Australian Rail, Tram and Bus Industry Union v Pacific National Queensland Coal Pty Ltd T/A Pacific National

[2018] FWC 2458

[2018] FWC 2458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Rail, Tram and Bus Industry Union
v
Pacific National Queensland Coal Pty Ltd T/A Pacific National
(C2017/6545)

COMMISSIONER SPENCER BRISBANE, 10 MAY 2018

Alleged dispute about any matters arising under the enterprise agreement – dispute arising regarding application of amended Rail Safety National Law Regulations 2012 – inconsistent with provision of the enterprise agreement – jurisdictional objection.

INTRODUCTION

[1] An application pursuant to s.739 of the Fair Work Act 2009 (the Act) was made by the Australian Rail, Tram and Bus Industry Union (the Applicant) in relation to an alleged dispute arising under the Pacific National Queensland Coal Enterprise Agreement 2014 (the Agreement) with Pacific National Queensland Coal Pty Ltd T/A Pacific National (the Respondent).

[2] The Applicant stated that the dispute related to a provision of the Agreement, dealing with the rostering length of solo/sit shifts, purportedly in contravention of the recently amended Rail Safety National Law Regulations 2012 (the RSNL Regulations). 1 The Applicant submitted that RSNL Regulations were amended subsequent to the approval of the Agreement and the regulations now differ from the provision in the Agreement dealing with the rostering of drivers on solo/sit shifts.

[3] The Respondent raised a jurisdictional objection that the Fair Work Commission (the Commission) did not have jurisdiction to deal with the dispute, as it was not “a matter arising under the Agreement.”

[4] The matter was listed for conference however was unable to be resolved. Directions were issued for the filing of material in relation to the jurisdictional objection and the jurisdictional matter was determined on the papers, with the consent of the parties.

RELEVANT PROVISIONS OF THE ACT

[5] Pursuant to ss.738 and 739 of the Act:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[6] Section 595 of the Act relevantly states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

[7] Section 26 of the Act provides that State and Territory industrial laws are excluded from its operation:

“26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2) A State or Territory industrial law is:

(a) a general State industrial law; or

(b) an Act of a State or Territory that applies to employment generally and as one or more of the following as its main purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii) providing for the establishment or enforcement of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv) prohibiting conduct relating to a person's membership or non-membership of an industrial association;

(v) providing for rights and remedies connected with the termination of employment;

(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h) either of the following:

(i) a law that is a law of a State or Territory;

(ii) an instrument of a legislative character made under such a law;

that is prescribed by the regulations.

(3) Each of the following is a general State industrial law:

(a) the Industrial Relations Act 1996 of New South Wales;

(b) the Industrial Relations Act 1999 of Queensland;

(c) the Industrial Relations Act 1979 of Western Australia;

(d) the Fair Work Act 1994 of South Australia;

(e) the Industrial Relations Act 1984 of Tasmania.

(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies”

[8] Section 29 of the Act provides:

“29 Interaction of modern awards and enterprise agreements with State and Territory laws

(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

(a) any law covered by subsection 27(1A);

(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.”

[9] Further, s.27 of the Act states:

“27 State and Territory laws that are not excluded by section 26

(1A) Section 26 does not apply to any of the following laws:

(a) the Anti-Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(c) the Anti-Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti-Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti-Discrimination Act of the Northern Territory.

(1) Section 26 does not apply to a law of a State or Territory so far as:

(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or

(c) the law deals with any non‑excluded matters; or

(d) the law deals with rights or remedies incidental to:

(i) any law referred to in subsection (1A); or

(ii) any matter dealt with by a law to which paragraph (b) applies; or

(iii) any non-excluded matters.

(2) The non-excluded matters are as follows:

(a) superannuation;

(b) workers compensation;

(c) occupational health and safety;

(d) matters relating to outworkers (within the ordinary meaning of the term);

(e) child labour;

(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;

(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2-2 to long service leave;

(h) leave for victims of crime;

(i) attendance for service on a jury, or for emergency service duties;

(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;

(k) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(l) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(m) workplace surveillance;

(n) business trading hours;

(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;

(p) any other matters prescribed by the regulations.”

RELEVANT PROVISIONS OF THE AGREEMENT

[10] The dispute settlement procedure is set out at cl.30 of the Agreement:

“30 DISPUTE RESOLUTION

a) If a dispute relates to:

i. A matter arising under the agreement; or

ii. The National Employment Standards;

This clause sets out procedures to settle the dispute.

b) An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.

c) 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 supervisor. Where initial discussions cannot resolve the dispute, the parties shall refer it to the next level of management for discussion. A matter that remains unresolved after further discussions can then be referred to the General Manager.

d) If the forgoing discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to FWC. FWC will attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation;

e) If the dispute remains unresolved following d), the process is exhausted unless all parties agree to have the dispute arbitrated by FWC to make a determination that is binding on the parties.

f) Note: If FWC arbitrates the dispute, it may also use the powers that are available to it under the FW Act.

g) A decision that FWC makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.

h) While the parties are trying to resolve the dispute using the procedures in this clause:

i. An Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

ii. An Employee must comply with a direction given by Pacific National to perform other available work at the same workplace, or at another workplace, unless:

1. The work is not safe; or

2. Applicable occupational health and safety legislation would not permit the work to be performed; or

3. The work is not appropriate for the Employee to perform; or

4. There are other reasonable grounds for the Employee to refuse to comply with the direction.

i) The parties to the dispute agree to be bound by a decision made by FWC in accordance with this clause.” [Emphasis added]

[11] The dispute related to an alleged inconsistency between the RSNL Regulations and cl.9.2 of the Agreement, as set out:

“9.2 Methods of Arranging Ordinary Working Hours

…

(k) Pacific National Queensland Coal may require the following crew configurations to work up to a maximum of 12 hours of duty from sign on to sign off:

• Two Driver Class 1 or;

• One Driver Class 1 and a Driver Class 2 / Driver Assistant

(l) Pacific National Queensland Coal may require a Driver Class 1 to undertake Driver Only Operations (DOO) working up to a maximum of 9 hours of duty from sign on to sign off with the appropriate control measures to manage the risk of work-related fatigue.

(m) Pacific National Queensland Coal may require a Driver Class 1, qualified in the relevant locomotive power, to work a solo/sit shift for up to 12 hours with the appropriate control measures to manage the risk of work-related fatigue.

…”

[12] Clause 12 of the Agreement classifies a Driver Class 1 as an employee “trained and qualified in locomotive operations to DOO mainline standard and who leads a team (including mentoring Trainees, Driver Assistants and Class 2 Drivers) and is responsible for safety standards. This role will also be required to undertake locomotive driving operations.”

[13] Clause 7 of the Agreement states that a solo/sit shift “requires a Driver Class 1 qualified in the relevant locomotive power to monitor a live locomotive/consist at a location where it is not required to move.”

[14] In contrast to the Agreement, which provides for rostering of 12 hours on a solo/sit shift, the RSNL Regulations (set out below) allow for a maximum of nine hours. Section 8 of Schedule 2 of the RSNL Regulations now provides as follows:

“8 Working hours for rail safety workers driving freight trains

The following work scheduling practices and procedures apply to a rail safety worker who drives a freight train:

(a) in the case of a 2 driver operation where the second driver is a qualified train driver (including a qualified train driver who is learning a route or undergoing an assessment)—the maximum shift length to be worked is 12 hours;

(b) in the case of a 1 driver operation—the maximum shift length to be worked is 9 hours;

(c) there is to be a break of at least 12 continuous hours between each shift worked by the rail safety worker if the worker ends a shift at the home depot;

(d) there is to be a break of at least 8 continuous hours between each shift worked by the rail safety worker if the worker ends a shift away from the home depot and the break is taken away from the home depot;

(e) in any 14 day period—the rail safety worker may work a maximum number of 12 shifts and, in any event, not more than 132 hours.” [Emphasis added]

SUMMARY OF THE RESPONDENT’S SUBMISSIONS ON JURISDICTION

[15] The Respondent submitted that the Commission did not have jurisdiction to deal with the dispute as it was not a matter arising under the Agreement. The Respondent submitted that the Commission does not have power to determine whether an inconsistency exists between the RSNL Regulations and the Agreement or otherwise exercise any power under s.29 of the Act to deal with any inconsistency. Furthermore it was submitted that the Commission does not have jurisdiction to determine the meaning or application of a Queensland law.

[16] It was submitted that the plain meaning of cl.9.2(l) and (m) enabled the Respondent to roster an employee for up to 12 hours when performing a solo/sit shift. The Respondent submitted that the dispute related to “the application of the RSNL Regulations to work scheduling practices for a shift where a Driver Class 1 qualified in the relevant locomotive power to monitor a live locomotive/consist at a location where it is not required to move.” 2 It was submitted that there was no dispute concerning the terms of the relevant clause.

[17] The Respondent submitted that the RSNL Regulations do not apply to these shifts as per the clause and that it is not in breach of its scheduling practices. The result being, the Respondent submitted, was that the dispute arose under the RSNL Regulations and not the Agreement.

[18] The Respondent submitted that s.29 of the Act does not operate where a prescribed State law is inconsistent with the terms of an enterprise agreement, and that an enterprise agreement cannot also deal with the same subject matter as a State law. It was submitted, “[i]n order to determine whether an inconsistency of the kind contemplated by section 29 of the FW Act exists, the Commission would necessarily need to make a finding as to the application of the RSNL Regulations – this is simply something the Commission is not empowered to do under the FW Act.” 3

[19] Similarly, the Respondent submitted that the RSNL Regulations did not confer jurisdiction on the Commission to make a determination, in respect of compliance or enforcement of these regulations, and relied on the decision in Nugent v City of Wanneroo that considered a dispute arising in respect of the Workers Compensation Injury Management Act 1981 (WA). 4 Commissioner Williams held there was no jurisdiction to arbitrate the dispute, as the relevant legislation to that dispute (the Workers Compensation Injury Management Act 1981 (WA)) conferred exclusive jurisdiction on the statutory arbitrator to deal with matters relating to workers compensation and therefore, finding otherwise would be in contravention of s.29 of the Act.

[20] In relying on this proposition, the Respondent submitted that similarly, the Rail Safety Regulator held a similar role:

“41. The RSNL Regulations are published under section 265 of the Rail Safety National Law, on the NSW legislation website, and apply in Queensland pursuant to sections 3 and 4 of the Rail Safety National Law (Queensland) Act 2017.

42. The Rail Safety National Law establishes what could be described as an [sic] self-contained and exhaustive regime for ensuring compliance with the RSNL Regulations:

(a) the Officer of the National Rail Safety Regulator (ONRSR) is established under section 12;

(b) section 13 sets out the functions of ONRSR including, relevantly:

13(1)(e) to monitor, investigate and enforce compliance with this Law

(c) rail safety officers may be appointed under section 135 to exercise the functions and powers conferred by section 140 including:

(i) providing information and advice about compliance with the law;

(ii) requiring compliance with the law through the issuing of notices; and

(iii) investigating contraventions of the law and assisting in prosecution of offences;

(d) rail safety officers have enforcement powers under Part 5; and

(e) any legal proceedings for an offence under the Rail Safety National Law or the RSNL may only be taken by the Regulator of ONRSR, or the Minister according to section 220(2).

43. An overall reading of the Rail Safety National Law demonstrates that compliance and enforcement matters are to be dealt with exclusively within that framework, including only by ONRSR or the Minister.

44. Accordingly, it is a matter for ONRSR to determine the meaning of section 8 of part 2 of the RSNL Regulations; it is not a matter which the Commission is permitted to determine.” 5

SUMMARY OF THE APPLICANT’S SUBMISSIONS ON JURISDICTION

[21] The Applicant agreed that the Commission does not have jurisdiction to interpret the RSNL Regulations or otherwise to determine the application of those regulations. However, the Applicant submitted that the Commission is “charged with the responsibility to ensure that the clauses under the EA are applied correctly and where necessary, rule on their validity.” 6

[22] In this regard, the Applicant submitted that cl.9.2(m) of the Agreement was now inconsistent with or superseded by the relevant occupational health and safety law (that is, the amended RSNL Regulations) and therefore, rendered cl.9.2(m) a “non-allowable” matter pursuant to s.29 of the Act.

[23] In respect of this submission, the Applicant stated as follows:

“14. Section 29 of the Fair Work Act 2009 clearly articulates that an enterprise agreement prevails over State or Territory laws to the extent of an inconsistency. However, s29(2) contains exceptions which then refer to subsection 27(1A), 27(1)(b), (c) or (d). S27(1)(d)(iii) refers to non-excluded matters.

15. Contained within the non-excluded matters list is “occupational health and safety.”

16. Therefore, the RTBU submits that the Fair Work Act 2009 supports our position which is that by operation of the Fair Work Act 2009, the regulation to restrict a DOO to 9 hours, overrides 9.2(m) of the Enterprise Agreement and makes the provision unenforceable.” 7

[24] The Applicant alleged that the Respondent’s current roster arrangements are in breach of the RSNL Regulations (as interpreted by the Office of the National Rail Safety Regulator). The Applicant refuted that it was seeking for the Commission to interpret the RSNL Regulations, rather to determine the application of a particular provision of the Agreement.

CONSIDERATION

[25] This decision concerns a jurisdictional objection raised by the Respondent, that a dispute filed by the Applicant, in relation to an alleged inconsistency between the provisions of a State law and the Agreement, was not a matter arising under the Agreement in accordance with the dispute settlement procedure. The Rail Safety National Law is a harmonised piece of legislation, each Australian State and Territory having adopted the Rail Safety National Law, after it was first enacted in South Australia.

[26] In summary terms, the Applicant alleged that a dispute arose that invokes the application of s.29 of the Act, being the interaction between cl.9.2(m) of the Agreement (concerning the working hours of freight train drivers) and the amended s.8(b) of Schedule 2 of the RSNL Regulations. That is, the Agreement allowed for rostering of solo/sit shifts up to 12 hours and the regulation prescribes solo/sit shifts of only up to nine hours. The Applicant submitted, in accordance with s.29, in terms of the interaction between the Agreement and State legislation, the Agreement should prevail over the level of inconsistency, excluding where the State legislation deals with matters related to “occupational health and safety.”

[27] The Respondent argued that the dispute was not jurisdictionally competent for three substantive reasons: the dispute did not arise under the Agreement; the dispute required the Commission to determine whether there was an inconsistency between the RSNL Regulations and the Agreement, involving an exercise of power under s.29 of the Act, which the Commission was not empowered to do; and that the dispute was beyond jurisdiction as it involved the interpretation of a Queensland legislative instrument.

[28] The Full Bench in The Australian Workers’ Union v MC Labour Services Pty Ltd (MC Labour Services) held that the Commission’s power to deal with a dispute under an enterprise agreement “depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or other person).” 8

[29] Clause 30(a)(i) of the Agreement confers jurisdiction on the Commission to deal with disputes relating to “matter[s] arising under the agreement.” In MC Labour Services, in considering the validity of the steps in a disputes procedure, the Full Bench stated:

“…Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.” 9

[30] This can be distinguished from cases where the Commission is tasked with interpreting the provisions of an enterprise agreement in the course of a private arbitration, as was the case in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Kentz). 10 In Kentz, the issues in dispute were provisions in the Kentz (Australia) Pty Ltd Ichthys Onshore Construction Greenfields Agreement relating to notice of termination and rest and recreation. The Full Bench held:

“[71] In exercising the power of private arbitration afforded to the Commission, the Commissioner had power to arbitrate an outcome to resolve the dispute over matters arising under the Kentz Agreement. In doing so she was authorised to form conclusions as to the legal rights and liabilities of the parties to the Kentz Agreement and give a decision expressing a conclusion as to the operation of the relevant terms of the Kentz Agreement, in order to discharge her role in the dispute resolution procedure to resolve disputes between the parties to the Kentz Agreement, in furtherance of the objective of the parties of avoiding the escalation and providing prompt resolution of disputes or grievances.

[72] Commissioner Bissett received submissions and evidence in relation to the issues in contention, considered them and made findings in relation to the matters of fact and interpretation in dispute, in order to discharge her responsibility in private arbitration to resolve the dispute. The Commissioner was authorised to make findings in the course of the private arbitration concerning the operation of the relevant provisions of the Kentz Agreement for the purpose of resolving the dispute. The Commissioner was not “declaring [an] opinion about the legal position and only doing that for its own sake”.

[73] The Commissioner’s conclusions were not a binding declaration of rights. The findings involved the formation of an opinion on a matter of interpretation required in discharging the arbitral function afforded to her by the parties for the purpose of resolving the dispute before her. The Commissioner did not seek to or purport to make a judicial determination. The dispute was clearly one in respect of a matter arising under the Kentz Agreement and, in our view, the Commissioner did not consider any matters outside the jurisdiction reposed in the Commission by the dispute settlement procedure in clause 18 of the Kentz Agreement.

[74] The decision of the Commissioner arising from the arbitration is not a conclusive or legally binding determination of the rights and obligations of the parties in the Kentz Agreement by way of a judicial determination reserved for a Chapter III Court. Having been made on the basis of a power of private arbitration afforded to her by the agreement of the parties, the Commissioner’s decision is not binding of its own force. Rather, its effect, depends on the law which operates with respect to it, having regard to the terms of the Kentz Agreement.” 11

[31] In dealing with the dispute application, there is no jurisdictional basis for the Commission to find that the provisions of the Agreement are invalid. This would necessarily involve the exercise of judicial power. That is not to say however, that the dispute is not “a dispute that relates to a matter arising under the agreement”. In accordance with these authorities, the Commission is not restrained from interpreting the provisions of the Agreement. As articulated in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Unilever Australia Trading Limited, 12 expressing a view as to the operation of provisions in enterprise agreements is fundamental “in order to discharge the Commission’s role in the dispute resolution procedure to resolve disputes between the parties to the Agreement.”13 Currently the Applicant submits that the dispute has arisen, given the operationally different maximum shift lengths for solo/sit shifts, as per the Agreement and the regulation.

[32] In Nugent v City of Wanneroo (as referred to by the Respondent), 14 Commissioner Williams declined to exercise the jurisdiction of the Commission with regard to the interpretation of an enterprise agreement, as a provision of the Workers Compensation Injury Management Act 1981 (WA), explicitly stated that the type of dispute filed by Mr Nugent, could only be considered by the statutory arbitrator. The Commissioner held:

“[58] Consequently both clause 9−Dispute Resolution Procedure and subclause 30.6 of the Agreement, in the context of this dispute, apply subject to the Workers Compensation Act.

[59] Section 176 of the Workers Compensation Act states that any proceedings for the determination of a dispute as provided for in 176(1) is not capable of being brought other than under the Workers Compensation Act and that the arbitrators established under the Workers Compensation Act have exclusive jurisdiction to hear and determine all such disputes. Section 29 of the Act in this case requires that the terms of the Agreement are applied subject to this law of the State. For the Commission to determine the dispute before it would be inconsistent with this State law. These provisions of the State law therefore exclude the Commission hearing and determining a dispute as to whether or not Mr Nugent was injured at work.

[60] Consequently I uphold the jurisdictional objection of the respondent and this application will be dismissed.” 15

[33] In Wanneroo, disputes concerning workers compensation were explicitly excluded by the operation of s.176 of the Workers Compensation Injury Management Act 1981 (WA), which stated:

“176. Exclusive jurisdiction of arbitrators

(1) In this Part—

dispute means —

(a) a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;

(b) a dispute in connection with an obligation imposed under Part IX;

(c) any other dispute or matter for which provision is made under this Act for determination by an arbitrator.

(d) any other matter of a kind prescribed by the regulations.

(2) A proceeding for the determination of a dispute is not capable of being brought other than under this Part.

(3) Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.” [emphasis added]

[34] In the present matter, the Respondent similarly argued that on an “overall reading” of the Rail Safety National Law demonstrates that it is an exclusive jurisdiction. This submission was supported by reference to the statutory appointment of rail safety officers and their functions. Importantly however, there are no provisions providing for an exclusive arbitrator for rail disputes or explicitly excluding or limiting the resolution of disputes by means outside of the Rail Safety National Law legislative framework. In the absence of a provision in the relevant statute (prescribing an alternative exclusive jurisdiction for settling such disputes) the present matter can be distinguished from Wanneroo.

CONCLUSION

[35] Importantly, this dispute relates to a matter arising under cl.9.2(m) of the Agreement; that being the maximum allowable rostered shift length of solo/sit drivers. The application of the rostering of drivers’ solo/sit shifts is set as 12 hours in cl.9.2 of the Agreement. The dispute relates to the operation of this clause and its relationship with the RSNL Regulations: the differing shift lengths set out in cl.9.2 and s.8(b) of Schedule 2 of the RSNL Regulations give rise to a dispute that relates to the operation of “a matter arising under the Agreement,” as per cl.30. The regulation provides for a maximum shift length of 9 hours for “1 driver operations.” The jurisdiction to deal with a dispute, as per the disputes procedure is clear, as it raises a dispute relating to a matter arising under the Agreement (that is, cl.9.2(m)). The jurisdiction in relation to this dispute must be considered in conjunction with s.26 of the Act, which states that a provision of an enterprise agreement prevails where it is inconsistent with a State law, except as per s.27, in respect of “non-excluded matters”, which include matters of “occupational health and safety.” On this basis, there is a live dispute over the continuation of rostering of solo/sit drivers for 12 hours, as per the Agreement.

[36] For the aforementioned reasons, the Respondent’s jurisdictional objection is dismissed. The jurisdiction to deal with the dispute is upheld, in accordance with cl.30 of the Agreement. The matter will be listed for conference.

[37] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR606756>

 1   Rail Safety National Law (Queensland) s.265.

 2   Submissions of Pacific National dated 9 February 2018 at para 18.

 3   Ibid at para 36.

 4   [2016] FWC 7159.

 5   Submissions of Pacific National dated 9 February 2018 at paras 41 – 44.

 6   Applicant’s Submissions on Jurisdiction dated 16 February 2018 at para 3.

 7   Submissions for the Applicant dated 23 January 2018 at paras 14 – 16.

 8   [2017] FWCFB 5032 at [25].

 9 Ibid at [37].

 10   [2016] FWCFB 2019.

 11   Ibid at [71] – [74].

 12   [2016] FWC 7600.

 13 Ibid at [86].

 14   [2016] FWC 7159.

 15   Ibid at [58] – [60].