“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v KDR Victoria Pty Ltd

[2021] FWC 6278

[2021] FWC 6278

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)
v
KDR Victoria Pty Ltd
(C2021/3269)

COMMISSIONER MIRABELLA MELBOURNE, 24 DECEMBER 2021

Alleged dispute about any matters arising out of an enterprise agreement - construction of enterprise agreement.

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (the AMWU) has made an application to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s. 739 of the Fair Work Act 2009 (the Act) in accordance with the dispute settling procedure of the Yarra Trams Enterprise Agreement 2019 - Rolling Stock, Administration, Technical & Professional (the Agreement).

[2] The dispute relates to the proper construction of clause 9(h) of Appendix Two and clause 4.2(e) of Appendix Four of the Agreement (Reclassification Clauses) that provide for the reclassification of employees if they have been acting in a position at a higher level for at least a combined 6-month period. The dispute concerns three employees.

[3] The dispute settlement procedure in the Agreement provides for a party to the dispute to refer the matter to the Commission to be dealt with, in the first instance, by expressing an opinion, making a recommendation or through mediation or conciliation. Where there is no resolution, the Commission may then arbitrate the dispute. 1 The dispute was not resolved through conciliation and the AMWU requested on 6 July 2021 that the Commission arbitrate the dispute.

[4] There is no dispute between the parties as to jurisdiction, and I am satisfied on the evidence that I have jurisdiction to arbitrate the dispute.

[5] The parties agreed to have the matter dealt with on the papers.

Questions for determination

[6] The questions for determination regarding the proper construction of the Agreement were proposed by the AMWU as the following:

“(a) Are clauses 9(h), Appendix Two, and 4.2(e), Appendix Four, applicable to employees in a substantive role classified as “C7/Higher Engineering Tradesperson and Special Class Level II” while acting in the position of Foreman Artisan Grade 3 or 4?

(b) If yes, what is the scope and application of these clauses in the set of circumstances relating to the three employees who are the subject of the dispute?” 2

Relevant Agreement

[7] The Agreement applies to all employees of Yarra Trams who are employed in any classification specified within the Agreement. Part One deals with “Common Conditions” and Parts Two, Three and Four set out terms and conditions which apply to particular categories of employment covered by the Agreement. The relevant Parts and Appendices of the Agreement are as follows:

•  Part One – Common Conditions

•  Part Two – Rolling Stock

•  Part Four – Administration, Technical & Professional

•  Appendix Two – Supervisory & Technical

•  Appendix Three – Metal Trades Grades

•  Appendix Four – Salaried Employees

[8] Part One – Common Conditions applies to all employees and must be read together with the Part and Appendix relevant to the specific employee and their classification.

[9] The Interaction between the various parts of the Agreement and the Appendices are described in clause 2 of Part One as follows:

“2 Scope and Application

2.1 Part One of the Yarra Trams Enterprise Agreement 2019 - Rolling Stock, Administration, Technical & Professional, Common Conditions, applies to all Yarra Trams employees who are employed in a classification contained within this Agreement.

2.2 The Common Conditions (Part One of the Agreement) must be read in conjunction with the relevant Part(s) of the Agreement applying to the workgroup of employees concerned and the relevant conditions contained in their respective Appendix.”

[10] Part One, clause 2.3 of the Agreement provides as follows:

“When reading the various Parts and Appendices the following applies:

(a) To the extent of any inconsistency the provisions of Parts Two, Three and Four prevail over the provisions of Part One.

(b) To the extent of any inconsistency the provisions of a Part prevail over the

provisions of an Appendix.”

[11] Part Two and Appendix Three are applicable to the conditions for Tram Maintainers. Part Two, clauses 1, 2 and 4 provide as follows:

“Part Two – Rolling Stock

1 Scope and Application up to here

Part Two, Rolling Stock, applies to all Rolling Stock employees engaged in the maintenance and repair of all tram classes, both current and future, including the installation, modification or alteration, refurbishment, renovation, of all structural, mechanical, electrical, monitoring or control equipment and/or instrumentation including computer hardware and software.

2 Appendices

2.1 Further terms and conditions of employment for employees covered by this Part (Part Two) of the Agreement can be found in Appendix Three.

2.2 Further detail on the operation of the Agreement, its various Parts, and Appendices can be found in the Part One, clause 2 of the Agreement.

…

4 Tram Maintainer Classification Structure

Tram Maintainers are to be classified in accordance with the provisions of the National Metals and Engineering Competency Standards Implementation Guide, the Classification descriptors contained in Attachment One1 of Appendix Three, and the Competency Profiles agreed between the parties in accordance with the recommendation of Commissioner Roe in C2014/6238

Classifications are set out below, rates effective first full pay period to commence on or after 1 July 2019 are set out in Schedule A or Schedule B)

”

[12] Clause 8 in Appendix Three is in relation to the following terms:

“8 MIXED FUNCTIONS

8.1 Employees engaged for more than two hours during one day or shift on duties carrying a higher rate than their ordinary classification shall be paid the higher rate for such day or shift. If for two hours or less during one day or shift they shall be paid the higher rate for the time so worked.

8.2 Provided that this clause shall not apply to an employee performing the duties of an employee of a higher classification who is absent on a rostered day off.”

[13] Part Four applies to supervisors, including those classified as Foreman Artisan in the following terms:

“Part Four – Administration, Technical & Professional

1. Scope

Part Four, Administration and Technical, applies to all Yarra Trams employees engaged directly by Yarra Trams in positions involved in administrative, supervisory, technical and professional work. Administration and Technical includes the following classifications:

…

1.2 Foreman/Foreman Artisans/Foremen Supervisors - All grades with the exception of Foreman Artisan Two employees attached to the R10 vehicle who are covered by Part Three and Appendix Two.

…

2. Appendices

2.1 Further terms and conditions of employment for employees covered by this Part (Part Four) of the Agreement can be found in Part One and Appendix Two, Four and Five as detailed in the following table.

¹Excluding Depot Based Administrative Officers who work at a Tram Depot and are Operations staff.”

[14] The dispute is in relation to the Reclassification Clauses contained in Appendices Two and Four. Appendix Two being applicable to Foreman Artisan up to Grade 3 and Appendix Four applicable to Foreman Artisan from Grade 4.

[15] The Reclassification Clauses provide for the following.

•  In Appendix Two at clause 9(h):

“Yarra Trams shall reclassify any officer to a personal classification at the level of the higher position in which an officer has acted in for any period or periods which amount to six months or greater than six months (in any continuous twelve month period) provided that the higher position does not have a permanent incumbent appointed to it and is a vacant position.

Should an officer be appointed to a personal classification in accordance with the above criteria Yarra Trams shall not reduce the officer’s personal classification back to the officers former classification level for the reason that the higher position has been restructured or abolished.”

•  In Appendix Four at clause 4.2(e):

“Yarra Trams shall reclassify any employee to a personal classification at the level of the higher position in which they have acted in for any period or periods which amount to six months or greater than six months (in any continuous twelve month period) provided that the higher position does not have a permanent incumbent appointed to and is a vacant position.”

[16] In the context of this dispute regarding the interpretation of the Reclassification Clauses, the following clauses are relevant.

[17] Clause 4.1 of Appendix Four (the Higher Duties Allowance provisions) provides:

“Higher duties allowance

(a) Employees, other than those regularly engaged on relief duties, required to undertake the duties of a position higher than that in which they are classified, for a period of at least five consecutive working days shall be paid a higher duties allowance to increase their remuneration to the minimum rate of the higher position.

(b) Employees who have performed the duties of a higher position for more than ten non-continuous days within a twelve months period, shall be paid the higher duties allowance for each occasion on which the duties of the higher position are carried out for at least one working day or one shift, as the case may be.”

[18] Part One, clause 57.3, the Supplementary Labour Clause, is in the following terms:

“57.3 Project work

In respect of project work that is work that could be covered by this agreement , Yarra Trams will, following the requirements of consultation and prior to the engagement of supplementary labour, seek volunteers from existing Yarra Trams Employees.

Yarra Trams will provide employees with a minimum of 2 weeks’ notice of the request to work a project. Upon completion of the project, employees who volunteered to work project work will immediately return to their substantive maintenance role and roster, subject to a fatigue risk assessment. If there are not enough Yarra Trams employees who volunteer for the project work, then Yarra Trams may engage supplementary labour to meet the project labour requirements.”

Background

[19] The following matters were either common ground between the parties or otherwise not contested:

•  KDR Victoria Pty Ltd (Yarra Trams) operates Melbourne’s tram network and is responsible for associated rolling stock. 3

•  As part of its maintenance and upgrade obligations, Yarra Trams established the Rolling Stock Heavy Overhaul Project (the Project) in December 2017. In response to the Project failing to meet its delivery schedule, Yarra Trams decided to increase the work volume on the Project. 4

•  As part of this process, Yarra Trams sought expressions of interest from existing employees to work on the project in supervisory roles. 5

•  At the time expressions of interest were sought, Messrs Bobby Ristevski (Mr Ristevski), Gary Deering (Mr Deering) and Stephen Reginato (Mr Reginato) (the Employees) were employed in the position of Tram Maintainer. 6

•  The Employees successfully applied for the supervisory positions. The Employees all acted in the positions of either Foreman Artisan – Grade 3 (FA3) or Foreman Artisan - Grade 4 (FA4) for at least 6 months, commencing at various times from June 2019. 7

•  Whilst employed in the position of FA3 and FA4 (FA3/4), the Employees were paid the rates of pay applicable to those classifications. 8

•  In April 2021, the Employees ceased working at the Foreman Artisan level and returned to working in the position of Tram Maintainer. 9

Approach to the construction of enterprise agreements

[20] The questions raised by the AMWU concern the proper construction of the Agreement. The principles for the interpretation of enterprise agreements are well settled. These principles were summarised by the Full Court of the Federal Court of Australia in WorkPac Pty Ltd v Skene as follows:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 10

[21] And set out by the Full Bench in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) 11 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 aide 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.”

Applicant’s evidence submissions

[22] The AMWU filed witness statements of the Employees:

•  Mr Ristevski;

•  Mr Deering; and

•  Mr Reginato.

[23] The AMWU contends a plain reading of the Agreement means that the Reclassification Clauses apply to the Employees while they were performing work in the role as either an FA3 or FA4. That is, they “were no longer “engaged in the maintenance and repair of all tram classes.” Instead, they were engaged “in positions involved in administrative, supervisory, technical and professional work.” 12

[24] They further contend that if some of the provisions of Appendices Two and Four applied to the Employees, then all of the provisions would need to apply, and that Yarra Trams applied aspects of the Appendices by virtue of the annual increment given to the employees whilst performing the Foreman Artisan Roles. 13

[25] The AMWU submits that the Employees meet the criteria of the Reclassification Clauses because they were acting in higher duties for at least six months, and they were filling vacant positions. And, accordingly, that Yarra Trams should have reclassified the Employees’ personal classification to an FA3 or an FA4. The effect of that would be that when the Employees returned to perform the duties of a Tram Maintainer, they were entitled to be paid at a rate applicable to an FA3/4. 14

[26] In opposition to Yarra Tram’s submission, the AMWU contends that the Reclassification Clauses do apply because the positions were described as an “Internal Vacancy” and that the Reclassification Clauses do not require that the positions be permanent, only that “the higher position does not have a permanent incumbent appointed to it.” 15

[27] The AMWU submits that, if the Reclassification Clauses apply to the Employees, the effect is that their “personal classification” is changed to the level of an FA3/4. That would mean that “they would continue to be paid at the higher rate although they may be returned to duties which are at a lower classification.” 16

[28] “Personal classification” is not defined in the Agreement. The AMWU submits that it has the same meaning as “substantive position” or “substantive classification”. That is, it is the classification that attaches to an employee with the effect that, irrespective of the duties they perform, they cannot be paid any amount lower than that which is payable to an employee in that classification. 17

[29] In submitting that the Employees were acting in higher duties, the AMWU says that the word “secondment” does not appear in the Agreement and rejects that the term is applicable in this case. The AMWU further submits that a secondment was not contemplated due to the following factors: the lack of a letter of appointment, a fixed term for the higher duties appointment, the Project exceeding two years and the restructure being the cause of the Employees ceasing to work at the higher duties. 18

[30] On the issue that secondment would exempt the Reclassification Clauses from applying, the AMWU submits that:

“45. … The purpose of the clause is to avoid a situation where an employee can be asked to act in a higher role for a long period of time without being permanently reclassified to that classification. The only exemption is for employees who are relieving a permanent incumbent.

46. If there was an exemption on this basis, the Respondent could simply describe all appointments to act in a higher classification as “secondments”, and therefore render the clause ineffective.” 19

Respondent’s evidence submissions

[31] Yarra Trams filed a witness statement of Kieran Navin, the Principal Program Manager of the Project.

[32] Yarra Trams submits that the substantive position of the Employees was that of Tram Maintainer and that clause 8, Appendix Three (the Higher Duties Clause) applies to them, and not the Reclassification Clauses as contended by the AMWU. 20

[33] Yarra Trams says that the Reclassification Clauses cannot apply because the Employees were seconded to positions and that these positions were not “permanent” or “vacant”. 21

[34] They further submit that to apply the Reclassification Clauses to temporary employees is inconsistent with the purpose of a higher duties clause and to do so would make any higher duties clause redundant. 22

[35] Conversely, the AMWU contends that the Higher Duties Clause in Appendix 3 as interpreted by Yarra Trams would “allow for the Respondent to indefinitely “second” a metal trades employee to a vacant Foreman Artisan position (or any other supervisory role) without an obligation to permanently appoint the employee to the role, because the employee would continue to be covered by the metal trades provisions of the Agreement, despite not performing metal trades duties. The AMWU submits that this is an illogical outcome.” 23

[36] As evidence that the “secondment” was temporary, Yarra Trams submits that the positions offered were of a temporary nature for up to two years, there were no changes to the underlying conditions of employment and that the Employees accepted the positions on that basis. 24

[37] Yarra Trams submits that the Reclassification Clauses cannot have been intended to apply to temporary positions. Further, that the positions accepted by the Employees were temporary as they were created to deliver additional work for a project that was behind schedule and were not permanent and ongoing. 25 Yarra Trams states that:

“19. The Reclassification Clause applies in circumstances where “the higher position does not have a permanent incumbent appointed to it and is a vacant position”. It is not intended to apply to circumstances of a temporary, project role and to do so would lead to impractical or absurd outcomes.” 26

Supplementary Labour Clause

[38] Yarra Trams further contends that the Supplementary Labour Clause (the SLC) in clause 57.3 of Part One of the Agreement provides for employees who have volunteered to work on a project to be returned to their substantive maintenance role and roster at the completion of the project. 27

[39] Yarra Trams submits that, insofar as the SLC is inconsistent with any Appendix, the interpretation clauses of the Agreement will mean the SLC prevails over the Appendix. 28

[40] Yarra Trams submits that:

“22. The Reclassification Clauses appear in Appendices to the Agreement. Under the Interpretation Clauses, the provisions of a Part prevail over an Appendix to the extent of any inconsistency. The Supplementary Labour Clause appears in Part One and provides that:

(a) The Respondent must offer roles associated with project work to existing employees;

(b) The Respondent must return those employees to their “substantive maintenance role” and roster, at the conclusion of the project.”

[41] The AMWU does not agree that there are inconsistencies between the SLC and the Reclassification Clauses, submitting that:

“13. The Supplementary Labour clause provides that the Respondent shall seek volunteers from existing employees for project work. It also provides that upon completion of the project, employees will “immediately return to their substantive maintenance role and roster”.

14. The Supplementary Labour clause has a broader application than the Reclassification Clauses. For example, it would apply to employees who are engaged in project work at the same classification level as their ordinary work. It does not necessarily relate to “working higher”.

15. The clause provides that an employee will return to their “substantive maintenance role and roster”. The Applicant submits that “substantive maintenance role” in this context would mean the employee’s previous position and duties. This does not preclude an employee from maintaining a higher classification and rate of pay that they have attained through the operation of the Reclassification Clauses. Indeed, the Reclassification Clauses anticipate a situation in which an employee may return to duties of a lower classification while maintaining the higher rate of pay.

16. Further, the Supplementary Labour clause provides that employees will be returned to their substantive maintenance role “upon completion of the project”. The application of the Supplementary Labour clause in the present matter is questionable as the project has not completed. Instead, the positions were restructured and the three positions filled by the Employees were abolished.”

[42] Satisfying the requirement for reclassification is not, in and of itself, inconsistent with the SLC. In so far as the Reclassification Clauses and the SLC are not mutually inconsistent, I agree with the AMWU’s submission.

Consideration

[43] In considering the circumstances involved in this matter and applying the principles enunciated in Berri, the first requirement is to determine whether the relevant terms and their place in the overall structure of the Agreement can be said to have a plain and ordinary meaning and are to be applied accordingly, or whether they evidence ambiguity.

How does the Agreement apply to Tram Maintainers?

[44] In addition to Part One, (the Common Conditions applying to all employees), Part Two of the Agreement is headed “Rolling Stock” and, as per clause 1, applies to all employees “engaged in the maintenance and repair of all tram classes…”.

[45] Clause 2 of Part Two explains that “[f]urther terms and conditions of employment for employees covered by this Part (Part Two) of the Agreement can be found in Appendix Three.”

[46] The structure of the Agreement means that Part Two and Appendix Three specifically cover the terms and conditions applicable to Tram Maintainers.

[47] The employees had been employed as Tram Maintainers prior to their secondment to higher duties.

[48] The employees were employed at higher duties following successful applications to fill internal vacancies. These were advertised as “seconded opportunities” to act at higher duties in an FA3/4 capacity for a period of less than two years.

[49] The Agreement’s structure and its division into separate Parts and Appendices is intended to provide an orderly and clear guide as to the terms and conditions applicable to different categories of employment. I am satisfied that, in considering the circumstances involved in this matter, Part Two and Appendix Three have a plain an ordinary meaning. That is, Part Two applies to employees engaged in the maintenance of trams and that any further terms and conditions for Tram Maintainers are contained in Appendix Three. Accordingly, the higher duties clause applicable to Tram Maintainers is clause 8.1 of Appendix Three.

[50] In continuing to apply a plain and ordinary meaning to other parts of the Agreement, it is clear that FA3/4 are covered by Parts One and Four and Appendix Two and Four respectively. That is, the Higher Duties Clauses and any consequential clauses in these Parts and Appendices apply to FA3/4 who act in higher duties and not to other employees acting at higher duties in a FA3/4 position.

Do the Reclassification Clauses apply to the Employees?

[51] Both the AMWU and Yarra Trams say that if the Agreement is not interpreted as they submit it should be, then the Reclassification Clauses in the case of the former, and the Higher Duties Clause in the case of the latter, would be redundant.

[52] The AMWU says that the Higher Duties Clause could be used to circumvent the Reclassification Clauses by having higher duties described as secondments. In this matter there is no evidence that Yarra Trams has acted to circumvent the Reclassification Clauses. As to any future interpretation, Yarra Trams would still need to act within the law and any alleged mischaracterisation of an appointment would be open to challenge.

[53] By virtue of working in the position of an FA3/4 in a short-term capacity and being paid at the relevant pay rates and increments, do the Employees become entitled to all the other terms and conditions of the higher position so that they have the Reclassification Clauses apply to them? Absent any evidence to the contrary, the temporary appointment did not change the fundamental terms of employment for the Employees.

[54] There is no dispute that the Employees were acting in higher duties and had done so for at least six months (but less than two years). In my view, that is not enough to have them qualify to have their substantive position reclassified to the higher position of an FA3/4 as per the Reclassification Clauses.

[55] Relevantly, the Reclassification Clause in Appendix Two, is found under heading 9 of that Appendix and is titled “Relieving in a Higher Position”. It is not in dispute that the positions in this matter were newly created and were not relief positions.

[56] Secondly, the Reclassification Clauses provide that reclassification can be made “provided that the higher position does not have a permanent incumbent appointed to it and is a vacant position.” Yarra Trams disputed that the positions were vacant. The Expressions of Interest document described the positions under the title “internal vacancy”. The purpose of advertising the positions was to find employees to fill them. I find that the positions were vacant.

[57] The advertised positions were newly created and, accordingly, could not have any “incumbent” employees attached to them. Although there were no incumbent employees, the word “permanent” is used in the Reclassification Clauses and it cannot be superfluous. The word “permanent” must have a meaning in this context.

[58] In adopting the settled approach to the interpretation of enterprise agreements, 29 I am satisfied that the word “permanent” has a plain and ordinary meaning. It says what it means. Put simply, the word “permanent” cannot be a reference to a temporary position but must be in relation to a permanent position. The Reclassification Clauses must apply to permanent positions, and it is in this context that the phrase “permanent incumbent” is used.

[59] The AMWU’s submission that the Reclassification Clauses do not require the positions to be “permanent”, because they provide that “the higher position does not have a permanent incumbent appointed to it”, 30 is illogical. In considering the evident purpose of the provisions and having regard to the industrial context in which the Agreement operates, it is my view the ordinary position occupied by a “permanent incumbent” would be a “permanent” position.

Were the advertised positions “permanent”?

[60] The new positions were intended to boost the capacity of the Project that was falling behind schedule. The positions were not advertised as permanent but as “secondment opportunities” being “for up to 2 years.” 31 “Secondment”, in the ordinary meaning of the word, is the temporary transfer of staff. In this context, when applying the ordinary meaning of the word “permanent”, I find that the advertised positions could not have been permanent.

Conclusion

[61] The answers to the questions that the AMWU asked the Commission to determine in order to resolve the dispute are as follows:

Question 1: Are clauses 9(h), Appendix Two, and 4.2(e), Appendix Four, applicable to employees in a substantive role classified as “C7/Higher Engineering Tradesperson and Special Class Level II” while acting in the position of Foreman Artisan Grade 3 or 4?

Answer: No

Question 2: If yes, what is the scope and application of these clauses in the set of circumstances relating to the three employees who are the subject of the dispute?

Answer: Not necessary to answer

COMMISSIONER

Hearing details:

Decision on papers

Final written submissions:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union – 22 July 2021, 13 August 2021 (Submissions in Reply)

KDR Victoria Pty Ltd – 6 August 2021

Printed by authority of the Commonwealth Government Printer

<PR735546>

 1   Yarra Trams Enterprise Agreement 2019 - Rolling Stock, Administration, Technical & Professional (the Agreement) clause 12.7.

 2   Applicant’s Outline of Submissions, paragraph 9.

 3   Respondent’s Outline of Submissions, paragraph 3.

 4   Witness Statement of Kieran Navin, paragraph 5.

 5   Applicant’s Outline of Submissions, paragraph 3.

 6   Respondent’s Outline of Submissions, paragraph 4.

 7   Witness Statement of Bobby Ristevski, paragraph 6; Witness Statement of Kieran Navin, paragraph 9.

 8   Respondent’s Outline of Submissions, paragraph 10.

 9   Witness Statement of Kieran Navin, paragraph 10.

 10   WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197].

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

 12   Applicant’s Outline of Submissions, paragraphs 20-21.

 13   Ibid., paragraphs 23-24.

 14   Ibid., paragraphs 39-41, 48.

 15   Applicant’s Submissions in Reply, paragraphs 7-8.

 16   Applicant’s Outline of Submissions, paragraph 33, 35.

 17   Ibid., paragraphs 30-31.

 18   Ibid., paragraphs 43-44.

 19   Ibid., paragraphs 45-46.

 20   Respondent’s Outline of Submissions, paragraph 15.

 21   Ibid., paragraph 17; Witness Statement of Kieran Navin, paragraph 6.

 22   Respondent’s Outline of Submissions, paragraph 15.

 23   Applicant’s Submissions in Reply, paragraph 5.

 24   Respondent’s Outline of Submissions, paragraph 14.

 25   Ibid., paragraph 18.

 26   Ibid., paragraph 19.

 27   Ibid., paragraph 20.

 28   Ibid., paragraphs 21-22.

 29   Berri, [114].

 30   Applicant’s Submissions in Reply, paragraph 8.

 31   Witness Statement of Bobby Ristevski, attachment BR-1.