Australian Rail Track Corporation Ltd T/A Australian Rail Track Corporation Ltd

[2020] FWC 2953

[2020] FWC 2953

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Rail Track Corporation Ltd T/A Australian Rail Track Corporation Ltd
(AG2020/432)

Rail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 4 JUNE 2020

Application for approval of the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2019 – objections raised by Rail Tram and Bus Industry Union (RTBU) regarding better off overall test – vague and speculative claims in submissions unsupported by evidence – objections dismissed.

Introduction

[1] An application has been made for approval of an enterprise agreement to be known as the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2019 (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 (ARTC). The Agreement is a single enterprise agreement.

[2] The Agreement will cover and apply to relevant employees to whom the Rail Industry Award 2020 (Award) would otherwise cover and apply.

[3] These Reasons for Decision are to be read in conjunction with my Decision approving the Agreement in [2020] FWCA 2801.

Coverage of employee organisations

[4] The following employee organisations (all of which were bargaining representatives for the Agreement), have given notice under s.183 of the Act that they want to be covered by the Agreement:

(a) Australian Rail, Tram and Bus Industry Union (RTBU);

(b) Australian Municipal, Administrative, Clerical and Services Union (ASU);

(c) Association of Professional Engineers, Scientists and Managers, Australia (APESMA); and

(d) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

Procedural Background

[5] This matter was allocated to my Chambers on 3 March 2020.

[6] On 6 March 2020, my Chambers directed the Unions to file their respective Form F18 declarations. All of the Unions support the approval of the Agreement, provided it complies with legislative requirements. The ASU and the RTBU raised identical concerns as to the Agreement passing the “better off overall test” (BOOT). 1

[7] On 27 March 2020, and having noted the concerns raised by the RTBU and the ASU in relation to the BOOT pursuant to their Form F18s, I issued the following directions in this matter (Initial Directions):

“[1] By 4:00pm AEST on Tuesday, 14 April 2020, the Australian Rail, Tram and Bus Industry Union (RTBU) is to file with the Commission and serve on the Applicant, and any and all bargaining representatives, an outline of submissions, witness evidence, and documentary evidence the RTBU seeks to rely on in opposition to the approval of the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2019 (Agreement).

[2] By 4:00pm AEST on Tuesday, 14 April 2020, the Australian Municipal, Administrative, Clerical and Services Union (ASU) is to file with the Commission and serve on the Applicant, and any and all bargaining representatives, an outline of submissions, witness evidence, and documentary evidence the ASU seeks to rely on in opposition to the approval of the Agreement.

[3] By 4:00pm AEST on Tuesday, 14 April 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is to file with the Commission and serve on the Applicant, and any and all bargaining representatives, an outline of submissions, witness evidence, and documentary evidence the CEPU seeks to rely on either in support of, or in opposition to, the approval of the Agreement.

[4] By 4:00pm AEST on Tuesday, 14 April 2020, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) is to file with the Commission and serve on the Applicant, and any and all bargaining representatives, an outline of submissions, witness evidence, and documentary evidence the APESMA seeks to rely on either in support of, or in opposition to, the approval of the Agreement.

[5] By 4:00pm AEST on Tuesday, 28 April 2020, the Applicant is to file with the Commission, and serve on any and all bargaining representatives, an outline of submissions, witness evidence, and documentary evidence the Applicant seeks to rely on support of the approval of the Agreement, and in response to any submissions and/or evidence provided by as bargaining representative to that date.

[6] The matter will be listed for further directions, by telephone, at 9:15am AEST on Thursday, 30 April 2020”.

[8] Later that same day, the RTBU wrote to my Chambers as follows:

“We write with reference to the directions made by Deputy President Boyce this morning in the above matter. We note that in those directions, Deputy President Boyce characterised our concerns about this Agreement as explicitly opposing its approval.

The RTBU is not opposing the approval of the Agreement. Our concerns lie chiefly with the content of the [the Applicant’s] F17, which we believe do not accurately reflect the consequences of the terms of the Agreement. We believe these concerns may need to be addressed by [the Applicant] engaging in undertakings to ensure compliance with the BOOT.

We have communicated this position to the [ARTC]”.

[9] Later that same day, my Chambers responded to the RTBU as follows:

“The RTBU’s position is noted. Regardless of the characterisation, however, the Deputy President has determined that the directions will remain on-foot”.

[10] On 2 April 2020, APESMA wrote to my Chambers, advising that they neither support nor oppose the approval of the Agreement, and in respect of the RTBU concerns stated:

“… we note the matters raised by the RTBU in its Form F18 concern the accuracy of the statements made by the ARTC as part of the application for the Agreement to be approved.  There may be some aspects of these which go to the matters on which the Commission need to be satisfied with respect to sections 186-187.  This is not immediately clear from our reading of that part of the Form F18 prepared by the RTBU. It is also not apparent to our union that the RTBU is asserting that there are matters upon which the Commission cannot be satisfied in its consideration of section 186-187 and the proposed Agreement.”

[11] On 14 April 2020, the ASU wrote to my Chambers, as follows:

“I refer to the directions made by Deputy President Boyce on 27 March 2020.

The ASU does not oppose the approval of the Agreement, provided the Commission is satisfied that the requirements set out in sections 186 and 187 of the Fair Work Act are met”.

[12] The ASU made no further submissions in the matter.

[13] On 14 April 2020, the RTBU filed written submissions in the matter.

[14] On 15 April 2020, the Applicant wrote to my Chambers as follows:

“Australian Rail Track Corporation requests that the matter be listed for mention.

The Directions issued on 27 March 2020 required the RTBU to file and serve: an outline of submissions, witness evidence, and documentary evidence the RTBU seeks to rely on. The RTBU has only filed and served submissions which are little more that the assertions made in the Form 18 which they filed and have stated that the submissions constitutes 'the entirety of the RTBU’s documentary material'.

The directions by the Commission sought to establish a basis to determine if there is any substance to the RTBU claims. There is no evidence grounded in the business of ARTC, the Rail Award and the Agreement to support the assertions that are made in the submissions supposedly establishing a failure to meet s186(2)(d) of the Act, referred to as s185 by the RTBU.

In the circumstances we seek the matter be relisted to address the failure of the RTBU to comply with the Directions”.

[15] On 22 April 2020, I held a further directions hearing, whereby I determined to amend the Initial Directions to include the following (Amended Directions):

“[4A] By 4:00pm AEST on Wednesday, 29 April 2020, the RTBU is to file with the Commission, and serve on all parties in this matter, any further submissions it seeks to rely on regarding the approval of the Agreement.

…

[5] By 4:00pm AEST on Wednesday, 6 May 2020, the Applicant is to file with the Commission, and serve on any and all bargaining representatives, an outline of submissions, witness evidence, and documentary evidence the Applicant seeks to rely on support of the approval of the Agreement, and in response to any submissions and/or evidence provided by as bargaining representative to that date.

[6] Listing for Thursday, 30 April 2020 is vacated”.

[16] On the same day, my Chambers sent a list of issues to the parties in this matter. Those issues were identified by the Commission regarding the approval of the Agreement. The ARTC responded to the Commission’s issues by way of submissions dated 6 May 2020, supported by the Witness Statement of Ms Merrilyn Beer, Employment Relations Analyst, ARTC. None of the Unions challenged any of the ARTC submissions or evidence. None of the Unions made submissions in respect of the Commission’s issues.

[17] On 28 April 2020, the RTBU wrote to my Chambers as follows:

“We note the amended directions issued by Deputy President Boyce on 22 April 2020.

Please be advised that the RTBU will not be filing further submissions in this matter, and will stand by our first submissions filed on 14 April 2020. We reiterate that we do not oppose the approval of this Agreement”.

Submissions

[18] In addition to the matters raised in its Form F18, the RTBU filed written submissions (dated 14 April 2020) asserting that the Agreement requires various undertakings to ensure that it complies with the BOOT.

[19] Having regard to the history of this matter, and the directions issued by the Commission, the ARTC made the following submissions in respect of the issues raised by the RTBU:

“7. ARTC does not propose to address the concerns raised by the RTBU in its submissions filed on 14 April 2020 or its Form 18 filed on 10 March 2020. This is because the RTBU has only made vague, speculative claims and has not produced any evidence in support of any of the assertions made. As a consequence, neither ARTC nor the Commission are in a position to understand any evidentiary basis for the RTBU's claims and whether there is any substance to those claims such as to establish a possible failure of the Agreement to pass the BOOT in breach of section 186(2)(d) of the FW Act.

8. ARTC provided a response to the RTBU's F18 after it was filed and before the timetable for submissions was issued. On 15 April 2020, after receiving the RTBU's initial submissions, ARTC requested this matter be listed for mention to address the RTBU's failure to comply with the directions issued on 27 March 2020 regarding the filing of evidence and submissions to support its claims. The matter was subsequently listed for mention on 22 April 2020.

9. Among other things, during the mention held on 22 April 2020, Deputy President Boyce informed the RTBU that:

(a) Further evidence and particulars were needed to support the issues raised in the RTBU's Submissions regarding award compliance, for example in relation to overtime and shift allowances; and

(b) If the RTBU took issue with the Application, it would need to identify each specific issue with clarity, as well as the basis/reasons for each issue, so that ARTC could understand what its complaints were and could respond.

10. On 22 April 2020, Deputy President Boyce also issued amended directions which gave the RTBU a further opportunity to file any further submissions and evidence it sought to rely on regarding the approval of the Agreement by 29 April 2020.

11. However, despite being given the opportunity to file further submissions and evidence in support of its claims, the RTBU chose to write to the Commission on 28 April 2020, advising that it "will not be filing further submissions in this matter" and would stand by its original submissions”.

[20] The foregoing ARTC submissions correctly recognise that where a bargaining representative asserts that an enterprise agreement does not meet relevant statutory requirements (e.g. the BOOT), such assertions need to be properly identified and particularised. It should not be left to an applicant employer, or the Commission, to sift through asserted issues as to non-compliance by a bargaining representative, especially where the Commission has not identified such issues itself. Although it is trite to say that the Commission must itself be satisfied as to compliance with relevant statutory provisions, it is not appropriate for a bargaining representative to have the Commission inquire into issues raised on the basis of general assertions. Notwithstanding this, I have considered the issues raised by the RTBU, and make the findings that follow.

Determination of compliance with BOOT

[21] In ALDI Foods Pty Limited v SDA, 2 the High Court of Australia stated of the BOOT:

“Whether the Full Bench was satisfied that an employee was better off overall under the Agreement than under the award required an evaluative assessment after consideration of the provisions of the award and the Agreement that may have been more beneficial to employees and those that may have been less beneficial. This assessment is a matter of the kind which has been described in other contexts as:

“a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”. 3

RTBU Issue One – Classifications not translated

[22] In relation to RTBU Issue One, the RTBU submitted:

“14. There is no obvious commonality or point of reference between employee classifications in the Award and the pay grades outlined in the proposed Agreement.

15. The Commission has no way of being satisfied that employees at certain pay grades are better off overall compared to the classifications in the Award.

16. ARTC should provide position or classification descriptions of who is in those pay grades and their necessary responsibilities and skills to make this readily translatable”. 4

[23] The RTBU submission proceeds upon an erroneous premise. Item 3.2 of the Form F17 filed by the ARTC sets out a table of classification matching. Having considered that table, I reject the contention as to classifications not being translated by the ARTC, including for the purposes of BOOT analysis. Despite the opportunity to do so, the RTBU made no further submissions, and brought no evidence, on this issue.

RTBU Issue Two – Shiftwork allowances

[24] The RTBU asserts that not enough information has been provided to satisfy the Commission that relevant employees employed under the ‘General’ or ‘Network Control’ sections of the Agreement pass the BOOT. 5 Having review the terms of the Agreement, as against the Award, I reject the RTBU contention (to the extent that I am able to understand it on the general submission made). Terms and conditions applicable to relevant employees employed under the ‘General’ or ‘Network Control’ section of the Agreement pass the BOOT. Despite the opportunity to do so, the RTBU made no further submissions, and brought no evidence, on this issue.

RTBU Issue Three – Rates of pay

[25] The RTBU asserts that whilst the ARTC states that rates of pay under the Agreement are significantly higher than award rates, “this may not be correct”. The RTBU provides one example of a Train Transit Manager, which it says has a disparity of income per month of $1,226.87 under the Agreement (when compared to the Award provisions concerning rates of pay, overtime and shift penalties). 6

[26] I have assessed the rates of pay under the Agreement, and compared same to the Award (including by reference to overtime and shift penalty provisions). In this regard, I do not accept that the RTBU submissions on this issue are sustainable. All of the rates of pay under the Agreement are significantly higher than the Award.

[27] In relation to Train Transit Manager example, the RTBU submits that the relevant classification is a Level 8 or Level 9 Clerical, Administrative and Professional Classification under the Award, as compared to the Agreement classification of Level 5. But the Agreement Level 5 classification is (as at test time) over 30 percent higher than the Award Level 8 classification, and around 18.27 percent higher than the Award Level 9 classification. The Agreement provisions as to overtime and shift penalties, and annual salaries, as compared to the relevant Award provisions, do not give rise to any concern for me that employees will not be better off overall under the Agreement. Despite the opportunity to do so, the RTBU made no further submissions, and brought no evidence, on this issue.

RTBU Issue Four – Travelling away from home allowance

[28] The RTBU asserts that the travelling away from home allowance for Infrastructure Maintenance employees at clause 11.5.2 of the Agreement sets a cap on daily expense payments, whereas the Award adopts a “reasonable and necessary cost of expenses” approach. 7 The highest the RTBU puts this issue is that it “may” limit reimbursement amounts for relevant employees who travel frequently. The RTBU brings no evidence to support its submissions on this issue. Having regard to the terms and conditions under the Agreement, and the allowances (and additional expense allowances) payable under clause 11.5 of the Agreement, I have no concerns that employees will not be better off overall under the Agreement.

RTBU Issue Five – Consultation term

[29] The RTBU submits that the consultative scheme under the Agreement for General and Network Control employees is “vague”, “fairly undefined” and “non-committal”. 8 I reject this general submission. The consultation term in the Agreement is such that there is no requirement to include the Model Consultation Term from the Act as a term of the Agreement. Despite the opportunity to do so, the RTBU made no further submissions, and brought no evidence, on this issue.

RTBU Issue Five – Relocation expenses

[30] The RTBU submits that the Award provides for the payment to a relevant employee of reasonable and necessary relocation expenses, whereas the Agreement makes no provision for same. 9 I reject the RTBU submission on this issue. The terms of clauses 2.3.3 and 2.4.3 provide that relevant employees will be consulted and offered assistance (including relocation assistance) before their work location is changed. Whilst this may be in accordance with the ARTC policy on this issue, there is no reason as to why any issue in this regard (as to relocation assistance to be provided) cannot be resolved under the Agreement dispute settlement procedure (based upon the individual facts and circumstances of the employee/s who raise the dispute).

Other RTBU Issues

[31] The RBTU in its Form F18 also raised general concerns about superannuation contributions, 10 and the Agreement’s flexibility term.11 The RTBU did not press such concerns in its written submissions. Having considered those concerns as best I can decipher, I reject them. The superannuation concern is based upon the RTBU’s allegations in relation to the rates of pay for Train Transit Managers (which I have already rejected in paragraph [24] above). The flexibility term in the Agreement is such that there is no requirement to include the Model Flexibility Term from the Act as a term of the Agreement.

Conclusion

[32] Having reviewed the submissions of the ARTC, the Form F17 filed by the ARTC, and the unchallenged evidence of Ms Beer, I am satisfied that all of the Commission’s issues in respect of the approval of the Agreement have now been resolved. The ARTC has offered to provide an undertaking confirming that s.117 of the Act will apply to employees covered by the Agreement. Given the operation of s.55 of the Act, I do not consider that such an undertaking is required. 12

[33] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[34] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[35] The Agreement has been approved by way of separate Decision in [2020] FWCA 2801.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE508157  PR719956 >

 1   To the extent that this decision deals with, make findings and/or refers to the issues raised in the RTBU’s Form F18, they equally apply to the issues raised by the ASU in its Form F18.

 2 [2017] HCA 53; (2017) 262 CLR 593.

 3 Ibid, at [99].

 4   See also RTBU Form F18, Item 7, sub-item (3).

 5   RTBU Submissions, 14 April 2020, at [17]-[19]. RTBU Form F18, Item 7, sub-item (2)

 6 RTBU Submissions, 14 April 2020, at [20]-[22], and [26]. RTBU Form F18, Item 7, sub-item (6(i)).

 7   RTBU Submissions, 14 April 2020, at [23]-[25]. RTBU Form F18, Item 7, sub-item (5).

 8 RTBU Submissions, 14 April 2020, at [27]. RTBU Form F18, Item 7, sub-item (6(ii) and (iii)).

 9 RTBU Submissions, 14 April 2020, at [29]. RTBU Form F18, Item 7, sub-item (6(v)).

 10   RTBU Form F18, Item 7, sub-item (6(v)).

 11   RTBU Form F18, Item 7, sub-item (7).

 12 Note RTBU Submissions, 14 April 2020, at [28]. RTBU Form F18, Item 7, sub-item (6(iv)).