Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority t/a Queensland Rail
[2018] FWCFB 2469
•17 MAY 2018
| [2018] FWCFB 2469 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Transit Authority t/a Queensland Rail
(C2018/177)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2017] FWC 6029 of Commissioner Spencer at Brisbane on 22 December 2017 in matter number C2017/4949.
Introduction and background
[1] The Australian Rail, Tram and Bus Industry Union (RTBU) has lodged a notice of appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act) against a decision issued by Commissioner Spencer on 22 December 2017 1 (Decision) in exercise of arbitral dispute resolution powers under cl 21 of the Queensland Rail Traincrew Enterprise Agreement 2017 (2017 Agreement). It is not in dispute that the RTBU has a right to appeal the Decision, subject to the grant of permission to appeal. The Decision was concerned with a dispute as to whether the Queensland Rail Transit Authority (Queensland Rail) had complied with the procedures prescribed in cl 30 of the 2017 Agreement concerning the recruitment of train drivers and guards. In relation to the dispute, the Commissioner was asked by the parties to the dispute, the RTBU and Queensland Rail, to determine the following question:
“Has Queensland Rail complied with clause 30 of the Queensland Rail Traincrew Enterprise Agreement 2017 in relation to the recruitment of drivers and guards?”
[2] Clause 30 of the 2017 Agreement relevantly provides:
“30 Vacancies
Recruitment principles
30.1 The Business is committed to providing career pathways for existing employees. This will be a required consideration when undertaking recruitment and selection processes.
Recruitment / transfer process
30.2 A decision will be made by the Business at the outset whether the position/s in question requires transfer or recruitment. Vacancies and confirmation of appointments will appear in the appropriate Business publication.
30.3 Processes will then be undertaken in one of the following ways:
Driver recruitment
30.4 A selection process will be undertaken through the following steps:
Step 1 Driver transfer within the Business.
Step 2 Trainee Driver roles will be advertised to current qualified Guards.
Step 3 Any vacancies not filled by step 1 or step 2 will be advertised internally (Business-wide).
Step 4 Any vacancies not filled by step 1, step 2 or step 3 will be advertised externally.
Guard recruitment
30.5 A selection process will be undertaken through the following steps:
Step 1 Guard transfers within the Business.
Step 2 The vacant trainee Guard roles will be advertised internally (Businesswide).
Step 3 Any vacancies not filled at step 1 or step 2 will be advertised externally.
. . .”
[3] The 2017 Agreement took effect on 6 April 2017. At relevant times before that date, Queensland Rail had been administratively applying the Queensland Rail Traincrew Certified Agreement 2013 (2013 Agreement). The 2013 Agreement was made and approved pursuant to the Industrial Relations Act 1999 (Qld). However in the High Court decision in CEPU v Queensland Rail 2 it was determined that Queensland Rail, being a trading corporation, was a “national system employer” under the FW Act, with the result that the FW Act applied to Queensland Rail and rendered invalid the relevant provisions of the Queensland Act. This meant that the 2013 Agreement did not have legal operative effect. The recruitment procedure in the 2013 Agreement did not contain Step 3 in relation to drivers and Step 2 in relation to guards contained in cls 30.4 and 30.5 respectively of the 2017 Agreement.
[4] The factual background to the matter may be summarised as follows. In November 2015, Queensland Rail made a business decision to create 100 additional driver positions and 100 additional guard positions, and commenced action to fill those positions. On 24 October 2016, Queensland Rail decided to increase the additional number of positions to 200 drivers and 200 guards. In May 2017 there was a review of master rosters across the entire network which identified vacancies in the system. There was a dispute between the parties as to whether this constituted or led to a decision to recruit for the purpose of cl 30 of the 2017 Agreement.
[5] The steps taken by Queensland Rail in respect for recruitment for driver positions pursuant to these decisions seem to have been as follows:
● Positions were advertised to current qualified guards in November 2015, April 2016 and June 2017.
● Business-wide internal advertising occurred in October 2016.
● External advertising occurred in February 2017.
● Further concurrent internal and external advertising took place in August 2017.
[6] In relation to guards, the following steps were taken:
● Business-wide internal advertising occurred in November 2015 and October 2016.
● External advertising took place concurrently with internal advertising in November 2015.
● Further concurrent internal and external advertising took place in August 2017.
[7] There is some factual dispute about the stage at which Queensland Rail has been filling the new positions by way of transfers of existing drivers and guards. Queensland Rail contends it has been doing this on an ongoing basis since the decisions to create the additional positions were made, but the RTBU contends that there was no call for transfers until August 2017. It may be noted that the issue of transfers is of limited relevance since an internal transfer does not result in any net change to the number of drivers or guards, as the case may be, as the RTBU conceded.
[8] Since the May 2017 decision, further recruitment has occurred to fill positions that have become vacant due to dismissal, resignation or retirement in order to maintain the total establishment number.
The Decision
[9] The Decision records that the RTBU advanced the following contentions before the Commissioner in support of its case that Queensland Rail had not complied with cl 30 of the 2017 Agreement:
● there were three relevant decisions to recruit: in late 2015, in October 2016 and in May 2017;
● each recruitment decision separately triggered the procedure required by cl 30 of the 2017 Agreement, and in complying with that procedure it was not permissible to rely on steps taken in relation to previous recruitment decisions;
● in relation to the 24 October 2016 decision to recruit additional drivers, cl 30.4 had not been complied with in that Step 3 was taken in October 2016, Step 2 was taken in June 2017, Step 1 was not taken until August 2017, and in August 2017 internal and external advertising (Steps 3 and 4) took place at the same time;
● Queensland Rail had therefore not completed the steps in the order required, and had combined steps in a manner not permitted by cl 30.4;
● in relation to the 24 October 2016 decision to recruit additional guards, cl 30.5 had not been complied with in that Step 1 had taken place in August 2017, and then combined internal and external advertising (Steps 2 and 3) had occurred, so that Queensland Rail had not completed the Step 1 transfers before moving to the next step, had not completed the steps in the order required, and had combined steps in a manner not permitted by cl 30.5;
● as to the May 2017 decision to recruit drivers, clause 30.4 had not been complied with in that Step 2 had been taken on 12 June 2017 before Step 1 in August 2017, and Step 3 had been taken together with further internal advertising on 31 August 2017, so that Step 1 had not been completed before moving to the next step, the steps had not been completed in the required order, and steps had been impermissibly combined;
● in relation to the May 2017 decision to recruit guards, cl 30.5 had not been complied with in that Step 1 occurred in August 2017, and internal advertising (Step 2) took place at the same time as external advertising (Step 3), so that Step 1 had not been completed before moving on to the next step, the steps had not been completed in the required order, and steps had impermissibly been combined. 3
[10] In relation to the 24 October 2016 decision to recruit an additional 100 drivers and 100 guards, it was an important element of the RTBU’s case that upon the 2017 Agreement coming into effect on 6 April 2017, the procedure in cl 30 was required “to be commenced again” for any recruitment process already underway, and any step already undertaken in that process was not to count for the purpose of compliance with cl 30. 4 The Decision recorded that the RTBU conceded that, if the steps taken before 6 April 2017 could be taken into account, compliance had been achieved.
[11] In relation to the purported May 2017 recruitment decision, the RTBU abandoned its contention of non-compliance with cl 30 in closing submissions on the basis of evidence which demonstrated that the internal and external advertising which occurred in August 2017 did not relate to these vacancies, that Step 1 had been complied with, and Queensland Rail did not have any intention to proceed with the further steps of the recruitment process. 5
[12] In the Decision, the Commissioner characterised the late 2015 decision to recruit an additional 100 drivers and 100 guards and the October 2016 decision to increase this to 200 drivers and 200 guards as constituting, in effect, a single business decision. The Commissioner said in this respect:
“[73] The evidence was that Master Roster Committee Report identified that the initial 100/100 recruitment would be inadequate to fulfil vacancies created as a result of the new Moreton Bay rail link, and that accordingly, the recruitment was expanded to 200/200. Expanding the recruitment did not constitute a separate business decision in accordance with cl.30.2, as the initial decision in late 2015, related to the recruitment of drivers and guards for the specific purpose of rectifying identified driver and guard shortages. The further shortages were only realised later, on reviewing the numbers and were related to the original business decision that dealt with the deficiencies in the train crew numbers. Accordingly, the further revision of numbers to 200/200 did not constitute a separate business decision and represented a modification of the initial decision to recruit made in late 2015.”
[13] The Commissioner then addressed the question of whether Queensland Rail had complied with cl 30 in respect of this single business decision. The Commissioner’s reasoning and conclusion in relation to this question was as follows (footnote omitted):
“[74] The question turns on whether Queensland Rail has complied with the steps with respect to the business decision. As previously stated, this matter turns on whether the conduct of Queensland Rail prior to the commencement of the 2017 Agreement may be taken into account.
[75] Whilst it is the case that the use of the word “will” in cl.30.2 is prospective, the plain and ordinary meaning of the clause merely means that the business must make a decision at the outset. However, there is also nothing in the clause that suggests that any previous recruitment steps in relation to a business decision (including a business decision taken under the prior agreement) are to be disregarded. It would be an entirely artificial conclusion to find that the wording of the clause means, that recruitment campaigns underway at the time of the commencement of the 2017 Agreement, are to be construed as new business decisions and for the process to recommence. Active steps had been taken over the preceding months, since the decision was first made in late 2015 (and the numbers refined later), and these have been taken into account in considering compliance with cl.30.
[76] Given that on the facts and circumstances of this matter only one business decision was made, there is no impediment to considering the conduct of Queensland Rail prior to the commencement of the 2017 Agreement. A further new business decision was not made, the 200/200 campaign was a refinement of the business decision. Taking into account the agreed position of the parties, that cl.30 in the 2017 Agreement provided an additional step, 52 and the actual chronology of the recruitment steps undertaken, such comply with cl.30. Therefore, it was not necessary to restart the process. However, any further business decisions would now require commencement of the process in line with cl.30.”
[14] On that basis, the Commissioner determined that the answer to the question posed for determination was “yes”.
Appeal grounds and submissions
[15] The RTBU’s appeal grounds were as follows:
“1. The Commissioner erred in:
a. answering the question to be determined in the affirmative.
b. in finding that the late 2015 recruitment decision (100/100 decision) and the 24 October 2016 decision (200/200 decision) were one business decision for the purposes of clause 30.
c. in finding that the 200/200 decision was not a decision for the purposes of clause 30.
d. in finding that the Respondent could continue its external advertisement process for the 100/100 decision and/or the 200/200 decision.
2. Answering the question to be determined in the affirmative was not open to the Commissioner on the facts including for the following reasons:
a. The Respondent had not yet complied with the requisite recruitment steps in clause 30 for the 200/200 decision and had jumped to external recruitment for drivers and guards.
b. At the time of recruiting externally, the recruitment from the 100/100 decision had already been completed and therefore the Respondent was unable to rely on that decision for the purposes of compliance with clause 30 when making a decision to recruit externally.
c. At the time of recruiting externally, the recruitment for the 200/200 decision had already been completed for guards, and therefore, even if the Commission viewed the 100/100 and 200/200 decision as one decision for the purposes of clause 30, the Respondent was unable to use an external recruitment process for guards as that process had already been completed.
3. The Commissioner’s interpretation of clause 30 involves an error of law in that it allows all subsequent recruitment decisions, as long as they pertain loosely to the same underlying reasoning as an original decision, to avoid the recruitment steps in clause 30. This cannot be the intention of the clause and runs contrary to its clear and ordinary meaning.”
[16] In support of the above appeal grounds, the RTBU submitted that:
● on the proper interpretation of cl 30, it was not possible to characterise the late 2015 recruitment decision and the October 2016 recruitment decision as a single decision, since the procedures in the clause were triggered whenever a decision was made pursuant to cl 30.2 to recruit to fill vacant positions;
● the characterisation of the October 2016 decision as part of the decision taken in late 2015 was divorced from industrial realities, since it would permit any future recruitment to be part of a previous recruitment decision and thus allow the requirements of cl 30 to be avoided and left without work to do;
● the evidence demonstrated that there were two distinct decisions – the first was the result of the shortages created by the Moreton Bay rail link, and the second due to general traincrew shortages;
● recruitment for the 200 guards positions had already been completed by the time of the August 2017 external advertising, which was for the purpose of backfilling vacancies caused by guards who had taken up driver positions;
● Queensland Rail was using the rationale of a single business decision to avoid the application of cl 30 to any vacancies which might arise now or in the future which left it short of the establishment numbers fixed by the late 2015 and October 2016 recruitment decision, where this was simply the result of natural attrition; and
● in relation to the October 2016 decision, cl 30 had not been complied with because the steps had not been taken in their proper order, thus avoiding the priority which cl 30.1 intended to be given to career pathways for existing employees in undertaking recruitment and selection processes.
[17] The RTBU contended that permission to appeal should be granted in the public interest because:
● the appeal concerned the proper construction of the 2017 Agreement, and had the capacity to significantly affect how Queensland Rail managed recruitment now and into the future;
● the Decision effected an injustice as existing employees had not been afforded the opportunity to apply for guard and driver roles as provided for under the 2017 Agreement; and
● the Decision was counter-intuitive upon a plain English interpretation of cl 30.
[18] Queensland Rail argued that the Decision was not attended by appealable error for the following reasons:
● it was open to the Commissioner to characterise the late 2015 and October 2016 recruitment decisions as constituting one business decision with a common business purpose for the purpose of cl 30;
● once it was accepted that there was only one relevant business decision, it was apparent that the steps required in cls 30.4 and 30.5 of the 2017 Agreement had been complied with;
● the evidence did not support the proposition that there remained vacancies which needed to be filled at the time Queensland Rail conducted external advertising;
● the decision to increase the total headcount of drivers and guards by 200 each did not mean that recruitment numbers were necessarily confined to the number of 200 in each category, since it was also going to be the case that the recruitment steps would result in guards taking up trainee driver positions, leading to a need for more than 200 guards to be recruited to achieve the increase in headcount;
● there was a need to recruit at least 342 trainee guards, because in addition to the 200 increase another 114 were required to replace guards who were to become trainee drivers and 28 to cover natural attrition;
● as at the time of the external advertising in August 2017, only 263 internal applicants had been offered positions as trainee guards;
● whenever a decision to increase headcount was taken, that encompassed necessarily any subsequent requirement to backfill positions; and
● all recruitment steps undertaken to date had been in pursuance of the October 2016 decision to increase the headcount by 200 in each category.
Consideration
[19] In considering the RTBU’s appeal, it must be noted at the outset that there is some difficulty in identifying the precise scope of the issues that were to be determined at first instance. This is largely the result of the broad and unconfined nature of the question which the parties posed for determination by the Commissioner. We consider it was unhelpful to ask the Commissioner to answer a general question concerning compliance with cl 30 in respect of recruitment of drivers and guards, rather than to deal with precise allegations of non-compliance. 6 The question as formulated is not confined to any particular recruitment decision or number, or even to any particular time period. As is discussed shortly, this has led to issues arising in the appeal which it is not clear were identified as issues to be determined before the Commissioner at first instance.
[20] We do not consider that this is a matter in which it is appropriate to grant permission to appeal or necessary to do so in the public interest. We have reached this conclusion for three reasons.
[21] First, in dealing with the question posed for determination, the Commissioner focused on the matter which was the primary subject of the evidence and submissions before her, namely whether the recruitment processes undertaken to give effect to the decision in late 2015 to increase the number of drivers by 100 and guards by 100 also, and the decision in October 2016 to increase those numbers to 200 in each case, complied with cl 30. The submissions of the parties at first instance and before us were concerned, as was the Decision, with the questions of whether these were to be characterised as one or two decisions for the purpose of cl 30, and whether steps taken before the 2017 Agreement took effect on 6 April 2017 could be taken into account in assessing compliance with cl 30. Both these questions were premised upon an implicit acceptance that cl 30 had application upon it taking effect to the prior recruitment decision or decisions.
[22] We consider that this premise is plainly incorrect. Under the FW Act, an enterprise agreement cannot have retrospective effect in the proper sense - that is, impose or alter legal obligations effective from a date prior to the date upon which the agreement commences operation. Section 51(1) of the FW Act provides that an enterprise agreement does not impose an obligation on a person unless it applies to a person; s 52(1) requires an agreement to be in operation in order to apply to, relevantly, an employer; and s 54(1) provides that an enterprise agreement cannot take effect earlier than seven days after its approval by the Commission. Accordingly, cl 30 of the 2017 Agreement could not impose any legal obligation upon Queensland Rail operative at the time it took the decision in late 2015 to increase driver and guard numbers by 100 in each case, nor at the time of the October 2016 decision to adjust the increase to 200 in each case. That is the case regardless of whether they are treated as a single or separate decisions.
[23] An agreement can establish prospective obligations that are referable to past events. Thus it was theoretically possible for the 2017 Agreement to require Queensland Rail, on and from 6 April 2017, to undertake the recruitment steps identified in cls 30.4 and 30.5 in respect of the late 2015 and October 2016 recruitment decisions. However there is nothing in the language of cl 30 which suggests that the provision is to be read as operating in this way. If, notwithstanding the recruitment steps which had already been taken by Queensland Rail, it had been intended by those who made the 2017 Agreement that Queensland Rail “start again” on and from 6 April 2017 and follow the prescribed procedures in cl 30, express language would be expected to give effect to such an extraordinary course. There is no such express language. The prescribed procedures in cls 30.4 and 30.5 operate in respect of a decision under cl 30.2 to recruit to fill a vacant position or positions. Absent any qualifying language, cl 30.2 would on its ordinary meaning be read as applying to a recruitment decision taken on or after the commencement date of the 2017 Agreement. Clause 2.1 of the 2017 Agreement identifies that commencement date as being seven days after the approval of the agreement by the Commission, consistent with s 54(1) of the FW Act. Accordingly the 2017 Agreement did not apply to the late 2015 and October 2016 recruitment decisions, and there could be no proper basis to contend that Queensland Rail did not comply with cl 30 in relation to those decisions. Whether they constituted a single or separate decisions, and whether the steps taken prior to 6 April 2017 could be taken into account in assessing compliance, were irrelevant considerations.
[24] Second, the RTBU was unable to identify any practical consequence arising from its contentions of non-compliance with respect to the late 2015 and October 2016 recruitment decisions. Notwithstanding that it submitted that permission to appeal should be granted because the Decision manifested an injustice, it conceded (properly) at the hearing of the appeal that the evidence did not disclose that any of its members, or any Queensland Rail employee, had missed out on an opportunity to apply for one of the additional 200 driver positions or 200 guard positions because of the alleged non-compliance with cl 30 of the 2017 Agreement.
[25] Third, to the extent that in the appeal the RTBU contended that the “backfilling” of positions was being carried out contrary to the requirements of cl 30, it is far from clear that this issue was squarely raised at first instance as one to be determined by the Commissioner or that it was dealt with in the Decision. At best, it arose tangentially. As earlier mentioned, the inappropriately broad and general nature of the question posed by the parties for determination by the Commissioner meant that the RTBU was able to argue that its contention in this respect fell within the scope of the question and that the Commissioner erred by not dealing with it. However notwithstanding the scope of the question, we do not consider that permission should be granted in respect of this issue. The RTBU’s failure to properly identify this as a particular of its allegation of non-compliance with cl 30 before the Commissioner means that it should not now be given the opportunity to press the argument on appeal. Further, insofar as the RTBU’s contention relates to the “backfilling” of the positions of guards who have been successful in applying for trainee driver positions, we do not consider it has sufficient merit to justify the grant of permission to appeal. Under the 2013 Agreement (as well as the 2017 Agreement) the second required recruitment step for drivers was the advertisement of vacant positions to current qualified guards. Thus when the number of driver positions was increased first by 100 and then by 200, it could be regarded as inevitable that there would be a number of guards positions which would become vacant as a result of guards successfully applying for driver positions. The evidence demonstrated that 114 guard positions became vacant in this way, in addition to the 200 new guards positions that were required to be filled. That is, as a direct consequence of the October 2016 decision to increase driver and guard headcount by 200 in each case, the recruitment of a total of 314 guards was required. For the reasons already stated, no issue of non-compliance with cl 30 of the 2017 Agreement can properly arise with respect to the “backfilling” of the additional 114 guard positions because that arose from a recruitment decision or decisions to which the 2017 Agreement did not apply.
[26] It may be accepted that the position is different with respect to “backfilling” or recruitment in respect of vacancies which have arisen since 6 April 2017 as a result of the dismissal, resignation or retirement of drivers or guards - that is, by natural attrition. These are clearly vacancies to which cl 30 applies. They were not vacancies which existed at the time of the late 2015 or October 2016 recruitment decisions and cannot therefore be regarded as encompassed by those decisions. It cannot reasonably be suggested that the need to recruit for vacancies arising from natural attrition in order to maintain total establishment numbers is excluded from the operation of cl 30, since this would leave cl 30 with no work to do. That is, Queensland Rail cannot rely on the 2015 and 2016 recruitment decisions as justifying any future recruitment to meet the increase to headcount of 200 drivers and guards in circumstances where this precise number is never likely to be reached due to natural attrition.
[27] Insofar as the external advertising which occurred in August 2017 encompassed 28 guard vacancies that had occurred through natural attrition, cl 30 applied to those vacancies to the extent that they had occurred on or after 6 April 2017, and Queensland Rail was required to apply the steps in cl 30.5 in relation to those vacancies. However the RTBU did not at first instance specifically identify compliance with cl 30 in respect of those vacancies, or any future recruitment to fill vacancies arising from natural attrition, as an issue to be determined in the proceedings. As a consequence the issue was simply not dealt with by the Commissioner in the Decision. We do not consider it appropriate to grant permission to appeal to deal with that issue now. If the RTBU contends that there has been non-compliance with cl 30 in this respect, or it apprehends that Queensland Rail does not intend to comply with cl 30 in respect of vacancies arising from natural attrition in the future, it should raise a separate dispute concerning that matter under cl 21 of the 2017 Agreement so that it may properly be resolved or determined.
Conclusion
[28] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Diamond on behalf of the Australian Rail, Tram and Bus Industry Union.
J. Murdoch QC on behalf of the Queensland Rail Transit Authority t/a Queensland Rail.
Hearing details:
2018.
Brisbane:
19 March.
Printed by authority of the Commonwealth Government Printer
<PR606770>
1 [2017] FWC 6029
2 [2015] HCA 11
3 Decision at [42]
4 Decision at [70]
5 Transcript PNs 693-699.
6 See Farstad Shipping (Indian Pacific) Pty Ltd v MUA [2017] FWCFB 3317 at [24]
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