Natural Disaster leave turns out to be a real disaster

The Fair Work Commission has ruled in favour of NSW Trains concerning the payment of Special Leave and – in particular – the payment of Natural Disaster leave on book-off days.

In the particular case that went to the Fair Work Commission, the driver in question was unable to attend work due to heavy snowfall in the first week of the period. An application was made for special leave to be paid on all three days the driver was unable to attend work; however, he was later informed that one of the three days would not attract a payment on the basis that it was posted on the master roster but not the period roster, therefore rendering the shift an ‘excess shift’.

The RTBU Locomotive Division maintained that drivers work in accordance with the period roster (and not the master roster) and claim as per the period roster when filling in their timesheets. It was further argued by the RTBU that once work is posted on the period roster (and not after) it is therefore known/guaranteed work and any leave required on days that were shown as booked off on the master roster but had a shift scheduled on the same day on the period roster should be paid.

Conversely, NSW Trains claimed that the day in question was an excess or overtime shift and thus did not attract a payment for the day. This was on the basis that, while the shift was not the 11^th shift of what was a long fortnight, it led to the generation of an excess shift at the end of the fortnight and was therefore an overtime shift. This is despite the fact that the NSW Trains Enterprise Agreement 2014 states that, in Clause 27.4, special leave will be paid ‘if work was available.’

The RTBU consistently maintained that shifts that are posted on the master roster are guaranteed shifts and that once posted, it is expected that drivers attend work – even if it is, by definition, an excess or overtime shift. It was also pointed out that InterCity Drivers are, in accordance with the Drivers Rostering and Working Arrangements, obligated to leave one day open per fortnight to accept a mandatory overtime shift if required.

This dispute came about as a result of NSW Trains taking the principled view that leave is not payable on ‘excess shifts’ despite decades of custom and practice of leave having been paid on any shift that is considered pre-rostered (or posted on the period roster prior to it being posted) – what constitutes an excess shift now, as agreed by the Fair Work Commission, is one that is posted on the period roster but not on the master roster. As such, please be aware that should a natural disaster occur in the future and you are unable to attend work as a result, NSW Trains will not pay you for that shift if it is an excess shift.