Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority T/A Queensland Rail - [2017] FWC 6029

[2017] FWC 6029 [Note: An appeal pursuant to s.604 (C2018/177) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Australian Rail, Tram and Bus Industry Union

v

Queensland Rail Transit Authority T/A Queensland Rail

(C2017/4949)

COMMISSIONER SPENCER

BRISBANE, 22 December 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – interpretation of clause 30 of the Agreement – identified need for traincrew – recruitment and advertising steps.

INTRODUCTION

An application (matter number C2017/4949) was made pursuant to s.739 of the Fair Work Act 2009 (the Act) by the Australian Rail, Tram and Bus Industry Union (the RTBU), in relation to an alleged dispute arising under the Queensland Rail Traincrew Enterprise Agreement 2017 (the 2017 Agreement) with the Queensland Rail Transit Authority T/A Queensland Rail (Queensland Rail). The dispute related to the recruitment of train drivers and guards (the substantive dispute).

The application was related to two other dispute applications. On 31 August 2017, Queensland Rail filed an application in matter number C2017/4811 (the initial dispute). A further dispute (matter number C2017/5597) filed by the RTBU, sought an arbitration to maintain the relevant “status quo” (the status quo dispute).

In summary terms, the initial dispute (matter number C2017/4811) concerned Queensland Rail’s compliance with the provisions of the 2017 Agreement, relating to the advertising and recruitment of train drivers and guards. Queensland Rail sought an urgent listing of this matter on the day of filing and the matter was listed expeditiously that day. Following the conference, a Recommendation was issued, that stated in part:

“[5] As a result of conducting a conciliation conference in this matter, it is Recommended that Queensland Rail be able to undertake all necessary steps in order to activate and commence the proposed external advertising in the Courier Mail and online services.
[6] It is noted that Queensland Rail confirmed that this external advertising will be undertaken in tandem with internal organisation advertising.
[7] It is also Recommended that Queensland Rail initiate a meeting with the Respondent parties to discuss any associated recruitment and selection issues arising under the Agreement. Where residual issues remain for any party, with the general application of the associated recruitment and selection process, these may be referred for timely resolution before the Commission…”[1]

On 6 September 2017, the RTBU filed the present application (the substantive dispute), alleging Queensland Rail had not complied with cl.30 of the Agreement. A conference was held on 11 September and settlement offers were exchanged between the parties, however the matter was unable to be resolved. On 3 October 2017, the RTBU notified that they intended to progress the substantive dispute to arbitration.

Consent Directions were set for the filing of submissions and evidence for the substantive dispute, in relation to the agreed question for arbitration as set out below:

“Has Queensland Rail complied with clause 30 of the Queensland Rail Traincrew Enterprise Agreement 2017 in relation to the recruitment of drivers and guards?”

On 11 October 2017, the RTBU lodged a further application (matter number C2017/5597), seeking that the “status quo” that existed between the parties in relation to the advertising for the relevant positions, be preserved until the determination of the substantive dispute, in matter number C2017/4949 (the status quo dispute).

The status quo dispute was listed for hearing on 9 November 2017. On 8 November 2017, the parties agreed to resolve the matter on the basis that Queensland Rail would not commence issuing formal letters of appointment, until the determination of the substantive dispute. Queensland Rail set out in correspondence:

“Queensland Rail can clarify that its current intentions are as follows:
·The current selection and screening process for internal and external applicants in relation to its August 2017 advertising (external / internal applicants) will continue;

·Formal appointment letters will be sent out at a date yet to be determined, which Queensland Rail anticipates would not be before the Commission’s decision in the broader matter (C2017/4949).”

The substantive dispute was heard in Brisbane on 27 November 2017. The RTBU was represented by Mr M. Diamond, National Legal Officer of the RTBU and Ms C. Jones, Industrial Officer of the RTBU, and Queensland Rail was represented by Mr J. Murdoch of Counsel, instructed by MinterEllison. The Respondent was granted permission to be represented pursuant to s.596 of the Act.

Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT PROVISIONS OF THE ACT

Pursuant to s.739 of the Act:

“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.”

RELEVANT PROVISIONS OF THE 2017 AGREEMENT

Relevantly, cls.21.5 and 21.6 of the 2017 Agreement set out the status quo and dispute settlement procedure provisions:
“21 Disputes Procedure
…

21.5     While this procedure is being followed, status quo will apply. However, employees will not be required to perform any work where the employee holds a reasonable concern about an imminent risk to the employees’ health or safety.
21.6     The steps in this procedure are as follows:
Step 1:            In the event of a dispute an employee/s will attempt to resolve the dispute with the employee’s immediate supervisor. The status quo which existed prior to the emergence of the dispute shall be observed until the dispute is resolved.
Step 2:            If the dispute remains unresolved, the relevant manager and/or the manager’s representative, and the employee will attempt to resolve the dispute. Unless otherwise agreed such attempt will take place within five (5) days after the referral by the employee.
Step 3:            If the dispute remains unresolved, or consistent with this Agreement a dispute is commenced at this step, the employee will provide the Business with a written notice of dispute.
The written notice of dispute must contain these details:
(i)        The location of the dispute;
(ii)       The subject of the dispute;
(iii)      The particulars of the dispute;
(iv)      At least one proposed resolution of the dispute.
More senior management and the employee will attempt to resolve the dispute.
If the dispute is not resolved, the Business will issue to the employee a written notice setting out the Business’s decision. This notice will include, where relevant, the date of implementation, which will be no earlier than five (5) working days from the date of the notice. To avoid doubt, this means the disputed changes will not be implemented until the five (5) working day period has ended.
For the purposes of this clause a “working day” shall be any day other than Saturday, Sunday or public holiday.
Step 4:            Where the dispute remains unresolved, it may be referred to the FWC.
The FWC will first attempt to resolve the dispute by conciliation. The employee and the Business will act expeditiously and without delay to progress the dispute. Due consideration will be given to any recommendation made by the FWC.
Where the dispute pertains to the application or interpretation of this Agreement or an alleged breach of this Agreement and, where the dispute remains unresolved following conciliation, the FWC is authorised to resolve the dispute by arbitration.
To the extent necessary the following powers are conferred upon the FWC:
(i)        making procedural directions as to the time, place and conduct of the conciliation or arbitration;
(ii)       directing the Parties as to the manner of receiving submissions, including requiring formal submissions;
(iii)      hearing oral submissions;
(iv)      taking written submissions;
(v)       hearing evidence by oath or affirmation;
(vi)      conducting inspections;
(vii)     determine the representation of the Parties applying the same criteria as contained in s.596 of the Act.
The Business or an employee will not be represented by a legal practitioner during the conciliation and/or arbitration unless:
(i)        the consent of the other party to such representation is obtained; or
(ii)       the legal practitioner is a “permanent employee” of the Business or of the employee’s representative Organisation or Association; or
(iii)      where the FWC grants leave to appear in accordance with the powers granted herein.
Where the dispute is subject to private arbitration, the decision of the FWC is binding.”

The dispute related to the interpretation of cl.30 of the 2017 Agreement, as set out:

“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 2Trainee Driver roles will be advertised to current qualified Guards.

Step 3Any vacancies not filled by step 1 or step 2 will be advertised internally (Business-wide).

Step 4Any 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 2The vacant trainee Guard roles will be advertised internally (Businesswide).

Step 3Any vacancies not filled at step 1 or step 2 will be advertised externally.

Transfers

30.6 Transfers will be filled through the highest accumulation of transfer points. A transfer point is accumulated for every year (or part thereof) in the relevant grade.

In situations where points are of equal value the following additional criteria will be used:

·Length of Service in Traincrew;
·Length of Service in the Business and its former entities;
·Applicants applying for vacant positions need to be in the relevant grade;
·Sequence of service number.

30.7 Employees who are externally appointed to a North or West regional depot, or appointed to a Trainee Driver position in a North or West regional depot, are required to perform two (2) years’ service at that location (from date of appointment to the position) prior to being eligible to transfer to another location under clause 30.6.
Mandatory experience
30.8 The following experience is mandatory in order to be eligible to be appointed to the following positions:

30.8.1 Tutor Guard -three years’ experience in a Guard position;
30.8.2 Tutor Driver- three years’ experience in a Driver position;
30.8.3 Driver In Charge- five years’ experience in a Driver position;
30.8.4 Train Operations Inspector- five years’ experience in a Driver position.

Reversion to former position

30.9 Where an existing employee is accepted for employment in a position which requires the successful completion of training and or aptitude assessment as a precursor to commencing the new role, the employee shall have the ability to revert to their former substantive position (including reversion to their former depot) in the event of their inability to successfully complete the training and or aptitude assessment.”

The precursor provision to cl.30 of the 2017 Agreement, was cl.8 of the Queensland Rail Traincrew Certified Agreement 2013 (the 2013 Agreement):

“8 Recruitment and Transfers
8.1 How are employees recruited or transferred to positions?
A decision will be made by the Business at the outset whether the position/s in question require transfer or recruitment. Vacancies and confirmation of appointments will appear in the appropriate Queensland Rail publication.

Processes will then be undertaken in one of the following ways:

(i) Driver Recruitment

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 Business wide and externally (including external qualified Drivers).

(ii) Guard Recruitment

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 Business wide.

Step 3 Any vacancies not filled at step 1 or step 2 will be advertised externally.

(iii) Transfers

Transfers will be filled through the highest accumulation of transfer points. A transfer point is accumulated for every year (or part there of) in the relevant grade. In situations where points are of equal value the following additional criteria will be used:

·Length of Service in Traincrew;
·Length of Service in the Business and its former entities;
·Applicants applying for vacant positions need to be in the relevant grade.

*Driver transfers from Queensland Rail regional depots to SEQ will be appointed to Mayne depot until 1 August 2014. After this date all Driver transfers will be filled by the above process to the depot where the vacancy exists.

8.2 Will you need to serve a probationary period?
At commencement of employment, employees will complete an initial probation period of 3 months. This does not apply to employees appointed prior to the commencement of this Agreement. Should the Business and employee determine a shorter or longer probation period, this will be captured in a written agreement prior to the employee’s commencement.”

SUMMARY OF QUEENSLAND RAIL’S SUBMISSIONS AND EVIDENCE

By agreement between the parties, Queensland Rail filed its material first. In response to the question for arbitration, Queensland Rail submitted that the answer to that question is in the affirmative, for the following reasons:
“(a)       Queensland Rail has been engaged in an ongoing recruitment drive since late 2015 to fill approximately 200 Driver and 200 Guard roles within the organisation, as well to fill open positions created by ‘natural attrition’ and to start building a sufficient base for the near future. This is the ‘business decision’ identified in clause 30.2 of the Agreement;
(b)       The Agreement does not require that the recruitment process in Step 3 of clause 30.4 or Step 2 of Clause 30.5 must be wholly completed (i.e. applications received, vetting process and successful completion of trainee schools) before Queensland Rail can proceed to external advertising where there is and remains an established business need to fill the identified positions;
(c)       No ‘earlier’ applicant will be prejudiced by the 'current' internal and external advertising phase Queensland Rail has undertaken because successful applicants from those earlier phases will be placed into trainee schools before any successful applicant from the current phase.”[2]

The affidavit of Ms Susan Hurley, Senior Manager for Human Resources Services of Queensland Rail, set out the factual background for what Queensland Rail has detailed to be an ongoing recruitment drive. Ms Hurley stated that in 2015 (and then later in 2016), Queensland Rail identified there was a significant need for a number of additional drivers and guards. It was submitted that this need for an additional number of train crew, was required to meet the current demand and the need to fill open positions due to natural attrition. It was also argued that the recruitment was required to build the necessary base of driver numbers for the near future.

In relation to Queensland Rail’s future recruitment needs, Ms Hurley stated:

“61. In addition to the need to increase services to meet customer demand, there are a number of upcoming operational factors which will require additional traincrew, including:
(a) a requirement under the Agreement to introduce two meal breaks for shifts in excess of six hours, which is currently due for implementation in late May 2018;
(b) changed fatigue management requirements under rail safety legislation which will limit the number of days that Drivers can be rostered to a maximum of 12 days out of any 14 day period; and
(c) recruitment to replace an ageing workforce – currently approximately 50% of the Drivers in Queensland Rail's Train Service Delivery area are over 50 years of age.”[3]

Queensland Rail set out that the recruitment activity undertaken by internal advertising that occurred prior to the current external advertising was firstly made, on the basis that transfers were conducted on an ongoing basis. The internal and external advertising that occurred in November 2015 and April 2016 (that was undertaken pursuant to the 2013 Agreement), was offered to qualified guard applicants only. The guard recruitment on this basis only resulted in internal candidates being appointed.

In terms of the October 2016 internal business wide recruitment campaign, driver positions were only offered to qualified guard applicants; non-qualified guard applicants were offered trainee guard roles. Further, in June 2017 as a result of the internal advertising for driver recruitment, these positions were only offered to qualified guard applicants.

In terms of the external advertising for driver recruitment, in February 2017 Queensland Rail commenced external advertising for drivers, however this advertising was restricted to ex-Queensland Rail drivers. External advertising occurred on Queensland Rail’s careers website in November 2015, for trainee guard roles and no external applicants were appointed.

Queensland Rail submitted that these initial internal and external advertising phases did not result in sufficient applicants to meet the identified need for additional drivers and guards. It was on this basis that Queensland Rail stated that in March 2017, it advised the RTBU and the Australian Federation of Locomotive Employees (the AFULE) that it intended to commence a concurrent internal and external advertising campaign for drivers and guards, commencing 31 August 2017.

Mr Dion Matley, Employee Relations Manager of Queensland Rail, provided an affidavit in reply in these proceedings. Mr Matley stated that he was involved in the negotiations for the 2017 Agreement and that an, “in-principle agreement,” with respect to the 2017 Agreement, was reached in early October 2016, prior to, “the full extent of any issues regarding a deficiency of train crew had been identified.”[4]

During cross-examination, Mr Matley stated that the clauses of the 2017 Agreement, with respect to vacancies were substantially agreed to in July 2016. However, he stated that certain other provisions of the agreement remained outstanding, until October 2016.[5]

Queensland Rail argued they had undertaken the advertising in accordance with the 2017 Agreement. They presented their interpretation of the provisions of the 2017 Agreement (specifically cl.30) in accordance with the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).[6]

Queensland Rail stated that the proper construction of cl.30 of the 2017 Agreement, was as follows:
“14. Queensland Rail submits that the proper construction of clause 30 of the Agreement is as follows:
(a) Queensland Rail is required to make a business decision about its staffing requirements. Once that decision is made, Queensland Rail will then make a decision whether recruitment is required, as per clause 30.2 of the Agreement;
(b) Where Queensland Rail has made the business decision that it needs to recruit (which it alone has the prerogative to do), it then begins the recruitment steps set out in clauses 30.4 (for Drivers) and 30.5 (for Guards). These processes encapsulate the overall ‘recruitment principle’ set out in clause 30.1 of the Agreement;
(c) None of the ‘steps’ within clause 30.4 or 30.5 of the Agreement specify a point of completion. Importantly, Steps 2 and 3 of clause 30.4 and Step 2 of clause 30.5 of the Agreement refer only to advertising requirements. The clause does not impose any obligation on Queensland Rail’s selection process once applications are received;
(d) Instead, Queensland Rail is able to determine whether it has secured a sufficient number of eligible candidates to meet the business need. If it has not done so after considering the applicant ‘pool’, it is entitled to move to the next step;
(e) The trigger for moving to external advertising under Step 4 of clause 30.4 and Step 3 of clause 30.5 of the Agreement is that vacancies have not been filled. This is a decision which is wholly at Queensland Rail’s discretion, so long as vacancies to fill the roles identified by the business decision continue to exist.
15. On this proper construction, the Steps of clauses 30.4 and 30.5 have been completed as follows:
(a) Queensland Rail identified an additional need for traincrew in late 2015, and that additional need increased in late 2016. Queensland Rail submits that it is this overall identified need which is the business need to be identified for the purpose of clause 30.2 and it is this need to which clauses 30.4 and 30.5 are directed at filling as determined by Queensland Rail;
(b) Step 1 of both clause 30.4 and 30.5 (transfers within the business) have taken place on ongoing basis;
(c) Step 2 of clause 30.4 (trainee Driver roles advertised to current qualified Guards) has taken place on a number of occasions:
(i) November 2015;
(ii) April 2016;
(iii) October 2016; and
(iv) June 2017;
(d) Step 3 of clause 30.4 and Step 2 of clause 30.5 (Business-wide advertising) has taken place on a number of occasions:
(i) November 2015 – for trainee Guards; and
(ii) October 2016 – for both trainee Drivers and trainee Guards;
(e) Step 4 of clause 30.4 and Step 3 of clause 30.5 (external advertising) has previously occurred in the overall recruitment process underway:
(i) November 2015 – for trainee Guard roles (noting no external applicants were eventually appointed);
(ii) February 2017 – external advertising for ex-Queensland Rail / QR Limited Drivers applicants for trainee Driver roles.”[7]
As a result of the advertising, Queensland Rail submitted that:

“16. As at 15 August 2017, for the ‘200’ campaign of trainee Drivers, 103 employees have been offered roles, 13 have completed training, one has ceased employment and 71 are in training. Queensland Rail’s modelling demonstrates that current Driver demand levels will not be resolved until late 2019. This is without taking into account any other factors which will result in increased need, such as the introduction of two meal breaks for shifts in excess of 6 hours, or increased service delivery, which would elongate the timeframes until at least mid-2020.”[8]

Currently, Queensland Rail requires at least an additional 54 driver positions and a further 96 required to fill driver training schools planned to January 2020. This was in addition to the need to continually recruit to replace guards and drivers due to natural attrition. As a result of this recruitment, 200 positions had been filled, however it was identified that further guards were required to be recruited to meet gaps that would arise as a result of guards moving into the trainee driver programs, and also gaps due to retirement and natural attrition.

In interpreting the 2017 Agreement, in particular the recruitment process set out in cl.30.2, Queensland Rail submitted that it was necessary to be read in context with the principle of providing career pathways for existing employees, as per cl.30.1. Queensland Rail submitted that these career pathways for existing employees, such as station staff, have been primarily considered in the advertising that has been undertaken since November 2015.

On this basis, it was stated that the first of the external applicants drawn from the February 2017 advertising for ex-Queensland Rail or limited drivers, will not commence at the training school until early 2018.

On this point Queensland Rail emphasised that the steps undertaken in cls.30.4 and 30.5, were not directed at filling training schools, but directed at advertising for vacant positions in accordance with Queensland Rail’s identified business need. In addition, they stated external advertising for trainee drivers in September 2017, was undertaken with more advertising for internal applicants.

Queensland Rail submitted:

“21. The Commission can be satisfied, on the evidence, that the limited external advertising which has occurred has been entirely compatible with the past and future provision of career pathways for existing employees.
22. Consistent with that, the Commission can be further satisfied on the evidence that Queensland Rail’s actions in internal and external advertising of vacant positions have been compliant with the spirit and letter of clause 30 of the Agreement.”[9]

It was submitted that, on the evidence provided, the only “business decision” (as set out in cl.30.2 of the Agreement), was the decision made in November 2015, which triggered the process under the 2013 Agreement and continued after the 2017 Agreement came into effect.[10] It was submitted that:

“26. The evidence shows that Queensland Rail has proceeded in a way which is in harmony with the spirit and the letter of the Agreement. As detailed in the chronology, interested current employees have had several opportunities of applying for the vacant roles. Their career prospects have been respected.”[11]

In response to the RTBU’s suggestion, that Queensland Rail considered it had, “re-started,” the recruitment process when the 2017 Agreement came into effect on 6 April 2017, Ms Hurley set out that at no stage did Queensland Rail consider that it had, “re-started the recruitment process.”[12]

SUMMARY OF THE RTBU’S SUBMISSIONS AND EVIDENCE

In response to the question for arbitration as to whether Queensland Rail has complied with cl.30 of the 2017 Agreement in relation to the recruitment of drivers and guards, the RTBU stated that they have not complied for a number of reasons.

The RTBU submitted that in accordance with cl.30.2, at the outset Queensland Rail must make a decision prior to commencing the steps in cls.30.4 and 30.5. That is, they stated each decision is a new recruitment drive and stands alone in relation to the steps. They submitted Queensland Rail is not able to rely on actions taken from an earlier recruitment drive for compliance with the steps in the later recruitment drive.

The RTBU stated that the 2017 Agreement requires the process of Step 3 of cl.30.4 and Step 2 of cl.30.5 to be utilised to fill vacant positions prior to Queensland Rail advertising externally. That is, they stated Queensland Rail was not able to miss or combine these particular steps prior to commencing external advertising.

The RTBU emphasised that Step 3 of cl.30.4 and Step 2 of cl.30.5 arise as a result of the negotiations for the current 2017 Agreement and created a requirement that the steps be adhered to on commencement of the current 2017 Agreement, as they stated was the intention of the parties. The effect, they stated, was that existing employees will be prejudiced in that they will be unable to apply for the roles that would be available to them if Step 3 of cl.30.4 and Step 2 of cl.30.5 had not been complied with. In addition, they argued that recently employed new employees would also be prejudiced in applying for these roles.

In terms of the decisions to recruit, the following chronology of key dates regarding these matters is useful:

“3. The following key dates are of note:

Decisions to Recruit

·Late 2015 – The Respondent identified 100 Driver and 100 Guard shortages and made the decision to recruit
·24 October 2016 – Minister for Transport announced a further 100 Drivers and 100 Guards (200 of each in total)
·May 2017 – review of master rosters across the entire network led to the Respondent making a decision to recruit.

Driver Recruitment
·November 2015 - Driver positions advertised to current qualified guards
·April 2016 - Driver positions advertised to current qualified guards
·October 2016 - Internal advertising business-wide for Drivers
·6 April 2017 - New agreement came into effect containing the additional Step 3 in clause 30.4.
·12 June 2017 - Driver positions advertised to current qualified guards
·August 2017 – transfers of drivers within business

Guard Recruitment

·October 2016 - Internal advertising business-wide
·6 April 2017 - New agreement came into effect containing the additional step 2 in clause 30.5.

External Advertising

·19 July 2017 - Minister of Transport advises in parliament that the Respondent will start external recruitment in August 2017
·31 August 2017 - Queensland Rail advertised externally and internally concurrently for both Drivers and Guards.”[13]

The RTBU agreed that this matter focused on the interpretation of cl.30 and set out the principles of interpretation in reliance on the decision in Berri.[14] It was submitted that the common intention of the parties is to be identified objectively by reference to a reasonable person’s understanding of the language employed in the agreement.

In relation to the interpretation, the RTBU stated there was a long line of authority suggesting that narrow or pedantic approaches to interpretation or approaches to interpretation divorced from industrial realities, are to be avoided. It was submitted that the interpretation or construction of an agreement should contribute to a sensible industrial outcome as would be attributed to those parties.[15]

In regard to clauses in agreements that may be ambiguous or have alternative meanings, the RTBU argued that limited evidence of the surrounding circumstances will be admissible, however such should be treated cautiously to assist the interpretation of the agreement. These matters are dealt with in Berri and Golden Cockrel.[16]

In terms of the proper construction of cl.30 of the 2017 Agreement, the RTBU submitted that the Agreement provides as follows:

“a. Pursuant to clause 30.1 the Respondent is required to provide career pathways for existing employees. This requirement is an overarching principle of any recruitment process to be undertaken.

b. If additional staff are required, the Respondent must make an ‘at the outset’ decision to recruit (clause 30.2). The Steps are triggered by that decision and are to be taken in relation to that decision.

c. The Respondent must also publish such vacancies and confirm any appointments in the appropriate Business publication (clause 30.2).

d. Once such a decision to recruit is made, clause 30.4 must be complied with to recruit Drivers and clause 30.5 must be complied with to recruit Guards.

e. Like all ‘steps’, those appearing in clause 30.4 and 30.5 must be actioned in the order they appear. This is further reinforced by Step 4 of clause 30.4 and Step 3 of clause 30.5 which allow for external recruitment if the positions are “not filled by” the preceding steps.”[17]

The RTBU then set out in the following reasons, why they considered cl.30 had not been complied with:
“a. Clause 30.2 requires the Respondent to make a decision ‘at the outset’ to recruit. It is not contested that the Respondent made an ‘at the outset’ decision in late 2015. However, it then made further ‘at the outset’ decisions in late 2015, on 24 October 2016 and in May 2017. The obligation under clause 30.2 is, on its ordinary meaning, that the recruitment process and its steps are triggered ‘at the outset’ of each such decision to recruit. The Respondent is unable to rely on steps completed from prior recruitment drives. Each decision to recruit and the Steps undertaken, or lack thereof, are elaborated on below.
b. The Respondent has not complied with clause 30.4 for the decision to recruit Drivers made in May 2017. The recruitment actions taken by the Respondent arising after this decision were:
i. On 12 June 2017 the Respondent advertised for Trainee Drivers to qualified Guards. This is the requirement under Step 2 of clause 30.4.
ii. In August 2017 the Respondent called for transfers in accordance with Step 1 of clause 30.4.
iii. On 31 August 2017, the Respondent advertised internally and externally at the same time.
iv. The Respondent has:
i. not completed the steps in the order required

ii. taken liberty to combine steps which is not permitted under the Agreement

c. The Respondent has not complied with clause 30.5 for the decision to recruit Guards made in May 2017. The recruitment actions taken by the Respondent arising after this decision were:
i. In August 2017 the Respondent called for transfers in accordance with Step 1 of clause 30.5.
ii. On 31 August 2017, the Respondent advertised internally and externally at the same time.
iii. The Respondent has:
i. not completed the transfers in accordance with Step 1 prior to moving to the next step
ii. not completed the steps in the order required
iii. taken liberty to combine steps which is not permitted under the Agreement

d. The Respondent has not complied with clause 30.4 for the decision to recruit Drivers made on 24 October 2017. The recruitment actions taken by the Respondent arising after this decision were:
i. In October 2016 internal advertising was conducted business-wide for Drivers. This is the requirement under Step 2 of clause 30.4.
ii. On 12 June 2017 the Respondent advertised for Trainee Drivers to qualified Guards. This is the requirement under Step 2 of clause 30.4.
iii. In August 2017 the Respondent called for transfers in accordance with Step 1 of clause 30.4.
iv. On 31 August 2017, the Respondent advertised internally and externally at the same time.
v. The Respondent has:
i. not completed the steps in the order required
ii. taken liberty to combine steps which is not permitted under the Agreement

e. The Respondent has not complied with clause 30.5 for the decision to recruit Guards made on 24 October 2016. The recruitment actions taken by the Respondent arising after this decision were:
i. The Respondent advertised internally business-wide for guards. This is not a requirement under the Agreement.
ii. In August 2017 the Respondent called for transfers in accordance with Step 1 of clause 30.5.
iii. On 31 August 2017, the Respondent advertised internally and externally at the same time.
iv. The Respondent has:
i. not completed the transfers in accordance with Step 1 prior to moving to the next step
ii. not completed the steps in the order required
iii. taken liberty to combine steps which is not permitted under the Agreement

f. The skipping and/or combining of steps is contrary to the clear intention of the clause 30.1, which is, to fill vacant positions with existing employees and provide internal career progression where possible. For the May 2017 and 24 October 2016 recruitment decisions, the Respondent has clearly failed to comply with clause 30.1.”[18]

The RTBU argued that accepting Queensland Rail’s interpretation of the clauses would allow that, at the outset, a decision can only be made once. Future decisions to recruit would not trigger the return to the steps and that, therefore it is acceptable to run the steps concurrently across multiple individual recruitment jobs. The RTBU submitted that accepting that interpretation does not require adherence in accordance with the steps in the 2017 Agreement, regarding the correct order for that particular recruitment drive, in line with Queensland Rail’s interpretation. The RTBU argued that cls.30.1, 30.4 and 30.5 would have no work to do or a reduced impact, in contrast to their intended purpose.

The affidavit of Mr Shayne Kummerfeld was provided on behalf of the RTBU. He was employed by Queensland Rail in the role of a train driver and first commenced employment with Queensland Rail in November 1980. At the time of the negotiation of the current 2017 Agreement, he had worked as a full-time branch organiser for the RTBU and was the lead official involved in the negotiations.

He stated in terms of the applicable industrial instruments:

“3. Prior to the approval of the Agreement, Queensland Rail had been administratively applying the Queensland Rail Traincrew Certified Agreement 2013 (2013 Agreement) which had been approved by the Queensland Industrial Relations Commission in October 2013, but which was ruled ineffective as a result of the High Court's decision on 8 April 2015.”[19]

On that basis he stated the 2009 and 2013 Agreements were relevant in relation to their recruitment clauses. He set out that in accordance with the 2009 Agreement, there was no requirement for the parties to agree to a step-by-step process as he stated that a long held understanding was that the regular method of recruitment was for train crew to be sought from the ranks of current employees.

Regarding the manner in which provisions of the 2017 Agreement were negotiated, he stated the different environment for negotiating the 2013 Agreement required each matter to be detailed in a clear manner. He stated this particularly applied to recruitment provisions, resulting in a step-by-step process.

During these negotiations, the RTBU also stated they wanted additional steps to be inserted in the process, so that it was clear that internal recruitment took precedence over and needed to be exhausted, prior to external recruitment commencing.

The RTBU conceded that whilst under the 2009 and 2013 Agreements, Queensland Rail was arguably able to advertise internally and externally concurrently, it never did undertake such. However, they stated during the 2017 Agreement negotiations, the RTBU made it quite clear to ensure the recruitment train crew occurred internally first and this process was exhausted prior to, external applicants being sought.

Mr Kummerfeld stated that the clear intention was that the process would not be altered, the train crew would come from the ranks of those already employed by Queensland Rail and that this process was clarified during the process of the current 2017 Agreement. He stated SK-1 provided an insight into the tracking of the progress of these negotiations and that agreement had not yet been reached on the recruitment process steps and that the RTBU was seeking for these steps to be, “fleshed out.”

He referred to SK-2, a Queensland Rail document that he stated reflected that agreement had been secured for vacancies to be recruited in a four step process whereby business-wide recruitment will be undertaken prior to external steps being initiated. He stated this document reflected a clear understanding of the parties about what was intended in terms of the currently disputed clauses. He stated:

“14. That is why the agreement now reads:

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.

Processes will then be undertaken in one of the following ways:

Driver recruitment

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

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 (Business-wide).

Step 3 Any vacancies not filled at step 1 or step 2 will be advertised externally.”[20]

In response to Ms Hurley’s affidavit, he stated:

“15. Susan Hurley identifies in her affidavit “In or about the latter part of 2015, Queensland Rail's Operations team identified that it may not have sufficient traincrew.” This was widely known within Queensland Rail and it was also known that because Queensland Rail had recently undertaken to outsource Driver Training, that they had made surplus, about a dozen Driver Trainers or “Traincrew Development Specialists” (TCDS). This meant that the fix was not going to be as simple as just recruiting more Traincrew. They did not have enough trainers to train the drivers.
16. On 24 October 2016, following a number of cancellations of services across the Queensland Rail network due to traincrew shortfalls, the situation reached a crisis point.
17. We were still engaged in negotiations for the 2017 Agreement at this stage and the above identified step-by-step process was still a live issue. Queensland Rail made no attempt to take it off the books.
18. On February 6 2017, the Strachan Commission of Inquiry released its findings in which it was clearly identified that external recruitment of Traincrew was recommended. Attached and marked SK3 is a copy of the Strachan Report.
19. Even after this Queensland Rail did not seek to change or remove the drawn-out step-by-step process for recruitment that we had sought and gained agreement on only a short time earlier.
20. The agreement was signed on the 22 and 23 March 2017 and still, the clause requiring Queensland Rail to exhaust internal recruitment before recruiting externally, remained in the Agreement.”[21]

His clear understanding was that all of the clauses in the 2017 Agreement were negotiated with the intention that they would be implemented after the 2017 Agreement was implemented and the clauses then became obligations.

Mr Kelvin Steer, Guard of Queensland Rail, provided an affidavit in support of the RTBU. Mr Steer was involved in the negotiations for the current 2017 Agreement. He stated that at the negotiations, Queensland Rail had initially sought to vary the recruitment provisions to allow external recruitment, however this proposal was abandoned. In terms of the recruitment process, Mr Steer stated:

“13. Since the agreement came into effect, Queensland Rail has begun the recruitment process from step one. To understand how this has occurred, I need to explain how the identification of Traincrew vacancies arises.
14. A master roster committee is compiled by way of clause 80 of the agreement. I am on this committee. The master roster committee is required to take into account a number of things as spelled out in the agreement. Specifically at clause 80.1, step 2 we are required to consider staffing levels at each of the depots. Once we have identified vacancies in the depots, we advise Queensland Rail of the number of vacancies in each depot.
15. The Traincrew vacancies across the network were advised to Queensland Rail in around May of 2017 after we completed a network-wide review of each depot’s needs. It was immediately identified that transfers from within existing traincrew ranks needed to be called. Queensland Rail then made a decision to recruit for both Drivers and Guards.
16. The Master Roster Committee advocated strongly from May 2017 for the transfer process to begin for drivers and guards and for the vacancies to be called however due to changes in management this was not acted on immediately.
17. On 12 June 2017, Queensland Rail advertised for Trainee Drivers amongst the Guard ranks in accordance with Step 2 of recruitment process for Drivers. This recruitment process was referred to at para 35 of Susan Hurley’s affidavit and the evidence for it was attached and marked SMH-09.
18. In August 2017 Queensland Rail called for the transfer for Drivers and Guards which is what the Master Roster Committee had recommended in May 2017. This was to meet the requirements of Step 1 of the recruitment process for those positions.
19. On 31 August 2017, Queensland Rail commenced advertising internally and externally for both driver and guard vacancies.”[22]

CONSIDERATION

This matter related to Queensland Rail’s recruitment of drivers and guards, and in particular Queensland Rail’s compliance with the procedure set out in cl.30 of the 2017 Agreement. The Commission is required 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?”

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri),[23] the Full Bench of the Commission summarised the law with respect to the interpretation of agreements, as set out:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.

2. 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.

3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

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

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

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

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:
(i) 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;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[24]

The principles of Berri have been taken into account in the consideration of the question for arbitration.

In Kucks v CSR Limited a narrow or pedantic approach to interpretation was discouraged:[25]

“…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.”

The RTBU submitted that Queensland Rail had made three separate decisions to recruit (as referred to in cl.30.2) that triggered the requirements of cl.30,[26] as set out:

“Late 2015 – The Respondent identified 100 Driver and 100 Guard shortages and made the decision to recruit
24 October 2016 – Minister for Transport announced a further 100 Drivers and 100 Guards (200 of each in total)
May 2017 – review of master rosters across the entire network led to the Respondent making a decision to recruit.”[27]

In respect of the alleged business decision made in May 2017, Queensland Rail submitted:

“10. As explained in Ms Hurley’s affidavit, there have been ongoing transfers during the period of the recruitment process. Step 1 of both clause 30.4 and 30.5 of the Agreement did not need to be ‘finalised’ before Queensland Rail could proceed to Step 2 and the equivalent steps in the 2013 Agreement.

11. The evidence is that transfers are a normal part of the operations to fill gaps on an ad-hoc basis as vacancies arose or as requests were placed (i.e. compassionate grounds). The Roster Committee identified by Mr Steer does not determine the staffing requirements of the business, nor would the mere transfer of Drivers or Guards have resulted in an increase in the headcount shortfall which is at the heart of the recruitment drive.
12. The RTBU’s suggestion that a relevant ‘business decision’ for the purpose of recruitment in clause 30 of the Agreement took place in May 2017 is in error. The transfer of Drivers and Guards in August 2017… did not constitute a fresh ‘business decision’ for recruitment or supplement the decision made in late 2015 to increase headcount within the organisation, although this may have constituted a separate business decision to ascertain whether there were employees willing to transfer to available positions at certain depots at that time to take place in accordance with Step 1 of both clause 30.4 and 30.5 of the Agreement.”[28] [emphasis added]

In cross-examination, Mr Steer stated that the 2017 recruitment, came about as a result of a Master Roster Committee Report,[29] and that Queensland Rail’s usual process after receiving such a report, was to fill any vacancies first by internal transfers.[30] Mr Steer stated that this was what occurred, in relation to those positions.[31] However, Mr Murdoch submitted that:

“…what we also learnt from Mr Steer was that in relation to the vacancies that were identified in the May 2017 report of the Master Roster Committee, those vacancies have been filled or are in the process of being filled through transfers.

So there’s no scope at all to argue that there has been any non compliance on the part of our clients in relation to any vacancies that were identified by the Master Roster Committee in May 2017 because on Mr Steer’s emphatic evidence, that one never went beyond the first stage, which is internal transfers.”[32]

The RTBU considered that the required transfers constituted a separate business decision, however resiled from this during the hearing. The RTBU stated that Queensland Rail was only seeking internal transfers in relation to this recruitment (in accordance with Step 1), therefore it would not be pursuing that submission.[33] The RTBU conceded that Queensland Rail was compliant with cl.30 in relation to this.[34]

In relation to the late 2015 business decision, Mr Diamond stated:

“It appears on all the evidence provided by [Queensland Rail] and in their submissions that every step of the process that has been dealt with seems to be in regards to this one decision. The fact that a decision was made in late 2015 is not controversial. It also does not seem to be controversial that it triggers clause 30.

That decision was to recruit 100 drivers and 100 guards. I’ll refer to it as the 100/100 decision. This is a decision where we acknowledge that [Queensland Rail] administratively applied certain steps from the earlier 2013 agreement. That agreement had less steps than the current agreement.”[35]

The evidence demonstrated the witnesses were aware of the identified shortage and the later revision of the numbers. There was sufficient connection between these recruitment campaigns (the initial 100/100 and extension to 200/200) that related to the one business decision regarding meeting the critical shortfall in train crew. The evidence of Ms Hurley demonstrated this:

Mr Diamond: You’re not backfilling any staff?

Ms Hurley:That’s what the 200 takes into account, so yes, it’s over and above the current numbers, but we’ve indicated that we need to at some point, recruit over and above the 200.

Mr Diamond: Ms Hurley, I’ll take you to - in your affidavit, there is a media release by the Minister for Transport. It is labelled annexure SMH4, page 17 of your affidavit. You said a moment ago that the 100/100 and the 200/200 have not been completed. You said a moment ago that the 100/100 and the 200/200 have not been completed. Those positions are yet to be filled, is that right?

Ms Hurley:For the train drivers we’re still in recruitment; for train guards we have recruited or appointed 263.

Mr Diamond: How many drivers have you currently appointed?
Ms Hurley: At this stage we’ve offered 104 roles.
Mr Diamond: The third paragraph of this media release refers to the extra 200 drivers and the extra 200 guards that needed to be recruited. Now, it goes on to say that at the time of this release, which was 31 October 2017, that of the 100 drivers approved last year, 70 drivers have already been recruited and 74 guards have already been recruited. Are those figures accurate as far as you’re aware?

Ms Hurley: As far as I’m aware.
Mr Diamond: Are you still advertising externally for drivers or guards?
Ms Hurley:Only from the August campaign. So, we went out in August, that’s the only current external campaign for train crew.

Mr Diamond: But it is still current?
Ms Hurley:      It is still current.
Mr Diamond: For both positions?
Ms Hurley:      Yes, it is.
Mr Diamond: You have said that you have recruited 104 drivers?
Ms Hurley:      Yes.
Mr Diamond: That number is more than 100, isn’t it?
Ms Hurley:      Yes, because we’re recruiting to the 200/200.[36]

It was submitted on behalf of Queensland Rail, that the business decision was made in late 2015 and that decision was, “refined or modified,” in October 2016.[37] It was further submitted that even if the modifications of October 2016 was taken to be a separate business decision, Queensland Rail was also compliant with the relevant steps of cl.30.[38]

Mr Steer gave evidence that in October 2015, a Master Roster Committee Report was prepared in connection with the opening of the Moreton Bay rail link.[39] The report identified that a substantial increase in the number of drivers and guards would be required.[40] In relation to the required increase, Queensland Rail submitted that:
“3. The ‘business decision’ referred to in clause 30.2 of the Agreement contemplates a decision by Queensland Rail which triggers the stepped process for advertising vacant positions. On the evidence, there was only one such decision: namely, the decision to recruit in November 2015. The decision triggered a process under the Queensland Rail Traincrew Certified Agreement 2013 (2013 Agreement) which was being administratively applied. The process continued despite the commencement of the Agreement on 6 April 2017. It is not yet complete because some, but not all, of the vacant positions have been filled.

4. The fact that the numbers of personnel identified as required at the time of the recruitment decision in late 2015 was later revised upwards on 24 October 2016 did not create a ‘new’ business decision for the purpose of the Agreement or the 2013 Agreement. It is the one recruitment process which has had a number of discrete steps and has been fine-tuned by Queensland Rail and the unions along the way. The increase in the vacancy numbers on 24 October 2016 and the fine-tuning of the process have not been contrary to clause 30 of the Agreement or the counterpart provisions in the 2013 Agreement.

5. The evidence of Ms Hurley shows that the vacancies were advertised in appropriate Queensland Rail publications. Queensland Rail staff were made aware that a significant recruitment drive was underway within the business in late 2015 and that the numbers required increased in 2016.”[41] [emphasis added]

The RTBU stated that this approach was, “divorced from industrial realities,”[42] and submitted:

“It would allow [Queensland Rail] to make one decision, even prior to the current agreement commencing, and as long as they continue to recruit any volume of drivers or guards, they will never have to commence the steps from scratch; that could go beyond the nominal expiry date of the current agreement. That is what [Queensland Rail] is asking the Commission to accept today.
Such an interpretation, for these reasons, would actually leave clause 30 and the steps in it with no work to do. It would mean that [Queensland Rail] could pick and choose which of the steps it chooses to use, provided that at some point in time it’s done them earlier.
We say that this can’t be the intention of clause 30. A more sensible approach would be to interpret clause 30 and its steps as being triggered when a recruitment or transfer decision is made. This would be regardless of if there is already another recruitment process occurring at the time. In fact, we say that clause 30.2 demands such an interpretation.”[43] [emphasis added]

Queensland Rail was questioned, with respect to whether the business decision was capable of being modified to extend its scope further (for example, to 300/300), and Mr Murdoch stated:

“It would indeed depend on the facts and circumstances, but when one goes back to the history that’s emerged on the evidence, it appears from the evidence that Mr Steer gave that the master roster committee had done work in the latter part of 2015 which had identified that substantial increases were going to be needed to cope with the upcoming Redcliff line opening in late 2016.

And his evidence as to that roster committee’s work appears to coincide with the decision in November 201[5] that management made on the 100/100, and the evidence is that the move in October 2016 to lift the 100/100 to 200/200 coincided with the actual opening of the Redcliff[e] line and the consequential decrease in other services across the network in order to cope with the shortfall that arose out of the reopening of the Redcliff[e] line.”[44] [emphasis added]

It was submitted that there was a sufficient connection between the two assessments that they did not cause a separate business decision to be made for the purposes of cl.30.2. Accordingly, Mr Murdoch stated that it would be, “extremely difficult,”[45] to extend recruitment to 300/300 as part of the current business decision, undertaken in accordance with the prescribed recruitment steps.

The RTBU submitted that on commencement of the 2017 Agreement (on 6 April 2017), the process in cl.30 was, “required to be commenced again from the time of the new agreement, meaning specifically that any recruitment already commenced at the time of 6 April 2017 or to commence after that date as well would have needed starting from step 1.”[46] It was stated that the purpose of negotiating a new enterprise agreement was to reach agreement on future terms and conditions of employment and that nothing in the 2017 Agreement indicated that cl.30 was to operate retrospectively. Accordingly, the RTBU submitted that the steps completed since 6 April 2017, were not compliant with cl.30 of the 2017 Agreement.[47]

The RTBU conceded that if Queensland Rail’s view is preferred (that is, steps that occurred prior to the commencement of the 2017 Agreement may be considered), compliance had been achieved.[48]

In respect to whether the steps undertaken prior to the commencement on the 2017 Agreement were able to be taken into account, Mr Murdoch stated that the plain and ordinary meaning of the words in cl.30.2, and in particular the use of the word “will”, was, “clearly futuristic or prospective.”[49] It was submitted that cl.30.2 applied to a decision that will be made, rather than a decision made prior to the commencement of the 2017 Agreement. Accordingly, it was stated that the steps that existed under the 2013 Agreement, had been complied with.[50] In summary, Mr Murdoch stated:

“…it is important to realise that whether we say it was administratively applied or whether it was an agreement that commenced in another jurisdiction, nevertheless that was the industrial code that was being applied and it seems to have been applied without dissent.

…that the 2013 agreement was being applied administratively doesn’t bear at all on the issue as to whether come 6 April 2017 the steps had to commence again, because for the reasons I have already advanced the reference to the decisions that were caught by the steps in the 2017 agreement were future recruitment decisions taken after that agreement came into legal effect.”[51]

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.

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.

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.

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.

CONCLUSION

Having regard to the evidence, in relation to the recruitment steps undertaken since late 2015 and the identified need to expand recruitment to 200/200, I am satisfied that the recruitment relates to one business decision. Further to this, taking into account the chronology of the steps taken,[53] I am satisfied that on reviewing the steps taken in relation to the overall recruitment, there has been compliance with cl.30 of the 2017 Agreement.

It is therefore appropriate for Queensland Rail to continue with the recruitment program in relation to this business decision and accordingly, the question for arbitration, as set out, “[h]as Queensland Rail complied with clause 30 of the Queensland Rail Traincrew Enterprise Agreement 2017 in relation to the recruitment of drivers and guards?” is answered in the affirmative.

I Order accordingly.

COMMISSIONER

Appearances:

Mr M. Diamond for the Applicant.

Mr J. Murdoch QC, instructed by MinterEllison for the Respondent.

Hearing details:

2017.
Brisbane:
27 November.

[1] [2017] FWC 4547 at [5] – [7].

[2] Respondent’s Outline of Submissions filed 7 November 2017 at [2].

[3] Affidavit of Susan Maree Hurley affirmed 7 November 2017 at [61].

[4] Affidavit of Dion Phillip Matley affirmed 24 November 2017 at [5].

[5] Transcript at PN116.

[6] [2017] FWCFB 3005.

[7] Respondent’s Outline of Submissions filed 7 November 2017 at [14] – [15].

[8] Ibid at [20].

[9] Ibid at [21] – [22].

[10] Respondent’s Outline of Submissions in Reply dated 24 November 2017 at [3].

[11] Ibid at [26].

[12] Affidavit in Reply of Susan Maree Hurley affirmed 24 November 2017 at [3].

[13] Applicant’s Outline of Submissions dated 17 November 2017 at [3].

[14] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.

[15] Kucks v CSR Ltd (1996) 66 IR 182; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) CLR 241; Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394.

[16] [2017] FWCFB 3005; (2014) 245 IR 394.

[17] Applicant’s Outline of Submissions dated 17 November 2017 at [9].

[18] Ibid at [10].

[19] Affidavit of Shayne Edward Kummerfeld affirmed 16 November 2017 at [3].

[20] Ibid at [14].

[21] Ibid at [15] – [20].

[22] Affidavit of Kelvin James Steer affirmed 16 November 2017 at [13] – [19].

[23] [2017] FWCFB 3005.

[24] Ibid at [114].

[25] (1966) 66 IR 182.

[26] Transcript at PN686.

[27] Applicant’s Outline of Submissions dated 17 November 2017 at [3].

[28] Respondent’s Outline of Submissions in Reply dated 24 November 2017 at [10] – [12].

[29] Transcript at PN512.

[30] Ibid at PN613.

[31] Ibid at PN614.

[32] Ibid at PN642 – PN643.

[33] Ibid at PN693.

[34] Ibid at PN697.

[35] Ibid at PN699 – PN700.

[36] Ibid at PN59 – PN67.

[37] Ibid at PN641.

[38] Respondent’s Outline of Submissions in Reply dated 24 November 2017 at [4].

[39] Transcript at PN516 and PN520.

[40] Ibid at PN522.

[41] Respondent’s Outline of Submissions in Reply dated 24 November 2017 at [3] – [5].

[42] Transcript at PN723.

[43] Ibid at PN724 – PN726.

[44] Ibid at PN800 – PN801.

[45] Ibid at PN808.

[46] Ibid at PN712.

[47] Ibid at PN716.

[48] Ibid at PN719.

[49] Ibid at PN794.

[50] Ibid at PN811.

[51] Ibid at PN824 and PN830.

[52] Ibid at PN110.

[53] Affidavit of Susan Maree Hurley affirmed 7 November 2017.

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Citations

Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority T/A Queensland Rail [2017] FWC 6029

Most Recent Citation

Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority t/a Queensland Rail [2018] FWCFB 2469

Cases Citing This Decision

1

Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority t/a Queensland Rail [2018] FWCFB 2469

Cases Cited

6

Statutory Material Cited

0

Queensland Rail Transit Authority T/A Queensland Rail v Australian Rail, Tram and Bus Industry Union [2017] FWC 4547

AMWU v Berri Pty Ltd [2017] FWCFB 3005

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10