Australian Railways Union of Employees, Queensland Branch v Commissioner for Railways [1991] QIRC 140 (1991) 137 QGIG 37

36 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (11 May, 1991 , ' • 11 May, 1991 ) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 37 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION I ndustria/ Relations Act 1990 s. 10.12 - application for variation Australian Railways Union of Employees, Queensland Branch AND Commissioner for Railways (No. B52 of 1991) RAILWAY AWA RD - STATE COMMISSIONER ASHWOOD 26 April 199 I Hours of Work - Cancelled Working - Rosters - Overtime - Traffic Employees - Allowance of I or 2 Hours' Pay depending on period of notice - Opposition to Claim - Cancelled working not regular feature - Arbitrated Matter - Existing provisions as related to overtime shifts provide reli ef - Proceedi ngs in pending application correct occasion to argue matter - Application Refused. DECISION By this application the Australian Railways Union of Employees, Queensland Branch (the ARU) requested the inclusion in the above Award of a new provision to be clause 29(4). The applicant req uested the provision to be as follows:- "Cancelled Working.- When an employee is advised at the employee's residence or quarters not less then two (2) hours before commencement of a rostered shift that such shift has been cancelled, such employee shall be allowed one hour's pay. When an emplo yee is informed Jess than two (2) hours before commencement of a rostered shift, that such shift has been cancelled, such employee shall be allowed two hours' pay.". The following facts we re included in the application:- .. A provision similar to that sought by this Application was inserted at Clause 29(3) of the Railway Award - State by Decision of the Commission in Case No. B384/90, etfective from 19th November 1990, which permits payment of an allowance if an employee is advised that the starting time is altered to a later time. An allowance for cancelled working is available to Trainmen under Clause 42, Sub-clause 5(b) of the Railway Award - State. Currently no Award provision {other than Clause 42(5b)) exists to compensate Traffic Grades employees who are advised that their rostered working has been cancelled. The Applicant requests that this matter be listed for Hearing on the earliest date convenient to all parties. ". The Commissioner for Railways opposed the granting of the application. In support of the granting of the application the ARU referred to a number of applications the Union had made that had been determined by the Commission as currently constituted. The appli- cations referred to were B914 of 1988, B384 of 1990 and B473 of 1990. The initial application, which was granted by the Commissio n, related to the inclusion of a provision for '·deferred sign on time" for shunters in terms previously applicable to trainmen. The other two applications, also granted by the Commission, broadened the deferred sign on time provision to apply to all "traffic grade employees" of Queensland Railways. The Union submitted that whilst the foregoing decisions made provi.sion for deferrals, provision was necessary for rostered shifts which a re cancelled. Details of such circumstances were contained in documentation from the Bowen sub-branch of the applicant Union and submitted as an exhibit. The Commission was advised that such cancellations "are relatively frequent in the Bowen area". The applicant pointed out that the Union was aware that the Commissioner for Railwa ys took the view that such circumstances were already covered by provisions contained in the Railway Award - State by clause 86(6)(b). Such clause is set out below:- "86(6){b) If an emplo yee (other than a trainman) be called out at any time and/or reports for duty as rostered, that employee shall be given at least two hours' work or two hours' pay at the rate applicable to the particular dav: Provided that this shall not apply to a regular ros te red working of less than two hours when such rostered working is not altered: P ro vided that if an employee be regularly rostered for duty on a Sunday for less than two hours, for attention to postal duties, that employee shall receive at least two hours' pay at the rate applicable to the particular day.". The Co mmission was advised that an application by the ARU to vary this clause had already been filed in the Registry. Despite the views held by the Commissioner fo r Ra il ways as to clause 86{6){b) and the application in the Registry, the ARU believed the application presently before the Commission should be granted. The Commissioner for Railways placed information before the Commission as to the background to the application. The Com- mission was advised that following indications that employees were being cancelled otf their rostered shifts and no recompense was being made to these employees who were affected by such cancel- lation, information was sought from all Districts. Information gathered from several districts indicated that there were no recorded instances of any such cancellations. Those Dis- tricts which did repon cancellations advised that such cancellations had occurred as a result of floods early in 199 I. In summary of the information gathered by Queensland Railways the following points were made:- ..( I) Where ordinary shifts were rostered and not worked due to flooding, employees whose rosters were affected actually received full payment for the day. A total of I 60 shifts were atfected. (2) The factors which led to the non-performance of work were beyond the control of the Commissioner for Railways (i.e. floods) . (3) Where overtime shifts were rostered and not wo rked, employees were not paid for the 'lost time' as it did not form part of their ordinary 38 hour week. It is felt there is no obligation on QR to pay/compensate employees for loss of overtime paymen ts . A total of 73 shifts were atfected.". The Commissioner for Railways stated that in those circumstances it was strongly argued the application should not be granted. The respondent went on to point out that cancellations were not a regular feature of "traffic employees workings" and had only occurred recently in circumstances beyond the control of the Department. As the applicant had made reference to provisions currently existing for trainmen in the Awa rd at clause 42(5), the Commissioner for Railways made a comparison between provisions in that clause as against those in the proposed clause 29{ 4) . The results of such comparison are set out:- "A comparison of proposed Clause 29(4) with Clause 42(5) highlights the inadequacies of Clause 29( 4). • There is no provision for traffic employees to be 'brought forward' to 'sign-on' at an earli er time than rostered, as set out in Clause 42( 5)(c) . • There is no provision stipulating that the allowance is payable on Saturdays, Sundays, rostered days off and Sta- tutory Holidays at the rate applicable to the day as set out in Clause 42(5)(a). • There is no provision that the allowances payable at passive rates as set out in Clause 42(5)(a).". In conclusion the Commissioner for Railways contended that the provisions of clause 86(6)(b) "were sufficient to provide relief, given the circumstances". -- 1 of 2 -- 38 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Conclusions The Commission has been reminded that "rostered workings" of employees in Queensland Railways can result in shifts being worked in ordmary hours and overtime. It has been potnted out to the Commission earlier in these pro- coc dings that where emP,loyccs had their rostered workings can- ce lled where ordinary shifts were rostercd such employees received full pay for such shifts. In the circumstances presently before the Commission I am of the opinion that the provisions of clause 86(6Xb), as they would relate to overtime shifts. provides relief for emplo}ccs wh o may be involved. The Commission believes that, as it is aware there is an ap{>lication by the ARU pending which seeks to vary clause 86(6)(b) m terms of min im um payments, then proceedings on that occasion would be the correct occasion to argue the matter cu rrently before the Commission. Such proceedings could involve that application as currently worded or in an amended form in the hght of this Decision. The application is refused. Order accordingly. Appeara 11ces:- G. M. ASHWOOD, Commissioner. Mr 0 . Doogan for the Australian Railways Union of Employees, Queensland Branch. Mr G. Sorensen and Mr P. Lucas for the Commissioner for Railways. Operative Date: N/ A Decision - Cancelled Working [l l May, 1991 II Ma y, 1991) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 39 -- 2 of 2 --