Australian Railways Union of Employees, Queensland Branch v Australian Federated Union of Locomotive Enginemen, Queensland, "Union of Employees" [1994] QIRC 422 (1994) 146 QGIG 926

926 QUEENSLAND GOVERNMENT lNDUSTRlAL GAZETTE [12 Augu st, 19 94 llll#ll#####ll###llll##########ll#l###l#####ll###########/1/I##### Q UE E SLA DI O1.JSTRIA L RELATIONS COMMISSION Industrial Relations Act 1990 s. 3 I9( 4) - industrial dispute s. 144 applications for variations Austrul iun Raih,a)S Union of Employees Queensland Branch Australian Federated Un ion of Locomot ive Enginemcn, Queensland. "Union ofFmplO)Ces•· AND Queensland Rail (.\"o s D / 65, s- and 8495 of 199./J Rr\ JL\\'A \ A WARD - TA TE COMM ISSIONER DEMPSl· Y COMMI SS IO. ER BECHL Y COMMIS 10 ER UTTLR 29 Jui) 199.t Industrial Dispute - Conferences - Conciliation Failed - Arbitration Ordered - Applications for VariaLions of A,,ard Filed - Referred to Full Bench - Two Driver Operations - Eleve n Hour Shifts - Twelve Hour Shifts - Rosterini of Train Crews - Hearing in Gladstone - Ev idence - Quality Time Off - Union App li cations for Remu_neration for Extended Shifts Refused - Award Varied by Inserting a ne,, Clause ..Two Driver Operation·· in Schedule 3. DECISION Queensland Rail and a number of unions entered into an Enterprise Bargaining Agreement (E BA) in accordance \\ith the princi ples enunciated by the Commission in th e Stale Wage Case decision reported in the QGIG of 15 February. 1992 Vol 139, No 11 . Th e EBA is reported in the QGIG of 4 December 1992. The panies to lhe EBA reported to the Commission progress and implementation of various elements of the EBA at regular intervals. When the final progress report was given on I December 1993. the parties ad vi sed th at agreeme nt had not been reached on 1hc introduction of"two driver with extended shifts"'. On receipt of this infonnation the Commission offered 10 assist and a series of conferences involving Queensland Rail (QR) the Austral ian Rai lw~ys Union of Em pl oyees Queensland Branch (A RU) and the Australian Federated Union of Locomotive Enginemen, Queensland, "U mon of l:.rnp lO}ees·· (Al·ULE) was conducted under the auspices of the Commission. It is imponant 10 note that the negotiations that had been held between the ponies \.\Cre fruitful to the extent that substantial agreement had been reached to the level "here the "two driver' concept is not opposed and a manual under the title ·'Two Orilfer Operations Implementation framc,,ork " has been prod~c.cd. '.he conten ts of this publication is by and large an agreed position with some exceptions. The principal area of disagreement relates to the proposal by QR to \\Ork extended shifts. eg. more than e1gh1 hours and up 10 eleven hour shif~. During the cou rse of c<>nfcrc nces chaired hy the Commission an emphasis \\'~ placed on the tenns contained in the EOA which are found at Appendix 16 , T,\ o dri,•cr Opera11ons :- '11le panies agree in princjple 10 the concept of I\.\O driver opera ti ~n ~nd commit th emselves 10 establ is hi ng a process to en_ablc ns mtroduchon over selected corridors durin1;1 the life of th_1s agreement. with ncgo1iauons bcmg completed to enable a tna l 1o 1,ommcnce \~ithjn 1)1c first 6 months of this agreement. Suita bl ~ operati ng corridors upon which tra ins wi l) be worked by t~o drivers are to be identified b) a speci al task force or a number of special task forces constituted b) both QR and union r ep_rescn1a1ives 10 review and r epon a recommended course of iK\.l.m! These reviews will carry oul a fundamcnt:il analysis of the \\Ork processes on each comdor mcluding such elements a~ _ - Train schedules - Ros te rs - Infrastructure Requirements - Operating Me thodo logies - Business requirements - Delennmation of Implementation Targets 12 August, 19941 QUEENSLAND GOVERNMENT IND USTRIAL GAZETTE 927 - Amenities -o n and off the locomotives - Self driving of QR motor vehicles for relief - Requirements under the Workplace Ilealth and afety Act Where ai:rced the drivers may be rostcn:d for extended shifts. eg of up to 12 hou rs duration between sign on and sign off and the drivers share the driving responsibilities on a mutua ll y agreed basis. An, extended shjfi will mclude 11m e on the looomoti,e as well as sign on/ off and travelling time. Where agreed and where trains are crewed with two drivers the train will slop for meals, Where extend ed shifts arc worked the ~hift would be regarded as nonnal working lime and not as passive time ." . (The underlining is ours 10 h igh light what we regard as important ,,ording tn th t appendix) From the arguments advanced by the unions ii became clear that there was significant reliance placed on the fourth paragraph of Appendix 16 which commences with the words "where agreed". On this particular matter the unions insisted that ex tended shi fis could not be introduced u nl ess there was sp~cific agreement to do so. The parties never resolved lhal issue. In order to break the deadlock that existed, Commissioner Oempsc) suggested that lhc follo,,ing question be submitted to Commissioner Fisher for de1ennination :- "ls it reasonable for Queensland Rail 10 roster and work two driver operation train crews up 10 11 hours without obtaining further agreement from the unions .~. Commissioner Fisher heard the panics on that mailer and delivered her decbion on 23 March 1994. In that decision Fisher. C. made the follo\,ing comment .- "! laving reviewed 1he relevant material I am satisfied that the issues raised by the unions do not present an impediment to QR ros1ering train crews for 11 hour shi fls.''. The Commissioner continued and in the next sentence said:- ·') am also satisfied 1ha1 the implementation procedure tendered as exhibit 14 demonstrates that the proposal is not onerous and should be used as the basis for piloting two driver operauons. Accordingly I am prepared to npprove such rostering for the pilots of two driver operations.". That decis ion clear.:d the way for a pilot programme over corridors that emanate from To\ms, 11le and Gladstone. ho\.\ever. the pilots only got under way after even more negotiations and concessions by QR 10 make pa)'lllClllS for "ork beyond cigh1 hours in any one day. It is of tntercst to note that m her decbion Fisher. C. made the following comment:- "O nce the pilots have concluded and provided it has been shO\\ll that 11 hour shifb are viable and not injurious lo safe workmgi.. the Commission "ould anticipate that much of the resistance 10 extended shifts would subside. It needs to be clearly s tated that the reasons advanced by the unions are. in my view. insu ffi cient to unreasonably withhold agreement. This view has been bolstered by current practices bo th within this tate and elsc\,herc in Australia.". In spite ofl be comments made above the unions mainta ined their resistance to extended shifts and relied more on the penultimate paragraph of Commissioner Fishers decision \\hich bas follows:- "On co mpletion o f the pilots and on the basis that a decision i made to permane ntly impleme nt two driver opcra1ions, sh in lengths in excess of 10 hours per day ure to be the subject of agreement. The Co mmission docs not express a , ie,\ as to the mo:.t appropriate level within Queensland Rail to whi ch d iscussion over shifi lengths should be held.-. The agreement reached between the parties \\3S for the p il ot programme only. The unions. in particu lar the AR U. seemed to hold the view that a greater lc,el of remuneration could be achieved and suggested that it ma) activate its application to th e Commission lodged on 2 Fe bruary 1994. th at application ~ought add it ional remuneration for drivers in a 1,,0 driver operation. During the period that the pilot l\\O driver operdti on "as undertaken a m1d -1enn review was conducted under the auspices of the Commission aJld conferences were held in Townwi ll e and Gladstone. TI1en nearing the completion of the p1lo1S further conferences were held in Brisbane and it became evident that the continuation of the t\\0 driver operation ,,ould not receive agreement. The events as reported above do not rellecl the exhaustive discussior1s and processes 1h01 have been undertaken b) the parties and the Commission. I lowever, auached as Appendix A is a hi st or') of 11ego11ations in headings and dah:s. This was tendered to the Commission by Q R and m arked as exhibit 5. A further deadlock emerged and in a conference 1h01 follo"ed the panics \\ere ad, i ed that the Co mmission "ould consider ,~hethcr or not to mal..e recommenda11ons. issue orders. or detennme that the ma tler be arbi trated. Th e pasties were r i::4uin.: d 10 cons id cr their respective positions and the Commission " ould hear submissions from the parties the follo,,ing day. 1-rnally arbitration ·was directed and the following .said and detennined· "Givi:n that conciliation has failed to uc hieve a sc11lcmen 1 on the two driver issue, and that failure to reach a sc11lemen1 may haH'. a significant impact on the future o f indumial and hum.u1 relations \\ithin Queensland Rail, and that it is in the public interest lha1 a se11lcmen1 be achieved, I direct that the matter be d eah with by ar bi tration purs u an t 10 the provisions of section 319(4). I direct that the i,-sues 10 he a rb11ra1ed sha ll be a, foll o,, s:- 1. Duration of shifis in a two drivl!r operation. In th is regard th e employer, Que,ms land Rail. will be required to Justify it , contention that I I hour shifts arc necessary and do not impo,c undue hardship for those worker., required to he rostered for 1h ,11 purpose. Simuhancousl) , Queensland Rail \\ Ill be required lo support i1s contcn1in11 that 11 hou r shifis arc an in te gral part uf the two dri~ c:r system. 2. The second issue 10 be arbitrated 1s remunerauon to be paid IO drivers 111 a two dri~er operation. On this mailer. I am aware of an application th at has been lodged by the Austra li an Ra ihv:r) s Union and that application should be jomed 111 the :irbitrati(\n I have directed. rhc ARU will haH: the right to amend 1hot application prior 10 hearings commencing and should sen ·e an) amendment on Queensland rail prior to the first date ofhe ar ini,t . -- 1 of 5 -- 928 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [12 August, 1994 The AFULE have the right to lodge an application setting out its requirements on the issue of remuneration, and if it decides to take this course it should do so as quickly as possible and set forth its grounds and reasons for its claim. 3. I will list this matter for preliminary hearing at an early date and will require the parties to advise of the time required for their respective cases. 4. The parties to this matter will be Queensland Rail, the Australian Railways union of Employees Queensland branch, the Australian federated union of Locomotive Enginemen, .. Union of Employees''. 5. I will also refer this matter to the Chief Industrial Commissioner. with a recommendation that the matter be referred to a Full Bench. The matter to be arbitrated must be seen and taken as part of a total package, given that the parties have agreed on all other matters that form the rest of that package. The Commission has taken this course of action in the belief that it is acting in the public interest.". The issues at hand were referred to a Full bench for determination. dates and times for hearings were set. However prior to the hearing the ARU forwarded correspondence which was received on 7 June 1994 in which reference was made to the directions of the Commission. The union expressed its concern that the case for arbitration may not be a vehicle to address the issues that are at the centre of the dispute and could therefore provide a fundamentally flawed outcome. A conference was held as requested by the ARlJ. The parties were advised that note would be taken of the ARlJ's comments and that the hearing would proceed as scheduled. The "Arbitration•· hearing took place on 20 to 22 May in Gladstone with a further hearing in Brisbane on 26 July in response to an ARU request to re-open proceedings. During the hearing the following issues emerged which require either comment or decision. Cl'RRENT ENVIRO:\!MENT It was recognised in the EBA between QR and the unions that QR operated in a business environment that was highly competitive and that services needed to be efficient, effective and client focused. Clause 9 of the EBA reads as follows:- ··9_ Business Environment There is a recognition that QR - 9.1 Operates in a highly competitive and rapidly changing marketplace. 9.2 To maintain sustainable employment levels and its long term survival, is dependent upon achieving a competitive advantage through a significant improvement in:- productivity reliability quality of service 9.3 Services markets which demand a 24 hour per day. 7 days per week operation. 9.4 Is a commercial operation required to provide a return on investment of its capital.·'. Evidence was also given by J. Ilearsch. Group General Manager - Freight for Queensland Rail, and submissions made by P. Cranitch concerning the corporatisation of QR and a responsibility via legislation for QR to operate on a sound commercial basis. The evidence of Mr Hearsch is that QR ·s business is made up of three major components viz. coal and mineral; passenger business and freight business. The coal and mineral business generates some seventy percent of QR ·s total income. However. there are significant changes occurring in the coal business emanating from several decisions taken by the Queensland Government in recent years which impact on revenue. Essentially these decisions are:- (I) Notional royalty payments included in past contracts are being desegrated from total revenue to show real freight rates for coal. While these so-called royalty payments will be left with QR and deemed effectively as a subsidy to cover losses on both passenger and freight non- commercial services, they will not be so available after I July 1995 when QR will be corporatised. (2) All export coal contracts negotiated from 1994 are being negotiated on a strictly commercial basis without any super profit component. Because the coal business is now highly competitive on world markets, rates achievable in the market place are significantly lower than those which have been previously available. Notwithstanding an expected substantial increase in physical movement of coal over the next five to six years, QR's actual revenue from this business is expected to be at best static and quite likely to decline. This situation gives QR no choice but to improve its overall efficiency and productivity significantly. (3) In the general freight area the Government has set an objective of eliminating operating losses by 1999. Current losses are very significant and are cross subsidised by profits from the coal business. This cross subsidy will be systematically reduced. In 1989/90 the loss was $385 million, after deducting an interest component, and is expected to be $276 million m 1993/94. exclusive of interest and depreciation. It is QR's belief that Government cannot afford to sustain the high losses traditionally associated with railways. It is anticipated that rail investment and subsidies will be cut and thus leave rail vulnerable to competition, in the general freight area, from road freight. Mr 1-learsch also went to the following matters in his evidence:- • Train crewing has a significant impact on costs. The cost of train operations is approximately half the cost of running the total freight business and the cost of train crewing is approximately half train operations ie. approximately one quarter of the cost of running the total freight business. • By comparison with other Australia rail systems the productivity of the Queensland rail system does not compare favourably. In New South Wales and Victoria freight train crews on general freight or express freight tend to work around 350 kilometres in a shift and generate approximately 700,000 gross tonne kilometre per shift. Typically in 12 August, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 929 • • • Queensland train crews average something like 200 kilometres or less in a shift and generate typically less than 200.000 gross tonne kilometres in a shift. Two driver operations working extended shitls would provide significant opportunities to substantially improve the present input/output ratio. partially through the ability for train crews. in a given shift, to operate over longer distances and partially through the higher proportion of the shift that drivers will be actually operating a train as distinct from being involved in peripheral activities such as crew changes, travelling home. time spent in waiting etc. The two driver operation over extended shifts (Appendix 16 of the EBA) was a significant element in the costing of the 7 .5% increase negotiated in the Enterprise Agreement and applied to all employees of QR. Restriction to a ten hour shift instead of the eleven hour shift would substantially reduce the benefits available from operations in the corridors proposed. While operation of shifts beyond eleven hours (up to twelve hours) would be the exception rather than the rule, such shifts will be necessary. Statistical evidence produced revealed that some I percent of total anticipated journeys ie. 666 journeys. would be expected to exceed 11 hours but not exceed 12 hours. Because of the development of a Roster Code of Practice. which breaks quite a deal of new ground. it was anticipated that agreement would be reached in particular areas to extend the shift spread to 12 hours for these journeys. The belief was expressed that it would be unsatisfactory to adopt a proposition put forward by the unions that shifts be extended to a JO hour spread as a right with the capacity to extend to eleven hours bv aareement. The unsatisfactory nature of that propositlon stems t;ombexperience over the last 12 months in dealing with these issues. It would appear to the Commission that. if an eleven hour shitl spread is granted, there is limited prospect of agreement being able to be reachcd between the parties to an extens10n to 12 hours for the 666 expected journeys where such hours would be necessary. The Transport Infrastructure Act requires inter alia:- '·JO. The chief executive. the Queensland Railways Board and the board of each port authority must ensure that - (a) the construction. maintenance and operation of all government supported transport infrastructure for which the entity is responsible is carried out m accordance with standards published by the entity that are designed to achieve - (i) efficiency; and (ii) affordable quality; and (iii) cost effectiveness: and (b) construction, maintenance or operation is carried out in a way that - (i) takes into account national and international benchmarks and international best practice: and ( C) (ii) (iii) promotes, within overall transport objectives, the safe transport of persons and goods; and encourages efficient and competitive behaviour in the construction and maintenance of transport infrastructure; and contracts that are let for the construction. maintenance or operation of transport infrastructure are designed in a way that encourages efficient performance by the contractor.''. Advice was given to the Commission for the need for Queensland to be internationally competitive generally but with particular reference to minerals and coal and this required the adoption of world's best practice in the cost of transportatlon to ensure the most efficient operation. It is incumbent on the Commission in any decision to ensure that the employer has the opportunity to achieve as effective and efficient operation as possible consistent with world's best pracUce subject, however, to meeting the reasonable needs and requirements of employees. This includes satisfactory workplace health and safety arrangements. CHANGE PROPOSED The change proposed by QR is to provide them with t~~ right to roster extended shifts of up to 11 hours on a sign on sign oft basis (m lieu of 8 hours shifts at present) using a 2 driver operation (in lieu of the present I driver plus I driver's assistant). The previous system was not always on a sign on/sign off basis because passive time was additional to the eight hours rostcred. QRs proposal will mean that one driver will be, able to relieve the other driver for part of the shift. In the case of the prev10us_ly rostered 8 hour shifts. the driver would drive for the complete shift with the driver's assistant helping him in relation to other matters (1e. observation, signals etc.). This should result in the drivers job being less onerous and stressful as a second driver is able to relieve him during the shift. Mr Bradford for the ARU made extensive submissions and provided the Commission with a number of exhibits detailing the salaries and conditions of train drivers elsewhere m Australia. In essence these submissions indicated that 11 hour shifts were already operating in National Rail, NSW and Australian National Railways (SA and TAS). In addition enterprise agreements :vere bemg negotiated in Victoria and Western Australia allowmg tor 11 hour shifts. He stated that:- "The issue is one which really started. I think. by the National Rail Enterprise Agreement which really set standards and many of the other state rail systems tended to follow and its true that the AN one that I spoke about is one that followed a simdar trend. within-quite rightly-within bounds that was appropriate for that rail system.•·. Reference was also made by Mr Bradford during the course of his submissions to shifts extending well beyond those hours by agreement between the employer and employees. An example given was in relation to rail trips on the Nullarbor Plain where he stated:- .. He's quite right that there are agreements and they'v_e operated forever in the railways where for unavoidable necessity and the Nullarbor Plain would be an excellent example where trains can't reach their destinations. sometimes up to 14, 15 hours, and -- 2 of 5 -- 930 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [12 August, 1994 they keep on working because its a practical nonsense to do otherwise.". Mr Bradford also indicated that in relation to other rail systems in Australia shifts could be worked beyond 11 hours by agreement. He stressed that the introduction of extended shifts was generally by agreement and coupled with additional remuneration/payment for the employees involved. Notwithstanding the agreements reached Federally and in other States with regard to 11 hour shifts with the opportunity to work shifts beyond 11 hours by agreement, the question of safety m so doing was raised in these proceedings. QR through Mr Cranitch provided 2 exhibits. The first was a paper presented by British Rail to an International Rail Safety Seminar (Ex 13) in France in December 1993 dealing with the relationship between working time patterns of their train drivers and safety. The report stated:- " .. the study reveals no increase in safety risks when working up to 12 hour shifts, high levels of weekly hours, or long runs of consecutive shifts without a break. Safety risks were not found to be influenced by age, type of work, or variability in shift start time. Over the range of data examined, rest intervals between shifts and safety showed no clear relationship.". The second report was by the united States General Accounting Oflice to the Chairn1an. Committee on Energy and Commerce, House of Representatives and headed Railroad Safety. Six privately owned railroads in the US were examined. That report stated inter a/ia:- "Our analysis of accident data and engineer's work schedules showed that reducing the maximum number of hours allowed per shifl from 12 to 10 may have little effect on the number of rail accidents that occur. Only 4.5% of all human factor caused accidents in 1989 and 1990 occurred after I 0 hours in an engineer's shift. At the same time, we estimate that in 1990 about 17% of engineers' work periods at the four railroads lasted more than JO hours.". Mr Doogan for the ARU tendered as an exhibit an article on The Sleep of Train Drivers: An Example of the Effects of Irregular Work Schedules on Sleep b) J. Foret and G. Lantin. The conclusions related more to variable shift times rather than the length of the shift itself and how over time variable patterns may affect performance. The references quoted at the end of this article all related to the l 96(J's A second exhibit by Mr Doogan was an article by Jan P. Wooton. "Are We Snoozing Into Disaster~" published in the journal of the American Society of Safety Engineers. That article concluded inter alia:- '"As shillwork cannot be avoided in many industries, it is important for companies to educate and support their employees. Workers need to know they must approach shiftwork as •a way of life· and learn the best ways to acclimatise themselves to the routine The article spoke more of adjustments for shifi work rather than the length of individual shifts. but the proposal itself does not provide information to assist the Commission with regard to the health and safety of employees. The Commission was referred to the ACTU Code of Conduct on 12 hour shiftwork and the contents therein have been taken into account by the Commission. Overall there is no evidence provided to us to show that the implementation of 2 driver operations of 11 hour shifts or indeed shifts up to 12 hours duration would cause occupational health or safety problems. Indeed, it could lead to better rostering arrangements. A further protection to minimise the likelihood if any of any occupational health and safety problems arising as a result of the proposed change is a "Roster Code of Practice" which has substantial (but not total) agreement of the parties. This Code deals with appropriate consultation between the parties on rostering, quality of time off, development of link programmes, a commitment to provide adequate staffing levels, training and relief crews. The fact is that in other parts of Australia extended shitls have been agreed to, with occupational health and safety not being raised as a major issue. To deny QR the opportunity of requiring the working of I I hour shifts or having longer shifts worked by agreement would place them at a competitive disadvantage with those other areas and also with the road transport industry with whom it competes where no similar restriction applies. The Commission now refers to Appendix 16 of the EBA. QR introduced a proposal for the working of two driver operations over extended shifts (up to 12 hours) during negotiations on the Enterprise Agreement. This proposal in Mr Doogans' words "was the subject of intense negotiations which resulted in every sentence, phrase, word and indeed the punctuation itself being carefully chosen to ensure that the outcome which could accommodate the needs and concerns of all parties was forthcoming.". The unions sought the inclusion of the words ''where agreed" in the provision relating to extended shifts. Apparently these two words are the source of the problem now before the Commission. It would appear that agreement is being withheld to the working of shifts extending up to 11 or 12 hours on the basis that there is nothing compelling agreement to be given within Appendix 16. This issue was the subject of comment from the Bench during proceedings when it was said that such a view subverted the intent of the agreement. Nothing has been put to the Commission which changes its view on this matter. Mr Doogan explained the detail which was addressed to the choosing of the words of Appendix 16. This Appendix opens with the words "The parties agree in principle to the concept of 2 driver operations and commit to establishing a process to enable its introduction over selected corridors during the life of this Agreement; with negotiations being completed to enable a trial to commence within the first 6 months of this Agreement.''. A third item brought to the attention of the Commission by Mr Doogan was a draft proposal to fund a study into "Improving Shiftwork And Workload management In The Australian Rail Industry". It is commendable that such a study might be undertaken After dealing with the identification of corridors where this system was to be introduced and a review of the work processes on each corridor, Appendix 16 then provides that "Where agreed the drivers may be rostered for extended shifts e.g. of up to 12 hours duration. _,. and concluded with "Where extended shifts are worked 12 August, 1994] QUEENSLAND GOVERNMENT L"I\JDUSTRIAL GAZETTE 931 in accordance with this proposal all time worked during the sh'.li would be regarded as normal working time and not as passive llme. It is the Commission ·s \iew that not only is there clearly a commitment from the unions. that two driver operations will be introduced during the life of the agreement. Appendix 16. also contains a commitment that associated extended shifts. up to 12 hours. will be worked. While the words "where agreed" are used, there is no doubt that QR was entitled to hold the belief that there was a commitment by the unions and all employees benefiting from the agreement that extended shifts would be \\Orked by drivers on two _driver operations. that is. that agreement would be forthcommg for the introduction of some extended shifts. Two driver operations were not introduced during the life of that aorcement albeit a trial \Vas eventually conducted with the assistance of the Commission. The life of the agreement has now been extended but extended shifis have still not been made available to ()R. Jn the matter of Electrial Trade Union of Australia Ys. Queensland Electricity Commission and Others, Industrial Reports J986 p. 3 J6 Ludeke J. and Brown C. made the followmg comment:- "It is a cornerstone of proper industrial relations that agreements made must be honoured even if they subsequently prove to be inconvenient to one or other of the parties.''. We endorse those remarks. Declining to give agreement to the working of_ e_xtcnde_d shills._ suitably rostercd. is. in our view, contrary to the spmt and mtent of the agreement. Jn the circumstances the Commission is prepared to approve the working of up to 11 hour shifts on a 2 dri,er operation with extension to 12 hours by agreement between QR and the employees involved. We leave it to the parties to refer the matter back to the Commission in the event that any of the parties arc of the. op1111011 that reasonable agreement to extend shifts to 12 hours 1s bemg \vithheld. ROSTERS Mr J. Lawson was called by the AFULE as an expert ,1itness_ in work pattern structures (Rostcring). l lc listed details of extensive work he had been involved in since 1983 in this area. A report complied by J.F. Lawson and Associates Pty Ltd on Roster Comparisons and train Driver Rosters during the tnal \vas tendered to the Commission (Ex 29). Mr Lawson referred to the 3 competing interests in drawing up rosters. the business needs, the employee needs and occupational health and safety and stated that unless all needs arc satisfied the result will be that in the long tern1 it will not be a productive roster for the employer. Mr Lawson referred to the "trial" rosters as not satis(ying employee needs with regard to quality time off and that they need _to be better structured. He referred to vanous pro.1ects where despite difliculties in dra\1 ing up rosters. suitable rosters were introduced which catered for all mtcrests and provided employees with quality time off. Mr Lawson referred to the rosters used during the extended shift trials as a "hotch pot eh .. of arrangements which '•gi, cs employees absolutely no opportunity whatsoever to get used to being on day 148801-72 shift. on afternoon shift or on night shift or any of the 12 hour a real hopscotch pattern ol He said it didn ·1 deliver equivalents of both because it follmvs jumping and cross-referencing shifts .. _ quality time off to employees. Jn response to a question from the Commission with reference to the trial rosters being agreed between the parties. Mr Lawson commented that a problem often existed of convincing those persons accustomed to working previous rosters to think beyond those parameters and consider what other options are available. He stated that in traditionally structured industries people were often blmkered by their experiences. The Commission accepts the comments of Mr Lawson in relation to the trial rosters. However, Mr Lawson was unable to comment on the previous rosters with 8 hour shitls as they had not been brought to his notice. It would seem to us on the scanty 111format10n that was made available to the Commission on those rosters. that they were probably no better. and possibly worse with regard to quality time ofI than the trial rosters. Having regard to the aforesaid. the Commission is of the view that the "trial rosters" did not impose any additional hardship on the drivers over and above the hardship previous!) experienced. As a consequence the Commission has fonnecl the vie\\ that granting the right to QR to roster train drivers up to 11 hours on a shift would not impose additional hardship on those emplo;ees. However, this is not to say the rosters currently in operation for 8 hour shifts or the rosters trialed for 11 hour shifts arc gennally acceptable in the longer term. The amount of quality time off _111 our view seems to be unacceptable and QR and the umons should JOll1tly devote considerable time to drawing up more satisfactory_ rosters. Those discussions should not be limited to arrangements which have previously applied nor to the equalisation of_ income between employees but should reflect the need to have'. as far as prnct1cal_,_ the business needs of the organisation coupled with quality time oil for employees. Having regard to this matter we will provide a mechanism as an interim measure for dealing with rosters. The mechanisms for dealing with rosters J. QR will give to employee representatives at lea_st one months (4 weeks) notice of the proposed rosters for two driver operations. 2. 3. 4. If there is objection by the employees affected by ()Rs proposal they should notify local management of their objection and the reasons for that objection within seven days. Following receipt of the reasons for objection the local representatives and management should confer and in the event that agreement cannot be reached on a satisfactory rost_er_ there_ should be a conference between QR management and olhc1als of the AFULE and ARU. Where notice has been given in accordance v.-ith I. above and steps 2. and 3. have been followed to pern1it sufficient consultation and agreement has still not been reached the rosters \\ ill be implemented and the only recourse available for revic\l of the matter will be in accordance \\ ith section 319 of the Industrial Relations Act in the event that the Commission is notified of the possibility of a dispute We have previous!) referred to the manual "Tw~ Driver Operations". This was tendered as exhibit 8 and Part ) ol that exhibit contains a draft two driver operation mdustnal agreement. We are of the view that the parties should proceed to register that -- 3 of 5 -- ...-- 932 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [12 August, 1994 document as an industrial agreement with the exclusion of clause 4.0. Again as an interim measure and for the purpose of implementing two driver operations we will adopt the content of that draft industrial agreement in the event that there is disputation between the parties while two driver operation is being implemented. WAGES Notwithstanding objections by the ARU and the AFULE to QR being given the right to roster train drivers on shifts of up to 11 hours applications were lodged by the ARU and AFULE seeking the following allowances should the Commission determine that drivers work shifts over 8 hours:- Over 8 hours but less than 9 hours 15% 9 hours but less than 10 hours 20% I O hours but less than 11 hours 25% 11 hours but less than 12 hours 30% Over 12 hours--0vertime rate in addition to 30% of the rate of pay for a period of 12 hours. In addition the AFULE sought additional Annual Leave and paid leave of 5 days per year for family responsibilities for drivers engaged in 2 driver operations. However, Mr Smith for the AFULE stated that his claim was structured on quality leisure time and that if that was provided his claim would be satisfied. If it was not provided an allowance should be paid and/or an increase in leave granted or a computation of both to provide compensation. Wages under this award are paid in accordance with the EBA 1992. That agreement provided inter alia for wage increases of 7.5% for all employees on the basis of undertakings and agreements recorded in the EBA. Included in those matters referred to was the concept of 2 driver operations and the rostering of extended shifts of up to 12 hours. The Commission earlier in this decision dealt with its view on the intent of those undertakings. The Commission was advised by Mr Doogan "that train drivers had significant changes and some QR employees did not have that many changes compared to train drivers". Nevertheless Mr Doogan accepted that the ARU and other unions had sought a 7.5 per cent increase for _all employees irrespective of whether the changes were mmor or maJor. Having accepted that philosophy, it is not now appropriate to seek higher increases for those matters in the EBA where employees have been subject to significant change (ie. more than 7.5% increase) without reducing the increases where the changes were minor. The unions have not sought to do this. In addition the EBA itselfprovides:- ''12.5 No extra claims, Award or overaward (local agreements), shall be made during the period of this Agreement. except where consistent with the State Wage Case decision.''. The Commission in arriving at its decision must have regard to the Wage Principles. This requirement was conveyed to the parties during proceedings in Gladstone when they were reminded that the process of enterprise bargaining enabled them to consider a wide range of matters an arrive at a negotiated result beyond that available under the existing principles of wage fixation within which the Commission operates. An opportunity was afforded to the parties to reconsider their respective positions but no change became evident prior to the conclusion of proceedings. The Principle dealing with allowances states:- "Allowances I. Existing Allowances (a) (b) (c) Existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the work value changes principle.". The Work Value Changes Principle provides that increases may be awarded where the change in the nature of work constitutes such a significant net addition to warrant an increase. It specifies that changes in work by themselves may not lead to an increase in wage rates. This Principle further emphasises that where the change justifying a higher rate is only covered from time to time by persons covered by a particular classification or some of the persons in the classification it should be compensated by an allowance. However, this Principle then goes on to state that changes previously taken into account in previous work value adjustments or structural efficiency exercises are not included under the Principle nor can any changes taken into account in assessing an increase under any other principle be claimed under this Principle. (The underlining is_ours). Clearly the 7.5% increase via the EBA was granted under the Enterprise Bargaining Principle of the Commission, one of the offsets being for working the extended shifts. The position is that the Commission is not now in a position to award increases in terms of the Work Value Changes Principle. The exhibits provided by Mr Bradford included information as to the wage rates for drivers working extended shifts in various rail systems throughout Australia. However, even if wage increases were available solely on a basis of interstate comparison, which they are not, it is difficult to draw a comparison on the information we have between the Queensland system and other systems. Some systems provide for an aggregate wage for drivers. The Queensland system does not. Some other systems work on a 13 week roster. Queensland works on a I week roster. Wage rates in other systems are based on specific categories of drivers at specific locations which may bear no particular relationship to drivers in Queensland. The Commission is not aware of the comparison between quality time off in other States as compared to Queensland. One further matter needs to be dealt with on remuneration for working shifts beyond 8 hours. The Commission was advised that for the purpose of the "trials" (on extended shifts) agreement was reached on a without prejudice basis between QR and the unions for additional payments to be made for shifts extending beyond eight hours. 12 August, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 933 QR had included overtime payments after eight hours in the Draft Two Driver Operation-Industrial Agreement previously referred to. However at the hearing itself QR resiled from that position. They stated:- "When the matter came before you (Commissioner Dempsey) in February and March this year, the Commission quite rightly viewed that overtime payments from the ordinary spread of hours, to be inappropriate, and during those discussions before you Commissioner, in March, I'm trying to seek some agreement that the overtime was converted into an ordinary time allowance concept.". QR then dealt with the ''without prejudice" nature of the agreement during the trials and indicated that when the trials were completed QR withdrew the support of the allowance after 8 hours. They stated:- "As for the arbitration matter, it involves the extension of ordinary shift times, with no overtime.". The view the Commission takes is that payment of overtime rates for ordinary hours on shift is not acceptable even if agreed to by QR (which is not now the case). On the submissions made to us we are not satisfied that any justification exists for payment of an additional amount by way of an allowance or otherwise as compensation for working extended shifts, however in the event that it is demonstrated by the AFULE or the ARU that QR is being unrealistic in its approach to rosters and only giving consideration to the business needs and not the employees needs to have quality time off within the two driver operation rosters we indicate a preparedness to review the question of compensation. CONCLUSION ON MATTERS ARBITRATED In making this determination the Commission has had regard to all of the submissions and evidence placed before it. In relation to certain matters the Commission indicated that they were for record purposes only. I. Duration of shifts. Within a two driver operation 11 hour shifts can be rostered, the rosters should be by agreement and we encourage this process, however given the intransigence that has been demonstrated on the part of the unions we have provided a process for dealing with rosters. 2. Remuneration Remuneration for extended shifts, claims by ARU and AFULE refused. In order to implement the intent of our decision we propose to vary the Railway Award - State. In doing so we are cognisant of the fact that we are giving to the employer an entitlement through the instrument of the award that it anticipated would be forthcoming through the EBA. This entitlement should not be abused and rosters should address the issue of quality time off. At the same time the ARU and AFULE should not withhold agreement on rosters for the purpose of maximising or equalising income and relying on old traditions that have been institutionalised in the past as two driver operation is a new concept. Accordingly we propose to vary the award as follows:- By inserting a new clause in Schedule 3 - Traffic Branch (Train Operations) as follows:- "S.3.19 Two Driver Operations (1) Duration of Shifts - (i) All sign-off and passive time/spare travel will be inclusive of the duration of all Two driver shifts of duty (including captive yard shunt locomotives and as required shifts of duty) and be considered as working hours. (ii) (iii) Two driver operation shifts will be rostered a maximum shift length of eleven ( 11) hours and be considered in accordance with S3.19(1 )(i) above. Where agreed, following consultation on a location by location basis, shift lengths may be a maximum twelve (12) hours duration. It is a proviso of this sub-clause that agreement should not be unreasonably withheld unless there are extra ordinary circumstances prevailing. (iv) Where it appears that a two driver shift of duty will extend beyond eleven ( 11) hours the train crews and control shall liaise regarding the provision of relief to avoid, shifts in excess of eleven (11) hours being worked. Relief will be provided to enable the train crew to be signed off at eleven ( 11) hours in accordance with S3.19.(l)(i) except in the case of an unavoidable necessity or in circumstances beyond QR 's control. (2) Remuneration (i) Remuneration for all Two driver Operations shitls of duty will be paid at ordinary time rates of pay. (ii) Hours worked in excess of eleven (11) hours per day shall be paid at the rate of time and a half for the time worked between the eleventh and twelfth hour. All work after the twcltlh hour will be paid at the rate of double time. Provided that where it is agreed that shifts be extended to twelve (12) hours, work in excess of twelve ( 12) hours will be paid at the rate of double time. (iii) All ordinary time worked by train crew in excess of 38 hours in any weekly period (excluding Saturday and Sunday time) shall be deemed to be overtime and shall be paid for at the rate of time and a half". The operative date for the proposed variation is Monday l August 1994. APPENDIX HISTORY OF '.'/EGOTIA TI ONS TWO DRIVER OPERATIONS • October 1992 - EBA agreement signed between all rail unions and QR. Implementation of two driver operations over selected corridors statewide. was a significant part of the EBA. • Between 31 October 1992 and I October 1993 - 71 /2% pay increase was awarded in anticipation that EBA initiatives would be implemented. • November 1992 - A special union/QR taskforce was established to work through how two driver operations would operate (rosters. conditions. work practice. etcetera). • November 1992 - August 1993 - Constant consultation with union representatives over 9 months. The taskforce also worked closely with representatives from workplaces around the state. -- 4 of 5 -- 934 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [12 August, 1994 • 1s t week August 1993 - The result of thi s massive discussion process was a draft of the two drive.r operations indus tr ia l agreement and implementation p lan . • IO August 19 93 - Le tt er sent to train crews statewide outlining the draft agreement and corridor imp lementat ion plans . Invitations were sent to panicipate in union/QR taskforce - led discussions at Toowoom ba, Mt Isa, Townsville, Roc khampton, Brisbane, and Emerald. • 10 September, 19 93 - AR U an d AFULE executives agreed in principle to all aspects of the two driver operation package. • 10 Se ptember 1993 - QR agreed that representatives of AR U and AFULE wou ld visit all train depots across the State to explain elements of the package and gain memb e rs support. • 22 October 199 3 - QR was advised t hat AFULE had membership ba ll ot - two driver operations draft agreement was rejected. - QR adv ised by ARU that members had margina ll y suppo rted sign ing of the agreement. • 11 November 1993 - QR states that si nce two driver operation was part of £BA agreeme nt that 71/2 % pay increase was give n for EBA implementation , the organisation had two options: Option I : Refom1 ta skforcc to work through iss ues rai.sed by unions and detennine QR union - acceptable package by 17 De cem ber. Th is was QRs prefe n-ed option. If no agreement on pac kage reached, QR wo uld proceed wi th option 2 fr om I March 1994 : Op ti on 2: Im plement t wo driver options under the provisions con tain ed in existing award and relevant train crew agreements. QR and unions ag reed to option I. WIIA T IIAPPE!\Er) TH.El\' • 17 December 199 3 - Union/QR ta skforce re ports 2 outstanding issues - lengt hs of shi ft s and train crews driving motor vehicles. • 3 February 1994 - QR/Union s meet with Industrial Comm issio ner to a tt empt to resolve ou tstand ing issue s. • 23 to 28 Febmary 1994 - Fu rthe r extensive tal ks with Industrial Re lat io ns Commission. 7 Ma rch 19 94 - Agreed that pil ots be run in both Gladstone and Townsv illc for a per io d of 2 months, leng th s of shi tis to be arbi trated. .. Disabili ty All owance" fo r p il ots on a wi thout prejudice basis ag reed. 23 March 1994 - Decision by Commissioner Fisher award ing 11 hours for pi lots. 5 - 11 May 1994 - Vis it by Commissioner Dempsey to Townsville and Gladstone to inspect progress of pi lots. 24 May 1994 - Matters of maximum shift lengths and remuneration re ferred to Arbilration by Comm iss ioner Dempsey. I June 1994 - Pre li minary hearing. 15 June 199 4 - Taskfo rce. meeting to finalise operating parameters. H .DEMPSEY. Commissioner. R. E. BECI-ILY, Commissioner. B.J. NU TTER, Commiss ion er. Appearances - Mr P. Cranitch, with him Mr G. Coughlan for Queensland Ra il. Mr G.W. Smith fo r the Australian Federated Union of Locomotive Enginemen, Queen slan d. "U nion of Employees' ·. Mr 0. Doogan. with him Mr R. Bradford for the Au stral ian Railway s Un ion of Employees Queensland Branch. Operative Dat.e: I August 1994 Decision - Two Driver Operations Re leased: I August 1994 ####################################################### 12 Au gust, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 935 -- 5 of 5 --