“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) (188V) and Communications, Electrical, Electronic, Energy, Information,...
[2022] FWC 2974
•10 NOVEMBER 2022
| [2022] FWC 2974 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“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, 10 NOVEMBER 2022 |
Application to deal with a dispute under an enterprise agreement.
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).
The dispute is in relation to the claimed alteration of ‘wash up’ time practices at Metro Trains Epping depot. The alleged change in practice is that Metro Trains has directed 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, 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, was stated by the AMWU and CEPU in their respective Form F10s to be in breach of clause 10.9(d) – The alteration of hours of work, clause 13 – No extra claims and clause 79 – Facilities.
Jurisdiction of the Commission
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 DSP). The DSP 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.
………………”
Clause 12.1 of the DSP establishes that a dispute can be raised in relation to a matter arising under the 2019 Agreement (excluding OH&S matters), the National Employment Standards (NES) and a matter pertaining to the employment relationship. Clause 12.5 of the DSP confines the arbitral power of the Commission to disputes arising under the 2019 Agreement and with respect to the NES. With respect to disputes over matters pertaining to the employment relationship, the jurisdiction of the Commission is confined to resolving the dispute as it considers appropriate including by “mediation, conciliation, expressing an opinion or making a recommendation”. It is clear in my view that the Commission cannot, other than by consent of the parties, arbitrate a dispute over a matter pertaining to the employment relationship unless that matter is a term of the 2019 Agreement or an entitlement under the NES.
The disputed entitlement, that of the wash-up arrangements at the Epping depot is not explicitly dealt with in the 2019 Agreement. As such there is some doubt as to whether the Commission has the power to determine the dispute. As a consequence, and following unsuccessful conciliation of the dispute, the matter was set down for formal determination with the preliminary jurisdictional matter to be determined, that being whether the Commission has the power to arbitrate the dispute.
The parties were required to set out the question to be determined in resolving the dispute. The question proposed by the AMWU, which was not opposed by Metro Trains, 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?”
Directions were subsequently issued requiring the parties to respectively file submissions, witness statements and any other material on which they sought to rely going only to the jurisdictional question. The directions were complied with and by agreement of the parties, the Commission was requested to determine the jurisdictional question on the papers.
Background and evidence
On 30 October 1992, an agreement was reached by the Site Implementation Committee 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[2]. The recording of the agreement stated as follows in respect of the wash-up time agreement;
“……………..
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 entitlement.
…………..”
The practice agreed to in 1992 has not been revoked since it was introduced and was reinforced on 12 December 2012 when a memo[3] was sent 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.
………….”
On 1 November 2018, it was agreed by Metro Trains management to extend the agreed wash-up time arrangements to the car building group to address an inequity issue raised by that workgroup[4].
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[5], Bryan Evans of the RTBU[6] and Chris Spindler of the AMWU[7]. 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[8]. 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[9]. Each of the witnesses state that the unions collectively decided not to pursue the claim[10].
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[11]. 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[12]. 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[13].
Mr Peter Hilbert is the Depot Manager in the Rolling Stock Division of Metro Trains at the Epping depot. He states that not long after commencing in that position in December 2021 it came to his attention that employees were leaving the depot up to 15 minutes prior to the end of their shift. He states that enquiries revealed that employees had taken it upon themselves to leave work early rather than use the designated fifteen (15) minutes for wash-up on site. He further states that he is aware of the previous agreed arrangements for fifteen (15) wash-up time at the Epping depot and that he has not agreed and nor is he aware of any agreement by his predecessors that employees could choose to leave site up to fifteen (15) minutes early rather than avail themselves of that time for wash-up on site. He subsequently issued an instruction on 8 August 2022 to staff at the Epping depot that eligible employees are only able to access wash-up time consistent with the intent for which it was introduced in 1992.
Case for the AMWU and CEPU
The AMWU contends that the 2019 Agreement was in full and final settlement of all matters subject to claims by the parties covered by the 2019 Agreement and for the life of the 2019 Agreement by reason of clause 13 – No extra claims which states as follows;
“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.”
The AMWU contend that wash-up time was the subject of a claim by the AMWU during negotiation of the 2019 Agreement. As such, the AMWU state that it is a matter that pertains to the No Extra Claims clause, because the claim for wash-up time while not agreed by Metro Trains, was “subject to claims” by the unions. It is by reason of having been the subject of claims during bargaining that the AMWU contend it is a matter pertaining to clause 13 which enlivens the jurisdiction of the Commission to determine the dispute in accordance with clause 12.5(b) of the 2019 Agreement.
Case for Metro Trains
Metro Trains contend that the direction issued to staff at the Epping depot requiring them to adhere to the agreed wash-up time arrangements, as reflected in the 1992 agreement and as reaffirmed in 2012, does not constitute an extra claim withing the meaning of clause 13 of the 2019 Agreement. Metro Trains submit that it is neither seeking to abolish or vary the agreed wash-up time arrangements. Rather its action should be construed as making changes to the administration of the agreement that underpins wash-up time at the Epping depot.
Metro Trains further contends that even if it were seeking to change an agreed practice, a refusal to maintain a pre-existing practice that is not a term of the 2019 Agreement would not constitute an extra claim. The purpose of the No Extra Claims clause according to Metro Trains is to prevent a party from seeking to add, remove or vary a clause contained in the 2019 Agreement. The No Extra Claims clause does not restrict a party from varying an unregistered practice or agreement particularly where they provide for change as in the wash-up time arrangements.
Metro Trains also submit that reinforcement of the point that an old agreement not included in the 2019 Agreement is not subject to the No Extra Claims clause is to be seen in clause 3.1 of the 2019 Agreement which states as follows;
“3 RELATIONSHIP TO AWARDS AND AGREEMENTS
3.1 The 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.” (emphasis added)
It follows from clause 3.1 according to Metro Trains, that as the wash-up time arrangements are not preserved in the 2019 Agreement, this would seem to imply that the No Extra Claims clause would not apply to matters not dealt with in the 2019 Agreement.
Consideration
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.
However, the dispute is characterised differently by the AMWU to that described immediately above. Rather, it is characterised as a dispute over the operation of clause 13 of the 2019 Agreement. That is, the Metro Trains’ instruction issued on 8 August 2022 is contended by the AMWU to represent a change to the “bargain” reached by the parties and reflected in the 2019 Agreement. As a consequence, it represents in the AMWU’s submission an extra claim within the life of the 2019 Agreement, which is prohibited by clause 13 of the 2019 Agreement. The dispute which is contended as pertaining to clause 13 of the 2019 Agreement, if accepted by me as being the proper characterisation of the dispute, would bring the dispute within the scope of clause 12.5(b) of the 2019 Agreement, consequently conferring arbitral power to the Commission to determine the dispute. The dispute in my view may be properly characterised as a dispute pertaining to clause 13 of the 2019 Agreement.
In its submissions in reply, Metro Trains has conflated the jurisdictional point with the merits on the question for determination by largely focussing on whether changes to the wash-up time arrangements do or don’t constitute an extra claim. They have failed to properly engage with the preliminary question before me, that being whether the Commission has the jurisdiction to determine whether Metro Trains’ instruction of 8 August 2022 is a change in wash-up time arrangements such that it constitutes an ‘extra claim’ within the terms of the 2019 Agreement.
As to the AMWU’s claim that by the unions’ having unsuccessfully raised a wash-up time claim during bargaining for the 2019 Agreement, it establishes that wash-up time is a matter “pertaining” to clause 13 of the 2019 Agreement, it is unnecessary for me to resolve that point. It is enough for me to say at this point that even were a particular claim not raised by a party during bargaining, a subsequent claim not raised during bargaining to remove, add or vary a term of the 2019 Agreement would on the authorities referred to by Metro Trains appear to constitute an extra claim. Consequently, the fact that wash-up time was or wasn’t raised by the unions during bargaining for the 2019 Agreement does not assist to resolve the preliminary question of whether the Commission has jurisdiction to determine the dispute.
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.
Conclusion
For the forgoing reasons, the Commission has jurisdiction pursuant to s.739 of the Act to determine the dispute before it. The matter will be shortly programmed for hearing and determination.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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[1]AE507020.
[2] Exhibit A1, Site Implementation Committee – Enterprise Bargaining Suggestions, dated 30 October 2022
[3] Exhibit A2, Memo titled ‘Wash-up Time’, dated 12 December 2012
[4] Exhibit R3, Email from Mark Stefani to Bryan Evans of RTBU titled ‘Epping – Consistency of attendance’, dated 1 November 2018
[5] Exhibit A1, Witness Statement of Aaron Douglas, dated 7 October 2022
[6] Exhibit A2, Witness Statement of Bryan Evans, dated 7 October 2022
[7] Exhibit A3, Witness Statement of Chris Spindler, dated 7 October 2022
[8] Exhibit A1 at [6], Exhibit A2 at [5], Exhibit A3 at [6]-[7]
[9] Exhibit A1 at [7]. Exhibit A2 at [8], Exhibit A3 at [8]
[10] Exhibit A1 at [8], Exhibit A2 at [9], Exhibit A3 at [10]
[11] Exhibit R4, Witness Statement of Danny Walsh, dated 27 October 2022, at [5]
[12] Exhibit R5, Witness Statement of Cameron Murray, dated 17 October 2022, at [4]
[13] Exhibit R6, RTBU Log of Claims Rolling Stock 2019, R7, AMWU/ETU Members Log of Claims for the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2019
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