Australian Rail, Tram and Bus Industry Union (139V) v Metro Trains Melbourne Pty Ltd

[2021] FWC 741

[2021] FWC 741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Rail, Tram and Bus Industry Union (139V)
v
Metro Trains Melbourne Pty Ltd
(C2020/4737)

COMMISSIONER MCKINNON MELBOURNE, 12 FEBUARY 2021

Alleged dispute about matter arising under the enterprise agreement – Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2019 – depot strength – adequate facilities – car parking arrangements at Flinders Street Station.

[1] On 21 May 2020, I approved the Metro Trains Melbourne Rail Operations Enterprise Agreement 2019. The Agreement covers Metro Trains, its employees in rail operations and the Australian Rail, Tram and Bus Industry Union.

[2] Shortly after the Agreement was approved, a dispute arose about whether Metro is required to subsidise work-related access to the Arts Centre car park in Melbourne for train drivers based at Flinders Street Station. It follows an alleged change in company policy in the period from March to April 2020 that limits employee use of the car park.

[3] Resolution of the dispute depends on the meaning of clause 9(c) of Schedule 1 to the Agreement, which among other things requires Metro to provide adequate facilities at “home depots” if “depot strengths” are increased. The term “depot strength” is not made express by the terms of the Agreement, but I accept the submission of the parties that it means the number of employees permanently allocated to a particular home depot. This meaning is consistent with both the language used in clause 4.1 and clause 9(a) of the Agreement and the ordinary meaning of the term read in context in the Agreement as a whole.

[4] The parties hold different views about whether clause 9(c) applies generally if there is an increase in depot strength or only in connection with Metro’s consideration of a proposal to alter or introduce new home depots. The parties agree, and the data confirms, that there has been an increase in the depot strength at Flinders Street Station since the Agreement was made. The parties do not agree about whether the increase is covered by clause 9(c). There is also a dispute about the effect of the new car park policy on Metro’s provision of “adequate facilities” for drivers at Flinders Street Station.

[5] Each of the matters in dispute arise under Schedule 1 to the Agreement. Jurisdiction exists to deal with the dispute. As the dispute was unable to be resolved by conciliation, it can now be dealt with by arbitration (except to the extent that the dispute relates to occupational health and safety).

[6] The questions for determination are these:

1. Does the second sentence of clause 9(c) of Schedule 1 to the Agreementoperate independently of, or is it conditioned by, the first sentence of clause 9(c)?

2. For the purposes of this dispute, has the “depot strength” at Flinders Street Station increased within the meaning of clause 9(c)?

3. Are car parking facilities provided in accordance with the Metro Arts Centre Car Park Pass Procedure (L3-TSD-PRO-082) for drivers whose home depot is Flinders Street Station “adequate facilities” within the meaning of clause 9(c)?

[7] For the reasons that follow, the answers are:

1. The second sentence of clause 9(c) of Schedule 1 to the Agreement is conditioned by the first sentence of the same clause.

2. No.

3. Not necessary to answer, but if it were, ‘yes’.

The Agreement

[8] The Agreement is a comprehensive agreement covering Metro and its rail operations employees that operates to the exclusion of other awards and agreements. This includes “all prior agreements, formal and informal”, except to the extent that past agreement terms are specifically preserved in the Agreement. It is to be read in conjunction with the National Employment Standards, which prevails to the extent that it is more beneficial. Under clause 1.4.3, “omitted” wages, allowances or entitlements will also be paid where it is agreed that the omission of entitlements from the Agreement was unintentional.

[9] Clause 1.5 of the Agreement commits the parties to no extra claims for the life of the Agreement.

[10] Clause 1.6 of the Agreement sets out the aims of the parties in making the Agreement, including to work cooperatively together, to embrace change as a means of securing permanent employment, income and profitability and to focus on the safety for passengers and employees.

[11] Clause 1.10 of the Agreement sets out the process for consultation in relation to major changes of significance to employees and changes to regular rosters or ordinary hours of work. The process includes giving notice of proposed changes at least 28 days in advance, discussing proposals with employees and their nominated representatives and providing written information to employees about the proposals. Consultation is to occur within a reasonable timeframe and prompt and genuine consideration is to be given to matters raised by relevant employees in response.

[12] Clause 1.11 of the Agreement contains a dispute resolution process of broad scope, applying to matters arising under the Agreement, the National Employment Standards and matters pertaining to the employment relationship. The Commission is empowered to resolve such disputes by mediation, conciliation, opinion or recommendation. Matters arising under the Agreement and the National Employment Standards (except matters relating to occupational health and safety) can also be resolved by binding arbitration if unable to be resolved by other means.

[13] Clause 2.24 of the Agreement creates an entitlement to free travel for full time and permanent part time employees for their personal use, covering first class travel on Melbourne metropolitan trams, trains and buses as well as V/Line passenger services. There is also limited access to intrastate and interstate travel as well as access to retired employee travel passes for defined employee groups.

[14] Clause 2.27 of the Agreement deals with amenities. It covers the minimum requirements for shared meal facilities, male and female staff toilets and meal room capacity and preference.

[15] Section 4 of the Agreement sets out the employment conditions for drivers or “driver grades”, which includes trainee drivers, qualified drivers, on the job trainers, driver trainer specialist and principal drivers.

[16] Clause 4.1 of the Agreement defines “home depot” as “the Depot to which the Driver is permanently appointed”.

[17] Clause 4.2 of the Agreement provides for the secondment of drivers where relevant positions become available. Seconded employees at depots will have their positions filled if the secondment is longer than six months (except in the case of driver trainer specialists and principal drivers or secondments due to parental leave or long term absence). Before a secondment completes, employees can be offered a permanent role in the seconded position or transferred back to their pre-secondment role. Employees can also choose to return to the original role.

[18] Schedule 1 to the Agreement applies to employees employed in the “driver grades” specified in clause 4.1 of the Agreement and deals with driver rostering, training and work practice changes.

[19] Clause 2 of Schedule 1 provides that during periods of occupations/line closures (partial or full) on account of construction and renewals projects including level crossing removal works, employees may be required to temporarily work at an alternative home depot for up to three months or as otherwise agreed.

[20] Clause 5 of Schedule 1 requires that drivers be allocated to a home depot within one of three operating groups (Metro North, Metro South and Metro Central). Relocation to a new home depot can only occur when the implementation of operating groups and/or Flinders Street Decentralisation takes effect. Employees at outstations cannot be relocated to alternate depots as a result of the terms of the Agreement.

[21] Clause 6 of Schedule 1 deals with “Flinders Street Decentralisation”, defined as “the relocation of employees currently appointed to Flinders Street ERD to Home Depots located in Metro North or Metro South”. Clause 6 contains an acknowledgment by the parties of the need for decentralisation to occur during the life of the Agreement for five identified reasons: to address capacity issues at Flinders Street; to maximise driver facilities in outstations; to cover outstation rotations; to optimise outstation rosters and coverage; and in response to government decentralisation-related initiatives. There are conditions on the process of decentralisation, which must be firstly by expression of interest on a seniority basis and then by involuntary transfer if there are not enough volunteers. There are also limits on the transfer of employees between depots in connection with decentralisation.

[22] Clause 7 of Schedule 1 operates “notwithstanding” the Flinders Street Decentralisation process and permits the transfer of Principal Drivers and Driver Training Specialists to alternate home depots for specified purposes.

[23] Clause 9 of Schedule 1 is about home depots – that is, the depots from which a driver ordinarily commences and ceases work.

[24] Clause 9 provides as follows:

“9. Depots

(a) Flinders Street Station (ERD) and the following outstation locations are depots where it is agreed Employees can commence/cease duty at their allocated location (Home Depots).

Belgrave	MACLEOD
BROADMEADOWS	MERNDA
CRAIGIEBURN	MORDIALLOC
CRANBOURNE	NEWPORT
CALDER PARK	PAKENHAM
DANDENONG	PAKENHAM EAST
ELTHAM	RINGWOOD
EPPING	SANDRINGHAM
FRANKSTON	WATERGARDENS
GLEN WAVERLEY	SUNBURY
HURSTBRIDGE	UPFIELD
KANANOOK	UPPER FERNTREE GULLY
LILYDALE	WESTALL

(b) North Melbourne Maintenance depot is also treated as a Home Depot for Drivers appointed to D Roster. However such shifts are required to be dual sign on for increased rostering flexibility.

(c) During the life of the Agreement, the Company may consider altering or introducing new home depots (including an alternative to Flinders Street Depot, e.g. Flinders Street upgrades) and consultation will be provided in accordance with clause 1.10. In the event depot strengths are increased or a new depot is established, the Company will ensure that adequate facilities are provided (e.g. male and female toilets, locker rooms, sign on area, on site car park).

(d) In the event the Company cannot provide certain facilities set out in clause 9(c) and prior to an increase in depot strengths or the introduction of a new depot, a working party will be established at the local level that will be made up of equal numbers of employee and employer representatives. The role of the working party will be to identify and introduce an equivalent outcome.”

[25] Clause 11 of Schedule 1 deals with group rotation. Drivers appointed to home depots in group rotation zones are required to sign on and off at the depot nominated within their Zone. There are three group rotation zones: (1) Sunbury, Watergardens, Calder Park; (2) Westall, Dandenong; (3) Pakenham, Pakenham East.

[26] Clause 12 deals with train driving grades and provides, among other things, that trainee drivers may be assigned to undertake training at the Flinders Street depot or any metropolitan depot.

[27] Clause 26 of Schedule 1 permits qualified drivers to apply for transfer to an alternative home depot and if successful, to remain there for at least two years.

The effect of clause 9(c) of Schedule 1

[28] Clause 9 of Schedule 1 to the Agreement has a number of features. It lists each of the agreed home depots for the purposes of the Agreement, including in one case, for a limited purpose with conditions. It provides for consultation where Metro is considering altering home depots or introducing new ones. It commits to the provision of adequate facilities where depot strengths are increased or a new depot is established without defining the term “adequate facilities”, although examples are provided and a standard of ‘equivalency’ is set. Finally, it provides for a local working party to be convened if Metro cannot provide certain facilities “set out in clause 9(c)” before depot strengths are increased or a new depot is introduced. The role of the working party is to identify and introduce an “equivalent outcome”.

[29] Clause 9 is located in a Schedule which is specific to driver rostering, training and work practice changes. Each of its subclauses are connected. Clause 9(a) lists the agreed home depots, and clause 9(b) adds to the list but for D Roster only. Clause 9(c) permits Metro to consider and propose changes to the agreed list in clause 9(a) and (b) on the basis that there will be consultation under clause 1.10 of the Agreement. If depot strengths are to increase or a new depot is to be introduced, Metro must ensure the provision of adequate facilities. Clause 9(d) recognises that issues might arise under clause 9(c) in relation to the provision of adequate facilities and contains a process for dealing with those issues.

[30] The relationship between each of the four subclauses in clause 9 suggests that the parties intended clause 9 of Schedule 1 to be read as a whole, rather than as a series of separate or ‘stand alone’ terms. Other terms of the Agreement also give meaning to clause 9, both directly (such as clauses 1.10 and 4.1 of the Agreement) and indirectly (those clauses whose subject matter touches on, or overlaps with, the subject matter of clause 9).

[31] The evident purpose of clause 9 is threefold:

1. To set out those depots that, at the time the Agreement was made, were agreed as suitable home depots both in terms of location and facilities provided for the comfort and safety of employees;

2. To ensure that any changes to the agreed list of home depots are the subject of prior consultation, the purpose being to facilitate new or further agreement between the parties about the location of home depots and their facilities where required:

a. Where a home depot is altered, this may increase the depot strength at one or more home depots, placing such pressure on their facilities that what was previously agreed as adequate requires review; and

b. Where the proposal is to establish a new home depot, no agreement will yet have been reached on the location or standard of facilities to be provided;

3. To ensure that if such changes proceed, the minimum obligation on Metro is to provide adequate facilities at home depots affected by the change.

[32] Understood in this way, clauses 9(a) and (b) list each of the home depots at which adequate facilities were provided at the time the Agreement was made. This includes the facilities provided at Flinders Street Station. That is not to say that the facilities in question are without issue. That something is adequate does not mean that it is perfect, but rather that it will suffice.

[33] Clause 6 of Schedule 1 the Agreement expressly recognises that there are capacity issues at Flinders Street Station. Issues of capacity are broader in scope than facilities alone, although in the present context the two concepts overlap. While it might be tempting to read clause 6 as negating agreement reached in relation to clause 9 as it applies to Flinders Street Station, this would be to read the Agreement in way that sets one term against another. This is unlikely what the parties intended, and also unnecessary in circumstances where the two are capable of concurrent and meaningful operation. One deals with those depots considered suitable as home depots for drivers and how the list of depots can be changed. The other sets out a process for the implementation of operational change to achieve the five stated objectives in that clause.

[34] Having set out the list of agreed home depots in clauses 9(a) and (b), the Agreement then deals with how the agreed list might be changed through clauses 9(c) and (d). These clauses operate in circumstances where no agreement has yet been reached about the adequacy of a location or facilities provided at a particular depot, as well as in cases where the subject matter of what was agreed has or is likely to change so materially that further agreement is required. A mere increase in depot strength at an agreed home depot is insufficient to trigger the operation of clause 9(c), because agreement has already been reached about the adequacy of facilities in that respect. Its operation requires that there be a connection between the actual or proposed increase in depot strength and Metro’s consideration either of change(s) to home depots or the introduction of new ones.

[35] This reading of clause 9(c) is reinforced by clause 9(d), which links the provision of adequate facilities to an increase in depot strengths in the same context as dealing with introduction of a new depot. The overlap between the concepts in the first sentences of both clause 9(c) and clause 9(d) indicate that the two clauses are to be understood as each dealing with the same subject matter.

[36] The operational context in which clause 9(c) applies is also relevant. Depot strength increases are a regular occurrence at Flinders Street Station, averaging about twice each week (discussed further below). It would be a strange result if the parties intended, in giving the second sentence of clause 9(c) independent operation from the first, that routine allocation of new employees to home depots could be delayed for months or even years pending regular reviews of relevant facilities by local working parties.

[37] In a similar vein, it is unlikely the parties agreed to create an additional barrier to the movement of existing employees between home depots by agreement, particularly in light of express terms of the Agreement dealing with the movement of employees to and between home depots.

[38] For these reasons, clause 9(c) has a plain meaning and can only be properly understood when read as a cohesive whole. The second sentence of clause 9(c) is conditioned by the first sentence of the same clause.

For the purposes of this dispute, has the “depot strength” at Flinders Street Station increased within the meaning of clause 9(c)?

[39] There is no dispute that the number of employees whose home depot is Flinders Street Station has increased in recent years. According to Metro, an additional 298 drivers have “qualified” into Flinders Street Station since 2017, including approximately112 drivers in the past year. At the time of making the Agreement, the number of drivers permanently appointed to Flinders Street Station was less than it is now. It follows that the depot strength at Flinders Street Station has increased.

[40] However, that is not a sufficient answer to the question, which is both about whether there has been an increase in depot strength and if so, whether the increase falls within the meaning of clause 9(c) of the Agreement. The answer depends on the scope of clause 9(c).

[41] So far as clause 9(c) deals with proposals to introduce a new home depot, its scope is clear. It covers any proposal to add to the list of home depots in clauses 9(a) and (b).

[42] So far as the clause deals with altering home depots, the words “the Company may consider altering…home depots” limit the scope of clause 9(c) to changes that will alter home depots listed in clauses 9(a) and/or (b) and that are within Metro’s capacity to control.

[43] The word ‘alter’ means to “make different in some particular; modify; to become different in some respect”. 1 In clause 9(c), this includes physical changes to a home depot such as the addition or removal of buildings as well as changes to the home depot of one or more employees. In can also mean a combination of the two – such as where physical changes to a depot necessitate the relocation of employees from one home depot to another. This is likely what the parties had in mind when they adopted the example in clause 9(c) of “an alternative to Flinders Street Depot, e.g. Flinders Street upgrades”.

[44] Not all changes to home depots are within scope of clause 9(c). The Agreement at clauses 5, 6, 7, 12 and 26 of Schedule 1 expressly deals with the movement of drivers to and between home depots in circumstances that sit outside the scope of clause 9. While clause 2 of Schedule 1 also deals with the movement of drivers between depots, it does so in relation to temporary movements. It cannot result in changes to an employee’s home depot, which is a depot to which an employee is permanently appointed.

[45] In summary, in relation to ‘altering home depots’, clause 9(c) applies to changes that:

1. are under consideration at a time after the Agreement has been made;

2. are within Metro’s capacity to control;

3. would alter home depots listed in clauses 9(a) and/or (b) or the employees who are or will be appointed to those depots; and

4. are not changes covered by clauses 5, 6, 7, 12 and 26 of Schedule 1 to the Agreement.

[46] There is no proposal by Metro to introduce a new home depot in connection with the recent depot strength increase at Flinders Street Station.

[47] As far as any changes that would alter home depots, there are two potential changes at issue: changes to the car park policy in March 2020 and an increase in the number of roster lines to accommodate newly trained drivers in June 2020.

[48] The change in car park policy is not about altering home depots, either directly or indirectly. The change was approved by Metro on 18 March 2020 and was no longer under consideration when the Agreement was made on 17 April 2020. The nature of the change and its timing means that it is not one that falls within the scope of clause 9(c).

[49] The roster lines change was under consideration at a time after the Agreement was made and is plainly within Metro’s capacity to control. It affects Flinders Street Station, which is a home depot for the purposes of clause 9(a) of the Agreement. However, the roster lines change is covered by clause 5 of Schedule 1 which permits the allocation of employees to home depots. Roster changes are separately contemplated by the Agreement at clause 20 of Schedule 1. The roster lines change is also not a change that falls within the scope of clause 9(c).

[50] The answer to the second question is ‘no’. There has been an increase in depot strength at Flinders Street Station since the Agreement was made, but not within the meaning of clause 9(c) of Schedule 1 to the Agreement.

Are car parking facilities provided in accordance with the Metro Arts Centre Car Park Pass Procedure (L3-TSD-PRO-082) for drivers whose home depot is Flinders Street Station “adequate facilities” within the meaning of clause 9(c)?

[51] It is not necessary to answer this question. For the reasons above, the parties are taken to have agreed that the car parking facilities provided at Flinders Street Station at the time the Agreement was made were “adequate facilities” for the purposes of clause 9(c) and the car park policy change is not covered by clause 9(c).

[52] If it were necessary to decide, I would answer ‘yes’ because the case that car parking facilities for employees based at Flinders Street Station are now inadequate is not compelling.

[53] The concerns raised by employees in this respect are summarised below, and fall into four broad categories:

Car park access provided under the policy

1. There is no train that can get me to work to start on time or home after my shift (Exhibits 4, 8, 11, 12)

2. If my train is cancelled, I have to go back home and drive in to get to work on time. This is stressful and takes longer (Exhibit 4)

3. I don’t have time to ask permission to use the car park when I need it (Exhibit 8)

Inconvenience

4. The station car parks are full by the time I need to travel to work (Exhibits 9, 11,12)

5. To get to work on time, I will have to catch an earlier train (Exhibit 4)

6. It is quicker and/or easier to drive than catch the train (Exhibits 2, 4, 7, 9, 12)

7. It is efficient for me to do shopping and other tasks on the way home. Not having my car for the drive home would cause inconvenience and take longer (Exhibits 4, 12).

8. Parking at other depots means walking between 5 and 20 minutes to the platform (Exhibit 9).

Service interruptions

9. If the train is late, I might be late for work (Exhibit 4)

10. Finding a car park and changing trains is stressful, especially if trains run late (Exhibit 12)

Safety

11. Longer travel times due to train use cause higher fatigue levels (Exhibit 5)

12. Catching the train means I will lose sleep, breaks between work and home life or time to prepare mentally for my shift (Exhibits 4, 12)

13. Catching the train in my uniform exposes me to risks of abuse and violence from the public, especially at night (Exhibits 11, 12)

14. If I drive and park at the Arts Centre Car Park, I know the car is safe (Exhibits 4, 9, 12)

[54] The first category does not arise because car parking access is provided under the policy in the circumstances identified. Drivers based at Flinders Street Station can access an Arts Centre Pass if they “require access to and from” the station “when train services are unavailable”. Employees can seek permission to park in the Arts Centre Car Park where service disruptions could affect their sign on time. The evidence confirms that permission has been granted on a number of occasions under the policy.

[55] Personal inconvenience is not a basis for concluding that car parking facilities provided for drivers based at Flinders Street Station are inadequate. Metro’s obligation to provide adequate facilities does not extend to matters that generally fall within the responsibility of the employee (where they live, how they get to work, when they shop and run errands, sleeping habits and the like). This dispute arises in the context of a metropolitan public transport network. One of the benefits of working for Metro is that employees have access to free travel across the network, including on trains, trams, buses and VLine passenger services. Access to the car park supplements this subsidised travel and supports private travel by car at times when travel on the network is not a viable alternative.

[56] Train delays and the need to change trains ‘en route’ are common occurrences for employees who catch the train to work. These factors do not demonstrate that a lack of subsidised parking at the Arts Centre Car Park means that adequate facilities are not provided for drivers working from Flinders Street Station.

[57] Finally, while employees have raised legitimate safety concerns in connection with their journey to and from work, the capacity of the Commission to arbitrate on such matters is limited by the scope of the Agreement’s dispute resolution term. The matters identified by employees are covered by comprehensive occupational health and safety legislation, regulation and guidance material. It is appropriate that such matters be resolved instead through Metro’s established processes for dealing with occupational health and safety.

[58] The dispute is determined accordingly.

COMMISSIONER

Appearances:

Y Bakri of Counsel for the Applicant.
B Popple of Herbert Smith Freehills for the Respondent.

Hearing details:

2020.
Melbourne (video hearing):
November 30.

Printed by authority of the Commonwealth Government Printer

<PR726908>

 1   Macquarie Dictionary Online