[2020] FWC 2848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited
(C2019/2368)

DEPUTY PRESIDENT BOYCE

SYDNEY, 3 JUNE 2020

Alleged dispute about matters arising under the Aurizon NSW Coal Operations Enterprise Agreement 2018 re clause 53 (Workplace Representatives), clause 38 (Annual Leave) and Appendix 6 (Workplace Privacy, Employee Surveillance & Communications) – application dismissed.

[1] An application has been made by the Australian Rail, Tram and Bus Industry Union (RTBU) for the Commission to resolve three separate disputes under the Aurizon NSW Coal Operations Enterprise Agreement 2018 (Agreement). The disputes concern the proper construction of clause 53 (Workplace Representatives), clause 38 (Annual Leave) and Appendix 6 (Workplace Privacy, Employee Surveillance & Communications) of the Agreement.

[2] The application was originally allocated to Deputy President Saunders for conciliation. After conciliation failed to resolve the matter, it was allocated to me for hearing.

[3] At the hearing before me, Mr Toby Warnes appeared for the RTBU, and Mr Simon Meehan of Counsel, instructed by Ashurst Lawyers, appeared with permission for Aurizon Operations Ltd (Aurizon). Hearings were conducted in Newcastle on 20 August, 29 October and 30 October 2019.

[4] Permission for Aurizon to be legally represented was not opposed. I granted Aurizon permission to be legally represented generally in this matter. I did so having had regard to the criteria in s.596 of the Fair Work Act 2009 (FW Act), specifically noting that the issues in this matter are complex, and that the matter would be conducted more efficiently with the assistance of legal counsel on behalf of Aurizon.

[5] The parties agree that the Commission may arbitrate the subject matter of this dispute in accordance with the dispute term of the Agreement (clause 52), and s.739 of the FW Act.

Interpretation of enterprise agreements

[6] My determination in this matter applies the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd (Berri), 1 which I note the parties agreed were the correct principles to apply in construing the terms of an enterprise agreement. Such principles need not be repeated here, but are summarised well by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Paper Australia Pty Ltd:2

“In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant”. 3

Evidence and submissions

[7] The RTBU relied upon the following evidence in this matter:

(a) Witness statement of Mr Garry Baker dated 12 July 2019 (with annexures);

(b) Witness statement of Mr Steven Wright dated 11 July 2019 (with annexures);

(d) Witness statement of Mr Luke Roberts dated 12 July 2019 (with annexures);

(e) Witness statement of Mr Garry Baker (undated);

(f) Witness statement of Mr Steven Wright dated 18 September 2019 (with annexures); and

(g) Witness statement of Mr Stephen Wright dated 24 October 2019 (with annexures).

[8] Aurizon relied upon the following evidence in this matter:

(a) Witness statement of Mr Gregory Dixon dated 8 August 2019 (with annexures);

(b) Witness statement of Ms Elizabeth Mills dated 7 August 2019 (with annexures);

(d) Second witness Statement of Mr Peter Lennox (Appendix 6) dated 18 October 2019 (with annexures);

(e) Witness statement of Mr David Keating (Appendix 6) dated 17 October 2019 (with annexures); and

(f) Documents contained in the Respondent’s Book of Documents (Manila Folders, Volumes 1 and 2).

[9] The RTBU relied upon the following written submissions:

(a) RTBU outline of submissions for the RTBU dated 12 July 2019;

(b) RTBU final submissions of the RTBU dated 10 September 2019;

(d) RTBU reply submissions of the RTBU dated 25 September 2019; and

(e) RTBU submissions relating to the operation of s.131 of the Rail Safety National Law dated 12 November 2019.

[10] Aurizon relied upon the following written submissions:

(a) Aurizon's Outline of Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Clause 53 Dispute);

(b) Aurizon's Closing Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Clause 53 Dispute);

(c) Aurizon's Outline of Opening Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Clause 38 Dispute and Appendix 6 Dispute); and

(d) Aurizon's Supplementary Closing Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Appendix 6 Dispute), Section 131 of Rail Safety National Law (NSW) dated 19 November 2019.

[11] In making the findings that I have in this matter, and in answering the questions posed by the parties, I have had regard to all of the material that has been put before me (both orally and in writing).

Clause 53 Dispute (Workplace Representatives)

Relevant clauses

[12] Clause 53 of the Agreement reads:

“53. WORKPLACE REPRESENTATIVES RIGHTS

53.1 The Company recognises the role of workplace representatives and will permit such representatives to perform their role without discrimination. This clause is subject to the representatives concerned continuing to act in accordance with their contract of employment and the terms and conditions of this Agreement. The Company recognises that a union covered by this agreement may have workplace representatives in the workplace.

53.2 It is further recognised that workplace representatives represent employees at the workplace and will be allowed reasonable time to attend to any work related matters, without limitation, on behalf of employees but must advise their supervisor prior to attending to any such matters.

53.3 The Company will allow workplace representatives reasonable access to telephone, facsimile, photocopying and email services, where available and provided, for the purpose of carrying out their role. The use of resources by a workplace representative will be subject to the representative complying with the prevailing company policy provisions (which shall not impose unreasonable restriction on the operation of this sub clause) and the specific directions of the site manager.

53.4 Workplace representatives will be entitled to reasonable unpaid time off to attend meetings, congresses and conferences, including those that may be arranged by a union covered by this agreement subject to operational constraints. Workplace representatives seeking such leave are required to give two (2) weeks’ notice and the Company will not unreasonably refuse to approve such leave.

53.5 The Company will provide a lockable notice case to be used by workplace representatives for posting formal notices which may include notices from a union covered by this agreement, signed off by the representative/s and or a Union official of a union covered by this agreement.

53.6 Special paid leave, at the hourly base rate, will be granted to employees of the Company for the time they would have been performing their rostered hours if the employees:

53.7 Are elected as a workplace representatives; or

53.8 Are elected through the Australian Electoral Commission as workplace representatives of a union which is covered by this agreement,

53.9 to attend the Union’s National Council; National Executive, Branch Council, Branch Executive or Divisional Committee meetings, or an otherwise equivalent.

53.10 The special paid leave will be available subject to operational requirements and approval and will not be unreasonably withheld. To be eligible for special paid leave, the employee:

53.11 Is required to apply for leave at least four (4) weeks prior to the meeting; and

53.12 Is required to provide documentary evidence, signed by either an appropriate authorised Officer or the appropriate authorised officer of the Union which is covered by this agreement, that they are either an elected workplace representative or elected workplace representative of the Union and are required to attend the meeting. This documentation must also include the duration of the meeting.”

[13] The RTBU also draws my attention to clause 12.1 of the Agreement, which reads:

“12. DISCIPLINARY MATTERS

12.1 Process: Any internal investigation in relation to a matter or incident by the Company that may lead to disciplinary action being taken against an employee must apply the principles of natural justice and due process, including:

12.1.1 The employee being made fully aware in writing of the allegations that are the subject of investigation;

12.1.2 The employee being provided with sufficient information to enable the provision of an informed response.

12.1.3 The employee being informed of their entitlement to have a Union representative present and / or a witness /support person at any meetings/interviews, if so requested;

12.1.4 The employee being given reasonable time to prepare a response to the allegations that are the subject of the investigation.”

Outline of the Clause 53 Dispute

[14] The Clause 53 Dispute concerns the payments to be made to an RTBU workplace representative (RTBU representative) who attends counselling, disciplinary, termination or other meetings as a support person, witness, or representative. An RTBU representative is akin to a workplace union delegate.

[15] It is not in dispute that attendance by an RTBU representative at such a meeting is a function of an RTBU representative under the Agreement. Neither is it in dispute that RTBU representatives under the Agreement are permitted to attend such meetings.

[16] Aurizon accepts that where an RTBU representative is directed or requested by Aurizon management to be present at, or attend upon, such a meeting, Aurizon is required to pay the RTBU representative the applicable rate of pay (including overtime) under the Agreement. The practice of Aurizon is to generally arrange for such meetings to occur at a time when an RTBU representative is at work (on an ordinary rostered shift), although this cannot always be accommodated. 5

[17] The RTBU submits that under clause 53 of the Agreement, where an employee requests that an RTBU representative be in attendance at a meeting as their support person, witness or representative, but the RTBU representative is not present at work, Aurizon is required to pay the RTBU representative to be in attendance at the applicable rate of pay under the Agreement (including for hours applicable to satisfy the relevant minimum start time or recall time under the Agreement, including, if applicable, overtime rates of pay).

[18] By way of example of the RTBU position, an employee is directed to attend a disciplinary meeting on a specified time and date. The employee requests that an RTBU representative attend this meeting as his and her support person. For whatever reason, an RTBU representative is not in attendance on the shift that aligns with time/date of the disciplinary meeting. Again, for whatever reason, the time and date of the disciplinary meeting cannot be changed to when an RTBU representative is on shift. An RTBU representative who is not on shift (but available to come into work or participate via telephone) agrees to attend, or participate in, the disciplinary meeting. According to the RTBU, the RTBU representative who then attends or participates in the disciplinary meeting is to be paid for such attendance or participation (in accordance with the applicable terms of the Agreement) as though such attendance or participation was time worked (e.g. as a recall to duty paid at overtime rates). This is notwithstanding that Aurizon has made no request of the relevant RTBU representative to attend or participate (i.e. given the RTBU representative is not on a rostered shift and at the workplace).

Question to be answered (Clause 53 Dispute)

[19] Ultimately, the parties agreed that the Commission is to answer the following question in resolution of the Clause 53 Dispute:

Under the Aurizon NSW Coal Operations Enterprise Agreement 2018, when an RTBU representative attends the workplace (outside of their rostered hours of work) to perform a function under the Agreement, is that time classed as time worked? (Question 1)

[20] In closing submissions, filed after the hearing, and after evidence for both parties had closed, the RTBU sought to reformulate Question 1. In doing so, the RTBU asserted that “there was some confusion during the proceedings about what the dispute between the parties, in practical terms, was [about]”. 6

[21] Aurizon rejected that there was any confusion as to the question to be answered by the Commission to resolve the Clause 53 Dispute (being Question 1). Further, Aurizon submitted that if any confusion does arise, it flows directly from the testimony of Mr Steven Wright, RTBU Organiser (in that such evidence is not consistent (in material respects) with the case advanced by the RTBU). Finally, Aurizon submitted that “the Commission is not empowered to determine a different question”.

[22] Although I do not agree that the Commission is not empowered to determine a different question, as a matter of discretion, I reject the RTBU’s attempt to have the Commission determine a different question. The question posed to the Commission to resolve the Clause 53 Dispute was one that was formulated by, and agreed between, both parties, prior to opening submissions, and prior to evidence being prepared and filed. It was also the question upon which the parties ran their respective cases at hearing. It is not procedurally fair to Aurizon to have the RTBU change or otherwise recast Question 1 at the stage of closing written submissions.

[23] Further, I do not discern there to be any confusion as to the question being asked of the Commission, or what, in practical terms, is the actual dispute between the parties concerning clause 53 of the Agreement. In my view, Mr Meehan correctly summarised the scope and nature of the Clause 53 Dispute during opening submissions (being submissions that were not disputed by the RTBU at the time):

“MR MEEHAN: Your Honour's initial observation was timely because the scope of this dispute is what does the relevant clause mean in respect of attendance outside of rostered hours of work. Your Honour is going to see evidence that is uncontroversial because it's accepted on both sides that the company on many occasions in the past, not pursuant to the anterior version of this provision, but as a matter of practice, has taken steps to roster the delegates or workplace representatives on to work, so they become rostered on and then they are afforded absence to attend to whatever the particular workplace rep duty might be, and I think if your Honour's had a chance to look at any of the witness statements you'll see there are different contexts, namely enterprise bargaining, consultative committee meetings, roster committee meetings, disciplinary interviews, so there are a range of circumstances in which workplace representatives might be called upon to perform their role, and, as I say, there is clear evidence that Aurizon has on more than the lion's share of the occasions dealt with in the evidence rostered a delegate on to duty as a necessary consequence of which they're entitled to be paid, but they then permit absence for whatever part of that rostered period is to attend to those duties, be it enterprise bargaining or a shorter disciplinary interview with one of the members or a consultative committee meeting.

So there are ample illustrations of that. But they do not answer the question posed for your Honour, namely if someone comes in - withdraw that. If a workplace representative comes in outside their rostered hours, that is in the situation where the company has said, "Well, you're not rostered to work on that day", which coincides with the disciplinary interview or the bargaining, what then happens? And of course the union's case is any attendance on those occasions should be treated as time worked and therefore paid in accordance with whatever obligation, and my friend has made clear. He says that can affect overtime and shift lengths and the like, but the principal point is they say it should be treated as time worked and therefore attract payment which would be in addition to the salary paid for the particular roster cycle.

The company's position is to say in those circumstances clause 53 does not bestow an entitlement to payment if someone is coming in during a period that they are not rostered to work. So there's a bit of a dichotomy there, your Honour, and it might be, I accept, a subtle one, that is there are circumstances aplenty where Aurizon says, by way of summary, "There's to be a meeting", whether it be consultation, disciplining, bargaining, on a particular day, "we see that you're rostered off on that day. We will change your roster. We'll roster you on, as a consequence of which, being rostered on, you're entitled to payment as if worked. But that's payment for the whole shift, and we'll let you leave and attend for whatever portion of that shift is necessary to your workplace representative role". That doesn't seem to be in contention. It's the other circumstances, namely when it's said that a meeting is on this day. The company's position is a workplace representative, if they're rostered off that day and there hasn't been an opportunity to change their roster, if they choose to come in, that's a voluntary decision and they're not entitled to payment. And that's the crux of this dispute”. 7

RTBU Submissions (Clause 53 Dispute)

[24] The RTBU submits that the answer to Question 1 is “YES”. In this regard, the RTBU submits (in summary):

(a) There is no ambiguity in the language of clause 53 of the Agreement

(b) The ordinary meaning of the words “will be allowed reasonable time to attend any work related matters, without limitation, on behalf of employees” are clear.

(c) The limiting part of the clause “to attend any work related matters” implies that the time is paid. An express intention to make such time unpaid would be required to displace this implication.

(d) Clause 53.4 identifies that the parties have already turned their minds to unpaid time in respect of workplace time spent performing RTBU representative functions.

(e) In the alternative, if Clause 53 is ambiguous, evidence of past practice is relevant. That evidence is that past practice reflects RTBU representatives being paid for their time to perform workplace representative duties. Indeed, according to the RTBU, this was the basis upon which the Agreement was negotiated, and it is “objectively reasonable” that parties would expect this to remain unchanged. 8

Aurizon Submissions (Clause 53 Dispute)

[25] Aurizon submits that the answer to Question 1 is “NO”. In this regard, Aurizon submits (in summary):

(a) RTBU representatives are recognised under the Agreement, but only in accordance with the terms of the Agreement, and the relevant RTBU representative’s (employee’s) contract of employment.

(b) The term “reasonable time to be given” is directed to the interruption of the performance of work to represent employees, without loss of pay, during periods that the RTBU representative would otherwise be required to perform normal work on a rostered shift.

(c) Clause 53 makes provision for paid and unpaid authorised leave to be taken (when the RTBU representative would otherwise be required to attend work for rostered hours).

(d) Clause 53 makes no provision for any payment to an RTBU representative in respect of any period in which he/she would not be rostered to perform work, other than on its express terms. 9

Consideration and determination of the Clause 53 Dispute (Question 1)

[26] Having considered the evidence and the submissions of the parties, I find that the answer to Question 1 is ‘NO’, for the following reasons:

(a) The words of clause 53 are unambiguous, and have a plain and ordinary meaning. This wording was in the same form in the predecessor enterprise agreement covering, and applying, at the workplace (see Aurizon NSW Coal Enterprise Agreement 2014 (2014 Agreement)). 10 The RTBU did not seek any relevant change to clause 53 during bargaining for the Agreement, by way of log of claims or otherwise.11

(b) RTBU representatives have a role and function in the Aurizon workplace (clause 53.1).

(c) At the core of an RTBU representative’s function, is the representation of employees in the workplace concerning work related matters, without limitation or discrimination (clauses 12 and 53.2).

(d) Subject to Aurizon’s approval (not to be unreasonably withheld), and the provision of two weeks’ notice, RTBU representatives are entitled to authorised unpaid time off “to attend meetings, congresses and conferences … subject to operational requirements” (clause 53.4). In the context of clause 53 as whole, and relying upon the words “subject to operational requirements”, I read clause 53.4 as applying to meetings, congresses and conferences arranged outside of the workplace (i.e. when an RTBU representative would be otherwise rostered to work, and hence why the unpaid leave needs to be authorised on operational grounds).

(e) Certain classes of RTBU representative are also entitled to “special paid leave” (at the “hourly base rate”) to attend RTBU Council, Executive and Branch meetings (clauses 53.6 to 53.12).

(f) In my view, clauses 53.4, and 53.6 to 53.12, of the Agreement reflect (and limit) the entitlements of RTBU representatives (acting in that capacity) to unpaid or paid time off from rostered work.

(g) In the grammatical, objective and ordinary sense, I am unable to conclude that the words “will be allowed reasonable time to attend any work related matters, without limitation” extend to an RTBU representative being paid for any and all time that the RTBU representative acts in that capacity (i.e. where the RTBU representative is not on a rostered shift but voluntarily attends the workplace to perform their role or function). It follows that representation during a rostered shift will ordinarily be paid time, as there is no indication in the words of clause 53.2 that such time will not be paid, or not otherwise counted as time paid (time worked) during a rostered shift. I say ‘ordinarily’ on the basis that attendance during a rostered shift requires the RTBU representative to advise their supervisor prior to attendance.

(h) The foregoing conclusion is supported by the words “must advise their supervisor prior to attending to any such matters”. In other words, there could be no requirement for an RTBU representative to notify a supervisor that they are attending a meeting for representation purposes if the relevant RTBU representative was not at work.

[27] My conclusions above are also supported by the evidence of Mr Wright (for the RTBU) who stated (during cross-examination and re-examination):

“If the company is rostering them to come in and rostering them to work they're entitled to be paid. If they choose to come in on their own time they don't receive payment.” 12

…

“If the delegate in the workplace wishes to come in on a day off to represent a member without payment he's entitled to do so. If he can't be in there on that day the company - he requests the company to remove the meeting to another day which will be maybe swapping of an RDO so that they can facilitate the meeting or bring him in on overtime. Offer them to come in on that day and pay them appropriately.” 13

…

“So just to clarify the difference, and if I can just be given some latitude here, the difference is a company request and absent a company request?---Correct”. 14

[28] My Wright’s evidence is corroborated by, and reflected in, various contemporaneous documents tendered by Aurizon in these proceedings. 15 It is also relevant to point out that RTBU representatives are elected (via a process that Aurizon is not involved), and that clause 53 does not bestow any rights upon Aurizon to decide who the RTBU representatives will be, or to direct them to undertake any duties in such capacity.16 Nor does clause 53 require RTBU representatives to attend to or perform their role, duties or responsibilities outside of working hours (i.e. that is a choice to be made by the relevant RTBU representative/s concerned).17

[29] Mr Warnes submitted that in resolving the Clause 53 Dispute, regard must be directly had to the rights of RTBU representatives to properly carry out their role and functions under the Agreement, especially as they concern the representation of employees in disciplinary matters, and at disciplinary meetings. I have had direct regard to same in reaching my determination in this dispute. I agree with Mr Warnes that it is appropriate that Aurizon continue to attempt to arrange relevant meetings so that an RTBU representative can be present if an employee requests same. However, it is not necessary or appropriate that I say anything further in this regard. The evidence of Ms Mills is that, to date, there has not been any instances of RTBU representatives attending the workplace (on their day off, e.g. RDO, “X” day, or leave day) for the purposes of representing or supporting an employee at a disciplinary meeting or interview. 18 Any dispute in relation to the attendance of an RTBU representative at a meeting will need to be resolved on the basis of the facts and circumstances applicable at that time. However, for abundant clarity, notwithstanding the rights of employees to have an RTBU representative present at relevant meetings, the payment for an RTBU representative to be present does not, on the words of clause 53 of the Agreement, extend to situations where the RTBU representative attends, or agrees to attend of their own volition, but is otherwise not rostered to work. Any attendance in that regard is not capable of being classified as time worked under clause 53 of the Agreement.

Clause 38 Dispute (Annual Leave)

Relevant clauses

[30] Part 4 “Leave” of the Agreement reads:

“PART 4 - LEAVE

37. LEAVE RATE OF PAY

37.1 All paid leave provided for in Part 4 of this Agreement shall be inclusive of the components of the Base remuneration Rate set out in subclause 62.9 Annual Remuneration Table for the employee classification at the time the leave is taken.

38. ANNUAL LEAVE CONDITIONS

38.1 Entitlement

38.1.1 Full time (shift work) employees shall be entitled to 5 weeks annual leave per year.

38.1.2 Where the Company and an employee agree that the employee will not be available to be rostered for ordinary hours between 1800 hours and 0600 hours, Saturdays, Sundays, employees will be entitled to 4 weeks annual leave per year subject to subclauses 62.7 and 62.8 of this Agreement.

38.1.3 To avoid doubt, this means a full time (shift work) employee (other than a casual employee) who is covered by this agreement shall be entitled to be absent from work on paid leave for a period of 5 calendar weeks, whether taken consecutively or not.

38.1.4 Employees engaged on a part time, fixed term or temporary basis (but not a casual basis) shall be entitled to accrue annual leave on a pro rata basis provided they are engaged for at least four consecutive weeks in any one year.

38.1.5 Annual leave will commence at 0000 hours and will not recommence until 0600 hours on the day the employees returns to work.

38.2 Deduction

38.2.1 Employees shall be deducted 7.6 hours per day equalling 38 hours for each week of leave.

38.3 Conditions for accrual and taking annual leave

The taking of annual leave shall be subject to the following:

38.3.1 Approval to take annual leave

(i) Annual leave will generally be taken in seven day blocks (Saturday to Friday), any variation to this will be by approval from the relevant manager.

(ii) All such leave, whether current entitlement or accrued, shall be taken at a mutually convenient time.

(iii) In the absence of agreement on the taking of leave, it shall be taken at a time determined by the Company. In such a case, at least one month's notice must be given and this must not result in the employees leave balance reducing below 2 years accrual.

(iv) The Company must not unreasonably refuse to agree to a request by an Employee to take paid annual leave.

38.4 Accrual

38.4.1 Annual leave accrues progressively during a year and accumulates from year to year.

38.4.2 Employees who work on average:

(i) 38 ordinary base hours will accrue 190 hours. Where the Company and an employee agree that the employee will not be available to be rostered for shift work, the employee will accrue 152 hours.

38.4.3 Annual leave shall accrue to employees in respect of any authorised period of paid absence from duty.

38.4.4 Any accrued annual leave exceeding ten (10) weeks will be considered ‘excess’ leave, at which point the Company may direct an employee to cash out or take annual leave, unless otherwise agreed between the employee and the Company. The Company may not direct an employee to reduce their accrued annual leave so that less than ten (10) weeks are available to the employee, unless mutually agreed between the Company and the employee.

38.5 Annual Leave exclusive of other leave

38.5.1 A period of annual leave is exclusive of periods that an employee is entitled to leave in accordance with clause 40 (Long Service Leave); clause 41 (public holidays), clause 42 (Personal Leave); clause 43 (Compassionate Leave); clause 45 (Voluntary Emergency Management Leave); clause 46 (Military Leave); and clause 47 (Jury Duty).

38.5.2 This means an employee is not taken to be on annual leave when on any other paid leave type as listed previously and any annual leave taken for that period should be reaccredited.

38.6 On termination of employment, any unused annual leave shall be paid to the employee.

38.7 Cashing Out Annual Leave

38.7.1. At times designated by the Company or in conjunction with a period of annual leave an employee with 12 or more months’ service may with the agreement of the Company cash out a portion of their accrued annual leave.

38.7.2 Each agreement to cash out annual leave must be in writing.

38.7.3 The minimum amount of leave to be cashed out is 8 hours.

38.7.4 The employee’s remaining accrued entitlement to paid annual leave after the cashing out must be no less than 5 weeks.

38.7.5 The employee will be paid cashed out annual leave on the same basis as had the annual leave been taken in the usual way

38.7.6 In considering any application by an employee to cash out annual leave the Company will take into account the potential workplace health and safety impact on the employee of the leave not being taken.

39. ANNUAL LEAVE LOADING

Employees will receive an annual leave loading of 20% of the Base remuneration. Where the Company and an employee agree that the employee will not be available to be rostered for ordinary hours between 1800 hours and 0600 hours, Saturdays, Sundays, the employee will receive annual leave loading of 17.5% of the base remuneration subject to subclauses 62.7 or 62.8 of this Agreement.”

[31] Aurizon’s undertaking dated 19 March 2019 is also a term of the Agreement in relation to annual leave, it reads:

“For the purposes of clause 38 of the Agreement, employees will not receive less annual leave than they are entitled under the National Employment Standards.” (Annual Leave Undertaking)

[32] The relevant provisions of the National Employment Standards (NES) in relation to annual leave read:

“87. Entitlement to annual leave

Amount of leave

(1) For each year of service with his or her employer, an employee is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Accrual of leave

(2) An employee's entitlement to paid annual leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year.

Note: If an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

88. Taking paid annual leave

(1) Paid annual leave may be taken for a period agreed between an employee and his or her employer.

(2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

90. Payment for annual leave

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”

Outline of the Clause 38 Dispute

[33] Clause 38.2.1 of the Agreement (“Employees shall be deducted 7.6 hours per day equalling 38 hours for each week of leave”) is a new clause in the Agreement. 19

[34] The Clause 38 Dispute concerns the payments to be made to relevant employees who take a period of annual leave. 20

[35] Mr Lennox sets out the effect of the RTBU position in this matter upon annual leave payments:

“The effect of the RTBU’s position is that:

(a) If an employee takes the entire allocation of annual leave all at once, the employee ends up with a total of 25 shifts off work, which equates to at least 6.25 paid calendar weeks off work (with 20% leave loading). This is to say the employee will receive paid leave for 6.25 calendar weeks, yet only be treated as having used five calendar weeks of annual leave. This can be seen by taking any Master Roster from any shift and counting 25 shifts from the first shift.

(b) At its highest, an employee could be off work for 10.57 weeks while at the same time, according to the RTBU’s interpretation, using only five weeks of annual leave. For the purposes of these proceedings, I have prepared a spreadsheet entitled Annual Leave Master Roster Maximising Absence, in order to demonstrate this. (Attachment PL-7 [AUR.001.0021.2421]).” 21

Questions to be answered (Clause 38 Dispute)

[36] The parties agreed that the Commission is to answer the following questions in resolution of the Clause 38 Dispute:

(a) Does clause 38 of the Aurizon NSW Coal Operations Enterprise Agreement 2018, allow Aurizon to reasonably require employees to take annual leave in seven day blocks (Saturday to Friday)? (Question 2)

(b) If an employee is absent on annual leave for a seven day block (Saturday to Friday) is Aurizon required to deduct 38 hours from the employee’s annual leave balance? (Question 3)

(c) If Aurizon is not allowed to reasonably require an employee to take annual leave in a seven day block, how is Aurizon required to deduct leave from the employee’s annual leave balance when annual leave is taken? (Question 4)

RTBU Submissions (Clause 38 Dispute)

[37] In relation to Questions 2 to 4, the RTBU (in its written submissions) submitted:

“22. Aurizon’s intention, when putting the Agreement to a vote of employees, was to create an entitlement for employees that only 7.6 hours would be deducted each day of leave “taken”. The use of the word “equalling” means that a “week of leave” is for 5 days of leave as 38 hours divided by 7.6 hours = 5 days. One cannot read 7.6 hours per day and 38 hours per week separately - they are inextricably linked.

23. The current practice which has led to this dispute is for Aurizon to deduct 38 hours from an employee’s leave balance for a “7 day block” regardless of how many actual days of leave they are required to take.

24. In the example rosters provided by Aurizon to the Commission there are only 4 work days in each example week. On the RTBU’s interpretation, if an employee took a seven day block in either week, they should have 30.4 hours (7.6 hours x 4 days off) deducted from their leave balance.

25. On Aurizon’s interpretation, being that a seven day block requires 38 hours to be deducted leaves the beginning of the clause (7.6 hours per day) with no work to do. Aurizon’s application of the clause is clearly not the intention of the parties.

26. The preferred interpretation must be that set out in paragraph [24] above.” 22

[38] In relation to Questions 2 to 4, Mr Warnes (in oral submissions, by reference to the evidence), on behalf of the RTBU, submitted:

(a) in the current situation, employees who are rostered to work only three shifts in a week are deducted 38 hours for a seven day block of leave; 23

(b) the answer to Question 2 being ‘YES’ is uncontroversial. The controversy concerns the answer to Question 3; 24

(d) it is important to consider how Aurizon was deducting leave under the 2014 Agreement, i.e. 9.5 hours of annual leave accruals were deducted for a 9.5 hour shift. Whereas, under the current Agreement, only 7.6 hours of annual leave accruals are deducted for a 9.5 hour shift (as per clause 38.2.1 of the Agreement, being a clause inserted into the Agreement pursuant to a claim by the RTBU); 26

(e) there is no evidence of bargaining negotiations reflecting the manner in which Aurizon is now applying clause 38.2.1 of the Agreement (whereby employees are deducted one weeks’ annual leave, or 38 hours, where less than 38 hours are rostered for that week of annual leave taken in a seven day block); 27

(f) annual leave should be deducted based upon the amount of hours rostered for the week that annual leave is taken; 28 and

(g) clause 38.2.1 may be contrary to the NES, even if employees get their five weeks annual leave in accordance with the provisions of the NES. 29

Aurizon Submissions (Clause 38 Dispute)

[39] In relation to Questions 2 to 4, Aurizon (in its written submissions) submitted:

“18. [F]or each day of leave there is to be a deduction of 7.6 hours of accrued leave, irrespective of the shift length that the employee would have worked on that day but for the taking of leave. Further, the Applicant [RTBU] seeks to treat only those days on which work was rostered within the seven day block of annual leave, as annual leave for the purposes of deduction.

19. There are powerful textual and contextual reasons why, in conformity with the principles of interpretation discussed in section B of these submissions, the Commission would reject the Applicant's submission.

20. Firstly, the Applicant would have the Commission ignore altogether the following words in subclause 38.2.1, namely, "…equalling 38 hours for each week of leave.'' There is a longstanding principle of statutory interpretation that every word of an instrument is to be given meaning. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. It is impermissible for the Commission to ignore those words in interpreting the provision.

21. Moreover, ordinary or well understood words are in general to be given their ordinary or usual meaning. The phrase ''38 hours for each week of leave'' is tolerably clear, unless one adopts the untenable contention of the Applicant that a block of seven days is not a week because the employee was only rostered to work on some of the days within the block. Subclause 38.2.1 makes plain that 38 hours is to be deducted for each week of leave.

22. If as the Applicant submits the language of clause 38.2.1 reveals that the drafter must have had in contemplation an assumed 5 day working week, because that is the only way "7.6 hours per day equalling 38 hours for each week'' can make any textual sense, that undermines the Applicant's case because it would follow that clause 38.2.1 has no application in the case of 7day shift workers.

23. Secondly, the basic entitlement for a full time shift worker is five (5) calendar weeks of annual leave per year:- clause 38.1.1 and 38.1.3. The significance of the use of the word, 'calendar', cannot be overstated. The five calendar weeks has been expressly equated to 190 hours of leave in clause 38.4.2. The period that a block of seven days of leave bears to 5 calendar weeks of leave is 20%. The correlative proportion (i.e. 20%) of the annual accrual of 190 hours of leave is 38 hours. Thus there is a cogent rationale for the debiting of 20% of the annual leave accrual (i.e. 38 hours) in respect of the taking of 20% of the annual leave accrual (i.e. a calendar week).

24. Thirdly, the Applicant's contention that only the rostered days of work that fall within the seven day block during which the employee is away from work should be recognised for the purpose of deduction of accrued annual leave cannot be reconciled with the adoption of 'calendar' weeks as the measure of leave. Nor can it be reconciled with clause 38.5. For example, there would be no utility for a provision deeming an employee not to be on a period of annual leave in respect of a public holiday, unless it was contemplated that a period of annual leave might include a public holiday on which an employee was not rostered to work. Subclause 38.5.2, which provides for re-crediting of annual leave, is clearly premised on periods of annual leave coinciding with periods in which an employee is not rostered to work.

25. Fourthly, in the roster example provided, whereby in the week in respect of which annual leave is taken, the employee would, but for taking annual leave, have had four rostered days of work, the Applicant's interpretation would result in the employee being able to take 6.25 successive calendar weeks of annual leave. That is because the employee has an accrual of 190 hours and the Applicant's submission, if accepted, would require only 30.4 hours to be deducted in respect of the seven day block of leave.

26. Fifthly, fundamentally the entitlement to annual leave under the 2018 Agreement is an entitlement to be absent from work and be paid Base Remuneration plus a loading in respect of that period of leave:-clauses 37 and 39. The Base Remuneration reflects a 38 hour week – 1976 ordinary hours per annum (clause 62.6). If an employee is absent on annual leave for a seven day block, Saturday to Friday, the employee is paid by Aurizon as if working for 38 hours in that week (clause 62.5), plus a 20% loading. It is implicit in the Applicant's interpretation, using the example roster, that an employee would be paid 38 hours of pay for the week, but only have 30.4 hours of annual leave accrual deducted. It follows that the employee in that example obtains a windfall gain comprised of payment of Base Remuneration (and 20% loading) for 7.6 hours for which no work was performed by the employee and in respect of which no deduction is made to the employee's accrued leave balance. Further windfall gains would apply in respect of any seven day block (Saturday to Friday) of leave in respect of which the employee was otherwise rostered to work less than 38 hours of work.

27. Sixthly, the Applicant's interpretation would lead to the unfair result that shift workers who take annual leave at different points in a roster cycle will have different entitlements to annual leave. In a choice between competing interpretations, advantage will lie with that which produces the fairer and more convenient outcomes, namely consistency of entitlement amongst employees who work under the same roster arrangements. If language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, even though the construction adopted is not the most obvious or the most grammatically accurate; see Australian Broadcasting Commission v. Australasian Performing Rights Association Ltd (1973) 129 CLR 99 at 109-110 per Gibbs J. See also Amcor v. CFMEU (2005) 222 CLR 241 at 283 per Callinan J. Consistency can be achieved by an interpretation that results in all employees who are absent on leave for a seven day block having 38 hours deducted from their leave accrual, regardless of the shift hours that they would otherwise have been rostered to work. On that interpretation all employees get the same period off work (a calendar week), receive the same pay (i.e. 38 hours), and have the same deduction from their leave accrual.

28. Seventhly, the interpretation contended for by Aurizon finds support in principle from the decision of the Full Bench of the Fair Work Commission in RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union[2015] FWCFB 2881 (RACV Road Service):

“[32] [W]e consider that a "week" of leave is to be understood as meaning an authorised absence from the working days falling in a seven day period, and a "day" of leave is an authorised absence from the working time in a 24 hour period. ...

...

[82] Accordingly we conclude that in the NES provisions of the FW Act, a "week" of annual leave is an authorised absence from work during the working days falling in a seven day period, and a "day" of leave (whether of annual or personal/carer's leave) is an authorised absence from the working time in a 24 hour period. We reject RACV's submission that "week" and "day" are to be read as terms of art referring to a specific number of working hours that may not constitute an actual week or day in a given case. We further conclude that the amount of leave deducted from an employee's leave balance necessarily correlates with the amount of leave taken, so that if a week's annual leave is taken, a week is deducted from the employee's accrued annual leave balance, and if a day of annual leave or personal/carer's leave is taken, a day is deducted from the employee's accrued annual leave or personal/carer's leave balance”.

29. The decision of the Full Bench in RACV Road Service was cited with approval by a majority of the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Limited [2017] FCAFC 35 at [133] per White and Bromwich JJ.

30. For the reasons above the language of clause 38 and its context in the 2018 Agreement point strongly against the Applicant's contentions. Indeed any interpretation that would necessary lead to the possibility that an employee would obtain in excess of five calendar weeks of annual leave per year is fundamentally at odds with clause 38”. 30

[40] In relation to Questions 2 to 4, Mr Meehan (in oral submissions, by reference to the evidence), on behalf of Aurizon, submitted:

(a) Relevant employees, at the start of the 2014 Agreement, were working 168 hours over a four week cycle (42 hours average per week), which changed to 160 hours over a four week cycle (40 hours average per week). Employees now work 152 hours over a four week cycle (38 hours average per week). 31

(b) The fundamental entitlement of relevant employees to 5 weeks annual leave has not changed between the 2014 Agreement and the current Agreement. 32

(c) Relevant employees receive an annualised salary based upon a 38 hour average week across a fortnight. In this regard, employees are paid an annualised salary, on a fortnightly basis, over a monthly roster cycle, with an even spread of shifts across a fortnight. This results in employees receiving the same payment each fortnight irrespective of the number of shifts they may work in a particular week. 33

(d) If there was an intent to make any changes to the 38 hour week, or 152 hours over a four week period, there would be evidence and/or changes to words in the Agreement that would make such a proposition out. There is no evidence, and there are no words in that regard; 34

(e) The words “period of 5 calendar weeks” in clause 38.1.3 are significant. Where annual leave is being taken in seven day blocks, the reference to “5 weeks” in clause 38.4.2 is a reference to 5 calendar weeks, not 25 separate working days off, or 190 hours off. The RTBU case completely ignores this point by having no regard to the word “calendar”. 35

(f) There is no evidence of any relevant employee receiving less than 5 weeks annual leave, or annual leave accruals, per annum. 36

[41] In relation to Questions 2 to 4, Mr Warnes (in oral submissions in reply), on behalf of the RTBU, submitted:

(a) The prevailing conditions before the Agreement was made were four 9.5 hour shifts in each seven day block, equalling 38 hours per week. In other words, the prevailing conditions before the Agreement was made do not assist Aurizon’s construction of clause 38.2.1 of the Agreement. 37

(b) The word “equalling” in clause 38.2.1 of the Agreement lends itself towards the construction being advanced by the RTBU. If the word was “or” it would be a different story, i.e. tending towards the construction being advanced by Aurizon. 38

(c) The construction being advanced by Aurizon means that different employees will get different time off or away from work, depending upon the number of shifts that fall within a seven day block of annual leave. 39

(d) There is nothing in the Agreement defining the term “calendar week” (in clause 38.1.3), hence, no weight should be placed upon that term when construing the meaning of the term “weeks” under clause 38.2.1 of the Agreement. 40

(e) If annual leave is based upon 7.6 hour per day of work, and 7.6 hour per day of leave, there is no windfall gain of 6.25 or 7 weeks annual leave being obtained (as compared to five calendar weeks under the terms of clause 38.2.1 in the manner construed by Aurizon).

(f) This is because the term “calendar weeks” is an abstract term, and the focus of clause 38.2 needs to be upon 25 days of annual leave (at 7.6 hours per day), not the taking of calendar weeks, but the days taken off that would otherwise be “attendances” at work. 41

(g) It is not for the Commission to make a decision based upon what it considers to be fair and just. Rather, the Commission must give effect to the words of the Agreement, and the intention of the parties when ambiguity arises. 42 Further, there is no absurdity that arises from the RTBU’s asserted construction of clause 38.2.1 of the Agreement.43

Consideration and determination of the Clause 38 Dispute (Question 2) - Does clause 38 of the Aurizon NSW Coal Operations Enterprise Agreement 2018, allow Aurizon to reasonably require employees to take annual leave in seven day blocks (Saturday to Friday)?

[42] Having considered the evidence and submissions of the parties, I note that there is no dispute that the answer to Question 2 is ‘YES’. That is the plain meaning of clause 38.3.1 of the Agreement. 44 Any specific dispute about the operation of this clause (e.g. whether a request to take leave is reasonable) can be dealt with in accordance with the disputes procedure under the Agreement (based upon the particulars facts and circumstances of such dispute, and having regard to the assumed starting point that Aurizon may require employees to take annual leave in seven day blocks, unless such a requirement is unreasonable in the particular circumstances of the individual employee concerned).

Consideration and determination of the Clause 38 Dispute (Question 3) - If an employee is absent on annual leave for a seven day block (Saturday to Friday) is Aurizon required to deduct 38 hours from the employee’s annual leave balance?

[43] Having considered the evidence and submissions of the parties, I find that the answer to Question 3 is ‘YES’, for the following reasons:

(a) Roster cycle hours are ordinary base hours over a two or four week roster cycle, with an employee working 76 hours for each fortnightly roster cycle. Aurizon and relevant employees develop and modify rosters consistent with operational requirements. Aurizon may change a master roster/s no more than three times in a twelve month period, with any such changes arrived at via consultation, and upon the provision of 28 days’ notice to relevant employees prior to implementation. 45

(b) The dispute being advanced by the RTBU only arises where a seven day block of leave is taken during a week in which the rotating roster allocates an employee only three or four shifts in that seven day block. It does not arise where two seven day blocks of leave are taken concurrently (given that employees work 76 ordinary hours per fortnight). 46

(c) Relevant employees are paid a Base Remuneration (annual salary), being their total annual remuneration broken up into fortnightly payment periods. 47 This ensures consistency of wages from pay cycle to pay cycle. Annual leave is paid at Base Remuneration rates.48 Clause 62.4 states that employees will be paid a Base Remuneration “to maximise the flexible deployment of employees that is essential for the ability of the Company [Aurizon] to meet the level of service required by customers”.

(d) A two-week roster was provided by the parties as an exemplar roster. 49 That roster reflects employees working 4 days each week (3 rostered days and an “X” day). It is unnecessary for me to go into detail as to how an “X” day operates under the Agreement, other than to note that it is considered a paid working day for rostering purposes.50 The short point is that I understand the exemplar roster to reflect a working week of four days (with the pay for those two weeks paid pursuant to Base Remuneration (i.e. pro-rata annual salary, broken down into a fortnights’ pay).51

Exemplar roster (Green represents “X” day)

Week 1

Week 2

(e) The RTBU says that, on the basis of the exemplar roster, only 30.4 hours (7.6 hours per day multiplied by four days worked) should be deducted from an employee’s annual leave accruals for a seven day block of annual leave taken pursuant to the exemplar roster. Aurizon says that one week’s annual leave should be deducted (i.e. 38 hours for each period of one week – seven day block). The RTBU says that its view is consistent with the explanation provided to relevant employees prior to the Agreement being made. 52

(f) The NES provides for four or five weeks paid annual leave per annum. 53 In my view, there can be no suggestion that the Agreement, in providing five weeks paid annual leave per annum, is contrary to the NES,54 or Aurizon’s Annual Leave Undertaking.

(g) The NES providing for annual leave on the basis of ‘weeks’, as opposed to ‘days’, is to be contrasted with, for example, personal/carer’s leave, where an employee is entitled to 10 individual days of personal/carer’s leave per annum. This fact ends any suggestion that weeks of annual leave under the NES are necessarily to be equated with, or converted to, a specific number of days.

(h) Section 90 of the FW Act reads:

“Payment for annual leave

(i) I read the focus of the leave, and the payment to be made for such leave, under s.90 of the FW Act to be upon “the period”. In this matter, “the period” is a “week” (i.e. a seven day block). The term “the period” is not based upon single days or specific stand alone working days in such a period. In my view, there can be no suggestion that the Agreement, in paying an employee 38 hours annual leave for one seven day block of annual leave (where less than 38 hours are rostered in that seven day block), is contrary to the NES, or Aurizon’s Annual Leave Undertaking. Neither is it inconsistent with the manner in which the parties to the Agreement have chosen to structure annual remuneration broken down into equal fortnightly payments.

(j) It also makes sense for a period of annual leave, for example, one week, to be reflective of one week off work, and for an employee to receive payment for that week he/she is off work on leave. In other words, various workplaces have vastly different rosters, and rostering arrangements, pursuant to enterprise agreements. Where an employee’s working week varies under a enterprise agreement roster system, and the employee takes annual leave for one week, the period of leave remains one week, irrespective of what a roster might set down in terms of shift arrangements. This is especially so where, as is the case here, an enterprise agreement provides for an annual salary, and employees receive a set fortnightly salary irrespective of how a roster might be structured from one week to the next.

(k) Clause 38.2.1 of the Agreement is a new clause. The RTBU’s evidence and submissions as to the origin of the insertion of this clause into the Agreement are not the same as the construction they argue for in these proceedings (and the mischief the RTBU now asserts must be resolved). 55 As the RTBU states in its submissions:

“20. The origin of the clause was a claim made by the RTBU about daily deductions of leave. The issue was that employees were being deducted the hours off work meaning that if an employee worked greater than 7.6 hours in a day, there was a real possibility they would not receive the 5 weeks of leave they were entitled to under the 2014 Agreement”. 56

(l) Aurizon agrees that it holds the same understanding of the purpose of the words in clause 38.2.1 (i.e. to ensure that employees receive their full five weeks of annual leave, notwithstanding that hours pursuant to a roster in a particular week may have resulted in a deduction of more than 7.6 hours on a particular day or days).

(m) The Agreement was approved by Commissioner Cirkovic on 20 March 2019. Commission records indicate that the RTBU advised the Commission that it wished to make submissions in relation to the undertakings proffered by Aurizon, but later withdrew from that position, and advised the Commission that it did not object to the undertakings (which ultimately became terms of the Agreement). The Agreement was approved on the basis of the Undertakings proffered by Aurizon (including the Annual Leave Undertaking).

(n) On 19 March 2019, the RTBU (by way of letter) wrote to Commissioner Cirkovic, and in relation to clause 38 of the Agreement, stated:

“The RTBU has always intended to ensure all employees would receive their full entitlement [to annual leave] and it was out intention that all employees would get 190 hours equalling 25 days of annual leave and a day equally [sic] 7.6 hours. We understand the Commissioner’s concerns.”

(o) The first problem with the foregoing statement is that the taking of annual leave under the NES, and on the terms of the Agreement, is based upon “weeks” (in terms of a seven day block), not “hours” or “days”. The second problem with the foregoing submission is that, rather than assisting the RTBU’s position in these proceedings, it detracts from it. In other words, if that was, or is, the position of the RTBU, then words of a similar ilk ought to have been included in the Agreement. But instead of pressing the point, when Aurizon provided its draft undertaking in relation to clause 38 of the Agreement to the Commission, the RTBU withdrew its objection in relation to its asserted meaning of the words in clause 38.2.1.

(p) In construing clause 38 of the Agreement, the plain and ordinary meaning of the phrase “equalling 38 hours for each week of leave” is not to be altered, or added to.

(q) In addition to the foregoing reasons, I concur with the submissions of Aurizon as set out in this decision at paragraph [39] above as to the manner in which clause 38 of the Agreement is to be construed, including as to the meaning and application of the term “equalling” in clause 38.2.1 of the Agreement, and the term “calendar” in clause 38.1.3 of the Agreement. In my view, there is no basis to suggest that a “calendar week” is not to be construed as a period of seven days (i.e. seven days from whatever day the seven day block of annual leave commences).

(r) I do not accept that the words of clause 38.2.1 are to be read as 25 separate working days of paid annual leave, by reference to the exemplar roster, equating to a 20 or more percent increase in employee annual leave entitlements (e.g. 6.25 weeks of annual leave, instead of “5 weeks”). I equally do not accept that Aurizon is required to set or agree to rostering arrangements that are inconsistent with its operational requirements, and/or that limit Aurizon’s ability to roster in accordance with the terms of the Agreement, so as to ensure that the taking and/or payment of annual leave is consistent with the RTBU’s position.

(s) Finally, I note that the manner in which Aurizon currently deducts annual leave is consistent with my findings above. 57

Consideration and determination of the Clause 38 Dispute (Question 4) - If Aurizon is not allowed to reasonably require an employee to take annual leave in a seven day block, how is Aurizon required to deduct leave from the employee’s annual leave balance when annual leave is taken?

[44] Question 4 need not be answered, given that I have determined in the affirmative that Aurizon is allowed to reasonably require an employee to take annual leave in seven day blocks. I do, however, note Aurizon’s position on the issue of deductions from annual leave accruals, as follows:

“32. It is not in dispute that for a single day of annual leave Aurizon is required to deduct 7.6 hours of leave in accordance with clause 38.2.1.

33. Aurizon accepts that in circumstances where it authorises annual leave to be taken other than in seven day blocks, leave will be deducted on the basis of 7.6 hours for those days that it has authorised. Question 3 should be answered accordingly”. 58

Appendix 6 Dispute (Introduction of new electronic monitoring devices and access to information from electronic monitoring device)

Relevant clauses

[45] Appendix 6 of the Agreement reads:

“Appendix 6: WORKPLACE PRIVACY, EMPLOYEE SURVEILLANCE AND COMMUNICATIONS MONITORING

6.1 Aurizon respects Employees’ rights to privacy. Aurizon will ensure Employees’ privacy by keeping personal information confidential.

6.2 The parties recognise that some workplace monitoring is a legislative requirement. This clause does not diminish those requirements.

6.3 Any device used within a current or proposed procedure to record any Employee’s actions or interactions is only to be accessed for post-incident investigations as defined by rail safety legislation.

6.4 Any device that monitors or records an Employee can only be introduced in the workplace through the consultation process as outlined in Clause 50 of this Agreement and must meet the requirements of any relevant legislation.

6.5 Each device must have a specific procedure developed for its usage, be reviewed via both safety committees and the Consultative Committee and be agreed to by Employees and the Union.

6.6 Any video or voice recording held by Aurizon or another company (such as ARTC) will only be accessed by senior management and only to investigate an incident.

6.7 Any device used within a current or proposed procedure to record any employee actions or interactions is only to be accessed for post-incident investigations as defined by the Rail Safety Act, or where a formal complaint is made by an employee covered by this agreement against a fellow employee covered by this agreement. Any disciplinary action will be in line with the agreed disciplinary procedure.

6.8 The company will not implement or install any video or voice recording equipment in locomotive cabs over the term of this Agreement (excluding external forward-facing camera).”

Outline of the Appendix 6 Dispute

[46] The Appendix 6 Dispute concerns the introduction of surveillance devices in the workplace, and the use by Aurizon of any information or data generated by, or obtained from, such a device. 59

Questions to be answered (Appendix 6 Dispute)

[47] The parties agreed that the Commission is to answer the following questions in resolution of the Appendix 6 Dispute:

(a) What, if any, requirements are imposed by Appendix 6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 in relation to the introduction of a new device? (Question 5)

(b) What, if any, limitations does Appendix 6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 impose in relation to the access and use of information generated or obtained from a device? (Question 6)

[48] In answering these questions, the parties put forward two examples to which they sought the Commission have regard to in answering Questions 5 and 6, as follows:

“Example 1

An employee of Aurizon (Mainline Driver) was rostered to work a shift on 3 August 2019.

The employee used the Alcomeasure prior to the shift to confirm he/she was fit for duty in accordance with Aurizon's drug & alcohol testing policy.

The employee commenced his/her shift. Part of his/her work on that day involved the driving of a light vehicle (Aurizon Motor Vehicle 841 VGF (Car Q24)) from Chilcotts Creek to Quirindi.

An In Vehicle Monitoring System (IVMS) is installed in Car Q24. IVMS has been installed in all Aurizon's light vehicles since October 2016. Employees are required to logon to the IVMS and it monitors vehicle conditions, including location, speed, engine parameters, idling, period of time driving, etc.

The IVMS in Car Q24 alerted Aurizon that at 04:34am, the employee was driving at speeds exceeding the posted speed limit of 100 km/ph, by up to 20 km/ph.

Aurizon met with the employee to obtain information about the incident and, during that meeting, the employee admitted the conduct.

The conduct of the employee is in breach of Aurizon's Code of Conduct and Aurizon's SHE Motor Vehicle Safety PRI/0030/COR/RD.

Aurizon wishes to take disciplinary action against the employee.

Example 2

Aurizon wishes to introduce a Shift Management Solution (SMS) in New South Wales. The SMS already exists across Aurizon's Queensland operations. The SMS will replace existing shift sign on/sign off applications and embed standardised time capture practices across the business.

The SMS will, among other things, introduce swipe card sign on and sign off functionality for operational employees via kiosks (Shift Management Kiosk) at depots, and online mobile device capability for depot-less locations; capture actual shift times, allowances and related pay data; deliver streamlined reporting to payroll enabling an increase in the accuracy of pay outcomes; capture accurate route information for recording against qualifications; provide leaders with train crew attendance management capabilities including safety check verification; deliver interactive real-time enterprise reporting on staff shift allocations and compliance; and detect and manage fatigue.

Employees can use Shift Management Kiosk to, among other things, sign on and off work and complete a Fit for Duty declaration, access their shift details, shift report and other information relevant to their work, apply for allowances in relation to work performed, and complete a safe shift acknowledgment”. 60

[49] In addition to the foregoing, at the conclusion of the hearing, the parties sought to make additional written submissions concerning ss.131 and 132 of the Rail Safety National Law (NSW) (RSNL), and Regulation 26 of the Rail Safety National Law National Regulations 2012 (Rail Regulations), as to the manner in which those provisions interact with Appendix 6 of the Agreement. The provisions read:

“131 Disclosure of train safety recordings

A person must not publish or communicate to any person:

(a) a train safety recording or any part of a train safety recording; or

(b) any information obtained from a train safety recording or any part of a train safety recording,

otherwise than in the course of an inquiry or an investigation into an accident or incident under this Part or for the purposes of, or in connection with:

(c) criminal proceedings (not being criminal proceedings in which it is not admissible), investigations relating to any such criminal proceedings or investigations by or proceedings before a coroner; or

(d) civil proceedings in which an order is made under section 132; or

(e) a disclosure or publication that is otherwise permitted under this Law or an Act.

Maximum penalty

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

132 Admissibility of evidence of train safety recordings in civil proceedings

(1) A train safety recording is not admissible in evidence in any civil proceedings against a rail safety worker.

(2) A party to civil proceedings may, at any time before the determination of the proceedings, apply to the court in which the proceedings have been instituted for an order that a train safety recording, or part of a train safety recording, be admissible in evidence in the proceedings.

(3) If an application is made to a court under subsection (2), the court must:

(a) examine the train safety recording; and

(b) if satisfied that:

(i) a material question of fact in the proceedings will not be able to be properly determined from other evidence available to the court; and

(ii) the train safety recording, or a part of the train safety recording, if admitted in evidence in the proceedings, will assist in the proper determination of that material question of fact; and

(iii) in the circumstances of the case, the public interest in the proper determination of that material question of fact outweighs the public interest in protecting the privacy of rail safety workers,

the court may order that the train safety recording, or that part of the train safety recording, be admissible in evidence in the proceedings.

(4) If the court makes an order referred to in subsection (3), the train safety recording is (despite subsection (1)) admissible in evidence in the proceedings.

Note: Part 6 of the Transport Safety Investigation Act 2003 of the Commonwealth provides for limitations on the disclosure and use of train safety recordings in court proceedings.

Regulation 26: Disclosure of train safety recordings

(1) For the purposes of section 131(e) (Disclosure of train safety recordings) of the Law, a train safety recording may be published or communicated by and to the persons set out in sub regulation (2), for the following purposes:

(a) the analysis or monitoring of railway operations or rail safety or related matters;

(b) without limiting paragraph (a), the auditing of compliance by rail safety workers with any systems, procedures, instructions, orders, notices or undertakings relating to the carrying out of railway operations.

(2) A train safety recording may be published or communicated by:

(a) a rail transport operator, or an employee or a contractor of the operator, to another rail transport operator or an employee or a contractor of another operator; or

(b) an employee or contractor of a rail transport operator to the operator or another employee or contractor of the operator; or

(3) For the purposes of section 131(e) (Disclosure of train safety recordings) of the Law, a train safety recording may be published or communicated by or on behalf of a rail transport operator to the Regulator.”

RTBU Submissions (Appendix 6 Dispute)

[50] In relation to Questions 5 and 6, the RTBU submitted (in summary):

(a) Appendix 6 is intended to cover workplace privacy, surveillance, and communications monitoring. 61 There is no inconsistency between Appendix 6 and State or Territory occupational health and safety (OHS) laws.62

(b) Information on a device is only to be used for “incidents” or “post-incident investigations” as defined by rail safety legislation [Rail Safety National Law (NSW)], or where there has been a complaint by an Agreement covered employee against another Agreement covered employee”. 63

(c) Video and voice recordings may only be accessed by senior management to investigate a post-incident investigation. 64

(d) Specific procedures must be developed for the usage of a device, with same reviewed by Aurizon’s safety and consultative committees. The procedure is to then be approved by employees covered by the Agreement. If these “boxes” are not ticked, the device cannot be introduced or used. 65

(e) A device is not to be used to check up upon time-keeping or payroll matters. 66

(f) There is no inconsistency between clause 6.5 (of Appendix 6) and either the Work Health and Safety Act 2011 (NSW),or the RSNL. Neither of these pieces of legislation seek to impose requirements on the decision making process of an employer, aside from actively encouraging employers to make the decision to improve health and safety. 67

(g) Appendix 6 is not about the provision of a ‘veto’ in respect of OHS decisions (as claimed by Aurizon). The construction of Appendix 6, as pressed by the RTBU, is no different to a company deciding to make a certain decision/s subject to 75 percent of its board agreeing to a proposition, or a company deciding to avoid unforeseen consequences by making a decision contingent on a particular department agreeing. In this matter, Aurizon has made a decision that for a procedure to be put in place, certain requirements under the Agreement must be met, including the agreement of employees (and the RTBU) after review. 68

[51] In respect of ss.131 and 132 of the RSNL, and Regulation 26 of the Rail Regulations, the RTBU submitted:

(a) Sections 131 and 132 of the RSNL, and Regulation 26 of the Rail Regulations, apply to any recordings that Aurizon makes concerning the activities of employees covered by the Agreement, be they sound recordings, images, or data information/recordings. 69

(b) Access to recordings made in relation to the operation of a train are heavily regulated by legislation. 70

(c) Clauses 6.3, 6.6 and 6.7 of Appendix 6 of the Agreement are not inconsistent with ss. 131 and 132 of the RSNL, and Regulation 26 of the Rail Regulations. Although these clauses in the Agreement seek to limit the access to recordings to certain persons, or certain circumstances (either involving an “incident” or a “post-incident investigation”), the clauses are clearly drafted in an attempt to mirror s.131(a) and (b) of the RSNL. 71

(d) The Commission should find that the RSNL does not allow Aurizon to take disciplinary action against an employee in the course of his/her employment concerning a safety issue (other than in connection with an incident or post-incident investigation). 72

Aurizon Submissions (Appendix 6 Dispute)

[52] In relation to Questions 5 and 6, Aurizon submitted (in summary):

(a) whilst the words of Appendix 6 may be clear, the terms of Appendix 6 are subject to applicable legislation in New South Wales, especially applicable legislation concerning OHS. 73

(b) in furtherance to the foregoing, Aurizon submitted:

“45. The [RSNL] is applied (with modifications) as a law of New South Wales by the Rail Safety (Adoption of National Law) Act 2012 (NSW).

46. The RSNL is clearly a law of New South Wales dealing with occupational health and safety: Australian Rail, Tram and Bus Industry Union v. Rail Corporation of New South Wales[2013] FWC 2447 at [30] per Hamberger SDP.

47. The Work Health and Safety Act 2011 (NSW) (the WHSA) is also a law of New South Wales dealing with occupational health and safety.

48. It follows that Appendix 6 applies subject to the RSNL and the WHSA, and to the extent that Appendix 6 would apply in a way that is inconsistent with the RSNL or the WHSA, it has no legal effect and cannot apply, and must be interpreted accordingly.

…

63. Given the paramount operation of the RSNL and WHSA over Appendix 6 of the 2018 Agreement, any term of Appendix 6 that, by its application, would impose a fetter on Aurizon or its employees from complying with their safety duties under the RSNL or the WHSA must give way to the RSNL and WHSA, and the relevant term of Appendix 6 will be ''of no legal effect''10 to the extent of inconsistency.

64. Whilst there does not appear to be any superior court authority directly on point in respect of the approach to identifying the existence of inconsistency between the RSNL or the WHSA on the one hand, and the terms of an enterprise agreement under the FW Act on the other, the authorities dealing with the approach which is taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws, are by analogy instructive.

65. One approach is to have regard to when a State law would "alter, impair or detract from" the operation of the Commonwealth law. "This effect is often referred to as a "direct inconsistency''. Notions of "altering", "impairing" or "detracting from" the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law'': See Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212 at 221 [32]; 363 ALR 188 at 195-196; [2019] HCA 2 at [32].

66. Thus, by way of analogous reasoning, in deciding whether or not the RSNL or WHSA in a particular respect is inconsistent with, and thus prevails over, Appendix 6 of the 2018 Agreement, the Commission should have regard to the provisions of the RSNL and the WHSA and of Appendix 6 to ascertain whether in its operation and effect Appendix 6 would alter, impair or detract from Aurizon's ability to comply with its duties under the RSNL or WHSA. In this regard the Commission would recognise that a number of the offences created under the RSNL and the WHSA are strict liability offences, no doubt in recognition of the serious consequences arising from a breach of safety obligations. Further, the RSNL and WHSA each contain provisions having the effect of imputing conduct engaged in by employees as conduct also engaged in by the body corporate (employer).

67. The Commission would also consider whether in its operation and effect Appendix 6 would alter, impair or detract from compliance by employees with their duties and obligations under the RSNL or WHSA. For example, non-compliance with the testing procedures set out the in RSNL in respect of preliminary breath testing or breath analysis is taken to be an offence against the RSNL: ss 126 and 127. Similar provisions apply in respect of drug and urine screening or tests.

68. The Applicant's approach to the meaning and application of Appendix 6 is profoundly misconceived. It has had no regard whatsoever to the RSNL or WHSA.

69. This is exemplified in the determinations it seeks [at paragraph [40] of the Applicant’s Submissions] including, for example, that procedures for devices used for employee surveillance are subject to agreement by the employees covered by the 2018 Agreement and the RTBU. To the extent to which such devices used for employee surveillance are in furtherance of Aurizon's obligations under the RSNL or WHSA, no such restrictions can be applied.

70. It is clear that a provision of Appendix 6, such as clause 6.5, that arguably purports to bestow upon employees or the Applicant a veto in respect of the procedure to be adopted for the use of a device, cannot have such an application in respect of a device deployed by Aurizon to comply with a safety obligation under the RSNL or WHSA.

71. The same reasoning applies to clause 6.7 of Appendix 6 which purports to restrict access to any device used with a procedure to record any employee actions or interactions. To the extent that clause purports to restrict access to 'post-incident' investigations, or to situation where a formal complaint is made by an employee against a fellow employee, it will be of no legal effect if use of the device for other investigative purposes are necessary for compliance with the RNSL or WHSA.

72. It is plain from the evidence of Mr Keating that Aurizon has put in place detailed control measures and safety procedures in order to comply with its strict and onerous statutory safety obligations under both the RSNL and WHSA. The interpretation of Appendix 6 that the Applicant contends for will seriously impair and detract from the operation of the RSNL or WHSA so far as those laws impose safety obligations on Aurizon.” 74

(c) At paragraphs [49] to [62] of its Opening Submissions, Aurizon identified various provisions of the RSNL and WHSA to which Aurizon must comply (many being strict liability offences and/or attracting criminal law sanction). 75

[53] In relation to ss.131 and 132 of the RSNL, and Regulation 26 of the Rail Regulations, Aurizon submitted:

“[The issues concerning ss.131 and 132 of the RSNL, and Regulation 26 of the Rail Regulations, arise because], “as submitted in Aurizon’s outline of opening submissions, section 29(2) of the [FW] Act provides in effect that a term of an enterprise agreement applies, ‘subject to’any law of a State or Territory, so far as it is covered by subsections 27(1)(b),(c) or (d). For the reasons set out in the Respondent's outline of opening submissions (and not repeated here), Appendix 6 applies subject to the RSNL, and to the extent that Appendix 6 would operate in a way that is inconsistent with the RSNL, it has no legal effect and cannot apply, and must be interpreted accordingly. 76

Under section 131 of the RSNL, there is no prohibition or restriction on publication or communication of train safety recordings, or any part of a train safety recording, or any information obtained from a train safety recording or any part of a train safety recording, for the purposes of or in connection with, a disclosure or publication permitted under the RSNL or an Act; s.131(e) of the RSNL. 77

Sub-regulation 26(1) sets out purposes for which a train safety recording may be published or communicated between the persons in sub-regulation 26(2). The persons by whom a train safety recording may be published or communicated relevantly include:

(a) An employee of a rail transport operator (i.e. Aurizon) to the operator or another employee or contractor of the operator, - sub-rule 26(2)(b): and

(b) A rail transport operator (i.e. Aurizon) to an employee or contractor of the operator (i.e. Aurizon), - sub-rule 26(2)(c). 78

The relevant purposes for which publications or communications by the above persons are permitted include:

(a) The analysis or monitoring of railway operations or rail safety or related matters; and

(b) Without limiting paragraph (a), the auditing of compliance by 'rail safety workers' (as defined in section 4) with any systems, procedures, instructions, orders, notices or undertakings relating to the carrying out of railway operations. 79

The RTBU correctly submits at paragraph 8 of its submissions that under sub-regulation 26 Aurizon is authorised to share a recording with any of its employees, which would include managers and senior managers. 80

Whilst it is true that regulation 26 does not contain the phrase, 'disciplinary matters', it clearly extends to auditing of compliance by rail safety workers with any systems, procedures, instructions, orders, notices or undertakings relating to the carrying out of railway operations. The language chosen in Regulation 26 is of wide import. 81

Further it is important to acknowledge and give effect to the words, 'or related matters' in sub-regulation 26(1)(a), which demonstrates that the specific purposes set out therein are not intended to be exhaustive. 82

It is unlikely that sub-regulation 26(1), which clearly authorises the publication or communication of information obtained from a train safety recording for the purpose of auditing whether a rail safety worker has complied with his or her obligations under systems, procedures, instructions, orders etc, was intended to restrict communications for the purpose of securingcompliance by workers, if an audit reveals non-compliance by a rail safety worker. That would extend to disciplinary measures if that were considered necessary to secure compliance by employees performing rail safety work (as defined in section 8, which includes driving rollingstock). 83

To the extent that Appendix 6 would in its operation, restrict any employee of Aurizon from making a communication of information obtained from a train safety recording for a purpose referred to in paragraph 6 above, it would impair or detract from the RSNL and be invalid to that extent. The purported restriction of use imposed by Appendix 6 to circumstances either involving an "incident" or a "post-incident investigation" is clearly inconsistent with a permissible use of that information in the RNSL and to that extent invalid. 84

The purported restriction of access to senior management is also inconsistent with Regulation 26, which places no limitation on the seniority of employees by whom a train safety recording may be published or communicated, and by necessary implication accessed for a permissible purpose. 85

Clauses 6.3, 6.6, and 6.7 of Appendix 6 are thus invalid in so far as they purport to operate in the manner that is advanced by the Applicant. 86

In its submissions dated 12 November 2019 (at [15]), the RTBU has made reference to section 54 of the Transport Safety Investigation Act 2003 (Cth) (TSI Act), which it submits prohibits the use of 'on- board recordings' for disciplinary action against an employee. The TSI Act, being a federal statute, has no relevance to the argument being advanced by the Respondent about the interaction between Appendix 6 of the Agreement and laws of New South Wales dealing with occupational health and safety which engage section 29(2) of the [FW] Act”. 87

Consideration and determination Appendix 6 Dispute (Question 5) - What, if any, requirements are imposed by Appendix 6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 in relation to the introduction of a new device?

Consideration and determination of Appendix 6 Dispute (Question 6) - What, if any, limitations does Appendix 6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 impose in relation to the access and use of information generated or obtained from a device?

[54] It is appropriate that I answer Questions 5 and 6 together.

[55] Having considered the evidence and submissions of the parties, I find that the answer to Questions 5 and 6, as to the requirements imposed by Appendix 6 in relation to the introduction of a new device, and the use of information or data from that device, to be as follows:

(a) OHS legislative requirements apply not only to Aurizon, but all of its employees and contractors.

(b) Clause 6.2 of Appendix 6 is in no uncertain terms, i.e. the provisions of Appendix 6 do not diminish any legislative requirements concerning OHS (or workplace monitoring associated with same). 88 In my view, clause 6.2 merely reflects the existing position as to OHS legislation requirements, i.e. in broad terms, Aurizon, in terms of its systems and processes, must ensure the health and safety of all of its employees. In doing so, Aurizon must not only put systems and processes in place to eliminate ‘risk’, but must also monitor and enforce compliance with such systems and processes to avoid ‘risks’.89 There is no reason why such monitoring and enforcement is unable to coexist with respecting an employee’s right to privacy.90 It is not consistent with OHS legislative requirements, for the monitoring of OHS systems and process to be based upon only the occurrence of an ‘incident/s’, or to be otherwise limited to ‘post incident investigations’. The focus must be upon ‘risks’, so that every reasonable effort can be made to ensure that there are no ‘incidents’.

“MR MEEHAN: Might I go back one step? One can sympathise with the proposition that your Honour just articulated, that is, as technology improves there might be more pervasive ways of monitoring compliance with obligations that that do intrude into what is now regarding as privacy rights. One can see that. The benchmark though, or the touchstone, in the State laws for acquitting one's obligation is what is reasonably practicable? And if there are technological developments which are available and are reasonably practicable to be applied to the acquittal of one's health and safety obligations, the nature of the health and safety laws, being strict in nature require that those steps be taken.

I think where one finds a boundary is there's steps that need to be taken to ensure health and safety. And if they intrude into privacy that they don't have a sufficient connection to meeting health and safety obligations. That is where one meets that intersection that the concern your Honour has expressed throws up.

But, in my submission, monitoring driving, monitoring drug and alcohol levels impairment, fatigue - those are matters that are plainly directly in contemplation of the State law. Indeed, there are provisions that directly deal with drug and alcohol impairment, fatigue management and companies, including Aurizon, have to have plans specifically under the regulations dealing with those things.

Now there can be no doubt, in my submission, that Parliament has had regard to the propensity for those types of plans to impede upon privacy but the balance has been struck whereby a strict obligation has been set and regulations have been adopted which contain specific control measures that one has to take. So in a sense that question of intrusion and where the balance has been struck has been determined by Parliament”. 91

(d) As technology improves, new devices will become available that will enable Aurizon to monitor, or better monitor, and enforce compliance with its OHS systems and processes. Provided there is a genuine or bona fide basis, pursuant to a legislative requirement applying to Aurizon, for a device to be introduced or otherwise updated, I concur with Aurizon that the terms of Appendix 6 cannot be read or applied so as to limit the use of such a device, whether that device be used for monitoring and compliance purposes, or be used for post-incident investigations. It is no answer to assert that because the terms of Appendix 6 limit the introduction or use of a device, or its data, that Aurizon must comply with Appendix 6 by directly or indirectly ignoring OHS legislation. 92

(e) Simply because the use of a less intrusive older device or method might be said to achieve somewhat the same end in terms of compliance with OHS legislation, does not mean that a new or more updated device that results in costs savings for Aurizon, and/or produces more secure and accurate results, is not to be used, or otherwise carries a veto power on its use (i.e. in respect of employee agreement as to the introduction or use of data from such a device). 93

(d) The foregoing is not to suggest that genuine consultation in respect of a device (and any specific procedure associated with same) is not to occur, or that the introduction of a device cannot be reviewed by a safety or consultative committee. However, if there is a genuine or bona fide basis, pursuant to a legislative requirement applying to Aurizon, for a device to be introduced, and its data to be used, there can be no right of veto based upon an absence of employee agreement as to the introduction of the device.

(g) Further, I do not consider there to be any basis to limit data obtained from the use of a device to only incidents or post-incident investigations, or situations where an employee covered by the Agreement has made a complaint about another employee covered by the Agreement. Such a position would be directly contrary to legislative requirements to identify OHS risks, and to monitor and enforce compliance with OHS systems and processes. In other words, I do not see how it can be said to be appropriate (or lawful) to wait for an accident (incident) to occur before data on a device is accessed. That would be to fail to apply the data to OHS ‘risks’. Equally, I do not see how it can be said to be appropriate (or lawful) for device data not to be accessed, assessed or otherwise used where, for example, a member of the public, or a staff member not covered by the Agreement, identifies or complains about an employee driving unsafely (e.g. being reckless or speeding whilst driving a company vehicle). The use of such data will not only assist the employee to prove that they were not, for example, speeding, if they refuted such an allegation, but will also assist Aurizon to improve their compliance monitoring processes to ensure processes and systems are being adhered to, so as to identify and eliminate risks.

(h) In respect of ss.131 and 132 of the RSNL, and Regulation 26 of the Rail Regulations, I need go no further, for the purposes of this dispute, than confirm my view that Appendix 6 of the Agreement applies subject to the RSNL (and the Rail Regulations), and to the extent that Appendix 6 would operate in any way that is inconsistent with the RSNL (and the Rail Regulations), it has no legal effect and cannot apply. As Aurizon has submitted: “section 29(2) of the [FW] Act provides in effect that a term of an enterprise agreement applies, ‘subject to’any law of a State or Territory, so far as it is covered by subsections 27(1)(b),(c) or (d)”.

[56] In view of the foregoing reasons:

(a) In relation to Example 1, Aurizon appears to me to have a valid basis to discipline the employee in question. 94 The conduct is in breach of Aurizon’s Code of Conduct. It is common knowledge that exceeding the mandated speed limit creates a risk to health and safety on the road. The employee has admitted the breach. The device (the “In Vehicle Monitoring System” (IVMS)) brought the breach to Aurizon’s attention. Aurizon has a duty to monitor and enforce its safety policies and procedures so as to ensure it complies with OHS legislative requirements. Disciplining the employee for the breach is part of an appropriate enforcement and deterrent regime. Hence, relevant data in respect of safety matters, may be used by Aurizon to ensure the elimination of risks in the workplace, and the safety of employees (and members of the public). From an OHS perspective, to the extent that the use of the IVMS, or its data, is in any way contrary to the terms of Appendix 6, such terms (of Appendix 6) are unable to be enforced given the operation of Division 2 of Part 1-3 of the FW Act (and the obligations placed upon Aurizon and its employees pursuant to OHS legislation).

(b) In relation to Example 2, the Shift Management Solution (SMS) to be introduced appears to have mixed uses in relation to time keeping, payroll, route information recording, fit for duty declarations, allocation of work allowances, safety check verifications, attendance management, shift-allocation and compliance reporting, and the detection and management of fatigue. 95 Part of the purposes of the SMS, and any data produced from same, relates to OHS matters, e.g. what employee/s attend the workplace and when, and fatigue management. Provided there is appropriate consultation with employees, and safety and consultation committee review (in accordance with the requirements of the Agreement), there appears to me to be no reason as to why Aurizon cannot introduce the SMS (either with employee agreement, or absent employee agreement post consultation and review). Further, any data from the SMS, to the extent that such data concerns safety matters, may be used by Aurizon to ensure the elimination of risks in the workplace, and the safety of employees (as well as for enforcement or deterrence purposes). From an OHS perspective, to the extent that the use of the SMS, or its data, is in any way contrary to the terms of Appendix 6, such terms (of Appendix 6) are unable to be enforced given the operation of Division 2 of Part 1-3 of the FW Act (and the obligations placed upon Aurizon and its employees pursuant to OHS legislation).

Disposal of proceedings

[57] The answers to the six questions posed by the parties in resolution of this dispute, by reference to my reasons set out in this decision are as follows:

Question 1: Under the Aurizon NSW Coal Operations Enterprise Agreement 2018, when a RTBU representative attends the workplace (outside of their rostered hours of work) to perform a function under the Agreement, is that time classed as time worked?

Answer: No (see reasoning at paragraphs [26] to [29] herein).

Question 2: Does clause 38 of the Aurizon NSW Coal Operations Enterprise Agreement 2018, allow Aurizon to reasonably require employees to take annual leave in seven day blocks (Saturday to Friday)?

Answer: Yes (see reasoning at paragraph [42] herein).

Question 3: If an employee is absent on annual leave for a seven day block (Saturday to Friday) is Aurizon required to deduct 38 hours from the employee’s annual leave balance?

Answer: Yes (see reasoning at paragraph [43] herein).

Question 4: If Aurizon is not allowed to reasonably require an employee to take annual leave in a seven day block, how is Aurizon required to deduct leave from the employee’s annual leave balance when annual leave is taken?

Answer: Not required to be answered (see reasoning at paragraph [44] herein).

Question 5: What, if any, requirements are imposed by Appendix 6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 in relation to the introduction of a new device?

Answer: See answer set out in reasoning at paragraphs [55] to [56] herein.

Question 6: What, if any, limitations does Appendix 6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 impose in relation to the access and use of information generated or obtained from a device?

Answer: See answer set out in reasoning at paragraphs [55] to [56] herein.

[58] This dispute application is otherwise dismissed. An order to this effect will issue separately to this decision.

DEPUTY PRESIDENT

Appearances:

Mr Toby Warnes appeared for the Australian Rail, Tram and Bus Industry Union (Applicant).

Mr Simon Meehan of Counsel, instructed by Ashurst Lawyers, appeared on behalf of Aurizon Operations Ltd (Respondent).

Printed by authority of the Commonwealth Government Printer

1 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd[2017] FWCFB 3005 (especially at [114]).

2 [2020] FWC 2130.

3 Ibid, at [8].

4 As amended, see Transcript, 30 October 2019, at PN356 to PN375 (Exhibit R1 replaced by Exhibit R1A per amendments to Exhibit R1 as reflected in Exhibit R1A), and see also PN387 to PN394 and PN412 to PN415.

5 See for example, Gregory Dixon Statement, 8 August 2019, albeit concerning enterprise bargaining meetings, at [29] to [31], [38]; [85] to [86], 96(g); Transcript, 20 August 2020, PN64, and PN261.

6 RTBU submissions, 10 September 2019, at [4].

7 Transcript, 20 August 2020, PN58 to PN60.

8 RTBU submissions, 12 July 2019.

9 Aurizon's Outline of Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Clause 53 Dispute).

10 See: Aurizon Folder of Materials, Volume 1, Tab 7, Tabs 10 to 12.

12 Transcript, 20 August 2020, PN324.

13 Transcript, 20 August 2020, PN331.

14 Transcript, 20 August 2020, PN334.

15 Aurizon Folder of Materials, Volume 2, Tabs 47 to 48 and Tabs 51 to 52; Respondent’s Book of Documents, Volume 1, Tab 4, Tab 9, Tab 15; Respondent’s Book of Documents, Volume 2, Tab 37, Tab 41, Tab 47 to Tab 48, and Tab 51 to Tab 52.

16 Respondent’s Book of Documents, Volume 1, Tab 2.

17 See: Aurizon’s Closing Submissions, 18 September 2019, at [26] to [28].

18 Statement of Elizabeth Mills, 7 August 2019, Exhibit R2, at [29] to [32]. Ms Mills also engages with and refutes the evidence of Mr Wright, Mr Baker and Mr Roberts concerning the attendance of RTBU representatives at meetings (in respect of their role or function as an RTBU representative (see Attachment A to Ms Mills statement)).

19 RTBU Submissions, 18 September 2019, at [15]. Aurizon Opening Submissions, at [17].

20 Statement of Garry Baker, undated, Exhibit A1, at Attachment ‘GB-11’, pages 88 to 89.

21 Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [100], see also at [99], and Attachment ‘PL-7’.

22 RTBU Submissions, 18 September 2019.

23 Transcript, 29 October 2019, Lennox XXN at PN136 to PN143.

24 Transcript, 29 October 2019, at PN158.

25 Transcript, 29 October 2019, at PN159; PN161.

26 Transcript, 29 October 2019, at PN164; PN 168 to PN169.

27 Transcript, 29 October 2019, at PN169.

28 Transcript, 29 October 2019, at PN170.

29 Transcript, 29 October 2019, at PN172.

30 Aurizon's Outline of Opening Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Clause 38 Dispute and Appendix 6 Dispute), at [18]-[30].

31 Transcript, 29 October 2019, at PN202 to PN205; Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [43] to [54].

32 Transcript, 29 October 2019, at PN203.

33 Transcript, 29 October 2019, at PN206.

34 Transcript, 29 October 2019, at PN207.

35 Transcript, 29 October 2019, at PN222-PN223.

36 Transcript, 29 October 2019, at PN225.

37 Transcript, 29 October 2019, PN257.

38 Transcript, 29 October 2019, PN260.

39 Transcript, 29 October 2019, PN264.

40 Transcript, 29 October 2019, PN266.

41 Transcript, 29 October 2019, PN274; PN292 to PN294

42 Transcript, 29 October 2019, PN314.

43 Ibid.

44 Note Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [91] to [93].

45 Agreement, clauses 21.2.1 and 22; Respondent’s Book of Documents, Volume 2, Tab 29, Tab 30.

46 Transcript, 30 October 2019, at PN416 to PN424; PN432 to PN433; PN 444 to PN463; Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [63] to [84].

47 Agreement, clause 62.5. The Base Remuneration is divided by 1976 hours, giving employees their Hourly rate of pay (note also clauses 62.6 to 62.8 of the Agreement).

48 Agreement, clause 37.1.

49 Based upon Line 1 of the Quirindi Master Roster: Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [103].

50 For what an “X” day is, see Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [33].

51 Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [105].

52 See Stephen Wright Statement, Exhibit A2, 18 September 2019, at page 367; Statement of Garry Baker, undated, Exhibit A1, at pages 18 to 19, and 53.

53 Fair Work Act 2009, s.87.

54 Note the application and operation of s.55 of the Fair Work Act 2009 concerning ancillary and supplementary terms.

55 Transcript, 30 October 2019, at PN479-PN484.

56 RTBU Submission, 19 September, at [20], referring to the Statement of Garry Baker, undated, Exhibit A1, at [12]; and Stephen Wright Statement, 24 October 2019, Exhibit A3, 24 October 2019, at [9] and Attachment “A”.

57 Statement of Peter Lennox (Annual Leave), Exhibit ‘R1A’, at [94] to [98]; [101] to [107].

58 Ibid, see also Aurizon Opening Submissions, at [32] to [33].

59 Stephen Wright Statement, Exhibit A2, 18 September 2019, at Attachment “L”, page 449.

60 See Directions made 15 August 2019, Annexure ‘A’.

61 RTBU Submissions, 18 September 2019, at [29].

62 Transcript, 30 October 2019, at PN491.

63 RTBU Submissions, 18 September 2019, at [32], [38].

64 RTBU Submissions, 18 September 2019, at [33], [36].

65 RTBU Submissions, 18 September 2019, at [34], [37].

66 RTBU Submissions, 18 September 2019, at [35].

67 RTBU Submissions, 12 November 2019, at [18].

68 RTBU Submissions, 12 November 2019, at [16] to [17].

69 RTBU Submissions, 12 November 2019, at [6].

70 RTBU Submissions, 12 November 2019, at [3].

71 RTBU Submissions, 12 November 2019, at [12] to [16].

72 RTBU Submissions, 12 November 2019, at [14].

73 See Fair Work Act 2009, ss.27(1)(b), (c), (d); ss.27(2) and (2)(c); ss.29(2) and (3); Appendix 6, clause 6.2.

74 Aurizon's Outline of Opening Submissions Aurizon NSW Coal Operations Enterprise Agreement 2018 (Clause 38 Dispute and Appendix 6 Dispute.

75 For example, see Work Health and Safety Act 2011 (NSW), at ss.20, 27, 28, 29 to 33.

76 Aurizon submissions, 19 November 2019, at [2].

77 Aurizon submissions, 19 November 2019, at [3].

78 Aurizon submissions, 19 November 2019, at [5].

79 Aurizon submissions, 19 November 2019, at [6].

80 Aurizon submissions, 19 November 2019, at [7].

81 Aurizon submissions, 19 November 2019, at [11].

82 Aurizon submissions, 19 November 2019, at [12].

83 Aurizon submissions, 19 November 2019, at [13].

84 Aurizon submissions, 19 November 2019, at [15].

85 Aurizon submissions, 19 November 2019, at [16].

86 Aurizon submissions, 19 November 2019, at [17].

87 Aurizon submissions, 19 November 2019, at [18].

88 Compare, Wright Statement (Exhibit A3), 24 October 2019, at [7].

89 Note the scope of Aurizon’s commitment to OHS in the workplace: Statement of David Keating (Appendix 6), 17 October 2019, Exhibit R3.

90 See clause 6.1 of Appendix 6.

91 Transcript, 30 October 2019, at PN802 to PN805.

92 See, for example, Transcript, 30 October 2019, at PN572 and PN583.

93 See, for example, Transcript, 30 October 2019, at PN522 and PN561.

94 Note Statement of Peter Lennox, 18 October 2019, Exhibit R2, at [5] to [50].

95 Transcript, 30 October 2019, at PN591; Note Statement of Peter Lennox, 18 October 2019, Exhibit R2, at [51] to [75].

Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited

[2020] FWC 2848

3 JUNE 2020

DECISION

Interpretation of enterprise agreements

Clause 53 Dispute (Workplace Representatives)

Clause 38 Dispute (Annual Leave)

Appendix 6 Dispute (Introduction of new electronic monitoring devices and access to information from electronic monitoring device)