Sick Leave/Emergency Leave (Natural Disasters) and Overtime Dispute

The Loco Division is in dispute with NSW Trains over its refusal to pay sick leave for rostered shifts that fall on the period roster but not on the master roster (i.e. an additional or extra shift).

The union recently attended a conciliation after having to re-lodge the matter with the Fair Work Commission because NSW Trains had tried to discontinue the matter.

Traditionally, payment has always been made on the basis that it is a pre-rostered shift and is therefore known/available work; however, NSW Trains has recently decided that that they don’t want to pay additional shifts anymore and have therefore halted these payments.

The reasoning behind this is that any shift that is posted on the period roster but not on the master roster is an ‘overtime shift’ according to NSW Trains. However, it is common knowledge that what is considered an overtime shift is anything that attracts an overtime penalty on a long or short fortnight and is not an overtime shift simply because it does not appear on the master roster for a particular individual.

The simplified summary of the dispute is that the RTBU is of the view that drivers are paid as per the period roster and not the master roster, as the period roster shows all known work for that fortnight, and it goes without saying that if you do not show up for a rostered shift (even if it is only on the period roster and not the master roster), you would be disciplined accordingly.

However, there is a perception from particular individuals within NSW Trains that a history of case law and practices from other industries will lead to a ruling from the FWC that drivers will be paid as per the master roster and not the period roster. This is obviously problematic because it could potentially have the dangerous ramification of drivers coming into work when sick because they know they will not be paid if they take the day off or even lead to drivers not volunteering for more overtime shifts than necessary due to the non-payment of what the RTBU Locomotive Division considers an entitlement based on decades of custom and practice and our interpretation of the EA.

While NSW Trains recently discontinued the matter in the Fair Work Commission, the RTBU Locomotive Division will be filing again in order to have this matter heard before a Commissioner. In the interim, members are advised that the status quo applies and if any member is not paid sick leave on an excess or additional shift they should contact their local Delegate or the RTBU Head Office immediately.

NSW Trains is also enforcing this when it comes to taking special leave (specifically, natural disaster leave) and additional/extra shifts. Clause 27.8(j) states that if ‘work was available’ and you cannot travel to work due to a natural disaster (and can provide a statutory declaration to support this) then you shall get paid for the available work. All know/available work is posted on the period roster and therefore the RTBU are of the view that days not worked due to circumstances beyond an individual’s control should attract a payment – for all shifts and not just those shown on the master roster. The RTBU Locomotive Division sees this is yet another attack on Drivers which is slowly eroding the good will that is so often demonstrated by Train Crewing in order to ensure that InterCity and Regional services are not cancelled. Again, this status quo is applicable to this matter as well as the previous matter.

UPDATE

After having a brief discussion about the matter in the Commission, the RTBU Locomotive Division has requested that hearing dates be issued and that the matter proceed to an arbitration. The RTBU will provide an update on the hearing once this has occurred (with the hearing having been scheduled for 15 January 2016).