Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd Trading as Yarra Trams

In the matter of Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd Trading as Yarra Trams, the Full Bench of the Fair Work Commission was tasked with resolving disputes pertaining to the interpretation of an enterprise agreement and the incorporation of the employer’s internal disciplinary policy. The Union contested the employer’s decision to dismiss an employee, asserting that the dismissal was a breach of the enterprise agreement. The employer, on the other hand, argued that the dismissal complied with the terms of their internal disciplinary policy, which they claimed was incorporated into the enterprise agreement by reference.

The central legal issues before the court involved whether the employer's internal disciplinary policy was indeed incorporated by reference into the enterprise agreement and, if so, whether the employer was mandated to conduct a specific form of inquiry as per the policy. Additionally, the court had to determine whether the failure to observe the terms of the policy constituted a breach of the certified agreement. The court also examined the relevance of custom and practice in this context.

In its reasoning, the court found that the employer's internal disciplinary policy was not incorporated by reference into the enterprise agreement. The court held that the policy did not explicitly state that it was part of the agreement and there was no evidence in the custom and practice to support such incorporation. Furthermore, the court determined that the policy did not require a particular form of inquiry, as it merely specified the procedure for making a request for inquiry and acknowledged the right of appeal to a statutory authority. Consequently, the appeal was dismissed, and no order was made as to costs.