Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd

[2020] FWC 6586

[2020] FWC 6586

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union
v
Railtrain Pty Ltd
(C2020/6529)

DEPUTY PRESIDENT SAMS SYDNEY, 8 DECEMBER 2020

Application to have the Commission exercise private arbitration powers according to a consent Deed entered into in Federal Court proceedings – parties RTBU and Railtrain – Court proceedings related to compensation claims for trainee train drivers who undertake training – claimants must be Union members and have made a claim by an agreed date – 19 individual claimants and 2 individuals who did not complete training – Deed must be read as a whole – each term of the Deed must have work to do – terms of Deed to be given their plain, ordinary meaning – Union pleads its internal processes were at fault – no doubt as to the cut off date being met for any claimant to qualify for the payment – individuals who have not completed the training do not qualify as claimants – application of the Union dismissed.

BACKGROUND

[1] This matter comes before the Fair Work Commission (the ‘Commission’) in a very unusual way. The Australian Rail, Tram and Bus Industry Union (the ‘RTBU’ or the ‘Union’) had commenced proceedings against Railtrain Pty Ltd (the ‘respondent’ or ‘Railtrain’) in the Federal Court of Australia in matter NSD1995 of 2018. The proceedings concerned an application by the Union for orders and pecuniary penalties, under ss 545 and 546 of the Fair Work Act 2009 (the ‘Act’), in respect to a claim for compensation to employees, who it was said, were entitled to be paid for attending a Learners’ Training Program in order to be qualified as a Second Person or Driver Assistant. The claim amounts to $1,700 each for some 21 employees or prospective employees of Railtrain.

[2] On 22 June 2020, and without any admission of liability, the parties agreed to settle the proceedings by a formal Deed which included the following provision at Cl 8:

‘8. In the event of a dispute about whether a person is a Claimant, the parties agree to have that issue determined by an arbitrator between the parties or, if the parties cannot agree to an arbitrator, Deputy President Peter Sams of the Fair Work Commission (or, if he is unavailable, a member of the Fair Work Commission nominated by its President). The outcome of the arbitration will be binding on the parties and there will be no appeal or other basis to challenge the outcome. The parties will bear the cost of such arbitration equally.’

[3] As it was not entirely clear how the matter might be properly referred to the Commission, it was suggested that the Commission’s Form 1, be utilised for that purpose. Accordingly, on 25 August 2020, the Union filed an F1 application and the matter was allocated to me pursuant to the parties’ agreed term. In accordance with my usual practice, I convened a conciliation conference of the parties by phone on 16 September 2020, due to the COVID-19 restrictions on ‘in person’ proceedings. The matter did not resolve. I issued directions for the filing of submissions, with the parties agreeing to me determining the matter ‘on the papers’.

[4] As the meaning of the Agreement is in dispute, I set it out as Annexure ‘A’ to this decision.

Agreed Statement of Facts

[5] The parties helpfully provided an agreed statement of facts which I set out below:

‘1. From 2014 until early 2019 Railtrain and its associated entities ran various training programs or ‘schools’ at which groups of learners were instructed in theory and practical requirements to gain the skills, and have their competencies assessed, to become qualified Driver Assistants/Second Persons. These programs were labelled ‘Voluntary Upskilling Programs’.

2. On the 23 October 2018, the Australian Rail, Tram and Bus Industry Union (RTBU) filed proceedings in the Federal Court of Australia against Railtrain Pty Ltd (Railtrain) which have been designated by the Registrar of that court as matter NSD1995 OF 2018.

3. The claim filed by the RTBU pertained to all of its members who partook in the Voluntary Upskilling Programs from 2014 who were not paid in part or in full for the period they were in training.

4. On or about 22 June 2020 without any admission of liability, the RTBU and Railtrain agreed to settle the proceedings on the basis set out in the settlement deed (Annexure A)

5. On or about 16 June 2020, before the deed was finalised, the RTBU provided Railtrain a list of individuals in an effort to ascertain how many people would fall within the definition of ‘Claimant’ under the proposed settlement deed that was yet to be finalised. After this, the parties exchange various correspondence on this list and the individuals’ eligibility

6. On or about the 24 June 2020 the RTBU provided to Railtrain by email a list of 93 individuals who it believed were entitled to the settlement payment of $1700. The 93 individuals provided were individuals that were included in earlier emails to Railtrain.

7. 91 of the original list of 93 claimants provided by the RTBU have been paid by the Respondent.

Two (2) individuals not paid:

8. On or about 4 July 2020, Railtrain informed the RTBU by email that 2 individuals on the original list of 93 would not receive the settlement payment. The 2 individuals’ details are as follows:

a. Todd Kozlik (‘A’)

i. Mr Kozlik was not paid for part or all of the period in which he received his training.

ii. Mr Kozlik was an RTBU member at 1 May 2020.

iii. In or about 2018, Mr Kozlik completed 8 of the 16 training units of the Upskilling program

b. Paul Ellis (‘B’)

i. Mr Ellis was not paid for part or all of the period in which he received his training.

ii. Mr Ellis was an RTBU member at 1 May 2020.

iii. In or about 2017, Mr Ellis completed 3 of the 14 training units of the Upskilling program.

9. The parties’ position regarding these two claimants are as follows:

a. The RTBU maintains that Mr Kozlik and Mr Ellis fall within the definition of ‘Claimant’ under the settlement deed and are entitled to the settlement payment

b. Railtrain maintains that Mr Kozlik and Mr Ellis are not entitled to the settlement payment as they did not complete the Voluntary Upskilling Program and did not have their competencies assessed to become a qualified Driver Assistant or Second Person. Railtrain does not challenge that the two individuals meet the other criteria of being a ‘Claimant’.

19 Additional Claimants

10. After providing the original list of 93 individuals to Railtrain, the RTBU identified the following 19 individuals it believed were covered by the settlement deed:

a. 1 July 2020 – an additional 8

b. 3 July 2020 – an additional 3

c. 9 July 2020 – an additional 4

d. 29 July 2020 – an additional 2

e. 3 August 2020 – an additional 1

f. 19 August 2020 – an additional 1

11. The additional 19 individuals:

a. Participated in the Upskilling Program between the period of in 2014 up until 1 April 2020

b. Were not paid for part or all of the period in which they received training

c. Were members of the RTBU of 1 May 2020

12. The additional 19 individuals had not earlier been identified by the RTBU as falling within the definition of ‘Claimant’ as the RTBU was not aware that they had worked for Railtrain.

13. As soon as practicable after being informed by these 19 individuals of their involvement in the Upskilling program, the RTBU informed Railtrain that it believed these individuals were entitled to the settlement payment.

14. The additional 19 individuals have not been paid the settlement payment by Railtrain.

15. The parties’ position in regards to these 19 individuals are as follows:

a. The RTBU maintains that all 19 are entitled to the settlement payment

b. Railtrain maintains that although the 19 fall within the definition of ‘Claimant’, they are not entitled to the settlement payment as their names were provided to Railtrain after 22 June 2020.’

CONSIDERATION

[6] While I acknowledge and sympathise with the Union’s admission that its internal processes may have contributed to the fact that some claimants had not been processed by the ‘cut off’ date of 22 June 2020, it is important to note that 91 other claimants have met the terms of the consent position of the parties and have been paid the compensation. I have had regard to the Union’s novel and intriguing submissions concerning the meaning of the terms of the Deed. However, for the following reasons, the Union’s arguments cannot be accepted.

[7] Like the principles applying to the meaning of words or phrases in awards and enterprise agreements; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005, the words in the Deed must be read as a whole and each clause must be given its full meaning and effect. It is not permissible to delineate, ignore or downplay Steps 2-23 under the heading ‘Payment of Compensation’, or as the Union argues, treat these steps as merely some procedural (and presumably less relevant) adjunct to the purpose and intent of the Deed when read as a whole. It will be immediately obvious, that Steps 2-23 form the bulk of the Deed and are essential components, each of which has its own work to do on its own terms. The Deed cannot be read as some terms having less significance or practical application than others.

[8] It must be said that the date of 22 June 2020 is a significant milestone in the dispute, and is the very day the Deed was executed. It may be accepted that the Deed was carefully drafted. In my opinion, Cls 2 and 3 is not only definitive when Cl 3 uses the word ‘will’ in two places (indeed the word appears throughout the Deed), but the words are clear and unambiguous:

‘2. The parties agree to enter into good faith discussions to determine who all of the Claimants are by no later than 22 June 2020.

3. ARTBIU will by no later than 22 June 2020 write to each of the Claimants advising them of this settlement and will provide a copy of that advice to Railtrain.’

Further, the ‘cut off’ date is not conditional on any proviso or condition; least of all for the claimant list to be added on later, in an ad hoc and random fashion. Deeds are all about certainty. On the Union’s submissions, that is the opposite of this imperative.

[9] The Union’s submissions were ‘courageous’ and valiantly argued. However, I am not persuaded that the words in Cls 2 and 3 have a different meaning to that which their plain, ordinary meaning cannot possibly bear.

[10] It begs the question that if the Union had some doubts that its internal systems were inadequate or that unknown individuals might later come forward as claimants, then it should have expressly sought to make provision for such contingencies. The fact it did not do so, and pleads for understanding of its faults, cannot be accepted. Put simply, it is too late. It is also entirely prejudicial to Railtrain and contrary to what it understood it was signing up for in the Deed.

[11] As to the two individuals ‘A’ and ‘B’ being claimants, their claims are also rejected. ‘A’ had completed 8 out of 16 units of training and ‘B’ had completed 3 out of 14 units. It is pellucidly clear from the definition of the Upskilling Program that to gain the necessary competencies to be qualified as a Driver Assistant or Second Person, an individual must complete all the relevant units. Completing half or less of the course could not possibly mean an individual qualified and ipso facto must be paid the $1,700 compensation. Indeed, it would appear that ‘A’ and ‘B’ were not and or not employees of Railtrain. I would think that those who completed the program and achieved the required competencies, would be none too pleased that two others might have received the $1,700 for half the effort. In any event, my finding is that ‘A’ and ‘B’ have no claim.

[12] For the aforementioned reasons, I dismiss the Union’s application and the matter is concluded.

DEPUTY PRESIDENT

Appearances:

Ms M Davis appeared on behalf of the Union

Mr C Elston and Ms S Wills appeared on behalf of Railtrain

Hearing details:

2020.

Sydney (via Microsoft Teams):

24 September.

Printed by authority of the Commonwealth Government Printer

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Annexure ‘A’