Australian Rail Track Corporation Ltd
[2023] FWCA 3097
•25 SEPTEMBER 2023
| [2023] FWCA 3097 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Rail Track Corporation Ltd
(AG2023/2389)
AUSTRALIAN RAIL TRACK CORPORATION NSW ENTERPRISE AGREEMENT 2023
| Rail industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 25 SEPTEMBER 2023 |
Application for approval of the Australian Rail Track Corporation NSW Enterprise Agreement 2023 - enterprise agreement approved
An application has been made for approval of an enterprise agreement to be known as the Australian Rail Track Corporation NSW Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Rail Track Corporation Ltd (Applicant/Employer). The Agreement is a single enterprise agreement that was made (approved) by a majority of employees who cast a valid vote on 7 July 2023.
The following employee organisations are bargaining representatives for the Agreement:
(a) Australian Rail, Tram and Bus Industry Union (RTBU);
(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
(c) Australian Municipal, Administrative, Clerical and Services Union (ASU); and
(d) Association of Professional Engineers, Scientists and Managers, Australia (APESMA).
The RTBU and the ASU both filed Form F18’s raising objections to, and opposing, the approval of the Agreement. The CEPU filed a Form F18 supporting the objections to the approval of the Agreement as made by the RTBU and the ASU. APESMA filed a Form F18 opposing the approval of the Agreement until such time as the objections made by the RTBU and the ASU are resolved by the Commission.
A hearing was conducted in Sydney on 8 September 2023 to deal with the objections raised by the RTBU and the ASU. Mr F Parry KC, and Mr L Howard, of counsel, instructed by Mr Saul Harben, Partner, Clayton Utz lawyers, appeared with permission for the Applicant. Mr J Hart, RTBU Industrial Officer, appeared for the RTBU and the ASU. The CEPU and APESMA did not appear at the hearing,[1] however, Mr Hart advised that APESMA also supported the submissions he was making on behalf of the RTBU and the ASU.[2]
In support of its application to approve the Agreement, and in addition to the materials filed at the time that the Application was made, the Applicant relies upon the Statutory Declaration of Ms Merrilyn Beer dated 9 August 2023. Ms Beer’s declaration was tendered in the proceedings without objection. She was available for cross-examination, but was not called upon. It follows that Ms Beer’s evidence is uncontested.
None of the Unions filed any evidence in support of their contentions or grounds of opposition to the approval of the Agreement.
The fairly chosen issue
Clause 1.1.2 of the Agreement states that a relevant employee is “covered by this Agreement if [they] are employed by Australian Rail Track Corporation (ARTC) of, 11 Sir Donald Bradman Drive, Keswick Terminal, South Australia 5035, [and their] designated work location is within New South Wales and [they] do not hold an Excluded Position. Clause 1.1.3 defines an “Excluded Position” to mean “the positions of Infrastructure Maintainer, Group Executive, General Manager or Manager” (as defined).
In arguing that the group of employees covered by the Agreement have not been “fairly chosen” for the purposes of s.186(3) of the Act, the RTBU submits that:
a) there is a numerical disparity between two groups of employees covered by the Agreement, which weighs against the Applicant’s claim that the group of employees covered by the Agreement was fairly chosen (and/or that the Agreement was “fairly made”);[3] and
b) the Applicant was aware since at least 10 May 2023 that the combined unions raised a claim during bargaining for a separate agreement to cover network controllers, signal electricians and all infrastructure/maintenance staff.[4]
In her statement, Ms Beer gives the following evidence:
(a) the RTBU’s description of employee cohorts divided between operational (Network Control and Infrastructure Maintenance) and office (General) employees is not a distinction utilised in the Agreement (or its previous iterations);[5] and
(b) the distinction made by the RTBU is wrong, in that it confuses the duties performed by all such employees, in that all such employees will undertake both field-based and office-based work, and will interact with each other in the course of performing their duties.[6]
After setting out in her evidence the duties and location of work performed by employees covered by the Agreement,[7] Ms Beer points out that “[o]verall, Network Control Employees, Infrastructure Maintenance and General Employees are responsible for the running of [the Applicant’s] day to day operations. Each group contributes collectively, and are dependent on each other, to ensure [the Applicant’s] entire operations function effectively”.[8]
In the Applicant’s Form F17A, Ms Kim Northard, General Manager People and Culture, answers “no” to the question as to whether the Agreement covers all the employees of the Employer, and provides the following particulars:
“The Australian Rail Track Corporation NSW Enterprise Agreement 2023 (Agreement) covers all employees of Australian Rail Track Corporation (ARTC) employed in the State of NSW other than Infrastructure Maintenance employees employed in levels 1 to 5 and excluding Group Executives, General Managers and Managers (as defined in the Agreement) who hold a managerial role at stratum 3 or higher of ARTC’s organisational structure. This is the sixth enterprise agreement to cover this group of employees.
The four other enterprise agreements which cover ARTC are:
· ARTC SA/WA Infrastructure Maintenance Enterprise Agreement 2023 – covering a distinct group of infrastructure maintenance employees based in South Australia and Western Australia and employed in classification levels 1 to 5;
· ARTC Enterprise Agreement 2021 – covering all employees of ARTC who are not based in NSW, other than Infrastructure employees who are covered by the Victoria or SA/WA Infrastructure Maintenance Enterprise Agreements and excluding Group Executives, General Managers and Managers (as defined in the agreement) who hold a managerial role at stratum 3 or higher of ARTC’s organisational structure;
· ARTC (Victoria) Infrastructure Maintenance Enterprise Agreement 2021 – covering a distinct group of employees conducting rail maintenance in Victoria; and
· ARTC NSW Infrastructure Maintenance Enterprise Agreement 2022 – covering a distinct group of Infrastructure Maintenance employees whose designated work location is within New South Wales and are employed within classification levels 1 to 5 within the agreement.
The group of employees covered by the Agreement are all employees whose designated work location is within New South Wales and whose positions are operationally intertwined. They are therefore an operationally and geographically distinct group.
The only ARTC employees based in New South Wales who are not covered by the Agreement are:
· the defined senior manager positions referred to above whose work is operationally distinct from those covered under the Agreement; and
· Infrastructure Maintenance Employees who are covered under the ARTC NSW Infrastructure Maintenance Enterprise Agreement 2022.
These Infrastructure Maintenance employees, employed within classifications levels 1 to 5 of their Agreement are organisationally distinct from other NSW employees, with the source of their separate agreement being the transfer of former Rail Corporation Infrastructure Maintenance employees in 2008 following ARTC taking over responsibility for the Hunter Valley and interstate lines.”[9]
In its submissions,[10] the Applicant highlights that:
a) it is commonplace for employees with different skillsets to be covered by the same industrial instrument;[11]
b) the Agreement is a sixth generation enterprise agreement with a similar scope;
c) the scope of the Agreement, as proposed by the Applicant, was made abundantly clear to bargaining representatives when notification of bargaining occurred in December 2022, and throughout bargaining. It was thus a live issue throughout bargaining. Whatever may or may not have been raised during bargaining about the Agreement’s scope, no scope application was ever made by any of the bargaining representatives. The RTBU is certainly no stranger to the making of a scope application, having failed in four scope applications made against the Applicant in 2010, 2012, 2014 and 2020;
d) many of the improved conditions will only apply to Network Control and Infrastructure Maintenance employees. The contention that the interests of operational employees have been displaced by office or general employees is wholly unsubstantiated;
e) the RTBU’s approach of advancing fairly chosen arguments at the approval stage of an enterprise agreement before the Commission, when bargaining over scope has crystalised (because an agreement has been made), is a repetition of the RTBU’s conduct in 2016, which was admonished by Deputy President Sams at the time.[12] The RTBU’s spoiling approach has not changed; and
f) there is nothing to support the RTBU’s direct or indirect assertions that Network Control and Infrastructure Maintenance employees are geographically, operationally or organisationally distinct, such that the scope of the Agreement means that relevant employees to be covered by the Agreement have not been fairly chosen. Indeed, the uncontested evidence is wholly to the contrary.
Having regard to the scope of the Agreement, it is apparent that the Agreement will not cover all of the employees of the Applicant. However, noting the uncontested evidence of Ms Beer (including as to the manner in which the Applicant has chosen to organise its enterprise to conduct its business, and the conduct of bargaining leading up to the making of the Agreement[13]), the scope of previous iterations of the Agreement, the absence of a scope application being made during bargaining, and taking into account that the group to be covered by the Agreement is not geographically, operationally or organisationally distinct[14] (which I weigh as a neutral consideration against the aforementioned matters),[15] I am satisfied that the group of employees covered by the Agreement was fairly chosen.[16]
The reasonable steps to explain the terms of the Agreement issue
The union bargaining representatives have objected to the approval of the Agreement on the basis of asserted non-compliance with s.180(5) of the Act.[17]
The explanation that was provided to relevant employees in respect terms and the effect of the terms of the Agreement is to be considered in circumstances where the Agreement constitutes the sixth iteration of an enterprise agreement covering the same scope and employee cohort.[18]
At Questions 22 to 25 of the Form F17A filed by the Applicant, the Applicant has explained the steps taken to satisfy s.180(5) of the Act. Ms Beer, in her evidence, further elaborates upon the steps that were taken to satisfy s.180(5) of the Act.[19] Having regard to answers provided in the Form F17A, and the uncontested evidence of Ms Beer, I am satisfied that the Applicant complied with the pre-approval requirements contained under s.180(5) of the Act. More specifically, I am satisfied on the evidence that:
a) the Applicant has complied with s.180(5) of the Act in relation to the unlimited sick leave term, and the pay structure and progression of general employees;[20] and
b) the Applicant took “all reasonable steps to ensure that” the terms of the Agreement, and the effect of the terms of the Agreement, were explained to relevant employees on leave, in an appropriate manner (taking into account the circumstances and needs of such relevant employees who were on leave).[21]
The voting window issue
The RTBU have objected to the approval of the Agreement on the basis that the voting window (or period between the opening and closing of the ballot) to approve the Agreement was too short, leading to employees (due to their shift patterns) being disenfranchised to vote. There is no evidence to support this assertion, and Mr Hart was upfront in acknowledging that the submission essentially constitutes speculation.[22]
In rejecting the RTBU’s contention as to the voting window of 30 hours being too short, such that it disenfranchised employees to vote and/or affected the ballot results, I concur with the Applicant’s submissions[23] that:
a) the percentage of employees who cast a vote (85 percent) is consistent with voter participation in ballots to approve previous iterations of the Agreement;
b) the voting period is to be assessed in the context of the relevant access period provided to employees prior to the opening of the ballot (which was more than seven clear days);[24]
c) a 30 hour ballot period is longer than other in-person voting periods that apply in the community, e.g. for general elections or referendums;
d) the voting method was via telephone or online, and was clearly explained to employees;[25] and
e) the suggestion that employees, during a 30 hour period, could not vote online or via telephone, or did not have a reasonable opportunity to cast their vote, is not supported by any evidence.
The question and answer format issue
The RTBU submits that because the Agreement is expressed in a question and answer format, it is difficult for employees to understand. It follows, according to the RTBU, that the Agreement was not genuinely agreed because employees did not understand what they were voting upon. No evidence has been filed to support this claim.
The Applicant characterises this objection as baseless, and an insult to employee intelligence. It highlights that the RTBU took no objection to the question and answer format during bargaining, and that the question and answer format reflects the historical practice of the Applicant as to enterprise agreement formatting.[26]
In my view, there is nothing in the question and answer format of the Agreement that supports the RTBU’s contentions. I therefore reject same.
Conclusion
Having considered all of the materials that have been filed and otherwise relied upon by the Applicant at the hearing on 8 September 2023, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[27]
I am equally satisfied the more beneficial entitlements of the NES (Part 2-2 of the Act) will prevail where there is an inconsistency between the Agreement and the NES.
The RTBU, CEPU, ASU, and APESMA, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers each of these organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2023. The nominal expiry date of the Agreement is 2 October 2026.
DEPUTY PRESIDENT
Appearances:
F Parry KC with L Howard of counsel appeared for the Australian Rail Track Corporation Ltd.
J Hart, RTBU Industrial Officer, appeared for the Australian Rail, Tram and Bus Industry Union and the Australian Municipal, Administrative, Clerical and Services Union.
Hearing details:
2023.
Sydney, in person.
September 8.
[1] Transcript, PN12.
[2] Ibid, PN100.
[3] RTBU submissions, 24 August 2023, at [3]-[13]. In short, the RTBU says that the difference in numbers between the classification cohorts of Infrastructure Maintenance and Network Control employees covered by the Agreement (combined 276 employees) (Group A employees), and the office or general section classification employees (combined 523) (Group B employees), means that the Group B employees outnumber the Group A employees, such that Group A employees never had a sufficient number to counter the votes of Group B employees during a ballot to approve or reject the Agreement.
[4] Transcript, PN199-PN133: The RTBU says that the Applicant was squarely on notice since 10 May 2023 (noting that notification of bargaining commenced in December 2022) that “the combined unions wanted to tease out the issue of scope covering network controllers, depot staff, signal electricians and infrastructure maintenance staff that weren't covered by the infrastructure/maintenance agreement of 2022,” and that the combined unions opposed the scope set out in the Agreement that was approved by the ballot of 85 percent of employees (64 percent of such employees voting to approve the Agreement).
[5] Beer Statement, at [41]-[42].
[6] Ibid, at [43]-[45].
[7] Ibid, at [46]-[58].
[8] Ibid, at [59].
[9] Form F17A, Answer to Question 4.
[10] Applicant’s Outline of Submissions, 8 August 2023, at [7]-[15]; Applicant’s Outline of Submissions in Reply, 4 September 2023, at [2]-[6].
[11] See, for example, Rail Industry Award 2020, Schedule A – Classification Definitions. Noting that this award covers clerical, administration and professional employees, operations employees, and technical and civil infrastructure employees.
[12] Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2016 [2016] FWCA 7012, at [63] and [77].
[13] Beer Statement, at [11]-[14] and [35]-[40].
[14] Applicant’s Outline of Submissions, 8 August 2023, at [15].
[15] Fair Work Act 2009, s.186(3A).
[16] Ibid, s.186(3).
[17] RTBU’s F18, Ground 2 and 3. ASU’s F18, Grounds 1, 2 and 4.
[18] Beer Statement, at [43]-[59].
[19] Including as summarised (by reference to the evidence) in the Applicant’s Outline of Submissions, 8 August 2023, at [21]-[22], and [30]-[32].
[20] Beer Statement, at [20]-[23].
[21] Ibid, at [17]-[19].
[22] Transcript, PN135.
[23] Applicant’s Outline of Submissions, 8 August 2023, at [23]-[25]; Applicant’s Outline of Submissions in Reply, 4 September 2023, at [7]-[10].
[24] Beer Statement, [15]-[16], and [28].
[25] Ibid, at [28]-[34]. Form F17A, Answer to Question 21.
[26] See also Beer Statement, at [60]-[65].
[27] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.
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