“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) (188V) and Communications, Electrical, Electronic, Energy, Information,...

Case •

[2023] FWC 1055

•

5 MAY 2023
[2023] FWC 1055

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (188V) AND Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V)
v

Metro Trains Melbourne Pty Ltd T/A Metro Trains

(C2022/5863 and C2022/5882)

DEPUTY PRESIDENT MASSON

MELBOURNE, 5 MAY 2023

Application to deal with a dispute under an enterprise agreement.

  1. On 24 August 2022 and 25 August 2022 respectively, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 12 of the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2019[1] (the 2019 Agreement). The Respondent in the matter is Metro Trains Melbourne Pty Ltd (Metro Trains).

  1. The dispute is in relation to the claimed alteration of ‘wash-up’ time practices at Metro Trains’ Epping depot, which arrangements are the subject of an unregistered agreement dating back to 1992 (the 1992 Wash-Up Time Agreement). The alleged change in practice is that Metro Trains has directed that employees who have been leaving the site up to 15 minutes prior to the end of their shift as an alternative to using the allocated 15-minute wash-up time on site, will no longer be permitted to leave the site prior to the end of their shift. The direction by Metro Trains to alter the wash-up time practices as briefly summarised, is said by the AMWU and CEPU to be an extra claim that is in breach of clause 13 – No Extra Claims in the 2019 Agreement.

Jurisdiction

  1. Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The 2019 Agreement contains such a term, which is clause 12 ‘Dispute Resolution Procedure’ (the DRP). The DRP relevantly states as follows;

“12 DISPUTE RESOLUTION PROCEDURE

12.1 If a dispute relates to:

(a)     a matter arising under the Agreement (excluding a matter relating to occupational health and safety); or

(b)     the National Employment Standards; or

(c)     a matter pertaining to the employment relationship; this clause sets out procedures to settle the dispute.

12.2 An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

12.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.

12.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

12.5 The Fair Work Commission may deal with the dispute in two (2) stages:

(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) For matters arising under clause 12.l(a) and (b), if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i)arbitrate the dispute; and

(ii)make a determination that is binding on the parties.

………………”

  1. In an earlier decision[2] issued on 10 November 2022 (the Jurisdictional Decision) I dealt with a jurisdictional objection raised by Metro Trains. It was contended by Metro Trains that the dispute, properly characterised, was a dispute pertaining to an unregistered agreement (clause 12.1(c)) dealing with wash-up time and consequently the Commission’s powers to deal with such a dispute were limited to conciliation (clause 12.5(b)). In dismissing Metro Trains objection, the following was stated in the Jurisdictional Decision;

“[20]     There is no provision within the 2019 Agreement that deals with wash-up time arrangements. The only agreement on wash-up time is reflected in an historic document dating to 1992 in which Metro Trains agreed to allow fifteen (15) minutes wash-up time for eligible employees prior to the end of shift at the Epping depot. It follows that the dispute, if simply characterised as a dispute over changes to those wash-up time practices, would be a dispute over a matter pertaining to the employment relationship. Such a dispute, as earlier set out, would not enliven the Commission’s jurisdiction under clause 12.5(b) of the 2019 Agreement to arbitrate the dispute as it (the dispute) would not pertain to a matter arising under the 2019 Agreement. Nor would it be a dispute in relation to an NES entitlement.

…………………

[24]       The dispute arising for determination is in my view a matter pertaining to clause 13 of the 2019 Agreement. That is, does Metro Trains’ instruction to eligible staff at the Epping depot regarding wash-up time arrangements constitute an extra claim, such that clause 13 would prohibit such a claim.”

  1. Having determined in the Jurisdictional Decision that the question to be determined by the Commission is “a matter arising under the Agreement” it is also necessary to establish whether the steps required under the DRP have been taken. It is not in dispute that the steps taken by the parties to resolve the dispute constitute compliance with the DRP of the 2019 Agreement. Having regard to the information in the Form F10s filed by the AMWU and CEPU in their applications and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration as provided by clause 12.5(b) of the 2019 Agreement. 

  1. The matter was the subject of conciliation before the Commission on 31 August 2022 and 19 September 2022 but was not resolved, following which the AMWU and CEPU requested that the matter be programmed for hearing and determination. The matter is now to be determined by arbitration.

The hearing

  1. Having decided the jurisdictional objection, determination of the substantive issue in dispute was listed for hearing before me on Monday 27 March 2023 in advance of which the parties filed statements and material on which they intended to rely in accordance with directions issued. The parties also sought to rely on evidence and other material filed in relation to the earlier jurisdictional objection.

  1. At the hearing, the AMWU was represented by Mr R Wainwright and the CEPU were represented Ms E McGrath. Metro Trains were represented by Mr C Shaw who called the Epping Train Maintenance Depot Manager Peter Hilbert to give evidence.

  1. At the conclusion of the hearing, directions were issued allowing for the parties to make further submissions in relation to the operation and effects (if any) on the present dispute of clause 3.1 ‘Relationship to Awards and Agreements’ and clause 54.1 ‘Ordinary Hours of Work’ in the 2019 Agreement. All parties filed supplementary submissions in accordance with the directions issued.

Issues for determination

  1. The following question arises for determination by the Commission;

“Does the decision of Metro to alter existing Wash-up Time arrangements constitute a further claim within the terms of the Agreement?”

Agreement provisions

  1. The following clauses relevant to the resolution of the dispute are found in the 2019 Agreement;

“3          RELATIONSHIP TO AWARDS AND AGREEMENTS

3.1The Agreement is a comprehensive agreement that operates to the exclusion of any Awards or agreements, other than the provisions of Schedule B and clause 24.3 of the Manufacturing and Associated Industries and Occupations Award 2010 which are incorporated into this Agreement and are to be read in conjunction with Schedules A and B of this Agreement. For the avoidance of doubt the Agreement operates to the exclusion of all prior agreements, formal and informal save to the extent that the operation of a relevant past agreement provision is specifically preserved in the Agreement.

…………….

13NO EXTRA CLAIMS

The Agreement is in full and final settlement of all matters subject to claims by the Parties covered by the Agreement, and for the life of the Agreement no further claims will be made or supported by the Parties covered by the Agreement.”

Background and evidence

  1. On 30 October 1992, an agreement was recorded as having been reached by the Site Implementation Committee (SIC) on behalf of the then Public Transport Corporation to introduce 15 minutes for wash-up time at the end of each shift at the Epping depot. The recording of the agreement (1992 Wash-Up Time Agreement) relevantly stated as follows in respect of wash-up time;

“……………..

Suggestion 3A

Allow 15 minutes at the end of the day for staff clean up.

15 minutes before the end of the shift the staff member can clock out, but the clock will give a 15 minute credit.

It must be borne in mind, this entitlement is not to affect shop productivity i.e. if a staff member can complete a task within the 15 mins then they are expected to do so.

In addition this entitlement is for shop staff only and staff required to work in the field are to continue working their full shift to ensure docks are covered.

This system will be policed by the Supervisors and staff (by way of random checks of locker room and shower areas).

If staff abuse the entitlement by cleaning up before the 15 minutes credit or leaving work which could have been finished in the 15 mins without a valid reason, the whole shop will lose the credit for a period of 2 weeks. Each subsequent loss will add an additional 2 week period to the loss of the entitlement.

…………..”[3]

  1. The practice agreed to in 1992 continued to operate and was reaffirmed on 12 December 2012 when a memo (the 2012 Memo) was sent by Fleet Operations Manager Duncan McLeod to all Epping depot production staff in the following terms;

“All Epping Production staff,

For the life of the Metro Trains Rolling Stock 2012 Agreement, Management have agreed to continue to allow STM Electrical, STM Mechanical and Skilled Labourers, at Epping Train Maintenance Depot who are not involved in field maintenance to clock off fifteen (15) minutes prior to the end of each shift, for allocated wash-up time.

When clocking of staff entitled to wash-up time have received a fifteen (15) minute credit, for the purpose of preparing themselves to depart the work site prior to the conclusion of their shift. This entitlement is not to affect shop productivity, i.e. if a staff member is able to complete a task within the fifteen (15) minutes then it is expected of management that they are to do so.

This system will be policed by Supervisors and management (by random checks). If staff are found abusing this entitlement, by cleaning up before the allocated wash-up time or leaving work which could have been finished in the fifteen (15) minutes without a valid reason, the collective shop floor will lose the credit for a two (2) week period. Each subsequent loss will add an additional two (2) week period to the loss of entitlement.

………….”[4]

  1. On 1 November 2018, it was agreed by Metro Trains management (2018 Memo) to extend the agreed wash-up time arrangements to the car building group to address an inequity issue raised by that workgroup.[5]

  2. On 16 June 2022, Mr Hilbert wrote to Epping depot employees advising them of a two-week suspension of wash-up time (16 June Memo) in the following terms;

“On 16th June the Depot Manager observed night shift staff parked at the main gate at 5.44am which suggests that staff have abused the wash-up time privilege and as such the staff on that shift will be paid as per there clock off time.

As a consequence of the actions of this shift the 15 minute wash time is here by suspended for 2 weeks, as of 24/06/22.

Staff can clock off within 5 minutes of the end of the shift, swipe off will be monitored.

Supervisors please brief the staff on this topic.

…….”[6]

  1. On 8 August 2023 Mr Hilbert again wrote to employees at the Epping Depot, this time advising staff of the removal of wash-up time (8 August Memo) in the following terms;

“Dear Team,

As you are aware, we have been contemplating the removal of the 15 minute wash-up time at Epping Depot since January 2022 and have been involved in discussions regarding this issue with your representatives since that time.

We acknowledge that the practice has been in place for some time now however the Company feels that this is no longer being used for the purpose it was intended for. In particular, the 15 minute Wash-Up time was recently suspended for the period of Friday 24th June 2022 – Friday 8th July 2022 due to misuse (as notified on 24th June 2022).

Next Steps:

As of 14 August 2022, we require all Epping Staff to clock off within the last 5 minutes of their rostered shift finish time unless prior approval has been sought to leave early form your Supervisor.
Failure to do this, may result in non-payment for the time period that the individual left early.

If a staff member has particular concerns with the above approach and needs to leave site early for individual or exceptional circumstances, we are willing to discuss these issues on a case-by-case basis. If this is the case, please speak to your supervisor or myself or notify me via email.

………………..”[7]

  1. Conflicting evidence was led in the jurisdictional hearing going to bargaining for the 2019 Agreement during which the AMWU and CEPU claim the issue of ‘wash-up time’ was raised by the unions and rejected by Metro Trains. That evidence was summarised as follows;

“[11]     Evidence was led by the AMWU from three union officials who participated in bargaining for the 2019 Agreement. Those officials were Aaron Douglas of the CEPU, Bryan Evans of the RTBU and Chris Spindler of the AMWU. Each of these witnesses state that the issue of wash-up time arrangements was raised during bargaining over the 2019 Agreement as the three unions wanted to secure consistent wash-up time arrangements across all of Metro Trains depots that reflected the Epping depot arrangements. They further state that Metro Trains were unwilling to extend Epping depot’s historical wash-up time arrangements to other sites and preferred to maintain the current individual depot arrangements in place. Each of the witnesses state that the unions collectively decided not to pursue the claim.

[12]     Witnesses for Metro Trains gave contrary evidence on whether a wash-up time claim was raised during bargaining for the 2019 Agreement. Danny Walsh who is the Depot Manager in the Rolling Stock Division of Metro Trains and is based at North Melbourne states that he was a bargaining representative for Metro Trains during negotiations for the 2019 Agreement and that wash-up time was not included in the union log of claims for the 2019 Agreement. Cameron Murray is a Depot Manager for the Rolling Stock Division for Metro Trains, is based at Bayswater, was a bargaining representative during the 2019 Agreement negotiations and also confirmed his recollection that wash-up time was not included in the union’s logs of claims for the 2019 Agreement. Copies of the RTBU and AMWU/ETU logs of claims for the 2019 Agreement were also produced in evidence by Metro Trains. Those logs of claims did not include a claim for wash-up time across Metro Trains depots.”[8]

  1. In the present proceedings Mr Andrew Twomey gave evidence in relation to wash-up time arrangements at the Epping depot. Mr Twomey is employed at the Epping Depot and is a member of the AMWU. While he did not state when he commenced employment at the Epping depot, he claims that a designated 15 minute wash-up time had been in place since he commenced. He understood that employees were able to end their productive work 15 minutes prior to the end of shift and that employees could choose to wash-up in the facilities provided at the depot or leave site and wash-up at home. He further states that he prefers to wash-up at home and had been informed that 15 minutes before the end of shift he could clock off and would be given a 15-minute credit. He states these arrangements have been recently changed and he has been more recently docked for leaving 15 minutes early. He also claimed that he was treated differently to a colleague who was a member of the RTBU who had had left the site at the same time as Mr Twomey and had not been docked 15 minutes[9]. 

  1. Peter Hilbert is the Depot Manager at the Epping depot and was called to give evidence. He states that not long after he took up his position in December 2021, he became aware that employees were leaving the site 15 minutes before the end of their shift. He states that he investigated and found out that employees had taken it upon themselves to leave work early rather than use the designated wash-up time on-site. He says that he was aware of the previous agreement that employees would be allowed 15 minutes at the end of shift to wash-up, however he had not agreed and nor was he aware that any other Manager of the Depot had agreed that employees could choose to leave the site 15 minutes before the end of their shift. He confirmed that he had issued an instruction to employees on 8 August 2022 that they were to access wash-up time consistent with the intent for which it was introduced, that is, to wash-up on-site using Metro Trains facilities provided and that he had never sought to abolish wash-up time[10].

  1. Mr Hilbert was cross-examined in relation to his evidence, in response to which he stated the following;

·the intention of 8 August Memo was to stop employees leaving site 15 minutes early, but he accepted it would not necessarily improve productivity;

·he was not seeking to prevent employees from washing up at home;

·if employees clocked off early without permission, their pay would be deducted.

·confirmed that employees were however able to clock off within 5 minutes of the end of their shift without deduction;

·employees had taken it upon themselves to clock off and leave site early rather than use the 15-minute wash-up time for the purpose that was intended, that being to wash-up on-site;

·he had not sought to abolish wash-up time but had simply sought to remove the ability of staff to leave site 15 minutes early prior to the end of their shift;

·he had not sought agreement of the relevant unions prior to issuing the 8 August Memo;

·he had suspended wash-up time for two weeks on 16 June 2022 in accordance with the suspension provisions of the 1992 Wash-Up Time Agreement on the basis that staff were abusing the entitlement;

·he unilaterally cancelled the 1992 Wash-Up Time Agreement to bring the arrangements of the Epping depot in line with other depots of Metro Trains;

·RTBU members were initially treated differently to AMWU and CEPU members in terms of pay deduction for clocking off early, although this inconsistency has since been corrected with all Epping depot employees now being ‘docked’ if they clocked off early; and

·accepted that the terms of the 1992 Wash-Up Time Agreement provided for policing by supervisors where employees left work incomplete or clocked off before 15 minutes prior to the end of a shift.

Case for the AMWU

  1. The AMWU submit that wash-up time arrangements at the Epping depot were the subject of an agreement reached by the employer with the AMWU and CEPU in 1992 which provided for 15 minutes paid time at the end of each shift for staff to clean up. That agreement was reaffirmed in 2012 and was extended to RTBU members in 2018. Those agreed arrangements have however been recently altered without agreement according to the AMWU as evidenced by the 8 August Memo sent to staff by Mr Hilbert which requires that employees must not clock off more than 5 minutes prior to the end of their rostered shift.

  1. The effect of the 8 August Memo is that it prevents employees who prefer to wash-up at home from leaving site 15 minutes early as they previously have. Removal of the ability of employees to clock off 15 minutes early has reversed a long-standing condition of employment, the change will not impact productivity, is more concerned with the ‘optics of employees leaving site early and constitutes an additional claim that is not permitted by clause 13 of the 2019 Agreement.

  1. In submitting that the change in wash-up time arrangements constitutes a new claim that is not permitted by clause 13 of the 2019 Agreement, the AMWU advanced the following construction of clause 13. As the 2019 Agreement represented the “full and final settlement of all matters subject to claims” and because the AMWU and CEPU had raised (unsuccessfully) a claim during bargaining for insertion of wash-up time provisions into the proposed agreement in the terms of the 1992 Wash-Up Time Agreement, Metro Trains was prevented by clause 13 of the 2019 Agreement from altering those wash-up time arrangements even though they were not contained in the 2019 Agreement.

  1. The AMWU further contend that the wash-up time arrangements were the subject of an agreement reached between the company and its employees and is reinforced by 30 years of conduct and was reiterated in writing as recently as 2018. The arrangements have been part of the employment conditions for 30 years and, by common conduct (per Berri[11]), is a contractual benefit forming part of the employment conditions and is not a discretionary benefit as it appears is contended by Metro Trains.

  1. In its submissions regarding the effect of clause 3.1 the 2019 Agreement, the AMWU submits that to the extent clause 3.1 of the 2019 Agreement purports to exclude prior agreements, it does not affect the wash-up time arrangements, those arrangements were reaffirmed after commencement of the 2019 Agreement and clause 3.1 does not vitiate or invalidate the agreements it purports to exclude and so has no effect upon the wash-up time arrangements.

  1. The AMWU go on to submit that the clause 3.1 exclusion of prior agreements relates to limited agreements, of which type the wash-up time arrangements do not fall within the scope of. It is further submitted that the wash-up time arrangements could not be said to meet the ordinary meaning of ‘agreement’ and as such are not subject to the clause 3.1 exclusion. Further, the exclusion operates in respect of all ‘all prior agreements’ and the fact that the continued operation of the wash-up time arrangements was affirmed after commencement of the 2019 Agreement indicates that it is still an ongoing arrangement and not a ‘prior agreement’. The AMWU also submit that the term ‘agreements’ where it appears in clause 3.1 is probably referring to previous registered enterprise agreements therefore the effect of clause 3.1 is to exclude prior registered enterprise agreements and in any case the wash-up time arrangements do not constitute an agreement, be that registered or unregistered. In the alternative, the AMWU submit that clause 3.1 has the effect of merely not incorporating agreements and does not vitiate, invalidate, or void prior agreements.

  1. The AMWU also submit that clause 54 of the 2019 Agreement which deals with ordinary hours of work is of no assistance as it does not define what constitutes work. It is uncontroversial that clause 54 provides that employees will work on average 38 hours per week. The evidence according to the AMWU reveals that the parties reached an understanding in 1992 that 38 hours ordinary hours of ‘work’ would include time at the end of each shift for the purposes of washing up. Nothing in clause 54.1 alters the understanding reached in 1992. A further constraint on Metro Trains’ ability to deduct pay in the manner now implemented following the 8 August Memo is that of clause 54.3 of the 2019 Agreement which states that “no employee during the course of any shift shall be booked off duty for more than half an hour, including time for a meal, unless otherwise agreed upon between the Company and the Employee concerned”.  

Case for the CEPU

  1. The CEPU contend that the 15-minute wash-up time arrangements are a condition of employment that ought be protected under clause 13 of the 2019 Agreement because it has the status of a contractual entitlement for the following reasons;

·     the benefit was not bestowed ex-gratia but was granted in exchange for tradesman assuming greater responsibility;

·   the arrangements of workers signing off and having the benefit of 15 minutes wash-up time has existed for more than 30 years, having been reaffirmed since 1992 on a number of occasions;

·   the 1992 Wash-Up Time Agreement discloses amendments that appear to have been made in 2012 to clarify that staff were permitted to ‘clock out’; and

·   the only ‘policing’ of the benefit through its 30 years duration was that staff must complete a task if it can be completed within the last 15 minutes of the rostered shift and that staff must not leave prior to 15 minutes before the end of the shift.

  1. In support of its submissions that the wash-up time arrangements at the Epping depot are a contractual entitlement which is captured by the 2019 Agreement No Extra claims clause, the CEPU rely on several authorities including AWU v Coregas[12] (Coregas) in which Deputy President Easton relevantly stated as follows;

“[63] Contractual entitlements that arise outside of an enterprise agreement can be understood to be part of the intended “conditions of employment” referred to in no extra claims clauses, because they can be more readily understood to form part of the “bargain” that such clauses are designed to protect. Contractual benefits, in the context of making and protecting of collective bargains, can be easily distinguished from discretionary benefits, or benefits provided pursuant to a policy that can be unilaterally varied by the employer. A decision/claim by an employer to alter or remove a discretionary benefit is less likely to threaten the original bargain.”

  1. While accepting that the No Extra Claims clause in the 2019 Agreement is in different terms to the clause considered by Deputy President Easton in Coregas, the CEPU contend that the requirement that there be no extra claims for the life of the agreement includes all claims and not merely claims to alter the terms of the agreement. The term ‘claims’ where it appears in clause 13 should be construed broadly to preclude either party seeking to alter either the terms of the 2019 Agreement or a contractual benefit that sits outside the terms of the agreement.

  1. The CEPU also point to the history of clause 3.1 of the 2019 Agreement which has featured in several prior agreements, including the UMTL Enterprise Agreement 2009[13] (2009 Agreement) the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2012[14] (the 2012 Agreement) and the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2016[15] (the 2016 Agreement). The CEPU contend that the clause has been essentially in the same terms since the 2012 Agreement and that the present form of the clause which emerged in the 2012 Agreement was intended to ‘disincorporate’ a range of industrial instruments that were incorporated into prior agreements, as can be seen in clause 3 of the 2009 Agreement. The CEPU argues that having regard to the history of Clause 3.1 of the 2019 Agreement, it can be safely concluded that the clause was intended to remove the industrial instruments that were incorporated into agreements prior to the 2012 Agreement.

  1. The CEPU further contend that having regard to the history of clause 3.1 of the 2019 Agreement, it was not intended to exclude side deals. This the CEPU says can be seen in correspondence sent by Metro Trains to the AMWU and CEPU on 25 October 2012[16] in which Metro Trains foreshadowed that it would provide a ‘side letter’ to the unions in relation to new rosters and no forced redundancies on finalisation of the 2012 Agreement. The CEPU contend that the provision of a side letter at the time the 2012 Agreement was being finalised cannot be reconciled with the contended exclusion of ‘informal agreements’. The CEPU also point to clause 3.2 of the 2019 Agreement which contemplates ‘informal’ agreements dealing with OH&S matters continuing to operate, notwithstanding the wording of clause 3.1.

  1. As regards clause 54 of the 2019 Agreement which sets out ordinary hours of work and how that clause may impact on the current dispute, the CEPU submits the following. It is well established that an agreement provides a floor of entitlements rather than a ceiling and that employers are free to offer conditions more than those minimum entitlements. That the parties may have agreed to entitlements (i.e. 15 wash-up time) in excess of the ordinary hours of work provided in the 2019 Agreement is permitted by the 2019 Agreement. The CEPU further refer to clause 54.3 of the 2019 Agreement which it says allows the employees working less ordinary hours by agreement, which is what has occurred in relation to the wash-up time arrangements.

Case for Metro Trains

  1. Metro Trains agrees that the original agreement on wash-up time was reached in 1992, that it committed to continuing those arrangements during the life of the 2012 Agreement and extended it to the car building group on equity grounds in 2018. It submits that the 1992 Wash-Up Time Agreement provided for 15 minutes wash-up time at the end of each shift but did not provide for the alternative of employees leaving site early. Metro Trains submit that some employees at the Epping Depot have been leaving the workplace up to 15 minutes before the end of their shift as an alternative to using the time allocated and the facilities provided by Metro Trains for wash-up on-site. It further submits there is no evidence that Metro Trains has given approval for this practice of employees leaving site early and “washing up at home”.

  1. Metro Trains contend that its issuing of directions to staff via the 8 August Memo amounts to no more a requirement that employees comply with the conditions of the original 1992 Wash-Up Time Agreement, that being the wash-up time is to be used by staff on-site. It further submits that it is not seeking to abolish wash-up time nor vary the agreed wash-up time conditions and therefore the instructions to staff cannot be characterised as making an extra claim within the meaning of clause 13 of the 2019 Agreement. Put at its highest, the instructions issued to staff in the 8 August Memo, could be construed as making changes to the administration of the agreements that underpin wash-up time. Even if Metro Trains were to seek a change to the agreed arrangements, then its refusal to maintain a pre-existing practice that is not a term of the 2019 Agreement is not an extra claim according to Metro Trains. 

  1. Metro Trains argue that if the AMWU and CEPU arguments were to prevail, it would mean that no change could be made to any practices or informal agreements until the 2019 Agreement is replaced with a new agreement that has a No Extra Claims clause that is either varied or removed. This would, according to Metro Trains, give local agreements and/or practices the same status as terms and conditions in the 2019 Agreement in terms of enforcement and compliance. If that were the intention of the parties, that could have been easily specified in the 2019 Agreement.

  1. The purpose of the No Extra Claims clause is according to Metro Trains, to prevent a party from seeking to vary a term of the 2019 Agreement or insert new terms into the 2019 Agreement, not to restrict the capacity of a party to vary or withdraw from an unregistered agreement or practice. If the latter were prevented, then the consultation clause would have little if any practical relevance.

  1. In relation to the No Extra Claims clause, Metro Trains draw attention to the significant changes made to the clause in the 2016 Agreement when compared to prior agreements and opine that the parties must have had some intention in modifying the words, particularly the removal of the following words that appeared in clause 36 of the 2012 Agreement;

“It is a condition that the Employees and Unions will not pursue any extra claims relating to wages, conditions of employment, or any other matters related to the employment relationship, award or non award, whether dealt with in this Agreement or not.”

  1. As regards the 2012 MOU referred to by the CEPU, Metro Trains agree there would have been a mutual understanding as to the matters dealt with in that side agreement but that would only have been for so long as the 2012 Agreement was in operation and has no relevance to the 2019 Agreement.

  1. Turning to clause 3.1 of the 2019 Agreement, Metro Trains submit that use of the terms “for the avoidance of doubt” and “informal” agreements make clear that all prior agreements both formal and informal are displaced and have no effect save for the specific exceptions set out in clause 3. That means that the effect of clause 3.1 is that the 2019 Agreement operates to the exclusion of the 1992 Wash-Up Time Agreement and to do otherwise would contravene clause 3.1.

Consideration

  1. The normal principles applying to the construction of enterprise agreement terms[17] are relevant and the necessary starting point is that of the terms of the agreement. A Full Bench considered the interpretation task in AMWU V Programmed Industrial Maintenance Pty Ltd[18] and relevantly said as follows; 

[38] The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. 

  1. It is necessary to start my consideration of the question to be determined by examining the 1992 Wash-Up Time Agreement and the nature of the change to that agreement caused by the 8 August Memo of Mr Hilbert.

  1. The AMWU and CEPU contend that the 1992 Wash-Up Time Agreement permitted employees to clock-off 15 minutes early for which they would get a 15-minute credit and then either complete their wash-up on-site or leave site 15 minutes before the rostered shift finish to complete their wash-up at home. This according to the unions had been the practice since the agreement was reached approximately 30 years ago. They sought to rely on the evidence of Mr Twomey, the confirmation of the agreement in 2012 and the extension of the agreement to the car building group in 2018. Metro Trains reject that the practice of some employees leaving site 15 minutes before the end of shift had ever been agreed. Rather, Metro Trains contend some employees had taken it upon themselves to leave site early, that practice being inconsistent with the original intent of the 1992 Wash-Up Time Agreement, which was to allow employees time to complete their wash-up on-site before leaving site at the end of their rostered shift.

  1. Turning to text of the 1992 Wash-Up Time Agreement, contrary to the submissions of the unions, while the agreement allows for employees to ‘clock-off’ 15 minutes early for which they receive a 15 minute credit, the terms of the agreement do not in my view explicitly allow employees to leave site early. Perhaps unsurprisingly given the passage of time since 1992, neither the unions nor Metro Trains brought any contemporaneous evidence of the objective intention of the parties in reaching the agreement in 1992 on wash-up time.

  1. The text of the 1992 Wash-Up Time Agreement allows employees “15 minutes at the end of the day for staff clean-up” in advance of which they can clock off “15 minutes before the end of the shift” and in doing so receive a “15 minute credit”. Limitations are imposed in the 1992 Wash-Up Time Agreement on the ability of employees to clock-off 15 minutes early to perform clean-up. The limitations are that employees must complete tasks that are able to be completed within the allocated 15 minutes wash-up time and employees cannot clean-up before the 15 minutes credit without a valid reason.

  1. Nothing in the text of the agreement in my view discloses an express intention that employees can clock-off and leave site 15 minutes before the end of a rostered shift. To the contrary, the text of the agreement appears to indicate an intention that the wash-up time was allocated for the purpose of performing clean-up on-site. See for example the reference in the 5th paragraph where the agreement indicates that supervisors will conduct random checks of the “locker room and shower areas” to ensure that employees are not using those facilities before commencement of the allocated 15 minutes wash-up time. See also in the 6th paragraph where the agreement states “If staff abuse the entitlement by cleaning up before the 15 minutes credit…” The aforementioned wording strongly indicates that the wash-up time is to be undertaken on-site.

  1. Reinforcement of the above is found in the text of the 2012 Memo in which Metro Trains reaffirmed the continued operations of the 1992 Wash-Up Time Agreement. See specifically the following wording from that memo;

“………………

When clocking of staff entitled to the wash-up time have received a fifteen (15) minute credit, for the purpose of preparing themselves to depart the work site prior to the conclusion of their shift…..

…….

If staff are found abusing this entitlement, by cleaning up before the allocated wash-up time…….” (emphasis added)

  1. Again, I find no support in the text of the 2012 Memo for the contention that the agreement reached in 1992 permits employees to leave site early. Rather, the highlighted text reinforces that the 15 minutes is provided for the purpose of employees preparing themselves to leave site. Nothing in the 2018 Memo that confirmed the extension of the wash-up time arrangements to the car building group at the Epping depot discloses an intention to vary the 1992 Wash-Up Time Agreement and is therefore of no assistance in discerning the meaning or intent of the original agreement.

  1. Turning to the witness evidence, Mr Twomey gave evidence as to what his understanding of the 1992 Wash-Up Time Agreement was, that being employees could elect to use the on-site facilities for the purpose of wash-up or could leave site 15 minutes early and wash up at home. For his part, Mr Twomey prefers to wash up at home and states that his normal practice has been to leave site 15 minutes early to do so.

  1. I readily accept Mr Twomey’s evidence as to what his understanding of the 1992 Wash-Up Time Agreement is. What is not clear from his evidence however is how long Mr Twomey has been employed at the Epping depot and how long he has availed himself of the arrangement of clocking off 15 minutes early and leaving site to perform his wash-up at home. Aside from his evidence as to his leaving site at the same time with one of his colleagues, Mr Incorvaja, there is no evidence that the practice of leaving site early is widespread, how long employees may have been leaving site 15 minutes early and in what numbers. Nevertheless, it is apparent on the evidence of Mr Twomey that he and Mr Incorvaja have been leaving site early for an indeterminate period, in the belief that the 1992 Wash-Up Time Agreement permitted that practice.

  1. Mr Hilbert gave contrary evidence to that of Mr Twomey and claims that the practice that has developed of employees clocking off and leaving site 15 minutes early was not intended as part of the original agreement and that he was not aware of any manager at the Epping Depot agreeing to such arrangements. He was however aware of the practice having “been in place for some time” but that Metro Trains felt that it was “no longer being used for the purpose it was intended”. 

  1. While there is evidence of Mr Twomey and his colleague Mr Incorvaja leaving site 15 minutes early for an indeterminate period of time, that practice having been acknowledged by Mr Hilbert in the 8 August Memo, there is no evidence that the practice is widespread, how long it may have been in place and the number of employees that have availed themselves of those arrangements. The limited evidence before me of early departure from site does not persuade me that the intention of the 1992 Wash-Up Time Agreement was to allow employees the choice of performing wash-up either on-site or at home. In fact, the text of the notes recording the original agreement reached in an SIC meeting on 30 October 1992 and the 2012 Memo tell against such meaning for the reasons set out above.

  1. In my view the 1992 Wash-Up Time Agreement was intended to allow employees to clock off 15 minutes early for the purpose of performing wash-up on-site before departing at their normal rostered finish time. The unions’ contention that the 1992 Wash-Up Time Agreement permitted employees to clock off 15 minutes before the end of their rostered shift and leave site early is rejected.

  1. Turning to the 8 August Memo, it is common ground between the parties that the effect of the memo was to halt the practice of employees clocking off early and leaving site up to 15 minutes prior to the end of their rostered shift to perform their wash-up at home. While the 8 August Memo is inelegantly worded, I accept Mr Hilbert’s evidence that the intention was not to end wash-up time on-site per se but to stop employees clocking off and leaving site 15 minutes before the end of their rostered shift. The AMWU characterise the change as being contrary to the 1992 Wash-Up Time Agreement and altering an agreed work practice of 30 years standing while Metro Trains describe the change as restoring the arrangements to what was originally intended in 1992. It is the removal of the capacity of employees to leave site 15 minutes early (without being docked) that is said by the unions to be in breach of clause 13 No Extra Claims of the 2019 Agreement. It is to that clause I now turn.

  1. In turning to consider the meaning and effect of clause 13 of the 2019 Agreement it is useful to set out the predecessor clauses from the 2012 and 2016 Agreements. The 2012 Agreement included a No Extra Claims clause in the following terms;

“36        NO EXTRA CLAIMS

It is agreed that the payments contained in this Agreement provide a complete and final resolution of all claims relating to terms and conditions of employment for all Employees employed under its terms during its duration.

It is a condition that the Employees and Unions will not pursue any extra claims relating to wages, conditions of employment, or any other matters related to the employment relationship, award or non award, whether dealt with in this Agreement or not.”

  1. The 2016 Agreement included a No Extra Claims clause in the following terms, which is in the same terms as in the 2019 Agreement;

“13        NO EXTRA CLAIMS

The Agreement is in full and final settlement of all matters subject to claims by the Parties covered by the Agreement, and for the life of the Agreement no further claims will be made or supported by the Parties covered by the Agreement.”

  1. The 2019 Agreement contains a No Extra Claims clause in the following terms;

“13NO EXTRA CLAIMS

The Agreement is in full and final settlement of all matters subject to claims by the Parties covered by the Agreement, and for the life of the Agreement no further claims will be made or supported by the Parties covered by the Agreement.”

  1. The changes from the terms of the 2012 Agreement No Extra Claims clause to the clause found in both the 2016 and 2019 Agreements are significant in two key respects. Firstly, the No Extra Claims clause in the 2012 Agreement acted only as a bar to the employees and unions pursuing extra claims during the life of that agreement. Metro Trains was not, on a plain reading of the clause, prevented from pursuing ‘claims’ during the life of the 2012 Agreement. In the 2016 Agreement, the No Extra Claims clause was amended to prevent any party (including Metro Trains) from pursuing extra claims during the life of the agreement. The change made in the 2016 Agreement was retained unamended in the 2019 Agreement.

  1. The second significant difference between the No Extra Claims clause in the 2012 Agreement compared to the current clause is that the clause in the 2012 Agreement was expressed in terms that prevented the pursuit of any extra claims “related to the employment relationship, award or non award, whether dealt with in this Agreement or not”. That language is quite different to that found in the current No Extra Claims clause which does not explicitly state whether the clause limits claims in relation to matters covered by the 2019 Agreement only or to any matters related to the employment relationship whether dealt with in the agreement or not.

  1. Unsatisfactorily, neither party led any evidence going to the change in the text of the No Extra Claims clause from the 2012 to 2016 Agreement. Metro Trains opined that the parties must have intended that there be a substantive change in the meaning and effect of the clause while the unions submit that the clause should be read broadly such that it prevents claims in relations to all matters, whether dealt with in the agreement or not. Neither of these submissions were supported with any contemporaneous evidence of the negotiations that led to the notable change in the text of the clause in the 2016 Agreement.

  1. The text of the clause makes clear that the Agreement is in “full and final settlement of all matters subject to claims”. It then specifies that no further ‘claims’ may be made for the life of the Agreement by any party. This prohibition on further ‘claims’ applies equally to employees, unions covered by the 2019 Agreement and Metro Trains. Unlike the 2012 Agreement, the No Extra Claims clause in the 2019 Agreement clause does not specify that the prohibition on further claims applies to any terms and conditions of employment, whether dealt with in the agreement or not. The absence of that specificity gives rise to potential uncertainty as to whether changes to terms and conditions of employment not dealt with in the 2019 Agreement fall within the scope of the No Extra Claims clause.

  1. The amendment of the text of the No Extra Claims clause in the 2016 Agreement cannot be ignored in my view. The change is significant as it removes reference to employment matters not dealt with in the agreement. The drafting change from the 2012 Agreement renders questionable the reliance on the Coregas authority referred to by both parties in the present matter. It is noted that the disputed No Extra Claims clause in Coregas stated that the parties to the relevant agreement “would not pursue any extra claims relating to wages or changes to conditions of employment or any matters related to the employment of the employees, whether dealt with in this Agreement or not”. As observed by Deputy President Easton in that matter, the clause read literally, imposed a very broad prohibition on extra claims, particularly the reference in the clause to any matters related to the employment of the employees, whether those conditions of employment were covered by the agreement or not[19].

  1. Another case referred to by the parties and which was also considered by Deputy President Easton in Coregas was the Full Bench decision of CSL v NUW[20] (CSL). In that Full Bench decision, the disputed No Extra Claims clause was similar to that of Coregas in that the prohibition on extra claims was also expressed to cover “any other matter related to the employment of the employees, whether dealt with in the agreement or not….” In both Coregas and CSL, the broad scope of the No Extra Claims clause was significant because it required the Commission to then consider whether there were contractual entitlements that were relevant ‘conditions of employment’ that fell within the scope of the No Extra Claims prohibition.

  1. Returning to the text of clause 13 of the 2019 Agreement, one can see that the 2019 Agreement is expressed to be a comprehensive settlement of matters that were subject to ‘claims’ during bargaining for the agreement. The language suggests that the term ‘claims’ where it first appears in clause 13 is a reference to claims made by parties during bargaining. This arguably directs the focus of the prohibition on extra ‘claims’ to matters dealt with in the agreement. The absence of any reference to employment matters not dealt with in the agreement as found in the 2012 Agreement supports such a construction.

  1. I am not persuaded by the unions submission that the clause should be read broadly to capture any changes in employment conditions, even those not dealt with in the 2019 Agreement. Were that the intention of the parties, that could have been easily dealt with by maintaining or restoring the language found in the 2012 Agreement that unambiguously extended the prohibition on new claims to employment matters not dealt with in that agreement. The removal of that previous wording found in the 2012 Agreement, absent any evidence to the contrary, tells in favour of a narrower construction of the scope of the No Extra Claims clause in the 2019 Agreement. I consequently favour a construction of clause 13 of the 2019 Agreement that it only prohibits extra claims in relation to matters dealt with in the agreement.

  1. Returning to the wash-up time arrangements central to the dispute, I have previously found above that it was the subject of an agreement reached in 1992 which allowed employees to clock off 15 minutes before the end of a rostered shift to undertake wash-up using the on-site facilities prior to leaving site. The agreed arrangements were reaffirmed in 2012 and extended to the car building group in 2018. The agreement reflected in the 1992 Wash-Up Time Agreement was not at any subsequent point included in a registered enterprise agreement although the unions led evidence that they unsuccessfully pursued a claim to include the wash-up time arrangements in the 2019 Agreement. It follows that the 1992 Wash-Up Time Agreement is an informal agreement and does not form part of the 2019 Agreement. Having found that clause 13 does not extend to prevent claims in relation to matters not dealt with in the 2019 Agreement, it follows that Metro Trains decision to revoke that informal agreement and halt the practice of employees leaving the Epping depot up to 15 minutes before the end of rostered shifts cannot be a ‘claim’ captured by the scope of clause 13 of the 2019 Agreement.

  1. Any doubt as to the status of the 1992 Wash-Up Time Agreement and its revocation or variation by Metro Trains is firmly disposed of by clause 3.1 of the 2019 Agreement, the history of which clause is set out below.

  1. Clause 3 of the 2009 Agreement states as follows;

“3          RELATIONSHIP TO AWARDS AND AGREEMENTS

Subject to the remainder of this clause, the following awards and agreements as they were at 1 March 2006 are incorporated into this Agreement:

•   Railways Metal Trades Grades Award 2002

•   Railways Miscellaneous Grades Award 2002 (as it applies to Victoria)

•  Railways Professional Officers Award 2002

•  Railways Traffic, Permanent Way and Signalling Wages Staff Award 2002

•  Railways Salaried Employees (Victoria) Award 2002

•  Metals, Engineering and Associated Industries Award 1998 (Part I and II)

•  Public Transport Corporation Interim Award 1990

•  Public Transport Corporation (Disruption to Work) Award 1990

•   Public Transport Corporation Enterprise Agreement 1992

•   Victorian Public Transport Corporation Enterprise Agreement 1994

•   Victorian Public Transport Corporation Enterprise Agreement 1996

•   Public Transport (Victoria) Enterprise Agreement 1997 (as varied December 1998)

(herein referred to as the “Award” or “Awards”)

Where a term of an award or agreement referred to in this clause is inconsistent with any provision in this Agreement, this Agreement prevails to the extent of the inconsistency.

The Metals, Engineering and Associated Industries Award 1998 (Part I and II), to the extent that it is incorporated into this Agreement, only applies to Employees whose job descriptions and classifications have been obtained using the Metal Industry Competency Standards.”

  1. A plain reading of clause 3 of the 2009 Agreement reveals that the agreement incorporated several pre-reform awards and enterprise agreements and prevailed over the terms of those incorporated instruments to the extent of any inconsistency. There is no reference in the clause to the exclusion of any informal agreements.

  2. Turning to clause 3 of the 2012 Agreement, it provides as follows;

“3          RELATIONSHIP TO AWARDS AND AGREEMENTS

This Agreement is a comprehensive Agreement that operates to the exclusion of any Awards or Agreements. For the avoidance of doubt this Agreement operates to the exclusion of all prior agreements, formal and informal save to the extent that the operation of a relevant past agreement provision is specifically preserved in this Agreement.

Nothing in this Agreement is to be taken as overriding agreements made for the purposes of the Occupational Health and Safety Act 2004 (Vic).

Where a payment in relation to wages, allowances or entitlements is being made, and the Company, Employees and/or Unions agree that the relevant provision has been omitted from this Agreement through no fault of the Company or the Employees and/or the Unions, the payment will continue to operate as per the omitted provision. For the avoidance of doubt, in order for the wages, allowances and/or provision to continue, there must be an agreement reached by:

i.the Company; and

ii.the Employees and/or the Unions,

that the provision relating to the payment was omitted from this Agreement as per this clause.”

  1. Clause 3 in the 2012 Agreement largely reflects the comparable terms found in the 2019 Agreement and dispenses with the incorporation of the pre-reform awards and agreements that were incorporated in the 2009 Agreement. The 2012 Agreement is expressed to be a comprehensive agreement and excludes all prior agreements both formal and informal, save for the exceptions identified, that of OH&S agreements and where past agreements have been specifically preserved.

  1. Clause 3 of the 2016 Agreement is in similar terms to the prior agreement, albeit with some formatting changes, and provides as follows;

“3RELATIONSHIP TO AWARDS AND AGREEMENTS

3.1The Agreement is a comprehensive agreement that operates to the exclusion of any Awards or agreements. For the avoidance of doubt the Agreement operates to the exclusion of all prior agreements, formal and informal save to the extent that the operation of a relevant past agreement provision is specifically preserved in the Agreement.

3.2Nothing in the Agreement is to be taken as overriding agreements made for the purposes of the Occupational Health and Safety Act 2004 (Vic).

3.3Where a payment in relation to wages, allowances or entitlements is being made, and the Company, Employees and/or Unions agree that the relevant provision has been erroneously omitted from the Agreement, the payment will continue to operate as per the erroneously omitted provision. For the avoidance of doubt, in order for the wages, allowances and/or provisions payment to continue, there must be an agreement reached by:

(a) the Company; and

(b) the Employees and/or the Unions,

that the provision relating to the payment was omitted from the Agreement as per this clause.”

  1. Turning finally to clause 3 of the 2019 Agreement, it provides as follows;

    “3      RELATIONSHIP TO AWARDS AND AGREEMENTS

3.1The Agreement is a comprehensive agreement that operates to the exclusion of any Awards or agreements, other than the provisions of Schedule Band clause 24.3 of the Manufacturing and Associated Industries and Occupations Award 2010 which are incorporated into this Agreement and are to be read in conjunction with Schedules A and B of this Agreement. For the avoidance of doubt the Agreement operates to the exclusion of all prior agreements, formal and informal save to the extent that the operation of a relevant past agreement provision is specifically preserved in the Agreement.

3.2Nothing in the Agreement is to be taken as overriding agreements made for the purposes of the Occupational Health and Safety Act 2004 (Vic).

3.3Where a payment in relation to wages, allowances or entitlements is being made, and the Company, Employees and/or Unions agree that the relevant provision has been erroneously omitted from the Agreement, the payment will continue to operate as per the erroneously omitted provision. For the avoidance of doubt, in order for the wages, allowances and/or provisions payment to continue, there must be an agreement reached by:

(c) the Company; and

(d) the Employees and/or the Unions,

that the provision relating to the payment was omitted from the Agreement as per this clause.”

  1. The only substantive change in clause 3.1 of the 2019 Agreement when compared to the 2016 Agreement is to qualify the exclusion of Awards or agreements by incorporation of Schedule Band clause 24.3 of the Manufacturing and Associated Industries and Occupations Award 2010. Clause 3.1 of the 2019 Agreement reinforces the comprehensive nature of the settlement of bargaining claims reflected in the 2019 Agreement and makes clear that the 2019 Agreement operates to the exclusion of any awards or agreements, both formal and informal. The AMWU and CEPU contend however on a number of grounds that clause 3.1 does not have the effect of excluding or displacing the 1992 Wash-Up Time Agreement. I reject those submissions for the following reasons.

  1. Firstly, the AMWU submit that clause 3.1 relates to the exclusion of ‘limited agreements’ which the 1992 Wash-Up Time Agreement does not fall within the scope of. I disagree. The clause explicitly excludes any prior awards and agreements, both formal agreements and informal agreements, save for where prior agreements are specifically preserved within the 2019 Agreement or fall within the exceptions identified in clause 3.1 & 3.2. The 1992 Wash-Up Time Agreement is not preserved in the 2019 Agreement and does not fall within either of the exceptions to the exclusion in clause 3.1 or 3.2. It is clearly an informal agreement that is excluded by the 2019 Agreement. The AMWU submission is rejected.

  1. Secondly, the AMWU contend that the 1992 Wash-Up Time Agreement is not a ‘prior agreement’ because of the claimed continued practice and common understanding regarding the wash-up time arrangements following commencement of operation of the 2019 Agreement. The fact that the agreement continued to be observed, putting aside the dispute over the meaning and effect of the agreement, does not mean the clear words of clause 3.1 have no force. The fact that the unions point to the history of the wash-up time arrangements, rely on the 1992 ‘agreement’ and its confirmation in 2012 unquestionably establishes that it is a prior agreement. The fact that the parties may have continued to observe the practice that existed prior to the commencement of the 2019 Agreement does not elevate the status of those arrangements to an agreement made after the commencement of the Agreement.

  1. Thirdly, the AMWU submit that where the term ‘agreements’ is used in clause 3.1, it is ‘probably’ a reference to previously registered enterprise agreements made under the Act, the effect of which is to only exclude prior registered agreements. The submission would have some force but for the reference in clause 3.1 to the exclusion of agreements, both ‘formal and informal’. The words ‘formal’ and ‘informal’ must be given work to do. If it had been the intention of the parties to only exclude previously registered agreements, that could have been achieved by confining the effect of the exclusion to ‘formal’ or previously registered enterprise agreements. The fact the exclusion does not contain such narrowing language must lead to a broader meaning that captures ‘informal’ and/or unregistered agreements.     

  1. Fourthly, the AMWU argue in the alternative that clause 3.1 has the effect, not of excluding prior awards and agreements but rather of merely not incorporating those prior awards and agreements. The contention which suggests that those excluded awards and/or agreements might still have work to do ignores the important words found at the start of clause 3.1 where it states that the “Agreement is a comprehensive agreement….”. These words evince an intention that the agreement ‘covers the field’ of entitlements and obligations agreed between the parties. The AMWU argument that the excluded agreements might still have some work to do flies in the face of the effect of similar provisions in enterprise agreements that routinely and entirely displace awards that would otherwise cover employees but for the operation of an enterprise agreement. It cannot be said that an award that has been wholly ‘excluded’ or ‘displaced’ by a ‘comprehensive’ agreement might still have some work to do. An excluded award in this example has no work to do within the scope of coverage of the relevant agreement. If that be the case, it must also be the case for an excluded informal or unregistered agreement in the present case. The AMWU alternative submission is rejected.

  1. Fifthly, the CEPU contend that clause 3.1 was only directed at excluding instruments previously incorporated in enterprise agreements made prior to the 2012 Agreement. If it was the intention of the parties to only exclude those prior incorporated instruments it would have been necessary for the exclusion to be described as applying to prior awards and enterprise agreements given that the 2009 Agreement only referred to such instruments. Clause 3.1 of the 2019 Agreement and its predecessor agreements dating to 2012 extend the exclusion well beyond those previously incorporated awards and agreements. The wording of clause 3.1 is unambiguously clear in that it applies to awards and agreements, both formal and informal. Any suggestion that the intention of the exclusion was only focussed on those previously incorporated awards and agreements is not sustainable on a plain reading of clause 3.1. 

  1. Sixthly, the CEPU argue that clause 3.1 does not exclude the side agreements and rely on the commitment given by Metro Trains on 25 October 2012 at the time of the finalisation of the 2012 Agreement that it would provide a ‘side letter’ dealing with rosters and no forced redundancies. While correspondence foreshadowing such a ‘side letter’ was produced in evidence by the CEPU, the actual ‘side letter’ was not. A ‘Memorandum of Understanding’ entered into around the same time was also produced although it appears to have been prepared at the conclusion of bargaining to comprehensively document those matters that had been agreed between the parties during negotiations for the 2012 Agreement. Absent evidence of the actual ‘side letter’ contents and timing, it is not possible to be certain whether the foreshadowed ‘side letter’ can be characterised as a ‘prior agreement’ that is excluded by clause 3 of the 2012 Agreement.

  1. It follows from the foregoing that the 1992 Wash-Up Time Agreement is not preserved in the 2019 Agreement and nor does it fall within any of the exceptions found in clauses 3.1 or 3.2 of the 2019 Agreement. The 1992 Wash-Up Time Agreement is consequently excluded by the 2019 Agreement and has no force or effect.

  1. Returning now to the construction of clause 13 advanced by the AMWU. I understand the contention to be that because the unions had raised the issue of wash-up time as a ‘claim’ during bargaining for the 2019 Agreement, any change now to those arrangements would constitute an extra claim even though the claim by the unions was not successfully pressed or included in the 2019 Agreement. The submission has no merit. The point of the No Extra Claims is to protect the outcome of bargaining, that is the terms of the 2019 Agreement, from any further claims during the life of the agreement. As earlier stated, wash-up time arrangements are not dealt with in the 2019 Agreement, are an informal ‘prior agreement’, are excluded by the operation of the 2019 Agreement and have no force or effect under the terms of the agreement. The very fact that the AMWU and CEPU sought to incorporate wash-up time arrangements in the 2019 Agreement reveals the vulnerability of that ‘prior agreement’.

  1. It follows that the wash-up time arrangements do not form part of the ‘bargain’ reached and therefore changes to those arrangements are not protected by clause 13 of the 2019 Agreement so long as any changes to the wash-up time arrangements do not offend any other provisions in the agreement. The change introduced by Metro Trains does not impact on any entitlements and/or obligations dealt with in the 2019 Agreement and in particular do not affect the hours of work provisions. The unions’ argument that requiring employees to remain at work until their rostered shift finish time somehow alters the hours of work arrangements under the terms of the agreement is rejected as is the argument that performing wash-up “at home” constitutes the performance of work under the terms of the agreement.

  1. I have found above that the No Extra Claims clause in the 2019 Agreement clause does not operate broadly so as to protect all employment matters, whether dealt with in the agreement or not. The operation and effect of clause 13 is confined to employment matters dealt with in the agreement. I have also found that such a construction is supported by clause 3.1 of the agreement which excludes all ‘prior agreements’ both ‘formal and informal’. The 1992 Wash-Up Time Agreement is such an excluded ‘prior agreement’ and consequently has no force or effect in my view. As it has been excluded, changes to that ‘prior agreement’ are not prevented by the No Extra Claims clause.

  1. If, however I am wrong in my construction of clause 13 of the 2019 Agreement such that clause 13 was found to prevent changes to any employment matter whether dealt with in the agreement or not, I would still find that the change to the wash-up time arrangements introduced by Metro Trains does not constitute an extra claim. That is because for the reasons set out above at [42]-[54] I am not persuaded that the 1992 Wash-Up Time Agreement permits employees to leave site up to 15 minutes early. Nor am I satisfied on the evidence of one employee that the practice of employees leaving site early as opposed to using the time for wash-up on-site, is so widespread and long standing that it has become an implied contractual entitlement of all staff on-site of the type described in Transport Workers Union of Australia v Linfox[21] (Linfox).  

Conclusion

  1. It follows from the foregoing that the answer to the question posed for determination is as follows;

“Does the decision of Metro to alter existing Wash-Up Time arrangements constitute a further claim within the terms of the Agreement?”

The answer is “No”.

  1. The matter is determined accordingly.

DEPUTY PRESIDENT

Appearances:

R Wainwright for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union.
E McGrath for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
C Shaw for the Respondent.

Hearing details:

2023.
Melbourne:
March 27.

Final written submissions:

Applicants, 3 April 2023.
Respondent, 10 April 2023.


[1]AE507020

[2] 2022 FWC 2974

[3] Exhibit AMWU 1, 1992 Wash-up Time Agreement

[4] Exhibit AMWU 2, Wash-up Time Memo, dated 12 December 2012

[5] Exhibit AMWU 3, Epping – Consistency of attendance Email, dated 1 November 2018

[6] Memo from Peter Hilbert to All Epping Train Maintenance Employees re. ‘Suspension of wash up time’, dated 24 June 2022

[7] Exhibit AMWU 4, Email from Peter Hilbert to All Epping Train Maintenance Employees re ‘Removal of the wash-up time’, dated 8 August 2022

[8] Jurisdictional Decision at [11]-[12]

[9] Exhibit AMWU 5, Witness Statement of Andrew Twomey

[10] Exhibit MTM 4, Witness Statement of Peter Hilbert

[11] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005.

[12] [2022] FWC 163 at [63]

[13] AE872413

[14] AE898564

[15] AE422397

[16] Metro Trains Letter dated 25 October 2012, titled “Re: Rolling Stock undertakings regards Balanced Maintenance Introduction

[17] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].

[18] [2021] FWCFB 3456 at [38]

[19] [2022] FWC 163 at [51]

[20] [2017] FWCFB 6731

[21] [2016] FWCFB 443 at [27]

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