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

[2016] FWC 3136

[2016] FWC 3136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

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

COMMISSIONER LEE MELBOURNE, 18 MAY 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.

[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.

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

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