Australian Federated Union of Locomotive Employees v Aurizon Operations Limited

[2015] FWC 682

[2015] FWC 682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Federated Union of Locomotive Employees
v
Aurizon Operations Limited
(C2014/7966)

Australian Rail, Tram and Bus Union

v

Aurizon Operations Limited

(C2014/7969)

COMMISSIONER SPENCER BRISBANE, 17 APRIL 2015

Whether, in applying clause 110.4.2, ‘one trip’ for Driver Only Operations (DOO) is a trip in one direction or includes the reverse run as well.

[1] This decision relates to two separate applications in similar terms, made by the Australian Federated Union of Locomotive Employees (AFULE) and the Australian Rail, Tram and Bus Industry Union (RTBU) (the Applicants) pursuant to s.739 of the Fair Work Act 2009 (Cth)(the Act). The dispute the subject of this decision, relates to the application of clause 110.4.2 of the QR National Traincrew Enterprise Agreement 2010 (the Agreement). The Respondent to the dispute is Aurizon Operations Limited.

[2] Pursuant to the dispute resolution procedure in clause 31 of the Agreement, the parties agreed that the steps of the procedure had been discharged and an application was made to the Fair Work Commission (the Commission) as currently constituted for assistance in accordance with s.739(6) of the Act.

[3] The parties have agreed that the matter could not be resolved by conciliation and by consent, sought the arbitration of the matter, pursuant to s.739(4) of the Act and cl.31.15 of the Agreement.

[4] Directions were issued for the parties to file an agreed Question for Arbitration. By agreement between the parties, the final Question for Arbitration is as follows:

“Is the meaning of “one trip”, found in clause 110.4.2 of the QR National Traincrew Enterprise Agreement 2010, restricted to the driver only operation of a locomotive in one direction from either Callemondah to Raglan or Callemondah to Stirrat, or conversely a driver only operation in the reverse direction between those points, or does it extend to include the driver only operation of a locomotive from Callemondah to Raglan or Stirrat and back to Callemondah, or conversely a driver only operation in the reverse direction between those points?”

Relevant Provisions of legislation and the Agreement

[5] The dispute was brought pursuant to s.739 of the Act, which provides:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[6] Section 738 provides:

“738 Application of this Division

This Division applies if:

...

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

...”

[7] The dispute was brought pursuant to the following clause of the Agreement:

“31. DISPUTE PROCEDURE

...

31.5 Where the dispute pertains to the application or interpretation of this Agreement or an alleged breach of this Agreement and, where the dispute remains unresolved following conciliation FWA is authorised to resolve the dispute by private arbitration.”

[8] Clause 110 of the Agreement provides as follows:

“110. DRIVER ONLY OPERATION OF TRAINS

Definitions

110.1 Driver Only Operation (DOO) is the operation of a train when the driver is the sole, responsible operating person on the locomotive. The operation of driver only operated locomotives hauling Long Distance Air Conditioned Passenger Trains will be deemed to be DOO.

Driver Only Operations

110.2 Consultation with local and state workplace representatives will occur in accordance with the Consultation clause prior to the introduction of DOO on any section of line including yards. The consultation will include but not be limited to:

• Communications



• Signal Sighting



• Quarters and motels



• Emergency Procedures



• Loco Operating Procedures



• Train Operations Safety Systems -

110.3 The Company will continue to operate DOO where implemented at the commencement of this agreement.

110.4 In the case of the Callemondah DOO boundary, the following will apply:

110.4.1 The Callemondah depot DOO boundary is Stirrat and Raglan. This facilitates:

● Relief of Traincrew; and
● The departure of trains to alleviate congestion of the Callemondah yard.

110.4.2 Employees will only be required to complete one DOO trip in each shift.

110.4.3 The specific procedures for DOO to Stirrat and Raglan will be contained in the Callemondah depot LOP.

110.4.4 In the case of DOO for East End to Fisherman’s Landing traffic:

● The Company will supply Automatic Train Protection fitted locomotives
● Slow speed locomotives will be provided.

(emphasis added)

Extension of DOO Non-Signalled Areas (Dark Territory)

110.5 Prior to extending DOO over suitable corridors, a joint assessment of the associated operational considerations and safety risks will be conducted. The outcome of this assessment will determine the operating basis upon which DOO will be implemented.

110.6 Issues to be examined during this joint assessment will include but are not limited to:

• Train Safety



• Driver alertness/vigilance



• The availability of train stop technology for these areas including a costs/benefit analysis



• Communications



• Operating procedures



• Safe working procedures



• Emergency procedures

110.7 The abovementioned analysis will be carried out on a corridor by corridor basis involving state and local workplace representatives and the Company.

110.8 The non-signalled corridors over which the Company proposes to extend DOO will be subject to consultation.

Operational Matters - Initial Shifts of DOO

110.9 Each driver will be provided with another traincrew in a passive role for the first six (6) shifts that such driver operates a DOO locomotive/train.

110.10 Such second person will remain in the passive role except in the event of an emergency when the driver may require the second person (non-working) to provide assistance.

Partially Incapacitated Drivers

110.11 Drivers who have been certified by the Railway Medical Officer as fit to resume driving duties but not fit to carry out DOO will be provided with another traincrew provided that the illness that requires the provision of such second person is of a nonpermanent nature.

Remote Control Signalling (RCS)

110.12 Where RCS is to be installed it will be fully commissioned prior to the commencement of DOO on that section. For DOO in RCS areas a system to prevent a train passing signals at stop will be provided, except as provided for in this Agreement at the clause relating to working DOO to Raglan, Stirrat etc.

Long Distance Passenger Trains

110.13 Drivers of the Spirit of Capricorn and DOO Long Distance Air Conditioned Passenger Trains who work in excess of 260 kilometres on such trains will be provided with a meal.”

Background

[9] The Respondent provided the following background to the dispute as follows:

“In 2005, Qld Rail (QR) proposed a number of workplace reforms in exchange for an increase in in the aggregate allowance. The reforms are contained in a document Produced by the unions in 2005 titled Callemondah Train crew Package Cat 7 A- 9 that was used in negotiations with QR at the time. The negotiations concerned Project 2005 an initiative of QR to reform operations aimed at winning haulage contracts with BMA. A copy of the document is annexed to the Affidavit of Robert Sinnott.

The relevant section that deals with extension of the DOO boundaries from Callemondah appears in the 2 pages of slides marked 5. Below is an extract from the reforms.

Extension of D00 boundaries; to Stirrat and Mt. Larcom from implementation until 25 June 2006. From 26 June 2006 D00 boundaries will be Stirrat and Raglan.

This facilitates:

o Relief of train crew.
o The departure of trains to alleviate congestion of the Callemondah yard.
o Traincrew will be only required to complete one trip only per shift

A risk assessment and business instruction will be developed to ensure that safety and fatigue issues are managed effectively. Implementation of the risk assessment and business instruction is to occur in conjunction with the DOO boundary moving from Mt. Larcom to Raglan on 26 June 2006.

The phased approach for the extension of D00 to Mt. Larcom and through to Raglan is based on a requirement for the following. In the event that the DOO boundary is not extended to Raglan on 26 June 2006, the aggregate allowance will reduce to Category 9a until such time that the Raglan boundary is extended.

At a point in time that is unknown the reforms were accepted by unions as they substantively form part of the current enterprise agreement in clause 110.4. It is assumed that employees received the flagged pay increases in return for agreeing to the reforms. Regrettably no records have been located to verify this.

Following agreement the business developed a Local instruction as contemplated by sub cl 110.4.3 and conducted a risk assessment. The local instruction and risk assessment are annexed to the affidavit of Robert Sinnott.

In 2013, Aurizon began discussing the issue of DOO operations to Raglan and Stirrat return. The issue arose after a driver refused to bring back a loaded train. At the time the position of the majority of train crew and the unions were that one trip meant one leg of the journey and not a return trip. A risk assessment was conducted which identified no known risks running in both directions. However there was also an issue about whether Aurizon had rail regulator authority to run DOO services up and back or vice versa. As a result Aurizon did not press the matter.

In late 2014 another attempt was made to direct drivers to perform DOO return to Raglan and Stirrat because of the need to make the service more efficient for customers by better utilising drivers. At the time at least 2 drivers had agreed to take an unloaded train out of the yard and return with loaded services to relieve congestion in the Callemondah yard and to meet unloading paths at the port. At the request of unions a further risk assessment was completed to review working DOO out and back. However the unions disputed the company's ability to direct drivers to travel up and back to Callemondah and the matter was put in dispute.”

Background from the Applicant’s material:

[10] The Applicants explained the history to the provision as follows:

“18. Clause 110. began operation in late 2005 outside the collective agreement in operation at the time. It was part of a suite of productivity improvements agreed to in order to deliver a wage increase to traincrew working out of Callemondah Depot.

19. The Clause was then incorporated in the 2006 QR Limited Traincrew Union Collective Agreement when it came into effect, was maintained as a condition in the 2009 Agreement and was rolled over into the 2010 agreement after QR Limited was split off from Queensland Rail and privatised, Becoming QR National Pty Ltd.”

[11] The Applicant relied on evidence (outlined below) that since 2005, the practice of DOO to Raglan/Stirrat from Callemondah (or in the opposite direction) was implemented as a run from point A to B only and not a return run.

[12] On or about late October 2013, the Respondent required employees to perform runs out and back between Callemondah and Raglan or Stirrat and vice versa.

[13] The Respondent advised local Union representatives that this would become usual practice.

[14] Throughout November and December 2013, the matter was dealt with as a dispute by local representatives, with little or no involvement from the Applicants’ State offices. The dispute dissipated as the Respondent did not implement the practice after the matter was referred to the Rail Safety Regulator.

[15] The practice of rostering runs out and back between Raglan or Stirrat and Callemondah was again raised on or about early November 2014.

[16] The Applicants submitted that they had not received correspondence from the Rail Safety Regulator.

[17] Three local dispute meetings between the Respondent and the Applicants’ local representatives were held on 18 November 2014, 21 November 2014 and 24 November 2014.

[18] The Applicant submitted that as a result of those meetings, the Respondent agreed to observe the status quo of rostering runs in one direction only between Callemondah and Raglan or Stirrat, or in reverse, as well as undertaking a safety review of the practice.

[19] The Applicant submitted that a letter from the Respondent dated 26 November 2014 advised that the Respondent would be implementing the disputed practice.

[20] Consequently, on 27 November 2014, the Applicants lodged two separate applications with the Commission to deal with a dispute.

[21] The parties attended two conciliation conferences on 3 December 2014 and 11 December 2014. The parties were unable to reach a resolution through the Conciliation process and on 19 December 2014, Directions commencing the arbitration process were issued by consent. A further conference was held before the Commission. The parties subsequently confirmed in writing their agreement that the matter may be determined on the papers, and the Respondent agreed to observe the status quo of operating “trips” in only one direction, would be maintained until the determination in this matter.

Summary of the Applicants’ submissions and evidence

[22] The Applicants submitted that the subclause of primary relevance to the dispute is 110.4.2:

“Employees will only be required to complete one DOO trip in each shift.”

[23] DOO refers to “Driver Only Operation”. The Applicants further submitted that the dispute relates to the meaning of the word “trip”, and in particular, whether this is to be interpreted as a run in one direction, or to include the reverse run as well.

[24] The Applicants submitted that, the clause meant employees would only be required to complete a ‘driver only’ run once, in any shift, between point A and point B or reverse (being Raglan, Stirrat or Callemondah) and that an alternative interpretation would be inconsistent with the Agreement.

[25] To support their contention, the Applicants made reference to the meaning of the word “trip” as defined by the Standard English reference dictionary, the Oxford dictionary, as follows:

“go on a short journey’ and “a journey or excursion, especially for pleasure;”

[26] The Applicants also made further reference to the Macquarie dictionary, the Australian English standard reference dictionary which defines “trip” as:

“noun

1. a journey or voyage.

2. a journey, voyage, or run made by a boat, train, or the like, between two points.

3. a journey made for pleasure; excursion.”...

[27] The Applicants submitted that the term was a valid term in accordance with the provisions of the Act as it is a permitted matter under s.172(1) and it is not an unlawful term (s.194) or discriminatory term (s.195) and therefore its existence is consistent with the provisions of the Act. The Applicants submitted there was nothing further in the Act that could aid the interpretation of the phrase in contention.

[28] Further, the Applicants submitted that at the time of writing the Agreement, the Respondent operated within a legislative framework, where formal safety management systems were required.

[29] The Applicants submitted that, as a result of the relevant regulatory framework at the time of writing, safety, as opposed to productivity, would have been the priority of the writers.

[30] The Applicants submitted that a conservative approach to the interpretation of terms would have been the intention of those negotiating at the time.

[31] Further, the Applicants submitted that clauses 8.5 and 14 of the Agreement were relevant to the context of clause 110.4.2, as follows:

“EMPLOYMENT RELATIONSHIP

8. CONTRACT OF EMPLOYMENT

...

8.5 Any direction issued by the Company will be consistent with the Company’s
responsibilities to provide a safe and healthy working environment.

...”

“HEALTH AND SAFETY

14. OCCUPATIONAL HEALTH AND SAFETY

14.1 The parties agree that the health and safety of all employees, contractors and visitors is the primary concern of the Company. The parties to this Agreement share an ongoing commitment to promote the health, safety and welfare of all employees, contractors and visitors, and nothing in this Agreement will be designed or applied in ways that reduce or diminish this objective.

14.2 The Company is committed to taking all reasonable and practical steps to provide a safe and healthy workplace.”

[32] The Applicants submitted that the use of the phrase “return trip” where a return journey is intended, in other clauses within the Agreement, supported the argument that “trip” means a journey from point A to point B only. These clauses include:

“58. LAYING OFF IN FOREIGN QUARTERS

...

58.4 Employees will be required to work to their home depot on the return trip, provided that crews are relieved within the limitation of hours, if unable to reach their home depot.”

“112. RELIEF TRAINCREW OPERATIONS

Allowances

...

112.10 Employees on relief will be entitled to one return trip and may claim applicable motor vehicle allowances to their home depot per period of relief only where the relief period is above 2 weeks.”

(underline added)

[33] The Applicants also submitted that clause 101.4 supported their argument that “one trip” related to a journey from Station A to Station B, as follows:

“101. USE OF COMPETENT EMPLOYEES TO ASSIST TRAINCREW

...

101.4 Familarisation of the role will be provided to competent local employees (other than traincrew). This will be through one awareness trip over the section of track (station to station) supervised by the DIC / Tutor Driver to gain an understanding in what is required by the competent employee if called upon to act in this role. Refresher training will be provided locally to maintain awareness if an individual has not been used for a two year period....”

(underline added)

[34] To support its contention regarding the intention of the drafters, the Applicant submitted three statements, being those of Mr. Warren Hinds, Driver Locomotive Class II, Mr Neil King, Train Driver at Callemondah, and Mr Stewart Rach, Driver Locomotive Class II.

[35] The statement of Mr Hinds provided that, from the commencement of its operation in 2005, the clause was treated by both parties as meaning a run in a single direction out or back between Callemondah and Raglan or Stirrat, because the purpose, for which the clause was intended, was for the relief of crews and congestion in the Callemondah yard.

[36] The statement of Mr King provided that trips had always been one way and those one way trips were needed from a practical sense. Mr King stated that the increased use of the Stanwell depot was, he perceived, the motivation now for the Respondent’s desire to use two-way DOO trips.

[37] The statement of Mr Rach provided that:

‘3. Since 2005 the practice of DOO towards Raglan/Stirrat from Callemondah was implemented as a run from point A to B only to either take a train out of the yard to relieve congestion and await its rostered outgoing crew or to enable to relief of incoming crew.”

[38] Mr Rach detailed that a dispute was raised in 2013 and that he spoke to the Regulator in November 2013 and an officer informed him that the Respondent was not licensed to operate DOO in both directions, and that the dispute had completely resolved by March 2014.

[39] Mr Rach stated that the company then issued a notice stating that it has been approved to perform return journeys, and that from 10 November 2014, the trip could comprise a return trip. Mr Rach exhibited the notice to his statement. The document is entitled Key Message Board and is extracted as follows:

“...

• Aurizon operations accreditation confirms that the Department of Transport and Main Roads (DTMR) have accepted Driver Operations’ accreditation between Callemondah and Stirrat & Callemondah and Raglan



• Due to the cyclic nature of coal traffic operations one trip is defined as starting and finishing at point A



• For example Callemondah to Raglan/Stirrat and back to Callemondah or vice versa.



• Risk assessment SD-CS-GEN-RA-30 was updated and reviewed 15 August 2013

...”

[40] The Applicants further submitted that the clause, as a whole, has a regulatory purpose because a DOO crewing configuration in coal was being introduced and as the safety of traincrew and plant, as well as the coal hauled, was of paramount consideration to drafters, extra caution was directed to circumstances where there was only one driver in control of a locomotive.

[41] The Applicants submitted that the common intention of the parties, at the time the DOO provision was incorporated into the Agreement, was directed towards caution and regulation, keeping the use of Driver Only Operation on the main line to a minimum and in controlled and limited circumstances.

Summary of Respondent’s submissions and evidence

[42] The Respondent submitted that the core of the question is the meaning of "one trip" found in clause 110.4.2.

[43] The Respondent referred to principles to be applied to the interpretation of enterprise agreements as summarised by the FWC Full Bench in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd 1, which is considered below.

[44] It was submitted by the Respondent that the meaning of the words "one trip" in cl.110.4.2 creates an ambiguity in the Agreement, as it is unclear whether it means the single leg of a trip from Callemondah to Raglan or Stirrat or vice versa or contemplates a full cycle journey that returns to Callemondah after reaching Raglan or Stirrat.

[45] The Respondent also referred to the meaning of the word “trip” and the definitions found in the Collins Australian dictionary and Cambridge Online Dictionary. The Collins Australian dictionary defines the noun "trip" as follows:

“Trip n .. 1. An outward and return journey, often for a specific purpose. 2.any tour, journey or voyage.”

[46] The Cambridge dictionary online defines the word "trip" as “A journey in which you go somewhere , usually for a short time and come back again”.

[47] The Respondent submitted that, in both definitions, a trip contemplates taking a journey out from a point of departure and returning.

[48] The Respondent also referred to the word 'complete" as defined in the Cambridge online dictionary: "to make whole."

[49] It was submitted by the Respondent that, when read with the words "one trip", the words should be construed as one whole outward and return journey from Callemondah to Raglan or Stirrat.

[50] It was submitted that the only limitation the clause contemplates is that only one DOO working out and back should be worked in a shift, rather than multiple trips.

[51] The Respondent submitted that the reference in Clause 58.4 (set out above), which refers to a return trip, is to a return trip on a new shift and on a new day of operations, after a driver has had to lay off in foreign quarters. It was submitted that a return trip to Raglan or Stirrat could be completed in the same shift and on the same day given the relatively short distances and the 9 hour shift length. For these reasons, the Respondent submitted, clause 58.4 cannot be compared with the clause in issue.

[52] Further, the Respondent submitted that Clause 112.10 (also set out above), which deals with the payment of a travelling allowance for drivers returning to their home depot from a foreign depot or project where they are undertaking relief work, does not involve a paid shift or working a train service but the arrangements if a driver decides to return home on their own time during a relief period. Therefore, it was submitted, Clause 112.10 cannot be compared with the clause in issue.

[53] The Respondent also referred to the Risk Assessment. It was submitted that, if the restriction on DOO in clause 110.4.2 is for safety reasons, then the subsequent risk assessment satisfies any safety concerns, and there is no basis for driving one leg only.

[54] The Respondent submitted that a risk assessment was completed in August 2013 and plans were made as a result to operate DOO services between Callemondah and Stirrat and Raglan and return. Prior to this, it was submitted, some drivers agreed to operate services between the two locations while others refused. Aurizon submitted that it did not persist with drivers working DOO up and back from Callemondah, as there was a question over whether the company had rail authority accreditation to run trains in both directions.

[55] The Respondent submitted that in 2014, the risk assessment was reviewed after a request from the Unions to do so. The Respondent submitted that the risk assessment does not identify any adverse safety risks or controls for DOO operating as a return trip, and referred to a copy of the Risk Assessment completed in November 2014 attached to the Affidavit of Michael Simpson.

[56] In addition, the Respondent submitted, there are low risks to drivers working and provided as follows:

“• Fatigue is managed by shift lengths at 9 hours shorter than 12 hour shifts for TDO drivers;
• All rosters are FAID scored;
• Driving distances are short;
• There are track protection devices in place;
• The area is fully signalled and random timing vigilance is fitted on all locomotives”

[57] The Respondent referred to the Callemondah Train Crew Package PowerPoint presentation slides. The Respondent submitted that the 2005/2006 negotiations about the DOO proposals became terms of the enterprise agreements, and that, given they are now included in clause 110.4, the words should be read with the objective framework of facts that existed at the time.

[58] It was submitted that, in return for agreeing to the proposals on slide 5 of the presentation, which states that “traincrew will be only required to complete one trip per shift”, a risk assessment was completed that manages fatigue and safety issues; and a business instruction was completed in 2006 and annexed to the affidavit of Robert Sinnott.

[59] The Local Instruction relating to Driver Only Operation between Stirrat, Mt Larcom/Raglan and Barney Point (Including Barney Point Balloon) via Parana, states as follows:

“5. Train Operations Outside of the Mini Cycle

5.1 Callemondah to Stirrat

Trains from Callemondah/Gladstone area may be worked to Stirrat DOO. Crew changes maybe effected at change points as identified between Callemondah and Stirrat to suit operational requirements.

Trains may work in either the Up or Down direction between Stirrat and Gladstone including Barney Point.

5.2 Callemondah to Mt Larcom/Raglan

Trains from Callemondah/Gladstone area may be worked to Mt. Larcom up to the 30^th June 2006. From the 1^st July 2006 trains from Callemondah/Gladstone area may be worked to Raglan DOO. Crew changes maybe effected at change points as identified between Callemondah and Raglan to suit operational requirements.

Trains may work in either the Up or Down direction between Mt. Larcom/Raglan and Gladstone including Barney Point…”

(underline added)

[60] The Respondent submitted it was also reasonable to assume that to complete one trip per shift means a return journey from Callemondah, because the distances are short and a return trip can be completed within the drivers 9 hour shift limit and that this is what the increased pay rate compensated.

[61] In addition, it was submitted that Coal operations are cyclic in nature, so that one trip is out to the mine and back.

[62] The Respondent stated in their submissions that:

“an Operational requirement (OR) shift at Callemondah as well as throughout coal operations, is understood to be operating a train out and returning back on a train in a cyclic plan. In Callemondah it is out to a point between Stanwell and Bluff and returning on a loaded service. It is also performed on the QCL service between East End and Fisherman's Landing. Operationally it also makes sense to send a driver out to Raglan on an empty service and have them return a loaded service to the yard, that is, one trip starting and ending in the yard or vice versa.”

[63] In conclusion, the Respondent submitted that, the words "one trip" in clause 110.4.2 of the QR National Traincrew Enterprise Agreement 2010 means the completion of a cycle from the Callemondah yard to Raglan or Stirrat and return or vice versa by DOO drivers.

[64] The Respondent provided an affidavit of Mr Robert Sinnott, Service Delivery Manager for the Isaac Region employed by the Respondent. Mr Sinnott stated that he was aware that, after negotiations in 2005/2006, DOO Boundaries were extended to Raglan and Stirrat in return for a pay increase which was reflected in the Agreement. Mr Sinnottt attached a copy of the Callemondah Train Crew Package and referred to section 5 as being relevant.

[65] The relevant section is set out above in the background to the dispute, however, the below emphasis is included on the PowerPoint slide in section 5:

“Traincrew will be only required to complete one trip per shift.”

[66] Mr Sinnott stated that in 2013, a driver refused to bring back a loaded train and had to be retrieved by car. Mr Sinnott stated that he was advised by Aurizon Safety Health and Environment function that there may not be the appropriate authority of the Rail Regulator to run DOO up and back. Mr Sinnott stated that the Respondent did not proceed with running DOO up and back to Callemondah.

[67] In 2014, Mr Sinnott stated that, after advice that there was authority to run DOO service from Callemondah to Raglan and back and Callemondah to Stirrat and back, he initiated a risk assessment. Mr Sinnott attached a copy of the risk assessment to his affidavit and stated that, as there were no risks found, “ a decision was made to start DOO workings up and back to Raglan and Stirrat and a Key Message Board (KMB) was issued to management”. The Key Message Board is extracted at [39] above.

[68] The Respondent provided in evidence an affidavit of Michael Simpson, Service Delivery Manager at Callemondah. Mr Simpson stated that the maximum Driver Only (DOO) shift length is nine hours and that Drivers routinely perform multiple DOO tasks during a shift.

[69] Mr Simpson referred to the operational requirements as follows:

“The current operational requirements (OR) deployment model Is to send a TDO crew out with an empty service from Callemondah to a point between Stanwell and Bluff on the Blackwater line or to Moura and return with a loaded service that is taken to the port. Where a driver is unable to complete the full journey inside their shift limitation of hours they are relieved by a two driver crew (outside the Stirrat/Raglan boundary) or by a single driver inside the boundary. To achieve this a relief crew travels by car to the change location and the incoming crew are subsequently returned by car. This can be as self-drive or as a passenger. One routine trip for two driver operations ex Callemondah is out on an empty train and back on a loaded train.

It is an operational requirement to occasionally send an empty service from Callemondah to Raglan or Stirrat as DOO to meet a loaded service at or before one of those points and bring the service to the port .The empty service is then met by a TDO crew and driven towards the mine. This allows trains to leave the yard to alleviate congestion and better utilise available crew.

The DOO arrangements are inefficient and under utilised as more loaded services could be met at Raglan or Stirrat or at points closer to Callemondah by DOO crew. If DOO services were worked up and back driver only crews could be utilised more efficiently and significantly reduce road travel and associated risks and avoid limitation of hours breaches. The majority of drivers refuse to work both and up (empty service) and down (loaded service) based on union advice and interpretation of the EA provision.”

[70] Mr Simpson provided the following description of the arrangement:

“Currently however because of the restriction on one trip either up or down we have drivers who are rostered for 9 hours who are sent by car to bring in a train that should take one hour and we are only able to ask them to perform driver only in the yard, unload trains or do car driving out and back for the other eight hours of the shift. Alternatively it takes approximately 45 minutes to run an empty train to Raglan. If the driver is required to wait 30 minutes for the loaded service to arrive and it takes 45 minutes to drive the service back to Callemondah then the driver still has 7 hours of the shift to complete another cycle out and back. It would also be better utilisation of the drivers skills to roster them to do more than one leg of the cycle. Instead they work the remainder of the shift on a local task within the yard which excludes driving up and down to Stirrat and Raglan.”

[71] Mr Simpson referred to the risk as follows:

“There are low risks to drivers associated with the DOO shifts between the points mentioned above. Fatigue is managed by shift lengths at 9 hours that are shorter than 12 hours for TDO drivers. In addition all actual rosters are FADE scored. The driving distances are short; there are track protection devices in place; the area is fully signalled and random timing vigilance is fitted on all locomotives. The Risk Assessment completed in November 2014 has not identified any additional risks by travelling in two directions…”

[72] Mr Simpson stated that “DOO shifts would increase the flexibility available to relieve TDO crews coming to the end of their shift by sending the DOO driver out by train rather than having drivers travelling by car in both directions.”

[73] The Respondent also relied on a affidavit of Allan Twidale, the Rockhampton Deployment Manager of the Respondent. Mr Twidale stated that his understanding of Coal operations was that one trip meant a cyclic operation and that “it stands to reason that the intent in the enterprise agreement for operations between Callemondah and Raglan/Stirrat would have been cyclic”.

[74] Mr Twidale also referred to the commercial operations of the Respondent as follows:

“In addition it makes no commercial or operational sense to send a driver with a service 40 or 50 kms one way only to have them being brought back to the depot by car by another driver where they are rostered on a 9 hour shift. It is my belief (as I was not present at the negotiations) that a driver was sent driver only to one of the destinations to bring back a loaded service from the DOO boundary down to unload at the port as this could be achieved within the drivers limitation of hours.”

Relevant case authority

[75] The following case authority provides the relevant principles to be observed in interpreting clauses. The principle that terms should be given their ordinary meaning is in accordance with the majority Judgement in Project Blue Sky v ABA 2 at paragraph 69 p. 27:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.”

[76] This proposition that words should be given their ordinary meaning is further supported by the Judgement of French J in City of Wanneroo v Australian Municipal, Administrative Clerical and Services Union 3 at paragraph 53, which states:

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

[77] The contention that the terms of the Agreement should be interpreted narrowly is supported by Madgwick J’s decision in Kucks v CSR Limited 4, which states at page 184:

“The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.

Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.”

[78] Vice President Lawler in Watson & Ors v ACT Department of Disability Housing and Community Services 5 reaffirmed these principles at paragraph 15:

“In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”

[79] The relevant principles for agreement interpretation were summarised in the recent Fair Work Commission Full Bench decision of Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 6 where it was stated at paragraph 41:

“1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[80] These principles have been applied to the interpretation of clause 110.4.2.

Conclusion

[81] This dispute involves the interpretation of the words “one trip”, in the context of clause 110.4.2 of the Agreement, and whether it means a journey from A to B, or a journey from A to B and back to A, for Driver Only Operations. Specifically, whether “one trip” means a journey from Callemondah to Raglan/Stirrat, or a journey from Callemondah to Raglan/Stirrat and back to Callemondah.

[82] Clause 110.4.2 and the surrounding clauses are repeated below for ease of reference:

“110.4 In the case of the Callemondah DOO boundary, the following will apply:

110.4.1 The Callemondah depot DOO boundary is Stirrat and Raglan. This facilitates:

● Relief of Traincrew; and
● The departure of trains to alleviate congestion of the Callemondah yard.

110.4.2 Employees will only be required to complete one DOO trip in each shift.

110.4.3 The specific procedures for DOO to Stirrat and Raglan will be contained in the Callemondah depot LOP.”

[83] Both parties provided dictionary definitions that referred to the normal use of the word “trip” for both single and return journeys. The different definitions provided by the parties reflect the two uses of the term and therefore this material does not provide any definitive assistance.

[84] According to the decision of the Full Bench in Golden Cockerel, if the language of the Agreement is susceptible to more than one meaning, evidence of the surrounding circumstances will be admissible, which includes evidence of prior negotiations (to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the Agreement); notorious facts of which knowledge is to be presumed; and evidence of matters in common contemplation and constituting a common assumption.

[85] On the material, the clause relating to DOO was negotiated in 2005. At the time of the negotiations, and for a significant length of time since those negotiations, DOO has consisted of a single journey, from Callemondah to Raglan or Stirrat, or the reverse. Only recently has there been a contrary direction and only recently has a risk assessment for a return trip been completed. Prior to the direction in 2013 for a return trip, the Rail Authority Regulator had not provided a risk assessment authorising the return trips.

[86] In Golden Cockerel, the Full Bench stated “a common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.” In assessing the meaning of the language of the provision, the conduct of the parties in interpreting and utilising such is relevant.

[87] The common intention of the parties, in relation to clause 110.4.2 and the language used in the Agreement, is not obvious. A reasonable person cannot simply look at the words ‘one trip” and objectively identify whether this means one single trip or one return trip. The word “only” in the clause relates to the restriction on the number of these trips (whether single or return) per shift.

[88] The absence of the word “return” where it is used in other places in the Agreement is also relevant. The provisions in the Agreement that specifically refer to return trips are not in respect of Driver Only Operations. However, where a return trip is contemplated, the Agreement says so.

[89] Furthermore, the “business instruction” provided by Mr Sinnott, states that “trains may work in either the Up or Down direction” in relation to DOO between Callemondah and Stirrat or Raglan, providing further support for a trip in one direction rather than a circular return.

[90] Mr King stated that the need for return journeys has only arisen recently, and that at the time of the negotiations, there was no need for a return journey, and therefore it was nonsensical for there to have been an intention for the word “trip” to mean a return journey. This reasoning is consistent with and aligned to the plain wording of the clause, its use, and the conduct of the parties until recently in adopting tan interpretation of “trip” as being a single journey in one direction. The fact that DOO has involved only single journeys since the negotiations introducing the provisions must be given weight. This is particularly so, as, despite the Respondent stating that, on the wording of the clause, it was open to them for all of this time to utilise DOO as return trips, they have not endeavoured to until recently, and even then, had conceded they did not have the safety approval from the Rail Authority Regulators. That only recently the Respondent has sought to change the operations, supports the intention, and interpretation that the meaning of the words ‘one trip” when the Agreement was negotiated, meant a single journey, rather than a round trip.

[91] Whilst the DOO clause was introduced in negotiations in 2005, there is an absence of associated materials to clarify its introduction. Further, whilst the clause has operated since that time, it has operated since as a trip from A to B, not in return. The operation of a DOO undertaking a return trip was only directed in 2013, and again in 2014, which brought about this dispute by the Applicants, in opposition to this new interpretation of DOO by the Respondent. To date, DOO had only undertaken one trip in one direction per shift.

[92] The conduct of the parties has been that even if an interpretation of one trip, on a return basis, was available from 2005 or 2010, such was not utilised by the Respondent until the direction for a return trip in 2013. This was met with opposition from the majority of drivers that the use of the word “trip” in the provision, did not provide for return trips, they had not worked such, and the Rail Regulator at the time had not provided safety approval for such until 2014.

[93] Taking into account all of the matters, as per the reasons above, the phrase “one trip” as contained in clause 110.4.2 of the Agreement must be interpreted as intending a single journey, from Callemondah to Raglan or Stirrat, or alternatively from Raglan or Stirrat to Callemondah. Recent motivations of the Respondent mean they now seek return trips.

[94] The Respondent’s submission is recognised, that a restriction to one trip per shift, from point A to B, provides for an inefficient use of the time and skills of drivers. Given the practicalities of current distances and the risk assessments, there appears to be limited impediments to a return trip in practice, (apart from the restriction in the wording of clause 110.4.2 of the Agreement).

[95] Accordingly, it is clear that the Respondent’s operations now seek to use return trips and a conciliated outcome between the parties on the introduction of such is open to the parties to be achieved.

[96] The parties agreed on the following question for arbitration:

“Is the meaning of “one trip”, found in clause 110.4.2 of the QR National Traincrew Enterprise Agreement 2010, restricted to the driver only operation of a locomotive in one direction from either Callemondah to Raglan or Callemondah to Stirrat, or conversely a driver only operation in the reverse direction between those points, or does it extend to include the driver only operation of a locomotive from Callemondah to Raglan or Stirrat and back to Callemondah, or conversely a driver only operation in the reverse direction between those points?”

[97] The question for arbitration is answered as follows: the meaning of “one trip”, found in clause 110.4.2 of the QR National Traincrew Enterprise Agreement 2010, is restricted to the driver only operation of a locomotive in one direction from either Callemondah to Raglan or Callemondah to Stirrat, or conversely a driver only operation in the reverse direction between those points, and does not extend to include the driver only operation of a locomotive from Callemondah to Raglan or Stirrat and back to Callemondah, or conversely a driver only operation that includes a return trip between those points.

[98] I Order Accordingly.

COMMISSIONER

 1   [2014] FWCFB 7447

 2 (1998) 194 CLR 355

 3 (2006) 153 IR 426

 4 [1996] IRCA 166 (19 April 1996)

 5 (2008) AIRC 291

 6   [2014] FWCB 7447

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