Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd

[2016] FWC 3753

[2016] FWC 3753

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Rail, Tram and Bus Industry Union
v
Metro Trains Melbourne Pty Ltd
(C2016/3647)

Rail industry
COMMISSIONER LEE	MELBOURNE, 15 JUNE 2016

Alleged dispute about matters arising under the enterprise agreement. Application of the status quo provisions in the dispute settlement clause to the matters in dispute.

Introduction:

[1] As part of settling a dispute over the meaning of various clauses in the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019 (the Agreement) between the Australian Rail, Tram and Bus Industry Union (the Union) and Metro Trains Melbourne Pty Ltd (Metro), it was necessary to determine within a relatively short time frame a dispute as to the operation of the status quo provisions and the effect of those provisions to the matters in dispute. A hearing was conducted on 18 May 2016 in order to deal with that aspect of the dispute and at the conclusion of that hearing the following decision was issued:

“[1] The Australian Rail, Tram and Bus Industry Union (the Applicant) have made an application under s.739 of the Fair Work Act 2009 notifying a dispute to the Fair Work Commission (FWC). The Respondent is Metro Trains Melbourne Pty Ltd. The relevant instrument is the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019 (the Agreement).

[2] The Form F10 lodged by the Applicant on 4 May 2016 states that the dispute relates to a number of clauses in the Agreement as follows: Those clauses are Clause 1.12 - Dispute Resolution and a number of clauses in Schedule 1: Clause 5 Operating Groups, Clause 10 Master Rotation, Clause 14 Variety of Running and Clause 15 Development of Shifts.

[3] The Form F10 states that the Respondent now proposes to introduce new train driver rosters effective 22 May 2016 and the Applicant contends that these rosters are non-compliant with the requirements of the Agreement. In terms of the relief sought, the Applicant seeks the urgent assistance of the FWC to resolve the dispute by arbitration.

[4] I note that an amended Form 10 was filed on 11 May 2016 in the same terms as the first Form F10 save that it sought there be an order for interim relief issued. However, during the proceedings today that request was no longer pressed, the Applicant finding some comfort and satisfaction in submissions filed by the Respondent as part of the proceedings today, in particular the submissions made in paragraphs 5.1 to 5.4 of the Respondent’s submissions in opposition to the Applicant’s application for relief.

[5] The matters in dispute between the parties involve some level of complexity and are likely to take some time to resolve through arbitration as sought by the Applicant. As it is the intent of the Respondent to implement the new rosters on 22 May 2016, it was apparent to the parties that this date would come and go prior to the completion of any arbitration of the matters in dispute. This in turn raised the question as to the applicability of the status quo provisions in the dispute settlement clause to this particular dispute. It is clear from the terms of the dispute settlement clause that the status quo applies to disputes about a matter arising from the Agreement. It is common ground that this is a dispute of that type. However, relevantly for this matter, the status quo only applies up to the conclusion of the steps in clause 1.12.5(a) if “…the status quo has a direct impact on service delivery or Government related initiatives…”

[6] The Respondent submits that if they are unable to implement the proposed rosters on 22 May 2016 that this will have a direct impact on service delivery or government related initiatives. The Applicant disputes that contention. It was apparent that there was a need to determine this aspect of the dispute as quickly as possible and the parties agreed and co-operated with a timetable for arbitration of the following question:

“If the proposed roster that the Respondent seeks to implement on 22 May 2016, is not implemented and the current roster (that is, the status quo) remains in place, will this have a direct impact on service delivery or government related initiatives as contemplated in Clause 1.12 of the Agreement?”

[7] I note that there was common ground between the parties that there was no barrier to the Commission exercising arbitral power pursuant to the dispute settlement clause in the Agreement. It was agreed that the steps under the dispute settlement procedure had been followed and that the step in clause 1.12.5 (b) had been reached. Accordingly, the Commission can exercise powers pursuant to the dispute settlement clause to arbitrate the dispute and make a determination that is binding on the parties.

[8] Having considered the submissions and evidence provided in the matter, I am satisfied that the answer to the question posed is YES. It follows that the proposed roster the Respondent intends to implement on May 22 may therefore be implemented. I will provide further written reasons for making this decision in due course.

[9] I will list the matter for further programming for arbitration of the Schedule 1 matters in due course.”

[2] My reasons for making that decision follow:

The relevant dispute settlement clause and jurisdiction:

[3] The dispute settlement clause in the Agreement is clause 1.12 and is in the following terms:

“1.12 Dispute Resolution

1.12.1 If a dispute relates to:

(a) a matter arising under the Agreement (excluding a matter relating to occupational health and safety); or
(b) the National Employment Standards; or
(c) a matter pertaining to the employment relationship; then the following procedures apply.

1.1 2.2 An Employee who is a party to the dispute may be represented at all stages for the purposes of the procedures in this clause, by their representative, which may include the union.

1.1 2.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management. in good faith.

1.12.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

1.12.5 The Fair Work Commission may deal with the dispute in two (2) stages:

(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) For matters arising under 1.12.1 (a) and (b), if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

i. arbitrate the dispute; and

ii. make a determination that is binding on the parties.

Note: if the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act 2009 (Cth).

A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009 (Cth). Therefore, an appeal may be made against the decision.

1.12.6 The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure these processes are carried out expeditiously.

1.12.7 In the event of a clause 1.12.1 (a) or (b) dispute, while the parties are trying the resolve the dispute using the procedure in this clause, work must continue in accordance with the usual practice existing prior to the matter that is the subject of the dispute (status quo), pending the resolution of the dispute unless:

(a) there is a reasonable concern about an imminent risk to health and safety associated with the status quo (in which case status quo will not apply): or

(b) the status quo has a direct impact on service delivery or Government related initiatives (in which case the status quo will only apply up to the conclusion of the steps in clause 1.12.5 (a)).

For the avoidance of doubt, the state of affairs as it existed prior to the matter that is the subject of the dispute will remain in place. For example, if the dispute is about a change to work, the status quo represents the position before the change.

1.12.8 In the event of a clause 1.12.1 (c) dispute, the status quo will not apply, pending the resolution of the dispute.

1.12.9 The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this clause. For the avoidance of doubt, this excludes matters arising under 1.12.1 (c).

1.12.10 For ease of reference, various rights under this clause 1.12 are summarised as follows:

Dispute	Status Quo	FWC Mediation, Conciliation, Opinion, Recommendation, etc	FWC Arbitration	Parties Bound by FWC Decision
1.12.1 (A) AGREEMENT	Yes – subject to 1.12.7 (a) or 1.12.7 (b).	Yes	Yes	Yes
1.12.1 (b) National Employment Standards	Yes- subject to 1.12.7 (a) or 1.12.7 (b)	Yes	Yes	Yes
1.12.1 (c) Employment Relationship	No	Yes	No	No

[4] It is common ground that the matter in dispute relates to a matter arising under the Agreement. Therefore it is a matter arising under clause 1.12.1(a) and can therefore be arbitrated by the Commission subject to the preceding steps in the procedure being completed. Again, it was common ground that the steps had been completed and the dispute had reached the stage contemplated in clause 1.12.5(b).

[5] I am satisfied the Commission has jurisdiction to determine the matter in dispute.

The matter in dispute:

[6] Metro are seeking to introduce new rosters effective from 22 May 2016. The Union claim that the rosters do not comply with the Agreement and that the status quo provisions in the Agreement mean that Metro cannot introduce the rosters. Metro claim that the status quo has a direct impact on service delivery or Government related initiatives and therefore, in accordance with clause 1.12.7 (b) the status quo does not apply. In order to resolve the dispute about the status quo, the following question was framed:

“If the proposed roster that the Respondent seeks to implement on 22 May 2016, is not implemented and the current roster (that is, the status quo) remains in place, will this have a direct impact on service delivery or government related initiatives as contemplated in Clause 1.12 of the Agreement?”

THE EVIDENCE

Mr D’Alessio

[7] Mr D’Alessio gave evidence for Metro. Mr D’Alessio is the General Manager, Train Services for Metro and has held that position since 2012. A summary of the evidence of Mr D’Alessio as it relates to various aspects of the dispute is as follows:

Background issues:

• Mr D’Alessio is responsible for the train services business unit regarding the train driver group, operation and training compliance teams and on the day rostering support.



• A year long trial of all night public transport on weekends commenced on 1 January 2016.



• Metro operates approximately 14,400 services per week transporting over 800,000 customers each weekday.



• There is heavy public reliance upon Metro’s Melbourne rail network.



• There are approximately 4800 employees in MTM and 1041 of these are train drivers. It is the train drivers that are the relevant employees in this dispute. Train drivers perform a range of functions.  1

Victorian Government initiatives:

• A key issue for Metro during bargaining for the Agreement was to achieve operational efficiencies, including by segmenting railway lines on which each driver operates (Operating Groups).



• This change was sought to enable service of increasing numbers of passengers and deliver on Victorian Government initiatives in particular the Night Network (the trial of all night weekend public transport) and the Level Crossing Removal Program which involves the removal of 50 level crossings over the next eight years.

Night network initiative:

• The night network initiative involves the running of trains throughout the night on Friday and Saturday nights. The night network trains stop, with some exceptions, at all stations in the network.

Level crossing removal program (LCRP):

• The LCRP is a major capital works program involving significant construction works to remove the interface between road users and the railway. At least 20 of the 50 level crossings to be removed are scheduled for completion by 2018.



• Construction has commenced at many sites. 2 Some train stations and sections of rail line will be closed temporarily to allow the works to occur.



• Once the level crossings are removed and construction works are completed driver training will be required across each new section of railway. On the Frankston line, this will occur from around June and through August 2016.



• Sometimes training may overlap in relation to the simultaneous decommissioning of level crossings resulting in greater service disruptions and train cancellations due to longer periods of driver training.



• Further construction will take place at other sites later in 2016. 3

Detailed planning is required to undertake the work and to mitigate service disruption.

Planning for an efficient driver training program (backed by the proposed rostering arrangements) is fundamental to successful delivery of the Level crossing removal program.

Without the segregation and rostering of drivers into the 3 operating groups as proposed, it will not be feasible to train the entire cohort of Metro drivers in respect of every required infrastructure change as part of this program.

A substantial amount of work on the LCRP will occur from June 2016 to January 2017 and there are five key “Commissioning Events” (i.e. new sections of track in relation to which drivers must be trained) in this period as a result of the level crossing removal program. 4

The parties included in the Agreement a commitment to supporting the implementation of company and government initiatives including “Operating Groups”, “Night Network” and “Rail Construction and Renewal Projects” which includes the LCRP.

The introduction of Operating Groups and their relationship to Government related initiatives and service delivery:

[8] The parties introduced the concept of Operating Groups into the Agreement in order to support the Government initiatives contemplated in the Agreement, in particular the LCRP and to minimise the impact the LCRP has on customers.

[9] The network has been split into three stand-alone Operating Groups (Metro North, Metro South and Metro Central). Following an application process, train drivers have been allocated to a home depot within one of the three groups.

[10] The new roster which Metro plans to implement on May 22 will allow for the introduction of the Operating Groups. The effect of the introduction of the Operating Groups and their relationship with the introduction on Government related initiatives and service delivery was dealt with in some detail in the Witness Statement of Paul D’Alessio as follows:

“39. When new infrastructure is commissioned, including as a result of level crossing removals, train drivers must be trained to operate trains over the newly commissioned infrastructure. Under the current regime, generally speaking, each train driver must be trained across every section of the rail network (excluding the Stony Point and Sunbury line, and the racecourse and Showground’s special events train line). Given the scope of project works arising from the Level Crossing Removal Program, the scale of driver training across each section of newly commissioned track is significant. The training of drivers is extensive and can include “piloted” training by “On the Job Trainers” where a driver is accompanied by another (already trained) driver through the relevant section of new or altered rail track on a train out of revenue service (that is, on a train that is not carrying passengers). There may be various changes to the section of the track that a driver needs to be familiar with, such as changed signal operation, signage, track and platform location.

40. Given that there are approximately 1,041 train drivers employed by MTM, ensuring that (generally speaking) each of them are trained across every aspect of the rail network (even sections they do not generally use) requires considerable time, planning, coordination and, of course, cost. For example, in the case of the level crossing removals on the Frankston line, a 10 week practical driver training program following the commissioning has been forecast under the new rosters. This is based on an anticipated need to provide training to 682 drivers. If the new rosters are not implemented, then this training period is likely to be increased by 80% to 18 weeks. This is based on an anticipated need to provide training to 922 drivers. This means that On the Job trainers are required to conduct training of drivers for an additional 770 shifts under the current roster regime (and they are therefore unavailable to perform usual driving shifts).

41. Critically, for MTM’s customers, maintaining the current rosters would heavily impact driver availability due to the extended training time. This means that service delivery would be impacted, because services are disrupted or cancelled on account of driver unavailability (drivers are unavailable because they are undergoing or delivering training).

42. For example, in late 2015, a level crossing was removed from Burke Road, Glen Iris. Driver training commenced in January 2016 for all drivers under the current roster regime. On 22 January 2016 there were 26 service cancellations, on 25 January 2016 there were 36 service cancellations and on 29 January 2016 there were 96 service cancellations. Each cancellation arose because there was a shortage of qualified drivers to perform operational services. This arose, in part, from the training required under the current roster regime.

43. Furthermore, that level of extensive driver training threatens to delay the completion of various stages of the project works under the Victorian Government’s timetable for completion. Such delays can have a compounding effect on the project timetable and, in particular, will be exacerbated when there is an overlap on the completion and commencement of multiple level crossing removals given the extended training time.

44. To alleviate those inefficiencies and concerns, MTM has proposed new train driver rosters, which are scheduled for introduction on 22 May 2016. The new rosters are consistent with the Operating Groups to which the drivers have been allocated.

45. Under the new rosters, driver training required as a result of a new or altered section of track need only be delivered to drivers allocated to the Operational Group impacted by the altered section of track. This significantly reduces the time, planning, co-ordination and cost associated with driver training following the commissioning of project works.

This means that:

a. there is a reduced impact upon driver availability (because less drivers are completing or conducting training on new or altered sections of track). This results in a reduced need to cancel or disrupt service delivery on account of driver unavailability;
b. full train services are re-established more swiftly following a project occupation (thereby improving service delivery); and
c. the Government’s project works timetable is not compromised by potential training delays by MTM.

46. Failing to implement the proposed rosters would directly impact MTM’s ability to support Government initiatives, specifically the Level Crossing Removal Program and will delay return of services in respect of the newly commissioned infrastructure.” 5

[11] On re-examination, Mr D’Alessio made it clear that when drivers are training other drivers, they are not driving trains. For example, for the Greater North Project approximately 24 drivers will be required. That means 24 drivers that would normally be driving a scheduled service will not be. This creates roster vacancies and increases the risks of train cancellations where those shifts cannot be covered by overtime or other means.

[12] 47% of the training for the Burke Road Level Crossing was completed after two weeks and the training was ceased after 11 weeks at which point 80-85% of drivers were trained.

[13] Trainee drivers training time will be reduced from 73 weeks to 42-46 weeks as a result of the introduction of the Operating Groups allowing for a larger pool of qualified drivers within each Operating Group. Without the introduction of the Operating Groups, there would be an impact on the ability of Metro to meet short term resourcing demands.

Train driver roster changes:

[14] There has been a long process of consultation and communication about roster changes with drivers since February 2016. In April 2016, this culminated with all drivers being formally advised as to what Operating Group they would be in and advised that the transfer would coincide with the introduction of the May rosters.

[15] The introduction of the new rosters and the associated introduction of the Operating Groups will assist with fatigue management on the Night Network trial by giving drivers an additional days rest after a late finish prior to commencing a day shift.

[16] Ultimately, Mr D’Alessio makes the following statement:

“55. Furthermore, the new rosters will better enable MTM to deliver an improved and more reliable service to MTM customers by reducing the instances of driver unavailability on account of training obligations (and thereby reducing the occasions that give rise to increased train disruptions or cancellations). Further, if the new rosters are not implemented, MTM’s ongoing capacity to deliver the Government initiatives in a timely way is compromised. This is particularly the case in relation to the Level Crossing Removal Project. Given the scope of project works, any delay to each stage of the project will have a flow on effect.” 6

[17] At the time of the hearing, Mr D’Alessio gave evidence that in light of the advanced stage of planning to implement the new roster, failure to implement on the anticipated date would lead to a great deal of confusion among drivers regarding the roster that will apply on 22 May. That it would take at least one week to return to the pre-existing roster, and that as a result drivers may not present for work at the right time or the right place and this could lead to service disruptions including cancellations. This was based on Mr D’Alessio’s assessment that on an average weekday the company would not be able to contact 10% of their drivers. This could result in 60 drivers not attending for work or attending at the wrong time resulting in a possible 100 service cancellations.

Mr Chrysostomou

[18] Mr Chrysostomou is the Assistant Secretary of the RTBU Locomotive Division. Prior to that role Mr Chrysostomou worked for Metro. He has seventeen years’ experience as a train driver and railway worker. Mr Chrysostomou was involved in the negotiation of the Agreement.

[19] Mr Chrysostomou sought to correct some of the evidence of Mr D’Alessio regarding the number of trains, number of kilometres of rail and the number of customers.

[20] Mr Chrysostomou’s evidence is that irrespective of whether the May rosters are introduced there will still be a requirement for Metro to amend every shift that has a Frankston service rostered to accommodate training requirements for the Ormond and McKinnon Level Crossings.

Mr Jolly

[21] Mr Jolly is employed as a train driver for the Respondent. In summary, the evidence of Mr Jolly in relation to the various matters was as follows:

Night Network:

• The current rosters do not have any impact on the ability to run the night network over the weekends.



• He disagrees with Mr D’Alessio’s statement that the new rosters will deliver a more sustainable night network by assisting with fatigue management.  7

Level Crossing Removal Program:

• Mr Jolly agrees with Mr D’Alessio that once the level crossings are removed and the track reinstated that drivers must become qualified over the route and that training “may” be required.



• Training requirements are determined on a case by case basis by “assessors”.



• Some training will be via the provision of a simple circular that provides information about a minor change such as a signal moving and does not require the driver to physically drive track. However, the example given of the Ormond/McKinnon removals still involved a physical drive of the track.



• Mr Jolly concedes that the majority of proposed removals will require drivers to “drive the route”.



• Mr Jolly points to an inconsistency in Mr D’Alessio’s evidence where Mr D’Alessio states that training commences after the level crossing work is complete but also claims training for Ormond/McKinnon starts in June though the work will not be completed until August (i.e. prior to the work being completed). Mr D’Alessio’s response to this is that there was a period in advance of the Commissioning date during which Metro needs to “train the trainers” and a simulator element of the training which starts on 9 June. 8

Driver training for Ormond/McKinnon can take place through normal rostering and will not lead to greater disruption as the training can take place on trains that are “in service”. In response, Mr D’Alessio asserted that 25% more drivers will have to be trained if decentralisation (via the operating groups) did not occur. 9

• Once the work is complete, that the usual practice is that Metro will roster some drivers prior to the opening of a station to complete the training quickly so that when service resumes there are a number of drivers trained in it.



• Most training is undertaken in the first month and remaining staff are then targeted for training and the level crossing removals and consequent training requirements are not so tightly scheduled that cancellations will occur.



• Mr Jolly concedes that it might take 10 weeks to get 682 drivers over the track after the removal of the level crossings on the Frankston line; however the majority would be trained in the first month.



• Train cancellations only occur if there is a driver shortage, however, since January there has been more “on the job trainer” drivers and trainee drivers employed. 10 Mr D’Alessio responds that the additional on the job drivers are from the existing pool of drivers and are not additional drivers as such. Mr Jolly concedes that the additional on the job trainers are not additional bodies to drive trains.11 Mr D’Alessio also responded that while there are additional trainee drivers that there have also been losses of staff that have to be factored in which was not mentioned by Mr Jolly.

Metro could implement further efficiencies that are available under the terms of the Agreement.  12

As all drivers are currently required to maintain qualifications across all of the lines they must drive over the line at least once every 3 months meaning that Metro has more access to drivers to fill shortages if they are split into Operating Groups.

The time taken to train trainee drivers is 41 to 50 weeks, not 73 as stated by Mr D’Alessio.

Evidence on Burke Road Level Crossing Removal:

• Mr Jolly does not know how quickly the majority of people were trained after the Burke Road Level Crossing removal was completed.



• In respect to the Burke Road Level Crossing experience, Mr Jolly says there were no train cancellations and no impact on service due to training requirements. Further, that the driver briefing stage of the training can occur anytime from the end of May to allow drivers to complete the training in August, within the 3 month window. Mr D’Alessio’s response to that evidence was to state that there were cancellations during the training event for the Burke Road Level Crossing both before and after 31 January and that in February there were 54 cancellations due to driver shortages.



• Referring to evidence of Mr D’Alessio of cancellations that occurred on 22, 25 and 29 January 2016 he does not agree that allof those cancellations were due to training on the Burke Road Level Crossing. Mr Jolly said this was because it was the Australia Day long weekend and 22 and 29 January are Fridays, which are night network days, which have more services timetabled than any other day during the week.



• That the amount of cancellations because of the training on the Burke Road Level Crossing would not be indicative of driver cancellations for Level Crossing Removals in the future because the current rosters are more flexible than the previous rosters. This is demonstrated by the fact that there were no cancellations due to driver unavailability on 1 and 5 February. However, on cross examination Mr Jolly conceded these were the only two days that he checked for a record of cancellations. 13



• The Burke Road Level Crossing cancellations cannot be relied on to predict future driver availability because Mr Jolly knows personally that on 28 and 29 February there were drivers available to work because he swapped a shift and that Metro could have used 20 Principal drivers to fill shortages and drivers rostered off could have been called in. Further, Metro exceeded its performance target of 98% in January, February, March and April 2016. In response to the claim about the ability to utilise principal drivers Mr D’Alessio responded that they were in fact redeployed but on average only seven of them are available at the one time.



• As Metro are asking for feedback on the proposed roster it is apparent that the rosters could change.

Impact of the roster change:

• Mr Jolly disagrees there will be any confusion if the proposed roster is not implemented.



• The requirement to check the “wall sheet” within the relevant period will mean that drivers are alerted to changes.



• Last minute changes to rosters can be made by the issuing of a “slip” up to 24 hours prior to commencement of a shift.



• Drivers not at work (i.e. on leave) are required to ring the day prior to their return to find out what job they are doing.



• There are a number of ways Metro can contact drivers quite easily.



• The drivers are aware that the rosters are in dispute and will not be confused if they are not introduced.



• He does not know of anyone changing childcare arrangements on account of new rosters.

THE LAW TO BE APPLIED

[22] The general approach to the construction of enterprise agreements was considered recently in the Full Bench decision of the Commission, The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd.¹⁴ In that decision the Full bench stated as follows:

“Principles of construction of agreements

General approach

[19] The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo):

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J). ”

[20] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, 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.”

[21] Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements.  For example, similar observations were made in Amcor Limited v CFMEU (Amcor):

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” 

[22] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeorgeA Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”“ ¹⁵

[23] The Full Bench in Golden Cockerel also considered the law to be applied in respect to the use of extrinsic material as an aid to interpretation  16 and considered the application of the Acts Interpretation Act 1901 to enterprise agreements approved under the Act. 17

[24] At paragraph 41 the Full Bench helpfully summarised the principles as follows:

“Summary

[41]From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of facts and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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

10. 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.”  18

[25] I will apply these principles in determining this matter.

CONSIDERATION

[26] It is clear that if there is a change to the rail network such as the removal of a level crossing, there will need to be training of the drivers who will drive on the new track. Whenever there is training of the drivers by on the job trainers that means that those drivers will be unavailable while they are doing the training to drive scheduled train services. In an environment of a limited number of drivers this can lead to a shortage of drivers and ultimately to cancellation of services (whether it will lead to a shortage and lead to cancellations is another question to which I will return later in the decision).

[27] These factors link with the question to be determined in this case because a key feature of the proposed new roster is that it will introduce for the first time the three Operating Groups of North, South and Central described earlier. If the new roster and associated Operating Groups are not implemented Metro will have to, as it has in the past, conduct training for all drivers. This will mean that it will take 18 weeks to train drivers over the whole network after the level crossing removal instead of 10 weeks if the rosters are changed and Operating Groups implemented.

[28] Evidence was given of the recent experience with Burke Road Level Crossing removal. The evidence of Mr D’Alessio is that there were 54 cancellations associated with the training requirements arising from the training associated with the Burke Road Level Crossing. Mr Jolly disputes that fact citing that on 1 and 5 February there were no cancellations. However, these are the only days that Mr Jolly examined. In any case Mr Jolly appears to accept in his own evidence that there were cancellations but does not accept that all of them were associated with the Burke Road Level Crossing removal training.  19 I am satisfied on the evidence that cancellations will occur if the new roster is not implemented. There may of course still be cancellations arising from driver shortages if the new roster is not implemented but it is apparent from the evidence that there will be less of them.

[29] Overall, I agree with the submissions of Counsel for Metro that the more training that there is to be done, the more stress that is placed on driver availability to sustain existing schedules. In that context, while there may be some debate about the quantum of the extra training required, it is clear that there will be a lengthening of the training required if the rosters and Operating Groups are not implemented.

[30] Indeed it is a simple proposition. If all of the drivers have to be trained rather than just some of the drivers, this will take longer and will lead to more time on the job driver trainers are training and less time they are driving scheduled services, meaning someone else has to be found to perform that task. It is apparent that this is the impact that the status quo will have on service delivery. There is a question as to whether it is a direct impact within the meaning of the term in question and I will return to consider that issue later in the reasoning.

[31] The Union ask me to consider that Metro are meeting and exceeding their performance targets. It is not in contest that in fact Metro have been meeting their targets, irrespective of the cancellations that have occurred. However, Metro submit that this is not relevant as the question is not whether service delivery levels are acceptable based on predetermined performance criteria but rather, whether or not service delivery levels are impacted on by maintenance of the status quo. To answer that question Metro submit the relevant questions are what level of service disruption will flow from the maintenance of the status quo and would that level of service disruption be lower if the roster proposal was implemented? In other words, compare the relative outcomes: the status quo with what is proposed.

[32] I partly agree with this approach. I say partly because I am not in a position to definitively answer the first question as to what the level of service disruption will be. However, I am satisfied for the reasons set out earlier that there will be service disruption if the status quo is maintained and I am also satisfied that the disruption will be less if the new roster is implemented. I agree that whether or not Metro continues to meet its performance targets is not the relevant consideration.

[33] I have considered the evidence from Mr Jolly that the roster changes made in January and other opportunities that Metro has to lessen the impact of the need for training of drivers. I agree with Metro that, even if that were so, the question before me does not turn on a question of the scale of the impact. The question is whether there is a direct impact or not. In the same vein, while there is evidence that there are some measures that Metro could take to alleviate the impact, once again the relevant question is whether there would be a direct impact or not, even if the measures alleviated the impact.

[34] Mr Borenstein drew particular attention to the words “direct” impact and “service delivery” in the relevant clause and how they should be construed. Firstly, in respect to the word “direct”, his submission is that, as a general proposition, there is increased length of training leading to increased number of drivers who are not available to drive (because they are involved in training) which in turn may lead to an impact on service delivery. This is characterised by Mr Borenstein as a three or four-stage process which is indirect and therefore does not qualify as a direct impact. In response, Mr Snaden submits that the difficulty with that analysis is that, where the provision of a train service is the product of a complicated series of processes, it would be difficult to find even a single proposal that has a “direct” impact. Rather the consideration should be, does the need to provide training lead to service cancellations. As the evidence is that it does and the evidence is that if the status quo remains the training period will be longer, then there will be longer periods of service disruption and that is not only an impact but a direct impact. I agree with this submission. The construction sought by Mr Borenstein appears to be strictly literal approach which could lead to an outcome where virtually any change could be characterised as having within it a subset of changes leading to an argument that it was not “direct”.

[35] As to the word “impact” Mr Borenstein submits that there needs to be an effect of substance, not any effect as contended for by Mr Snaden. As the performance targets were met in the first five months of 2016, he submits the impact is “invisible” and therefore I should not be persuaded that there is an impact such that it triggers the status quo exemption. As to the term “service delivery” Mr Borenstein submits that as the performance targets were met I should not be satisfied that there will be an impact on service delivery. In response, Mr Snaden submits that in effect Mr Borenstein is trying to read into the provision words that are not there. The clause does not require an impact of some size, or a substantial impact or an impact on the service delivery performance indicators. Once again, I agree with this submission. It is straining the meaning of the words to suggest that some particular level of impact on service delivery needs to be met.

[36] In his concluding submission, Mr Snaden put the following succinct summary of the matter before me:

“In light of the known training challenges ahead, challenges arising from an unprecedentedly large program of construction works that will take place over the next months and years, in light of that, the question is: all other things being equal, will the service disruption that arises under the existing roster exceed the service disruption that would arise under the proposed roster? The best view and, indeed, if I may say, the only realistic view of the evidence, for the reasons that I have already taken you to, Commissioner, is that it will.” 20

[37] I agree with this submission.

[38] It is for the reasons set out above that I determined that the answer to the question to be determined in the arbitration was YES.

COMMISSIONER

Appearances:

H Borenstein on behalf of the Australian Rail, Tram and Bus Industry Union

J Snaden on behalf of Metro Trains Melbourne Pty Ltd

Hearing details:

2016.

Melbourne.

May 18.

Final written submissions:

17 May 2016

 1   Exhibit 2, Statement of Paul D’Alessio, [17]

 2   Exhibit 2, Statement of Paul D’Alessio, [25]

 3   Exhibit 2, Statement of Paul D’Alessio, [29]

 4   Exhibit 2, Statement of Paul D’Alessio, [32]

 5   Exhibit 2, Statement of Paul D’Alessio, [39] – [46]

 6   Exhibit 2, Statement of Paul D’Alessio, [55]

 7   Exhibit 2, Statement of Paul D’Alessio, [54]

 8   PN87

 9   PN90

 10   Exhibit 4, Witness Statement of Paris Jolly, [21]

 11   PN286

 12   Exhibit 4, Witness Statement of Paris Jolly, [22]

 13   PN282

14 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd, [2014] FWCFB 7447

15 [2014] FWCFB 7447, [19] - [22]

 16   [2014] FWCFB 7447, [23] - [30]

 17   [2014] FWCFB 7447, [31] - [40]

 18   [2014] FWCFB 7447, [41]

 19   Exhibit 4, Witness Statement of Paris Jolly, [28]

 20   PN343

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