2006 WAIRC 05470
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
APPLICANT
-V-
SKILLED RAIL SERVICES PTY LTD
RESPONDENT
CORAM COMMISSIONER S J KENNER
DATE MONDAY, 25 SEPTEMBER 2006
FILE NO A 5 OF 2005
CITATION NO. 2006 WAIRC 05470

Result New Award
Representation
APPLICANT MR D H SCHAPPER OF COUNSEL INSTRUCTED BY D H SCHAPPER & CO

RESPONDENT MR J BLACKBURN OF COUNSEL INSTRUCTED BY THE AUSTRALIAN MINES AND METALS ASSOCIATION


Order
HAVING heard Mr D H Schapper of counsel on behalf of the applicant and Mr J Blackburn of counsel on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby –

(1) MAKES an award to be known as the Iron Ore Production & Processing (Locomotive Drivers Rio Tinto Railway) Award 2006 in terms of the schedule hereto with effect on and from the date of this order.

(2) ORDERS that the Iron Ore Production and Processing (Engine Drivers – Skilled Rail Services) Interim Award 2006 be and is hereby cancelled.



COMMISSIONER
SCHEDULE

1. - TITLE

This award shall be known as the Iron Ore Production & Processing (Locomotive Drivers Rio Tinto Railway) Award 2006


2. - ARRANGEMENT

1. Title
2. Arrangement
3 Area and Scope
4. Contract of Service
5. Minimum Adult Award Wage
6. Aggregate Wages
7. Hours
8. Overtime
9. Annual Leave
10. Long Service Leave
11. Travel and Accommodation
12. Safety Equipment, Uniforms and Necessaries
13. Dispute Resolution
14. Named Parties to the Award


3. - AREA AND SCOPE

(1) This award shall apply to all locomotive drivers working on the railroad which forms part of the iron ore production and processing operations carried on in and around Dampier, Pannawonica, Tom Price, Paraburdoo, Marandoo and associated places and who are employed by any firm, company, enterprise or undertaking engaged in the industry of labour hire.

(2) This award shall not apply to any employee employed by Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty Ltd, Robe River Mining Company and Robe River Iron Associates.


4. - CONTRACT OF SERVICE

(1) An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training.

(2) Notice of Termination by Employer

(a) The employment of any employee (other than a casual employee) may be terminated by the following notice period, provided that an employee has not been dismissed on the grounds of gross misconduct in which case shall only be paid up to the time of dismissal.

PERIOD OF CONTINUOUS SERVICE
PERIOD OF NOTICE


Less than 1 year
1 week


1 year but less than 3 years
2 weeks


3 years but less than 5 years
3 weeks


5 years and over
4 weeks

(b) An employee who at the time of being given notice is over 45 years of age and has completed two years' continuous service with the employer, shall be entitled to one week's additional notice.

(c) Payment in lieu of the notice prescribed in paragraphs (a) and (b) of this subclause shall be made if the appropriate notice period is not given. The employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

(d) In calculating any payment in lieu of notice the employer shall pay the employee the ordinary wages for the period of notice had the employment not been terminated.

(e) Service by the employee with a business which has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance the Long Service Leave Provisions published in Volume 66 of the Western Australian Industrial Gazette at pages 1-4, as amended from time to time, shall constitute continuous service for the purpose of this clause.

(3) Notice of Termination by Employee

(a) The notice of termination required to be given by an employee shall be the same as that required of an employer, save and except that there shall be no additional notice based on the age of the employee concerned.

(b) If an employee fails to give the required notice or having given, or been given, such notice leaves before the notice expires, the employer shall have the right to withhold moneys due to the employee to a maximum amount equal to the ordinary time rate of pay for the required period of notice.

(4) Time Off During Notice Period

Where an employer has given notice of termination to an employee who has completed one month's continuous service, that employee shall, for the purpose of seeking other employment be entitled to be absent from work up to a maximum of eight ordinary hours without deduction of pay. The time off shall be taken at times that are convenient to the employee after consultation with the employer.

This subclause shall not apply to a casual employee.

(5) Statement of Employment

On termination of service a worker shall, on request, be given a certificate setting out the length of service and duties performed.

(6) Casual Employees

(a) (i) The period of notice of termination in the case of a casual employee shall be one hour.

(ii) If the required notice of termination is not given one hour's wages shall be paid by the employer or forfeited by the employee.

(7) Absence From Duty

The employer shall be under no obligation to pay for any day not worked upon which the employee is required to present for duty, except when such absence is due to leave to which the employee is entitled to take and be paid for under the provisions of this award.

(8) Standing Down of Employees

(a) (i) The employer is entitled to deduct payment for any day or part of a day on which an employee (including an apprentice) cannot be usefully employed because of industrial action by any of the unions party to this award, or by any other association or union.

(ii) If an employee is required to attend for work on any day but because of failure or shortage of electric power work is not provided, such employee shall be entitled to two hours' pay and further, where any employee commences work he/she shall be provided with four hours' employment or be paid for four hours' work.

(b) The provisions of paragraph (a) of this subclause also apply where the employee cannot be usefully employed through any cause which the employer could not reasonably have prevented but only if, and to the extent that, the employer and the union or unions concerned so agree or, in the event of disagreement, the Board of Reference so determines.

(c) Where the stoppage of work has resulted from a breakdown of the employer's machinery the Board of Reference/Commission, in determining a dispute under paragraph (b) of this subclause, shall have regard for the duration of the stoppage and the endeavours made by the employer to repair the breakdown.


5. - MINIMUM ADULT AWARD WAGE

(1) No adult employee shall be paid less than the Minimum Adult Award Wage unless otherwise provided by this clause.

(2) The Minimum Adult Award Wage for full time adult employees is $504.40 per week payable on and from 7th July 2006.

(3) The Minimum Adult Award Wage of $504.40 per week is deemed to include all arbitrated safety net adjustments from State Wage Case decisions.

(4) Unless otherwise provided in this clause adults employed as casuals, part time employees or pieceworkers or employees who are remunerated wholly on the basis of payment by result shall not be paid less than pro rata the Minimum Adult Award Wage according to the hours worked.

(5) Juniors shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision in this award to the Minimum Adult Award Wage of $504.40 per week.

(6) (a) The Minimum Adult Award Wage shall not apply to apprentices, employees engaged on traineeships or Jobskill placements or employed under the Commonwealth Government Supported Wage System or to other categories of employees who by prescription are paid less than the minimum award rate.

(b) Liberty to apply is reserved in relation to any special categories of employees not included here or otherwise in relation to the application of the Minimum Adult Award Wage.

(7) Subject to this clause the Minimum Adult Award Wage shall –

(a) apply to all work in ordinary hours.

(b) apply to the calculation of overtime and all other penalty rates, superannuation, payments during any period of paid leave and for all purposes of this award.

(8) Minimum Adult Award Wage

The rates of pay in this award include the minimum weekly wage for adult employees payable under the 2005 State Wage Case Decision. Any increase arising from the insertion of the minimum adult award wage will be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to enterprise agreements, consent awards or award variations to give effect to enterprise agreements and over award arrangements. Absorption which is contrary to the terms of an agreement is not required.

Increases under previous State Wage Case Principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset the minimum adult award wage.

(9) Adult Apprentices

(a) Notwithstanding the provisions of this clause, an apprentice, 21 years of age or over, shall not be paid less than $421.70 per week.

(b) The rate paid in paragraph (a) above is payable on superannuation and during any period of paid leave prescribed by this Award.

(c) Where in this award an additional rate is expressed as a percentage, fraction or multiple of the ordinary rate of pay, it shall be calculated upon the rate prescribed in this award for the actual year of apprenticeship.


6. - AGGREGATE WAGES

(1) The aggregate hourly rate of wage for employees to whom this award applies shall be as set out in this clause in each classification specified.

(2) A loading of 20% of the hourly rate shall be paid for each hour worked by a casual employee.

(3) The aggregate hourly rate of wage covers all payments for the performance of the work (subject to clause 8 of this award) including penalties, allowances, shift premiums and compensation for all disabilities associated with the nature and location of the work whether the employees are employed on a residential or fly in fly out basis.

(4) Classifications and Rates of Pay

Classification

Locomotive Driver Level 1-Yard Driver/Trainee Mainline Driver

An employee at this level shall perform any and all aspects of shunting and other railway work within yard limits and in and around all workshops and work as a second person on mainline trains as required

Locomotive Driver Level 2- Mainline/Construction Driver

An employee at this level shall perform all or any aspect of mainline driving on a driver only basis including work and construction trains and banking operations on the mainline as required.

Rates of Pay Per Hour


A
Roster average
42 ordinary hours per week

B
Roster average
48 ordinary hours per week

C
Roster average 56 ordinary hours per week

Locomotive Driver Level 1
29.05
33.13
37.53
Locomotive Driver Level 2
35.92
40.71
45.82

(5) Arbitrated Safety Net Adjustments

Increases to salaries, wages and allowances arising from arbitrated safety net adjustments determined by the Commission are to be absorbed into the wages prescribed by this award.


7. - HOURS

(1) Subject to clause 7(2), employees shall work a roster averaging either 42, 48 or 56 ordinary hours per week whether fly in, fly out or residential.

(2) Other rosters may be worked by agreement of the parties to this award. Given the aggregate rates of pay in clause 6 - Aggregate Wages, changes to rosters may affect the aggregate rates of wages. Adjustments are to be made in accordance with the methodology set out in Schedules 1 and 2 to this award.


8. - OVERTIME

Any hours worked in excess of the ordinary hours prescribed in clause 7 – Hours, or as otherwise agreed between the parties, shall be paid at the rate of time and one half for the first two hours and double time thereafter.


9. - ANNUAL LEAVE

(1) Five weeks paid annual leave shall be allowed for each year worked.

(2) Continuous shift employees shall be allowed a further week as annual leave, in addition to that prescribed in (1).

(3) Pro rata leave shall be paid out on termination.

(4) This clause shall not apply to casual employees.


10. - LONG SERVICE LEAVE

(1) 13 weeks paid long service leave shall be allowed for each period of 10 completed years of service.

(2) Pro rata leave shall be paid out on termination where termination occurs after more than 5 years service.


11. - TRAVEL AND ACCOMMODATION

(1) The employer shall provide and shall pay all costs associated with travel between Perth Airport and site, to and from the site and to and from the workplace.

(2) The employer shall provide and pay all costs associated with the employee’s accommodation whilst at site and the meals of the employee.

(3) This clause shall only apply to fly in fly out employees.


12. - SAFETY EQUIPMENT, UNIFORMS AND NECESSARIES

The employer shall, at its own cost, provide all necessary safety gear, uniforms and other things necessary for the employee to fulfil his duties.


13. - DISPUTE RESOLUTION

(1) In the case of any questions, disputes or difficulties arising under this award, the employer and employee(s) are to confer amongst themselves and make reasonable attempts to resolve any such questions, disputes or difficulties.

(2) In the event the employer and employee(s) are not able to resolve any questions, disputes or difficulties having complied with sub clause (1) above either may refer the matter to the Western Australian Industrial Relations Commission.


14. – NAMED PARTIES TO THE AWARD

The parties to this award are:

The Construction, Forestry, Mining & Energy Union of Workers

Skilled Rail Services Pty Ltd


SCHEDULE 1




Comparison of aggregate wage for
38, 42, 48 and 56 hour week


42 hours = 38 ordinary hours
+ 4 hours @ 2 x (= 8 hours)

= 46 hours pay (for a 42 hour week)

Hourly rate = 46/42 = 1.0952

i.e. a properly constructed
aggregate hourly rate would
include a loading of 9.52%
for the overtime incorporated
as part of the roster
48 hours = 38 ordinary hours
+10 hours @ 2 x (= 20 hours)

= 58 hours pay (for a 48 hour week)

Hourly rate = 58/48 = 1.2083

i.e. the BHPB aggregate hourly rate
may be taken to include a loading
of 20.83% for the overtime
incorporated as part of the 48 hour
roster
56 hours = 38 ordinary hours
+ 18 hours @ 2 x (= 36 hours)

= 74 hours pay (for a 56 hour week)

Hourly rate = 74/56 = 1.3214

i.e. a properly constructed aggregate
hourly rate would include a
loading of 32.14% for the
overtime incorporated as part of
the roster




SCHEDULE 2


(Note: This is taken from the Mining- Rio Tinto Award 2004 and is to be used as a methodology guide only for the purposes of cl 6-Aggregate Wages and cl 7-Hours of this award)


Event Type

Shift Length
(Hours)

Payment per
night
Payment per
afternoon
Payment per
Weekend
Payment per public
Holiday
12
$56.35
Not Applicable
$204.90
$256.13
10
$46.96
$35.21
$170.75
$213.44
8
$37.57
$28.17
$136.60
$170.15

The aggregate wages in this award have been adjusted to compensate for work done on nights, weekends and public holidays. This is based on three components:

· The average number of nights and/or afternoons worked as allocated by the roster pattern;
· The average number of weekends worked as allocated by the roster pattern; and
· The average number of public holidays worked as allocated by the roster pattern.

Allowance is made according to the average number of above events that in a roster pattern per annum. The formula for calculating this payment is:

(#Nights x Payment per night) + (#Afternoons x Payment per Afternoon) + (#Weekends x Payment per weekend) + (#Public Holidays x Payment per Public Holidays)

The average number of any particular event occurring is calculated as follows:

NIGHTS

# of Nights worked per cycle* / Total days in the cycle x 365.25
WEEKENDS

# of Shifts worked per *cycle / Total days in the cycle x 52.18
Applies only to rosters where work on Saturday and/or Sunday is required
AFTERNOONS

# of Afternoons worked per cycle* / Total days in the cycle x 365.25
PUBLIC HOLIDAYS

# of shifts worked per *cycle / Total days in the cycle x 10 Applies only to rosters where work on Public Holidays is required

*Cycle = shortest period of time in which the roster pattern repeats.

“Nights”:
· = a 12 hour shift where the majority of hours falls between 1800 hours and 0600 hours the following day.
· = a 10 hour shift commencing at or after 1900 hours on any given day.
· = an 8 hour shift commencing at or after 2000 hours on any given day.

“Afternoon”
· = No Afternoon shift applies for 12 hour shifts.
· = a 10 hour shift that commences at or after 1100 hours but before 1900 hours on any given day.
· = an 8 hour shift that commences at or after 1200 hours but before 2000 hours on any given day.

Example

It has been proposed that Crew ‘A’ move to a 12 hour shift, 48 hour a week roster. The roster pattern is 3 Days 3 Nights 6 Off 3 Days 3 Night 3 Off.

The average Night is 6 / 21 x 365.25 = 104.36 (Rounded to 105) 105 x $56.35.00 = $5,916.75

The average Weekend is 12 / 21 x 52.18 = 29.82 (Rounded to 30) 30 x $204.90 = $6,147.00

The average Public Holiday is 12 / 21 x 10 = 5.71 (Rounded to 6) 6 x $256.13 = $1,536.78

Total Shift Payment for the proposed roster will be $13,600.53