Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Queensland Rail [2002] QIRC 163 (2002) 171 QGIG 335

8 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 335 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 284 – interpretation of award Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Queensland Rail (No. B1041 of 2002) COMMISSIONER BECHLY 29 October 2002 Application for interpretation – minimum agreed facts – ambiguity – resort to extrinsic material – past agreements between parties included in award making process – change to organisational structure does not override award provisions – carriage cleaners remain covered by previous conditions until job redesign undertaken. DECISION The parties to this matter, the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU) and Queensland Rail (QR), seek an interpretation of the Queensland Rail Award – State 1996. The issue between them is whether Porter/Carriage Cleaners are entitled to a shift allowance as currently paid viz a flat monetary amount dependant upon the shift worked which for night shifts is $1.8745 per hour or a shift allowance as prescribed in Schedule 3 to the Award which provides a shift loading of 25% for work done by night shift workers. This night shift payment is prescribed for all shiftwork occurring between the hours of 16:15 and 07:30. The agreed facts are minimal and are in the following terms: 1. The preamble at Schedule 3.1 of the Queensland Rail Award – State does not state that it excludes Porter/Carriage Cleaners. 2. On 14 March 1994 Queensland Rail’s Fleet Services Section, Citytrain Division, was renamed Rollingstock Maintenance Division following an organisation restructure. These facts provide little assistance to the resolution of the matter. They provide no indication at all as to the issue in dispute. The original documents of the application merely recite the preamble to Schedule 3.2(1) and 2(a) in the following terms and request an interpretation: “S3.1 General Preamble – The conditions of employment contained below shall apply to all Workshops, Rollingstock Maintenance, Signal and Telecommunications and Infrastructure employees (excluding part-time and casuals). S3.2 Workshop and Rollingstock Maintenance Employees Shift Work (1) Definition – ‘Shift Work’ shall mean work done by separate relays of employees working recognised hours, preceding, during or following the ordinary working hours. (2) Application – (a) Work may be done by shift workers on night shift, and payment for night shift shall be at one and a quarter times the employees ordinary day rate.”. To resolve this matter it is necessary to glean from the submissions that which could not be taken as “fact” and assess the competing claims. The ARTBU contend that the Award should be interpreted on the face of the words used and that a loading of 25% should be paid to Porter/Carriage Cleaners because they are now grouped for employment within the Rollingstock Maintenance Division and have been so employed since 14 March 1994 following a restructure of QR. QR contend that an interpretation of this matter should take into account dealings between the parties in recent years which establish the reason for the application of monetary allowances prescribed in clause 4.6 of the Award. The recent history of this Award includes negotiations in 1994 to restructure and reformat the Award. Prior to 1994 the applicable award was the Railway Award – State which was effective from 1 June 1992. The applicable Award prior to that was the Railway Award – State operative from 24 April 1989. In the 1989 Award conditions of employment for carriage cleaners were provided in Part III which included such employees within the Traffic Branch (Station Operations) area of employment (there is a typographical error at page 490 of the gazetted award in that it is titled Part II – it is clear from the Arrangement of the Award that it should read Part III). Conditions for the working of shiftwork by male carriage cleaners are contained at clause 27 within Part III and payment for working such shifts is prescribed at clause 81 within Part XIV of the Award which contains General Provisions for all employees falling within clauses 80 to 94. The payment prescribed in these clauses for shiftwork is an hourly monetary allowance dependant upon the shift worked; afternoon shift, night shift or early morning shift. There is a specific exemption from the payment of these allowances to employees falling within clause 50 and clause 79(5). Clause 50 is contained within Part VI of the Award which has application only to the following areas: “Trade etc. Employees Workshop Section Signal and Telecommunications Outside Section The Electrical Outside Section Maintenance Outside Section – Clause 47 to Clause 54 Workshops Section Only – Clause 47 to Clause 54”. -- 1 of 3 -- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 November, 2002 336 Thus, for employees covered by these sections of the Award, a payment for working night shift is prescribed in the following terms: “Night Shifts 50.(1) Work may be done by shift workers on night shifts of not more than eight hours each, and payment for night shifts (i.e. the time between the usual ceasing and starting times of day workers which at present are 4.15 p.m. and 7.30 a.m.) shall be at one and a-quarter times the employee’s ordinary day rate.”. This allowance had no application to carriage cleaners at that time. The 1992 Award replaced the 1989 Award and is an agreed document between the ARTBU and other unions and QR. It is in a substantially different format from the previous award and introduces a new classification structure for all QR employees. Notwithstanding the agreed change to the award structure and introduction of streams of employment the parties announced an agreed intention that conditions of employment would be those from the 1989 Award which were applicable in the section of the 1989 Award in which they were previously employed. This is stated in the following terms: “SCHEDULE 12 – TRANSLATIONAL AND PROGRESSIONAL PRINCIPLES S12.1 (1) Conditions of work to continue – Upon translation to the new structure employees shall continue to work according to the conditions from that section of the award from which they were translated.”. Carriage cleaners are provided for in Schedule 2 of the Award under the heading of Traffic Branch (Station Operators). At Schedule 2.14 conditions in the previous Award as to working of shifts and some other matters are continued from the previous Award. Payment of allowances for working shiftwork is provided in Schedule 11 under the heading General Allowances (All Employees). The allowance remains as a flat hourly amount dependant upon shifts worked. Schedule 5 of the new Award covers “Trades etc Employees (Workshop Section)”. The previous percentage allowance for night shift as provided in the previous Award is maintained. That allowance does not apply to carriage cleaners. In 1996 a new Award was made. Again, it was a consent document between the ARTBU, other unions and QR. The parties at that time jointly prepared and provided to the Commission a document explaining the origin of the 1996 Award provisions. It contains a detailed comparison to identify the translation and origins of clauses from the 1992 Award to the new Award. This comparison deals with the matter of shift allowances and shift loadings at clause 4.6 of the new Award as compared with Schedule 11 of the previous Award and stipulates that there is intended to be no change in the transition of the shift work conditions for those previously dealt with in Schedule 11 of the 1992 Award. The new Award deals with Shift Allowance in Part 4 under the heading “Hours of Work, Overtime, Meal Breaks etc”. The preamble at Part 4 states that the conditions of employment contained in this part of the Award shall apply to all employees excluding traincrew and on board services employees. The Preamble also directs the reader to refer to Schedule 3 of the Award for specific conditions relating to Workshops, Rollingstock Maintenance, Signals and Telecommunications and Infrastructure Employees. At clause 4.6 – Shift Allowances and Shift Loadings, flat hourly rates are provided in similar terms to the previous Award and specific provision is made for cleaners in the carriage shed at Mayne. Except for the new reference to the positioning of the carriage shed “at Mayne” that provision is in the same terms as the two previous Awards. Schedule 3 provides conditions of employment for Workshops, Rollingstock Maintenance Employees, Signals and Telecommunications and Infrastructure Employees. The preamble states that “The conditions of employment contained below shall apply to all Workshops, Rollingstock Maintenance, Signal and Telecommunications and Infrastructure employees (excluding part-time and casuals)”. Each of those nominated groups are dealt with in subsections of the schedule in a manner which indicates that there are issues within the operations of those sections which are different from each other and from matters affecting the employment of employees outside all of the above nominated areas. Schedule 3.2 which deals with Workshops and Rollingstock Maintenance Employees stipulates that “The conditions of employment contained below shall apply to workshops and rollingstock maintenance employees only.”. It is an aspect of these conditions that is now sought to be made applicable to carriage cleaners. Schedule 3 has its origins in Schedule 5 in the previous Award. The comparison explaining the origin of the new Award provisions referred to above, when dealing with the new schedule 3 and comparing it with the old schedule 5 stipulated that there is no change intended in the translation from Schedule 5 in the previous Award to Schedule 3 in the new Award. It is apparent that, at that point in time, cleaners at the carriage shed at Mayne were not entitled to the shift conditions presented in Schedule 3 for Workshops and Rollingstock Maintenance employees. It was put by QR in support of its position that carriage cleaners have been classified within the Operational Stream and are still so classified whereas Workshop and Rollingstock Maintenance employees are classified within the Engineering Stream. This differentiation is said to support the argument that, until there is a job redesign process undertaken for carriage cleaners they must remain under the conditions of employment previously applicable. The job redesign process is agreed between the parties and was a process introduced by them to enable employees to upgrade skills and fully translate from one position to another secure the benefits applicable to the new role. -- 2 of 3 -- 8 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 337 That is a circumstance which I understand each of the parties acknowledge. Reference was made to the role of Examiners who, like carriage cleaners, were classified within the Operational Stream until a job redesign exercise was undertaken. The result of this exercise was that examiners then became entitled to conditions prescribed for Workshops and Rollingstock Maintenance employees. The question to be answered is whether the words of the Award should be read at face value or whether the intent of the parties should be taken as the determination of the matter. The matter to be determined effectively is whether the Organisational Restructure of the lines of management of the various sections of QR carried out in 1994 should override the intent of the parties as explained during the making of the 1992 and later the 1996 awards. Obviously that intent was accepted by the Commission when it ratified the parties’ intentions by setting its imprimatur on the agreed document put to the Commission by the parties. The Organisational Restructure as to the management control lines occurred in 1994, sometime before the making of the 1996 Award. It was known to the parties when that Award was made and when a document comparing that Award with the previous Award was jointly put to the Commission when they advised that no change to the conditions was intended. The rearrangement of management control lines is not the determinant of the matter. The determinant is what the parties jointly put to the Commission and that which was accepted by the Commission when it determined the content of the Award. The Award, as to the matters before me, is to be interpreted in accordance with the proposals jointly put by the parties in 1995/6. That is there is to be no change in conditions of employment from those existing in the 1992 Award and translated to the 1996 Award. Carriage cleaners remain covered by clause 4.6 of the 1996 Award. There is however a process to enable the benefit sought by the employees being accessed. This process is through job redesign, a process well understood by the parties and available through clause 6.3 of the Award. Dated 28 October 2002. R.E. BECHLY, Commissioner Appearances: Released: 29 October 2002 Ms R. Webster, with her Mr P. Lucas, for Queensland Rail Ms W. Hutchinson, of Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch, with her Mr W. Sherlock and Mr A. Truscott. -- 3 of 3 --