Australian Rail, Tram and Bus Industry Union v Sydney Trains
[2023] FWC 117
•17 JANUARY 2023
| [2023] FWC 117 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2022/1435)
| DEPUTY PRESIDENT CROSS | SYDNEY, 17 JANUARY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]
This dispute concerns a dispute notification by the Australian Rail, Tram and Bus Industry Union (the RTBU/the Applicant), regarding the appropriate payment to relief Customer Service Attendants (CSAs) of Sydney Trains (the Respondent/Sydney Trains) who are rostered at stations other than an employee’s home base station and required to travel to the rostered temporary station to perform ‘relief’ duties.
The dispute concerns the operation and interpretation of the Sydney Trains Enterprise Agreement 2018 (the Agreement). The Agreement provides:
Clause 107 “Definitions and Interpretation”:
Passive Time means all time paid when not undertaking normal duties while travelling, waiting or walking shall not be taken into account for the purposes of calculating time in excess of ordinary hours for overtime purposes.
Clause 118.10. Passive Time:
Time paid to all Employees except Train Crew, for travelling, waiting or walking when not carrying an Employer's kit shall not be taken into account for the purpose of calculating time in excess of ordinary hours for overtime purposes when it eventuates: (a) before actual work commences; or (b) after actual work finishes on any straight Shift; or (c) on either portion of a broken Shift; or (d) when it forms no part of a Shift.
Clause 119 Excess Travelling Time:
119.1. Employees, other than relief Employees and Guards, who are required to undertake duty temporarily at a location to and from which they can travel daily, shall be paid the time spent travelling to and from their residence less the travelling time that would have been incurred to enable the same Shift to be undertaken at the home station.
119.2. All Employees required to undertake training courses or courses of a like nature at locations other than their home station shall be paid at single rates for any time taken in travelling to and from the training location in excess of that usually taken in travelling from their home to their regular place of employment.
Clause 120 Travelling Time:
120.1 . All time spent by Employees travelling on duty, shall be paid for on the basis of actual time spent travelling, inclusive of up to a maximum of 2 hours for any intermediate waiting time, subject to a maximum payment for 12 hours in each 24 hour period. Where a sleeping berth is provided the maximum payment shall be for 8 hours. Circumstances contained within the Drivers Rostering and Working Arrangements, or the Guards Rostering and Working Arrangements, shall be treated in accordance with the payments specified in those arrangements.
120.2. Employees shall not be entitled to payment for any travelling or resting time when they are: (a) transferred from their home station at their request. except in the case of promotion; and (b) transferred due to strike conditions.
120.3. Travel time, for other than Train Crew who shall be paid in accordance with their passive time Agreement, is paid at ordinary time, except on Sundays when the rate shall be time and one half.
Clause 121 Travelling and Incidental Expenses, includes:
121.7. Operational Wages Employees, who are on the general or roster relief staffs (including Employees acting on same) shall, when engaged on work which does not permit them to return to their home station and/or residence daily, be paid an allowance as set out at item 19 of Schedule 48 per week of 7 days applying the times of sub-clause 121.4.
121.8. Operational Wages Employees engaged on work away from their home stations but able to travel from and to their home station daily shall, if absent from their home station over 10 hours calculated from the time of signing on at the home depot to signing off at the home depot, be allowed as expenses as set out at item 21 of Schedule 48.
Schedule 4B provides in part:
| Industry allowance | Post approval by FWC | 12 months after approval | 24 months after approval |
| Travelling and Incidental Expenses | |||
| Item 10 Rate per Day | $197.60 | $203.55 | $209.65 |
| Item 11 Per service | $49.45 | $50.95 | $52.50 |
| Item 12 per Meal / Overtime meal | $11.80 | $12.15 | $12.50 |
| Item 13 after 4 weeks per day | $173.65 | $178.85 | $184.20 |
| Item 14 Per service | $43.40 | $44.70 | $46.05 |
| Item 19 Holiday Relief / Temp Trans. | $889.35 | $916.05 | $943.55 |
| Item 20 per Meal / Overtime meal | $19.85 | $20.45 | $21.05 |
| Item 21 Absent over 10 hours | $11.80 | $12.15 | $12.50 |
There was no apparent issue as to whether the dispute related a matter arising under the Agreement, nor that the requisite steps in the disputes procedure clause had been followed.
Sydney Trains accepted that the questions posed for determination were:
(1) Does an entitlement arise under the terms of the Agreement for Customer Service Attendant (CSA) (Permanent Augmented Relief (PAR) Staff) for payment(s) to compensate employees for travel in circumstances where employees are rostered to work at stations, other than the employee’s Home Base station, prior to the start and after the finish of the rostered shift?
(2) Does the entitlement arise pursuant to clause 118.10 and/or in conjunction with clause 120.3 of the Agreement?
(3) In the alternative, does an entitlement arise pursuant to clause 121.7 and Item 19 of Schedule 4B or clause 121.8 Item 21 of Schedule 4B of the Agreement?
The RTBU submitted the answer to questions (1) and (2) is ‘yes’. In the alternative, the RTBU submitted that if the Commission finds that the answer to question (1) is ‘yes’ and question (2) is ‘no’, then it is open to the Commission to determine in the affirmative for question (3).
Sydney Trains submitted that the answer to all questions posed is that no entitlement arises (for the employee circumstances described) in the manner urged by the RTBU.
The Evidence
At the Conference conducted in this matter on 8 February 2022, I issued directions for the filing and service of evidence and outlines of submissions. Apart from submissions, the only evidence filed were two statements of Mr Konstantine Antoulis filed by the RTBU. Mr Antoulis was cross-examined in the proceedings.
Mr Antoulis gave evidence regarding rostering arrangements, travel that he undertook between September 2018 and March 2019, and payments made in relation to that travel. Significantly, Mr Anthoulis annexed to his first statement what he described as “an updated draft document that set out, among other things, how certain payments were to be approved and processed” (the Draft Document). The Draft Document contained the following “Example”:
Example:
Relief CSA James Brown’s home station is Liverpool but is rostered to work A/SDM 0600 at Merrylands.James is entitled to claim travel expense.
On the page following the above example a draft Travel and Incidental Expense Claim Form is completed with Mr Brown listed as being entitled to “Meal expense claimed”.
Mr Antoulis’ evidence was severely compromised when tested, though not as a result of any lack of candour on the part of Mr Anthoulis. Mr Antoulis’ cross-examination regarding a table that allegedly replicated his roster and recorded alleged traveling time included the following:[1]
If you go to the third column there it says 'Monday 15 October 2018.' It says as I understand it in the cell below you had a shift from 11 am to 7 pm at Pendle Hill?‑‑‑Yes.
The shift went for eight hours. I think it's an estimate. It's explained in the pages above it's a travel time of one hour and 27 minutes to Pendle Hill?‑‑‑That's not accurate. As we said before, as we discussed that before this thing it's wrong. We discussed that before. The only correct thing on that about the travel time it's on Hornsby Station on 20 October 2018. Yes, that's - then Lidcombe Station.
So what's wrong about an hour and 27 minutes, what would it have actually taken you to get to - - -?‑‑‑It's less than one hour 27 minutes to go from Ropes Crossing to Pendle Hill or (indistinct).
What would you think it would be?‑‑‑Thirty-five minutes, 30, sometimes 40.
So this table is just wrong?‑‑‑Yes. The only - as I said the only correct thing, 100 per cent, it's the salary 20 October 2018, and that's - I have been paid for that. So all the rest, (indistinct), Mount Druitt, St Mary's, especially St Mary's, it's a five minutes drive from Ropes Crossing, it's not - - -
So this table that I think Mr Hart said earlier today - or I understand the purpose of this table is to illustrate you travelling a lot is actually wrong, that you travelled - - -?‑‑‑That's correct.
- - - nothing near that quantity of hours?‑‑‑That's correct. Only, as we mentioned earlier, only the 20 October is correct, and they're actually correct times of travel, correct dates of travel is on my first statement on section 31 that he has down all the dates. That's the actually dates that I travel more than that amount each week.
So where did you live in October 2018?‑‑‑In Ropes Crossing.
So is it correct to say that the table at page 11 you said is just wildly wrong really, isn't it, much shorter travel times?‑‑‑That's correct. As I said before the only correct thing is on 20 October 2018. All the rest is wrong. Like the locations and what time, yes, they're accurate, but travel time is wrong.
Further, regarding payments actually made, the evidence of Mr Antoulis was:[2]
Yes, it starts at 465, and then if you just go a few pages to paragraph 31, you mentioned it just before there's a table under your paragraph 31?‑‑‑Yes, that's correct. Paragraph 31, that's the stations that I actually had to travel one hour each way.
One hour or more I guess?‑‑‑I'm saying one hour each way, that means two hours in total.
Or more?‑‑‑Yes, or more, yes, that's correct, and I have been paid for these stations. I'm not saying I haven't been paid.
When you say you have been paid what exactly did you get paid?‑‑‑I got an extra allowance that we call it - I don't know if it's still the same travel allowance, and it was $11.80 for each day.
Which you understand now to be the allowance referred to in clause 121.8 of the enterprise agreement - shall I take you to that - which is $11.80?‑‑‑Yes.
Was your home station - - -?‑‑‑Parramatta.
- - - during 2018 was Parramatta Station?‑‑‑Parramatta.
Did you go to Parramatta Station before you started work at any of the stations listed in that table?‑‑‑No.
Applicant’s Submission
The RTBU submitted that relief employees, employed by Sydney Trains in the classification of Customer Service Attendant–or Permanent Augmented Relief employee are covered by Section 4 of the Agreement. The affected cohort of employees, as with all Sydney Trains employees, are assigned a ‘home station’ in accordance with clause 42 of the Agreement. The distinction however is that relief CSA employees rarely, if ever, work from their home station, but are instead, issued a roster, in advance, to work at stations across the network.
The RTBU made submissions regarding the nature of the relief rosters assigned to the cohort of employees. The RTBU contends that in circumstances where the cohort of workers are rostered to perform relieving duties and in order to fulfil the terms of the employment contract, employees are obliged to travel extensively across the network. Mr Anthoulis in his statements describes the extensive travel undertaken.
The RTBU notes that the Respondent submitted that the RTBU has not referred to any instance of Sydney Trains rejecting an employee claim to be paid money under any clause of the Agreement. The RTBU submitted Mr Anthoulis’ reply statement contends that between September 2018 –April 2019, submitted payment forms for travel expenses had been approved by Sydney Trains for the amount $11.80. That amount corresponds with Item 21 of Schedule 4B “Allowances” of the Agreement and is captured by clause 121.8 of the Agreement. In his second statement, Mr Anthoulis states that in April 2019 he submitted further claims which were subsequently denied.
The RTBU went on to ascribe an interpretation contrary to that applied by the Respondent, and invited the Commission to find an alternative interpretation as applicable.
In answer to Question 1 (1), whether an entitlement arises for payment to Relief PAR under the Agreement either because of the operation of clause 118.10 or in conjunction with clause 120.3 of the Agreement –the RTBU submits that answer is ‘yes’.
In respect of whether an entitlement arises under clause 119.1, the RTBU urges the Commission to answer ‘yes’. In the alternative, where the Commission does not agree with the RTBU’s submissions with respect to the questions, it submits that it is open to the Commission to determine that an entitlement arises under clause 121.7 and 121.8 of the Agreement.
Respondent’s Submission
The Respondent submitted that the RTBU has not brought any actual claim for the Commission to determine. Its evidence mentions, but does not provide any details of, travel claims that went unpaid.
In its closing submissions, the RTBU referred to the witness evidence of Mr Anthoulis asserting there were unpaid claims for travel expenses after April 2019, however noted that Mr Anthoulis stated in his oral evidence that the calculations used in his evidence were all wrong and noted that the RTBU did not seek to correct them. Accordingly, there is still no factual scenario before the Commission.
Conclusion
The task of enterprise agreement interpretation is directed at finding the common intention of the parties by reference to what a reasonable person would understand the parties intended from the words used in their agreement. The starting point is the ordinary grammatical meaning of the words followed by any contextual indicators.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited (Berri),[3] the principles of interpretation of enterprise agreements were outlined by the Full Bench in Berri . Those principles included:
“…
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.
…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 aid 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.
…
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.”
While each party eschewed the proposition that there existed ambiguity in the terms of the Agreement, it is clear from the respective positions of the parties that they assert that the Agreement is susceptible to more than one meaning.
The RTBU has not referred in any discernible detail to any instance of Sydney Trains rejecting an employee claim to be paid an amount under any clause in the Agreement. The height of the allegation is in the second statement of Mr Anthoulis where he stated “At the start of April of 2019 our Parramatta region there was a change to the payroll officer. Later, when I submitted my forms, payroll declined payment.”
Not one calculation purporting to constitute the correct application of the Agreement provisions has been advanced by the RTBU, relating to Mr Anthoulis or any other employee. It may be that such calculation may, or may not, point towards the common intention of the parties. However, in the circumstances, the Commission is left guessing as to the consequences of the interpretation advanced.
In the circumstances of this matter, the Commission is being asked to ascribe meaning to the relevant provisions of the Agreement in a vacuum, without recourse to, or the assistance of, the usual contextual aids. That is not a course that it is appropriate to adopt, and inappropriately invites the Commission to provide an overlay of meaning to what the parties submit are the unambiguous words of the Agreement.
In the absence of a factual scenario, even a hypothetical scenario, in which Sydney Trains has rejected, or might reject, an employee’s claim for an entitlement, the Commission cannot make any meaningful determination or orders in this matter.
The Application should be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Hart, of the Applicant.
Mr S Jenkins-Flint, of the Respondent.
Hearing details:
2022.
October 11.
Sydney.
Final written submissions:
2022.
November 25.
Sydney.
[1] Transcript PN 122 to 130.
[2] Transcript PN 133 to 140.
[3] [2017] FWCFB 3005, at [114].
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