Australian Rail, Tram and Bus Industry Union-New South Wales Branch v Australian Rail Track Corporation Ltd T/A Australian Rail Track Corporation Ltd
[2020] FWC 759
•18 FEBRUARY 2020
| [2020] FWC 759 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Rail, Tram and Bus Industry Union-New South Wales Branch
v
Australian Rail Track Corporation Ltd T/A Australian Rail Track Corporation Ltd
(B2019/961)
DEPUTY PRESIDENT BULL | SYDNEY, 18 FEBRUARY 2020 |
Application for a scope order – application opposed by the ARTC – whether proper notification – whether group fairly chosen – whether scope order would promote fair and efficient bargaining – order not issued – application dismissed.
[1] The Australian Rail Tram and Bus Industry Union (RTBU) has filed an application pursuant to s.238 of the Fair Work Act 2009 (the Act) for a scope order for a proposed enterprise agreement.
[2] The RTBU’s application (as a bargaining representative) seeks that the Fair Work Commission (the Commission) issue a scope order in regard to enterprise agreement negotiations with the Australian Rail and Track Corporation Ltd (the ARTC) for its New South Wales employees. The scope order seeks to limit the scope of any new agreement to ‘Operational employees’ who are defined in the application as:
• Network Control employees
• Signal Electricians, and
• Engineering and Technical employees 1
[3] The proposed agreement would not cover ‘Office employees’ who are described by the RTBU as:
• Professional employees
• Support/Administration employees 2
Background
[4] The parties are currently covered by Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2016 3 (2016 Agreement) which has a nominal expiry date of 19 October 2019. The 2016 Agreement was negotiated with a number of unions, including the RTBU, and five employee bargaining representatives. The other unions included the:
• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (ETU)
• Association of Professional Engineers, Scientists and Managers Australia (Professionals Australia), and the
• Australian Municipal, Administrative, Clerical and Services Union (ASU)
[5] The RTBU and other unions had unsuccessfully opposed the approval of the 2016 Agreement on a number of grounds including that the employees covered were not fairly chosen. 4 The 2016 Agreement applies to all NSW employees other than a number of senior management positions.
[6] During bargaining for the predecessor agreement the Australian Rail Track Corporation (NSW) Enterprise Agreement 2012, the RTBU also unsuccessfully applied for a scope order to remove the classification of Network Controllers from coverage of the then proposed agreement. The RTBU submitted in conjunction with other arguments that the position of Network Controllers was geographically, operationally or organisationally distinct. 5
[7] In bargaining for a replacement of the 2016 Agreement there have been eight bargaining meetings which have generally lasted between 2 -3 hours, although the meeting held on 17 September 2019 lasted over six hours. 6 These meetings occurred during 2019 on the following dates:
1. 13 June
2. 8 July
3. 22 July
4. 5 August
5. 13 August
6. 19 August
7. 2 September
8. 17 September 7
[8] In respect to the current bargaining negotiations the RTBU applied for its scope order on 16 September 2019 and on the following day, 17 September 2019, being the last bargaining meeting, the ARTC informed the bargaining representatives that it would be putting the proposed agreement out to vote. No further bargaining meetings have taken place since. 8
Submissions of the RTBU
[9] The RTBU submit that the current negotiations cover both ‘Operational’ and ‘Office’ employees and contend that its scope application will create two agreements, one for ‘Operational employees’ and one for ‘Office employees’ being professional and support/administration employees. 9 The RTBU state that the ETU and the ASU support the application.10
[10] The RTBU submit that the Operational employees it seeks the scope order on behalf of can be justified on the following basis:
1. Operational employees are fairly chosen, they are geographically, operationally and organisationally distinct from Office employees.
2. Separating ‘Operational employees from Office employees would lead to more efficient and fair bargaining.
3. The RTBU is meeting its good faith bargaining requirements
4. It is reasonable to make the proposed order.
[11] It was submitted by the RTBU that its concerns about bargaining not proceeding fairly or efficiently were made clear to the ARTC as a result of correspondence sent to the ARTC on 15 August 2019 and 13 September 2019 11. On this basis the RTBU submits that the notice requirements set out at s.238(3) of the Act have been satisfied.
[12] In support of the RTBU application evidence was given by:
• Toby Warnes – Director of Organising RTBU
• John Budden – Signal Maintenance Engineer Hunter Valley Region, ETU Bargaining representative
• John Pitcher – Signals Workgroup Leader
• Mr Michael Milburn – Network Controller
• Timothy Partridge – Network Controller Network Control Centre North Broadmeadow
[13] Mr Warnes provided two witness statements 12 and was subject to cross examination. Mr Warnes confirmed that the employees sought to be covered and not covered by the proposed agreement were eligible to be members of the RTBU, including Office workers.13 Mr Warnes stated that he believed that at all times the ARTC understood that the scope it sought in a separate agreement was for:
• Network Control employees (not limited to the specific classification of Network Controller)
• Infrastructure Maintenance employees (not limited the specific classification of Signal Engineer) and
• Engineering/Technical employees. 14
[14] The scope sought as explained by Mr Warnes was worded differently from the wording in the scope application itself and the correspondence relied upon and sent to the ARTC by the RTBU on 15 August 2019 and 13 September 2019. This difference in wording was the subject of much controversy during the hearing on 4 and 5 November 2019
[15] During cross-examination Mr Warnes was taken to the RTBU’s Log of Claims document of 12 April 2019 15 where it listed as a claim a “Separate agreement for Network Controllers,” Mr Warnes stated that the use of the term Network Controllers in the document was wrong,16 accepting that in the 2016 Agreement a Networker Controller was a separate classification.
[16] Mr Warnes was also taken to an RTBU newsletter titled ‘ARTC Update 3 – Your Agreement 17 which stated:”
“This claim is for a standalone agreement for Infrastructure Maintenance Employees and Network Control Employees (as defined in the 2015 Agreement). This covers the following workers:
1. Network Controllers
2. Signal Electricians
3. Engineering/Technical workers”
[17] On a number of occasions during cross examination it was put to Mr Warnes that the RTBU scope claim did not cover all Network Control classifications as defined in the 2016 Agreement but only the Network Controller classification based on the application made in the Commission and the two letters of concern sent by the RTBU to the ARTC. In response Mr Warnes explained that he had made a mistake in the terminology used. 18
[18] Mr Budden provided a witness statement 19 and was subject to cross examination. Mr Budden’s evidence did not address any distinctive features of his role as a Signal Engineer to support the RTBU’s scope application but stated that the main agenda item in the negotiations was that:
“8. … field staff, mostly Signal Electricians, Civil Work Group Leaders and Network Controllers want to separate themselves from the office staff either into a separate enterprise agreement or to be under the infrastructure maintenance agreement that covers other field staff including Labourers and Installers. The main reason for this has been that as far as voting numbers are concerned field staff are outnumbered by indoor staff and therefore will be outvoted every time by the office staff.”
[19] Similarly, the evidence of Mr Pitcher, also a Signal Electrician, was that negotiations were not fair as the majority of staff covered by the proposed agreement are office staff. 20
[20] Mr Milburn, a Network Controller, gave evidence that the bargaining was not fair or efficient because the “claims that we put in that deal with us personally, never got answered correctly and weren't being dealt with in the manner that I believed was going to fix our issues that we have in our centre, as such.” 21
[21] The RTBU stated that Operational employees who represent a significant portion of the employees to be covered by the proposed agreement were not having their specific needs and concerns adequately addressed in the current bargaining leading to an unfair outcome. 22 It was submitted that due to the differing views of the numerous parties that the interests of each group were not being aired. If the scope order was made the employees covered would be halved, allowing for fairer and fuller consultation between Operational employees and the ARTC.
[22] It was put that Operational employees were generally employees who worked outside of the office environment and work shifts. 23 They are often required to go out on the road and visit rail tracks and other ARTC sites. Whereas office employees are mainly based in office buildings in Sydney, Broadmeadow and Adelaide. Having to travel offsite, visit rail tracks and conduct repairs are factors said to demonstrate a geographical distinctiveness. 24
[23] Operational employees were said to be operationally distinct by virtue of the work they performed and organisationally distinct as they rarely interact with office employees on a regular basis but interact amongst themselves as a group more frequently. 25 Further, the ARTC had for their own internal purposes grouped the employees into a distinct organisational grouping.26
[24] The RTBU submitted that it had properly articulated its scope claim to the ARTC; this was said to be supported by the correspondence sent to the ARTC and the evidence given by Mr Warnes. It was further put that bargaining was not proceeding fairly or efficiently as the ARTC had been ‘surface’ bargaining.
Submissions of Australian Rail Track Corporation (ARTC)
[25] In correspondence of 15 August 2019 and 13 September 2019, the RTBU advised the ARTC it was seeking a separate enterprise agreement for:
• Network Controllers
• Signal Electricians and
• Engineering /Technical employees
to which the ARTC responded on 23 August 2019 and 18 September 2019 that it did not support a separate agreement in the form proposed by the RTBU.
[26] The ARTC notes that the scope order sought covers one half of the relevant employees submitting that there is no minority group whose bargaining views are being ignored. The bargaining committee consist of a majority of RTBU representatives.
[27] It is contended by the ARTC that the real issue is that a number of claims have not been agreed to by the ARTC that cover the employees in the scope application.
[28] The ARTC submitted that the proposed scope is not fairly chosen, it does not reflect a distinct geographic, operational or organisational group and the proposed scope will lead to less efficient and fair bargaining and that the current negotiations (although now having ceased) concern the same coverage as the 2016 Agreement. This coverage was reflected in the Notice of Employee Representation Rights issued by the ARTC on 19 April 2019.
[29] In support of the ARTC’s position evidence was given by:
• Cassandra Carcary – Manager People Operations, 27
Merrilyn Beer – Employment Relations Analyst 28
Scott Chapman – General Manager Operations Services Hunter Valley. 29
[30] In respect of some aspects of the statutory requirements of s.238 of the Act, the ARTC accepts that the RTBU:
• has been bargaining in good faith,
• has concerns that bargaining for a new agreement is not proceeding efficiently,
• considers the proposed agreement will cover employees that it is not appropriate for the new agreement to cover.
these concessions relate to ss.238(1), 238(2) and 238(4)(a) of the Act. 30
[31] The ARTC does not accept that the requirements contained in ss.238(3), 238(4)(b) - (d) and 238(4A) have been satisfied. These subsections relate to the notice requirements that must be provided to the relevant bargaining representatives, whether the proposed scope will promote fair and efficient bargaining, whether the proposed scope is fairly chosen and whether it is reasonable in all the circumstances for the Commission to make the order as sought.
Section 238(3) Notice requirements
[32] Sub-section 238(3)(a) of the Act requires the RTBU to have provided written notice to the relevant bargaining representatives for the proposed agreement that sets out its concerns. Sub-section 238(3)(b) of the Act requires that a reasonable time within which the other bargaining representatives are able to respond to the identified concerns is provided. Sub-section 238(3)(c) of the Act provides that the RTBU must consider that the relevant bargaining representatives have not responded appropriately.
[33] The ARTC submits that no evidence has been adduced to demonstrate that all relevant bargaining representatives were provided with the notice requirements set out in s.238(3). In particular, there is no evidence that the first letter of 15 August 2019 was given to the two individual bargaining representatives. Although the second letter of 13 September 2019 outlining the RTBU’s concerns was sent to all bargaining representatives, the ARTC submits that the requirement to provide a reasonable time in which to respond to the concerns raised was not met. The ARTC submits that this is because there were only two working days between the RTBU forwarding the 13 September letter of concern to all bargaining representatives and the filing of its scope application. As a result, the RTBU could not also have considered whether the other bargaining representatives had responded appropriately as it did not wait for a response, thus not satisfying all the requirements of s.283(3) of the Act.
[34] The ARTC submits that the notice requirements raise a threshold jurisdictional requirement that must be satisfied before a scope application can be made to the Commission and on this basis alone the application should be dismissed. 31
[35] It is also contended that the Commission can only make a scope order as specified in the application that has been made in the Commission and reflected in the letters of concern sent to the ARTC by the RTBU.
[36] The RTBU’s scope application and letters of concern to the ARTC refer to the employees to be covered as:
Network Controllers,
Signal Electricians and
Engineering /Technical employees
collectively referred to as Operational employees.
[37] The first twodescriptions Network Controllers and Signal Electricians are positions referred to in the 2016 Agreement. Engineering/Technical employees werea group of employees identified in an employee breakdown table provided to the RTBU on 4 July 2019 by the ARTC.
[38] It is put by the ARTC that the terms Network Controller and Signal Electrician are distinct and well-known positions in its business.
[39] It was submitted by the ARTC that the term Network Control, which the RTBU states the scope application applies to, has a different meaning to Network Controllers.
[40] A Network Controller is said to be a specific job title for employees who are primarily responsible for managing, controlling and recording the movement of trains and track vehicles over the ARTC’s network. It is one of the classifications within the group of employees defined as a Network Control Employee under the 2016 Agreement and the proposed replacement agreement, together with the classifications of Terminal Coordinator, Programmer, Train Transit Manager and Operations Performance Officer.
[41] It was submitted by the ARTC that the RTBU’s focus, consistent with the RTBU’s ARTC EA Negotiations 32 document distributed to its members around 12 April 2019 has always been on limiting the scope of the proposed agreement to the specific role of Network Controllers.33
[42] The ARTC EA Negotiations document summarises the RTBU’s log of claims which includes as the third listed claim a “Separate agreement for Network Controllers.”
[43] The description of the scope claim regarding Network Controllers is continued in the 22 July 2019 RTBU Express Newsletter. The newsletter states that the scope claim was for a standalone agreement covering Network Controllers, Signal Electricians and Engineering/Technical workers which is consistent with how the RTBU described its proposed scope in the two Letters of Concern sent to the ARTC as well as in its scope application filed in the Commission.
[44] It was submitted by the ARTC that due to the previous controversies over the scope of enterprise agreement coverage during the 2012 and 2016 Agreement negotiations, the RTBU must be taken to be aware of the distinction between Network Control employees and Network Controllers. 34
[45] The term Signal Electrician used in the scope applicationis said by the ARTC to be markedly different from Infrastructure Maintenance Employees which the RTBU states the scope application seeks to cover. A Signal Electrician is a specific job title for employees who are responsible for ensuring the operational efficiency of designated sections of the rail corridor. It is also a position within the group of employees defined as Infrastructure Maintenance Employees under the 2016 Agreement and the proposed replacement agreement, together with the positions of Work Group Leader, Team Leader and Signal Work Group Leader.
[46] As the scope application and the letters of concern specify the scope of employees to be covered by the new agreement as Network Controllers, Signal Electricians and Technical/Engineering Employees the scope application must be limited to those specific categories to have complied with the mandatory requirements of s.238(3) of the Act. It is not permissible to broaden the scope as sought by the RTBU to include all classifications that fall within the 2016 Agreement definition of Network Control Employee and Infrastructure Maintenance Employee.
Section 238(4)(c) Fairly Chosen
[47] The ARTC submits that the scope proposed by the RTBU is arbitrary and not indicative of a group of employees who are geographically, operationally or organisationally distinct, being matters the Commission must take into account in determining whether the group is fairly chosen where the proposed scope will not cover all employees. It was submitted that at the time of filing its scope application the RBTU was not conversant with the specific roles that were sought to be included in its scope application. This is because a number of the distinguishing characteristics used in support of the application were not pursued before the Commission. 35
Geographic distinctiveness
[48] It was put by the ARTC that the RTBU has not produced any evidence that the proposed group of ‘Operational employees’ can be geographically distinguished from the proposed group of ‘Office employees’.
[49] If the proposed scope is limited to the classification of Network Controller (as opposed to the wider group of Network Control employees) the ARTC notes two previous findings of the Commission that Network Controllers are not geographically distinct from Network Control employees and other groups of employees. 36
Operational distinctiveness
[50] It is not accepted by the ARTC that the group of employees described in the scope application as ‘Operational employees’ are operationally distinct from ‘Office employees’. It is submitted that all employees proposed to be covered by the new agreement and covered by the 2016 Agreement are operationally intertwined.
[51] The ARTC notes that what was initially put by the RTBU as a key distinguishing characteristic concerning operational distinctiveness, in that operational employees work shifts, has not been pursued. No Engineering/Technical employees are shift workers and although they are rostered on call from time to time Signal Electricians are also not shift workers.
[52] It was put that many professional and support/administration roles are intertwined with the delivery of network services on a daily basis. Network Controllers at Broadmeadow work at the Network Control Centre North, along with corporate services and safety staff.
Organisational distinctiveness
[53] It was strongly disputed by the ARTC that Operational employees rarely work with Office employees on a regular basis and that there was no evidence to suggest that this was the case. Further the ARTC refutes any reliance on the allegation that it has organised Network Control Employees, Infrastructure Maintenance Employees and Engineering/Technical Employees into distinct organisational groupings at least for the purposes of internal and work health and safety reporting. 37
Section 238(4)(b) Promotion of fair and efficient bargaining
[54] The ARTC disputes the RTBU’s assertion that the specific needs and concerns of Operational employees have not been adequately addressed during the bargaining to date, resulting in an unfair outcome. The ARTC contends that all 72 38 union claims including those of the RTBU were discussed at the bargaining meetings. The ARTC submits that the fact that it took five meetings to fully discuss the union claims and provide a response is demonstrative of how thoroughly the claims were considered. A written response to the RTBU’s log of claims and those of the other unions plus updated written responses were provided on 5 August 2019, 2 September 2019 and 13 September 2019.
[55] In regard to the allegation by the RTBU of bargaining inefficiencies, the ARTC maintains that no more than 10 of the 72 claims were limited to Operational employees and that having to negotiate two separate agreements containing basically the same terms and conditions with generally the same unions is not an efficiency.
[56] While the allegations of ‘surface bargaining’ are not accepted, the ARTC submits that this allegation is properly about good faith bargaining and not relevant in a scope order application.
[57] The ARTC submits that as the bargaining for the proposed agreement has now ended, and the proposed agreement has been put to vote, circumventing this process with a scope order is an inefficiency.
Legislation
[58] The making of scope orders is governed by the provisions of ss.238 and 239 of the Act. Section 238 of the Act is in the following terms:
“238 Scope orders
Bargaining representatives may apply for scope orders
238(1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
No scope order if a single interest employer authorisation is in operation
238(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.
Bargaining representative must have given notice of concerns
238(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When the FWC may make scope order
238(4) The FWC may make the scope order if the FWC is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.
Matters which the FWC must take into account
238(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
238(5) The scope order must specify, in relation to a proposed single-enterprise agreement:
(a) the employer, or employers , that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
238(6) The scope order:
(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc. that the FWC may make
238(7) If the FWC makes the scope order, the FWC may also:
(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.”
[59] There are five factors relevant to this application which can be extracted from an examination of the terms of s.238 above, all of which must be satisfied if a scope order is to be made.These five factors can be described as:
i. Compliance with notice requirements
ii. Good faith bargaining
iii. Promotion of fair and efficient bargaining
iv. Fairly chosen group
v. Reasonable in the circumstances.
Consideration
Who is covered by the RTBU scope application?
[60] On 15 August 2019, Mr Warnes on behalf of the RTBU wrote to the ARTC stating that the RTBU were concerned that the bargaining process was not proceeding efficiently or fairly as the proposed agreement will cover employees that it was not appropriate to cover, being Professional and Support/Administration (Office employees).
[61] The correspondence stated that the interests of Network Controllers, Signal Electricians and Engineering/Technical employees, referred to collectively as ‘Operational employees’, are distinct from Professional and Support/Administration employees or ‘Office employees’. The effect of having two distinct sets of employees within the same agreement was said by the RTBU to result in the interests of one of the groups being disregarded or afforded more weight than the other.
[62] On 13 September 2019, the RTBU wrote again to the ARTC making the same request and further expressing that the current proposed scope of employees is too large for the Union bargaining representatives to meet with a sufficient number of employees to obtain their views on the state of the bargaining and to meet weekly with the ARTC and accurately reflect the views of employees, making the process inefficient.
[63] The RTBU’s correspondence to the ARTC and in its scope application refers to Network Controllers, Signal Electricians and Engineering/Technical employees.
[64] Network Controller is a specific classification in the definition of Network Control Employee at clause 1.1.3 of the 2016 Agreement. The term Network Control Employee is defined in the following manner:
“… means an employee engaged as a Network Controller, Terminal Coordinator, Programmer, Train Transit Manager or Operations Performance Officer.”
[65] Thus, there are 5 classifications under the 2016 Agreement as listed above that meet the definition of Network Control Employee, one being the classification of Network Controller. The classification of Network Controller is the term used in the scope application which the ARTC submits the RTBU are bound by. On the other hand the RTBU submits that the use of the term Network Controllers in its scope application and earlier correspondence to the ARTC was in relation to all employees defined in the 2016 Agreement as Network Control Employees which includes but is not limited to the classification of Network Controller.
[66] The RTBU’s position was explained by Mr Warnes:
“PN417 Mr Warnes, that until you read the statements filed by ARTC in these proceedings you had not sought to expand your descriptor of network controllers to network control employees, had you?---Well, no, because I - as I said, the error in terminology I always was under the belief we were trying to cover network control employees.”
[67] Mr Warnes’ evidence was that the RTBU believed that at all relevant times the ARTC was aware that it was seeking a separate agreement for Network Control employees, not limited to Network Controllers as expressed in the scope application. Further, the reference to Signal Electricians as expressed in the scope application meant Infrastructure Maintenance employees. 39 This is despite acknowledging that he was not careful in corresponding with the ARTC regarding the RTBU’s scope claim:40
“PN832 THE DEPUTY PRESIDENT So, Mr Warnes, what do you say you should've said then?---I should've not used the term ‘network controllers’. I understand that that is a specific position. I should've used ‘network control employees’. I shouldn't have used ‘signal electricians’. It should've been ‘infrastructure maintenance employees’. Now, I understood that that was ARTC's understanding, and that's what we'd clarified throughout negotiations as to be our claim, and I've used sloppy terminology in the letters. I acknowledge that.”
[68] It must be accepted that in the correspondence of the ARTC of 5 August 2019 41 sent to the RTBU and others as the ARTC’s response to the Combined Unions log of claims, the ARTC had understood that the scope claim was to have a separate agreement to cover Infrastructure Maintenance, Network Control and Engineering/Technical employees, with employees classified as Professional and Administration/Support to remain covered by the current agreement as negotiated.
[69] Ms Carcary’s evidence was that on receipt of Mr Warnes’ letter of concern with the bargaining process of 15 August 2019, the ARTC then understood that the scope claim of the RTBU had altered to that described in the correspondence. 42 Ms Carcary stated that this was accepted by the ARTC without further enquiry.43 When cross examined on this Ms Carcary responded in the following manner:
“PN2420 Isn't it the position that when receiving these letters ARTC knew that the RTBU was talking about, in respect of network controllers, the network control group?---No, that's not the case at all.
PN2421 In respect of signal electricians, the infrastructure maintenance group?---No, that's not the case at all.
PN2422 You never turned your mind to the fact that it could be sloppy wording or poor drafting?---No.”
[70] Mr Chapman for the ARTC stated that he understood a reference to Network Controllers did not include any other job classification. 44
[71] I accept that the terms Network Control and Network Controller can, as appears to have been the case with Mr Warnes, be easily interchanged and confused. Mr Milburn himself a Network Controller stated in his oral evidence that he had incorrectly referred to Network Controllers at paragraph [31] of his witness statement which should have read Network Control, which includes the classification of Network Controller. 45
[72] There is however no plausible explanation why the RTBU’s reference to Signal Engineers in the scope application meant a reference to Infrastructure Maintenance employees. The same error is repeated in the witness statement of Mr Milburn which was prepared for the prosecution of the RTBU’s application in the Commission. 46
[73] I am satisfied that in the correspondence of 15 August 2019 and 12 September 2019, the RTBU adequately set out their concerns that the bargaining was not proceeding efficiently or fairly, due to the proposed scope of the agreement.
[74] I am not however satisfied that the RTBU’s correspondence to the ARTC and the scope application itself can be interpreted, at least in respect of the reference to ‘Network Controllers’, more broadly to encapsulate all employees who fit under the title of ‘Network Control employees’; Network Controllers being one classification in this group together with Terminal Coordinator, Programmer, Train Transit Manager and Operations Performance Officer as defined under the existing 2016 Agreement.
[75] The RTBU’s correspondence and scope application specifies Network Controller a position identified in the 2016 Agreement and a position that has been the subject of previous scope applications before the Commission. The ARTC was entitled to accept that the RTBU had altered its scope request to reflect the wording contained in the scope application and its correspondence of 15 August 2019 and 13 September 2019.
[76] Similarly, the reference to ‘Signal Electricians’ in the RTBU’s scope application and letters to the ARTC being a position in the 2016 Agreement cannot be broadened to cover all employees who come under the heading of Infrastructure Maintenance employee which is a phrase defined under the 2016 Agreement to include four named positions including that of Signal Electrician.
[77] A scope application needs to be exact in the relief sought. The concession appropriately made by Mr Warnes that the phrases ‘Network Controllers’ and ‘Signal Electricians’ was sloppy wording cannot redeem the situation.
[78] In Mr Warnes’ Witness Statement of 29 October 2019 47 Mr Warnes states:
“I understand Signal Electricians form a large sub-group of Infrastructure Maintainers, and so in any mistaken reference mention of Signal Electricians I actually meant the wider Group of infrastructure Maintainers.”
[79] It is not in the Commission’s view a tenable submission to state that the ARTC has taken a narrow approach to the meaning of the phrases ‘Network Controller’ and ‘Signal Electrician’ when the meanings of these terms need no explanation, being specific positions named in the 2016 Agreement.
[80] On this basis the RTBU scope application must be determined by the Commission based on the words used in the application as filed and understood by the ARTC and not based on a broader meaning ascribed to the phrases following acknowledgement by the RTBU of ‘sloppy wording’. In any event there is no power in ss.238 and 239 of the Act for the Commission to issue a scope order other than in the terms sought in lieu of an amendment to the application, which was not sought.
[81] Should the Commission be incorrect in concluding that it is not permissible to expand the wording of the application in the manner sought by the RTBU, and as the RTBU’s application was argued on its broad interpretation of the wording in its scope application, I intend to also consider the RTBU’s scope claim based on the broader wording that they contend was the understanding it portrayed to the ARTC.
Section 238(3) Proper notification to relevant bargaining representatives
[82] The ARTC has submitted that there is no evidence of the RTBU having notified as required under s.238(3) of the Act all relevant bargaining representatives of its concerns regarding the bargaining proceeding unfairly and inefficiently.
[83] It appears from the email sent by Mr Warnes on 15 August 2019, which attached a copy of a letter to the ARTC of its concerns with the bargaining process, that it was not copied to all bargaining representatives; those excluded being the individual bargaining representatives. 48
[84] The second letter sent by Mr Warnes on 13 September 2019 notifying the ARTC of the RTBU’s bargaining concerns was copied to all relevant bargaining representatives. 49 However, the ARTC submits that s.238(3)(b) of the Act which requires that the bargaining representatives have a reasonable time within which to respond to the concerns raised was not complied with. This is because only two working days elapsed between the letter dated 12 September which was sent on the morning of Friday 13 September 2019 and the filing of the scope application on the evening of Monday 16 September 2019.
[85] The RTBU’s written submissions of 16 October 2019 and 3 December 2019 do not directly address the objection raised by the ARTC concerning whether bargaining representatives were provided with a reasonable time in which to respond to the correspondence sent on 13 September 2019.
[86] I am prepared to accept however that the letter of concerns dated 15 August 2019 from the RTBU to the ARTC was sufficient notice at least to the ARTC and other bargaining representatives who were also copied to meet the obligations of sub-ss.238(3)(a)(b) and (c) of the Act.
[87] I do however accept that on its face, two working days’ notice provided to the two individual bargaining representatives not in receipt of the RTBU’s 15 August 2019 correspondence, but sent the second letter on 13 September 2019, would not provide a reasonable period as required by s.238(3)(b) of the Act in which to respond should they have wished to do so.
[88] Nonetheless the individual bargaining representatives have not raised with the Commission any concern about a lack of reasonable notice or indeed any concerns with the RTBU’s scope application. Without hearing from the individual bargaining representatives, the Commission is not able to conclude that the notice period provided to them did not provide a reasonable time in which to respond to the RTBU’s concerns should they have had any concerns.
[89] In view of the above conclusions I do not consider there was any breach by the RTBU of the notice provisions contained in s.238(3) of the Act.
Section 238(4)(a) Bargaining in good faith
[90] Section 238(4)(a) of the Act requires the applicant for a scope order to have been bargaining in good faith. The ARTC accepts that the RTBU have met this requirement. 50 The evidence and submissions before the Commission clearly demonstrates that the RTBU has been bargaining in good faith.
Section 238(4)(b) Promotion of fair and efficient conduct of bargaining
[91] As outlined above, the RTBU submit that the making of the scope order as sought will promote the fair and efficient conduct of bargaining. It was said that the 10 plus claims unique to ‘Operational employees’ would mean that a separate agreement would promote fair and efficient conduct of bargaining. Further, a separate agreement would resolve the ‘long disputed matter of scope’ raised by the RTBU ‘in every round of enterprise bargaining’. 51
[92] The ARTC disputes the argument that the RTBU’s proposed scope will promote fair and efficient conduct of bargaining stating that such an order would lead to more inefficiencies and unfairness in bargaining.
[93] As was stated in the Full Bench decision of United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board 52:
“The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made.”
[94] The requirements of s.238(4)(b) of the Act were further considered by Hampton C in The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and others 53. In that decision Commissioner Hampton considered the approach upon which the assessment required in s.238(4)(b) of the Act should be based, stating as follows:
“[65] It is not necessary that the present bargaining be considered to be unfair or inefficient however findings to that affect would clearly be relevant and would be conducive to a finding that the requirements of this provision may be met by an alternative scope for bargaining.
[66]The applicant for a scope order must demonstrate that the making of the order would promote, that is encourage and facilitate, bargaining that is fairer and more efficient than if no order was made. That assessment is to take into account the interests of all relevant parties who are subject to the bargaining process, not just those who are seeking the order, and involve the weighing up of the relevant considerations touching upon the issue.”
[95] In taking into consideration the interests of employees immediately affected, no employees who would be excluded under the proposed scope application were called to give evidence. Mr Milburn, called by the RTBU attempted to articulate the benefits of the scope application to the bargaining negotiations:
“PN1948 THE DEPUTY PRESIDENT: All right. So I'm still not sure what you're trying to tell me in respect of, if you're successful in your application how will things improve?---You're going to have a better condition that you can work within and be adhered to. Because at the moment, as I – it's like the fatigue policy We've got a fatigue policy that's been handed, we've got a roster that's been handed down, we've got all this fatigue and we talk about it, it's great, we've got a fatigue – we don't implement it. It doesn't get implemented because they don't have the staffing levels. It's about having that structure in place and being accountable to your structure. It's got to make it a better place at the end of the day. Because at the moment, like, I deal within the work health and safety side of it too and there's so many holes and issues in such a big organisation that you can't – you're just going nowhere with it.”
[96] The evidence produced by the ARTC was that all claims said to be specific to Operational employees were discussed and a response provided. There have been eight bargaining meetings at which all claims were discussed, written responses were provided by the ARTC on 5 August 2019, 2 September 2019 and 13 September 2019. 54 As far as the ARTC is concerned bargaining for the proposed agreement has now concluded.
[97] In respect of the allegation that the ARTC was engaging in ‘surface bargaining’ there was no evidence that this would be remedied by the RTBU’s proposed scope order. As stated by the Full Bench in BRB Modular Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union 55 allegations of surface bargaining are not cured by a scope order being made:
“[39]The major complaints raised by the AMWU go to the conduct of the Respondent in the negotiations with allegations that it was engaged in surface bargaining and not responding properly to the union’s log of claims. These complaints might raise questions about whether the Respondent was engaging in good faith bargaining, but they do not establish that, if the scope order was made, the bargaining will at least be fairer or more efficient or both than it would be if no order were made.”
[98] Having heard the evidence and submissions of both parties what is abundantly clear is that the bargaining conduct of both parties reflects no more than what would typically be expected to occur at enterprise bargaining negotiations. The Combined Unions have submitted a log of claims, meetings have been held, and discussions have taken place. This scenario does not equate to inefficient and/or unfair bargaining as it is a common course of bargaining conduct. No minority group has been excluded. While the ARTC’s responses have not met the RTBU expectations they have been addressed and responses have been provided.
[99] The RTBU have submitted that the scope order sought will resolve a long existing dispute over enterprise agreement coverage that has been raised in previous bargaining rounds. It does not necessarily follow that resolution of the scope dispute in the RTBU’s favour will promote the fair and efficient conduct of bargaining; this is particularly the case where the ARTC has continually opposed the scope claim on the basis that it would not promote the efficient and fair conduct of bargaining.
[100] It is accepted by the parties that most of the Combined Unions’ log of claims apply to both Operational and Office employees, with only a limited number of claims having specific application to Operational employees only. Separating the group known as Operational employees from Office employees as the scope order proposes would result in most of the same claims being dealt with in two sets of bargaining with the RTBU participating as a bargaining representative in both bargaining exercises. This was submitted by the ARTC as not promoting efficient bargaining.
[101] In the current negotiations the RTBU is well represented and the employees covered by its scope application are far from a minority group. Relevantly, the bargaining representatives included Network Controllers and four Signal Electricians. When the circumstances and the interests of all parties are taken into account there is no basis upon which the Commission could conclude that the making of the scope order would promote the fair and efficient conduct of bargaining.
[102] While I accept that the RTBU was not satisfied with the ARTC’s responses there is no evidence to conclude that the ARTC’s responses would be different as a result of the scope order sought.
[103] Despite the best efforts of the RTBU the evidence has failed to demonstrate that bargaining for two enterprise agreements separated by Operational and Office-based employees would be fairer or more efficient.
Section 238(4)(c) Fairly Chosen
[104] The Commission is required to be satisfied that the employees who will be covered in the scope order was fairly chosen.
[105] Where the scope order will not cover all employees of the employer, 56 s.238(4A) of the Act states that in reaching a conclusion as to whether the employees are fairly chosen the Commission is required to take into account whether the group is geographically, operationally or organisationally distinct.
[106] In Cimeco Pty Ltd v CFMEU & Ors (Cimeco),57 the concept of “fairly chosen” was discussed by the Full Bench albeit under s.186(3) of the Act as follows:
“[19]Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.
[20]It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.
[21]It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the ARTC, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant…”
[107] The Full Bench inQGC Pty Ltd v The Australian Workers’ Union 58 (QGC) adopted the reasoning of the Full Bench in Cimeco and stated at [42]:
“[42] For the Commission to reach a state of satisfaction necessary to make a majority support determination, it must be satisfied that the group was fairly chosen and in considering whether the group was fairly chosen, it must take into account, by virtue of s.237(3A), whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.”
[108] Having regard to the above it is clear that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not absolutely decisive in determining whether a group of employees is fairly chosen. The concept of distinctiveness in s.238(4A) of the Act is not absolute, but rather a matter of degree. It is a matter to be given due weight, having regard to all other relevant considerations.
[109] In applying what the Full Bench stated inCimeco59the Commission should have regard to the interests of the excluded employees, however neither party provided any or sufficient material for the Commission to draw any conclusion on this issue.60
[110] Having regard to the evidence produced by both sides I have reached the following conclusions in regard to whether the group sought by the RTBU in their application is geographically, operationally or organisationally distinct.
Geographic distinctiveness
[111] Geographical distinctiveness relates to the group of employees with respect to whom the scope order is sought. The Full Bench decision in QGC contemplates geographical distinctiveness in single locations or geographical subsets of a total business.61
[112] The RTBU’s submissions on this point refer to ‘some level of geographical distinctiveness’ in respect of Network Control employees, Infrastructure Maintenance employees and Engineering/Technical employees. Even accepting the broader group of employees the RTBU submits is covered in its scope application from the limited categories pressed by the ARTC, the evidence does not distinguish this group of employees in a geographical sense, to a level justifying it as a consideration in favour of a separate scope order.
[113] For example, Engineering/Technical employees were shown to spend time in the field (the rail corridor) and in the office, whereas Signal Electricians predominately spend their working time in the field. 62 The evidence failed to demonstrate that all Network Controllers worked in the field similar to Signal Electricians.
[114] Roles that were said to be in the ‘Office employees’ category such as Safety Advisers and Project Team Leaders were shown to spend around an equal amount of time in the field and in the office. 63
[115] The evidence before the Commission has not demonstrated that as a group the employees sought to be covered by the scope application exhibit any geographical distinctiveness in single locations or geographical subsets of the ARTC’s business.
Organisational distinctiveness
[116] The Full Bench in the decision of Aerocare Flight Support Pty Ltd v TWU64stated that guidance may be obtained as to how to interpret and apply the expression “organisationally distinct” in s.186(3A) of the Act from decisions concerning the use of the same expression in ss.237(3A) and 238(4A) of the Act. The Full Bench went on to list a number of relevant propositions:
• the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;
• the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;
• however, the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and
• most businesses have organisation structures which will allow organisationally distinct groups to be identified. 65
[117] The Full Bench in Australian Worker’s Union v Job Connect Recruitment Pty Ltd t/a Job Connect66 reaffirmed the above when stating:
“ … the term “organisation” refers to the manner in which the employer has organised its business in order to conduct its business, that most businesses have organisational structures which allow organisationally distinct groups to be identified, and that the performance by a group of employees of duties which are qualitatively distinct may be a marker that the group is organisationally distinct. Organisational distinctiveness will weigh in favour of, but not be conclusive as to, whether the group of employees covered by an agreement is fairly chosen.”
[118] The RTBU’s submissions on this point rely on documentation prepared by the ARTC. While not strictly in the ARTC’s organisational structure the group of employees are said to be organisationally distinct as the ARTC organises these employees into a distinct organisational grouping for the purposes of internal and work health and safety reporting. 67
[119] In response the ARTC submitted in some detail 68 why the reliance upon the ARTC documentation to establish organisational distinctiveness was misguided.
[120] The documentary evidence relied upon by the RTBU in this matter was not demonstrative that the manner in which the ARTC has organised its business in order to conduct its operations, separates and distinguishes in any real way the group of employees covered by the scope application, applying either the broader or narrower meanings submitted by both parties. Further, the evidence did not show as argued by the RTBU that Operational employees rarely interact with Office employees on a regular basis. It was established to my satisfaction that organisationally many professional and support/administrative roles (Office employees) work interactively with Operational employees on a regular basis. 69
Operational distinctiveness
[121] The RTBU submits that by virtue of the work performed by Operational employees their roles and job responsibilities are operationally distinct from that of Office employees, whereas the ARTC submits that the different groups of employees covered by the proposed agreement are all operationally intertwined.
[122] The Full Bench in QGC held that the term ‘operational’ refers to an industrial or productive activity. The degree of distinctiveness in an operational sense refers to “an industrial or productive activity”. It does not refer to the performance of a “different role, skill, task or function.70 Much of what was submitted by the RBTU (although opposed by the ARTC) related to the role, skill, task or function of ‘Operational’ employees’, such as working overtime, attending callouts and working shifts.
[123] It was further put by the RTBU that ‘Operational employees’ have direct responsibility for the operation and maintenance of the railway network in directing and managing the day to day operations of the network. 71 The evidence of Mr Chapman was that only a small number of Engineering/Technical employees have direct responsibility for the network and they do not manage the network’s day to day operations.72
[124] The evidence also indicated that Signal Electricians were not responsible for managing the ARTC’s day to day operations. 73 Even accepting that employees covered by the scope application are responsible for managing the day to day operations of the network, so too are employees excluded by the scope order sought by the RTBU.74
[125] Based on the evidence before the Commission it is not possible to conclude that the group of employees sought by the RTBU covered in their scope application are operationally a distinct group of employees. While there may at best be some operational differences it could not be described as significant.
[126] While all matters of distinctiveness are a matter of degree, I am not satisfied that the group of employees chosen represents a fairly chosen group as per the requirements of s.238(4A) of the Act.
Section 238(4)(d) Reasonable in all the circumstances
[127] In addition to the above the Commissionis required to be satisfied that it is reasonable in all the circumstances to make the order sought. I accept that the scope of the proposed agreement reflects the group of employees that the RTBU believes will be better able to achieve the outcomes it seeks for this group of employees. At the same time, I do not accept as sought by the RTBU that the interests of ‘Operational employees’ are being disregarded by the ARTC in the negotiations or that the views of ‘Office employees’ are being afforded more weight.
[128] Having regard to all the circumstances as set out under s.238(4) of the Act, I decline to issue the scope order as sought by the RTBU. I have reached this conclusion on the basis of the material put before the Commission in this matter. While it is accepted that the RTBU is meeting its good faith bargaining requirements for the reasons provided above, I am not satisfied that the order as sought would promote the fair and efficient conduct of bargaining, that the group is fairly chosen, or that it is reasonable to issue the order as sought.
[129] Having regard to the above I decline to issue the scope order as sought by the RTBU and the application is hereby dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Guy of Counsel and Ms G Morgan-Cocks on behalf of the RTBU
Mr T Woods Solicitor and Ms J Mandel Solicitor on behalf of the Australian Rail Track Corporation
Hearing details:
2019.
Sydney:
November 4, 5
Final written submissions:
3, 13 December 2019
20 January 2020
Printed by authority of the Commonwealth Government Printer
<PR716679>
1 Form F31 at 2.1.3(4).
2 Form F31 at 2.1.3 (3).
3 AE421401, [2016] FWCA 7012.
4 Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2016, [2016] FWCA 7012.
5 See Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation[2012] FWA 6329.
6 Final Outline of Submissions of the ARTC dated 13 December 2019 at [13] and [11]. See also Witness Statement of Ms Cassandra Carcary dated 23 October 2019 and marked Exhibit R4.
7 Witness Statement of Ms Merrilyn Beer dated 11 October 2019 and marked Exhibit R6 at [9] and [10].
8 It is noted that while the vote has taken place, the parties have agreed to not count the votes until finalisation of the scope application.
9 Outline of Submissions of the RTBU dated 16 October 2019 at [2].
10 Ibid at [4].
11 It is noted that the letter sent on 13 September 2019 by the RTBU was dated 12 September 2019.
12 Witness statement of Mr Toby Warnes dated 16 October 2019 marked Exhibit A1. Further Witness statement of Mr Toby Warnes dated 29 October 2019 marked Exhibit A2.
13 Transcript at PN125.
14 Reply Statement of the RTBU dated 29 October 2019 and marked Exhibit A2 at [4].
15 ‘ARTC EA Negotiations Your Log Of Claims’ dated 12/10/2019 and marked as Exhibit R1.
16 PN169.
17 ‘ARTC Update 3’ document marked as Exhibit R2.
18 PN408 and PN417. See also Reply Statement of RTBU dated 29 October 2019 and marked Exhibit A2 at [4].
19 Witness Statement of Mr John David Budden dated 15 October 2019 and marked Exhibit A3.
20 Witness Statement of Mr John Christopher Pitcher dated 4 November 2019 and marked Exhibit A5 at [36].
21 at PN1846.
22 Outline of Submissions of the RTBU dated 16 October 2019 at [18].
23 Ibid at [27]. See also paragraph 2.1.5 of Form F31.
24 Outline of Submissions of the RTBU dated 16 October 2019 at [25].
25 Ibid at [27]-[31].
26 Final Outline of Submissions of the RTBU dated 3 December 2019 at [48].
27 Witness Statement of Ms Cassandra Carcary dated 23 October 2019 and marked Exhibit R4.
28 Witness Statement of Ms Merrilyn Beer dated 11 October 2019 and marked Exhibit R6. Ms Beer was not required for cross examination.
29 Witness Statement of Mr Scott Chapman dated 22 October 2019 and marked Exhibit R5.
30 Final Outline of Submissions of the ARTC dated 13 December 2019 at [27].
31 Ibid at [37].
32 ‘ARTC EA Negotiations Your Log Of Claims’ document dated 12/10/2019 and marked as Exhibit R1.
33 Final Outline of Submissions of the ARTC dated 13 December 2019 at [48].
34 Ibid at [54].
35 Ibid at [64].
36 ARTBIU/ASU, ARTBIU/AWU v ARTC [2014] FWC 1035 at [128] and ARTBIU v ARTC [2012] FWA 6329 at [41]-[42].
37 Final Outline of Submissions of the ARTC dated 13 December 2019 at [89].
38 Witness Statement of Ms Cassandra Carcary dated 23 October 2019 and marked Exhibit R4 at [22] Exhibit R4. It is noted that at times during the hearing it was submitted that there were 75 claims.
39 Further Witness statement of Mr Toby Warnes dated 29 October 2019 marked Exhibit A2 at [4].
40 Transcript of first day of Hearing on 4 November 2019 at PN829.
41 See Annexure ‘TW 16’ to Exhibit A1.
42 PN2297, PN2324, and PN2406.
43 Ibid at PN2411.
44 Ibid at PN2666.
45 Ibid at PN1956-PN1960.
46 Witness Statement of Mr Michael Milburn dated 15 October 2019 and marked Exhibit A6 at [31].
47 Further Witness statement of Mr Toby Warnes dated 29 October 2019 marked Exhibit A2.
48 Annexure ‘TW26’ to Exhibit A1.
49 Annexure ‘TW28’ to Exhibit A1.
50 Final Outline of Submissions of the ARTC dated 13 December 2019 at [27].
51 Final Outline of Submissions of the RTBU dated at [38].
52 [2010] FWAFB 3009 at [55].
53 [2011] FWA 2914.
54 See Annexures [19], [27] and [29] to the Witness Statement of Ms Merrilyn Beer dated 11 October 2019 and marked Exhibit R6.
55 [2015] FWCFB 1440 at [39].
56 Note also that the The Australian Rail Track Corporation (NSW) Infrastructure Maintenance Enterprise Agreement 2018 covers non-supervisory infrastructure maintenance employees in NSW.
57 [2012] FWAFB 2206.
58 [2017] FWCFB 1165.
59 At [22].
60 See comments of DP Sams in Australian Rail Track Corporation[2016] FWCA 7012 at [81].
61 At [47].
62 Witness Statement of Mr Scott Chapman dated 22 October 2019 and marked Exhibit R5 at [10]. See also Witness Statement of Ms Cassandra Carcary dated 23 October 2019 and marked Exhibit R4 at [46].
63 Witness Statement of Mr Scott Chapman dated 22 October 2019 and marked Exhibit R5 at [24] .
64 [2017] FWCFB 5826 at [27].
65 References omitted.
66 [2019] FWCFB 5132.
67 Final Outline of Submissions of the RTBU dated 3 December 2019 at [48].
68 Final Outline of Submissions of the ARTC dated 13 December 2019 at [88]-[96].
69 See evidence of Ms Carcary in Witness Statement dated 23 October 2019 and marked Exhibit R4 at [38].
70 [2017] FWCFB 1165 at [44].
71 Form F31 at 2.1.3 (5.1 -2).
72 Witness Statement Mr Scott Chapman dated 22 October 2019 and marked Exhibit R5 at [17].
73 See witness evidence of Mr Budden in transcript of first day of Hearing on 4 November 2019 at PN956.
74 See Witness Statement Mr Scott Chapman dated 22 October 2019 and marked Exhibit R5 at [18] .
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