QR LIMITED TRAINCREW UNION COLLECTIVE WORKPLACE AGREEMENT 2009 – DISPUTES UPDATE #2

3 February 2010

Dear Traincrew,

As per our last edition of Disputes Update, there has been many issues arise with respect to the parties having different interpretations of the QR Limited Traincrew Union Collective Workplace Agreement 2009 (the “Agreement”). This has resulted in many disputes being lodged. The representatives from QR who were on the negotiating table now have a limited role, if any, in providing advice to local management as to the intent of certain provisions. It appears this lack of involvement from QR’s negotiators has lead to local management creating their own interpretation of provisions in the Agreement that differs to the intent of the parties at the time of making the Agreement. 

Members have expressed their frustration and disappointed to their local representatives and the State Office with respect to the number of interpretational disputes that are in progress. The overwhelming feedback we have received from members is that the unions negotiated for this Agreement in good faith and they are angry that QR is now attempting to force conditions on traincrew that was not the intent of the parties at the time of making the Agreement. Further, members have advised that they feel they are being “walked over” by QR and expressed their desire to escalate some of these disputes to arbitration and have a Commissioner make a decision on the matter.

As you would be aware from our last edition of Disputes Update, the AFULE State Office lodged an application of dispute in Fair Work Australia (“FWA”) with respect to Clause 82.4.1 of the Agreement.

QR’s contends in accordance with Clause 82.4.1 of the Agreement, they can request each employee drive 2hrs each between the hours of 2200 and 0600. For example, if there are three traincrew in the vehicle, QR contends that Driver A can drive for 2hrs, then Driver B can drive for 2hrs and then Driver C can drive for 2hrs.

The AFULE contends that the maximum of time spent in a motor vehicle between the hours of 2200 and 0600 is a total of 2hrs. For example, the maximum time spent in a motor vehicle between the hours of 2200 and 0600 is 2hrs regardless of how many employees are in the car. Our members have advised that they are concerned for their safety if they are required to travel in a motor vehicle for any more than 2hrs between the hours of 2200 and 0600 if they are at the back end of their shift of duty.

The AFULE attended a conciliation conference at FWA on Thursday 21 January 2010. The Commissioner of FWA appointed to conciliate on this issue advised that the wording of Clause 82.4.1 of the Agreement can be read both ways. This is because Clause 82.4.1 states:

“Between the hours of 2200 and 0600 employees will not be required to drive a motor vehicle for more than two hours. To avoid doubt, the total period of car driving in a shift, whether consecutive or otherwise, can extend beyond two hours. However, no more than two hours of the total car driving time, whether consecutive or otherwise, can fall between the hours of 2200 and 0600.”

The Commissioner advised that this clause is unclear and that it can be interpreted as per QR’s interpretation but it could also be interpreted as per the unions’ interpretation. The Commissioner advised that if this matter was progressed to arbitration, the decision could go either way. The Commissioner suggested that QR go back and work out the total driving distances in every area for the parties to be able to talk further. The Commissioner also suggested that we try and conciliate on this matter further because if this matter is arbitrated on, the decision could go either way. A further conciliation conference is set for this afternoon, Wednesday 3 February 2010.

Whilst attending a conciliation conference on 27 January 2010 regarding a dispute on the shift lengths of tutor drivers, the Commissioner expressed her concern over the number of disputes that have been lodged in FWA. The Commissioner advised that “ink is not even dry on this agreement” and was concerned that we have not been able to resolve some of the issues internally. The AFULE advised the Commissioner that we have requested a meeting with all the negotiators (QR, AFULE and RTBU) in attendance to discuss the intent of the provisions in dispute however this meeting has not been agreed to by QR. Further, the AFULE advised the Commissioner that when we raise issues via the dispute settlement procedure, QR appears to not be genuine in their attempts to resolve the matter which has forced the AFULE to lodge an application of dispute in FWA. The Commissioner suggested the parties have further talks to try and resolve the numerous disputes regarding the Agreement at the workplace level. The Commissioner also made a comment of her willingness to help conciliate such discussions.

To that end, the AFULE State Office drafted a document of all the outstanding issues with the Agreement (10 pages worth of issues!) and sent a formal letter to Marcus McAuliffe and Neil Backer on Monday 1 February 2010 advising of the comments made by the Commissioner of FWA and requested that we schedule a meeting with all parties having a representative of decision making authority in attendance. The AFULE also requested that the parties attend with the view of trying to genuinely resolve these issues. The AFULE advised that we are in a conciliation conference on Wednesday and will be requesting the assistance of FWA to conciliate over all these issues if the parties cannot agree to have a meeting. As of writing this correspondence, we have received no feedback from QR as to the proposed meeting.

The AFULE State Office received an email from QR late Monday afternoon outlining the travel time between depots. QR also proposed that a limit of 4hrs travel time between the hours of 2200 and 0600 be considered. The AFULE State Office spoke to our representatives on how they would like to progress this issue.

The AFULE rejects the offer by QR to limit the travel time to 4hrs between the hours of 2200 and 0600. The AFULE State Office, in consultation with your representatives, discussed many options on how to progress this matter. We considered the comments made by the Commissioner of FWA that an arbitrated decision could go either way, we took on board the resentment felt from members state wide over QR trying to enforce provisions onto traincrew that was not the intent of the parties at the time of making the Agreement and we also considered counter proposals such as limiting the travel time to 2hrs between the hours of 2200 and 0600 for all employees who are at back end of their shift of duty as this appears to be the major concern for members.

In the end, the AFULE decided that we attempt to have the matter further conciliated upon with all the other issues that we have provided to QR. This decision was not made lightly, and was made on the basis that we currently have status quo on the matter and if we cannot reach satisfactory resolution via conciliation, then we would progress the matter to arbitration. We acknowledged that based on our previous experience of conciliating with QR, it is highly likely that this matter will eventually progress to arbitration. We were more than willing to progress this matter to arbitration if we could not resolve the matter satisfactorily through conciliation.

The RTBU are a party to this dispute and also considered what would be the best way to progress this issue on behalf of their members. The outcome of this matter affects not only their traincrew members but also their freight operator members who currently perform car driving duties. Due to this, the RTBU have advised of their intention to notify FWA today of their decision to escalate the matter to arbitration.

If a matter goes to arbitration, the decision is bound by all employees covered by the Agreement regardless of whether one union lodged an application to progress the matter to arbitration or not. As an outcome of an arbitration hearing initiated by the RTBU would affect our members, the AFULE intends to notify FWA of our intention to progress to arbitration to ensure that we have an influence in any arbitrated decision.

Requesting the matter to be arbitrated will not take away an opportunity to further conciliate. FWA will provide a notice of listing for a directions hearing which is where we will set down timeframes for the arbitration process such as the date for the unions to submit written submissions and affidavits, a date for QR to submit written submissions and affidavits, a date for the unions to reply to QR’s written submissions and affidavits and a date for the arbitration hearing. This process does take time and will allow the parties to try and conciliate further prior to attending an arbitration hearing. If the matter can be resolved prior to an arbitration hearing, then we will lodge a notice of discontinuance. However, if the matter cannot be resolved prior to the arbitration hearing, we will present a case before FWA and have the matter decided through arbitration. 

The AFULE State Office will send out a Dispute Update with the progress of the above dispute and all of the other disputes in progress this afternoon.  

If you have any queries in relation to this matter, please don’t hesitate to contact the State Office on (07) 3257 1151 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Yours fraternally

TAMMY AITKEN

INDUSTRIAL OFFICER