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QR LIMITED TRAINCREW UNION COLLECTIVE WORKPLACE AGREEMENT 2009 – DISPUTES UPDATE #4
5 February 2010
The AFULE State Office was notified of a dispute by our members in Coppabella over the payment for an employee who works on a nominated leisure period and is signed off duty prior to their rostered set shift sign off time.
QR’s contention was that employees who work a rostered set shift on a nominated leisure period will only be paid at 175% as a standalone payment at the end of the fortnight for the time actually worked. QR contends that they will not be paid 175% for the full rostered shift nor will the difference be credited to an employee’s annualised hours if an employee is signed off prior to their rostered set shift sign off time.
The AFULE State Office interpretation of Clauses 51.14.1 and 66.4.3 of the QR Limited Traincrew Union Collective Workplace Agreement 2009 (the “Agreement”)
Clause 66.4.3 of the Agreement states employees are entitled to claim the greater of the full rostered set shift length or all time actually worked. As the provision states “claim”, this means the greater of the full rostered set shift length or the time actually worked would be credited to your annualised hours. For example, if your set shift was 10hrs but you were signed off after 8hrs, 10hrs would be credited to your annualised hours despite the fact that you only worked 8hrs.
Clause 51.14.1 of the Agreement states that employees who works on a nominated leisure period will have all time worked paid at the rate of 175% of the full flat rate. This is a standalone payment at the end of the fortnight in which the hours are worked. This provision clearly states you will be paid for “all time worked”. Therefore, if you are rostered a 10hr shift but only work 8hrs, you will only be paid for 8hrs at the BLP rate as that is all the time you have worked.
So what does this mean for set shift lengths? QR contends that because BLP payments are made as a standalone payment, then Clause 66.4.3 of the Agreement is void. That means, if you worked 8hrs on a BLP and was rostered for 10hrs, your only entitlement is to be paid 8hrs at the BLP in a standalone payment.
The AFULE contends that Clause 51.14.1 of the Agreement does not exclude Clause 66.4.3 of the Agreement. Our interpretation of the words is that you should be paid for the 8hrs that you have worked at the BLP rate as a standalone payment however; you should still be able to claim the difference between your rostered set shift length and the time you actually worked as set out in Clause 66.4.3 of the Agreement. Therefore, in this example you would be paid 8hrs at the BLP rate and 2hrs will be credited to annualised hours.
The reason the AFULE has not pursued the whole set shift being paid at the BLP rate is because the wording of the Agreement clearly does not provide for this. When the AFULE appeared before Fair Work Australia in relation to another matter, we were taken aside by the Commissioner. The Commissioner of Fair Work Australia provided stern advice in relation to interpreting agreements. She advised that Fair Work Australia would only look at what the words actually state. Therefore, we will not be able to pursue the whole set shift being paid at the BLP rate in Fair Work Australia as the words of the Agreement clearly do not provide for this.
As you can see for yourself, Clause 51.14.1 of the Agreement clearly states that all time worked will be paid at the BLP rate. Unfortunately, to be paid for the full rostered set shift at the BLP rate is unrealistic in the eyes of Fair Work Australia.
We have been advised that the number of interpretational disputes being lodged in Fair Work Australia has “risen some eyebrows” as the Agreement is only a new agreement. It is imperative that we ensure we have creditability when appearing before Fair Work Australia. We would lose creditability if we were to pursue outcomes that are clearly not provided for in the Agreement.
We have attempted to resolve this matter at the workplace level and have exhausted the internal dispute resolution process. QR will not budge from their position that when an employee works on their BLP, they will only be entitled to time worked at the BLP rate – no difference to annualised hours. It is because of this, that we have had to lodge an application of dispute in Fair Work Australia. The AFULE State Office has CC the RTBU State Office into every dispute.
The Dispute Process
The issue was raised by local representatives and the AFULE State Office provided advice to the local representatives and also your divisional councillors as to the interpretation of both Clauses 51.14.1 and 66.4.3 of the Agreement.
In accordance with Step 1 of 39.3 of the Agreement, our local representatives in Coppabella spoke to their supervisor. The matter remained unresolved. The AFULE State Office raised the issue in accordance with Step 2 of Clause 39.3 of Agreement with QRNational Coal HR Manager Nevis Black in a meeting on 11 January 2010. In a follow up meeting on 15 January 2010, Ms Black advised that QRNational Coal consider payment of nominated leisure periods separate to the rostered set shift provision and as such, employees are only entitled to be paid 175% as a standalone payment at the end of the fortnight in which the hours were worked.
The AFULE State Office lodged a notice of dispute in accordance with Step 3 of Clause 39.3 of the Agreement on 20 January 2010 and provided a copy to the RTBU. The AFULE received a response from QR on 21 January 2010 stating that their position had not changed and they provided 3 working days notice of their intention to implement their interpretation of Clauses 51.14.1 and 66.4.3 of the Agreement.
On 22 January 2010, the AFULE State Office lodged an Application of Dispute to Fair Work Australia in accordance with Step 4 of Clause 39.3 of the Agreement. The AFULE provided advice to the RTBU of this application.
At no time during this process, did the RTBU make contact with the AFULE State Office and advise of a disagreement in the interpretation of this matter.
The AFULE was provided with an email from RTBU’s Bluff local representative dated 22 January 2010 which made derogative comments about the AFULE State Office and the representation provided with respect to this issue. Further, the email inferred the AFULE State Office had not consulted with their members or the RTBU. The AFULE strongly refutes these comments. As you can see from above, the AFULE consulted with the RTBU throughout this entire process and provided extensive written documentation on this matter.
Further, as a result of the email that was circulated by the RTBU Bluff local representative, the AFULE State Office contacted the RTBU and advised the nature of the email and once again discussed the dispute. The RTBU confirmed on the phone that the AFULE State Office has indeed been consulting with the RTBU on disputes pending. The AFULE State Office advised that it had sent a circular to members in Bluff clarifying this matter and forwarded both the email from the RTBU Bluff local representative and the AFULE’s circular to the RTBU. The AFULE State Office received no feedback from the RTBU to indicate there was a difference in interpretation of this issue.
The AFULE received a faxed notice of listing from Fair Work Australia dated 27 January 2010 notifying that a conciliation conference will be held on 16 February 2010 to discuss this matter. The AFULE advised the RTBU of this listing to ensure that they were aware of the conference and can lodge an Application of Dispute to Fair Work Australia if they intend on being a party to the dispute.
Once again, the AFULE State Office received no feedback from the RTBU that there was a difference in interpretation of this matter.
On Friday 12 February 2010, the AFULE State Office drafted a 10 page list of outstanding issues with the Agreement and provided it to its representatives and the RTBU for feedback. One of the issues on the list was the payment for nominated leisure periods for rostered set shifts. This document had the AFULE’s interpretation of the matter on it. The purpose of this document was to gather all the outstanding issues and provide them to QR and request a meeting. On Monday 15 February 2010, the AFULE State Office received feedback from the RTBU. The RTBU requested additional issues be added to the list however did not raise any concerns with the AFULE’s interpretation of the BLP issue. This document was then provided to QR from the combined unions.
As per the RTBU’s request, the AFULE State Office emailed through a scanned copy of the notice of listing on 3 February 2010 to enable the RTBU to lodge their own Application of Dispute which would enable them to become a party to the dispute. The RTBU emailed a copy of their Application of Dispute to the AFULE. When reading the RTBU’s Application, the AFULE noticed that the RTBU were pursuing payment of 175% for the full rostered set shift regardless of whether the employee was signed off early.
This was the first time the AFULE was advised that the RTBU had a difference of opinion in the interpretation of these provisions.
The RTBU’s Application of Dispute had an attached Step 3 notice of dispute dated 27 January 2010 which also outlined the RTBU’s contention that the whole rostered set shift should be paid at the BLP rate regardless of whether traincrew are signed off early. The RTBU never provided their Step 3 notice of dispute to the AFULE.
It is confusing that 5 days after the AFULE State Office lodged their Application of Dispute in Fair Work Australia and 5 days after the AFULE State Office provided the RTBU with a copy of their circular in response to the comments made in Bluff, the RTBU lodged a Step 3 notice of dispute with a different interpretation. It has caused further confusion with the RTBU not advising the AFULE State Office of this difference of interpretation despite the AFULE State Office consulting with the RTBU throughout this entire process. The AFULE reminded the RTBU of the conciliation conference being held on 16 February 2010 to ensure they were party to the dispute so it is confusing that the RTBU failed to advise the AFULE of this critical difference of opinion.
The AFULE State Office is obviously disappointed with the lack of consultation provided by the RTBU with respect to this matter. The AFULE State Office has been honest and transparent in every dispute process commenced. The AFULE State Office in good faith has consulted with the RTBU on every single dispute and has led the way with progressing interpretational disputes within the workplace.
With all the challenges ahead of the combined rail unions this year such as the proposed asset sales, QR applying excessive disciplinary action, QR’s lack of consultation, QR’s change to HR policies and etc, it is disappointing that the two traincrew unions cannot communicate and work more efficiently together for the betterment of all members. It is disappointing that after consulting throughout an extensive dispute settlement process, the AFULE State Office is advised at the last minute of a difference in opinion.
That being said, the AFULE State Office stands by the advice that it has provided to members and representatives throughout this process. The words in the Agreement simply do not provide for employees’ working on a nominated leisure period to be paid 175% for the whole rostered set shift if they are signed off work early. The AFULE contends that the words provide for employees working on a nominated leisure period to be paid at 175% for all time worked and if they are signed off prior to their rostered set shift sign off time, the difference will be credited to annualised hours.
The conciliation conference has been set down for Tuesday 16 February 2010. The AFULE State Office will keep you updated on all disputes in upcoming Disputes Updates.