Necdet Tarakci, Marin Cikes v KDR Victoria Pty Ltd T/A Yarra Trams

[2023] FWC 252

[2023] FWC 252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Necdet Tarakci, Marin Cikes and others

v

KDR Victoria Pty Ltd T/A Yarra Trams

(C2022/6141)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 2 FEBRUARY 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – dispute over new roster structure for tram drivers – dispute determined

1. On 7 September 2022, the Applicants referred a dispute to the Commission concerning the content and implementation of a new roster structure for tram drivers that Yarra Trams intended to commence from 16 October 2022.  Each of the four Applicants are tram drivers employed by Yarra Trams. 

1. In a decision dated 5 October 2022, I dismissed an application for interim orders.[1] This decision deals with the application for final relief.

1. The Applicants said that the dispute would be resolved by answering the following questions.

Question 1: Would the implementation of the Graduated Rosters breach clause 19.2 of Appendix One of the Yarra Trams Enterprise Agreement 2019 – Operations?

Question 2: Should the Commission make an order enjoining Yarra Trams from implementing the Graduated Rosters?

1. The Applicants submitted that the answer to each question should be ‘yes’. Yarra Trams submitted that both questions should be answered in the negative.

Factual context and findings

1. The current roster structure for tram drivers has been in place since the 1980s. It involves morning and afternoon shifts which alternate on a weekly basis. 

1. Rostering at Yarra Trams is complex and time consuming. First, the tram schedule is established and approved by Government, and then employee rosters are developed to align with the Master Timetable.  More than 1000 tram drivers are employed by Yarra Trams.

2. Yarra Trams undertook consultation about the proposed change to a graduated roster structure between February and April 2022. On 19 April 2022, Yarra Trams advised drivers that it had made a definite decision to introduce the new structure.  Further consultation then occurred at the local level in relation to its decision. Until 16 June 2022, no issues were raised by either the Applicants or the Rail Tram and Bus Union (RTBU). From 16 June onwards, there were various communications between the RTBU and Yarra Trams, with the RTBU advising Yarra Trams on 7 July 2022 that it considered that the consultation undertaken did not comply with the obligations under the Agreement. At hearing, the Applicants did not press a claim that the consultation was inadequate.

1. A new Master Timetable (MTT22c) was formally approved by the Department of Transport on 17 June 2022 and commenced on 16 October 2022.[2] New graduated rosters to align with the new Master Timetable were developed between July and September 2022 and posted at all depots by 16 September.

Rationale for the change

1. The rationale for the change to a graduated roster structure was to better manage the health and safety risk of driver fatigue. The two primary sources of Yarra Trams’ health and safety obligations arise under the Rail Safety National Law (RSNL) and the Occupational Health and Safety Act 2004 (Vic) (OHS Act). In relation to the RSNL, Yarra Trams was in a transition period following responsibility for compliance moving to the Office of the National Rail Safety Regulator (ONRSR) in December 2019. The change included Yarra Trams having to comply with more prescriptive obligations and guidelines in relation to rail safety, including fatigue management.[3]

1. In late 2021, management held a workshop to discuss rostering. Yarra Trams viewed the stricter fatigue management rules as being increasingly difficult to meet under the alternating roster structure. For example, two shifts are now considered consecutive if there is less than 34 hours between the end of one shift and the beginning of the next.[4]  Another consideration was that the growing increase of part-time drivers exacerbated the difficulty of complying with the fatigue management principles under the alternating roster pattern, because of terms and conditions in the Agreement dealing with hours of work.[5]

1. Yarra Trams commenced exploring other roster models, including a graduated roster. Under a graduated roster, a driver gradually commences work later each week over a 20-week roster cycle. Under the alternating roster, a driver is rostered to work a week of morning shifts, followed by a week of afternoon shifts, then a week of morning shifts, and so on.

1. Yarra Trams assessed a graduated roster structure as superior to the alternating roster structure. Under a graduated roster, a driver gradually commences work later each week over a 20-week roster cycle. The average start time of each position progresses each week over the cycle, starting from early positions, then moving on to the day positions, then middle positions, then late positions. At the end of the 20-week cycle, drivers have a week of programmed days off (PLDs) before commencing the next 20-week cycle.  This structure avoids rotating from late shifts to early shifts and back with little time to rest in between and optimises fatigue management.[6]

1. Mr McMillan, Acting Chief Safety Officer gave evidence that the alternating roster is an “outdated mode of rostering that is not aligned with best practice from a health and safety perspective” because shift design based on forward rotating shifts is identified by experts and regulators as one control measure for fatigue risks.[7]  Also, that the alternating roster structure raises fatigue management risks, because it allows for considerable backward rotation and jumping between backward and forward rotations, whereas a forward rotation roster or starting at the same time each day is better for a person’s circadian rhythm.[8] An audit of Yarra Trams’ management of fatigue in the workplace conducted by ONRSR in June 2022 found the evidence “demonstrates that [Yarra Trams] are moving from an ‘alternating roster’ to a forward rotating ‘graduated roster’ which aligns with current state of knowledge for better fatigue risk management.”[9]

1. Before its introduction, the Safework & Safety Culture team conducted a safety assessment of the proposed graduated roster design. The assessment identified several matters that required consideration including the conduct of a FAID analysis. This is a fatigue assessment tool which analyses a proposed roster and provides a “FAID score”. It is a useful but not determinative indicator of fatigue.[10]  The outcome of the safety assessment was that whilst the graduated roster design did not fix all fatigue related issues, it provided improvements for those employees who work to the graduated roster, and for those who engaged in substantial shift-swapping, results in a low impact because they can continue to engage in shift-swapping.[11]

1. A risk assessment of the graduated roster design concluded that it did not increase the fatigue related risk profile.[12] In cross-examination the Acting Chief Safety Officer expressed his opinion that:

“Whilst no rostering system will be perfect, especially when it is necessary to meet operational requirements and to account for flexibility in rostering and driver working preferences, I am of the firm belief that the Graduated Roster Design provides for a better system of work than the current rostering system used for drivers. Furthermore, the nature of the Graduated Roster Design means that it will be easier and more efficient for Yarra Trams to continually make improvements to the roster moving forward, in order to continually better our systems and strive to create a way of working that meets the needs and requirements of Yarra Trams, its employees and the travelling public.”[13]

1. The graduating roster structure introduced by Yarra Trams allows for forward rotation in more cases than the alternating roster structure does.  It allows for a greater number of consecutive days off to recover from blocks of shifts and also enables an 11-hour break between shifts which can’t be achieved under the alternating roster, where there is a 10-hour break between shifts.[14] Yarra Trams views the change as part of a process of continuing improvement regarding fatigue management. [15]

1. However, the roster structure - whether alternating or graduated - does not accurately reflect the actual work patterns. In practice, these are quite different because full-time tram drivers commonly swap their shifts to meet their personal circumstances and family commitments and preferences.

1. Along with the graduated roster, Yarra Trams introduced a new system to enable shift swaps between drivers via a self-service platform. Prior to this, a paper-based system was used, which was more time consuming and associated with some errors.[16] Under both alternating and graduated rosters, a driver can apply for a swap up to 5 weeks in advance.[17]  Under the self-service platform, a driver can post a broadcast ‘notice’ requesting a swap, rather than needing to contact individual drivers under the previous system.

1. ‘Rostering rules’ are applied by Yarra Trams to deal with the potential risks that might arise from drivers departing from the scheduled roster and creating their own roster by swapping shifts. They are designed to ensure that the risks to drivers are limited so far as reasonably practical.[18]  The same rostering rules apply in respect of both the alternating roster and the graduated roster. The rules for management approval of a shift swap are also unchanged.[19]

1. The risk of fatigue in relation to actual rather than rostered work had been previously assessed in a report prepared for Yarra Trams by Dr Adam Fletcher.  Dr Fletcher analysed the risk of fatigue over the 12-month period between August 2020 and September 2021.[20]  Using a FAID analysis, Dr Fletcher found that 98.8% of all hours worked were under the nominal FAID Fatigue Tolerance Level (FTL) of 80, and that 93.9% of all shifts worked were under the nominal FTL of 80.  Overall, the fatigue-related risk exposure was lower to moderate for full-time tram drivers.[21]

1. Evidence of the extent of the practice of shift swapping differed widely. One of the tram drivers, Mr Street, gave evidence on behalf of the Applicants that a survey of drivers at the Southbank depot found that 92% of drivers were swapping shifts.[22] Dr Fletcher’s FAID analysis found that approximately 48.7% of planned shifts were changed or cancelled in that 12-month period. Of the changed or cancelled shifts, 42% were driver-initiated and 6.7% were management-initiated.[23]  Mr McMillan’s evidence, drawing on Dr Fletcher’s FAID analysis, was that approximately 40% of shifts were swapped, of which 70% were ‘permanent’ swaps.[24]

1. Many of the shift swapping arrangements are, in practical terms, permanent swaps for the drivers involved. Other swaps are on an ad hoc or temporary basis. The permanent swaps in place allow, for example, tram drivers who prefer early shifts to swap with a driver who prefers late shifts. As a result, these drivers do not in reality work alternating rosters with the problematic backward rotation inherent in the alternating structure. They work mainly early or late shifts, depending on their preference, under often long-standing arrangements. The process is relatively straightforward as a driver need only find a single driver on the alternate shift who wishes to swap. Shift swaps are usually approved by Yarra Trams, subject to compliance with ‘rostering rules’.

1. Mr Breton, Manager, Master Timetable and Service Design gave evidence that permanent swapping arrangements could continue to be made under the graduated roster.[25] On the other hand, Mr Edwin David, tram driver, gave evidence that he will not be able to have a permanent shift swap in place under the graduated roster. His evidence was that while he had not tried to use the system, he had analysed how the new structure would impact drivers and believes that it would be more difficult to do it in a way that achieves the same kind of arrangement he had in place under the alternating roster.[26]  Another Applicant, Mr Cikes, gave evidence that while a permanent swap can be sought, it is more complicated than before, because each driver may not have the same number of the type of shifts that they want to swap as the driver they want to swap with.[27]

1. At the time of the hearing, the new graduated roster had been in place for only a few days, and there is therefore very limited evidence about its impact. However, the evidence about the extent of shift swaps under the new system suggests that there has been a relatively unremarkable reduction in the number of shifts swapped. In the first week of the graduated roster 3014 swaps are recorded, compared to 3201 the previous week. This is viewed against the number of days swapped in a week between 26 December 2021 and the week commencing 16 October 2022 varying significantly, ranging from 2202 to 3723.[28]

The impact on tram drivers

1. Eight tram drivers, including the four Applicants, gave evidence about the impact of the implementation of the graduated roster on them and their families. Their evidence was that the graduated roster will impair tram drivers’ ability to use shift swapping to align their working lives with their personal lives and impair a strategy used to manage their fatigue. 

1. Mr Tarakci engages in extensive shift swapping to accommodate his preference for working broken shifts which allow him to go home in the break, and this has enabled him to structure his life and achieve a good work/life balance. In 2022, he swapped out of 22 of 37 roster rotations. He believes it will not be possible to continue to maintain that balance under the graduated roster because he will not be able to take the tram to work, and it will not be easy to swap shifts. This is because of the need to swap blocks of consecutive weeks and because there are fewer broken shifts under the graduated roster. He does not believe the graduating roster is good for managing his fatigue and will impact on his personal relationships.[29]

1. Mr David, Health & Safety Representative at the Essendon Depot, has a standing shift swap arrangement in place with two other drivers to accommodate his preference for early shifts. He has adapted his routine to work this way and finds it difficult when he is ‘stuck’ with a few days of shifts that start later in the morning and finish around 7pm. He estimates that only about 5 out of approximately 152 full time drivers at the Essendon depot regularly work across all the shifts. He believes that it will be impossible to maintain permanent shift swapping arrangements and that it would be extremely difficult to work the graduated roster.[30]

1. Mr Antonopoulos is a RTBU delegate at the Preston depot and he regularly swaps shifts about 90% of the time.  This enables him to spend time with his family which is important to him, and he believes it will be more difficult to swap shifts under the graduated roster.  At the Preston depot he says that less than 10 out of 200 drivers regularly work the roster.[31]

1. Mr Cikes, who is also a Health & Safety Representative, estimates that 90% of drivers modify their shifts to suit their lives and few work according to the roster. He says that permanent shift swapping will end, and that the new self-service portal will exacerbate the difficulties for drivers.  His life has been structured around the current shift structure for more than 30 years and he believes it will be very difficult for him and his wife who is also a tram driver to swap shifts, and this will make his own fatigue worse.[32]

1. Mr Bunker usually works the roster allocated to him, unlike most drivers at the Preston depot who swap shifts. He does not find the current roster causes fatigue and enjoys the variety of the alternating roster. He is concerned that the graduated roster, requiring consecutive late shifts, will be more difficult and impact on his social life, personal relationships and mental health.[33]

1. Mr Banapar also routinely engages in shift swapping which allows him to take care of his family responsibilities and estimates that 95% of drivers at Essendon regularly swap their rostered shifts. He is concerned that shift swapping will be very difficult under the graduated roster.[34]  His experience with shift-swapping under the graduated roster is that he found it stressful and time consuming. Nonetheless he did find a driver to swap with.[35]

1. Mr Martin gave evidence of his views and experience as a Health & Safety Representative at the Southbank depot, including that he attended several meetings of the OHS Committee for Southbank. In cross-examination he acknowledged that he did not raise concerns about the proposed graduating roster in that forum in several meetings during 2022.[36]

1. Mr Street has at various points over his 16 years as a tram driver engaged in shift swapping and at other times has worked the alternating roster. He disagrees with Yarra Trams’ description of backward rotation under the alternating roster because there is no backward rotation within a week (Monday to Thursday).[37]  Mr Taracki. Mr Antonopoulos, Mr Cikes and Mr David gave similar evidence about the limited extent of backward rotation under the alternating roster and say that the consecutive days off at the end of a week under the current roster provide a sufficient period to adjust to whatever shift is worked the next week.  Mr David also disagrees with Yarra Trams’ assertion that the graduated roster will have a low impact on drivers that engage in substantial shift swapping because they can continue to do so. Mr David says that, while he has not applied to swap shifts, he will need to arrange swaps with a number of different drivers and this will cause stress and uncertainty.[38]  

1. Of the eight tram drivers who gave evidence, three gave evidence that they had successfully swapped shifts under the new arrangements, although they found it more time-consuming and stressful.  Mr Cikes had successfully swapped shifts.[39] Mr Banapar had swapped 7 shifts for each of the first 3 weeks of the graduated roster.[40]  Mr Bunker had arranged one shift swap through a Facebook account.[41]  The other five drivers gave no evidence that they had attempted to swap shifts under the graduated roster.

1. There was also some evidence that newer employees might find it more difficult to arrange a permanent shift swap than longer-serving employees, or at least that it would take some time.[42]

1. The Applicants also presented evidence of a survey of RTBU members conducted in July 2022, in which 337 responses were received.  In answer to a question whether, “based on the information you have so far, do you support your roster changing to a graduated roster?” 279 members answered ‘no’, 21 ‘yes, and 38 did not provide an answer.[43]

Relevant provisions of the Enterprise Agreement

1. The relevant terms of the Yarra Trams Enterprise Agreement 2019 – Operations (the Agreement) are set out in Appendix A to this Decision. 

1. The Agreement is structured into three parts. Part One is titled “Common Conditions,” Part Two is titled “Operations” and Part Three is titled “Administration, Technical & Professional.” Part Two applies to employees including tram drivers, and Part Three is not relevant to the dispute. There are also 3 appendices, of which Appendix One headed “Tram Operations” applies to tram drivers.

1. Clause 2 of Part One of the Agreement deals with the scope and application of the Agreement and provides that Part One applies to all employees and that it must be read in conjunction with the relevant Part(s) of the Agreement applying to the workgroup of employees concerned and the relevant conditions contained in the Appendices.  Subclause 2.3 provides that subject to an exception not presently relevant, Part Two prevails over Part One to the extent of any inconsistency, and the provisions of Part One and Two prevail over the provisions of an Appendix.

1. Part One also includes clauses 8 and 11. Clause 8 provides for consultation over major change, including where Yarra Trams proposes to introduce a change to the regular roster or ordinary hours of work of employees.[44] 

1. Clause 11 provides a disputes procedure to settle disputes relating to either: (a) a matter arising under the Agreement; (b) the National Employment Standards; or (c) an industrial matter.[45] Subclauses 11.6 and 11.7 provide for the referral of any such disputes to the Commission. The Commission is empowered to arbitrate the dispute when the methods in stage one such as conciliation, have been unsuccessful. A note to subclause 11.7 provides that in arbitrating the dispute, the Commission may use the powers available to it under the Act.

1. Part Two of the Agreement commences with clause 1 – Scope and Application.  Subclause 1.1 makes it clear that the Part applies to tram drivers (and other specified roles) and subclause 1.2 provides that further terms and conditions of employment for tram drivers can be found in Appendix One in respect of tram drivers.  Subclause 1.2 also states that: “Further detail on the operation of the Agreement, its various Parts, and the Appendices can be found in Part One, clause 2 of this Agreement.”

1. Clause 8 of Part Two is entitled “Tram Driver Rostering.” It comprises 20 subclauses each dealing with various aspects of rostering of tram drivers.  The clause deals with the rostered shift length, payment after 40 hours, daily hours, notice of roster changes, meal breaks, overtime, roster alteration, travel time and several other matters.  Subclause 8.18 titled “Flexible rostering,” provides:

“Tram Drivers covered by this agreement, confirm their commitment to flexible Rostering and no other rostering restrictions, nor will restrictive work practices apply.

Employees will be rostered in accordance with the initiatives outlined in this Agreement.”

1. Appendix One is based upon clauses of the Tramway and Omnibus Public Transport (Victoria) Award 1992 and comprises 26 clauses dealing with a wide range of conditions including stand down, excess travelling time, shifts and weekend work and various allowances and types of leave. Clause 19 of Appendix One which is titled “Hours of Duty” provides:

“19.1 Thirty-eight hours divided into not more than five shifts shall constitute the weekly hours of duty to be paid at ordinary time. Daily ordinary hours of duty shall not exceed 8 hours 15 minutes on any day excluding Sundays and all days which are paid at double rate.

19.2 An employee shall work such shifts as may be allotted to him/her. As far as practicable traffic employees shall work morning and afternoon shifts on alternate weeks, and shall equally share the broken shifts.

19.3 Except to meet emergencies, special traffic, or on the day following a holiday, no traffic employee shall be called upon to begin a new shift without having been off duty for 10 consecutive hours.”

Question 1: Would the implementation of the Graduated Rosters breach clause 19.2 of Appendix One of the Yarra Trams Enterprise Agreement 2019 - Operations?

1. The Applicants contend that implementing the new graduated rosters would breach clause 19.2 of Appendix One. The dispute centres on the correct meaning and effect of the underlined words:

“19.2 An employee shall work such shifts as may be allotted to him/her. As far as practicable traffic employees shall work morning and afternoon shifts on alternate weeks, and shall equally share the broken shifts.”

1. The Applicants contend that the correct construction of the clause means that:

· as far as practicable traffic employees (which includes tram drivers) have a right to work morning and afternoon shifts on alternate weeks;

· ‘as far as practicable’ should be construed to mean capable of being done or put into practice;

· Yarra Trams is required to roster tram drivers on morning and afternoon shifts on alternate weeks if this is able to be done or put into practice;

· given tram drivers have been rostered on this basis for many years it is clearly capable of being done;

· rostering on this basis will cease under the graduating roster, and therefore taking the words at their face value and according to their ordinary meaning, implementing the graduating roster would constitute a breach of clause 19.2; and

· there is no inconsistency between clause 19.2 and clause 8.18 as the clauses can be read harmoniously if ‘rostering restrictions’ is understood to refer to restrictions other than those recognised by the Agreement itself, including the ‘restriction’ provided in clause 19.2.  Construed in this way, clause 2.3 is not invoked.[46]

1. The Applicants submit that clause 19.2 of Appendix One can be read harmoniously with clause 8.18 of Part Two and there is no inconsistency between them.  They contend that on a proper construction of clause 8.18 the reference to “no other rostering restrictions, nor will restrictive work practices apply” is a reference to restrictions other than those provided in the Agreement, including what it contends is the restriction in clause 19.2, requiring in effect retaining an alternating roster. Further, that the second sentence in clause 8.18 entitles employees to be “rostered in accordance with the initiatives outlined in this Agreement,” and that this means the roster must conform to the working hours rules, including those said to be prescribed by clause 19.2.[47] They submit that the two clauses must be read together in light of clause 1.2 of Part Two which provides that further terms and conditions of employment for tram drivers are found in Appendix One.[48]   

1. The Respondent submits that the reference to ‘rostering restrictions’ in the first sentence in subclause 8.18 is a reference to the rostering restrictions set out in the remainder of clause 8 of Part Two. The Respondent accepts that it is not entirely clear what the second sentence in subclause 8.18 refers to but submits that it is directed at ‘rostering initiatives’ and is, read in context, a reference to the other provisions in clause 8. 

1. As to the meaning of clause 19.2 of Appendix One, the Respondent submits that the clause is, in effect, a limit on shift swapping, because it provides that other than where it is impracticable to do so, employees are required to work the alternating morning and afternoon shifts allocated to them and equally share the broken shifts. 

1. Starting with the plain meaning of the words, I do not consider that clause 19.2 bears the meaning the Applicants contend. Read as a whole, the clause is directed at imposing obligations on employees rather than conferring rights or entitlements upon them (or imposing corresponding obligations on Yarra Trams). The first sentence makes this clear, imposing an obligation on employees to work such shifts as they are allocated. The second sentence provides further details of this obligation namely, to work morning and afternoon shifts on alternate weeks, as far as practicable, and to equally share broken shifts. The clause does not confer a right for employees to work morning and afternoon shifts on alternate weeks; rather it imposes an obligation on them to do so, as far as practicable, within the shifts allotted to them. The obligation is on employees, and in respect of the work they have to perform.[49]

1. Further, I accept the Respondent’s submission that clause 19.2 deals with how ‘shifts’ are to be worked, and not how rosters are structured.  In the context where shift swapping commonly occurs, the shifts that are worked and the roster structure are not the same.  Clause 19.2 is directed at how shifts are worked, and not to the roster structure.[50]

1. In other words whilst clauses 19.2 and 8.18 are to be read together and clause 19.2 contains terms and conditions of employment for employees, they do not establish an entitlement for the tram drivers. Rather, in my view, the tram drivers’ terms and conditions include an obligation to work shifts allotted to them, and as far as practicable work morning and afternoon shifts on alternate weeks, and equally share the broken shifts.  As the Respondent submitted, it may be that clause 19.2 assumes that an alternating roster is in place, however it imposes no obligation on Yarra Trams to maintain such a roster system. Clause 19.2 does not deal with rostering at all, but rather how tram drivers work.

1. In light of what I consider to be the correct construction of clause 19.2, the remainder of the Applicants’ construction argument falls away.

1. Clause 8.18 is titled “Flexible Rostering” and on its face is directed at a commitment by tram drivers to flexible rostering and agreement that no other rostering restrictions nor restrictive work practices will apply.  As clause 19.2 does not, in my view, constitute a rostering restriction nor restrictive work practice, at least not on the part of Yarra Trams, the clause does not encompass the obligations on tram drivers it imposes.  The better view is that it is a reference to the other provisions in clause 8, which impose various restrictions on the rosters that Yarra Trams can put in place. A simple example of such a restriction is in clause 8.1(a) which provides that a rostered shift can provide for work periods of up to 8 hours 15 minutes per day. As to the second sentence, whilst it is not clear what the parties meant by the reference to ‘initiatives,’ read in its context, following immediately after a commitment by tram drivers to flexible rostering, it is a statement confirming that Yarra Trams will roster tram drivers in accordance with its obligations in the Agreement. However, clause 19.2 does not impose any such obligation on Yarra Trams.

1. The Applicants further submit that it cannot be the case that clause 8.1(b) of the Agreement allows Yarra Trams to introduce a global change to the regular roster of tram drivers.  This is said to be the case because, if construed so broadly, clause 8.1(b) could authorise the alteration of explicit safeguards and rights conferred by the Agreement itself.  For example, it was submitted, such a construction would permit Yarra Trams to increase the maximum ordinary weekly hours paid at ordinary time from 38, which is prescribed in clause 19.1 of Appendix One.[51] I do not agree. Clause 8.1(b) would not permit Yarra Trams to consult over a proposal that would diminish or eliminate an entitlement such as the maximum weekly hours in clause 19.1. The clause does, however, otherwise permit Yarra Trams to propose changes to the regular roster, including the change to the graduated roster.  Whilst clause 19.2 may assume an alternating roster is in place, the Agreement does not confer an entitlement to such a roster structure. Further, the mere fact that the alternating roster is a longstanding practice is not a basis to conclude that it can’t be changed, at least in the absence of any evidence that Yarra Trams has previously sought to.  It is evidence that it hasn’t been changed, not that it couldn’t be.

1. The construction that I consider is correct, leaves clause 19.2 with some, albeit more limited, work to do under a graduated roster than the alternating roster structure. The first sentence is not impacted: the obligation for an employee to work the shifts allocated to them remains. Whilst I have found that clause 19.2 does not require Yarra Trams to maintain an alternating roster, it also does not preclude them from doing so, and it has for many years. Where such an alternating roster is in place, clause 19.2 operates and in that sense, has work to do.  Further, the obligation to work morning and afternoon shifts on alternate weeks is qualified by the inclusion of the words ’as far as practicable,’ and I consider that these general words would alleviate the obligation to do so where the graduated roster structure does not require it, especially where it is changed to better manage fatigue.

1. The answer to Question 1 is ‘no’.

Question 2:  Should the Commission make an order enjoining Yarra Trams from implementing the Graduated Rosters?

1. The Applicants submit that if the Commission does not find that the Agreement requires work under an alternating roster, it has a discretion to settle the dispute as it relates to an ‘industrial matter’.  The Applicants contend that the Commission should settle the dispute by making an order enjoining Yarra Trams from implementing the graduated roster on the basis that the graduated roster fails on the criterion Yarra Trams offered, namely fatigue management.[52]

1. That the Commission is empowered to resolve the dispute is not controversial, however there are differences in its characterisation.  The Applicants characterise the dispute as a disagreement about a matter in which tram drivers have a direct and legitimate interest and which directly concerns the subject matter dealt with by clause 19.2. It concerns their working conditions and is a matter of mutual industrial interest, hence it relates to an ‘industrial matter’. The dispute is whether Yarra Trams is entitled to replace the alternating shift structure referred to in clause 19.2 with a graduated shift structure.[53]

1. Yarra Trams contends that the dispute, properly characterised, is about shift-swapping and not about clause 19.2 of the Agreement, and that the Commission should not interfere with Yarra Trams’ management of shift allocations and rostering unless they could be shown to be unjust and unreasonable.[54]

1. Whilst the parties disagreed about the characterisation of the dispute, it is clear that a dispute exists between the four Applicant tram drivers and Yarra Trams over the implementation of the graduated roster. It involves a significant change to long-established systems of work which the employees have a legitimate interest in and accordingly, it is a dispute relating to an industrial matter.

1. The Applicants challenge Yarra Trams’ submission about the approach to be followed in determining the dispute and submit that Yarra Trams “has no residual prerogative on the subject of the working hours and the working hours roster pattern that structures shifts. That subject is dealt with exclusively by the legal terms and conditions contained in the Agreement.“[55]

1. The Applicants contend that sections 577 and 578 of the Fair Work Act 2009 (Cth) (Act) which require the Commission to “perform its functions and exercise its powers in a manner that … is fair and just” and by taking into account, “equity, good conscience and the merits of the matter” are the only conditions governing how the Commission should assess the merits of the graduated roster as opposed to maintaining the alternating roster.[56] Sections 577 and 578 require the Commission to resolve dispute without a predisposition to one side or the other.

1. These considerations are said to favour the Applicants. However, their submissions are largely premised on the contention, which I have not accepted, that implementing the graduated roster contravenes clause 19.2 of the Agreement and that Yarra Trams should be held to the bargain they struck with the tram drivers.  Yarra Trams is entitled to introduce the graduated roster under the terms of the Agreement, subject to consultation.  That is the bargain struck with employees, and there was therefore no need to bargain specifically for the proposed change. 

1. That leaves the question as to the merits of the matter and whether Yarra Trams should nonetheless be enjoined from implementing the graduated roster.

1. The Applicants contend that the graduated roster fails as a matter of industrial merit.[57]  They also contend that ordering Yarra Trams not to implement it supports the object in section 3(d) of the Act to assist employees to balance their work and family responsibilities by providing for flexible working arrangements.[58] Their proposition is largely based on Yarra Trams’ stated justification for changing the roster - to reduce driver fatigue - and submit the change is not justified because:

· there is no current issue with driver fatigue that justifies such a radical change;[59]

· the graduated rosters will not reduce driver fatigue;[60]

· Yarra Trams has provided no cogent or credible evidence to support its claims;[61]

· Yarra Trams makes too much of what it says are its safety obligations, compliance with its WHS duties neither authorises or requires it to make the change, and its obligations under the RSNL do not displace the obligations in clause 19.2 of the Agreement;[62]

· it is based on an erroneous premise, because in fact, most drivers don’t work shifts according to the roster, but regularly swap their shifts;[63]

· the key fatigue control measure is the rostering rules which apply under both alternating and graduated rosters;[64] and

· the graduated rosters will cause detriment to tram drivers.[65]

1. Yarra Trams has a duty to take all reasonably practicable steps to eliminate or minimise risks to health and safety.  Driver fatigue is clearly a risk and the introduction of a graduated roster structure that experts and regulators advise is better, is a reasonably practicable step for Yarra Trams to take to manage this risk. Whilst the existing fatigue risk may still be lower to moderate, as found by Dr Fletcher’s analysis of the 12-month period from August 2020 to September 2021, it does not follow that Yarra Trams is not obliged to take further steps to manage the risk. It would be open to legitimate criticism if it did so.  The safety assessment concluded that while the graduated roster was not a panacea for all fatigue issues, it provided considerable benefits for those who work it, and for those who engage in shift-swapping, results in a low impact because they can continue to do so. It is a step open to Yarra Trams to make under the Agreement as part of a continuous improvement process. In my view, Yarra Trams is not required to establish an immediate and current issue with driver fatigue to justify changing the roster structure. The question of whether it addresses the risk of driver fatigue better than the longstanding structure is highly relevant to the merits of the change.

1. If the dispute regarding the merits was confined to whether the graduated roster is a superior structure than the alternating roster to manage driver fatigue, the answer is clearly yes. Objectively viewed, it unequivocally is, as Counsel for the Applicants acknowledged.[66] Whilst Mr Bunker who works the current alternating roster does not find that it causes fatigue, the graduated roster structure clearly provides for greater forward rotation, longer breaks between shifts, fewer broken shifts, and more consecutive days off to recover from blocks of shifts and is consistent with expert and regulator advice. Whilst as several Applicants pointed out, there is not backward rotation within a week under the alternating roster, backward rotation occurs when moving from a week of afternoon shifts to a week of morning shifts.

1. However, because of the prevalence of shift swapping, the rostered shifts bear little resemblance to the actual shifts worked by many drivers. Counsel for the Applicants submit that because shift swapping is more complex and difficult under the graduated roster, the hypothetical benefits of the graduated roster may not be realised. Indeed, introducing a graduated roster that impairs shift swapping, could in fact, make fatigue worse as a result.[67]  

1. Firstly, and importantly, not all drivers swap shifts.  The best evidence before the Commission is that somewhere between 8% and about 60% of drivers do not swap shifts. For each one of these drivers the unquestionable fatigue management benefits of the graduated roster will be realised in full. 

1. For drivers that do swap shifts, they can continue to do so. There is no reason to think there are fewer drivers who like or dislike particular shifts and want to swap them.

1. Relevantly, in the context of Yarra Trams employing more than 1000 tram drivers, the Applicants’ evidence is confined to eight individual tram drivers giving evidence about their own circumstances, and indirectly the views of others because of their representative capacity.  This makes it difficult to draw firm conclusions about the impact of the change on the entire group in assessing the merits of the change. 

1. The Applicants’ witnesses gave considerable evidence of their concerns that the graduated roster structure will impair their ability (and that of other tram drivers they represent in their capacity as health and safety representatives or RTBU delegates) to use shift swapping to manage their own fatigue and achieve a good work/life balance. It is also clear that the change has created difficulties for at least some drivers, and they find the change to the new system stressful and anxiety-inducing. However, the detriments they are legitimately concerned about will only arise if they cannot swap shifts. The evidence was that the witnesses had largely not engaged with the new systems. This is not altogether surprising given the degree of change and the newness of the arrangements.  However, they did not give evidence that they had tried and failed to swap shifts under the graduated roster using the self-system portal. Three of the eight drivers who gave evidence had successfully swapped shifts, and the remaining five gave no evidence of unsuccessful attempts to swap shifts under the graduated roster.  The Applicant witnesses’ concerns, whilst validly held and expressed, may not actually be realised under the new graduated roster. 

1. There was other limited evidence about the impact of the new graduated roster coupled with the new self-service platform on the extent of shift swapping. However, in the first week of the new arrangements, a significant number of shifts had been successfully swapped. As described in paragraph [24], in the first week of the new arrangements 3014 days were swapped, and this number was broadly within the range of days swapped per week over an extended period.

1. Whilst I accept the Applicants’ evidence that shift swapping is more difficult and complex under the graduated roster, I am not satisfied that it is so much more difficult that drivers will be unable to swap shifts. As familiarity with the new shift swapping system increases, it is also likely to be less time consuming. I also do not find that permanent shift swapping is not possible under the new graduated roster, although it is clearly more complex than the system they were used to. I accept Mr Breton’s evidence in this regard and his explanation of how it could be arranged. Whilst Mr David gave evidence that he will not be able to have a permanent shift swap in place, he did not go so far as to detail any attempts he had sought to do so, and Mr Cikes’ evidence was that a permanent swap could be sought, but it would be more complicated.

1. I have also placed little weight on the findings of the survey of tram drivers in July 2022 at paragraph [36] principally because it was conducted at a time where not all rosters had been prepared and distributed at the depot level and at its highest, indicates that at that time, less than one-third of tram drivers did not support the change.

1. In relation to the Applicants’ submission that Yarra Trams’ compliance with the RSNL does not displace contrary obligations under an enterprise agreement,[68] for the reasons expressed earlier, I am satisfied there is no contrary obligation under the Agreement.

Conclusion

1. Consistent with the safety assessment conducted by Yarra Trams, I am satisfied that the introduction of the graduated roster structure provides substantial improvements in managing the risk of driver fatigue for those employees who work to the graduated roster, and for those who engage in substantial shift-swapping, results in a low impact because they can continue do so.

1. I am satisfied, as a matter of industrial merit, that Yarra Trams should not be prevented from implementing the graduated roster. 

1. The answer to Question 2 is ‘no’.

DEPUTY PRESIDENT

Appearances:

M Harding SC with Y Bakri of Counsel for the Applicants.
C O’Grady KC with A Pollock of Counsel for the Respondent.

Hearing details:

2022.
Melbourne:
October 14, 18-19.

Appendix A

YARRA TRAMS ENTERPRISE AGREEMENT 2019 – OPERATIONS

Part One – Common Conditions

2. Scope and Application

2.1 Part One of the Yarra Trams Enterprise Agreement 2019, Common Conditions,

applies to all Yarra Trams employees who are employed in a classification contained

within this Agreement.

2.2 The Common Conditions (Part One of the Agreement) must be read in conjunction
with the relevant Part(s) of the Agreement applying to the workgroup of employees
concerned and the relevant conditions contained in their respective Appendix.

2.3 When reading the various Parts and Appendices the following applies:

(a) Subject to clause 2.5 below, to the extent of any inconsistency the provisions of Part Two and Part Three prevail over the provisions of Part One.

(b) Subject to clause 2.5 below, to the extent of any inconsistency the provisions of a Part prevail over the provisions of an Appendix.

2.4 This Agreement expressly excludes employees nominated by Yarra Trams as people
managers.

2.5 Part Two, Operations, applies to all employees engaged directly in positions involved in the day to day operation and running of the Metropolitan Tram Network. For the avoidance of doubt:

(a) the provisions of Part Two apply to part time employees on a pro-rata basis
in accordance with their ordinary hours of work; and

(b) the hours of work for part time employees is in accordance with clause 13.2
in Part One.

2.6 Despite anything else in this Agreement, where there is an inconsistency between
this Agreement and the National Employment Standards in the Act and the National
Employment Standards provide a greater benefit, the National Employment Standards will apply to the extent of the inconsistency.

8. Consultation

8.1 The parties agree that genuine and effective mechanisms for consultation and
communication are fundamental to the achievement of greater job satisfaction,
productivity, efficiency and flexibility.

This clause applies if:

(a) Yarra Trams has made a decision to introduce a major change to service
delivery, organisation, structure, or technology in relation to its business that
is likely to have a significant effect on the employees; or

(b) proposes to introduce a change to the regular roster or ordinary hours of
work of employees

Yarra Trams must notify the relevant employees and their union or employee
representatives (collectively referred to as the ‘Representatives’) of the decision to
introduce the major change.

8.2 If:

(a) a relevant employee appoints, or relevant employees appoint a
Representative for the purposes of consultation; and

(b) the employee or employees advise Yarra Trams of the identity of the
Representative;

Yarra Trams must recognise the Representative.

8.3 As soon as practicable after making its decision, Yarra Trams must:

(a) discuss with the relevant employees and their Representatives:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures Yarra Trams is taking to avert or mitigate the adverse
effect of the change on the employees; and

(b) for the purposes of the discussion — provide, in writing, to the relevant
employees:

(i) all relevant information about the change including the nature of the
change proposed; and

(ii) information about the expected effects of the change on the
employees; and

(iii) any other matters likely to affect the employees.

8.4 However, Yarra Trams is not required to disclose confidential or commercially
sensitive information to the relevant employees.

8.5 If a clause in the agreement allows for a change as part of a major change the
requirements in clauses 8.1 to 8.3 and 8.9 to 8.14 do not apply.

8.6 In this clause, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of employment of employees; or

(b) major change to the composition, operation or size of Yarra Trams’ workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities and diminution of promotion opportunities and tenure; or

(d) the alteration of hours of work; or

(e) the need to significantly retrain employees; or

(f) the need to permanently relocate employees to another workplace (this is
not intended to apply to temporary transfers).

(g) the major restructuring of jobs.

8.7 In this clause, relevant employees means the employees who may be affected by the major change, and who are covered by this agreement.

8.8 The parties must act reasonably in relation to the consultation process.

8.9 Yarra Trams will provide the employees and their Representatives with the
reasonable opportunity to meet with the company for the purposes of consultation.
The consultation process will occur over a minimum period of six weeks (or a longer
period where a party can reasonably demonstrate that a longer period is necessary
having regard to the circumstances).

8.10 A shorter consultation period than that contained in clause 8.9 may apply where Yarra Trams is not in control of the decision making process. Where the State of Victoria, its agencies or instrumentalities direct or require Yarra Trams to implement a change in a lesser timeframe.

8.11 Yarra Trams must give prompt and genuine consideration to matters raised about the major change by the relevant employees and their Representatives.

8.12 Prior to making the final decision to introduce the change, Yarra Trams will give the employees and their Representatives the opportunity to identify alternatives to the
proposed changes. Yarra Trams will remain open to and genuinely consider the options put forward by the employees and their Representatives in relation to the significant effects on employees of the major change.

8.13 The employer will consider any reasonable proposals provided by the relevant
employees and their Representatives to mitigate against any significant adverse
effects of the proposed changes before making a final decision.

8.14  While the consultation procedure is being conducted work shall continue and the
parties will maintain the status quo for the period specified in clause 8.9, unless to do
so would be contrary to law.

8.15 When the alteration of hours of work under 8.6(d) occurs for a non-base roster or
master timetable change, it will reduce the time periods specified in clause 8.9 to the
following:

(a) For Tram Drivers, when Yarra Trams requires to vary the base roster to
accommodate for a planned or unplanned network event, the consultation
process will occur over a maximum period of two (2) weeks

(b) For Customer Service staff (CSEs and AOs), when Yarra Trams requires to
vary the base roster to accommodate for a planned or unplanned network
event, the consultation process will occur over a maximum period of three
(3) days

11. Dispute Resolution Procedure

11.1. If a dispute relates to:

(a) a matter arising under this agreement;

(b) the National Employment Standards; or

(c) an industrial matter;

this clause sets out procedures to settle the dispute.

11.2. An employee who is a party to the dispute may appoint a union or employee
representative (collectively referred to as the ‘Representatives’) at any time for the
purposes of the procedures in this clause.

11.3. The matter shall be first submitted by the union, employee or employee representative (if any) to the supervising officer or another appropriate manager, or vice versa. The earliest possible notice should be given by one party to the other of any issue or problem which may give rise to a dispute.

11.4. The following procedure shall be adhered to in resolving matters under this clause:

To resolve matters in dispute, discussions will take place at the earliest opportunity in
the following sequence:

(a) in the first instance the employee/s and/or appointed representative
concerned and their manager will attempt to resolve the dispute at the
workplace level. If the discussions do not resolve the dispute; then

(b) the employees concerned and/or appointed representative and the relevant
manager once removed will attempt to resolve the dispute. If these
discussions do not resolve the dispute; then

(c) the employees concerned and/or appointed representative and the manager
twice removed will attempt to resolve the dispute.

11.5. In trying to resolve the dispute, the parties will:

(a) act promptly and reasonably at all times;

(b) on request, clearly identify the facts and issues relevant to the dispute in
writing and provide this information to the other parties to the dispute within
7 working days of the request (or a longer period as agreed between the
parties acting reasonably); and

(c) allow up to seven working days for discussions to occur at each escalation
point under clause 11.4 (or a longer period as is agreed between the parties
acting reasonably).

11.6. If discussions at the workplace level do not resolve the dispute or it is unreasonable
for the steps in clause 11.5 to be completed because of the urgency of the dispute, a
party to the dispute may refer the matter to the Fair Work Commission.

11.7. The Fair Work Commission may deal with the dispute in 2 stages:

(a) The Fair Work Commission will first attempt to resolve the dispute as it
considers appropriate, including by mediation, conciliation, expressing an
opinion or making a recommendation; and

(b) If the Fair Work Commission is unable to resolve the dispute at the first stage,
the Fair Work Commission may then arbitrate the dispute.

(c) The parties will abide by the Fair Work Commission arbitrated decision

Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div. 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

11.8. While the parties are trying to resolve the dispute using the procedures in clause 1

(a) As per status quo, for a period not exceeding 28 working days (or such other time as agreed in writing by the parties acting reasonably), work will continue in accordance with the arrangements that were in place immediately prior to the change that caused the dispute being notified under clause 11.3;

(b) subject to the period described in (a) above, an employee must perform his
or her work including work which is the subject of any management initiated
change as he or she is instructed to do by Yarra Trams unless he or she has
a reasonable concern about an imminent risk to his or her health or safety;
and

(c) an employee must comply with a direction given by Yarra Trams to perform
other available work which the employee is competent to perform at the same
workplace, or at another workplace, unless applicable occupational health
and safety legislation would not permit the work to be performed.

Part Two – Operations

1. Scope and Application

1.1 Part Two, Operations, applies to all employees engaged directly in positions involved in the day to day operation and running of the metropolitan tram network. For the avoidance of doubt, in accordance with clause 13.2 of Part One, the provisions of this Part Two apply to part time employees on a pro rata basis in accordance with their ordinary hours of work and the arrangement of hours is in accordance with 13.2 in Part One. Tram Operations includes the following classifications:

(a) Lines:

(i) Tram Driver/CSE (Trainee)

(ii) Tram Driver

(iii) Traffic Officer/Driver

(iv) Officer Production

(v) Officer Production/Trainer

(vi) Depot Trainer

(vii) Officer, Operational Training

(viii) Officer, Operations

(ix) Controller, Operations Centre

(b) Customer Services:

(i) Customer Service Employee

(ii) Authorised Officer

(iii) Senior Authorised Officer

(iv) Customer Service Supervisor

(v) Authorised Officer Supervisor

(c) Marketing:

(i) Officer, Customer Relations and Information

1.2 Appendices

Further terms and conditions of employment for employees covered by this Part (Part
Two) of the Agreement can be found in Appendix One or Appendix Two of this Agreement as detailed in the following table:

Classification	Appendix
• Tram Driver/CSE (Trainee) • Tram Driver • Traffic Officer / Driver • Depot Trainer • Operational Training Officer • Customer Service Employee • Authorised Officer • Senior Authorised Officer	One
• Officer Production • Officer Production/Trainer • Officer, Operations • Controller, Operations Centre • Customer Service Supervisor • Authorised Officer Supervisor • Officer, Customer Relations and Information	Two

Further detail on the operation of the Agreement, its various Parts, and the Appendices can be found in Part One, clause 2 of this Agreement.

8. Tram Driver Rostering

8.1 The following rostering arrangements apply for full time Tram Drivers:

(a) Rostered Shift Length

Shifts may be rostered to provide for work periods of up to 8 hours 15 minutes

per day, and up to 41 hours and 15 minutes of work for the week.

(b) Payment after 40 Hours

Payment of rostered time worked between the total hours of 40 hours and 41
hours and 15 minutes per week will be at double the ordinary time rate for
the classification of Tram Driver (Driver Only) (T&BO). All other overtime
worked will be paid as per the existing conditions contained in Appendix One
of this Agreement or voluntary Overtime Agreement with the exception that,
in the case where both rostered and voluntary overtime are worked in a
week, voluntary overtime will be calculated from the conclusion of the total
rostered hours worked for the week.

8.2 Daily Hours

Daily hours minimum 7 hours Monday to Saturday and 6 hours on Sunday and Public
Holidays for full time employees covered by Part Two of the Agreement.

8.3 Notice of Roster Changes

28 days’ notice for a Master Time Table and regular large events – Christmas/New
Year, Easter, Grand Prix, Tennis etc. 10 days’ notice for reconstructions and smaller
special events, removing the exceptions for race traffic, special traffic etc. from
Appendix One clause 22.2 (Rosters – traffic employees).

In emergency circumstances Yarra Trams reserves the right to change the roster at
short notice. Examples of emergency circumstances include: major road disruption,
unplanned special events, emergency occupation/reconstruction, State funerals etc.

8.4 Relief Table Allocation

21 days’ notice for relief tables, if unable to allocate work, days off must be allocated.

3 days’ notice for heat preparation activation

Any change to times of duty with less than 24 hours’ notice is to be by consent with
the staff member(s) involved

8.5 Straight Shift for Officers

An Officer can be rostered to work a straight shift of six (6) hours duration, inclusive
of a meal, and be paid for a full eight (8) hour shift. In this instance an Officer is not
entitled to a meal allowance under clause 13 Part Two.

8.6 Meal Break

(a) Yarra Trams will roster the length of the unpaid meal break on straight shifts

for a minimum of 40 minutes and a maximum of 90 minutes Monday to

Friday.

(b) The maximum length of a meal break on Saturday and Sunday will not
exceed a maximum of 70 minutes, with not more than 10% of shifts to have
meal breaks between 61 and 70 minutes inclusive.

(c) Meal Breaks will be rostered in accordance with the terms of this Agreement.
In cases where a disruption to service occurs on multiple routes disabling
normal operation, or where an emergency situation occurs the time available
for the rostered meal break may be reduced to a minimum of 30 minutes.

(d) An emergency situation is defined as:

(i) tram derailment

(ii) tram to tram collision

(iii) infrastructure failure

(iv) wayside collision

(v) serious pedestrian knockdown

(vi) serious tram to motor vehicle collision

(vii) unplanned demonstrations

(viii) road closure due to crime scene

(ix) flood and fire

(e) Additional time worked will be included for the purposes of calculating
overtime subject to the traffic suspension provisions of the overtime clause
in Appendix One to this Agreement.

(f) The above provision is not intended to be available for normal everyday
disruptions on the network such as late running.

8.7 Driver Meal break with vehicle

For events at the MCG, Melbourne Park precinct, Etihad Stadium, Flemington
Racecourse and Melbourne Showgrounds a driver can be rostered to meal with the
vehicle. The driver must be in a position to park the vehicle separately from the
service trams. The location where the vehicles are parked must have access to toilets
for the drivers. The meal break can only be 40-60 minutes in duration. A driver who
does such a duty will get the meal allowance.

8.8 Spare Shift

(a) Any employee rostered on a Spare Shift may be required to alter their times
of duty, other than start time, without notice to meet the day to day operational requirements of the business. Where it is reasonably practicable notice of such change should be given as early as possible, but in some instances it is recognised that notice may not always be able to be given. An alteration to times of duty may include a change in any or a combination of the following:

(i) meal break times and/or duration

(ii) shift type (broken to straight)

(b) To provide drivers with predictability of the spare shift finish time all spare
broken shifts will be nominally rostered to include the maximum four (4) hour
break between shift portions, and spare straight shifts will be nominally
rostered to include a 60 minute meal break and the maximum daily hours of
eight (8) hours and fifteen (15) minutes.

(c) Employees working a spare shift will be paid according to the nominally
rostered times of duty, and not the altered times that may result from having
their hours or meal break changed.

(d) The Rostering Guidelines should be observed, with respect to the hours of
duty, shift portions and meal breaks when making alterations to the spare
shift.

8.9 Overtime

(a)All time worked during a weekly pay period in excess of 40 hours will be paid time and a half for the first three hours and double time thereafter. All time worked at double rates shall stand alone in the computation of overtime.

(b)Unauthorised time not worked will not be included for the purposes of

calculating overtime.

(c)Payment for overtime shall be calculated upon whatever alternative gives the greater amount and shall be paid only in respect of daily or weekly overtime and not both.

8.10 Late Broken Shift Spread

The spread for “late broken shift” may be rostered to allow for a car-in time of no later
than 7:15 pm.

8.11 Spare Table Drivers

Yarra Trams management may utilise drivers allocated to spare tables to work at other
Yarra Trams’ locations. Drivers are to be provided with route familiarisation.

8.12 Pay Guarantee

For full time Tram Drivers, pay guarantee will be calculated on the basis of 40 hours
payment per week for 5 paid shifts. However, unauthorised absence not worked will
not be included for the purposes of calculating pay guarantee.

8.13 Any five days

Yarra Trams may roster or require any shift or line to perform any 5 days’ work of the
seven day week without restriction. This will occur regardless of the weekday work
rostered or times of duty rostered provided a 10 hour break is permitted between shifts
and morning weekday shifts will not be rostered on Sunday afternoon shift.

8.14 Roster Alteration

The practice by which an employee may alter his/her rostered duty is to be in
accordance with the local arrangements at each depot.

8.15 Sign-on & Sign-off

Sign-on and sign-off time involving caring-out or caring-in at the start and/or end of a
shift is to be ten minutes. For all other cases, sign-on and sign-off time is five minutes.

8.16 Take Point

Tram Drivers are to make their own way to take points by rostered tram service or as
per Manager Lines requirements.

8.17 Travel Time

Operations staff covered by this Part (Part Two) who work at other Depots are to travel
in their own time and are not entitled to be paid excess travel time. Separate discussions will take place between Yarra Trams the affected employees and their representatives where alternative travel arrangements are required for Reconstruction Projects.

8.18 Flexible Rostering

Tram Drivers covered by this agreement, confirm their commitment to flexible
Rostering and no other rostering restrictions, nor will restrictive work practices apply.

Employees will be rostered in accordance with the initiatives outlined in this
Agreement.

8.19 Heat Preparedness

On days of expected extreme temperature over 36oC, a reduced timetable may
operate.

CDO’s already assigned will be honored.

Drivers will be paid planned or actual hours rostered, whichever is greater.

90% of tables will finish on or before their original finish time and the remainder of
tables cannot finish more than 15 minutes past their original finish time.

Heat Preparation rosters will be worked up at the same time as seasonal rosters, and
will be posted at a similar time as the seasonal roster.

8.20 Reconstructions

(a) Sunday and Public Holidays

For all rostered work performed under a reconstruction roster on a Sunday or Public Holiday, where the roster results in a reduction of hours worked from the normal roster of twenty (20) minutes or more, an adjustment will be made for individual drivers to “make up” the hours of work to their normal rostered hours.

(b) Saturday

Where the reconstruction roster generates an hours worked differential of greater than twenty (20) minutes then an adjustment would be made to individual driver’s pay to offset the reduction in rostered hours.

Appendix One – Tram Operations

19. Hours of duty

19.1 Thirty-eight hours divided into not more than five shifts shall constitute the weekly hours of duty to be paid at ordinary time. Daily ordinary hours of duty shall not exceed 8 hours 15 minutes on any day excluding Sundays and all days which are paid at double rate.

19.2 An employee shall work such shifts as may be allotted to him/her. As far as practicable traffic employees shall work morning and afternoon shifts on alternate weeks, and shall equally share the broken shifts.

19.3 Except to meet emergencies, special traffic, or on the day following a holiday, no traffic employee shall be called upon to begin a new shift without having been off duty for 10 consecutive hours.

[1] [2022] FWC 2669.

[2] MTT22c and the aligned rosters were originally intended to commence on 25 September 2022.

[3] Exhibit R6, Witness statement of James McMillan at [8]-[11] (Digital Hearing Book p.932).

[4] Exhibit R4, Witness statement of Frederic Breton at [23]-[24] (DHB p.736-737).

[5] Ibid at [24].

[6] Ibid at [27].

[7] Exhibit R6, Witness statement of James McMillan at [22], [29] (DHB p.935, 937-938).

[8] Ibid at [23].

[9] Ibid at [41]-[43]; Exhibit JM16 (DHB p.1275).

[10]Ibid at [30]-[31].

[11]Ibid at [33].

[12]Ibid at [37]-[40].

[13]Ibid at [46].

[14] Transcript PN1807-1809 (18 October 2022).

[15] Transcript PN2103-2104 (18 October 2022).

[16] Exhibit R2, Witness statement of Liana Barletta at [62] (DHB p.408-409).

[17] Transcript PN1442-1444 (18 October 2022).

[18] Exhibit R6, Witness statement of James McMillan at [24] (DHB p.936).

[19] Transcript PN1437-1441 (18 October 2022); Exhibit R2 Witness statement of Liana Barletta at [62] (DHB p.408-409).

[20] Exhibit A39.

[21] Exhibit A39 at p.3.

[22] Transcript PN895 (14 October 2022).

[23] Exhibit A39 at p.3.

[24] Exhibit A39; Transcript PN2071 (18 October 2022).

[25] Transcript PN1666-1669 (18 October 2022).

[26] Transcript PN326-337 (14 October 2022), PN2279-2281 (19 October 2022).

[27] Transcript PN836-837, 865-866 (14 October 2022).

[28] Exhibit R5.

[29] Exhibit A11, Witness statement of Necdet Tarakci (DHB p.55-58).

[30] Exhibit A1, Witness statement of Edwin David (DHB p.61-64).

[31] Exhibit A6, Witness statement of John Antonopoulos (DHB p.65-68).

[32] Exhibit A8, Witness statement of Marin Cikes (DHB p.69-96)

[33] Exhibit A3, Witness statement of Paul Bunker (DHB p.97-100).

[34] Exhibit A14, Witness statement of Sandeep Banapar (DHB p.101-104).

[35] Exhibit A15, Second witness statement of Sandeep Banapar (DHB p.389-392).

[36] Exhibit A5, Witness statement of Ian Martin (DHB p.333-358); Transcript PN528-532 (14 October 2022).

[37] Exhibit A10, Witness statement of Craig Street (DHB p.359-366).

[38] See Exhibit A12, Second witness statement of Necdet Taracki, Exhibit A7, Second witness statement of John Antonopoulos, Exhibit A9, Second witness statement of Marin Cikes and Exhibit A2, Second witness statement of Edwin David (DHB p.367-384).

[39] Transcript PN746-752 (14 October 2022).

[40] Exhibit A15, Second witness statement of Sandeep Banapar (DHB p.389-392); Transcript PN1489-1498 (18 October 2022).

[41] Transcript PN472-478 (14 October 2022)

[42] Transcript PN818, PN869 (14 October 2022).

[43] Exhibit A18, Third statutory declaration of Umeya Chaudhuri at [9] (DHB p.146-147).

[44] Cl 8.1(b) of the Agreement.

[45] Cl 11.1 of the Agreement.

[46] Applicants’ outline of submissions.

[47] Applicants’ outline of closing submissions at [24], [54].

[48] Ibid at [24]-[26].

[49] Transcript PN2350-2359 (19 October 2022).

[50] Respondent’s outline of submissions at [29].

[51] Applicants’ outline of closing submissions at [65]-[67].

[52] Applicants’ outline of submissions in reply at [21].

[53] Applicants’ outline of closing submissions at [50].

[54] Respondent’s outline of submissions at [26]-[27], [40].

[55] Applicants’ outline of closing submissions at [33].

[56] Applicants’ outline of submissions at [45], Transcript PN2241 (19 October 2022).

[57] Applicants’ outline of closing submissions [30].

[58] Ibid at [27]-[29].

[59] Applicants’ outline of submissions at [47]-[48].

[60] Ibid at [49].

[61] Ibid at [50].

[62] Applicants’ outline of closing submissions at [72]-[73].

[63] Applicants’ outline of submissions at [51].

[64] Transcript PN2253 (19 October 2022).

[65] Applicants’ outline of submissions at [53].

[66] Transcript PN2312 (19 October 2022).

[67] Transcript PN2306 (19 October 2022).

[68] Applicants’ outline of closing submissions at [37]-[40].

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