Australian Rail, Tram and Bus Industry Union v Keolis Downer Adelaide Pty Ltd
[2021] FWC 5987
•19 NOVEMBER 2021
| [2021] FWC 5987 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Keolis Downer Adelaide Pty Ltd
(C2021/3743)
RAIL COMMISSIONER RAIL OPERATIONS ENTERPRISE AGREEMENT 2020
[AE509634]
Rail industry | |
COMMISSIONER HAMPTON | ADELAIDE, 19 NOVEMBER 2021 |
Dispute about a matter arising under the enterprise agreement – classifications for trainees – agreed basis for arbitration of the dispute – proper application of the agreement applied – determination made – recommendations issued.
1. What this decision is about
[1] The Australian Rail, Tram and Bus Industry Union (RTBU) has applied on behalf of its relevant members under s.739 of the Fair Work Act 2009 (the FW Act) for the Commission to deal with a dispute concerning the terms of the Rail Commissioner Rail Operations Enterprise Agreement 2020 (2020 Enterprise Agreement).
[2] The Respondent in this matter, and the relevant employer covered by the 2020 Enterprise Agreement, is Keolis Downer Adelaide Pty Ltd (Keolis Downer, or the Respondent).
[3] Keolis Downer commenced operation of the Adelaide Metropolitan Passenger Rail Network (Adelaide Rail Network) on 31 January 2021 taking over operations from the Rail Commissioner, which is a SA Government Statutory Authority established under the Rail Commissioner Act 2009 (SA) (Rail Act).
[4] The 2020 Agreement covers the Respondent and transferring employees from the Rail Commissioner as well as non-transferring employees as a result of an Order 1 from the Commission.
[5] The dispute concerns the proper classification of a group of employees engaged under the 2020 Enterprise Agreement as Suburban Train Driver Trainees (Trainees). In particular, at what point in their training program do Suburban Train Drivers – Trainees progress to the classification of Suburban Train Driver – Mainline Trainee? In essence, the resolution of the dispute involves consideration of the nature and location of the practical driver training duties being undertaken by the Trainees in the context of the classification definitions of the 2020 Enterprise Agreement.
[6] There are 3 classifications of trainees under the 2020 Enterprise Agreement; namely:
• Suburban Train Driver – Trainee (STD Trainee);
• Suburban Train Driver – Intermediate (Intermediate Trainee); and
• Suburban Train Driver – Trainee Mainline (Trainee Mainline).
[7] The training program being conducted by Keolis Downer for the Trainees involves 3 interrelated components. Using the terminology applied by Keolis Downer, these are Coursework, Mechanical training and On-Track Mentoring. It is common ground that the Trainees undertake some driver training during the mechanical training stage that involves them operating a Train/Railcar 2 (alongside a qualified driver) that is located on a main running line of the Adelaide Rail Network. This training is to provide some practical context for the earlier coursework and is part of the overall training that ultimately permits the Trainees to become qualified drivers. It is the operation of the Railcar during the mechanical training component that is the focus of this dispute.
[8] The RTBU contends that the Trainees are entitled to progress to the classification of a Mainline Trainee once they commence any form of driving training where that is done on a train that is located on any of the main running lines.
[9] Keolis Downer contends that it is the timeframe of accumulation of skills, knowledge and practical experience which determines the progression of a trainee driver to competency, and not just the location of the training. That is, the Trainee progresses to Mainline Trainee only when deemed competent and qualified to progress to that classification because of successful completion of the Mechanical Training phase of the Training Program, including sign-off by the RTO, and in circumstances where the Trainee has commenced the different type of training that is training over main running lines. According to Keolis Downer the undertaking of some “familiarisation” training, even when this involves the operation of the train that happens to be located on a main line, is not sufficient to meet the definition of a Mainline Trainee.
[10] To a large degree, the positions reflect a different emphasis and approach to the Trainee classifications. In the case of the RTBU, this is placed upon the location of the train given the wording of the classification definitions. For Keolis Downer, this emphasis is placed upon the nature and context for the driving training in light of the competency-based training and what it contends is meant by the concept of undertaking mainline training as contemplated by the classifications.
[11] Although there is an ongoing dispute between the parties as to the proper application of the 2020 Enterprise Agreement, I observe that the issue has come to a head in the context of 2 groups of Trainees that undertook some training driving duties on a main running line for a period of some 11 weeks and 9 weeks respectively during 2021 before being “reclassified” by Keolis Downer as Mainline Trainees after completing the mechanical training component sand commencing driving trains under supervision on revenue services (with passengers). In the disputed period, Keolis Downer continued to pay the Trainees as STD Trainees.
[12] It is common ground that the dispute is before the Commission as a result of the operation of the dispute resolution procedures in clause 23 of the 2020 Enterprise Agreement and s.739 of the FW Act; and that this provides the necessary jurisdiction to determine the dispute.
[13] Ultimately for reasons that are set out in this Decision, I have determined the proper application of the 2020 Agreement in the context of the agreed question and facts. I have determined that the Suburban Train Drivers – Trainees progress to the classification of Suburban Train Driver – Mainline Trainee when they commence the On-track mentoring phase under the current training program as this is the point that they commence training in suburban train driving over main running lines and performing other associated duties.
[14] What is also clear from what follows is that the classification definitions that have been agreed as part of the 2020 Agreement, and accordingly applied by the Commission, are not fit for purpose in some important respects. In that light, I have recommended that the parties renegotiate these provisions as soon as an opportunity to do so arises. I have also recommended that Keolis Downer pay the Trainees at the Intermediate Trainee rate for the period of the mechanical training phase.
2. The agreed question and facts to be determined
[15] The parties have agreed to the following agreed question:
“At what point in their training program do Suburban Train Drivers - Trainees progress to the classification of Suburban Train Driver – Mainline Trainee.”
[16] In addition, the following facts have been agreed for the purposes of this matter:
Agreed Facts
1. Keolis Downer Adelaide Pty Ltd (Keolis Downer) is a body corporate, operates a business in the transport industry, and is an employer.
2. The Australian Rail, Tram and Bus Industry Union is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).
3. On or about 18 September 2020, the Rail Commissioner entered into a contract with Keolis Downer to provide the relevant rail operations in Adelaide.
4. On or about 31 January 2021, rail operations currently undertaken by the Rail Commissioner were transferred over to Keolis Downer.
5. On or about 31 January 2021, the Rail Commissioner Rail Operations Enterprise Agreement 2020 (Agreement) became a transferable instrument.
6. On or about 31 January 2021, Keolis Downer employed transferring employees to perform the transferred work.
7. Keolis Downer has also employed non-transferring employees. Non-transferring employees are covered by the Agreement. The order made by Commissioner Platt in regard to non-transferring employees is attached to this statement and marked Annexure A.
Dispute Resolution
8. Since commencing operations Keolis Downer has employed a number of employees as Suburban Train Driver – Trainee. These employees are the subject of this dispute (Trainees).
9. In or about early April 2021, Trainees approached Chris Wye, Senior Driver Manager to discuss whether their weekly rate of pay would increase as their training on the mainline was about to commence.
10. In or about April 2021, Keolis Downer confirmed that they would continue to be paid at their current rate of pay.
11. On or about 14 April 2021, the RTBU emailed James Edmiston, Manager Keolis Downer, voicing our concerns regarding the progression of the Trainees from the Suburban Train Drivers - Trainees classification to the Suburban Train Driver – Mainline Trainee classification once they commenced training on the mainline.
12. On or about 19 April 2021, the RTBU received a response from James Edmiston stating that the Trainees had not reached the required competency to progress.
13. On or about 9 June 2021, the RTBU met with Keolis Downer in an attempt to resolve the matter, but the parties were unable to reach agreement.
Relevant Clauses
14. Clause 21.2 defines a Suburban Train Driver Trainee as “an employee who has commenced training, is progressing through the Suburban Train Drivers Training Programme and is qualified to prepare and drive suburban trains within the confines of the Railcar Depot and perform associated duties”.
15. Clause 21.2 defines a Suburban Train Driver - Intermediate as “an employee who is qualified and appointed as such, and is engaged in the preparation and driving of suburban trains between the Railcar Depot and Adelaide Station and performs associated duties”.
16. Clause 21.2 defines a Suburban Train Driver Trainee Mainline as “an employee who has commenced training in suburban train driving over main running lines and performs other associated duties”.
17. Wages for Trainee and Trainee Mainline classifications are contained in a table in: Schedule 1 – Weekly Wage Rates – Rail Operations Employees, specifically clause S.1.1 which provides:
S.1.1 Subject to clause 21.15.1 of this Agreement, the weekly wage rates applicable to each classification during the life of this Agreement will be as follows, effective from the first full pay periods on or after the nominated dates:
From 1 January 2021 2% | From 1 January 2022 2% | From 1 January 2023 2% | |
Train Driver (after 13 May 1990) | |||
Trainee | 1068.67 | 1090.05 | 1111.85 |
Intermediate | 1299.90 | 1325.90 | 1352.41 |
Trainee Mainline | 1415.56 | 1443.87 | 1472.74 |
Mainline 1st year | 1509.58 | 1539.77 | 1570.57 |
Mainline Thereafter | 1541.18 | 1572.00 | 1603.44 |
18. Clause S.1.1.1 provides that “a Suburban Train Driver Trainee will progress to Suburban Train Driver Intermediate after a six month training period, provided competency standards agreed by the parties are achieved.”
19. Clause 16.9 provides:
STD [Suburban train drivers] Intermediate to STD Mainline Promotion
16.9.1 Appointment will be merit based.
Training
20. On or about 1 March 2021, the Trainees commenced the Suburban Train Drivers Training Programme. Those Trainees were classified as Suburban Train Drivers – Trainees and were paid a weekly wage each of $1,068.67.
21. The Suburban Train Drivers Training Programme runs for 34 weeks from 1 March 2021 to 30 October 2021. A copy of the training schedule is attached to this statement and marked Annexure B.
22. Keolis Downer does not currently employ anyone under the classification of a Suburban Train Driver – Intermediate.
23. The Railcar Depot is located at Dry Creek, South Australia.
24. There are six main running lines in the Adelaide Rail Network being Belair Line, Seaford Line, Grange Line, Tonsley Line, Outer Harbour Line, and the Gawler Line (which is currently closed for electrification upgrades).
25. On or about 5 April 2021, the Training Programme cohort was split into two training groups called the “3000” class and the “4000” class (Mechanical Training).
26. The 3000 class undertakes training on diesel railcars and the 4000 class undertakes training on electric railcars. Through the Suburban Train Drivers Training Programme Trainees undertake training on both types of railcars.
27. The training consists of in-class and onsite training and includes, but is not limited to, the following:
3000s
a. Train and Systems Overview
b. Braking System
c. Fault Finding
d. Preparation and Stabling
e. Coupling and Uncoupling
f. Operate and Monitor ‘Multiple Power Unit’ (MPU)
4000s
g. Important Safety Information
h. Automatic Train Protection (ATP) Overview of Equipment
i. ATP Levels & Movement Authority
j. Speed Supervision, Braking
k. Drive Machinery Interface (DMI) Display Overview
l. DMI Supervision / Speed areas
m. DMI Planning / Supplementary areas
n. Driving with ATP
o. Common & Exception Procedures
28. Practical training on 3000’s and 4000’s class rolling stock, enabling Trainees to gain valuable exposure to the rolling stock, become familiar with the look and sound within the cab, gain a feel for how the rolling stock operates on tracks and gain experience undertaking non-revenue driving on the mainline.
29. Employees engaged as a Suburban Train Driver – Trainee and Mainline Trainees are not qualified to drive trains and all practical activities on rolling stock are under the supervision of the Suburban Train Driver – Trainer.
30. Non-revenue driving is when the Trainees drive on the mainline in railcars with no passengers. This training occurs in between timetabled services.
31. Revenue driving is a normal timetabled service that has ticket-bearing passengers.
32. From 1 March 2021 to 11 April 2021, all Trainees prepared and drove trains in the confines of the Dry Creek Depot. During this time, Trainees undertook training to prepare for non-revenue driving on the mainline.
33. Practical training occurs within depots and on the mainline. Mainline practical training is limited to:
a. ARS to/from Seaford (fallout services) - 1-2 trips per Trainee per week that non- revenue driving is undertaken.
b. Seaford to/from Brighton (fallout services) – 2-3 trips per Trainee per week that non- revenue driving is undertaken.
c. ARS to/from Glanville (fallout services ) – 2-3 trips per Trainee per week that non- revenue driving in undertaken.
34. On the week commencing 12 April (week 8) the 4000 class undertook a non-revenue trip on the mainline. This occurred again in week 9 and week 15.
35. On the week commencing 28 April (week 9) the 3000 class undertook non-revenue trips on the mainline. Then again during week 10, week 14 and week 16.
36. Additional non-revenue trips were also completed for the 4000 class in week 7 and week 13. The Additional Rail Movements Timetable is attached and marked Annexure C.
37. On or about the week commencing 28 June 2021 (week 18), Keolis Downer classified the Trainees as a Mainline Driver Trainees and the weekly wage was increased to $1,415.56.
38. Since 28 June 2021, the Employees have completed revenue trips on the mainline with a Suburban Train Driver – Trainer.
[17] I have not included the Annexures referenced above in this Decision however I have had regard to those documents in determining this matter.
3. The relevant provisions of the Enterprise Agreement
[18] In addition to those provisions of the Agreement set out in the agreed facts, and without detracting from the full context set by the terms of the Agreement more generally, the full terms of clauses 13, 21.1 and 21.2 are also relevant to the determination of this matter:
“13 CLASSIFICATION AND WORK REQUIREMENTS
13.1 Employees will be appointed to positions classified in accordance with the classifications defined at clause 21 of this Agreement. An employee may, subject to their qualifications, experience and fitness, be rostered to undertake any duty for which they are trained and competent to perform.
13.2 A standby employee may be required to perform “other duties” (as determined and agreed by the parties from time to time.)
13.3 Nothing in this Agreement precludes an employee’s appointment to another classification of work within this Agreement, in which case this Agreement will continue to apply.
… ...
21.1 Classification of Positions
21.1.1 Upon commencing employment, an employee will be appointed to a position classified in accordance with this Agreement, will be paid according to the salary applicable to the classification of that position and will remain on that classification unless reclassified or appointed to another position classified at another level.
21.1.2 Employees will be advised in writing of their classification and any subsequent changes.
21.1.3 The remuneration levels applicable to each classification are set out at Schedule 1 and 3 of this Agreement.
21.1.4 Employees engaged under this Agreement will be appointed to a position classified in accordance with the following classifications.
21.2 Suburban Train Drivers
• Suburban Train Driver - Trainee – means an employee who has commenced training, is progressing through the Suburban Train Drivers Training Programme and is qualified to prepare and drive suburban trains within the confines of the Railcar Depot and perform associated duties.
• Suburban Train Driver - Intermediate – means an employee who is qualified and appointed as such, and is engaged in the preparation and driving of suburban trains between the Railcar Depot and Adelaide Station and performs associated duties.
• Suburban Train Driver - Trainee Mainline – means an employee who has commenced training in suburban train driving over main running lines and performs other associated duties.
• Suburban Train Driver - Mainline – means a qualified employee who is appointed as such and is engaged in suburban train driving over main lines and performs other associated duties.
• Suburban Train Driver – Trainer – means an employee who is qualified and appointed to carry out either the on-the-job training of Suburban Train Drivers to ensure their proficiency, and/or the tuition of Suburban Train Drivers in all aspects of suburban train driving. The Driver/Trainer may be called upon to perform driving and other associated duties.
• Suburban Train Driver – Operations Coordinator – means an employee who is qualified and appointed to ensure the correct marshalling of trains in the depot for train services and maintenance requirements are met and who may be called upon to perform driving and associated duties.
• Suburban Train Driver – Senior – means an employee who is qualified and appointed to undertake final evaluations, coordinate and monitor training of Suburban Train Drivers to ensure peak proficiency is achieved. The employee is also qualified and appointed to undertake the coordination and monitoring of train operations including validating evaluations and investigating and initiating action in respect of train incidents and safe working breaches. This position is directly responsible to the relevant Rail Manager. An employee at this level will.”
[19] Clause 15 of the Agreement provides for competency-based training and assessment in the following terms:
“15 COMPETENCY BASED TRAINING AND ASSESSMENT
15.1 The parties recognise that the achievement of objectives relating to safety, customer service, productivity and quality require a skilled and motivated workforce.
15.2 The programme concentrates on customer service, communication and team working skills, operational and technical competencies, rail safety accreditation and quality certification knowledge and skills for all levels of Rail Operations employees.
15.3 It is the Rail Commissioner’s intention that employees will undertake a number of nationally accredited training modules leading to a relevant nationally recognised qualification of Certificate III level. It is likely that this will not be fully achieved during the life of this Agreement, however, the underpinning infrastructure will be established during the life of this Agreement. Wherever possible, employees will receive training that entitles them to receive a relevant nationally recognised qualification of Certificate IV level.
15.4 The Rail Commissioner will continue to use a competency based training and assessment regime, recognising that the Rail Commissioner and its employees have a shared responsibility for competency achievement and maintenance.
15.5 Training and assessment can be conducted by a variety of methods, including:
• classroom based;
• on the job;
• off the job;
• computer based;
• self-paced; and
• others as deemed appropriate.
The Rail Commissioner and/or appropriate training providers will provide the training and assessment.
15.6 Schedule 6 provides milestones for the implementation of competency based training and assessment.”
[20] Schedule 6 Rail Operations – National Competency based training and assessment includes the following:
“SCHEDULE 6 – RAIL OPERATIONS – NATIONAL COMPETENCY BASED TRAINING AND ASSESSMENT FRAMEWORK
… …
1. Training and Competency
1.1 The Rail Commissioner is committed to providing its employees with opportunities for career growth, ongoing development and to make a positive contribution to the success of the business.
1.2 The skills and abilities of Rail Commissioner employees are an integral part of the continued delivery of quality services to our customers. Where applicable, it will include alignment of any role-based competencies to the appropriate national competency framework; recognition of prior learning for the purposes of translation, and; the provision of training and development programs designed to ensure that work is undertaken and services are provided in a safe, productive and skilful manner.
1.3 Employees may gain nationally recognised qualifications or units of competence established under the relevant training packages and qualification framework. Such training and any associated recognition of prior learning process will be in accordance with Standards for Registered Training Organisations, to which the Rail Commissioner Registered Training Organisation (RTO) must adhere and is audited against by Australian Skills Quality Authority.
1.4 Where applicable, training will be aligned to units of competence from national qualifications and will be included on the competency matrices outlined at clause 2 of this Schedule and will be those required to competently and safely undertake the work requirements of the Rail Commissioner.
… ...
3. Individual Training Plans
3.1 The Rail Commissioner will commence the development of individual training plans for Suburban Train Drivers, Passenger Service Assistants, and Operations Controllers. Individual training plans will indicate the required competencies/qualifications/other training of the employee to satisfy the requirement for their respective role.
3.2 To establish an individual training plan, an assessment will be undertaken by the Rail Commissioner to ascertain any gaps in relation to mapped competencies. The employee may be required to complete gap training and successfully complete the assessments. The individual training plan will be provided to the employee and manager within one month of being assessed.
3.3 Individual training plans will include a schedule and timetable for implementation of training and assessment taking into consideration normal business operating requirements.
3.4 Individual training plans will identify timeframes to work towards: relevant units of competence and/or a national qualification in Train Driving (for Train Drivers), relevant units of competence and/or a national qualification in Rail Customer Service (for Passenger Service Assistants), and relevant units of competence and/or a national qualification in Rail Network Control (for Operations Controllers).
3.5 Language, Literacy and Numeracy (LLN) testing will be established to identify employees who may require additional development to enable them to successfully complete training required. This may incur additional training time for individual employees and will be noted on individual training plans.
3.6 Where individual training plans for existing employees identify that accredited units of competence have been reached, a statement of attainment will be provided to the employee.
4. Attainment and Maintenance of Competency
4.1 Employees agree to undertake all of the tasks, training and assessment required for the role to which they are appointed. Refusal to do so, or failure to attain or maintain the required competency level, may disqualify an employee to undertake the duties of the position. This may include participation in continuation training, recognition of prior learning processes, training plans, training gap analysis, and undertaking of training and assessment where competencies change or new competencies may be required due to changed role and/or business requirements or changes to legislation.
4.2 While the Rail Commissioner is committed to the development of its employees, the primary focus of the attainment and accreditation of the specific competencies identified is to safely and effectively undertake the duties and responsibilities of the roles contained in this Agreement. Such accreditation may contribute to or enable an employee to attain accreditation of a certificate level under the Australian Qualification Framework; a Statement of Attainment of individual competencies; certificate of completion or all.
5. Progression and Assessment
5.1 Suburban Train Drivers
Where the attainment of competencies is required for incremental progression between levels of a role, the following requirements will apply:
5.1.1 Successful completion of all training and demonstration of the required competencies to progress to the next increment.
5.1.2 Employees will be required to carry out the full range of duties and training associated with their role.
5.2 Progression for all other roles should refer to schedules S2.12, S3.2 and S3.3.
6. RTO Evidence Requirements
6.1 Evaluation of training and assessment will be aligned with the Standards for Registered Training Organisations, which state that a Registered Training Organisation must retain evidence that shows they have monitored and reviewed their training and assessment in a systematic way and results are used to revise systems and practice where needed.
6.2 This must include evidence that the review process has considered: delivery and performance data, client feedback, trainer and assessor feedback, validation outcomes and information from complaints and appeals.”
5. The position advanced by the RTBU
[21] As outlined above, the RTBU contends that the Trainees are entitled to progress to the classification of a Trainee Mainline once they commence any form of driving training where that involves driving a train that is on one of the main running lines. The basis for the position may be summarised as follows:
• Clause 21.2 has a plain reading and is not ambiguous. It defines the different classification for Suburban Train Drivers and the definitive duties of what is required for each classification.
• There is nothing to suggest that the plain reading of the definition of the STD Trainee classification that it could extend to cover mainline driving.
• Reading clause 21.2 as a whole, each classification expressly provides for the circumstances and location that the work will be undertaken, providing clear ordinary language which determines the principal purpose for why an employee would be employed under each classification.
• In order to ascertain the principal purpose for which an employee is engaged, an analysis of the duties performed and the circumstances under which they are performed is required.
• From 1 March 2021 to 11 April 2021, the Trainees were only qualified to prepare and drive suburban trains within the confines of the Railcar Depot. The Trainees undertook in class training and did practical training at Dry Creek to commence familiarising themselves with the yard. The employees were correctly classified and paid as STD Trainees.
• On or about 12 April 2021, half of the training group (being the 4000s) commenced driving on the mainline on non-revenue services. On 28 April 2021 the remaining trainees (being the 3000s) commenced driving over the mainline.
• The relevant Trainee group has been performing tasks that are outside their classification and outside the scope of a STD Trainee. The new duties are a significant change. Trainees are working in a different environment, being the mainline, when previously they were confined to the Railcar Depot at Dry Creek. Driving on the mainline bears additional responsibility and complexity as the Trainee has the responsibility of driving trains at full speeds outside of a controlled environment, which the RTBU asserts, justifies an increase to the Trainee weekly wage.
• The Trainees from the respective dates of 12 April 2021 and 26 April 2021 were made to carry out substantially different duties to what properly fall within the classification of the STD Trainee (being those of a Mainline Trainee) and should have been paid accordingly at that classification from that point onwards until qualified as a Suburban Train Driver – Mainline.
• Schedule 1, S.1.1.1 provides that “a Suburban Train Driver Trainee will progress to Suburban Train Driver Intermediate after a six month training period, provided competency standards agreed by the parties are achieved. It is irrelevant for the purposes of this dispute that the Employer did not follow (apply) clause S.1.1.1 because regardless of the non-compliance, the employer must work in the confines of the classifications and by requiring the employee to commence training driving over main running lines the relevant Trainee immediately fell outside the scope of STD Trainee or Suburban Train Driver – Immediate entirely.
[22] The RTBU also contends that the Rail Commissioner has previously applied the trainee classifications in the 2011 Agreement, which were in the same terms, in the same way in which the RTBU asserts is the only logical and coherent way that the 2020 Agreement should be applied.
[23] Further, the RTBU contends that it is not open to Keolis Downer to unilaterally change the parameters of a classification as they see fit and any assertion that the “standard” trainee duties consist of mainline driving should be rejected by the Commission.
[24] The RTBU also took issue with the Respondent’s notion that there was a requirement for a Trainee to have completed the mechanical phase of the training (on the mainline) or be signed-off by a Registered Training Authority (RTA) before becoming a Mainline Trainee. In addition, there was no proper basis for the claimed distinction between the driving of non-revenue trains on the mainline and the training in driving on the mainline so as to fall within the scope of the higher classification. Further, no such distinction is found within the classifications of the Agreement.
[25] In summary, the RTBU contends that the objective intention of the Agreement is that when a Trainee commences to drive trains over the main running lines, whether with or without passengers, they are to be classified and paid as Trainee Mainline.
[26] The RTBU led evidence from the following Trainees:
• Martyn Paul Fisher; 3 and
• Paul John Sutton. 4
[27] This evidence was subject to some cross-examination.
6. The position advanced by Keolis Downer Adelaide Pty Ltd
[28] Keolis Downer contends that the Trainee progresses to Mainline Trainee only when deemed competent and qualified to progress to that classification because of successful completion of the Mechanical Training phase of the Training Program, including sign-off by the RTA and in circumstances where the Trainee has commenced the different type of training; that is, full-time training over main running lines on operational revenue services.
[29] The Respondent also submits that a discretion is provided to it by clause 21.1.1 of the Agreement to appoint an employee to a classification is reflective of, and necessary to, the fulfilment of its extensive safety obligations and duty to ensure personnel are suitably skilled and competent. It also posits that if the outcome sought by the RTBU was accepted, it would result in Trainees who are not competent, qualified or authorised to operate a train within the confines of the Railcar Depot to be driving over main running lines.
[30] Further, Keolis Downer contends that the initial driving of non-revenue trains is an integral component of the Mechanical Training phase of the Suburban Train Drivers Training Programme (Training Programme), which is a distinct and separate phase and type of training compared to the specific training in driving over main running lines. That is, an employee does not commence training in suburban train driving over main running lines until they have been assigned a mentor/driver trainer and commenced the On-Track Mentoring phase. As such, an employee is not appointed to the Mainline Trainee classification until this time, being week 19 in the Training Programme.
[31] According to the Respondent this is supported by:
• The wording of the classification definitions of Trainee, Trainee Mainline, Suburban Train Driver – Mainline and Suburban Train Driver – Trainer as set out in clause 21.2;
• The relativity of the wages of these classifications;
• The provisions of the Agreement governing incremental progression between classifications on the basis of competency based training and assessment set out in clause 15, clause 21.1.1 and Schedule 6; and
• The key aspects of the Training Programme, specifically:
• The milestones of the Training Programme, which denote the level of qualification of the Trainee at a particular phase of their training.
• The knowledge and skills attained during the particular phases of the training which build upon the foundation of learning in the preceding phase.
• The tasks performed by Trainees in the classifications.
• The mode of teaching and instruction in the phases of the training.
[32] Keolis Downer contends that the ordinary meaning of clause 21 of the Agreement when considered in context is that:
• The correct classification of an employee as STD Trainee or Trainee – Mainline is straightforward. Put simply, a Trainee progresses by appointment of the Respondent to Trainee – Mainline when they commence the on-track mentoring phase of the training programme.
• The definitions contained in clause 21.2 of the Agreement are imperfect , however, it is indisputable that the reliance on references to the training in both the Trainee and Trainee – Mainline classifications is the determining factor.
• Both training is (ultimately) directed at training as a Suburban Train Driver. The Trainee classification refers to the commencement of training generally and progressing through the Suburban Train Drivers Training Programme within the safe confines of the Railcar Depot. In contrast, the Trainee – Mainline classification refers to having commenced training specifically in driving over main running lines.
[33] In this regard, Keolis Downer relies upon the definitions of the classifications within the structure and what it considers to be prerequisites of each, as follows:
• The ordinary meaning of the definition of “Suburban Train Driver – Trainee” becomes clearer in the context of the content of the Training Programme, the rigorous safety standards applicable to the rail industry, and the operation of the surrounding provisions of the Agreement, being clauses 15, clause 21.1 and Schedule 6. Of particular relevance is the reference to the Trainee being ‘qualified to prepare and drive suburban trains within the confine of the Railcar Depot and performs associated duties’. The Coursework and Mechanical Training phases result in the qualification to prepare and drive suburban trains. This by necessity incorporates on-the-job training (contemplated by clause 15.5) and is manifest in the familiarisation of the Trainee of in-cab controls (head lights, horn, ATP, operating the railcar doors, throttle, and brake controls) necessary to move the railcar, upcoming track geometry, signal locations, track speeds and level crossings.
• At the Mechanical Training phase of the Training Programme where a Trainee undertakes familiarisation activities on the mainline, the Trainee has not yet met the prescribed requirement under Schedule 5.1.1, namely successful completion of all training and demonstration of the required competencies, necessary to progress to Trainee Mainline. Trainees during the Mechanical Training phase who participate in these familiarisation activities are not qualified to drive as they have not yet been assessed as competent. The information is instructed to the Trainees to inform them of upcoming track conditions as they are not familiar with the conditions. The purpose of this training is not route knowledge of the mainline and the training resources related to route knowledge have not yet been distributed to the Trainees.
• The definition of Suburban Train Driver – Trainee does not limit the location of training to the Railcar Depot. Rather, it provides that at this classification level, the Trainee will be qualified to drive suburban trains within the safe confines of the Railcar Depot. A Trainee does not obtain this qualification until they have completed the Mechanical Training phase, been deemed competent by CERT Rail and issued a Milestone Statement for Mechanical Training.
• In contrast, the definition of Suburban Train Driver - Trainee Mainline – means an employee who has commenced training in suburban train driving over main running lines and performs other associated duties. Consistent with the Training Programme, established by clause 15.5 and Schedule 6 of the Agreement, a trainee does not commence training in suburban train driving until they have been deemed competent and qualified to be able to safely operate a t rain on the mainline. This is designated by the trainee passing the relevant practical assessments, obtaining the Mechanical Training Milestone, being issued with the mainline training materials (Logbook, Professional Drivers Standard, Mainline Route Operations Guideline etc) and perhaps most critically, being assigned to a mentor/driver trainer.
• This position is further reinforced by the use of the term ‘suburban train driving’ in the definition of Trainee Mainline and Mainline classifications, but not in the Trainee or Intermediate classifications. Most notably is the use of the term ‘suburban train driving’ in the classification of Suburban Train Driver – Mainline. It states that a Suburban Train Driver – Mainline means a qualified employee who is appointed as such and is engaged in suburban train driving over main lines and performs other associated duties.
• The term “Suburban Train Driving” is utilised in the classification of Suburban Train Driver – Mainline Trainee. It states that a Suburban Train Driver - Trainee Mainline – means an employee who has commenced training in suburban train driving over main running lines and performs other associated duties.
• In this context, “Suburban Train Driving” is a reference to the process of driving revenue services over main running lines. This understanding is reinforced by the reference of Trainee Mainline employees commencing training in suburban train driving and establishes a significant distinction from earlier training aims (Trainee level) where the training is focused on train familiarisation, mechanical elements and operating / moving a train.
• The RTBU’s contention that exposure to supervised driving of non-revenue services over main running lines warrants progression to Trainee Mainline is not supported by the language of the Agreement because the Trainee is not yet qualified to operate a train within the confines of Railcar Depot and has not formally commenced training in suburban train driving.
[34] As to the classification progression, Keolis Downer contends that these relativities evident from the wage rates reflect the skills, duties and responsibilities of trainees. That is, it can be deduced that a Trainee Mainline is remunerated for performing duties and for having responsibilities akin to a qualified driver – that is operating passenger services. A Trainee Mainline, albeit under supervision, is responsible for the safe operation of a train, smooth acceleration and braking, and knowledge of routes, signals and risks. In contrast, the Trainee classification’s remuneration reflects that they are not yet deemed competent to operate a train on the mainline and are still learning the fundamentals to safely operating a train.
[35] The Respondent relies upon the evidence of:
• Jessica Kruger – Learning and Development Manager; 5 and
• Reece Blaschek – Acting Senior Driver Manager. 6
[36] This evidence was subject to some cross-examination.
[37] Keolis Downer also provided some documentation 7 referred to in the witness statement of Mr Fisher and the competency elements that form part of the Certificate IV in Train Driving.8 In this latter respect, it contends that the relevant competency elements of the certificate are all signed off by the completion of the mechanical phase of the training and this is the end of the course work. Keolis Downer submits that it is only at this stage that the trainee is eligible to commence mainline training.
7. Consideration
7.1 The proper approach to the construction of the 2020 Enterprise Agreement
[38] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent comprehensive statement of the principles by the Commission was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited9 (AMWU v Berri) in the following terms:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. 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. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[39] This is a non-exhaustive statement of the principles to be adopted10 and I have applied this approach in determining this dispute.
[40] In Geo A Bond & Co Ltd (In Liq) v McKenzie,11 (Geo A Bond) Street J said:
“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.”
[41] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”12
[42] Further, where the meaning of a provision of an enterprise agreement is unclear, a construction which tends to promote the objectives of the Agreement is to be preferred.13
[43] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd14 in the following terms:
“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”15
[44] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia16 in the following terms:
“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
‘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.’”
[45] It is well established that terms are not easily implied into enterprise agreements.17 This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. Implied terms must satisfy a number of prerequisites.18
[46] More recently, as relied upon by both parties in this matter, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene19 (WorkPac) also provided the following convenient summary of the required approach:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”20 (citations omitted)
[47] The above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the Agreement based upon the language and terms of the instrument, when read as a whole, and considered having regard to its context and purpose. Context includes legislative framework and the history of the provision. References to common intention of the parties are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.
[48] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.21 Rather, the Commission is determining the proper application of the Agreement in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.22
7.2 Observations on the evidence
[49] The agreed facts provide a useful basis for the determination of this matter. The 4 witnesses also provided relevant evidence.
[50] I consider that each of the witnesses were seeking to assist the Commission and I have accepted their evidence. There are some differences; however, these are matters of degree and perspective. I have resolved those differences having regard to the weight of the evidence and the degree of direct knowledge on the issue concerned.
[51] I observe that Mr Fisher, previously worked as a train driver for the predecessor of the Rail Commissioner and for the Victorian equivalent, where he was also a Driver Training Assessor. This meant that he held additional knowledge and expertise than the average Trainee, but also meant in my view that the degree to which he was practically supervised and instructed may also have not been typical of Trainees more generally. I also accept Mr Fisher’s evidence about how the training was conducted by the predecessor of the Rail Commissioner in 2011.
[52] To the extent that any of the witnesses gave evidence about how, in their view, the 2020 Agreement should be applied, I have regarded such as submissions.
7.3 The history of the provisions
[53] The wording of the classification structure set out in clause 21.2 of the 2020 Agreement reflects the classification structure set out in clause 32.1 of the Rail Industry (TransAdelaide) Award 2002 (2002 Award). The same provisions were also set out in the various enterprise agreements earlier applying to the Rail Commissioner.
[54] When applied by the Rail Commissioner and predecessors, Mr Fisher, and I infer other Trainees, were not driving Railcars on any main line until after they had completed the earlier training and had been appointed as Mainline Trainees.
[55] I observe that the 2020 Agreement was made by the Rail Commissioner, and later “inherited” by Keolis Downer, at a time when the infrastructure of the Adelaide Rail Network was not that as referenced by the Trainee Classification definitions. That is, there was no Adelaide Rail Yard connected to the ARS, as contemplated in the Intermediate Trainee definition in clause 21.2 and there is no access to the replacement rail yards (depots) other than via a main line. Further, given that electrification of the main lines is not completed, and in some cases, not scheduled, it is unfortunate that the classifications were not updated to better reflect the practical reality of the network. Given this, and the absence any express reference to competency-based assessment, I consider that the present classifications are not fit for purpose at least in those respects.
[56] I will return to these observations at the conclusion of this Decision but note that despite these circumstances I am required to determine the proper application of the existing 2020 Agreement having regard to its terms and context, rather than arbitrate the dispute according to merit principles as if dealing with a blank sheet of paper.
7.4 Findings as to the context in which the 2020 Agreement was made and is being applied
[57] The Railcar Depot was moved in 2011 from its original location near to the Adelaide Railway Station (ARS) and is now located at Dry Creek, north of Adelaide off the Gawler line. Electric trains were introduced onto the Adelaide Rail Network in 2014, and the electric trains can only run on the electrified Seaford and Tonsley (now Flinders) lines (and not the non-electrified Gawler line). As a result, other than the limited options within the depots themselves, the Rail Commissioner and now Keolis Downer are only now able to provide exposure to driving non-revenue electric trains on main lines. The limit to the options available for such training has also been compounded by the fact that the line between the Railcar Depot and ARS, including the Gawler Line itself, which is the main running line between the ARS and the new Railcar Depot, has been temporarily closed for an electrification upgrade.
[58] This was the practical context in which the 2020 Agreement was made by the Rail Commissioner and its employees.
[59] The operation of the Adelaide Rail Network and the training being provided to the Trainees also occurs in the context of regulations applying by virtue of the Rail Act and other legislation. This includes the need for certification of training and train drivers as part of a national competency-based training and assessment framework. This also forms part of the context in which the 2020 Agreement was made.
7.5 The training program
[60] The following additional findings arise from the evidence before the Commission and should be read in conjunction with the agreed facts outlined earlier in this Decision.
[61] There are 3 phases to the training provided by Keolis Downer to the Trainees; namely Coursework, Mechanical training and On-track mentoring training. During the Mechanical training phase, the Trainees undertake some driving of trains on one of the main lines. I will for convenience describe this as “familiarisation” training; however, the full import of this aspect will be outlined hereunder.
[62] The training imparted during the first 17 weeks of Coursework and Mechanical Training involves:
1. Site inductions
2. Railway fundaments
3. Fatigue management
4. Communication training
5. Workplace Health and Safety training
6. Trackside signs, signals and AMPRN rule book
7. Network orientation
8. 3000 class (diesel electric Railcars) mechanical training includes:
(i) 6-7 days of theory classroom-based training with written assessments. The theory-based training captures how the railcar operates, mechanical parts, in-cab functions, preparation and stabling of railcar, fault finding and coupling and uncoupling.
(ii) 4 weeks of practical-based learning of the topics covered during theory training for the trainees to practise their skills to complement their knowledge.
(iii) 1 week of practical assessments for the trainees to become competent in the 3000 class railcar. The trainees will now be competent in preparation and stable of 3000 class railcars, couple and uncouple, fault finding, in-cab functions and controls.
9. 4000 class (electric Railcars) mechanical training include:
(i) 3-4 days of theory training with written assessments which capture Automatic Train Protection (ATP) training, preparing and stabling an electric train, brake testing, fault finding and coupling and uncoupling.
(ii) 2 weeks of practical based learning is then applied to the topics covered during theory training for the trainees to practise their skills to complement their knowledge.
(iii) 1 week of practical assessments for the trainees to become competent in the 4000 class railcar. The trainees will now be competent in preparation and stable of 4000 class railcars, couple and uncouple, fault finding, in-cab functions and controls.
10. Simulator training covering rules and procedures surrounding network failure, recovery and rescue of disabled trains, emergency procedures and alternative safe working methods.
[63] In order to familiarise Trainees with the complex in-cab environment of the trains (rolling stock), Trainees participate in “field trips to the one of the mainlines to support knowledge and understanding within both the Coursework and Mechanical Training phases.
[64] During these familiarisation trips, which are each of approximately 1-2 hours in duration, Trainees are engaged in observational learning and exposure activities focussed on imparting an understanding of the look, feel and sound of the in-cab functions of rolling stock. Trains that are not be used for operational revenue services are utilised, and the Trainees do not assume any professional responsibilities.
[65] The time spent carrying out in-cab familiarisation on the mainline equates to approximately 6-16 hours out of approximately 680 hours total training time during the first 17 weeks of the Training Programme. The extent of operating the trains as part of the mechanical training phase is in the order of some 5 hours out of a total of 25 hours of that specific training phase. 23
[66] The stated purpose of the familiarisation trips is to advance the practical application of the mechanical learning and this is designed for the Trainees to practice and concentrate on the operation of the railcar functions and not mainline driving or route conditions.
[67] In order to progress from the Mechanical Training phase, employees are required to demonstrate the following competencies:
• able to prepare and stable both classes of railcars (3000s / 4000s);
• familiar with in-cab functions and controls; able to couple and uncouple railcars; and
• able to move a railcar safely and competently within the controlled environment of the Railcar Depot.
[68] After the Trainee is assessed as having successfully completed the Coursework and Mechanical Training, and Keolis Downer is satisfied they have demonstrated the requisite competencies to prepare and drive suburban trains within the confines of the Railcar Depot to a standard consistent with the Respondent’s extensive safety obligations, they progress to the On-Track Mentoring phase. This is recognised through the attainment of the Mechanical Milestone. The Centre for Excellence in Rail Training (CERT Rail) issues a certificate of Milestone Completion to designate the employee’s progression to the next stage of training.
[69] The Trainees are required as part of the mechanical training phase to operate (drive) a Railcar. Given the physical constraints in the Adelaide Rail Network, this must and does take place on a main line. The Trainees must be assessed on the element of classroom training prior to commencing the familiarisation driving. This is an assessment as part of the overall training but is not the same as the certification of competency required by Keolis Downer to under the next stage of training. 24
[70] The familiarisation training takes place between 0730 and 1630 (daylight hours) on week days and the trains are not being used for operational revenue purposes – there are no passengers. The Trainee concerned, a qualified driver and generally the rest of the relevant training group are on board the train. The Trainees take turns at the controls under the supervision of the qualified driver and over the training period largely perform all of the functions required to operate a train other than having passengers on board. 25 The trains do not operate according to a timetable but must operate around and between operational revenue trains that are using the main line concerned and drive within signalling and speed requirements. During the familiarisation phase these requirements are monitored by the qualified driver and detailed written information about such is not provided to the Trainees until they have completed the mechanical stage.26
[71] The focus of the familiarisation training is the operation of the Railcar itself rather than the route and timetable knowledge.
[72] The 2 groups concerned undertook the familiarisation training on the Adelaide to Glanville line (for the 3000 class) and on the Adelaide to Seaford line (for the 4000 class). These are main lines.
[73] There is a transition between the Mechanical Training and On-Track Mentoring phases including the following:
• When commencing the On-track mentoring training, there is an introductory presentation delivered associated with driving on the main lines and further training resources are provided to each of the Trainees.
• STD Mainline Logbook which trainee drivers are responsible for carrying to allow the mentor/driver trainers to document evidence of the Trainee operating trains on the mainline.
• Professional Drivers Standard which provides guidance to drivers on train driving handling techniques, driving strategies, stopping at stations and managing fatigue.
• Mainline Route Operations Guideline which provides guidance on route knowledge including high risk areas, gradients and signal locations.
• AMPRN Track and Signal Guide which contains information of the network including stations, signal locations and numbers, level crossings.
• Railcar Preparation and Stable Guide which augments the materials previously provided in Mechanical Training and is provided as a reference if required.
[74] On-track Mentoring occurs predominately on the main running lines undertaking revenue services, non-revenue movement of trains and preparing and stabling railcars. On-Track Mentoring phase requires a Trainee to follow an assigned mentor/ driver trainer’s roster, which includes AM/PM and weekend shifts with the Trainee completing further specific training and completing an on-track logbook. On-track mainline mentoring training consists of a Trainee being assigned to a mentor/driver trainer to perform shift work and on-job coaching/mentoring on how to drive and operate on the mainline across all routes and in all weather conditions on the network with passengers onboard.
[75] During the On-Track Mentoring phase trainees are provided coaching and mentoring regarding operating and driving on the mainline by an experienced and qualified driver. This also occurs to some degree as part of the familiarisation training; however, the on-the-job training is specifically focussed on driving over the main running lines and consists of route knowledge information (signal locations, gradients, track speeds, high risk areas, stations), tips relating to all aspects of the job, exposure to operating trains on the mainline during night, afternoon, before sunrise and different weather conditions. Trainees operate the train in adverse weather conditions and various environmental conditions (sun glare etc) to ensure they have the skills and familiarity to operate on the mainline safely in all conditions when qualified.
[76] At the conclusion of the On-Track Mentoring phase, Trainees undergo a ‘Driver Final Mainline Assessment’ which is assessed by CERT Rail. CERT Rail will determine competency based on the logbook, written assessment and practical assessments across all lines and will issue a Milestone Statement for On-Track Mentoring Training for competent Trainees, enabling them to proceed to the role of the Suburban Train Driver.
[77] Post week 34 until approximately week 104 employees undergo further competency verification and skill maintenance training in order to obtain their Certificate IV in Train Driving.
[78] During both the familiarisation and mentoring phases, the Trainees are not qualified to drive a train. The regulatory responsibility for the train remains with the qualified driver who is assisting/mentoring the Trainee. 27
[79] There is a difference in context, focus and practical responsibility between the “familiarisation” training during the mechanical training phase and the training conducted on the main line during the On-track mentoring phase. Some of these differences are matters of degree and part of a continuum of training. To that end, the extent of intervention and close supervision of the qualified driver will vary depending upon the stage of the training and the prior experience and current competency of the Trainee involved. However, there remains a difference of substance between the nature, degree and purpose of the training provided and associated driving of the Railcars.
7.6 The proper application of the 2020 Agreement including the classifications to the dispute
[80] When considered in context, the classification criteria relevant to the Trainees in clause 21.2 contain ambiguity. Further, the definitions do not adopt consistent language and concepts, and this reinforces the requirement that overall objective intention of the 2020 Agreement be ascertained having regard to that context and all of the terms of the instrument.
[81] Clause 13 of the 2020 Agreement contemplates that the employees will be appointed to classifications by their employer. However, when read in context, it is clear that this requires the appointments to be made in a manner that is consistent with the classifications set out in the Agreement and there is no broad discretion for Keolis Downer to resolve any uncertainty merely by making the appointments as it sees fit.
[82] The national competency-based training and assessment framework is relevant to the context and the application of the 2020 Agreement more generally by reference to schedule 6. This includes the role of the RTO in monitoring training and certifying competency. However, the classification criteria of direct relevance to the Trainees do not directly reference formalised competency-based concepts. To that end, the stages of competency applied by Keolis Downer form part of the factual context; however, it is the terms of the classifications and the 2020 Agreement that are to be applied.
[83] Against that broader context, I turn to classification definitions themselves. The most immediately relevant are drawn from clause 21.2 as follows:
• Suburban Train Driver - Trainee – means an employee who has commenced training, is progressing through the Suburban Train Drivers Training Programme and is qualified to prepare and drive suburban trains within the confines of the Railcar Depot and perform associated duties.
• Suburban Train Driver - Intermediate – means an employee who is qualified and appointed as such, and is engaged in the preparation and driving of suburban trains between the Railcar Depot and Adelaide Station and performs associated duties.
• Suburban Train Driver - Trainee Mainline – means an employee who has commenced training in suburban train driving over main running lines and performs other associated duties.
[84] However, the definition of the (qualified) driver also informs the intended operation of the Trainee definitions. This states that a ‘Suburban Train Driver – Mainline’ means “an employee who is appointed as such and is engaged in suburban train driving over main running lines and performs other associated tasks”. 28
[85] It is apparent from these definitions and associated rates of pay set out in Schedule 1 that the Trainee classifications are intended to embrace a progressive accumulation of training skills and experience. Clause S.1.1.1 also provides that “a Suburban Train Driver Trainee will progress to Suburban Train Driver Intermediate after a six-month training period, provided competency standards agreed by the parties are achieved.” Further, clause 16.9.1 provides, in effect, that Intermediate Trainees will be promoted to the Trainee Mainline role on the basis of merit.
[86] However, it is common ground, which I accept, that the Intermediate Trainee classification is not presently directly relevant. This is because the Trainees cannot be engaged in the preparation and driving of suburban trains between the Railcar Depot and Adelaide Station due to the infrastructure constraints. I will return to this aspect shortly but observe that the practical absence of the Intermediate Trainee position makes the operation of the classification structure somewhat problematic in the present context. However, this classification and the related provisions inform the intended operation of the other classifications and the 2020 Agreement more generally.
[87] Relevantly, for reasons set out above, the “progress” of the Trainee to the Intermediate position is specified to occur after 6 months (subject to standards) and the “promotion” to Trainee Mainline is on the basis of merit. Further, the accumulative nature of the classifications is apposite. In addition, each classification also refers to the performance of other associated duties. Each of these elements is much more consistent with the notion that the classifications are not intended to relate solely to the physical location of the training and this informs the proper application of the classifications. In reaching this view, I accept that this must be qualified by an appreciation that, unlike the other Trainee definitions, the Intermediate Trainee classification expressly refers to the particular work being performed in the context of its location; namely, “and is engaged in the preparation and driving of trains between the Railcar Depot and the Adelaide Rail Station ….”.
[88] Keolis Downer relies on the different wording between the classifications; namely, “drive (or driving) suburban trains” in the STD Trainee and Intermediate Trainee classifications and “suburban train driving” in the Trainee Mainline definition. As stated in Geo A Bond and applied to agreements reached between parties, such instruments are “often framed without careful attention to form and draughtsmanship” and as a result “one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the (agreement), endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole (agreement)”. 29
[89] In this case, and having regard to the full context in which the 2020 Agreement was made and the full terms of that instrument including the factors outlined above, I consider that the different language used in the Trainee definitions is significant. Each of the definitions, and the manner in which they reference the respective locations in the Adelaide Rail Network, must also be read as a whole. In the Mainline Trainee definition, the Trainee must have commenced “training in suburban train driving over main running lines and performs other associated duties”. I have also found that there is a difference of substance between the familiarisation driving training that is performed as part of the mechanical training and the driving training undertaken as part of the On-track mentoring phase. Further, the terminology adopted in the Suburban Train Driver – Mainline classification is more consistent with the notion that the reference to “training in suburban train driving over main running lines” in the Mainline Trainee definition is objectively intended to be given its full and different meaning.
[90] As a result, I do not consider that the Trainees, whilst undertaking the driving training during the mechanical phase are “training in suburban train driving over main running lines” as contemplated in the Trainee Mainline definition merely because the familiarisation is taking place whilst the Railcars are located on a main line. It is the substance of the training, the principal purpose 30 of the work comprehended in the classifications, and the full context established by the provisions of the 2020 Agreement that matters.
[91] The issue remains at what point does that transition take place? The commencement of driving on operational revenue services is not by itself the critical factor. Rather, it is the point that the training switches from familiarisation driving to the commencement of training in suburban train driving as discussed above. As a result, whilst this may coincide with the commencement of participation in operational revenue services, it is the commencement of the third stage of the training as presently applied by Keolis Downer that is directed to the training in driving of suburban trains over the main lines that is relevant.
[92] I appreciate that given the agreed non-application of the Intermediate Trainee classification, this approach would mean that the Trainees are not entitled to the progression to that classification that is otherwise contemplated by the 2020 Agreement. However, in determining the proper application of the Agreement it is not the Commission’s role to rewrite the instrument to give effect to what might be just and fair without regard to the terms agreed between the parties. 31 Equally I have construed the 2020 Agreement in a practical common-sense manner that contributes to a sensible industrial outcome consistent with the agreed terms.32 I will return to the Intermediate Trainee classification shortly.
8. Conclusions and determination
[93] The agreed question is as follows:
“At what point in their training program do Suburban Train Drivers - Trainees progress to the classification of Suburban Train Driver – Mainline Trainee.”
[94] For reasons set out in this decision, the Suburban Train Drivers - Trainees progress to the classification of Suburban Train Driver – Mainline Trainee when they commence the On-track mentoring phase under the current training program as this is the point that they commence training in suburban train driving over main running lines and perform other associated duties.
[95] The Commission so determines.
9. Recommendations
[96] It would be evident from this decision that there are certain elements of the existing Trainee definitions that are not fit for purpose given the current and likely future infrastructure constraints and the absence of an express link to competency-based training concepts.
[97] As a result, I recommend that that the parties renegotiate these provisions as soon as an opportunity to do so arises.
[98] Further for reasons that follow from the earlier discussion, the absence of any recognition of the progression in the nature of the training from the STD Trainee role to undertaking the mechanical training phase is not fitting given the apparent underlying principles associated with the trainee definitions as established by the parties to the 2020 Agreement. Despite there being no existing legal obligation to do so, I also recommend that Keolis Downer pay the former, and any current and future, Trainees at the equivalent of the Intermediate Trainee rate for the period of the mechanical training phase.
COMMISSIONER
Appearances:
M Davis with H Boyle and D Phillips for the Australian Rail, Tram and Bus Industry Union.
J Goos for Keolis Downer Adelaide Pty Ltd.
Hearing details:
2021
October 25.
Video Hearing – Adelaide, Sydney and Brisbane.
Printed by authority of the Commonwealth Government Printer
<AE509634 PR734305>
1 AE509634 PR725589, issued on 18 December 2020.
2 Although there may be a difference for other purposes, the parties and this Decision use the terms “Train” and “Railcar” interchangeably.
3 Exhibit RTBU1 and RTBU2.
4 Exhibit RTBU3.
5 Exhibit KDA3.
6 Exhibit KDA4.
7 Exhibit KDA1.
8 Exhibit KDA2.
9 [2017] FWCFB 3005.
10 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FWCFB 1621 at [21].
11 [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
12 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
13 Toyota Motor Corporation Australia Ltd v Marmara and Others (2014) 222 FCR 152, 173.
14 (1993) 40 FCR 511, 517-8.
15 This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco Australia Ltd and ors (2003) 131 IR 1 for the caution required in this regard.
16 [2013] FWCFB 8557.
17 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].
18 BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 cited by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.
19 [2018] FCAFC 131.
20 Ibid at [197].
21 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11].
22 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
23 The evidence of Ms Kruger – transcript PN227.
24 The evidence of Ms Kruger – transcript PN259 to PN264.
25 The evidence of Mr Sutton – transcript PN131 to PN132.
26 The evidence of Mr Blaschek – transcript PN371.
27 The evidence of Mr Blaschek – transcript PN359 to PN362.
28 Clause 21.2.
29 Geo A Bond at 503.
30 Carpenter v Corona Manufacturing (2002) 122 IR 387 at [9].
31 DP World Brisbane Pty Ltd v MUA.
32 Kucks v CSR Limited [1996] IRCA 166 at 184 per Madgwick J and Amcor Limited v CFMEU (2005) 222 CLR 241 at [96] per Kirby J.
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