Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Queensland Rail [2002] QIRC 143 (2002) 171 QGIG 88

88 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 October, 2002 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Queensland Rail (No. W53 of 2000) COMMISSIONER BECHLY 18 September 2002 Application for unpaid wages – Overtime – Allowance for standby/on call – Allowance sought never paid to Depot Managers – Requests for allowance rejected – Salary at a level to reimburse employee – Discretionary power to senior officers to authorise overtime payments in unusual circumstances – Applicant applied for received such payments on certain occasions – Applicant aware of non-payment of on-call allowance – Policy applied to exempt management from allowance – Application rejected. DECISION An application has been made by the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU) on behalf of its member Mr Stephen Shepherd for recovery of alleged unpaid wages relating to a requirement to stand by on-call while occupying the temporary position of Depot Manager, Rolling Stock Maintenance Division, Freight Group at Willowburn, Toowoomba from 23 September 1996 until 24 December 1998. Queensland Rail (QR) opposes the claim and alleges that the salary rate provided in the Award takes into account the nature of the duties required, including being on-call. The crux of the matter is whether clause 1.3(b) of the Railway Award – State excludes Mr Shepherd from a Standby/On Call allowance contained in the Award and associated agreements. Clause 1.3 is in the following terms: “1.3 Area of Coverage (a) This Award shall apply to employees of Queensland Rail and Queensland Rail as the employer in relation to such employees. (b) Notwithstanding (a) above, an employee defined herein who is remunerated at a level in excess of AO5(4) shall be exempt from the overtime provisions of this Award, except where otherwise expressly authorised by the employer.”. The Standby/On Call provision in question is in the following terms: “Clause 4.9(1) Standby/On Call – Any employee, other than a Station Supervisor, who, after finishing duty for the day, is required to remain contactable and available at short notice shall be paid a minimum of one hour’s pay at ordinary rates: Provided that an employee who is required to remain contactable and available at short notice on a Saturday and/or Sunday and/or Public Holidays shall be paid a minimum of two hours’ pay at the rate applicable to that day.”. The “rate applicable” to Saturday and Sunday is provided in clause 4.7 and 4.8 in the following terms: “All ordinary hours worked on a Saturday shall attract an additional 50% penalty payment”, and “All ordinary hours worked on a Saturday shall attract an additional 100% penalty payment.”. Mr Shepherd was seconded temporarily but indefinitely to the position of Depot Manager, Rolling Stock Maintenance Division, Freight Group at Willowburn from 23 September 1996. This position attracted a salary at level ET6.1 with progressive increases through both the annual incremental scale combined with negotiated enterprise agreement increases. Prior to appointment to this position Mr Shepherd held the position of Supervisor (Examiners), Rolling Stock Maintenance at a salary level of ET3.3. As from 23 September, 1996 Mr Shepherd’s salary increased by approximately $14,000 per annum. The position description for the role of Depot Manager at Willowburn is in the following terms: “Purpose To effectively manage the rolling stock maintenance facilities and employees at Roma and Willowburn and contribute to the provision of a quality service. Responsibilities • Effectively and Efficiently manage the resources under their control in a largely autonomous manner to achieve customer and corporate goals. • Ensure the maintenance of rolling stock to agreed standards of reliability and availability. • Develop and manage the annual budget. • Ensure a safe working environment. • Communicate effectively and promote staff development to ensure productive and harmonious staff and industrial relations. • Implement and develop a quality improvement philosophy and procedures. • Plan strategically to maintain a competitive edge in a dynamic business environment. • Create an environment which continually promotes fairness and equity in the workplace, through the development and promotion of a code of practice and the implementation of the strategies outlined in the freight group “equity” business plan. -- 1 of 3 -- 4 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 89 Qualifications Additional Factors Must be available to be on call and for call outs outside of working hours. Must possess a manual “A” class motor licence. Must comply with divisional and depot codes of practice. Budgets:- $3.8 million. Key Selection Criteria KSC 1 Extensive knowledge of the rolling stock maintenance environment and management requirements. KSC 2 High level of skill in application of business management principles. KSC 3 Substantial level of skill in budget formulation and expenditure control. KSC 4 Extensive knowledge of quality improvement principles and implementation. KSC 5 Substantial knowledge of policy, procedures and practices pertaining to E.M.S. and equity. KSC 6 High level of interpersonal and communication skills.”. The allowance sought has never been paid to a person occupying the position of Depot Manager at Willowburn or to the previous position of District Engineer which held responsibility for some of the tasks required of the Depot Manager prior to a restructure of the operation some years ago. District Engineers did have an entitlement to an additional week’s annual leave in lieu of overtime and call-outs. This was not extended to Depot Managers as a part of the restructure of this area of Q.R’s operations. According to the evidence requests were made for payment of overtime and standby allowance from time to time over the years but were rejected on the ground that the salary determined for those positions was set at a level to reimburse employees for the requirement to be available and, on occasions, to work overtime. At a later stage in 1995, by way of a policy decision, overtime payments were made to the then incumbent, Mr Brian Maguire who provided evidence in the proceedings and who was the incumbent prior to the applicant, because of the excessive nature of actual callouts during a grain season when trains were using unused sidings that had not been maintained. Mr Maguire shared the on-call requirements with Mr Shepherd. The policy relied on gave a discretionary power to certain senior officers to authorise overtime payments in unusual circumstances. When the applicant took up the position of Depot Manager he made application for and was paid overtime on such occasions. It is significant that he did not make application for all time worked on call-outs. He used his discretion and applied only for payments which he regarded as being for unusual time on call-outs. It is apparent that Mr Shepherd was aware of the non-payment of the on-call allowance from the outset. He states that it was discussed at the first Depot Manager’s meeting and acknowledged that he was aware of that fact when he accepted the position. The argument for the applicant is quite straightforward. Compelling precedence is quoted in support of the contention that standby is not overtime and therefore does not fall within the exclusion from entitlement to payment proscribed by clause 4.9(i). On the other hand, Queensland Rail present the argument that customarily standby arrangements for staff at levels higher than AO5(4) have been regarded as overtime for the purpose of exemption from the standby allowance as a matter of policy. That policy is given standing through relevant provisions of the Award and Enterprise Agreement in the following terms: “Employees of Queensland Rail shall be employed under the provisions of the Transport Infrastructure (Railways) Act 1991, and procedures and policy statements as approved by the Chief Executive as may be in force from time to time”. A policy has been in place for a number of years, known as the “Payment of Overtime to Senior Staff” which operated to exclude specific senior staff from some award overtime provisions. The application of that policy effectively deemed the standby allowance to fall into an overtime category. The resolution of this matter has been difficult. One of the difficulties is the widespread application of the policy to many staff positions over many years and, with a few exceptions, the apparent recognition by incumbents that recompense for on-call or standby aspects of their role was contained in the salary for the position. It is clearly the case with Mr Shepherd’s salary that recompense for on-call is contained therein. On the one hand there is significant precedence which has held that standby in some awards is not overtime. However, there are issues to be taken into account with this matter which are not apparent in the industrial instruments upon which the quoted precedence is based. The industrial instrument in this matter covers classifications of employees ranging from labouring duties to senior management roles. There is a clear intent to exempt management levels from overtime. There is given to Queensland Rail the capacity to develop and implement policy with respect to employment conditions. I accept that a policy has been developed and applied which excludes certain management levels from payment of a standby allowance. -- 2 of 3 -- 90 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 October, 2002 There is specific reference in the Award to the exemption of a Station Supervisor from the allowance. That classification, originally a Station Master, has been excluded from the allowance for many years. It appears that, over the years, as varying Management Positions were developed, exclusion was applied by way of policy where the roles attracted a salary greater than that now described as AO5(4). In Mr Shepherd’s case, when the new senior management position specific to the role he was to occupy was developed, a requirement of the role was the availability to be “on-call” and for “call-outs” outside normal working hours. It is clear that the two components that is “on-call” and “call-outs” were built into the salary established for the position. “Call-outs” were excluded from payment by clause 1.3(b). The requirement to be available such call-outs, that is “on-call” was built into the salary. To accede to the present claim would be to provide a double payment. It is not an uncommon factor in industry, particularly a twenty-four hour day, seven day a week industry, for there to be a requirement at certain management levels to be available for call-outs when such an eventuality may arise and for remuneration for such requirement to be built into the salary for the role. This is of course quite the opposite to the conditions applicable to employees who may be supervised by management staff when such call- outs occur. A contention by the Union is that the policy is an overtime policy and not one which can have any application to standby or call-out which has been determined in some cases as not being overtime. I think the following comments by Moynihan P in the Radiographers Award – Public Hospitals – the Queensland Radium Institute and the Department of Health (QGIG Vol. 133 at p. 280) when dealing with a matter of standby and call-out have some application: “The construction to be placed on the clause in the Award turns on the word used. The construction given to differently worded clauses in different awards construed from the point of view of concerns different than those in issue in these proceedings can be of little assistance in cases such as this and indeed may prove to be positively misleading.”. There is no suggestion that the on-call requirement placed on Mr Shepherd, which he shared with Mr Maguire, was oppressive. It was a well known fact that payment for such requirement was considered within the salary set for the position. I find that the claim is not sustainable. Comment should be made about the implementation of the “Policy” and the overtime exclusion provision in the Award. As earlier indicated there was in place a discretion available to senior management to approve overtime payments in some cases where staff excluded from overtime payments worked overtime beyond what might be considered reasonable (or in excess of that contemplated in the salary set for the position). Mr Shepherd benefited from that policy and received payment for overtime claimed. Through evidence extracted during the hearing from management salary records it is evident that the same discretion is available in cases of standby for some senior management positions. Mr Shepherd was aware that some managers or staff at higher than AO5.4 level did receive a standby or on-call allowance and expressed considerable dissatisfaction at what he believed was discrimination in the application of the policy to him. There is no material before me to suggest that Mr Shepherd was treated in a discriminatory manner with respect to call-outs. However, I would make the observation that different application of policy relaxation in the same or different operational groups will inevitably lead to discontent. While I accept that policy considerations may take into account different imperatives, equity must be seen in the eye of the beholder if discrimination beliefs such as those held by Mr Shepherd are to be avoided. The application is rejected. Dated 17 September 2002. R.E. BECHLY, Commissioner. Released: 20 September 2002 Appearances: Ms B. Houston of Australian, Rail, Tram and Bus Industry Union of Employees, Queensland Branch for the Applicant. Mr J. Shepherd, with him Ms L. Collins, of Queensland Rail for the Respondent. -- 3 of 3 --