Australian Railways Union of Employees, Queensland Branch v Commissioner for Railways [1991] QIRC 233 (1991) 137 QGIG 288

f . 288 QUEENSLAN D GOVERN ME NT INDUSTRIAL GAZETTE [29 June, 199 1 QUEENSLAND INDUSTRIAL REI.A TIONS COMMISSION bldus1ria/ Relations Ac1 1990-1991 s. I 0. 12 - application for vari.ation Australian Railways Union of Employees, Queensland Branch AND Commissioner for Railways ( No. B85 of 199/J RAILWAY AW ARD - STATE COMMISSIONER FISHER 17 June 1991 Passive Duty - Call-outs - Rosters - Rostered Duty - Admin- is trat i ve Arrangements - Cancelled Shifts - Sufficient Notice - Arbitrated Matter - Part ie s to Confer and Advise Commission when Discussions have been Exhausted. DECISION This is an application by the Australian Railways Union of Employ- ees, Queensland Branch (ARU) to delete clauses 86(6)(a) of the Railway Award - State and to insert a new provision for the payment of passive duty. The application also seeks to delete clause 86(6)(b) and to insert new provisions setting out the payment for special call-outs, reporting for duty as rostered and when notified that not required for duty as rostered. Consequential variations to clauses 25(7), 52(4), 60(4) and 67(3) become necessary if the Commission grants the application. During the hearing the Commission was advised that Queensland Railways (QR) had no objection to the application insofar as clause 86(6)(a) and clause 86(6)(b)(i) and (ii) (passive duty, special call- outs and report for duty as rostered) were concerned. QR also offered no objection to the deletion of the other subclauses men- tioned above. The C omm ission was informed that these pans of the appl icati on reflected a long standing administrative arrangement between the parties. At the conclusion of the hearing, the Commission indicated that, in the li~t of the submissions made and, particular ly in the face of no obJection by QR, the variations as sought to cla uses 86(6)(a) and 86(6 )(b}(i) and (ii) (as amended) wou ld be made and clauses 25 (7), 52(4), 60(4) and 67(3) would be deleted operative from 30 May 19 9 i. The Commission dec.ided to reserve it.s decision on the proposed new subclause 86(6)(b)(iii). To this part of the application, QR adopted an attitude of facts and factors. This current appli cation follows a similar appl ication made by the ARU (Case No. B52 of 1991) which was heard and determined by Commissioner Ashwood earlier this yea r. That appl ication sought to in sert a new provision to clause 29( 4) specifying payment fo r cancelled workrng for Traffic Employees. It was opposed by the Commissioner for Railways. In refusing the application, the Commission said:- " ln the circumstances presently before the Co mm ission I am of the opinion that the provisions of clause 86(6)(b), as they would relate to overti me shifts, provides relief for employees who may be involved. The Com mission believes that, as it is aware there is an appl ication by the ARU pending which seeks to varv clause 86(6 ){b) in terms of minimurr payments, then proceedings on that occasion would be the ;orrect occasion to argue the matter currently before the Commission. Such proceedings could involve that application as current!; worded or in an amended form in the light of this Deci•JOn.". (137 QGIG 37 at 38) In the li gh t of these comments by the Commission, the ARU amended its application (No. B85 of l 99 1). In support of the application to insert clause 86(b)(i ii ), the ARU trave rsed decisions of the Commission which went to similar provisions. These were B9 I4 of 1988, B384 of 1990 and B473 of 19 90. The AR U submitted that, as a resu lt of the variations to the Awa rd from the first two aforementioned appl ications, the in iquitous position which prevailed in favo ur of trainmen con- cerning paymen t for deferred sign on time had been addressed. According to the AR U:- ... a serious problem still prevails and it is considered by th is un ion that this problem has to be addressed today. That is, that if traffic grade employees of Queensland Ra il- ways receive notification at home that their shift book on time has been altered, they will receive either one or two hours payment, dependent upon what time period of notice has been given. But should they be advised at home that their rostered shift has been cancelled, they will receive no paym en t whatso- ever.". (p 9 of transcript) The ARU went on to outline the disabilities that an employee would incur in the even t of cancellation of working. In addition, the ARU tendered documentation detailing instances of cancella- tions of rostered shifts in the Bowen area. The ARU also advised that similar problems had occurred both in Toowoomba and Maryborough but was unable to put precise details before the Commission. The ARU stressed that instances where employees were advised at home that they were not required for rostered duty were rare, but submitted this should not prevent the Commission from granting the application. The Commission was referred to a decision by Comm issioner Ashwood in Case B9 l 4 of I 988 where he said:- "The fact that such deferrals only occur on limited occasions in no way detracts from the right of the applicant to seek relief" . (131 QGIG 87 4-5) The AR U subm itted that these comments applied equally to the situation current ly before the Commission. In response, the Commissioner for Railways commented on the documentation tendered by the ARU concerning the instances where cancelled shifts had occurred in the Bowen area. The fo l- lowing points were made in respect to cancelled shifts in December 1990 and Ja nuary 199 l which occurred as a result of floods. I. Where ordinary shifts were rostered and not worked due to flooding, employees whose rosters were affected actually received full payment for the day. 2. Where overtime shifts were rostered and not worked, employees were not paid for "lost time" as it did not form part of their ordinary 38 hour week. (p 14 of transcript) In relation to shifts cancelled in Bowen in March l99l , the Commissioner for Railways had this to say:- .. I. The workings on Sunday 17 March and 31 March I 99 1 were not part of the ordinary rostered shifts for the weeks in question (i.e. they are not incidental 10 the 38 hour week). 2. The shifts were ovenime shifts which did not form part of t he weekly roster. The employees affected were advised on Friday prior to the Sunday in question that they would be required to work on Sunday.". (p 15 of transcript) The employees concerned were notified their overtime shifts were cancelled more than 4 hours prior to the rostered commencement time on 17 March 1991 and more than 11 hours prior to the rostered commencement time on 3 1 March 1991. The Commissioner for Rai lways submitted that similar incidents had not occu rred outside of Bowen. Further, only limited and infrequent occurrences of cancelled shifts had occurred at Bowen. The Commission was advised that the Commissioner for Railways had investigated the situation at Bowen and had been given assu rances that similar situations were unlikely to arise there in the future. The Commissioner for Rai lwavs was unable to shed any light on the situations to which the· ARU had referred at Maryborough and Toowoomba. In conclusion, the Commissioner for Railways submitted:- (I) there is no evidence that cancellations are occurring in other areas of rail operations which would warrant the insertion of clause 86(6)(b)(iii) in the General - All Employ- ees sec tion of the Railway Award - State; (2) the shifts concerned did not form pan of t he rostcred wo rking sh i fts for the wee ks concerned and should be regarded as "call-outs"; 29 June, 199 1] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (3) there is no additional provision in the proposed clause 86(6)(b)(iii) setting out at what percentage payment 1s to be made for the one hour or two hours and whether or not It shall be counted in the day's work for overtime purposes. (p l 6 of transcript) Co nclusions It is clear from the submissions of the ARU that the evidence relied upon to suppart their application is the circumstances which arose in December 1990, January 1991 and March 1991. The Commission is also aware that industrial disputation was threat- ened following the Commission's decision in B 52 of I99 1. The Commission accepts the argument that, where employees have been rostered for shifts which form part of their ordmary weekly hours and those shifts are cancelled by the Employer prior to the rostered commencement time, then employees could be disadvan- taged. Where this has occurred in the past (e.g. December 1990, January 1991) the actions of QR demonstrate that employees have not suffered financial loss. The Commission would expect that, should ordinary shifts be cancelled in the future by the Employer, then QR's position would remain unchanged. The situation concerning the cancellation of rostered overtime shifts needs to be <.: :_tineuished. Where an employee has been rostered to perform overtime and is notified within a_reasonable period at their residen ce or quarters that such overtime 1s cancelled, then payment would not seem to be warran~ed. Howe:ver, where the notification of a cancelled rostered overtime shift 1s received close to the commencement of such shift, then employees should receive some measure of compensation for t he inconvenience caused. The situations outlined above should be further differentiated from a call-out which connotes that no prior warni ng to perform overtime has been given. The evidence before the Commission shows the problem of can- celled shifts is not widespread. Indeed, the only specific circum- stances which have been raised relate to the Traffic Grades at Bowen and, in respect of these, only two occasions are especi.ally relevant to the consideration of cancelled overtime shifts. In light of my comments above, I believe that sufficient notice was given on 31 March 1991 and have difficulty accepting that employees would have been particularly inconvenienced. Instances such as that which occurred on 17 March 1991 may warrant further consideration. I am not disposed to propose any retrospective payment for the cancelled overtime shifts on that day. In the absence of evidence that genuine problems exist across the whole of QR and wi thout beini fully aware of the ramifications of such action the Commission 1s reluctant to place any provts1ons in the Genera\ - All Employees Section of the Award relat ing to payment when an employee is no tified at their residence that attendance for duty is not required. The Commi ssion also accepts as valid the concerns raised by the Commissioner for Rai lways in point (3) of the concludi ng argu- ments above. Further, the Co mmission considers that, where Traffic employees are called into work overtime which was not part. of their roster, then payments for deferred ume or cancelled shifts could not be expected. Accordingly, the Commission directs the parties to confer on the matters raised in these conclusions with a view to ach1evmg a solution. The Commission will relist the matter for further hearing after advice from the parties that discussions have been exhausted. Order accordingly. G.K. FISHER, Commissioner. A.ppearances:- Mr 0 . Doogan, with him Mr J. Egerton, for t he Australian Railways Union of E mployees, Queensland Branch (ARU). Mr G. Sorrense.n, with him .Mr G. George, for the Commissioner for Railways (QR). Date of Operation: N/ A Decision - Payment of Passive Duty 289 -- 1 of 1 --