Australian Municipal, Administrative, Clerical and Services Union & Australian Rail, Tram and Bus Industry Union v Sydney Trains & NSW Trains
[2021] FWCFB 6010
•7 OCTOBER 2021
| [2021] FWCFB 6010 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Municipal, Administrative, Clerical and Services Union & Australian Rail, Tram and Bus Industry Union
v
Sydney Trains & NSW Trains
(C2021/4516; C2021/4518; C2021/4519; C2021/4521)
VICE PRESIDENT HATCHER | SYDNEY, 7 OCTOBER 2021 |
Appeal against decision [2021] FWC 4039 of Deputy President Bull at Sydney on 16 July 2021 in matters C2021/2813, C2021/2817, C2021/2821 and C2021/2823.
Introduction and background
[1] In May 2021, the Australian Rail, Tram and Bus Industry Union and the Australian Municipal, Administrative, Clerical and Services Union (together “the Appellants”) each lodged two applications under s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute in accordance with the dispute settlement terms of the Sydney Trains Enterprise Agreement 2018 and the NSW Trains Enterprise Agreement 2018 (Agreements). The terms of the Agreements are in all material respects the same, as is the subject matters of the disputes as disclosed in the applications.
[2] Sydney Trains and NSW Trains (together “the Respondents”) are corporations and NSW Government agencies constituted by ss 36 and 37 of the Transport Administration Act 1988 (NSW) (TA Act). Each entity is covered by the agreement bearing its name.
[3] Transport for NSW (TfNSW) is a corporation and NSW Government agency constituted by s 3C of the TA Act. For the purpose of exercising its functions, TfNSW has power pursuant to s 3G of the TA Act to give directions to each of the Appellants in relation to the exercise of their functions. In managing and controlling the affairs of the Appellants, the Chief Executive of each, must do so in accordance with any directions of TfNSW under s 3G.1
[4] In September 2020, the Respondents commenced a corporate function review following a decision by TfNSW to achieve an integrated approach to corporate functions in various transport authorities. Relevantly, TfNSW decided that it will perform certain corporate functions performed internally by the Respondents. Consequently, some functions would no longer be performed by some of the Appellants’ employees and certain roles or jobs will no longer be required to be performed. In other words, some of the affected employees performing roles or jobs relating to the Respondents’ corporate functions might have their employment terminated on redundancy grounds.
[5] Apart from consultation obligations and notice of termination provisions, neither of the Agreements contain any provisions dealing with redundancy. Such redundancy ‘obligations’ as may exist arise under a Redundancy and Redeployment Procedure with which the Respondents say they will comply2 and a deed made between the Respondents and several registered organisations including the Appellants.3
[6] The Agreements have passed their nominal expiry dates (1 May 2021) and the aforementioned deed terminates on the date that the Agreements are replaced by another enterprise agreement.4
[7] Clause 7.3 of each Agreement provides for consultation about workplace change. The consultation process provides, inter alia, for discussions with affected employees (and/or where relevant, the Appellants) about the effects of the changes on employees concerned and measures proposed to avoid or otherwise minimise any possible adverse impact on affected employees.
[8] Clause 7.4 of each Agreement permits matters that cannot be resolved through the consultative process to be dealt in accordance with the dispute settlement procedure, which is found in clause 8 of the Agreements.
[9] During the consultative process a dispute arose over the measures proposed by the Respondents to avoid or otherwise minimise any possible adverse impact on affected employees. The Appellants maintained that the measures proposed were inadequate and they raised other measures which they contended the Respondents should implement to minimise any possible adverse impact on affected employees. The dispute over the adequacy of the measures was not resolved through the consultative process. This dispute, amongst other matters, was processed through the dispute settlement procedure and became the subject of the applications made by the Appellants to the Commission.
[10] Several affected employees who held the positions identified as redundant were (and more employees will be) offered positions with TfNSW but on different terms and conditions of employment. Some of the terms and conditions of employment offered are more beneficial and others less so. No employee who is offered a position with TfNSW will be forced to accept a transfer. Affected employees who accept a TfNSW offer of employment will resign their employment with the relevant Respondent and will take up employment at TfNSW. Affected employees who do not accept a TfNSW offer will have their rights and entitlements determined, inter alia, in accordance with the earlier mentioned procedure and deed.
[11] It was uncontroversial that the Agreements would not transfer pursuant to the transfer of business provision of the FW Act because TfNSW is not a national system employer. The determination sought by the Appellants that payments be made by the Respondent was said to be justified as compensation for the loss of certain employment conditions because of the transfer to TfNSW. The conditions were said to relate to the loss of redundancy benefits, travel entitlements and annual picnic day entitlements.
[12] In the Commission, the Appellants sought determinations that the Respondents make certain payments to employees whose positions were made redundant with the Respondents and transferred to TfNSW. The substance of the determinations sought was for orders that the Respondents provide the employees who accept a TfNSW offer of employment with:
• Nine months’ pay in lieu of the six month implementation period and the three month notice period under the deed;
• An employment assistance grant in the sum of $3,000;
• Five days’ pay in lieu of picnic days for a five-year period; and
• Employee travel entitlements in the sum of $7,800 being the equivalent of free intercity travel on Sydney Trains and NSW TrainLink (under which NSW Trains trades) services for a three year period.5
[13] By decision published on 16 July 20216, Deputy President Bull dismissed the applications on two bases. First, because the Appellants’ claims sought greater benefits than that for which the Agreements provided and could not be entertained by the Commission. This was because the outcomes sought were not permitted by s 739(5) of the FW Act as they would be inconsistent with the fair work instruments (the Agreements) that apply.7 Second, the Agreements’ no extra claims provisions were an insurmountable barrier to the granting of the Appellants’ claims.8
[14] By their notices of appeal lodged on 4 August 2021 the Appellants apply for permission to appeal, and if granted appeal that decision. The question raised by their appeals is, put simply, whether there is power to award, by arbitration, the orders sought by the appellant unions pursuant to clauses 7.4 and 8 of the Agreements given the constraints of the ‘no extra claims’ provision in clause 13, and/or s 739(5) of the FW Act. We agree with the Deputy President that the appellants’ claimed orders are not permitted by the ‘no extra claims’ provision.
Grounds of appeal
[15] Each of the four appeal notices lodged contain the same substantive appeal grounds. In essence the first two appeal grounds contend the Deputy President erred in concluding that the Appellants’ claims could not be awarded because the benefits sought were in excess of entitlements under the Agreements; were inconsistent with the Agreements; and so could not be the subject of a decision because of s 739(5) of the FW Act. This was because:
• The dispute settlement procedures of the Agreements permitted arbitration to resolve the disputes between the parties. Arbitration contemplates the creation of new rights of the kind sought by the Appellants. The creation of new rights was consistent with the dispute settlement procedures in the Agreements; and
• The consultation provisions of the Agreements require the Respondents to discuss measures to avoid or minimise the adverse impact of workplace change on affected employees and contemplate disagreements about matters that could not be resolved by consultation and provided for such matters to be dealt with in accordance with the dispute settlement procedure. There remained a dispute about measures to be taken to avoid or minimise the adverse impacts of the workplace change. The Agreements provided that such disagreements be resolved by private arbitration and so arbitrating the Appellants’ claims was consistent with the Agreements.
[16] The third appeal ground contends that the Deputy President erred in concluding the Agreements’ no extra claims provisions presented an insurmountable barrier to granting the Appellants’ claims. This was because clause 7.4 of the Agreements contemplated that disagreements about matters that could not be resolved during discussions about workplace change could be dealt with under the dispute settlement procedure including by arbitration. The claims made by the Appellants sought to have the disagreement resolved by arbitration and so the claims were contemplated by the Agreements and were not extra claims.
The decision below
[17] The background to the disputes and a summary of the evidence and respective submissions of the parties is set out at [1]-[39] of the decision. No issue is taken by the Appellants about the matters therein set out. At [40]-[53] of the decision the Deputy President considers the operation of s 739(5) of the FW Act on his capacity make a decision granting the Appellant’s claims. The Deputy President concludes:
“[53]As the Unions’ claim seeks a benefit greater than that provided by the Agreements it cannot be entertained by the Commission. The outcomes sought are not permitted to be awarded by the Commission as per s.739 (5) of the Act as they would be inconsistent with the fair work instruments that applies.” 9
[18] The essential reasoning underpinning the conclusion is set out in the decision as follows:
“[45] In exercising its powers as a private arbitrator under the dispute procedure, the Commission must be cognisant of any legislative curtailment of its decision making. Sub section 739(5) curtails the Commission’s role in determining a dispute referred to it via a dispute settlement procedure in an industrial instrument to the extent that any decision must not be inconsistent with the referring industrial instrument. To do otherwise would be to provide entitlements or rights not otherwise provided for in the industrial instrument.
[46] The ‘orders’ sought are not benefits that are set out in the Agreements.
[47] On resignation of employment, the Agreement benefits do not provide for the payment of nine months’ salary or any of the other benefits sought. As the Full bench held in Srikumar Arampamoorthy v Ausgrid Management Pty Ltd T/A Ausgrid where a claim for $8,000 for outplacement support had been made via the dispute settlement procedure, as it was in excess of the enterprise agreement terms and conditions, it was therefore inconsistent with the agreement within the meaning of s.739(5) and not within the power of the Commission to grant.
[48] The Commission does not accept as sustainable the Unions’ argument that as the Agreements’ consultative provisions provide that as unresolved matters are to be dealt with under the dispute settling procedure that there is no inconsistency with the Agreements should the Commission grant the remedy sought.
[49] The contention put forward is that the respondents refused to take any measures themselves to avoid or mitigate the adverse impacts of the restructure and that the matter that requires resolution is whether they should take further steps.
[50] The relevant obligation on the respondents under the consultative terms of the Agreements do not oblige the respondents to do any more than meet with and discuss measures proposed to avoid or otherwise minimise any possible adverse impact. The evidence was that through the respondent’s discussions with TfNSW some of the ‘adverse impacts’ will be minimised.
[51] It was submitted on behalf of the Unions that it is ‘not assumed’ that the respondents must avoid or minimize the adverse effects of the restructure, but that “they should do so.” In the Commission’s view, whether the respondents ‘should do so’ takes the matter no further in avoiding the restraint of s.739(5).
[52] As there is no right to obtain any non-agreed measure, the measures now sought by the Unions cannot become entitlements to be determined through the dispute resolution clause and not be subject to s.739(5) of the Act. The Unions’ claim is not a case of determining a right under the Agreements or interpreting the meaning of any particular clause of the Agreements.”10 [Endnotes omitted]
[19] Next the Deputy President considers the operation of the no extra claims provisions of the Agreements and concludes at [60] of the decision that “the Agreements’ no extra claims clause is also an insurmountable barrier to the granting of the Unions’ claim”. The reasoning supporting this conclusion is set out in the decision as follows:
“[54] At clause 13 of the Agreements is a provision titled No Extra Claims other than in accordance with this Agreement which is stated to apply to the parties during the life of the Agreements. For the purposes of this matter the relevant provision is sub clause 13.1(b) which, states:
‘(b) except in accordance with the terms of Clause 12, shall make no extra claims for any changes in remuneration or conditions of employment;’
[55] The specified exception in accordance with clause 12 has no application to the Unions’ claim in this dispute.
[56] The Commission has previously held that the no extra claims clause of the Agreements is an enforceable term and nothing has been put to alter this conclusion. What is said by the Unions is that there is nothing in the ‘no extra claims’ clause which prevents the Commission making the determination sought as the outcome requested would be consistent with the recognition of sub clause 13.1(a) which states the parties:
‘will continue to recognise the Employer’s managerial prerogative to propose and implement change in compliance with this Agreement.’
[57] The Unions’ submission is prefaced on the basis that sub clause 7.4 permits the resolution of unresolved matters arising out of consultation (clause 7 Consultative Arrangements) being dealt with under the disputes settlement procedure.
[58] It is also put that there has not been a claim for a change in remuneration or conditions but rather a claim for the respondents to take measures to avoid or otherwise minimise any possible adverse impact of the restructure. Despite the manner in which the Unions’ claim is characterised, it cannot be viewed as anything other than a claim for an additional condition of employment for the affected employees upon resignation and accepting a position offered by TfNSW.
[59] If the Unions’ argument was to be accepted, the wording of the Agreements’ no extra claims or consultative clauses would need to have been cast in a manner where an exception to the otherwise unambiguous wording of clause 13 No Extra Claims other than in accordance with this Agreement was readily apparent. As it currently reads the clause has application to all conditions of employment under the Agreements other than where it is stated not to.
. . .
[61] The reference at sub clause 7.4 to matters not resolved through the consultative process being dealt with in accordance with the dispute procedure does not elevate such unresolved matters arising from this process into a special category of dispute not encumbered by the no extra claims clause . . .”11 [Endnotes omitted]
Consideration
Permission to appeal
[20] We consider the appeals raise questions of general application about the operation of s 739(5) of the FW Act and questions of broad application about the proper construction of various provisions of the Agreements extending beyond the immediate inter partes disputes. We are therefore persuaded that it is in the public interest for permission to appeal to be granted in each case.
[21] It is convenient to commence with ground 3 of the notices of appeal.
Ground 3
[22] The essential contention advanced by the Appellants under this ground of appeal is that the no extra claims provisions in clause 13 of the Agreements did not prevent the relief they sought being granted in the arbitration because the claims made were not extra claims. This was because clause 7 of the Agreements requires that where workplace change is proposed the parties will consult on measures to avoid or otherwise minimise any possible adverse impact on affected employees. The Appellants contend that such measures may involve the provision of additional payments or other benefits not provided for in the Agreements and clause 7.4 contemplates that matters not resolved through the consultative process be dealt with under the dispute settlement procedure, which includes arbitration. The clause thereby contemplates arbitration on proposals to provide enhanced benefits in the circumstances of workplace change and thus the additional benefits sought are not extra claims.
[23] The Respondents contend that the effect of clause 13.1 of the Agreements is to prohibit claims of the kind sought by the Appellants from being pressed and that the Deputy President’s construction of the no extra claims provisions and his conclusion accord entirely with the orthodox approach to interpreting enterprise agreements. The Respondents contend that clause 13 expressly provides that it covered the field and is sufficient to dispose of the contention that the claims advanced are not “extra claims” in the sense of being additional to the matters already provided for in the Agreements. There is no contemplation in the Agreements that the particular claims made by the Appellants could be pressed.
[24] The resolution of this ground of appeal turns on the proper construction of several provisions of the Agreements.
[25] Clause 7 of the Agreements deals with consultation and relevantly provides:
7. CONSULTATIVE PROCESS
7.1. Consultation will take place at two levels within the Employer's organisation:
(a) Peak Level - a regular forum that will meet at least quarterly will be established to provide consultation regarding matters which have an organisational-wide impact or implications. This forum will include representation from senior management and one nominee of each of the Union parties to this Agreement; and
(b) Local Level - shall take place with the affected Employee(s) or through local consultative committees and working parties established as and when required. Such committees include representation from local management and Employee representatives nominated or elected by the affected workforce.
7.2. Issues subject to consultation
Issues subject to consultation may include, but are not limited to the following:
(a) changes in the composition, operation, location or size of the workforce, or in the duties and skills required; the elimination or reduction of job opportunities;
(b) alterations to hours of work;
(c) the restructuring of jobs and the consequent need for retraining, training, transfer, or secondment of Employees to other work;
(d) changes to classification structures or position descriptions applying to a job or jobs; and
(e) changes to the operational structure of the Employer.
7.3. Consultative Arrangements
The Employer will consult with Employees when there is a proposed change that will impact upon the working arrangements of the Employees. Consultation shall be conducted in good faith with reasonable time for the Employees, Union(s) and their members to respond to the proposed changes.
When a change is proposed that will impact upon the working arrangements of Employees, the Employer will communicate the proposed change to the affected Employees and Employee Representatives.
(a) The Employer will provide relevant information about:
i. The proposed change;
ii. Any effects on the Employees (including workload changes); and
iii. The rationale for the proposed changes based on business needs.
(b) The Employer will meet with the affected Employees and/or their Union Representative(s) and discuss the effects of the changes on the Employee(s) concerned and measures proposed to avoid or otherwise minimise any possible adverse impact on affected Employees.
(c) The Employee(s) will be given an opportunity to provide input and discuss the proposed change with their Union Representative(s) to consider the change and respond.
(d) The Employer will respond to any Employee feedback.
(e) Where local consultative committees meet at a regular forum the meeting notice and any agenda shall be provided to representatives on that committee at least one week prior to the meeting.
(f) Where the Employer proposes the introduction of a new policy/procedure or a change to an existing policy/procedure that will impact on employees, the Employer shall in the first instance provide a copy to the nominated representative of each Union for review.
7.4. Unresolved Matters
Where matters cannot be resolved through the consultative process the dispute will be dealt with in accordance with the Dispute Settlement Procedure at Clause 8 of this Agreement.
[26] Clause 7.4 of the Agreements clearly permits matters raised during the consultative process which could not be resolved through that process to be dealt with in accordance with the dispute settlement procedure, which includes by arbitration. Subject to what follows further below, we agree with the Appellants’ contention that unresolved matters may include proposals to provide enhanced benefits in the circumstances of workplace change, where the benefits are raised by a party to the consultation during the process as a measure proposed to avoid or otherwise minimise any possible adverse impact on affected employees. It is not to the point that there is no obligation under the Agreements to implement the measures or that the measures sought provided for benefits greater than those contained in the Agreements. There is a dispute about the measures and their implementation, which if it remains unresolved may be pressed through clause 8 of the Agreements.
[27] Clause 8 of the Agreements contains a dispute settlement procedure which sets out the kinds of disputes to which the procedure applies and the steps that must be followed. The fourth step in the procedure provides:
If the dispute remains unresolved any party may refer the matter to the Fair Work Commission for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by the Fair Work Commission provided that arbitration is limited to disputes that involve matters listed in sub-clause 8.2 of this procedure.
[28] There is no dispute that the unresolved matters under clause 7.4 of the Agreements which are the subject of the Appellants’ claims are matters which engage with clause 8.2 and can therefore be the subject matter of arbitration by the Commission under the fourth step of the dispute settlement procedure. The dispute is about whether the Appellants are permitted under the Agreements to make the claims and whether the Commission is permitted by decision to grant the relief sought by the Appellants.
[29] Clause 12 of the Agreements deals with facilitating changes to the terms of the Agreements. Without setting out the entirety of the clause, it makes provision for the alteration of certain provisions of the Agreements including changes to working arrangements, rostering, shiftwork, working hours and the provision of additional remuneration.
[30] Clause 13 of the Agreements deals with “no extra claims” and provides:
13. NO EXTRA CLAIMS OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT
13.1. This clause is subject to the right to a variation of this Agreement in accordance with Part 2-4 Division 7 of the Fair Work Act 2009 (Cth). This Agreement covers the field. During the life of this Agreement the parties:
(a) will continue to recognise the Employer's managerial prerogative to propose and implement change in compliance with this Agreement;
(b) except in accordance with the terms of Clause 12, shall make no extra claims for any changes in remuneration or conditions of employment;
(c) agree that where any change proposed in Clause 12 above impacts upon Employees' existing rates of pay and/or conditions of employment under this Agreement, then it will only be implemented in accordance with the consultation and voting process included in Clause 12 of this Agreement.
(d) for Train Crew it is recognised that "conditions of employment" includes current:
i. depot transfer and roster placement procedures; and
ii. rostering codes and conditions.
[31] Clause 13 operates for the operational life of the Agreements not just during the nominal life.12 The text of clause 13 is telling. Apart from its reference to the Agreement(s) covering the field, it prohibits making extra claims for changes in remuneration or conditions of employment “except in accordance with the terms of Clause 12”. The word “claim” should be construed by reference to the industrial context in which it is employed and not by reference to its ordinary meaning of an assertion of a right or entitlement to something and the phrase “extra claim” is to be understood as encompassing a claim designed to improve upon or advance the entitlements or interests of the person making the claim or of those the person represents or to materially change the terms and conditions of employment. 13
[32] The text of clause 13.1(b) suggests that attention was given to the prospect of certain claims for changes in remuneration or conditions of employment being permitted during the life of the Agreements. The corollary is that any other extra claims for changes in remuneration or conditions of employment which are not caught by clause 12 are prohibited. The claims advanced by the Appellants are such claims, and it seems to us that on a proper construction of the Agreements, given the express carve out of claims made pursuant to clause 12, that clause 7.4 operates subject to the prohibition in clause 13.1(b). Therefore, matters which cannot be resolved through the consultive process in clause 7.3 that involve extra claims proscribed by clause 13.1(b) cannot be pursued through the mechanism in clause 7.4. The Appellants’ claims are not claims pressed in accordance with clause 12. The matters pressed by the Appellants are claims to improve upon the entitlements of affected employees beyond that for which the Agreements provide and are therefore extra claims for changes in remuneration or conditions of employment and are prohibited by clause 13.1(b).
[33] It follows from the forgoing that the Deputy President correctly concluded that clause 13 of the Agreements presented an insurmountable barrier to the granting of the Appellants’ claim. This ground of appeal therefore fails.
[34] This is a sufficient basis to dispose of the appeals but since the other appeal grounds were fully ventilated before us, we deal with them below.
Grounds 1 and 2
[35] By these grounds of appeal, the Appellants contend the Deputy President erred in finding that the relief sought by them would be inconsistent with the terms of the Agreements and therefore a decision granting the relief could not be made because of the prohibition in s 739(5) of the FW Act. They contend that s 739(4) permits the Commission, when dealing with a dispute under an enterprise agreement, to arbitrate the dispute (however described). Here the dispute is described in clause 7.4 of the Agreements and arbitration in the industrial context involves the settlement of a dispute by the making of an award, which may contain rights other than those that existed before the dispute.
[36] The Appellants submit that the focus of s 739(5) of the FW Act is on whether the decision is inconsistent with a term of the Agreements. They contend that the relief sought is a determination that, in resolution of the dispute over what measures should be taken to avoid or otherwise minimise the impact of the loss of employment arising from a restructure, payments be made to compensate for loss of entitlements. Those payments would not amount to obligations inconsistent with the obligations in the Agreements. The Appellants contend that if the benefits were awarded, they would be capable of reconciliation with the terms of the Agreements as they would be additional obligations. No existing obligation is changed. There is no contradiction arising from additional benefits. Nor is there lack of consistency or congruity. There would be no lack of accordance or harmony nor would any “incompatibility, contrariety, or opposition” arise.
[37] The Respondents contend the Deputy President was correct in his conclusion and that the Appellants’ reliance on clause 7.4 of the Agreements to avoid the operation of s 739(5) of the FW Act is misplaced because:
• it incorrectly assumes that the Respondents have an obligation under the terms of the Agreements to “minimise the adverse impact” of the “transfer” of employment to TfNSW if indeed the Employees accept such offer of employment. Clause 7.3 of the Agreements does not place an express obligation on the Respondents to avoid or minimise all possible adverse impacts of any change through compensation payments or otherwise. The only obligation on the Respondents is to “discuss” measures “proposed to avoid or otherwise minimise any possible adverse impact”;
• it incorrectly assumes that the Commission has the power to create such rights under the terms of the Enterprise Agreements inconsistently with the express terms of the Enterprise Agreements and the relief sought amounts to additional benefits, directly inconsistent with clause 13 of the Agreements; and
• it would result in the absurd outcome that employees and Appellants could seek and obtain changes to conditions of employment and remuneration in circumstances where clause 13 the Agreements confers an express obligation on them not to make such claims.
[38] But for the operation of clause 13 of the Agreements, there is no reason to suppose that that claims for payments as a measure to avoid or otherwise minimise any possible adverse impact on affected employees pursued through clause 7.4 could not be the subject of a decision by arbitration to grant the claim. Whilst it is correct that the consultative process for which provision is made in clause 7.3 does not impose an obligation on the Respondents to implement particular mitigation measures, it does not follow that claims for their implementation cannot be resolved under clause 7.4 (and clause 8) of the Agreements by arbitration.
[39] Clause 7.3 relevantly requires the Respondents to meet with the affected employees and/or the Appellants and discuss the effects of the changes on the employees concerned and measures proposed to avoid or otherwise minimise any possible adverse impact on affected employees. The requirement to discuss in clause 7.3 involves more than a monologue about matters the Respondents propose by way of mitigation measures. It connotes having a conversation, a debate and a deliberation about and indeed a dispute or argument about the measures, their adequacy and any alternative measures which might be considered and implemented.
[40] In this context, it will be unsurprising that the consultative process might not resolve all mitigation measures that are discussed. It is this unsurprising event for which provision is made by clause 7.4. Some matters might not be resolved, and rather than allowing unresolved matters to fester, the Agreements make provision for their resolution – through the dispute settlement clauses.
[41] In the present case, the unresolved matter was the claims for compensatory payments and benefits to be made as measures of mitigation. Unresolved matters, even those dealing with the Appellants claims, are matters which can be processed through the dispute settlement term because of clause 7.4. In this regard, an arbitral outcome granting the relief sought by the Appellants would not be inconsistent with the Agreements as contemplated by s 739(5) of the FW Act in the absence of clause 13.1(b), because the Agreements expressly provide for dealing with unresolved matters in this way. Therefore, to the extent that the Deputy President concluded at [52] and [53] of the decision that as the Appellants’ claims seek a benefit greater than that provided by the Agreements, such claims cannot be entertained by the Commission by reason of s 739(5), irrespective of clause 13.1(b), we would respectfully disagree.
[42] However, as we have earlier pointed out clause 7.4 of the Agreements is to be read as operating subject to clause 13.1(b) of the Agreements. The claims made are not within clause 12. They are extra claims within the meaning of clause 13.1(b) and are contrary to the prohibition therein. The granting by arbitral decision of relief in the form of a claim which is prohibited by clause 13.1(b) the Agreements would be a decision that is inconsistent with the Agreements within the meaning of s 739(5) of the FW Act.
[43] As should be apparent from the discussion above, whilst we do not concur with the reasoning underpinning the Deputy President’s conclusion, we consider for the reasons we have given, the conclusion that a decision granting the relief sought would be inconsistent with the Agreements was nevertheless correct.
[44] It follows that appeal grounds 1 and 2 also fail.
Orders
[45] We order as follows:
(1) Permission to appeal is granted in each of C2021/4516, C2021/4518, C2021/4519 and C2021/4521.
(2) The appeals in C2021/4516, C2021/4518, C2021/4519 and C2021/4521 are dismissed.
VICE PRESIDENT
Appearances:
T Slevin of Counsel for the Appellants.
Y Shariff SC of Counsel for the Respondents.
Hearing details:
2021.
Sydney and Melbourne (via video-link):
17 September.
Printed by authority of the Commonwealth Government Printer
<PR734171>
1 Sections 36H and 37H of the Transport Administration Act 1988 (NSW)
2 Exhibit R3, Witness Statement of Justine Krajewski dated 9 July 2021 at [26]
3 Exhibit R1, Annexure JK-2
4 Ibid at clause 1, Term
5 Australian Rail, Tram and Bus Industry Union & Australian Municipal, Administrative, Clerical and Services Union v Sydney Trains & NSW Trains[2021] FWC 4039 at [12]
6 Australian Rail, Tram and Bus Industry Union & Australian Municipal, Administrative, Clerical and Services Union v Sydney Trains & NSW Trains[2021] FWC 4039
7 Ibid at [53]
8 Ibid at [60]
9 Ibid at [53]
10 Ibid at [45]-[52]
11 Ibid at [54]-[61]
12 NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [58]-[67]
13 Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84, 222 FCR 152, 244 IR 335 at [34]-[56]; NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [105]
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