Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd
[2018] FCCA 2002
•25 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION v KDR VICTORIA PTY LTD | [2018] FCCA 2002 |
| Catchwords: INDUSTRIAL LAW – FAIR WORK – Whether Yarra Trams breached the applicable enterprise agreement by failing to revert to the status quo after being given notice of a dispute. |
| Cases cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211; [2006] FCA 1039 Other materials: Shorter Oxford Dictionary, Sixth Edition |
| Applicant: | AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION |
| Respondent: | KDR VICTORIA PTY LTD T/A YARRA TRAMS |
| File number: | MLG 2296 of 2017 |
| Judgment of: | Judge Riley |
| Hearing dates: | 21 and 22 May 2018 |
| Date of last submission: | 22 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| Counsel for the applicant: | Robert Reitano |
| Representative of the applicant: | Mark Diamond, employee of the applicant |
| Counsel for the respondent: | Matthew Follett |
| Solicitors for the respondent: | Johnson Winter & Slattery |
THE COURT DECLARES THAT:
The respondent contravened s.50 of the Fair Work Act 2009 by contravening cl.11.8(a) of the Yarra Trams Enterprise Agreement 2015 – Operations by requiring employees to perform new work as directed rather than in accordance with the arrangements that were in place immediately prior to the change that caused a dispute to be notified on 23 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2296 of 2017
| AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION |
Applicant
And
| KDR VICTORIA PTY LTD TRADING AS YARRA TRAMS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in this proceeding, the Australian Rail, Tram and Bus Industry Union, seeks a declaration that the respondent, KDR Victoria Pty Ltd trading as Yarra Trams, having introduced a changed work practice, failed to revert to the pre-change status quo after notices of dispute were submitted to it and thereby breached the applicable enterprise agreement, being the Yarra Trams Enterprise Agreement 2015 – Operations (“the enterprise agreement”). The union also seeks orders that Yarra Trams pay the union penalties for the breach.
The parties agreed that the court should first determine liability and, if it were found that Yarra Trams had breached the enterprise agreement, then the question of the amount of any penalty would be addressed at a subsequent hearing.
Material the parties relied on
Both parties relied on the agreed statement of facts filed on 26 April 2018 and an agreed bundle of documents.
The union relied on:
a)the affidavits affirmed by Brian Penza on 24 April 2018, 10 May 2018 and 18 May 2018;
b)the affidavits affirmed by Phillip Altieri on 26 April 2018, 10 May 2018 and 18 May 2018; and
c)the affidavits affirmed by Mark Teasdale on 26 April 2018, 10 May 2018 and 18 May 2018.
Yarra Trams relied on the affidavit sworn by Trevor Greer on 3 May 2018.
The deponents of all of the affidavits relied upon were cross-examined. However, ultimately, there was no significant disagreement about the key facts.
Background
In about 2016, the Melbourne metropolitan tram network built tram platforms in the centre of some roads. The centre platforms required the tram doors to open on the right side, to allow passengers to safely exit the tram. To open the doors on the right side, tram drivers had to manually override the default left side door opening function. Sometimes, the drivers forgot to override the automatic left side door opening function, exposing passengers to the hazard of stepping into oncoming traffic.
Yarra Trams have introduced two engineering solutions to overcome the hazard, namely:
a)fencing where practicable to separate the centre platform from traffic; and
b)an automatic trigger on tram dash boards to prompt the driver to activate the right door opening function.
However, the engineering solutions could not be implemented immediately. Pending the implementation of the engineering solutions, on or about Friday 23 June 2017, Yarra Trams conducted an information session for Customer Service Employees (CSEs) and Authorised Officers (AOs) stationed at centre platform tram stops and issued a written instruction to them which included the following:
·Wear clearly identifiable PPE
·When tram approaches platform, CSE [or AO] to be positioned at top end of platform facing tram driver
·Hold out arm to catch drivers (sic) attention and indicate location of platform
·Receive acknowledgement from driver
·Record time, tram number and driver acknowledgement on the running sheet
A sample running sheet was attached to the instruction. It was in the following form:
Stop______________ Route_______ Direction_____________
CSE___________________________ Date ____/____/______
TIME
TRAM#
DRIVER ACKNOWLEDGEMENT
COMMENTS
22:01
2020
ü
22:11
6023
Ï
No recognition from driver but correct doors opened
On Friday, 23 June 2017, Tarik Koç, a tram driver, sent a memorandum to his supervisor in the following terms:
Rail, Tram & Bus Union
VICTORIA TRAM & BUS DIVISION
NEW PRESTON DEPOT
Depot or Group23/06/2017
To the Secretary by TARIK KOÇ
Re CORRECT SIDE DOOR OPENING DOCUMENT
DATED 19TH JUNE 2017.
Y. TRAMS E. AGREEMENT 2015
OPERATIONS.
SECTION 2 CONSULTATION.
CLAUSE 8
8.1(a)
8.3 all parts.
We the members @ New PRESTON DEPOT are in dispute with yarra trams failing to consult.
Signed
TARIK KOÇ
RTBU DELEGATENEW PRESTON DEPOT
Later on 23 June 2017, Mr Koç sent another memorandum to his supervisor in the following terms:
Rail, Tram & Bus Union
VICTORIA TRAM & BUS DIVISION
NEW PRESTON DEPOT
Depot or Group
23/06/2017To the Secretary by TARIK KOÇ
Re CORRECT SIDE DOOR OPENING
This is additional to Dispute Notice number 0356.
*clause 8.14
While the consultation process is being conducted work shall continue and the parties will maintain the Status Quo for the period specified in clause 8.9 unless to do so would be contrary to law.
We the members @ New Preston Depot are in dispute with Yarra Trams Section 2 Consultation.
Signed
New Preston
Depot DelegateRBTU TARIK KOÇ
At 1.36pm on 23 June 2017, Mr Penza, an AO and union delegate, sent an email in the following terms to James Frans, Yarra Trams’ team manager of AOs:
Subject: FW: Task Observation Dispute notice.
Hi James, it has been brought to my attention that AO’S are being used to Monitor Drivers opening doors.
Due to Management not consulting nor giving a clear briefing around this situation AOS feel that this Instruction as it stands partly does not line up with the role of an AO in the form of our normal enforcement duties nor when we wear the customer service hat from time to time.
The AOS Feel that part of this instruction involves Task observation/ Reporting and monitoring which is the role of I believe the Driver Team Manager or Network officer.
The AOS also have other concerns around this instruction therefore under our current EA Part One-Common conditions Clause 11. Dispute Resolution Procedure, I ask as per clause 11.8 that Status quo be applied, 1 ask for an urgent meeting in order to try to resolve this dispute at our level.
Please consider this email as an official dispute notice, 1 will be awaiting your reply.
On the same day, Frank Pavic, a CSE and union delegate, sent a memorandum in the following terms to Sara Parmar, Yarra Trams’ team manager of customer support:
Dispute Notice
I formally notify you that the R.T.B.U. is in dispute with Yarra Trams regarding CSE’s being instructed to carry out duties beyond their level of responsibility and their position description also beyond their level of training. The duties being reporting activities carried out by Tram Drivers.
I invoke the Dispute Resolution Procedure clause 11 contained in our Enterprise Agreement particularly clause 11.8(a) Status Quo.
At 7.58pm on 23 June 2017, Mr Penza sent another email to Mr Frans in the following terms:
Hi James, I have not received a response to the Dispute notice attached that I sent to you today.
Furthermore I have just been informed that Preston AOS (1700 start time) are still currently as I send this email instructed to conduct the duties in question which is a clear breach of clause 11.8 “Status Quo”.
We demand that Yarra Trams comply immediately to clause 11.8 in order to meet Yarra Trams legal obligation under our current EA.
Please advise.
Thanks
Brian
At 9.07pm on 23 June 2017, Mr Greer, Yarra Trams’ manager of customer service, replied by email to Mr Pavic as follows:
Frank Pavic
RTBU Delegate Tram Hub
As the accountable manager I am responding for the Customer Service Department where you have today issued a dispute notice to the Team Managers Customer Service Unit.
I have reviewed the notice you forwarded to the Team Manager and after reviewing the 2015 EBA that covers my group, what is being asked of Customer Service Employees regarding the wrong side openings is within the scope of their duties to ensure passengers get on and off the trams safely. The status quo does not apply. I need to remind you that work that is within the scope of the Customer Service Employees that if anyone refuses to assist with getting passengers on and off the tram safely they may be subjected to being work tested or have four hours docked from their pay for taking unprotected industrial action.
Regards
Trevor Greer
Manager, Customer Service
That is, Yarra Trams maintained that the new work instruction required employees to perform tasks which were within the scope of their pre-existing duties, so there was no requirement under the enterprise agreement to revert to the status quo prior to the new work instruction.
On Monday, 26 June 2017, Jewels Grano, who was the Manager of Lines at the New Preston Depot, sent Mr Koç a response to the effect that the new work instruction was not a major change within the meaning of cl.8.1 of the enterprise agreement, and to the effect that the new work instruction was lawful and reasonable.
Also on 26 June 2017, Mr Greer and Mr Penza spoke by telephone. According to Mr Greer, Mr Penza said that the issue with the new work instruction was that it required AOs and CSEs to record information in relation to the actions of tram drivers. According to Mr Penza:
a)he said that:
i)we don’t supervise or report on drivers;
ii)the new task would cause angst between AOs and Drivers;
b)Mr Greer said that he would take that on board; and
c)Mr Penza did not say that these were the sole issues or that resolving them would end the dispute.
Later on 26 June 2017, Mr Greer spoke by telephone to Mr Teasdale, the President of the Tram and Bus Division, Victorian Branch, of the union. According to Mr Greer:
a)Mr Teasdale said that his concern about the new work instruction was that it required AOs and CSEs to “report” on drivers who failed to open the correct doors;
b)Mr Greer said that he would modify the running sheet to remove the column titled “Driver Acknowledgment” and the pre-populated comments associated with that column; and
c)Mr Teasdale said the dispute would probably be resolved on that basis.
According to Mr Teasdale:
a)he had a number of telephone calls with Mr Greer over a few days;
b)Mr Teasdale agreed to the removal of the “Driver Acknowledgement” column in the running sheet;
c)Mr Teasdale did not agree that removing that column would end the dispute; and
d)Mr Teasdale made it clear to Mr Greer that Mr Teasdale could not resolve the dispute, because he was only filling in for John Anderson and Mr Altieri who were interstate.
At 2.30pm on 26 June 2017, Mr Altieri, the Tram and Bus Division Secretary of the union emailed Terry Scott, the Executive Director, Passenger Service Delivery of Yarra Trams, saying:
I write to express the RTBU serious concerns that Yarra Trams has failed to adhere to the current Yarra Trams Enterprise Agreement 2015 Operations, Common Conditions, Clause 11 Dispute Resolution Procedure. I particularly draw your attention to 11.8 (a) Status Quo clause.
A Dispute has formally been notified by 3 RTBU Delegates to their respective Managers, regarding an Industrial Matter. Authorised Officers and Customer Service Employees being instructed to carry out duties that are beyond their level of responsibility and outside the scope of their position descriptions. Also there has been no consultation as to why Yarra Trams are going down this unprecedented path.
The RTBU insists that the Dispute Resolution Procedure must be adhered to by Yarra Trams, particularly clause 11.8 (a). Status Quo. Also I request an urgent meeting with the Yarra Trams responsible manager to be informed as to what & why this matter has arisen.
Failure to comply with the Yarra Trams Enterprise Agreement 2015 – Operations will result in appropriate action taken by the RTBU.
At 2.44pm on 26 June 2017, Mr Penza sent an email to Mr Greer stating:
I would like to point out to you that we are not disputing the tasks in this instruction that constitute loading and unloading customers safely and fully understand our obligations under the EA.
What we are disputing is the specific tasks given to us to complete, that are for the purpose of compiling a report to management about another employees task abilities.
Reporting the abilities of an employee in preforming a task is not performed by the AO grade and never has been, these tasks are performed by driver team managers and those paid and trained accordingly to act in those grades.
I need to also again mention the disappointment of the R.T.B.U, that Yarra Trams chose not to follow its legal obligation under our EA in particular Part One- Common conditions, clause 11, sub clause 11.8(a) “Status Quo”.
I again call for Yarra Trams to fulfil 11.8(a) and ask for an urgent meeting in order to hopefully resolve the Members concerns at our level.
Please advise.
At 3.17pm on 26 June 2017, Mr Greer sent Mr Penza an email stating:
Since discussing this with you late this morning, the concern was around recording details of the driver on the form making eye contact or not.
l have since discussed this with the President, Mark Teasdale that I will remove that column from the form which we agreed.
The status quo does [not] as advised in my email on Friday night apply in this case as the work certainly falls within the scope of my group and for the Authorised Officers would in this case be covered by Section 10, Peripheral and Incidental Duties contained in the EBA.
I hope this clarifies the matter
On 26 June 2017, Mr Greer distributed to various supervisors within Yarra Trams an amended running sheet for immediate use. The amended running sheet was in the following form:
Stop______________ Route_______ Direction_____________
Name___________________________ Date ____/____/_____
Time
Tram#
Comments
22:01
2020
22:11
6023
22:22
7025
At 1.37pm on 27 June 2017, Mr Scott sent Mr Altieri and email stating:
Phil,
The task that has been assigned to CSE’s and AO’s, which has since been modified following discussions between your delegates and Trevor Greer, is not work that is outside of their normal duties. The task being assigned is within the limits of their skill, competence and training and is consistent with the duties under their classification structure and position description. The monitoring task that is being asked of them is both lawful and a reasonable instruction. The status quo therefore supports the work being done in accordance with their normal duties.
Similarly the matter does not activate the Consultation Procedure as the work in question does not represent a “major change” that has “significant effect” on our customer service employees.
On or about 30 June 2017, the union lodged an application with the Fair Work Commission (“FWC”) to deal with a dispute in accordance with a dispute settlement procedure. The union said in that application that the dispute was about the following:
1. From Friday 23 June 2017 the Respondent has directed Authorised Officers (AOs) and Customer Service Employees (CSEs) to monitor drivers opening doors and report on them.
2. This new reporting task is not traditionally within their classification, position description or training and was traditionally done by Operations Officers or Drivers' Managers.
3.The Respondent can direct employees to carry out duties provided they are tasks that fall within their skill, competence and training (clause 10.1). These requisite criteria have not been satisfied in the present circumstance.
4. By directing its workforce to perform tasks for which they are not trained or competent, the Respondent is also in breach of its obligations to provide a safe and healthy working environment (clause 10.3).
5. In addition, the Respondent has failed to consult about this significant change pursuant to clause 8 of the Agreement.
6. Lastly, despite being notified of the dispute, the Respondent has failed to comply with the status quo provisions in the Agreement. Specifically, pursuant to clause 11.8(a), the Respondent is required to return the AOs and the CSE’s to the arrangement they were in prior to the change that caused the dispute. In this instance, that would be an arrangement where they were not required to do these new reporting tasks.
The FWC application was conciliated on 5 July 2017. By letter dated 6 July 2017 from Allan Jones, Yarra Trams’ Director, Lines, to Mr Altieri, Yarra Trams said:
In relation to any reporting task raised in the dispute notice C2017/3588 and which we directed our Authorised Officers and Customer Service Employees to perform on and from 23 June 2017, we undertake that any information received from that reporting will not be used in any disciplinary process.
For the purposes of resolving this dispute, Yarra Trams accepts that status quo should have applied in the circumstances of this dispute.
The parties resolved the FWC application on 6 July 2017, and the union discontinued the FWC application.
It was not disputed in the present proceeding that Yarra Trams did not apply the status quo between the time of the instruction which instigated the dispute on 23 June 2017 and when the FWC application was resolved on 6 July 2017.
On 24 October 2017, the union commenced the present proceedings.
By late October 2017, the engineering solutions had been put in place, and AOs and CSEs were no longer required to comply with the new work instruction, in either its original form or as amended.
The union’s position
The union said that, in these circumstances, it had invoked cl.11 of the enterprise agreement. That clause provided as follows:
Dispute Resolution Procedure
11.1.If a dispute relates to:
(a) a matter arising under this agreement;
… … ; or
(c) an industrial matter;
this clause sets out procedures to settle the dispute.
11.2. An employee who is a party to the dispute may appoint a union or employee representative (collectively referred to as the ‘Representatives’) at any time for the purposes of the procedures in this clause.
11.3. The matter shall be first submitted by the union, employee or employee representative (if any) to the supervising officer or another appropriate manager, or vice versa.
The earliest possible notice should be given by one party to the other of any issue or problem which may give rise to a dispute.
11.4. The following procedure shall be adhered to in resolving matters under this clause:
To resolve matters in dispute, discussions will take place at the earliest opportunity in the following sequence:
(a) in the first instance the employee/s and/or appointed representative concerned and their manager will attempt to resolve the dispute at the workplace level. If the discussions do not resolve the dispute; then
(b) the employees concerned and/or appointed representative and the relevant manager once removed will attempt to resolve the dispute. If these discussions do not resolve the dispute; then
(c) the employees concerned and/or appointed representative and the manager twice removed will attempt to resolve the dispute.
11.5. In trying to resolve the dispute, the parties will:
(a) act promptly and reasonably at all times;
(b) on request, clearly identify the facts and issues relevant to the dispute in writing and provide this information to the other parties to the dispute within 7 working days of the request (or a longer period as agreed between the parties acting reasonably); and
(c) allow up to seven working days for discussions to occur at each escalation point under clause 11.4 (or a longer period as is agreed between the parties acting reasonably).
11.6. If discussions at the workplace level do not resolve the dispute or it is unreasonable for the steps in clause 11.5 to be completed because of the urgency of the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
11.7. The Fair Work Commission may deal with the dispute in 2 stages:
(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then arbitrate the dispute.
(c) The parties will abide by the Fair Work Commission arbitrated decision
Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div. 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
11.8. While the parties are trying to resolve the dispute using the procedures in clause 11.4:
(a) As per status quo, for a period not exceeding 28 working days (or such other time as agreed in writing by the parties acting reasonably), work will continue in accordance with the arrangements that were in place immediately prior to the change that caused the dispute being notified under clause 11.3;
(b) subject to the period described in (a) above, an employee must perform his or her work including work which is the subject of any management initiated change as he or she is instructed to ·do by Yarra Trams unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(c) an employee must comply with a direction given by Yarra Trams to perform other available work which the employee is competent to perform at the same workplace, or at another workplace, unless applicable occupational health and safety legislation would not permit the work to be performed.
The union relied particularly on cl.11.8(a), which required the status quo that was in place immediately prior to the change that caused the dispute to continue for 28 days. It was common ground that the status quo did not continue for 28 days, or at all.
The union maintained that cl.11 of the enterprise agreement applied because the dispute arose under the enterprise agreement or, alternatively, because it was an industrial matter. The union said, more particularly, that the dispute arose under cl.8, 10.1 or 10.3 of the enterprise agreement.
Subclause 8.1 of the enterprise agreement is as follows:
Consultation
8.1 The parties agree that genuine and effective mechanisms for consultation and communication are fundamental to the achievement of greater job satisfaction, productivity, efficiency and flexibility.
This clause applies if:
(a) Yarra Trams has made a decision to introduce a major change to service delivery, organisation, structure, or technology in relation to its business that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees
Yarra Trams must notify the relevant employees and their union or employee representatives (collectively referred to as the ‘Representatives’) of the decision to introduce the major change.
Clause 10 of the enterprise agreement is as follows:
Peripheral and Incidental Duties
10.1 Yarra Trams may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure provided that such duties are not designed to promote deskilling.
10.2 Yarra Trams may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment.
10.3 Any direction issued by Yarra Trams pursuant to clauses 10.1 and 10.2 hereof, shall be consistent with Yarra Trams responsibilities to provide a safe and healthy working environment.
10.4 The parties to this agreement acknowledge that substantial efficiencies and increased productivity can arise from the implementation of peripheral and incidental duties.
10.5 It is agreed that employees will be required to carry out duties in a nature incidental to the performance of their main task or peripheral to the performance of their main task provided that performance of such additional duties is within the individual’s capacity and does not require any training other than for familiarisation purposes.
10.6 The over-riding intent of this process is to enable each employee to complete, to the maximum practical extent, whole jobs, ie: all of the task associated with the particular job provided that it is safe, legal, sensible and the individual is competent to carry out such duties within his/her training.
The union argued that the new instruction changed the work required of AOs and CSEs and went beyond their usual duty to help passengers safely on and off trams in that, the new instruction required AOs and CSEs to monitor drivers. Consequently, the union argued, Yarra Trams was obliged to maintain the status quo until the dispute was resolved.
Was there a dispute?
Yarra Trams’ first argument in its defence was that there was no genuine, contestable dispute within the meaning of the enterprise agreement in relation to cl.8 or 10 of the enterprise agreement or any other industrial obligation on Yarra Trams. Yarra Trams accepted that the union disagreed with the instruction but argued that was insufficient to attract the operation of cl.11.8(a) of the enterprise agreement. Yarra Trams argued that, where the dispute is doomed to fail, quite hopeless, or clearly untenable, there is no genuine dispute so as to engage cl.11.8(a) of the enterprise agreement.
For that proposition, Yarra Trams relied on Cook v Pasminco Ltd (2000) ASAL (Digest) 55-046; (2000) 99 FCR 548; (2000) ATPR 41-767; [2000] FCA 677 at [14] and [16], where Lindgren J said:
14.Are the federal claims here “genuine” and “non-colourable” or are they fabricated in order to bring the common law claims within the Court’s jurisdiction? I would conclude that they are not genuine and are colourable and fabricated if they are obviously doomed to fail, at least unless there was evidence to the contrary. There is no evidence to the contrary here.
…
16. I do not find it necessary to discuss the terms of the Federal Court Rules 1979 (Cth) referred to. There has been no issue but that the only basis on which the Court would have jurisdiction to hear and determine their claims based on negligence and nuisance is the Court’s accrued jurisdiction. The question is whether the claims under the TP Act are “doomed to fail”, “quite hopeless” or “clearly untenable”, because if they are, I will conclude that they are “colourable”, “not genuine” and “fabricated” and, therefore, that the accrued jurisdiction is not attracted.
Cook v Pasminco did not concern the question of whether a disagreement between an employer and employees could be so hopeless that it could not be described as a dispute within the meaning of an enterprise agreement. Cook v Pasminco concerned the question of whether the Federal Court had the accrued jurisdiction to hear negligence claims where the primary claim, under the Trade Practices Act 1974, was incapable of succeeding. Lindgren J dismissed the proceeding. Cook v Pasminco is of no assistance in the present case.
The union relied on Kucks v CSR Ltd (1996) 66 IR 182, where Madgwick J, sitting in the Industrial Relations Court, said at page 184:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. (emphasis added)
The union also relied on R v Coldham; Ex parte Australian Social Welfare Union (ASWU / CYSS / Social Welfare Union case) (1983) 153 CLR 297; (1983) 47 ALR 225; (1983) 57 ALJR 574; (1983) 4 IR 188; [1983] HCA 19. In that case, the High Court considered the meaning of the words industrial dispute. In that context, the High Court unanimously said at page 312–313:
The correct approach to the construction of the expression “industrial disputes” in s.51(xxxv) was, we think, expressed by Higgins J. in the Municipalities’ Case and the Insurance Staffs’ Case, reflecting the view earlier expressed by O’Connor J. in Jumbunna shorn of its association with the doctrine of intergovernmental immunities. The words are not a technical or legal expression. They have to be given their popular meaning – what they convey to the man in the street. And that is essentially a question of fact. … (emphasis added)(footnotes omitted)
It is, we think, beyond question that the popular meaning of “industrial disputes” includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective “industrial” imports some restriction which confines the constitutional conception of “industrial disputes” to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.
On that basis, the union relied on one of the definitions of dispute in the Shorter Oxford Dictionary, Sixth Edition, which is as follows:
An instance of disputing or arguing against something or someone, an argument, a controversy; esp. a heated contention, a disagreement in which opposing views are strongly held.
The union argued that an industrial dispute is simply a disagreement between employers and employees. I accept that argument. I also accept that the dispute between the union and Yarra Trams was a dispute as that word is used in cl.11 of the enterprise agreement.
It will be recalled that cl.11.1 of the enterprise agreement states:
Dispute Resolution Procedure
11.1. If a dispute relates to:
(a) a matter arising under this agreement;
… … ; or
(c) an industrial matter;
this clause sets out procedures to settle the dispute.
In my view, the dispute in this case related to an industrial matter. It was a dispute between an employer and its employees. Moreover, the dispute had the active involvement of the union. That seems to me to fit the popular understanding, and ordinary meaning, of an industrial matter.
Yarra Trams did not specifically argue that the dispute did not relate to an industrial matter, except to say that no industrial matter other than matters arising under the enterprise agreement was identified by the union. But the union’s point was that any dispute between an employer and its employees is an industrial matter. Obviously, an industrial matter is something different to a matter arising under the enterprise agreement, as they are two separate heads under cl.11.1 of the enterprise agreement. For the reasons previously expressed, it follows that cl.11 applied.
Did the dispute relate to a matter arising under the EA?
Nevertheless, Yarra Trams argued that the dispute did not relate to a matter arising under the enterprise agreement. Having found that there was a dispute and that it related to an industrial matter, it is not strictly necessary to determine whether the dispute related to a matter arising under the enterprise agreement. However, because the parties devoted a lot of time to this issue, I will consider it.
The union argued that the dispute related to a matter under cl.8, 10.1 or 10.3 of the enterprise agreement. Yarra Trams argued that the dispute did not relate to a matter arising under either cl.8 or cl.10 of the enterprise agreement.
Clause 8.1 of the enterprise agreement provides as follows:
The parties agree that genuine and effective mechanisms for consultation and communication are fundamental to the achievement of greater job satisfaction, productivity, efficiency and flexibility.
This clause applies if:
(a) Yarra Trams has made a decision to introduce a major change to service delivery, organisation, structure, or technology in relation to its business that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees
Yarra Trams must notify the relevant employees and their union or employee representatives (collectively referred to as the ‘Representatives’) of the decision to introduce the major change.
Yarra Trams noted that cl.8 of the enterprise agreement, by cl.8.1(a), only applied if Yarra Trams had decided to introduce a major change. As can be seen from cl.8.1(a) of the enterprise agreement, the major change must be one that is likely to have a significant effect on the employees.
Subclause 8.6 of the enterprise agreement explains what is meant by a major change that is likely to have a significant effect on the employees. Subclause 8.6 of the enterprise agreement is as follows:
In this clause, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of employment of employees; or
(b) major change to the composition, operation or size of Yarra Trams’ workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities and diminution of promotion opportunities and tenure; or
(d) the alteration of hours of work; or
(e) the need to significantly retrain employees; or
(f) the need to permanently relocate employees to another workplace (this is not intended to apply to temporary transfers).
(g) the major restructuring of jobs.
That is an exhaustive definition. The only effect that could possibly apply in the present case is the one mentioned in paragraph (e), the need to significantly retrain employees.
It was not disputed that the training required by the new instruction would not have taken more than a few minutes. Moreover, it was not suggested that employees needed to be retrained. Retraining connotes that the employees will be required to learn completely new skills and no longer apply their existing skills. In the present case, the employees were merely required to add a fairly simple task to their existing skills.
The new task required the employees to do particular things at particular places and at particular times, but they were not new skills as such. They required the employees to stand at a certain spot when a tram approached, hold out their arms, make eye contact with the driver and write things down. The employees already had those skills. Teaching employees the new task did not amount to significant retraining. Therefore, the new instruction did not fall within cl.8.1(a) of the enterprise agreement.
Clause 10.1 of the enterprise agreement provides that:
Yarra Trams may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure provided that such duties are not designed to promote deskilling.
For the reasons discussed previously, the new instruction was within the limits of the employees’ skill, competence and training. Therefore, the new instruction did not relate to cl.10.1 of the enterprise agreement.
Clause 10.3 of the enterprise agreement provides that:
Any direction issued by Yarra Trams pursuant to clauses 10.1 and 10.2 hereof, shall be consistent with Yarra Trams responsibilities to provide a safe and healthy working environment.
The union’s case in relation to this clause was that requiring AOs and CSEs to report to management when drivers failed to open the correct door could cause friction in the workplace and angst, which may cause other safety issues. It was not expressly suggested that requiring AOs and CSEs to report to management when drivers failed to open the correct door could have resulted in overt physical violence, and the consequent health and safety issues.
However, it is not difficult to imagine that that requiring AOs and CSEs to report to management when drivers failed to open the correct door could have led to AOs and CSEs feeling uncomfortable, stressed and anxious. For many people, the idea of reporting others to authority runs counter to their basic sense of self. The introduction of a work duty that required reporting co-workers to management could cause some people to feel anxiety, which is of course, a mental health condition.
Consequently, I consider that requiring AOs and CSEs to report to management when drivers failed to open the correct door could have conflicted with Yarra Trams responsibility to provide a safe and healthy work environment. Therefore, the dispute about requiring AOs and CSEs to report to management when drivers failed to open the correct door fell within cl.10.3 of the enterprise agreement.
Was there a change to the work arrangements?
It will be recalled that cl.11.8(a) of the enterprise agreement provides as follows:
While the parties are trying to resolve the dispute using the procedures in clause 11.4:
(a) As per status quo, for a period not exceeding 28 working days (or such other time as agreed in writing by the parties acting reasonably), work will continue in accordance with the arrangements that were in place immediately prior to the change that caused the dispute being notified under clause 11.3;
That clause presupposes that there has been a change in work arrangements that caused the dispute. Yarra Trams argued that there was no change to the work arrangements because the new instruction did not require AOs and CSEs to do anything that they did not already do. Yarra Trams said that AOs and CSEs were already required to wear PPE, stand at the top of platforms, signal to drivers and fill in running sheets, including in relation to driver behaviour.
Yarra Trams said that the change referred to in cl.11.8(a) of the enterprise agreement must mean a change that is not at an unrealistic and impractical level of minutiae. Yarra Trams argued that accepting the union’s interpretation of change would prevent Yarra Trams introducing safety measures for 28 working days
Yarra Trams relied on Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211; [2006] FCA 1039 as follows:
52. In my view, the key to this part of the Union’s claim is to be found in the expression “normal operations” in cl 7.3. In its context in a clause construed in accordance with the principles outlined at [26]-[27] above it signifies that work will continue without any exceptional or unusual action on either side; see eg Peak Trailer & Chassis v Jackson [1967] 1 WLR 155. In the case discussed at [50] above, the withdrawal of the long prong forklift drivers from an area in which they had usually been employed was not normal in this sense. On the other hand, the susceptibility of employees to work different shifts at the direction of Ardmona was, I consider, a normal incident of employment as recognised by cl 26.6 of the Food Preservers’ Award. It did not cease to be “normal”, in the meaning I have accorded to the word, upon a particular employee’s protesting about a specific direction.
53. I am reinforced in this conclusion by the consideration that the contrary construction would allow an individual employee, by protesting against a permissible direction of the employer, to compel the employer to preserve in minute detail the entire pre-direction working environment of that employee until, possibly, the whole dispute resolution process described at [25] above had been exhausted upon the making of a decision or recommendation by the Commission.
The union argued that the present case was distinguishable from Ardmona because:
a)in the present case, the status quo only had to be maintained for a default maximum of 28 days, whereas, in Ardmona, the period of the status quo was open-ended;
b)in the present case, the period of the status quo could be limited further, because of the words (or such other time as agreed in writing by the parties acting reasonably);
c)in the present case, unlike in Ardmona, in cases of urgency, the matter could be referred immediately to the Fair Work Commission; and
d)in the present case, cl.11.8(a) of the enterprise agreement requires the parties to revert to the status quo as it was immediately before the change that precipitated the dispute, whereas, in Ardmona, the relevant agreement required the parties to revert to the status quo as it was immediately before the dispute.
I accept that Ardmona can be distinguished on those bases.
In relation to the claim that AOs and CSEs had always been required to report to management when drivers did the wrong thing, Yarra Trams tendered a number of incident reports (exhibit 4). In the bundle there were nine reports which spanned a 13 year period. Most of them relate to crashes, injuries or derailments. They all relate to very significant and rare events. They are not comparable to the new instruction, which required a report to management on every driver’s compliance with an instruction at every stop at every centre platform.
It is obvious that there was a change in work arrangements brought about by the new instruction. It is obvious from the fact that Yarra Trams provided an information session and a written instruction on what to do and when to do it.
Yarra Trams said that, if such minor changes triggered cl.11.8(a) of the enterprise agreement, Yarra Trams would not be able to do such minor things as change the colour of PPE, or change the brand of coffee in the tea room. Those examples are fanciful. Yarra Trams’ submission fails to acknowledge that many people would find it very disturbing to be required to report to management on the failings of co-workers. Having said that, Yarra Trams did in effect partially acknowledge that when Mr Greer said that he would remove the offending column from the running sheet, and when Mr Jones said that any information received would not be used for disciplinary purposes.
Was any breach de minimis?
Yarra Trams argued that, if there was a breach, it was de minimis, as the dispute was resolved on 26 June 2017, almost as soon as it started, when the offending column in the running sheet was removed.
The chronology outlined above shows that the dispute was not resolved on 26 June 2017. The union filed an application in the Fair Work Commission on 30 June 2017. That was conciliated on 5 July 2017. On 6 July 2017, Yarra Trams wrote to the union saying that it would not rely on any information received for disciplinary purposes, and, for the purposes of resolving the dispute, Yarra Trams accepted that the status quo should have been applied in the circumstances of the case.
I accept that Yarra Trams’ breach of the enterprise agreement was not at the upper end of the scale. However, I do not consider that the breach was so minor that it can be overlooked on the de minimis principle. I accept that requiring AOs and CSEs to monitor drivers could have caused the AOs and CSEs significant problems.
Conclusion
Consequently, there will be a declaration as sought by the union.
I would add that, while it was very important to solve the safety issues created by drivers forgetting to open the right side doors, the particular solution contained in the new instruction was not entirely necessary, as evidenced by Yarra Trams’ withdrawal of it.
There will be a separate hearing on the question of penalty.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 25 July 2018
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