, fuel it up, put water in it, etcetera. So what I'm trying to say is that those tasks are very closely aligned with what's in clause 42 already.
So that's the second module. The third module is Prepared For Train Operation. These activities are largely focused on pre-departure checks for the loco, and the loco is not moved. So that's really largely what occurred at the inspection the other day, in terms of people running the checks, powering up the control systems, etcetera. So we submit that those tasks that are associated with start and shutdown are really incidental or peripheral to, or to use the words in the EA there, closely associated with the role.” 20
Consideration and the Remuneration Claim
[68] Mr Pritchard, Principal Compliance Advisor with Aurizon, gave evidence at paragraph [15] of his Affidavit, that employees are compensated for the level of responsibility attached to the role. The Union submitted therefore, that additional remuneration should be attached to these new tasks, given the additional responsibility associated with them, as the Train Drivers will take a locomotive (prepared by these employees performing these additional tasks) and rely on the Shunter’s appropriate completion of these additional duties, to then drive the route.
[69] In terms of the additional duties the employees in question are being asked to perform, Ms Jones for the Union stated that the tasks carried significant responsibility and therefore payment for such should be recognised:
“MS JONES: But we are talking about a task that does need to be performed safely and correctly, so that people aren't put at risk, because the drivers of every train that use the main line, including Queensland Rail's long distance passenger services, are being put at risk if this task is not performed correctly. Additionally where the rail meets the road members of the public using the road may be put at risk if a derailment is to occur at a level crossing, and that may occur if this task is not performed correctly.
So as I have already touched on the national qualifications framework recognises the level of risk and responsibility associated with these tasks and has classified them accordingly, and they do set within a Cert IV at a national level. However the RTBU recognises that shunters are not required to train to the standard of a fully qualified train driver, nor are they required to carry out the tasks of a fully qualified train driver, but these tasks do derive from the train drivers role and they are at a higher level than those of a shunter, and the perfect demonstration of that is document SK1 attached to Mr Kummerfeld's affidavit and it speaks very clearly to that.
Accordingly the correct rate of pay must sensibly sit between that of a shunter and that of a train driver when they are performing these tasks. The only classification in the agreement which fits that criteria is the rate of pay of a train crew support employee/advanced trainee driver; they're the same rate of pay….” 21
[70] The parties conceded that there were no longer many train crew support employees employed and that these duties would normally have been performed by employees in these roles. A further explanation was provided in relation to the rate of pay sought, which was equivalent to that of Train Crew Support Employees/Advanced Trainee Driver Employees (who are not in receipt of the aggregate rate) as follows:
“MS JONES: The classification is still there, correct. I would just go off on a bit of an explanatory tangent. The train crew rate of pay includes the rate of pay that's found under the classification in the agreement, but in addition there is a train crew location allowance or a site allowance at clause 35.11 to 35.17. It refers to site allowances that apply to specific sites. So the train crew support employee/advanced trainee driver rate of pay is the two rates combined. Because if you look at just the advanced trainee driver rate of pay it appears to be lower than what the shunters are currently getting...” 22
[71] The Applicant, in quantifying the claim, conceded that the amount that the Applicant is seeking for the employees to be paid, when they are performing higher duties, is not a straightforward task to perform. The Applicant referred to clauses 43, 54.3 and 35.4 to 35.8 of the Agreement.
[72] The Applicant submitted as follows in relation to the remuneration claim:
“The Applicant asserts that because the Shunters do not have the same working regime and available for duty hours that Traincrew employees do, they do not become entitled to the full aggregate rate paid to Traincrew employees.
Instead, we say that the Shunters ought rightly be paid under clause 54.3 at the level of an Advanced Trainee Driver/ Train crew support employee who is not in receipt of the aggregate rate.
This is a lower rate of pay than a Traincrew employee but it does attract penalty rates for weekends, night shifts and the like.
Currently, the hourly rate of pay for Shunters is $27.1447. That is the rate that an Operations level 4 employee (OS2.4) is paid at and the rate, as the Applicant understands it, that the majority (if not all) of the affected employees are currently in receipt of.
This figure is based on the above rate (in clause 43) divided by the hours of work for a transport operations employee (see clause 36 under schedule 1) which is 38 hours per week or 76 hours per fortnight.
When a Shunter performs the duties currently the subject of this dispute, the Applicant says that the shunters should be paid $33.5875 pursuant to clauses 35.4-35.8 (Higher Grade Allowance) plus any penalties applicable for the time of day that they are working.
This is the rate of pay that appears in clause 54.3 divided by a Traincrew employee’s hours of work, which is 40 hours per week or 80 per fortnight.
That is an hourly rate difference of $6.4428.
This amount would, of course, move in alignment with the pay increases due to occur in September of each year for the life of the agreement.” 23
(emphasis added)
[73] In specific response to the Applicant’s claim for additional remuneration for these tasks, the Respondent stated:
“Under the proposal for shunters to start up and shut down locos, employees are
not being asked to complete any of these modules.
The Applicants submission should not be accepted for the following reasons:
- There is a remote connection between the work shunters are being asked to perform and the work performed by Train Crew stream employees;
- Train crew employees and shunters have separate qualifications and skills that are unique to the work they perform;
- Train crew rates of pay are based on a 40 hour week whereas shunters rates of pay are based on a 38 hour week;
- It would be unfair to train crew support employees and advanced trainees for shunters to be paid at the same rates of pay without the shunters holding the same qualifications.
- There is no natural progression under the TCTO EA for a shunter to advance from the Transport Operations Stream to the Train Crew Stream or for a shunter to act in a higher grade across streams. The logical and most appropriate method is for a shunter to act in a higher grade within their own stream.
It is submitted that if payment is to be made at higher grade, the most appropriate
and applicable classification is at the top of the broadband for an Operations
Employee level 5 which is a full competence level above Level 4. Typically an
Operations Employee Level 5 is a tutor shunter and the classification has been
chosen to recognise the additional duties and responsibility being requested. The
levels above are not applicable as they apply to Supervisors and managerial
employees.
The difference in hourly rate between OS 3.3 (Operations Employee Level 5) being
the top of the grade and OS 2.4 ( Operations Employee Level 4 ) the shunters current
pay rate using the tables in clause 43.4.is $2.01 per hour calculated as follows:
($2320 -$2167 divided by 76 hours)= $2.01 per hour
A copy of the wage rate schedule from cl 43.4 is attached and marked A.
In accordance with cl 35.4 the allowance would be paid for each ordinary hour in
which a shunter worked starting up and shutting down a locomotive…” 24
(emphasis added)
[74] The Respondent asserted that employees initially disputed this matter only on the basis of safety concerns. The Applicant rejected this statement and identified that the Respondent has not provided any evidence to support this assertion. The Applicant submitted that this matter was first raised in an email sent by the Applicant’s Mr Les Moffit outlining the dispute. The Applicant submitted that the email clearly identified that the additional training and tasks, directed to be performed, were not being compensated and this was the Union’s primary concern. In any event, the parties conceded that an approved risk assessment, of the performance of these duties, had been provided by the Respondent and therefore this safety objection was not a continuing element of the case. However, the Applicant’s claim remained for the payment for the additional duties.
[75] The Respondent provided evidence to demonstrate the training that Shunters are being directed to undertake. A document labelled ‘EP1’ attached to the affidavit of Mr Pritchard indicated the competencies into which, Aurizon stated, the selection of training modules fall.
[76] The Respondent stated that, given the Shunters do not have the competencies to perform the higher grade role; they are not performing at this level and should not be paid such a high rate.
[77] The Union conceded that the additional duties required of the Transport Operations employees, were not commensurate with those required of the higher grade employees, and no detailed submissions or evidence associated with a work value case for these additional tasks were received.
[78] The Applicant addressed Question 2(a), in relation to whether employees should be compensated (for the period of time they are performing the additional tasks) based on the work value of those tasks, as follows:
“… we say that if the rate of pay is not to be that of a train crew support employee or/advanced trainee driver any work value assessment that is carried out needs to take these same matters into account.” 25
[79] The Respondent, in relation to Question 2(a) and the work value claim, submitted as follows:
“The second leg is, if question 2, so we call it (a), is answered in the negative, should they be compensated for the period of time they're performing the relevant tasks, based on the work value of those tasks. We submit that this question is answered in the negative, because there's no reference point for the compensation found in any of the higher tasks. Like, for example, trainee driver, advanced trainee, train crew support officer, etcetera.
Because the shunters aren't at those levels, they couldn't be remunerated within those levels. The issue being that if you did, you would probably create an inflammatory situation for train management improvement officers, drivers, advanced trainees, etcetera, questioning why an employee without their qualifications is being paid at the same rate.” 26
[80] The parties are clearly seeking in this dispute an interpretation of the ambiguity that has arisen in relation to the underpinning clauses of the Agreement. The relevant principles for agreement interpretation were summarised in the recent Fair Work Commission Full Bench Decision of Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 27 where it was stated at paragraph [41]:
“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.”
[81] The RTBU submitted that there is an ambiguity in the interpretation of the clauses that prevents the performance of work in this manner that the Respondent requires. Whilst the Respondent referred to general discussions held during the negotiations to eliminate demarcations, no documentary evidence was provided of the negotiation discussions, in terms of minutes or otherwise, to support the conclusions of the parties with regard to the interpretations of the Agreement provisions, relevant to Shunters work.
[82] The Union opposed the argument that the provisions allowed for these additional duties without additional payment, stating it was never raised in negotiations that the employees would be directed to train and perform these new duties and to have them considered within the scope of current pay rates. The Respondent argued that it was a reasonable and lawful direction.
Conclusion
[83] The assessment of this matter turns on the wording of the clauses in the new Agreement in terms of the duties in the classification for the role, for which the employee was employed and the associated training and directions permitted by clause 29. Clearly, ambiguity exists on the different interpretation of the clauses by the parties. The identification of ambiguity or uncertainty requires an objective assessment of the words in the provision under consideration, having regard to the context, in order to determine whether, on the proper construction of the wording of the clauses, the words are susceptible to more than one meaning.
[84] The Commission will regularly err on concluding an ambiguity or uncertainty exists when the rival contentions advanced by parties provides an arguable case for more than one contention. It is recognised that a dispute, or disagreement or rival contentions regarding the construction of the terms of an Agreement between industrial parties does not always lead to a finding that substantiates a variation to the Agreement on the grounds of ambiguity or uncertainty. Proper material is required to undertake the interpretation.
[85] Clearly, the parties are in dispute regarding the performance of these additional duties and any associated payment. The Applicant is seeking a higher grade allowance of approximately $6.45 per hour, while the Respondent submitted that, if a higher-grade allowance is applicable, it should be assessed at the difference between a Transport Operations employee Level 4 and a Transport Operations employee Level 5, that is, $2.01 per hour.
[86] Given there is significant 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 did not advance past these general references.
[87] The authority of AMIEU v Golden Cockerel Pty Limited 28 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.
[88] 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, there were no submissions based on a work value payment, which is relevant to Question 2(a) of the Questions for Arbitration.
[89] A further complicating factor with the remuneration claim was that, by applying the claimed wage differential to the hours of work 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), by applying it to the payment of overtime shift loadings and weekend loadings.
[90] How the parties arrived at the rival contentions in relation to the use of these new Agreement provisions has not been addressed. 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 new Agreement provisions 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.
[91] In terms of the principles of AMIEU v Golden Cockerel Pty Limited, the Employer has not addressed clearly how these changed duties arose and whether there is evidence of such 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.
[92] As stated, 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, and that no submissions were filed on a work value claim.
[93] This is an important industry matter, given that the Employer has submitted that having Shunters undertake this work, which is a clear change from their regular duties, is within the scope of the Agreement and that they are entitled to direct employees to perform these duties to achieve this productivity and efficiency under the Agreement. It is reasonable to consider that the utilisation of employees’ skills in an efficient manner is an obligation of a publicly listed company, to maintain competitive operations, particularly in the current environment of the industry.
[94] This Interim result is disappointing from the perspective that the workplace inspections and discussions demonstrated that, in the current industry environment, continuing operating efficiencies are necessary, but also many Shunters in the Aurizon business are long term employees that are experienced and will clearly, with the training, be able to undertake these duties in a competent and reliable manner. This will obviate the need for drivers to do these pre-start duties and will allow for train drivers to step into the locomotive and commence driving the route. This will no doubt add time back into the route driving schedule and provide for increased efficiency for the Employer, at no additional cost. It is also recognised that these duties being performed by Transport Operations Stream employees provide greater job value and security to those employees, given the nature of these tasks in the scheme of operations. However, these duties involve a significant increase in responsibility for the Shunters. This range of observations was not dealt with in the evidence and submissions regarding the provisions.
[95] The Applicant claims that, had it been aware, during the negotiations, that it was the Respondent’s intended approach to use these Agreement provisions in this way, the Applicant would have sought to negotiate an increase in remuneration associated with the additional responsibilities, productivity and efficiency.
[96] Whilst the Employer simply argued that the training associated with the additional duties provided an advantage in terms of a career path for these employees, the Respondent’s current evidence did not support this. The training provided is a selection of modules that did not allow for completion of an associated competency for a recognised training or career pathway. If a proper agreed approach to the introduction of this training and the duties had been adopted, the parties could have jointly approached the Industry Training Council to develop an associated portable qualification, with a recognised career path, rather than simply undertaking training in a selection of modules. Issues related to the current associated pay scale would have been discussed.
[97] The step to have the parties provide additional material is undertaken given the current dispute is considered to be a significant industry issue but it also highlights the ongoing use of the Agreement provisions. Aurizon has indicated it is their intention to direct like employees at their other workplaces to undertake these additional duties on the same basis of the Agreement provisions. It may then also be open to the Employer to provide a like reading of the Agreement clauses to broaden the duties of a range of the classifications within the Agreement. This approach may well be open to the Employer but currently such a right has not been approached with any rigour.
[98] The Applicant’s clear position is that the duties in question are not recognised as being duties that have been performed on the common understanding of the Operations Stream for employees at the commencement of the Agreement. That is, the Applicant submitted, the duties are not within the role of the Shunter for which they were employed at the commencement of the Agreement.
[99] The Applicant stated that the performance of these duties is not consistent with the interpretation of clauses 29.1 and 29.2 as relied on by the Employer. The Union emphasised that to perform these duties, employees require additional training at a higher competency level and therefore the additional duties cannot form part of the role for which they were employed.
[100] The matter is unable to be conclusively determined given the significant ambiguity and uncertainty that exists in relation to this dispute that potentially has broader implications for further application of the provisions of the Agreement in the same way. It would be improper to determine this significant issue where there is an absence of evidence surrounding the ambiguity, without further providing the additional opportunity for the parties to address the comparison between how these employees’ duties were previously undertaken compared to the current directions and how this issue was considered in the negotiations or associated matters relevant to any agreed position or a discussion regarding the intention of the use of the clauses in this manner. Predominantly, an interpretation of the provisions against the stated principles is required.
[101] Accordingly in setting further Directions to deal with these issues of ambiguity, the Applicant will first be asked to deal with the remuneration claim in light of the comments made. Further submissions and evidence by these Directions will be sought from the parties to decide the issue of the ambiguity and the outcome in relation to the direction to perform these additional duties.
[102] It is recognised that the duties have commenced being undertaken as the status quo provisions in the Agreement did not limit such, but that the Union has also sought back pay in association with their remuneration claim. Therefore, it is the intention to deal with the interpretation exercise as expeditiously as possible. A listing for a conference in this matter will be issued.
[103] 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.
Hearing details:
Brisbane:
2016.
14 July.
Final Submissions:
9 August 2016 - Applicant
15 August 2016 - Respondent
1 [2015] FWCFB 540.
2 Transcript 14 July 2016 PN274-295.
3 Affidavit of Shane Kummerfeld sworn 3 May 2016 at [5].
4 Affidavit of Shane Kummerfeld sworn 3 May 2016 at [6] – [9].
5 Affidavit of Shane Kummerfeld sworn 3 May 2016 at [10] – [14].
6 Aurizon Operations Limited [2015] FWCA 6097.
7 Affidavit of Shane Kummerfeld sworn 3 May 2016 at [32] – [35].
8 Affidavit of Shane Kummerfeld sworn 3 May 2016 at [36] – [37].
9 Affidavit of Shane Kummerfeld sworn 3 May 2016 at [44] – [50].
10 Extract from BM2 annexure to the Affidavit of Bruce Mackie sworn 4 May 2016.
11 Extract from BM2 annexure to the Affidavit of Bruce Mackie sworn 4 May 2016.
12 Submissions in response from the Applicant filed 26 May 2016 at [22] – [27], [33] – [34].
13 Transcript 14 July 2016 PN274-295.
14 Transcript 14 July 2016 PN124-129.
15 Transcript 14 July 2016 PN142.
16 Transcript 14 July 2016 PN183.
17 Transcript 14 July 2016 PN208.
18 Transcript 14 July 2016 PN226.
19 Transcript 14 July 2016 PN242-247.
20 Transcript 14 July 2016 PN267-272.
21 Transcript 14 July 2016 PN39-43.
22 Transcript 14 July 2016 PN47.
23 Applicant’s submissions – Quantification of the Claim filed 9 August 2016.
24 Respondents Further Submissions - Quantification, filed 15 August 2016.
25 Transcript 14 July 2016 PN49.
26 Transcript 14 July 2016 PN298-299.
27 [2014] FWCB 7447.
28 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.
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