Commissioner for Railways v Australian Railways Union of Employees, Queensland Branch and Another [1991] QIRC 15 (1991) 136 QGIG 322

322 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [9 February, 1991 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lnduotrial Re!aiwns Act 1990 s. 2.2(3)(d)(i) - application for interpretation Commissioner for Railways AND Australian Railways Union of Employees, Queensland Branch and Another fNo B412 of 1990) RAILWAY AWARD - STATE COMMbSIONER ASHWOOD 22 January 199 I Interpretation - Shunter - TraYel Time - Travel Allowance - Gladstone and Callemondah Stations - Question should be imer- preted having regard to clause 82 - Dec1s1on of Railway Interpreter is Correct. INTERPRE1 ATIO]'; This matter came before the Commission pur~uant to a reference under clause 85(2) of the Railway Award -- State. The question put and the decision of the (Railway) Interpreter were as follows:- "12797 - Clause 82(l)(a) Railway Award - State 1989 -- Travelling Time Question (submitted by Australian Railways llnion). For week ending 6th May 1990 a Gladstone Shunter was rostered to work 2.00 p.m. to 10.00 p.m. on Monday, Tuesday. Wednesday. Friday. Saturday and Sunday of such week at Callemondah. The Shunter resides at 8 Beale Street, Gladstone and is required to travel past Gladstone Station in order to take up duty at Callemondah. It is cont1:nded thal the Shunter 1s entith:d to be· paid travelling time to and from Gladstone Station and Callc- mondah. Reference is made to interpretation No. 12410 published in Weekly Notice 44/73 (8th No\en1ber 1973) as the basis for this contention. Is this contention correct'.' '\nswer No. The L'nion's wntrntion is incorrect. The Shunter's Home Station is Crladstone. On the dates in question, the Shunter was rostered to work at Callemondah; at which depot he signed on and off. Clause 82( I )(a) of the Railway Award - State provides that where an employer relieves or temporarily works at a place within an 8 kilometre radius of their home station, they arc not entitled to receive travel allowance but are entitled to actual out of pocket expenses for bus or ferry fares necessarily mcurred. Callemondah is 6 kilometres approximately from home stat1_on Gladstone. Consequently the employee is entitled to receive reimbursement for bus and ferry expenses actually rncurred m accordance with Clause 82(] )(a) of the Award. The Shunter is not entitled to travelling time."'. In commencing submissions in the matter the, Australian Railways Union of Employees, Queensland Branch (the ARU) expressed the opinion that the (Railway) Interpreter had erred in referring to 82( 1)(a) - Travelling Allowances whereas the question should be considered in accord with clause 83 - Travelling Time. fhe ARU then proceeded to make submissions relying to a sub- stantial degree on a series of previous Interpretations of this Award dating back to 19 59. The 1959 lnterpretaLion, above referred tu. appears together with a series of Railway Award interpretations by the then Industrial Court of Queensland at 54 QJG 994-1003 at !001 and details are set out below:- "2. (9546). Clause 83(1) of 1959 Award - Payment for Travelling Time - Ipswich Boilermaker Welder. Question (submitted by Boilermaker's Society of Australia). - A boilermaker, welder employed at Ipswich Railway Worhhops, home station Ipswich, and whose place of res- idence is Boon! was instructed to proceed and perform work at Commonwealth Engineering Works Rocklca. nearest railway station being Nyanda. His usual working hours at Ipswich arc 7. 30 a. m. to 12 noon and 12.45 p.m. to 4.15 p.m. He travelled on the train that left his home station Ipswich at 6.28 a.m. on the 24th November, 1958, arriving at Nyanda at 7.51 a.m. These workshops have different working times to those at Ipswich Workshops. They have only 30 minutes for lunch and cease work at 4.5 p.m. On ceasing work at 4.5 p.m. he is obliged to walk to the nearest station approximately 1 mile distant. H.e leaves Nyanda station at 4.20 p.m., arrives at Corinda at 4.38 p.m. where he waits and then travels on the first available stopping I. train, and arrives at Booval at 5.52 p.m. What travelling time is he entitled to be paid for the day? In1erpretation- The boilermaker-welder was entitled to receive travelling time on the basis of the difference between time spent travelling to and from Rocklea and that which he would normally have spent travelling to and from Ipswich Workshops. I' Decision.-- The Court agrees v.-ith the interpretation.". It was submitted for the ARU that the circumstance which prevailed in the question outlined in the 1959 interpretation were analogou5 to that in the matter before the Commission. The submissions of the ARU were supported by the Queensland Railway Employces Union of Employees. The (Railway\ lnterpreter stated that rlause 82 should be accepted as the appropriate clause in the Award to be rxammed in this matter as it had been specifically designed to cater for situations as the matter under consideration and not "the less specific clause 8~ ., j .. In considering this matter I have examined the wording of hoth clauses 82 and 83 in particular the opening sentence(s) in subrlause ( l ) in each case. Clause 82 - Trarelling .41/mrnnce "(!)(a) Employees relieving or temporarily working at a place not exceeding a radius of 8 kilometres frvm their hmne station shall not be en tilled to rccci ve allowances prescnbed in this clause . " Clause 83 - Travelling Time "(l) Wages employees and passenger attendants and pas- scn$er service supervisors travelling long distance to or from dunes shall be allowed 8 hours pay for every 24 hours traveiling.". 1 am of the opinion that the question in this particular instance should have been interpreted having regard to clanse 82. In those cirrumstanct>s the Commission agrees with the interpre- tation given by the (Railway) Interpreter. 1 he Commission has noted from the submissions of the parties that there appeared to be a d1fforence of opinion as to the need or otherwise for this employee to have travelled past Gladstone Station to go to work at Callemcmdah. Such difference does not materially affect the views of the Commission. Order accordingly. G 1\1. ASHWOOD, Commissioner. 9 February, 1991) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Appearal/CtfS:- ~fr L. Crofton for the Australian Railways Union of Employees, Queensland Branch. Mr G. Ray for the Queensland Railwa1 Employees Union of Employees. Mr R. Best as the Railway Interpreter, with him Mr G. Ch:orgc. Operative Date: 1',;/A Interpretation - Clause 82(l)(a) - Travelling Time 323 -- 1 of 1 --