Australian Municipal, Administrative, Clerical and Services Union v Rail Corporation New South Wales

[2011] FWA 8476

[2011] FWA 8476

FAIR WORK AUSTRALIA

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Rail Corporation New South Wales
(C2011/4749)

COMMISSIONER CAMBRIDGE SYDNEY, 7 DECEMBER 2011

Dispute settlement procedure - interpretation of provisions of enterprise agreement - preliminary question about representation by lawyers and paid agents - s.596 - permission refused - dispute as to payment entitlements arising in respect to attendance at mandatory medical assessment.

[1] This Decision is made in respect of an application made pursuant to section 739 of the Fair Work Act 2009, (the Act), for Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 17 June 2011. The application was made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) and taken against Rail Corporation of New South Wales (RailCorp).

[2] The matter is referable to a DSP found at Clause 9 of the RailCorp Enterprise Agreement 2010 (the 2010 Agreement). The question in dispute involved the interpretation and application of sub-clause 39.3 of the 2010 Agreement.

[3] The matter was the subject of unsuccessful conciliation and proceeded to arbitration which involved a Hearing conducted on 2 and 3 November 2011. At the commencement of the Hearing Mr E Fry from the ASU who appeared with Mr G Fozzard from the Australian Rail, Tram and Bus Industry Union (RTBU), objected to RailCorp being represented by a solicitor, Mr D Lloyd from the firm Blake Dawson.

[4] Mr Frysubmitted that FWA should not grant permission for RailCorp to be represented by a solicitor as the provisions of sub-section 596(2) of the Act were not satisfied.

[5] The question of representation in proceedings before FWA is governed by section 596 of the Act which is in the following terms:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) FWA’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[6] Mr Fry made submissions in support of the contention that sub-section 596(2) of the Act could not be satisfied in this instance and he referred to various Decisions of FWA which he said provided support for refusing permission for Mr Lloyd to represent RailCorp in the Hearing. Mr Lloyd made submissions which asserted that the provisions of sub-section 596(2) of the Act were capable of application to the circumstances in this case and involving the issues requiring determination.

[7] After a short adjournment I provided an ex-tempore ruling on the question of permission for RailCorp to be represented by a lawyer. I refused permission on the basis that; (a) I could not identify a degree of complexity such that representation by a lawyer would enable the matter to be dealt with more efficiently; and (b) I recognised that even if only by way of perception, there was an identifiable unfairness or imbalance with one party represented by an unqualified advocate vis-a-vis a lawyer appearing for the other side. My decision to refuse permission for lawyers to represent RailCorp was also influenced by the time which had elapsed between the Directions made for Hearing (29 August 2011) and the Notice of Representative Commencing to Act (21 October 2011).

[8] Following a further short adjournment, the Hearing proceeded with Mr G McDonald together with Mr V Subramanian appearing on behalf of RailCorp. Mr Fry adduced evidence from two witnesses, Mr Mark Francis Moreyand Mr Nigel Ward. Evidence for RailCorp was provided from two witnesses, Mr Mark John Greenhilland Mr Wayne Williamson.

Background

[9] This dispute involves an interpretation of sub-clause 39.3 of the 2010 Agreement. The relevant parts of clause 39 are reproduced with particular emphasis identifying one sentence of sub-clause 39.3 as follows:

“39. HEALTH STANDARDS

39.1. Rail safety worker Employees are required to attend health assessments, any tests and/or follow-up medical assessments necessary to determine their fitness for rail safety work in a timely manner. This clause shall apply to any Employee who may be directed to perform work falling within the definition of rail safety work covered by the National Standards for Health Assessment of Rail Safety Workers.

Employer mandated testing

39.2. The Employer shall be responsible for the costs of all medical tests, including specialists, where such tests are undertaken at the Employer’s direction. Such costs will be paid up to the time the Employee is determined fit or unfit for duty.

39.3. Medical tests will be undertaken during working time. Should an Employee be required to undergo a medical test outside their ordinary working hours, or a medical test extends beyond the rostered ordinary hours, then they will be entitled to payment under the applicable provisions of this Agreement for the additional time incurred. Employees will, where entitled, be paid for travelling time in accordance with relevant provisions.” [emphasis added]

[10] On 24 January 2011, Mr Nigel Ward, a member of the ASU employed by RailCorp as a Train Controller, attended a periodic health assessment (PHA), during his rostered working hours and received payment for his ordinary working hours of 6 hours and 38 minutes inclusive of the time in attendance at the PHA. The attendance of Mr Wardat the PHA during paid rostered hours was unremarkable and entirely consistent with the provisions of sub-clause 39.3 of the 2010 Agreement.

[11] As a consequence of tests conducted on Mr Ward during his PHA he was subsequently required to undertake an overnight polysomnography. Polysomnography is a comprehensive recording of the biophysiological changes that occur during sleep and is often more commonly referred to as a sleep apnoea test. However sleep apnoea is just one of various sleep disorders that may be identified by polysomnography. For convenience, the common terminology of sleep apnoea shall be used.

[12] On the evening of 22 March 2011, Mr Ward attended St Luke’s hospital and participated in a sleep apnoea test which was of 13 hours duration. Logically the significant proportion of this time involved Mr Ward being asleep.

[13] In the days and weeks following Mr Ward’s attendance at the sleep apnoea test he made claim for payment of all time (13 hours) involved with the test. Relevant RailCorp staff advised Mr Ward that he would not be paid for the 13 hours but would instead receive payment for his rostered shift of 6 hours and 38 minutes together with the applicable shift allowance. Mr Ward was not satisfied with payment of 6 hours and 38 minutes and in due course enlisted the assistance of the ASU who made claim on his behalf for the payment of 13 hours.

[14] The claim for payment of 13 hours for attendance by Mr Ward at the sleep apnoea test has been advanced by the ASU as the proper interpretation and application of the terms of sub-clause 39.3 of the 2010 Agreement. That interpretation has been opposed by RailCorp.

The ASU Case

[15] In summary, Mr Fry from the ASU submitted that the words contained in sub-clause 39.3 of the 2010 Agreement were unambiguous and applied to the sleep apnoea test undertaken by Mr Wardovernight commencing 22 March and concluding on the following morning. Mr Fry submitted that FWA should give the words of sub-clause 39.3 their ordinary meaning and as Mr Ward was required by RailCorp to attend the sleep apnoea test he was entitled to receive payment for the 13 hours duration of the test.

[16] Mr Fry urged that FWA make an Order upon RailCorp that all employees required to attend medical testing including overnight sleep apnoea tests, be paid ordinary time for all time outside of their normal rostered hours. By implication such Order would require RailCorp to pay Mr Ward an additional amount of the difference between 6 hours and 38 minutes plus shift penalty and 13 hours at ordinary time rate.

[17] Mr Fry traced the history of the 2010 Agreement provisions as reflected in clause 39. These provisions have their genesis in recommendations emerging from the Waterfall Special Commission of Inquiry and the subsequent National Standard for Health Assessment of Rail Safety Workers 2004 (the 2004 Standard). Terms substantially the same as those now appearing as clause 39 in the 2010 Agreement were introduced as clause 38 in the Rail Corporation New South Wales Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005, (the 2005 Agreement). These terms were amended slightly and continued as clause 40 of the Rail Corporation New South Wales Union Collective Agreement 2008, (the 2008 Agreement).

[18] Mr Fry said that the ASU had raised the present dispute on behalf of its member, Mr Nigel Ward who had been directed by RailCorp to attend a sleep apnoea test on 22 March 2011, and had not been paid in accordance with sub-clause 39.3 of the 2010 Agreement. Mr Fry reasserted that there was no ambiguity to the terms of sub-clause 39.3 and therefore Mr Fry was entitled to payment of ordinary time for the total duration of the sleep apnoea test, 13 hours.

[19] Mr Fry referred to various Judgements he said provided authority for interpreting the provisions of sub-clause 39.3 as plain and unambiguous language which did not require the adoption of any more elaborate consideration. Consequently according to Mr Fry, the words contained in sub-clause 39.3 should be given their plain factual meaning.

[20] Mr Fry further submitted that the words contained in sub-clause 39.3 should be given their plain factual meaning and that any issue regarding the appropriateness or otherwise of payment made to an employee whilst asleep was irrelevant.

[21] Mr Fry made a further submission which contemplated a requirement to examine the intention that may have been behind the words contained in sub-clause 39.3 of the 2010 Agreement. Mr Fry mentioned that the historical examination of the development of the provisions of sub-clause 39.3 established that the intent of the parties was that no employee would suffer a financial detriment as a result of attending employer-mandated medical testing.

[22] Mr Fry submitted that there was obvious inconvenience attached to the sleep apnoea testing which required Mr Ward to be absent from his home and family overnight. According to Mr Fry, although sleep apnoea testing may not have been consciously considered at the time of the introduction of the predecessor versions of sub-clause 39.3 of the 2010 Agreement, sleep disorders and overnight sleep apnoea testing were specifically dealt with in the 2004 Standard. Therefore, according to Mr Fry, there was no basis to suggest that the provisions of sub-clause 39.3 would not have application to overnight sleep apnoea testing.

[23] Mr Fry rejected the contentions made by RailCorp that sub-clause 39.3 of the 2010 Agreement should be construed as being confined in application to periodic medical examinations (PME, and also referred to above as PHA), as distinct from any subsequent follow-up testing or medical assessments. In this regard Mr Fry said that the words “medical tests” moved beyond just being the initial testing of the PME and extended into any further specialised testing that may be required.

[24] Mr Fry urged that the words contained in sub-clause 39.3 of the 2010 Agreement be given their plain and ordinary meaning. Therefore, according to Mr Fry, RailCorp was obliged to make payment to Mr Ward and all other employees who attend overnight sleep apnoea testing, on the basis of ordinary time payment for the full duration of the test.

The RailCorp Case

[25] Mr McDonald, who appeared for RailCorp, commenced his submissions by rejecting the assertion made by the ASU that the wording of sub-clause 39.3 of the 2010 Agreement was sufficiently plain and unambiguous so as to be given a literal interpretation. Mr McDonald said that the interpretation urged by the ASU would provide a perverse outcome whereby payment for ordinary time as if worked would be made to Mr Ward and others whilst they were asleep.

[26] Mr McDonald submitted that the words contained within sub-clause 39.3 needed to be considered in the context of the entirety of clause 39. In addition, according to Mr McDonald, clause 39 needed to be considered having regard for the background to the clause and the discussions between the parties so as to establish the intent of the clause.

[27] Mr McDonald submitted that an examination of the history of the development of clause 39 as it appeared in the 2010 Agreement, revealed two important issues relevant to the interpretation of the clause and the particular words under examination in sub-clause 39.3.

[28] Firstly, Mr McDonald said that the evidence, particularly that provided by Mr Greenhill, established that the underlying intention of clause 39 and its predecessors, was that an employee would not be financially disadvantaged as a result of a requirement to attend medical examinations. According to Mr McDonald, the intention of the actual drafters of the terms of clause 39 was to protect an employee from being out of pocket or adversely financially impacted by having to attend a periodic medical assessment. Mr McDonald said there was no evidence of any consideration having been given to broader follow-up procedures such as overnight sleep apnoea testing.

[29] Secondly, Mr McDonald submitted that sub-clause 39.3 of the 2010 Agreement was confined to periodic medical examinations as opposed to any subsequent follow-up medical testing or other assessments that may be required. Mr McDonald submitted that the earliest version of the current provisions which appear as sub-clause 39.3 of the 2010 Agreement existed as sub-clause 38.4 of the 2005 Agreement. Mr McDonald said that it was important to note that the words “(Periodic Medical Examination - PME)” were included in the heading appearing above sub-clause 38.3 of the 2005 Agreement. These words were removed from the corresponding provisions of the 2008 Agreement. However according to Mr McDonald there was no evidence to suggest that the removal of these words from the heading would expand the terms of the following sub-clauses so as to have the effect that the ASU has sought.

[30] Mr McDonald made further submissions which he said supported the proposition that sub-clause 39.3 of the 2010 Agreement was confined to periodic medical examinations as opposed to the subsequent procedures such as sleep apnoea testing. Mr McDonald referred to provisions contained in a separate “collateral” agreement which prescribed details of train drivers rostering and working arrangements. The collateral agreement established certain payment arrangements for drivers that were required to undertake mandated medical testing that involved pathology collection on days prior to the actual medical examination.

[31] In addition, Mr McDonald submitted that there were a variety of other medical assessments and procedures which employees were required to undertake and if sub-clause 39.3 was applicable in these instances, the result would be a series of perverse outcomes. Mr McDonald said that employees are on occasions, required to wear heart monitoring equipment, undertake blood pressure monitoring regimes and fast prior to oral glucose tolerance testing, and if sub-clause 39.3 was given the interpretation as urged by the ASU payment for ordinary working time would have to be made for all time involved with these various other procedures. In the result, as an example, an employee required to wear heart monitoring equipment perhaps over a period of several days would be entitled to payment as if worked throughout the entire period of that monitoring.

[32] In conclusion, Mr McDonald urged that the interpretation of sub-clause 39.3 of the 2010 Agreement as asserted by the ASU should be firmly rejected as it would be contrary to the intention of the parties who created the provision and such interpretation would provide for perverse outcomes.

Consideration

[33] The dispute in this matter has involved a contest about the meaning that should be given to particular words which appear in an industrial agreement. The approach to interpretation of industrial instruments is not a matter of strict statutory interpretation. Although the words in an industrial instrument may be given their plain literal meaning, it is well established that often it is appropriate to adopt a contextual and purposive approach broadly based upon authority established by a body of decision-making which is well summarised in a Decision of a Full Bench of FWA in,“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB 2555.

[34] The interpretation of the terms of sub-clause 39.3 of the 2010 Agreement as asserted by the ASU manifests an obvious difficulty. It would be unusual for an industrial instrument to provide for ordinary time payment to a person whilst asleep. This curious potential immediately opens the prospect for contested interpretation. It is conceivable, and not unknown in some cases such as fire-fighters, but was it really the intention of the parties to the RailCorp agreements to provide for ordinary time payment whilst asleep?

[35] The evidence provided by all witnesses who had involvement in negotiations for the 2005 Agreement established that the first manifestation of a clause similar to clause 39 of the 2010 Agreement was based upon a principle that no employee would be financially disadvantaged as a result of employer-mandated medical testing. The no financial disadvantage principle has been observed and applied in respect of the 2005, 2008 and 2010 Agreement provisions. The evidence provided by Mr Greenhill in particular unequivocally rejected that the no financial disadvantage principle could be extended to require payment at ordinary time rates for the duration of an overnight sleep apnoea test.

[36] The evidence strongly suggested that the particular words now reflected as the contents of sub-clause 39.3 of the 2010 Agreement were not proposed by the ASU or any other Union involved in the negotiations for the 2005 Agreement. It appeared that a RailCorp employee or solicitor working under the instruction of Mr Greenhill was the author of the words that are now contained in sub-clause 39.3. Consequently there is considerable support for the interpretation of these words in the manner quite forcefully advanced by Mr Greenhill.

[37] RailCorp contended that the terms contained in sub-clause 39.3 of the 2010 Agreement were confined for application to periodic medical examinations (PME), also referred to as periodic health assessments (PHA). The first manifestation of the relevant clause which appeared in the 2005 Agreement included the words “(Periodic Medical Examination - PME)” in the heading which preceded sub-clause 38.3.

[38] The relevant terms of the 2005 Agreement are as follows:

“ 38.2 This clause shall apply to any employee who may be directed to perform work falling within the definition of rail safety work covered by the National Standards for Health Assessment of Rail Safety Workers.

Employer mandated testing (Periodic Medical Examination - PME)

38.3 The Employer shall be responsible for the costs of all medical tests, including specialists, where such tests are undertaken at the Employer’s direction. Such costs will be paid up to the time the employee is determined fit or unfit for duty.

38.4 Medical tests will be undertaken during working time. Should an employee be required to undergo a medical test outside his / her ordinary working hours, or a medical test extends beyond the rostered ordinary hours, then he / she will be entitled to payment under the applicable award provisions for the additional time incurred. Employees will, where entitled, be paid for travelling time in accordance with relevant provisions.”

[39] There were some minor changes made to the corresponding provisions as contained in the 2008 Agreement. The 2008 manifestation was as follows:

“40. HEALTH STANDARDS

40.1 Rail safety worker Employees are required to attend health assessments, any tests and/or follow-up medical assessments necessary to determine their fitness for rail safety work in a timely manner. This clause shall apply to any Employee who may be directed to perform work falling within the definition of rail safety work covered by the National Standards for Health Assessment of Rail Safety Workers.

Employer mandated testing

40.2 The Employer shall be responsible for the costs of all medical tests, including specialists, where such tests are undertaken at the Employer’s direction. Such costs will be paid up to the time the Employee is determined fit or unfit for duty.

40.3 Medical tests will be undertaken during working time. Should an Employee be required to undergo a medical test outside their ordinary working hours, or a medical test extends beyond the rostered ordinary hours, then they will be entitled to payment under the applicable provisions of this Agreement for the additional time incurred. Employees will, where entitled, be paid for travelling time in accordance with relevant provisions.”

[40] The deletion of the words “(Periodic Medical Examination - PME)” from the heading appearing above sub-clause 40.2 of the 2008 Agreement seemed to be little more than a cosmetic change as there was no evidence that any negotiation led to an alteration to effectively broaden the application of sub-clause 40.3 to encompass testing or assessments other than the PME or PHA.

[41] Further, if the terms of sub-clause 40.3 of the 2008 Agreement were consciously being broadened to encompass other than the PME/PHA it would have been highly likely that the additional words which were added in sub-clause 40.1, “...and/or follow-up medical assessments...” would have also been added to sub-clause 40.3. The absence of the words “...and/or follow-up medical assessments...” provides strong support for the application of sub-clause 39.3 of the 2010 Agreement to be confined to the PME/PHA.

[42] In addition, the development of ancillary arrangements such as the collateral agreement for drivers rostering and working arrangements which cater for and prescribe particular payments in respect of employer-mandated tests involving circumstances other than the PME/PHA, has provided evidence of a demonstrated practical interpretation that sub-clause 39.3 does not cater for circumstances outside of the PME/PHA. The development of these ancillary arrangements has been predicated upon compliance with the foundation principle that no employee would be financially disadvantaged. Consequently, sensible and realistic arrangements have been established to deal with employer-mandated medical testing requirements. One example of such a sensible and realistic arrangement is the payment that was made to Mr Ward of six hours and 38 minutes plus the appropriate shift penalty, for attendance overnight at a sleep apnoea test.

Conclusion

[43] The determination of this dispute has involved the interpretation of particular words in sub-clause 39.3 of the 2010 Agreement. The words contained in sub-clause 39.3 do not exist in a vacuum or in isolation. The words must be interpreted in both historical and contemporary context, and having regard for the purpose of the clause in which they are situated.

[44] I have carefully considered the evidence of the history and development of sub-clause 39.3 of the 2010 Agreement, together with the practical application of that sub-clause and its predecessors. This consideration leads me to conclude that the sub-clause is confined in its application to periodic medical testing or PME/PHA. The intention of sub-clause 39.3 is to ensure that if a periodic medical test cannot be arranged during ordinary paid hours or if it extends beyond ordinary hours, then payment for time involved with the periodic medical test will be made at applicable ordinary time.

[45] In respect to follow-up employer-mandated medical tests, assessments or other procedures like overnight sleep apnoea tests, sub-clause 39.3 has no application. Employer-mandated medical testing, assessments and procedures other than periodic medical testing (PME/PHA), should were necessary, be the subject of negotiated arrangements predicated upon the principle that no employee is to be financially disadvantaged by attendance or participation in the test, assessment or other procedure.

[46] The no financial disadvantage principle has been satisfied by the payment made by RailCorp to Mr Ward in respect to his attendance at the overnight sleep apnoea test on 22-23 March 2011.

[47] In view of the conclusions that I have reached the application made by the ASU in this matter must be dismissed and the proceedings concluded accordingly.

COMMISSIONER

Appearances:

Mr E Fry appeared on behalf of the ASU.

Mr G Fozzard appeared on behalf of the RTBU.

Mr G McDonald, together with Mr V Subramanian, appeared on behalf of RailCorp.

Hearing details:

2011.
Sydney:
November, 2 & 3.

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