Australian Rail, Tram and Bus Industry Union v Keolis Downer Adelaide Pty Ltd t/a Keolis Downer Adelaide
[2022] FWCFB 28
•11 MARCH 2022
| [2022] FWCFB 28 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Rail, Tram and Bus Industry Union
v
Keolis Downer Adelaide Pty Ltd t/a Keolis Downer Adelaide
(C2021/8372)
| VICE PRESIDENT HATCHER | SYDNEY, 11 MARCH 2022 |
Appeal against decision [2021] FWC 5987 of Commissioner Hampton at Adelaide on 19 November 2021 in matter number C2021/3743
Introduction and background
The Australian Rail, Tram and Bus Industry Union (RTBU) has appealed a decision of Commissioner Hampton published on 19 November 2021.[1] The decision concerned an application made by the RTBU for the Commission to deal with a dispute which concerned the progression of trainee train drivers through the Suburban Train Driver Trainee classifications under the Rail Commissioner Rail Operations Enterprise Agreement 2020 (Agreement).[2] The application was brought against Keolis Downer Adelaide Pty Ltd (Keolis Downer), the employer currently bound by the Agreement. The parties agreed on the following question to be determined by the Commission in order to resolve the dispute (agreed question):[3]
“At what point in their training program do Suburban Train Drivers – Trainees progress to the classification of Suburban Train Driver – Mainline Trainee?”
For the reasons set out in the decision, the Commissioner determined that trainee suburban train drivers (trainees) progress to the classification of Suburban Train Driver – Trainee Mainline (Trainee Mainline) when they commence the On-Track Mentoring phase of their training, because this is when they commence training in suburban train driving over main running lines and perform other associated duties.
The RTBU contends in its appeal notice that the Commissioner’s decision was in error on the following grounds:
1.The Commissioner erred in determining that clause 21.2 of the Agreement, which governs the classification of trainees, was ambiguous. The RTBU contends that the requirement for classification as a Trainee Mainline is clear: driving on main lines.
2.The Commissioner erred in distinguishing between “training” and “familiarisation” because “familiarisation” was part and parcel of the training.
3.As a result of the above two errors, the Commissioner erred in concluding that the subject cohort were not entitled to be classified and paid as Trainee Mainline employees once they started driving on suburban mainline tracks.
It is not in dispute that permission is not required for the appeal because clause 23.12 of the Agreement creates an independent right of appeal.
The dispute the subject of the Commissioner’s decision concerns the proper construction and application of the classification descriptors in the Agreement for trainees and their application to the facts of the dispute. Clause 21.2 of the Agreement sets out the descriptors for the classifications applicable to suburban train drivers, and the following are applicable to trainees:
· 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.
Once training is completed, the employee will be appointed to the classification of Suburban Train Driver – Mainline. The descriptor for this classification in clause 21.2 is as follows:
· 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.
Two other provisions of the Agreement are of apparent relevance to the classification of trainees. First, clause 16.9 provides:
16.9 STD Intermediate to STD Mainline Promotion
16.9.1 Appointment will be merit based.
It is not in dispute that, in the above provision, “STD” is an abbreviation of “Suburban Train Driver”.
Second, clause S.1.1.1 of Schedule 1 to the Agreement, Weekly Wage Rates – Rail Operations Employees provides:
S.1.1.1A 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.
The basal facts of the matter were, to a significant degree, not in dispute because the parties were able to provide the Commission with a statement of agreed facts (agreed facts), which are set out in full in paragraph [16] of the decision under appeal. The agreed facts disclose that the dispute was initiated in April 2021 when trainees approached Keolis Downer management and raised an issue about whether their rate of pay would increase once they commenced training on the mainline, with the response being that it would not. The agreed facts went on to describe the training program for trainees in 2021 relevantly as follows:
“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…
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 …
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 nonrevenue 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…
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.”
At first instance, the RTBU contended that trainees were entitled to progress to the Trainee Mainline classification once they commenced any form of driving training on any main running line which, under the 2021 training program, commenced in the week beginning 12 April 2021. The RTBU did not agree with Keolis Downer’s position that trainees were required to satisfactorily complete or be signed off on particular training before progressing to the Trainee Mainline classification.[4]
Keolis Downer contended that trainees progress to the Trainee Mainline classification when they are deemed competent and qualified to do so. To reach this standard, Keolis Downer submitted, the trainee would have completed different types of training in relation to main running lines, including operating a train that is located on a main line. This type of training alone, however, is not sufficient to fall within the Trainee Mainline classification.[5]
The decision
In his decision, the Commissioner importantly made the following finding concerning the historic origin of the provisions in the Agreement concerning the classification of trainees:
“[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… The same provisions were also set out in the various enterprise agreements earlier applying to the Rail Commissioner.”
The Commissioner also found that the Railcar Depot (referred to in the Intermediate classification descriptor) was moved in 2011 from its original location near Adelaide Rail Station to Dry Creek, north of Adelaide on the Gawler main line (which is currently closed for electrification works). This has meant that, other than within the confines of the depot, trainees can only be exposed to driving non-revenue electric trains on main lines (compared to the pre-2011 situation when the Railcar Depot was directly connected to Adelaide Rail Station).[6]
The Commissioner made the following significant findings of fact in relation to the current training program which was completed by the trainees in 2021:
· There are three phases of training provided to trainees: Coursework, Mechanical Training and On-Track Mentoring Training. During the Mechanical Training part of the program, trainees drive trains on one of the main lines from time to time. The Commissioner described this as “familiarisation” training.[7]
· Familiarisation training involves trainees participating in “field trips” to the mainlines in order to become familiar with the complex in-cab environment of trains.[8]
· These trips, which last for 1-2 hours, take place on trains that are not being used for operational revenue services. During these trips, the focus is for trainees to observe the functions being performed “in-cab” and they do not assume any professional responsibilities. Trains that are not to be used for operational revenue services are utilised for this purpose.[9]
· In-cab familiarisation train operation in the Mechanical Training phase is “in the order of some 5 hours out of a total of 25 hours of that specific training phase” [sic].[10] (Note that “25 hours” appears to be a typographical error since the evidence referred to in the footnote for this proposition was that “…these familiarisation trips are only five hours out of over 400 and I think it's 25 hours of mechanical training…”,[11] i.e. 5 hours out of a total of 425).
· The stated purpose of the familiarisation trips is to advance the practical application of the mechanical learning and is designed for trainees to practice and concentrate on the operation of the railcar functions and not mainline driving or route conditions.[12]
· Due to the physical constraints of the Adelaide Rail Network, this familiarisation must take place on a mainline.[13] It involves trainees taking turns, under supervision, at the controls of a railcar which is not being used for operational revenue purposes, has no passengers and is not a timetabled service.[14]
· After a trainee is assessed as having successfully completed Mechanical Training, and Keolis Downer is satisfied they are competent to prepare and drive trains within the Railcar Depot, the trainee progresses to the On-Track Mentoring phase of training. A certificate is issued by the Centre for Excellence in Rail Training (CERT Rail) which confirms this progression.[15]
· The transition between the Mechanical Training and the On-Track Mentoring phases includes a presentation about driving on main lines and the trainee receives a STD Mainline Logbook for the purposes of documenting times where they operate trains on the mainline.[16]
· On-Track Mentoring occurs predominately on the main running lines undertaking revenue services, non-revenue movement of trains and preparing and stabling railcars. The 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. The trainee performs 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.[17]
· Training during the On-Track Mentoring phase 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.[18]
· At the conclusion of the On-Track Mentoring phase the trainees complete a final assessment on mainline driving which is assessed by CERT Rail. If the trainee passes this, a certificate is issued which enables progression to the role of Suburban Train Driver.[19]
In his consideration as to the proper construction of clause 21.2, the Commissioner said that the classification criteria relevant to trainees were, considered in context, ambiguous and did not adopt consistent language and concepts, and that this reinforced the requirement that the overall objective intention of the Agreement be ascertained having regard to that context and all of the terms of the instrument.[20] He also said that while the national competency-based training and assessment framework, as applied by Keolis Downer, was of contextual relevance, the classification criteria for trainees did not directly reference formalised competency-based concepts and it was necessary to apply the terms of the Agreement.[21]
The Commissioner said that it is apparent that the classification definitions and associated rates of pay in Schedule 1 “are intended to embrace a progressive accumulation of training skills and experience” but noted that because the Intermediate trainee classification was not currently being used (due to the relocation of the Railcar depot from a location near Adelaide Station to Dry Creek in 2011), this made the application of the trainee classification structure set out in the Agreement somewhat problematic.[22] The Commissioner then said:
“[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 ….’.
. . .
[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 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.”
The Commissioner noted the consequence of the agreed non-application of the Intermediate trainee classification and the approach he preferred meant that trainees are not entitled to the progression to the Intermediate classification that is contemplated by the Agreement.[23] Consequently, the Commissioner made a recommendation that the parties renegotiate the relevant provisions of the Agreement as soon as an opportunity to do so arose, since they are not fit for purpose in current circumstances,[24] and also recommended 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.[25]
Submissions
The RTBU
In respect of its first ground of appeal, the RTBU submitted that the Commissioner erred in concluding that clause 21.2 of the Agreement was ambiguous. Instead, the RTBU submitted, the discrimen for trainees to fall within the Trainee Mainline classification is clear: driving on mainlines. It was submitted that there is no controversy over what constitutes mainlines: they are the ordinary rail lines over which train traffic flows. Mainlines are in contrast to the confines of the Railcar Depot. Accordingly, for trainees to fall within the Trainee Mainline classification in the Agreement, they must have started to be trained over mainlines.
In relation to its second ground of appeal, the RTBU submitted that the distinction between “familiarisation” and “training” drawn by the Commissioner has no foundation in the Agreement, and instead, “familiarisation” was part and parcel of the continuum of the trainees’ training. The RTBU submitted that this characterisation of the time trainees spent operating trains on the mainline is demonstrated by the following factors:
The trainees were in full control of the train at the relevant time;
A trainer was present at the same time;
The trainees were required to complete assessments;
The trainees were quizzed and given insights; and
The fact that the trips occurred on a non-revenue service demonstrates that the sole purpose of the train’s operation was for training the trainees.
The RTBU further submitted that Keolis Downer’s understanding of the training program and practices cannot alter the construction of the Agreement. The RTBU noted that the Agreement existed before Keolis Downer became the employer under the Agreement. The RTBU submitted that no evidence had been provided which demonstrates the existence of a distinction between revenue and non-revenue operations or training and familiarisation at the time the Agreement was negotiated.
As to its third ground of appeal, the RTBU submitted that ultimately, because of the errors of the Commissioner set out in further detail above, he also erred in finding that the trainees could not fall within the Trainee Mainline classification once they started driving on the mainline tracks.
Keolis Downer
Keolis Downer submitted in relation to the RTBU’s first ground of appeal that looking no further than the definition of the Trainee Mainline classification in the Agreement constitutes an unduly narrow approach, and overlooks important provisions in the Rail Safety National Law (RSNL) which require particular competencies to be met in order for a person to engage in rail work. In particular, the RSNL requires Keolis Downer to ensure that each rail safety worker is competent to carry out that work. In the case of trainees, Keolis Downer submitted that this meant that trainees were required to be assessed as qualified and competent before they could proceed with driving on the mainline as part of the On-Track Mentoring phase of their training. Keolis Downer also referred to other parts of the Agreement which referenced the attainment of competencies as a precondition for progression through classifications, including the definition of the Intermediate trainee classification (which is not currently in use) in clause 21.2 of the Agreement. This definition refers to trainees being “qualified”.
As to the RTBU’s second and third grounds of appeal, Keolis Downer submitted that the Commissioner did not err in relation to the proper interpretation of the trainee definitions in the Agreement because the phrase “training in suburban train driving over main lines” which appears in the definition of the Trainee Mainline classification, is objectively intended to describe the substantial character of the training the trainee is undertaking. It could not, Keolis Downer submitted, have been intended that if driving over a mainline was a minor or incidental part of a particular phase of the training program, that the trainee would progress to the classification. In addition, the presence of the words “and performs associated duties” in the definition of the Trainee Mainline classification is significant. This phrase, it was submitted, refers to the performance of other duties substantially associated with driving over mainlines to accompany the actual driving over the mainlines, which according to Keolis Downer’s submission, is not what occurred during the Mechanical Training phase.
Keolis Downer submitted that taking a quantitative approach to evaluating whether a trainee falls within the Trainee Mainline classification prior to commencing the On-Track Mentoring phase of the training program points against the RTBU’s position. To this end, Keolis Downer noted that prior to the On-Track Mentoring phase, trainees spend approximately six to 16 hours undertaking familiarisation trips on the mainline as part of a total of approximately 400 hours of the Mechanical Training phase. Keolis Downer submitted that this reveals that the principal purpose of a trainee’s work during Mechanical Training is not driving on mainlines, and therefore the Trainee Mainline classification does not apply at this point in their training.
Consideration
The RTBU did not in its appeal challenge any finding of fact made by the Commissioner. Accordingly, the appeal is to be resolved, firstly, by construing the relevant provisions in order to identify the criteria for progression to the Trainee Mainline classification and, secondly, by determining by reference to the agreed facts and the facts as found by the Commissioner the stage of their training at which the trainees met those progression criteria.
Considered in their context, it is clear that the three classifications of Suburban Train Driver - Trainee (Trainee), Suburban Train Driver - Intermediate (Intermediate) and Trainee Mainline all represent discrete stages in the process by which an employee is trained to become a fully operational suburban train driver and to be classified as a Suburban Train Driver - Mainline under clause 21.2 of the Agreement. In this respect, we agree with the Commissioner that the three classifications are “intended to embrace a progressive accumulation of training skills and experience”.[26]
We also agree with the Commissioner that the use of inconsistent terminology in the three classifications creates some difficulty in determining where they are each intended to apply. The prime example of this is the use of the word “qualified” in the Trainee and Intermediate classifications. This appears particularly incongruous in the Trainee classification since, presumably, a trainee will not at the very commencement of their training program be qualified to “prepare and drive suburban trains within the confines of the Railcar Depot and perform associated duties”. This can only usefully be read as meaning that during the training undertaken while at this classification level, it is intended that the trainee will be trained to become qualified to perform the specified functions and duties. Importantly, the inclusion of the references to “progressing through the Suburban Train Drivers Programme” and the performance of “associated duties” in the Trainee classification means that the training and duties at this level are not confined to the preparation and driving of trains within the confines of the Railcar Depot.
The Intermediate classification requires that an employee be “qualified and appointed as such” without specifying what the qualification for appointment is. The answer to this difficulty appears to lie in clause S.1.1.1 of Schedule 1 to the Agreement, which requires progression from the Trainee to the Intermediate classification after completion of a six-month training period and the achievement of competency standards agreed by the parties. Presumably any such competency standards would at least in part relate to competency in the preparation and driving of suburban railcars within the confines of the Railcar Depot. In any case, clause S.1.1.1 is now in practice inapplicable because progression from the Trainee to the Intermediate classification no longer occurs. The Intermediate classification is described as requiring engagement in the preparation and driving of suburban trains between the Railcar Depot and Adelaide station – a requirement which has become obsolete (apparently since 2011) for the reasons explained by the Commissioner in his decision.
Clause 16.1.9 contemplates in express terms that progression from the Intermediate classification to the Trainee Mainline classification will be by appointment on the basis of merit. It is clear therefore that, as originally contemplated, an employee did not meet the criteria for the Trainee Mainline classification merely by undertaking the training referred to in the classification descriptor. However, because the Intermediate classification is no longer used, progression now occurs directly from the Trainee to the Trainee Mainline classification - a position which renders clause 16.1.9 inapplicable and for which the Agreement makes no express provision. This has, as the Commissioner put it, rendered the classification structure “somewhat problematic in the present context”.[27]
The descriptor for the Trainee Mainline classification refers to an employee who has commenced training of a specified character - that is training in “suburban train driving over main running lines”. This is a composite phrase which must be interpreted as such. The RTBU’s submission that the words should be read in a disaggregated way, so that they simply comprehend the commencement of any occasion upon which a trainee is being trained on a suburban train that is running over a main line, cannot be accepted because it does not take into account that the words are intended to describe the substantive character of the phase of training being undertaken. We agree with the Commissioner that the descriptor for the Trainee Mainline classification is to be understood as conveying the “substance of the training” and the “principal purpose of the work” at that classification level, not merely the occasional incidence of training at a specific location.
It is contextually significant, we consider, that the same phrase “suburban train driving over main running lines” is used in the descriptor for the Suburban Train Driver - Mainline classification to describe the duties that an employee at this level must perform. The phrase is used in this context to refer to the duties of a fully qualified and operational train driver - that is, a driver operating a fare-charging, passenger-carrying regular train service. In the context whereby the Trainee Mainline classification represents the final step in the training process before an employee becomes a full operational suburban train driver classified as a Suburban Train Driver – Mainline, we consider that the phrase “suburban train driving over main running lines” should be given the same meaning in the former classification as in the latter. Therefore, the criterion for the classification of Trainee Mainline should be understood as meaning, now that clause 16.1.9 no longer has any practical application, simply that the employee has commenced a stage of training which has as its substantive character training in operating a fare-charging, passenger-carrying regular train service.
To the extent that employees may earlier be required in an incidental way to perform training on main running lines prior to engaging in training with the substantive character just described, this may readily be accommodated in the Trainee classification which, as earlier stated, includes general requirements to progress through the Suburban Train Drivers Training Programme and to perform associated duties.
The agreed facts and the Commissioner’s factual findings make it readily apparent when the stage of training to which the Trainee Mainline classification applies commenced in the 2021 training course. During the second “Mechanical Training” phase of the training course, trainees are required on occasions to engage in the driving of trains on the mainlines. When they do this, railcars which have no fare-paying passengers and run between timetabled services are used. The purpose of this is to familiarise the trainees with the complex operating environment in a railcar, in the context of a phase of training which is predominantly classroom-based and has as its substantive purpose the mechanical operation of the diesel and electric railcars used on the Adelaide rail network. The Mechanical Training phase does not, in our view, have the substantive character of training in “suburban train driving over main running lines” and, accordingly, we agree with the Commissioner’s finding that trainees are not required by clause 21.1 of the Agreement to be classified at the Trainee Mainline level while this stage of training is undertaken.
By contrast, the third “On-Track Mentoring” phase of the training program is plainly of a character that attracts the application of the Trainee Mainline classification. As the Commissioner found, this phase of the training is specifically focused on driving suburban trains on regular fare-charging services on the main running lines and, as such, may properly be characterised as “training in suburban train driving over main running lines”.
Accordingly, we consider that the Commissioner’s answer to the question posed for determination was correct.
Further comments
We also agree with the two recommendations made by the Commissioner. It is clear that classifications for trainees in clause 21.1, and the associated provisions concerning progression between those classifications, were originally formulated in the context of the training program and network infrastructure which existed 20 or more years ago, and have been adopted in successive instruments including the current Agreement without adaptation to changes over time in that training and infrastructure. Accordingly, the determination of this dispute at first instance and on appeal has required the application of the classification structure to a training system for which it was never designed and thus has required somewhat of a “bed of Procrustes” approach. It is obvious that this is a situation requiring review in order to avoid further disputation.
It is also clear that it has always been intended, including in the current Agreement, that there be three payment levels through which trainees should progress during the training program, and that this has been frustrated because of a historic failure by all parties to adapt the drafting of the Intermediate classification to the circumstances which have applied since the relocation of the Railcar Depot in 2011. For this reason, we agree with the Commissioner that it would be fair and appropriate, pending a redesign of the trainee classification structure, that trainees be remunerated at the Intermediate rate of pay while undertaking the Mechanical Training phase of the training program.
At the hearing of the appeal, we were advised that Keolis Downer had not acceded to the Commissioner’s second recommendation. We were not informed about any progress in respect of the first recommendation. We urge adherence to both recommendations.
Conclusion
The appeal is dismissed.
VICE PRESIDENT
Appearances:
P Dean of counsel on behalf of the appellant.
S Meehan of counsel on behalf of the respondent.
Hearing details:
2022
Sydney and Newcastle (via video-link):
24 February
[1] [2021] FWC 5987
[2] AE509634
[3] [2021] FWC 5987 at [15]
[4] Ibid at [21] – [25]
[5] Ibid at [28] – [34]
[6] Ibid at [55], [57]
[7] Ibid at [61]
[8] Ibid at [63]
[9] Ibid at [64]
[10] Ibid at [65]
[11] Evidence of Jessica Kruger, Transcript, 25 October 2021, PN227
[12] [2021] FWC 5987 at [66]
[13] Ibid at [69].
[14] Ibid at [70]
[15] Ibid at [68]
[16] Ibid at [73]
[17] Ibid at [74]
[18] Ibid at [75]
[19] Ibid at [76]
[20] Ibid at [80]
[21] Ibid at [82]
[22] Ibid at [85]-[86]
[23] Ibid at [92]
[24] Ibid at [96]-[97]
[25] Ibid at [98]
[26] Ibid at [85]
[27] Ibid at [86]
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