DECISION

Fair Work Act 2009
s.739—Dispute resolution

Craig Rogers
v
Rail Commissioner
(C2020/6407)

RAIL COMMISSIONER RAIL OPERATIONS ENTERPRISE AGREEMENT 2016
[AE423085]

COMMISSIONER HAMPTON

ADELAIDE, 17 NOVEMBER 2020

Dispute about matters arising under the terms of an enterprise agreement – various related issues – agreed jurisdiction for Commission to arbitrate the proper meaning - parties could not agree the questions but common themes identified and considered – obligations during and after redeployment process established by the terms of the agreement assessed and determined in line with authority and relevant evidence informing the objection intention – dispute determined – liberty to apply on one issue – s.739 of the Fair Work Act 2009.

1. The dispute and its context

[1] This decision concerns the determination of a dispute about the proper application of the Rail Commissioner Rail Operations Enterprise Agreement 2016 (the 2016 EA) in the context of some significant change to the operations of trains in and around the greater Adelaide region due to commence on 31 January 2021. At that time, the rail operations presently carried out by the Rail Commissioner and its employees under the terms of the 2016 EA will be undertaken by a private contractor, Keolis Downer. The dispute concerns the rights of the employees and the obligations of the Rail Commissioner in that context, and in particular, in relation to those employees who do not elect to transition to the new employer. For the most part, these rights and obligations are created by Schedule 5 – Rail Operations – Redeployment, Retraining and Redundancy of the 2016 EA (RRR schedule).

[2] This matter is being determined by the Commission as a result of an application lodged under s.739 of the Fair Work Act 2009 (the FW Act) by Mr Craig Rogers, who is an employee covered by the 2016 EA. Mr Rogers is part of a group of employees who are also covered by that agreement who informally operate as part of the Australian Employment Alliance (AEA). 1 The AEA, albeit not operating under that name at the time, represented Mr Rogers and a large group of employees during the negotiations for the 2016 EA through Mr Gary Collis, who was, and is, a bargaining representative for the group.

[3] The Australian Rail, Tram and Bus Industry Union (RTBIU) is covered by the 2016 EA and has chosen to make written submissions concerning this matter but has not otherwise participated in the proceedings.

[4] The Respondent, the Rail Commissioner, is a statutory body corporate established under the Rail Commissioner Act 2009 (SA) (the RC Act) and its functions include the operation of public transport services by train or tram in metropolitan Adelaide. The Rail Commissioner is administratively part of the South Australian Department of Infrastructure and Transport (the Department or DIT). The Tram operations are not, and have never been, covered by the 2016 EA and I observe that these were also outsourced earlier this year.

[5] The dispute was referred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 5780
Decision Date: 17 NOVEMBER 2020

CaseChat Overview and Summary

Craig Rogers brought a case against the Rail Commissioner, arising from matters under an enterprise agreement. The dispute centred on several related issues that could not be resolved by the parties. The Fair Work Commission was given jurisdiction to arbitrate on the proper meaning of the agreement terms. The court had to decide on the obligations during and after the redeployment process, as well as other related matters.

The court carefully considered the arguments from both parties, focusing on the common themes identified in the agreement. The obligations during and after the redeployment process were assessed based on the agreement's terms, authoritative interpretations, and relevant evidence. The court also considered the intention behind the agreement, ensuring a fair and balanced outcome. The court determined the dispute based on these assessments and the evidence presented.

The court ruled in favour of the Rail Commissioner, establishing the obligations during and after the redeployment process as per the agreement. The court found that the agreement's terms, along with the authoritative interpretations and evidence, supported the Rail Commissioner's position. The decision provided clarity on the obligations in question, resolving the dispute between the parties. The court granted Rogers the liberty to apply for reconsideration on one specific issue, as per section 739 of the Fair Work Act 2009.

Orders