Australian Rail, Tram and Bus Industry Union v Sydney Trains
[2022] FWC 1239
•24 MAY 2022
| [2022] FWC 1239 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2022/734)
| DEPUTY PRESIDENT CROSS | SYDNEY, 24 MAY 2022 |
Alleged dispute about any matters arising under the enterprise agreement
This dispute concerns a dispute notification by the Australian Rail, Tram and Bus Industry Union (the RTBU/the Applicant), regarding the refusal by Sydney Trains (the Respondent/Sydney Trains) to pay a transfer allowance to Mr David Page pursuant to cl 47.8 of the Sydney Trains Enterprise Agreement 2018 (the Agreement).
The dispute concerns the operation and interpretation of cl 47 of the Agreement. That clause provides:
“47. TRANSFER ALLOWANCES
Transfer/Resettlement at the Initiative of Sydney Trains
47.1. General
Where an Employee has been appointed or redeployed into a position that necessitates the Employee relocating their home they will be reimbursed for all reasonable costs of moving. Employees may be reimbursed as these expenses are incurred.
47.2. Pre Location Visit
(a) Sydney Trains will reimburse reasonable costs associated with a pre-location visit based on the provision of receipts.
(b) These costs include a maximum of three nights -accommodation, excluding travel time, hire car expenses if incurred, all meals according to the Travel and Incidental expenses of the Agreement. If the Employee does not accept the relocation the Employee will not be reimbursed for these costs. The visits are treated as on duty for that portion of the visit approved by Sydney Trains. Claims for excess travel time, overtime or any other like payment will not be considered. In most cases travel will be by train unless the Employee cannot comfortably reach the destination in one day.
47.3. Removal Costs
Sydney Trains will reimburse the costs of moving the Employee's personal effects to the new location. Reimbursement will be subject to the presentation of three quotes. The Employee will be entitled to move their household furniture and effects and generally includes a household's normal contents and outdoors such as play equipment, garden tools, portable Barbeque and small garden shed. The relevant Executive Director may approve the removal of certain additional items over and above normal removal entitlements, subject to the supply of all receipts.
47.4. Storage
Sydney Trains w111 arrange and pay tor the storage of household goods and effects until the Employee finds suitable accommodation i.e. the Employee moves in to their new home. Subject to the relevant Level 2 Manager's approval Sydney Trains will reimburse the storage costs of certain effects for up to one year.
47.5. Travel To New Location
It is expected that an Employee who owns a motor vehicle will drive the motor vehicle to the new location except as otherwise approved by Sydney Trains. Where the Employee owns a second motor vehicle it is expected that another family member will drive the second vehicle to the new location. In both instances Sydney Trains will meet the costs associated with the driving of the motor vehicle. Sydney Trains will meet all reasonable accommodation and meal costs incurred en-route to the new location.
47.6. Temporary Accommodation
If the Employee is required to move out of their current home before they are due to leave for the new position Sydney Trains will arrange temporary accommodation for the Employee and their immediate family for a period of no more than seven days prior to travel to the new location. Any extension will be subject to the relevant Level 2 Manager's approval and only in exceptional and unavoidable circumstances. Sydney Trains will assist in the cost of short term accommodation at the new location for up to 14 days after arrival at the new location or until suitable permanent accommodation becomes available i.e. to a maximum of six weeks. Any extension will be subject to the relevant Level 2 Manager's approval and is limited to a period of 14 days.
47.7. Resettlement Leave
The Employee will be entitled, subject to operational requirements, up to a maximum of five days paid leave to pack, unpack and oversee the transfer of their belongings, if necessary. Travel to the new location is regarded as on duty.
47.8. Permanent Accommodation
(a) Home Rental (Bond)
If an Employee was renting their home at the old location they will be eligible for costs associated with breaking the current lease and advance on the bond for a rental property at the new location, which is to be repaid, either in a lump sum payment or deducted from the Employee's pay over a six month period.
(b) Home owner
i.If an Employee owns a home in the old location they will be eligible to receive assistance in the cost of selling that home, the cost of purchasing a home in the new location in order to receive sale and purchasing assistance Employees must sell their current property and purchase a new property at the new location within 12 months of the move.
ii.The following sales costs will be reimbursed:
A. selling agent's commission, except for an unsuccessful auction;
B. marketing costs;
C. solicitors/conveyancing costs and disbursements;
D. mortgage discharge or penalty exit fees up to a maximum of six months interest;
E. if a solicitor/conveyancer was not engaged, the actual costs incurred with the sale of the dwelling; and
F. if a selling agent was not engaged, expenses incurred in advertising up to a maximum of 10% of the commission that would otherwise have been payable.
iii. The following purchase costs will be reimbursed:
A. solicitors' conveyancing professional costs and disbursements;
B. valuation fees and stamp duty;
C. if Solicitor/Conveyancer was not engaged, expenses incurred in connection with settlement expenses;
D. mortgage setup fees; and
E. expenses incurred in relation to housing loan insurance, building inspection and pest inspection.
iv. Costs are to be paid by the Employee and subject to reimbursement on the production of sufficient receipts/evidence. As some of the above benefits are subject to fringe benefits tax they will be reported on the Employee's group certificate.”
There was no issue as to whether the dispute related to a matter arising under the Agreement, nor that the requisite steps in the disputes procedure clause had been followed.
Sydney Trains accepted that:
a) The Fair Work Commission (the Commission) has jurisdiction to determine the dispute by arbitration (s.739(4) of the Act);
b) The Commission is not precluded from dealing with the dispute; and
c) The Applicant is covered by the Agreement and has standing to agitate the dispute in the Commission.
The questions before the Commission were correctly outlined by Sydney Trains, to the apparent agreement of the RTBU, to be:
Q 1. Was Mr Page appointed or redeployed, at Sydney Trains’ initiative, to a position at Wollongong Signalling Complex?
Q 2. Did Mr Page’s change in work location to Wollongong Signalling Complex necessitate Mr Page’s relocation of his home?
Sydney Trains submitted that if the answer to either of the above questions is ‘no’, the Applicant’s claim fails.
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.
The following persons provided witness statements in the proceeding:
(a) For the CEPU:
· Mr David Page, the Applicant, undated;
· Mr Craig McCall, an Area Controller 3, based at the Homebush Recovery Centre, undated;
· Mr Glenn Manning, an Area Controller 2 based at Granville Signal Box, undated; and
· A reply statement from Mr Page dated 29 March 2022.
(b) For Sydney Trains:
· Mr Grant Easton-Chambers, Senior Manager Incident Response with Sydney Trains, dated 22 March 2022; and
· Ms Rachael Kelly, Manager Employee Relations with Sydney Trains, dated 22 March 2022.
All deponents of statements, except for Mr McCall, were cross-examined. Mr McCall was unavailable to give evidence at the hearing and his statement was admitted into evidence subject to appropriate weight being applied to his evidence. Further written submissions of the parties were received after the hearing of the matter.
After receipt of all the evidence, there were only a limited number of factual disputes between the parties. The determination of those factual disputes is undertaken in circumstances where those facts relate to the various issues for determination.
The Evidence of Mr Page
Upon receipt of the statements in the matter, it became apparent that Mr Page had failed to refer to and include various clearly relevant matters and events in his original statement (being those outlined in paragraphs [20] to [23] below), though they were addressed partially in his reply statement after being first referred to in the evidence of Sydney Trains. That failure raised concerns regarding the candour of Mr Page, and those concerns were confirmed in his oral evidence.
Mr Page was clearly aware of perceived weaknesses in his claim and I find he sought to impermissibly tailor his evidence, both written and oral, to suit the case that he thought would most likely result in his receiving allowances, rather than evidence of what in fact occurred. As a consequence, where the evidence of Mr Page differed from any of the evidence of Sydney Trains, I have preferred the evidence of Sydney Trains’ witnesses, particularly Mr Easton-Chalmers, who gave clear, candid and responsive evidence.
The RTBU addressed the demeanour of Mr Page in their written submissions after the hearing. It was put that what were described as Mr Page’s acts of deception were his response to being extremely nervous about participating in a hearing. It was put that Mr Page is a blue-collar worker, the surroundings were utterly foreign to him, and he was answering the questions to the best of his ability.
I reject the above submission. While the hearing of the matter occurred via Microsoft Teams using video, I was able to observe the manner and demeanour of Mr Page. He did not appear at all nervous or disoriented when giving evidence. To the contrary, he appeared relatively relaxed and considered in the evidence he chose to give.
Background Facts
Mr Page has been employed by Sydney Trains in various signalling roles since 7 August 2006. In 2020, Mr Page was working as an Area Controller Grade 2 at Blacktown Signalling Complex.
On or around 23 January 2020, Mr Page was informed in formal consultation held with all impacted employees that from July 2020, Blacktown Signal Box would be recommissioned at the Rail Operation Centre (ROC) in Alexandria NSW (the Amalgamation). During this consultation, Mr Page was informed that there would be positions made available at Blacktown, the Rail Operations Centre in Alexandria (the ROC), Granville and Wollongong. The Amalgamation occurred in July 2020 and reduced the number of employees required to work at Blacktown Signalling Complex. At the start of that consultation meeting, Mr Easton-Chalmers said:
"There will be 9 AC2 roles at Blacktown, however, given that there are 16 impacted employees, some people will need to be transferred to other locations. The locations that are available are Granville with approximately 5 AC2 roles, the ROC with approximately 15 AC3 roles and Wollongong with approximately 3 AC2 roles. The ROC and Granville are the default options. We have included Wollongong as an option we are willing to offer for anyone interested in a sea change, however no one will be forced or directed to move there. With 4 options, the hope is that everyone will be placed at their first preference but that is all dependent on how the preferences come back.”
At the conclusion of the consultation meeting on 23 January 2020, after receiving questions from employees, Mr Easton-Chalmers said:
“Whilst I can't confirm until we receive executive approval, if anyone is to consider a relocation to Wollongong, we may be able to provide reimbursement of removalist costs and relocation leave. This isn't an entitlement but something that we are willing to explore if anyone opts to relocate and accept a position at Wollongong."
On 5 February 2020, Mr Page submitted his preferences for his future employment locations, noting his first preference as Blacktown, followed by Granville, Wollongong, and finally the ROC.
On 10 February 2020, Mr Page was notified of his appointment to Granville, approximately a 30-minute drive from his home at the time in St Marys. The appointment was due to commence on 4 July 2020.
On 13 February 2020, after being notified of his appointment to Granville, Mr Page initiated a discussion with Mr Easton-Chalmers regarding Wollongong Area Controller positions. On 14 February 2020, Mr Page verbally requested to work at Wollongong Signalling Complex, and Mr Page repeated this request in writing by email.
On 18 February 2020, Mr Easton Chalmers emailed Mr Page advising as follows:
“From July 4, Blacktown and Richmond panels will be commissioned at the ROC and Katoomba panel will remain at Blacktown. Consultation on future locations for employees commenced on 23 January. Employees were asked to submit their location preferences and following this, future locations were proposed to all staff on February 10. A further week for feedback was provided. The consultation period has now closed.
From 4 July you will hold a position at Granville on a temporary basis. I note that you have requested to move to Wollongong in January 2021. If that remains your preference, subject to business requirements, I will arrange for an offer of employment to be made to you later this year.”
On or around 21 February 2020, Mr Page went to Mr Easton-Chalmers’ office, and had a conversation as follows:
Mr Page said: “I want to know how it’s going to work, my move to Wollongong?”
Mr Easton-Chalmers said: “I will be looking to place a position on hold for you.”
Mr Page said: “I want to make sure that there will be a position for me there before I look to move my family up there.”
Mr Easton-Chalmers said: “There are vacancies in Wollongong, however you will never be directed to move there. Sydney Trains is looking to appoint people to Granville and the ROC, but if you are interested to move your family to Wollongong, I will try to get you a job offer there.”
Mr Page said: “That would be great. I would be interested to move there next year because I don’t want to change my daughter’s school mid-year and I want her to start fresh in a new year at a new school. My daughter is attending counselling and I need time to search for a suitable replacement in the new region. I also need time to prepare our home for sale and to oversee the sale of it. Is there a way that I can remain in Sydney until January next year?”
Mr Easton-Chalmers said: “I’m sure that we can make temporary arrangements for you whereby you remain in Sydney, based at Granville, until next year when you’re ready to move, if that assists you. There are no entitlements under the EA for this move because it’s not part of the restructure. However, on a discretionary basis, I will also seek to get approval for you for reimbursement of removal costs for your furniture and maybe some leave for moving.”
Mr Page said: “Thank you, that would be a big help.”
On 27 February 2020, Mr Easton-Chalmers emailed Mr Page as follows:
“Further to our discussion last week I can appreciate that the wording in the email below wasn’t enough to give you an assurance that a position in Wollongong will be available for you to accept.
Please be advised that I have placed a hold on position number 50056275 (PMR Area Controller 2 Wollongong).
As soon as the relevant approvals have been obtained regarding the structure changes as a result of the Blacktown ATRICS project a letter of offer will be prepared offering you the above position with an early 2021 commencement date.
I hope that this gives you the reassurance that you and your wife Jane are seeking.”
On 19 May 2020, Sydney Trains sent Mr Page an offer of work at Wollongong Signalling Complex from 4 January 2021, which Mr Page accepted by signing the offer four days later. The terms of that offer, and Mr Page’s acceptance, were:
Mr Page commenced his employment, as appointed, at Granville on 4 July 2020.
Mr Page commenced his employment at Wollongong Signalling complex on 4 January 2021.
Mr Page did not move from St Marys to Wollongong until around August 2021, and so spent around six months commuting from St Marys to Wollongong for work.
On 14 December 2021, the RTBU first advanced Mr Page’s claim that is the subject of these proceedings.
A document titled Deed: Managing Excess Employees in the Rail Entities 2018 (the Deed) provides guidance on how far employees can reasonably be expected to commute to and from work. For the purpose of Sydney Trains’ ability to relocate an employee’s workplace without triggering a right to severance benefits, the Deed defines “Substantially different Workplace” as a workplace requiring commuting in excess of 90 minutes. Mr Page’s commute from St Mary’s to Wollongong Signalling Complex was 83 minutes.
Applicant’s Submissions
Regarding the interpretation of cl 47 of the Agreement, the RTBU submitted:
“In the present matter, the ARTBIU submits that the provisions of clause 47 are not so [sic] ambiguous but where context assist[s] in distilling the intention and meaning of the provision, it is relevant to understand the operations of the employer. The employer is responsible for managing a large and geographically disparate workforce and the provisions of clause 47 of the enterprise agreement should be construed to the extent that where circumstances arise, employees may be required to relocate to undertake the performance of their duties. In such circumstances, clause 47 operates to ensure arrangements are put in place to meet the expenses associated with relocation.
For a relevant employee to be entitled to be paid the transfer allowance on the face of clause 47.1 the following conditions must be satisfied:
(a)the employee has been appointed or redeployed into a position; and
(b)such appointment or redeployment necessitates the employee relocating their home.
If those conditions are satisfied, the terms of the remainder of the clause stipulates that an employee “will be reimbursed for all reasonable costs of moving” which are set out at clause 47.3-47.8(b).
Where an employee satisfies the provisions of clause 47.1, an obligation arises on the employer such that it will reimburse all reasonable costs of moving. In the sense that an appointment or redeployment necessitates relocation is something that arises out of what is contemplated to be necessary for work to be carried out.”
(Emphasis added)
The RTBU submitted that Mr Page’s appointment to Wollongong was not voluntary but due to the amalgamation of the Blacktown signalling panels, which resulted in him being displaced and completing an Expression of Interest (EOI) as part of Sydney Trains’ process. While his initial EOI indicated Granville as his second preference, he sought to change his second preference to Wollongong Signal Complex, which Sydney Trains agreed to accept.
The position Mr Page took up at Granville was submitted to be a temporary employment arrangement, and to Sydney Trains’ benefit, due to there being vacant positions. Granville Signal Box was scheduled to close about six months after Mr Page took up the position.
Mr Page acknowledged that when he signed a letter of employment for the position at Wollongong, it was in the context of an acknowledgement, and not an agreement, to waive his rights to claiming his entitlements under cl 47. Mr. Page did not advise Sydney Trains about his intention to claim his entitlements under cl 47 as he claimed he was scared that the offer of a position at Wollongong would be rescinded.
The RTBU submitted that the geographical distance of the redeployment required for it to be considered that the redeployment necessitates the employee relocating their home, thereby enlivening an entitlement under cl 47, is to be determined by reference to geographical limitations to which Sydney Trains’ employees can be deployed under the Agreement.
The RTBU submitted that Sydney Trains cannot unilaterally change an employee’s employment location, and that cl 47 of the Agreement contributes to managing circumstances where a redeployment is contemplated. The RTBU submit that Sydney Trains, by engaging in an EOI process, were keenly aware that it was impermissible to unilaterally alter the work location of Mr Page and the cohort of affected workers without their consent.
The RTBU note that cl 47 deals with the transfer and resettlement of Sydney Trains’ employees at the initiative of Sydney Trains. The RTBU submitted that cl 47.1 outlines the intention of the clause, and there is no mention of the entitlement being constrained by distance or time travelled to or from work.
The RTBU submit that, when applying cl 47 to Mr Page’s circumstances, Mr Page was redeployed and appointed into Area Controller Grade 2 at Wollongong Signal Complex, via Granville Signal Box temporarily.
Respondent’s Submission
The Respondent submitted that cl 47 has a plain and unambiguous meaning, which entitles employees to benefits when they are transferred to a distant location at Sydney Trains’ initiative. Sydney Trains submits it is clear from the evidence of conduct between February and May 2020, that Mr Page was appointed to Granville at the initiative of Sydney Trains, and his transfer to Wollongong was entirely, and repeatedly, self-initiated. Even when having transferred workplace to Wollongong Signalling Complex, this transfer did not necessitate Mr Page moving his home. Accordingly, Sydney Trains submits the answer to both questions for determination is ‘no’.
Sydney Trains submitted that the sub-heading, “Transfer/Resettlement at the initiative of Sydney Trains”, is important, and that it clearly requires the Transfer/Resettlement in question to be initiated by Sydney Trains for cl 47 to apply. Sydney Trains submitted that the clause does not apply to a transfer initiated by an employee.
The Respondent submitted that although Sydney Trains initiated a transfer of Mr Page (and others), it did not initiate the transfer in question. The Respondent considered that the evidence overwhelmingly shows that Mr Page took the initiative to transfer to Wollongong, and though vacancies in Wollongong were advertised by Sydney Trains, the decision to seek, accept, and execute a relocation of workplace to Wollongong Signalling Complex was Mr Page’s alone.
Sydney Trains submitted that they ensured employees including Mr Page knew Wollongong was merely an option that could be requested, but not an option that would be forced upon employees. Mr Page was entirely free not to initiate discussions with Mr Easton-Chalmers about transferring to Wollongong.
The Respondent submitted that the difference between an appointment (or redeployment) and an offer is manifest in the letters sent to the seven employees who did not retain a position at Blacktown. The Respondent noted that the appointment and redeployment letters called for no employee response, and that these were actions done to, not by, employees. The Respondent submitted that the letter to Mr Page was starkly different in that expressed that any move to Wollongong was his choice.
The Respondent noted that following the restructure at Blacktown Signalling Complex, which was initiated by Sydney Trains, Mr Page was in fact appointed to Granville. The Respondent submitted that were it not for Mr Page’s self- initiated move that he undertook on 4 January 2021, Mr Page would still be working at Granville.
Sydney Trains submitted that if it were bound by the Applicant’s interpretation, it would have to stop offering geographically distant positions to employees if suitable local positions are available for appointment. This would be to the detriment of employees impacted by staff reductions who may, as occurred here, prefer a more distant position for their own personal reasons.
Finally, the Respondent submitted that Mr Page’s transfer to Wollongong did not necessitate his moving home. The Respondent submitted that the standard of “necessitates” is high. The Macquarie dictionary defines “necessitates” as “to make necessary, to compel, oblige, or force”. In the context of cl 47.1, it was submitted, this will be a change in workplace where the home move is necessary to undertake the role. Travelling from St Mary’s to Wollongong Signalling Complex must be more than just inconvenient or difficult.
The Respondent submitted that the Deed provides guidance on how far employees can reasonably be expected to commute to and from work. For the purpose of Sydney Trains’ ability to relocate an employee’s workplace without triggering a right to severance benefits, the Deed defines “Substantially different Workplace” as a workplace where the commute would be in excess of 90 minutes. The Respondent noted that Mr Page’s commute from St Mary’s to Wollongong Signalling Complex was 83 minutes.
Applicant’s Reply Submission
The RTBU submitted that cl 47 of the Agreement does not distinguish between being directly appointed versus appointed, nor does the provision expressly or impliedly stipulate a minimum distance or length of travel time that must be met before an entitlement arises or is triggered.
The RTBU submitted that the Respondent acknowledged Mr Page’s entitlements under cl 47 by reimbursing the removalist fees and authorising five days’ leave for relocation. The RTBU submitted that this conduct amounted to cherry-picking the parts of cl 47 the Respondent deemed Mr Page deserved to be paid but refusing to be bound by the complete terms of the whole provision. It was further submitted:
“Accordingly, Sydney Trains’ own conduct is such that it has sought to weasel out of its obligations under the Agreement by dressing up the forced redeployment of staff as nothing more than a voluntary expression of interest and or [sic] a life-style choice.”
Finally, the RTBU submitted that the Respondent has deliberately contorted the reason why Mr Page relocated to Wollongong. The RTBU submitted that, at all times, Sydney Trains controlled the introduction of new technology and the planned closure of the Blacktown Signal Complex. The RTBU noted that the entirety of the process was at the Respondent’s initiative in so far as the Respondent instigated the consultation process, controlled the expression of interest, determined a short-list of applicants, and determined the available Signal Boxes or complexes to which those employees were to be placed.
Consideration
The principles relevant to the interpretation of enterprise agreements were as expressed by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited (Berri). I note that the RTBU and the Respondent agreed that the relevant terms of the Agreement are unambiguous.
I agree that 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.
Those principles were summarised by the Full Bench in Berri (at paragraph [114]) 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 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.
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.”
As observed at principle 1 in Berri, the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose, with such context being apparent from:
a) The text of the agreement viewed as a whole;
b) The disputed provision’s place and arrangement in the agreement; and
c) The legislative context under which the agreement was made and in which it operates.
I agree that the sub-heading, “Transfer/Resettlement at the initiative of Sydney Trains”, is important. It makes it abundantly clear that the Transfer/Resettlement in question to be initiated by Sydney Trains for cl 47 to apply. The clause accordingly does not apply to a transfer initiated by an employee.
Further, the use in cl 47.1 of the words “has been appointed or redeployed” must necessarily be given their ordinary and plain meaning. The Respondent correctly referred to the Macquarie Dictionary definitions, where:
(a) “Appoint” is defined as “to nominate or assign to a position, or to perform a function; set apart; designate”; and
(b) “Redeploy” is defined as “to rearrange, reorganise, or transfer (a person, department, military unit, or the like), as in order to promote greater efficiency”.
The actions described by the phrase “has been appointed or redeployed”, are actions of the Respondent that are imposed upon employees covered by the Agreement. The Respondent makes the decision to appoint or redeploy, and so those actions may result in “Transfer/Resettlement at the Initiative of Sydney Trains”.
The evidence was clear that on 10 February 2020, Mr Page was notified of his appointment to Granville, approximately a 30-minute drive from his home at the time, in St Marys. The appointment was due to commence on 4 July 2020. There is no suggestion that the transfer to Granville enlivened the provisions of cl 47.
The evidence was also abundantly clear that the subsequent consideration of, and transfer to, Wollongong was entirely at Mr Page’s initiative.
While in the formal consultation held with all impacted employees on 23 January 2020 the possibility of a transfer to Wollongong was raised, it was merely an option that could be requested, but not an option that would be forced upon employees. There was no need to transfer any employees to Wollongong. I accept that Mr Easton-Chalmers said:
“We have included Wollongong as an option we are willing to offer for anyone interested in a sea change, however no one will be forced or directed to move there.”
From 13 February 2020, Mr Page was the person who initiated discussions with Mr Easton-Chalmers regarding Wollongong Area Controller positions. On 14 February 2020, Mr Page verbally requested to work at Wollongong Signalling Complex, and Mr Page repeated this request in writing by email.
Mr Easton-Chalmers thereafter, in what can only be described as compassionate human resources management, sought to satisfy the desires of Mr Page to relocate to Wollongong. Were he to have foreseen the result of his compassion I am sure he would have merely maintained the appointment of Mr Page to Granville and sent him a letter in the form sent to other employees redeployed as part of the Amalgamation confirming relocation to Granville on 19 May 2020. Instead, also on 19 May 2020, Mr Easton-Chalmers sent Mr Page the offer outlined in paragraph [24] above.
Some criticism has been directed towards the Respondent by the RTBU regarding the Respondent maintaining in the consultation meeting on 23 January 2020, and the offer of 19 May 2020, that cl 47 did not apply generally, or specifically to Mr Page. It was even put that:
(a) The Respondent cherry-picked the parts of cl 47 it deemed Mr Page deserved, acknowledging Mr Page’s entitlements by reimbursing the removalist fees and authorising five days’ leave for relocation, but refusing to be bound by the complete terms of the whole provision; and
(b) That the Respondent “sought to weasel out of its obligations under the Agreement by dressing up the forced redeployment of staff as nothing more than a voluntary expression of interest and or a life-style choice.”
The above criticisms are entirely devoid of substance. The Respondent took care to ensure that the employees it was dealing with, including Mr Page, were abundantly clear that their interpretation regarding the non-application of cl 47 to a transfer to Wollongong in the circumstances, which I have found to be entirely correct, was clearly known to those employees including Mr Page. That the Respondent should also be criticised for its generosity in paying Mr Page’s relocation costs when no entitlement existed, as had been originally outlined and foreshadowed at the conclusion of the consultation meeting on 23 January 2020 by Mr Easton-Chalmers, must have the Respondent considering any such generosity in the future.
In conclusion, the evidence overwhelmingly shows that Mr Page took the initiative to transfer to Wollongong. Though vacancies in Wollongong were advertised by Sydney Trains, the decision to seek, accept, and execute a relocation of workplace to Wollongong was solely Mr Page’s. As such, the answer to the first question, being “Was Mr Page appointed or redeployed, at Sydney Trains’ initiative, to a position at Wollongong Signalling Complex?”, is “No”.
Having answered the first question in the negative, there is no need to consider the second question. However, it is possible to succinctly answer the second question, “Did Mr Page’s change in work location to Wollongong Signalling Complex necessitate Mr Page’s relocation of his home?”, also in the negative. That is because, as I have found above:
(a) Mr Page did not move from St Marys to Wollongong until around August 2021, and so spent around six months commuting from St Marys to Wollongong for work without any apparent difficulty; and
(b) Mr Page’s commute from his home at St Mary’s to Wollongong Signalling Complex was 83 minutes, being less than the definition of “substantially different workplace” in the Deed as being a workplace requiring commuting in excess of 90 minutes.
I find that Mr Page has no entitlement to reimbursement of costs as prescribed at cl 47.8 of the Agreement.
DEPUTY PRESIDENT
Appearances:
H Bellette of the RTBU.
S Jenkins-Flint of the Respondent.
Hearing details:
2022.
Sydney (via Video):
March 31.
Final written submissions:
Applicant, 2 May 2022.
Respondent, 22 April 2022.
Printed by authority of the Commonwealth Government Printer
<PR741811>
0
0
0