Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union

[2019] FWC 893

[2019] FWC 893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Metro Trains Melbourne Pty Ltd
v
Australian Rail, Tram and Bus Industry Union
(C2018/5650)

COMMISSIONER LEE MELBOURNE, 12 FEBRUARY 2019

Alleged dispute about any matters arising under the enterprise agreement – whether the terms of the Agreement allow the Company to introduce a new meal location.

Introduction and background

[1] Metro Trains Melbourne Pty Ltd (the Company) has made an application under s.739 of the Fair Work Act 2009 (the Act) notifying a dispute to the Fair Work Commission (FWC). The Respondent to the application is the Australian Rail, Tram and Bus Industry Union (the RTBU). The dispute is about whether or not the Company can introduce a new meal location under the terms of the relevant Agreement.

[2] The relevant Agreement is the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019 (the Agreement). The dispute resolution procedure relied upon is located at clause 1.12 of the Agreement. According to the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Form F10), the dispute relates to a number of clauses of the Agreement including:

•  Clause 1.5 No Extra Claims

•  Clause 1.8 Commitments By The Parties and Project Facilitation Payment

•  Clause 2.24 Amenities

•  Clause 18 of Schedule 1 Meal Locations

[3] The Company has recently commissioned a number of new stations on the Metro Trains (Metro) network. One of these new stations is the Mernda train station which was established as part of the extension of the South Morang Line. The Mernda station has a shared meal facility for Metro staff to utilise as well as a second meal facility in the station sidings. The Company assert and the RTBU has not disputed that the standard of the facilities at Mernda comply with those set out in the Amenities clause of the Agreement.

The History of the Dispute

[4] On 21 March 2018, the Company met with the RTBU in relation to the introduction of the Mernda Depot meal facility. This was followed by formal notification on 4 April 2018.

[5] On 2 May 2018, the Company appeared before Commissioner Gregory in relation to a dispute regarding the introduction of a temporary meal facility on the Metro Network (Caulfield). The Company agreed to pay an allowance to the drivers for the temporary period of time that this meal room would be in use. The Company submit that they made it clear that this outcome would not set a precedent for the introduction of future meal locations. On 5 June 2018, the Company wrote to the RTBU reiterating this.

[6] On 27 July 2018, the Company again formally advised the RTBU of its intention to utilise Mernda as a meal facility. On 30 July 2018, the Company again consulted with the RTBU regarding the introduction of the new Depot location and took a representative of the RTBU on a planning walk through of the facilities at Mernda.

[7] On 24 August 2018, the RTBU verbally advised the Company that a dispute would be forthcoming as Mernda was not defined as a meal location at clause 18 of Schedule 1 of the Agreement. On 24 August 2018, the Company received a Notice of Dispute from the RTBU in relation to Mernda as a proposed meal facility. On 1 October 2018, a meeting was held with the Company and the RTBU in an attempt to resolve the matter. A proposal was put formally to the RTBU in respect to the use of the facility on an interim basis, with the commitment to review the ‘Meal Locations’ clause throughout the course of Agreement bargaining and convert the location to a permanent one via an updated Agreement and, until that time, the meal location would be recognised as being ‘Interim’ in nature. The RTBU were asked to respond by close of business Thursday 4 October to advise if they accept the proposal to resolve the dispute. The Company did not receive a response.

[8] This application was lodged with the FWC on 10 October 2018 and the matter was listed for a conference before me on 15 October 2018 in an attempt to resolve the dispute. The conference failed to resolve the dispute. The Company sought at this time that the matter be arbitrated.

[9] The matter was listed for Mention before me on 24 October 2018. Ms Dawson-Field was granted permission to appear for the RTBU as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[10] At the Mention, the parties agreed that the question to be resolved in order to resolve the dispute is as follows:

“Do the terms of the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019 1 allow the company to introduce a new meal location (that is, a location other than one listed in clause 18 at Schedule 1) on the suburban network?”

[11] At the Mention, both parties indicated that there was no need for the matter to be listed for hearing and that neither party anticipated filing witness evidence.

[12] Directions were issued to the parties on 24 October 2018 in relation to the filing of materials. On 7 November 2018, the Company filed written submissions. On 28 November 2018, the RTBU filed written submissions and a witness statement of Mr Jim Chrysostomou, a Union Official from the RTBU.

[13] On 3 December 2018, the Company confirmed that they will not be submitting a reply to the RTBU’s submissions, nor did they wish to have the matter listed for hearing.

Jurisdiction to arbitrate the dispute

[14] This is an application made pursuant to s.739 of the Act. Relevantly, ss.738 and 739 of the Act provide as follows:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[15] The dispute settlement clause in the Agreement is clause 1.12 and is in the following terms:

“1.12 Dispute Resolution

1.12.1 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;

then the following procedures apply.

1.12.2 An Employee who is a party to the dispute may be represented at all stages for the purposes of the procedures in this clause, by their representative, which may include the union.

1.12.3 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. in good faith.

1.12.4 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.

1.12.5 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 1.12.1 (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.

Note: if the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act 2009 (Cth).

A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009 (Cth). Therefore, an appeal may be made against the decision.

1.12.6 The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure these processes are carried out expeditiously.

1.12.7 In the event of a clause 1.12.1 (a) or (b) dispute, while the parties are trying the resolve the dispute using the procedure in this clause, work must continue in accordance with the usual practice existing prior to the matter that is the subject of the dispute (status quo), pending the resolution of the dispute unless:

(a) there is a reasonable concern about an imminent risk to health and safety associated with the status quo (in which case status quo will not apply): or

(b) the status quo has a direct impact on service delivery or Government related initiatives (in which case the status quo will only apply up to the conclusion of the steps in clause 1.12.5 (a)).

For the avoidance of doubt, the state of affairs as it existed prior to the matter that is the subject of the dispute will remain in place. For example, if the dispute is about a change to work, the status quo represents the position before the change.

1.12.8 In the event of a clause 1.12.1 (c) dispute, the status quo will not apply, pending the resolution of the dispute.

1.12.9 The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this clause. For the avoidance of doubt, this excludes matters arising under 1.12.1 (c).

1.12.10 For ease of reference, various rights under this clause 1.12 are summarised as follows:

Dispute	Status Quo	FWC Mediation, Conciliation, Opinion, Recommendation, etc	FWC Arbitration	Parties Bound by FWC Decision
1.12.1 (a) Agreement	Yes – subject to 1.12.7 (a) or 1.12.7 (b).	Yes	Yes	Yes
1.12.1 (b) National Employment Standards	Yes- subject to 1.12.7 (a) or 1.12.7 (b)	Yes	Yes	Yes
1.12.1 (c) Employment Relationship	No	Yes	No	No

[16] It is apparent from the history of the dispute set out above that the required steps of the dispute settlement procedure have been complied with and the dispute relates to a matter arising under the Agreement. Neither party has contended otherwise. Nor has either party contended that there is any other jurisdictional barrier to the Commission arbitrating the matter. I am satisfied that the requisite jurisdiction exists for the Commission to arbitrate the dispute and, consistent with the dispute settlement term, make a determination that is binding on the parties.

Submissions

In the Company’s submissions they refer to the following clauses in the Agreement as relevant to the matter in dispute:

Clause 1.8

“1.8 Commitments By The Parties and Project Facilitation Payment

1.8.1 The Parties to the Agreement are committed to supporting the implementation of Company and Government initiatives including:

(a) "Operating Groups" being the separation of the network into a central section and two (2) stand-alone sections (Metro North and Metro South) with each containing end-to-end lines, separate train fleets, maintenance and stabling facilities. Driver operations will be in accordance with clause 5(a) of Schedule 1.

(b) "HomeSafe/ Night Network" being the twenty· four (24) hour Friday and Saturday night services as announced by the Victorian Government.

(c) "Rail Construction and Renewals Projects" being any rail construction and renewals projects, including the Level Crossing Removals project announced by the Victorian Government.

1.8.2 In consideration for the commitments made at 1.8.1 (a), (b) and (c) by the Employees and the Unions, the Company will make a three percent (3%) one-off Project Facilitation Payment (PF Payment) to Employees who are engaged by the Company at the commencement of the Agreement, following the successful commencement of the HomeSafe/ Night Network Trial and full implementation of efficiencies and associated rosters including those to reflect the separation of the three (3) groups (North, South and Central), the decentralisation of FSS for all locomotive grade classifications and the full implementation of 'New Rules' associated with the creation of Weekly Master Rotations' and 'Day of Operations'

shift management, as described in Schedule 1 of the Agreement. The PF Payment will be made no later than the first full pay period following 30 April 2016, unless the initiatives described in this sub-clause have not been successfully implemented, in which case it will be paid as soon as possible following the successful implementation of these initiatives.

(a) Meeting the above initiatives may include supporting the implementation of new rosters or workplace arrangements, including workplace location (both temporary and permanent), to support any of the above.

(b) The PF Payment for full-time Employees will be calculated on the basis of the ordinary base salary at the time the PF Payment Is made. The PF Payment for part-time (including Job-Share) Employees will be calculated on a pro-rata basis for the aggregate ordinary hours for the period three (3) months prior to the PF Payment being made.

1.8.3 To avoid doubt, the Agreement confirms the· agreement of the Parties to the implementation of HomeSafe/ Night Network and Operating Groups, and the PF Payment is only payable for meeting all of the initiatives in clause 1.8.2.

1.8.4 During the life of. the Agreement, the Parties agree to review the classification structure for Customer Service (station grades) Employees, including the associated training requirements.

1.8.5 In implementing HomeSafe/ Night Network, regarding Employees covered under section 3 of the Agreement, the following principles are agreed by the Parties:

(a) Wherever practicable, three (3) times eight (8) hour rosters will be utilised at relevant stations on Friday and Saturday for the purpose of accommodating HomeSafe/ Night Network hours.

(b) Roster changes to accommodate HomeSafe/ Night Network will be marked

as temporary, until such time as ongoing arrangements are confirmed.

(c) The Parties agree to explore opportunities for current part-time Employees to convert to full-time by reviewing current rostering arrangements.

(d) The Company will commit to staff seventy eight (78) Premium Stations as part of the HomeSafe/ Night Network trial.

(e) New station Employees brought in for the purpose of HomeSafe/ Night Network will be engaged at the Leading Station Assistant (LSA) grade.

(f) Any changes to the current working arrangements and rosters due to the

HomeSafe/ Night Network program roll out will be subject to local consultation with affected Employees.

(g) The development of new rosters as a result of HomeSafe/ Night Network should be used as an opportunity to address any current local arrangements for rosters which are problematic.

(h) Full training to those offered HomeSafe/ Night Network positions will be provided well ahead of HomeSafe/ Night Network implementation.”

Clause 2.24

“2.24 Amenities

Shared meal facilities are to be equipped with hot and cold running water, microwave, toaster/griller, ice machine, refrigerator, table and chairs, hand washing facilities, heating and cooling and notice boards. Male and female staff toilets are to be supplied unless local existing arrangements are in place. The meal room capacity is governed by the seating capacity and preference will be given to Employees who are subject to a rostered break, e.g. where a Driver must return to run a service. New meal facilities are subject to installation of all of the listed items above, and must be divided from toilet and work areas.”

Clause 9 of Schedule 1

“9. Depots

(a) Flinders Street Station (ERD) and the following outstation locations are depots where it is agreed Employees can commence/cease duty at their allocated location (Home Depots):

Belgrave	Macleod
Broadmeadows	Mordialloc
Carrum	Newport
Craigieburn	Pakenham
Cranbourne	Pakenham East
Calder Park	Ringwood
Dandenong	Sandringham
Eltham	Watergardens
Epping	Sunbury
Frankston	Upfield
Glen Waverly	Upper Ferntree Gully
Hurstbridge	Werribee
Lilydale	Westall

(b) North Melbourne Maintenance depot is also treated as a Home Depot for Drivers appointed to 0 Roster. However such shifts are required to be dual sign on for increased rostering flexibility. It is expected that the D Roster rotation will be established at North Melbourne as a permanent Depot.

(c) The implementation of Operating Groups, the Decentralisation of FSS and Government initiatives, or timetable changes may necessitate the consideration of altered or additional depots and depot strengths (including an alternative to

Flinders Street, e.g. Flinders Street upgrade).

Clause 18 of Schedule 1

Schedule 1 – DRIVERS ROSTERING, TRAINING AND WORK PRACTICE CHANGES.

This schedule applies to the Driver Grades specified in clause 4.1 of the Agreement.

……….

“18. Meal Locations

(a) Craigieburn Drivers Depot.

(b) Craigieburn Station.

(c) Broadmeadows Station.

(d) Newport Drivers Depot.

(e) Newport Station.

(f) Epping Drivers Depot.

(g) Epping Station.

(h) Sunbury.

(i) Hurstbridge.

(j) Eltham.

(k} South Morang Station.

(I) Watergardens.

(m) Calder Park Driver Depot.

(n) Carrum Depot.

(o) Mordialloc Depot.

(p) Frankston.

(q) Dandenong.

(r) Pakenham.

(s) Cranbourne Depot.

(t) Lilydale Depot.

(u) Ringwood Depot.

(v) Glen Waverley Depot.

(w) Camberwell.

(x) Burnley Sidings.

(y) Westall.

(z) Sand ring ham.

(aa) Intended Meal Locations:

i. Werribee.

i. Williamstown.

ii. Belgrave.

iii. Upper Ferntree Gully.

iv. South Kensington Training Facility.

v. Flemington Race Course.

[17] The RTBU also rely on clauses 1.8, 2.4 and clause 18 of Schedule 1 in aid of their favoured interpretation of the disputed terms of the Agreement. The RTBU also refer to and rely on the following provisions:

Clause 1.5

“1.5 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.”

Clause 1 of Schedule 1

“1. HomeSafe/ Night Network

(a) HomeSafe/Night Network Rosters

i. Rosters generated for the purposes of HomeSafe/Night Network will be subject to the normal consultation process.

ii. Start times on Friday afternoon shifts for Flex, C, G and R rotations can be altered up to four and a half (4.5) hours from sign on of the original shift start time of the first week day shift.

(b) HomeSafe/Night Network Train Preparations

Trains required during the HomeSafe/Night Network· period and that stay in continuous service will be exempt from the twenty four (24) hour limit contained in clause 30 (a) of this Schedule. For the avoidance of doubt, this period commences from the preparation of the first train for service on Friday morning up to and including the passage of the last train on Sunday evening.

Clause 2 of Schedule 1

“2. Support for Government Construction and Renewals Projects including the Level Crossing Removal Program

During periods of occupations/line closures (partial or full) on account of construction and

renewals projects including level crossing removal works:

(a) Employees may be required to temporarily work at an alternative Home Depot. Travel time will not be included in the shift lengths, however will be paid. Meal breaks will be taken during the course of the shift between the third (3rd) and fifth (5th) hour from the commencement of the shift (excluding travel time). This may entail a shift length of eight (8) hours and twenty-nine (29) minutes, with travel time calculated over and above the shift length. During this process original core times and off roster patterns will be adhered to.

(b) Employees may be required to be Isolated to one (1) section/line of the Metropolitan Rail Network to facilitate post commissioning training as soon as possible. During this period, the provisions under clauses 14 and 15 of this Schedule do not apply, with the exception of the provision of a fifteen (15) minute off train break after four {4) consecutive shuttles or when a Train Driver is rostered to drive the same train from the ends of the line or an intermediate location through Flinders Street to an intermediate location or end of the line.

(c) These arrangements in combination may be in place to a maximum period of three (3) months unless otherwise agreed between the parties.

Clause 5 of Schedule 1

“5. Operating Groups

(a) The Metropolitan Network will be divided into three (3) stand-alone Operating Groups: Metro Central, Metro North and Metro South.

(b) Employees will be allocated to a Home Depot within one (1} of the three (3)

Operating Groups which are comprised of the following lines:

i. Metro North: Belgrave, Lilydale, Hurstbridge, Glen Waverley, Alamein, South Morang.

ii. Metro South: Sunbury, Upfield, Craigieburn, Werribee, Williamstown, Sandringham, Frankston, Pakenham, Cranbourne, Stony Point, Race Course.

iii. Metro Central: Flinders Street Station (Drivers allocated to the Central Group will be required to have the requisite training and competence to operate across all areas of the Metropolitan Rail Network).

(c) Any relocation to new Home Depots will only occur when the implementation of

the Operating Groups and/or Flinders Street Decentralisation takes effect. Employees at outstations will not be relocated to alternate depots as a result of the terms of the Agreement.”

The Company’s Submissions

[18] The Company filed written submissions on 7 September 2018.

[19] The Company submit that due to the inclusion of a number of facilitative clauses contained in the Agreement, not only is the Company able to include new meal locations on the suburban network, but that the Agreement encourages it.

[20] The Company refer to and rely on clause 1.8 of the Agreement which outlines the provision of a Project Facilitation Payment (PF Payment) payable in the event of certain Company and Government initiatives to acknowledge the anticipated impact of the project and to compensate for disruption experienced due to changes in work practices such as roster changes and changes to work locations. The construction of the PF Payment clause aimed to capture a level of co-operation between the parties that would be sustained for the life of the Agreement. The PF Payment was paid “in good faith” in June 2016 to recognise that some, but not all of the initiatives listed at clause 1.8 had been met, including the “Homesafe/Night Network” initiative. The Company refer to clause 1.8.2 (a) of the Agreement and submit that the addition of a new meal location on the suburban network constitutes such a “workplace arrangement.” Therefore, the Company assert that all employees are obliged to support the inclusion of Mernda as a new meal location. Further, the Company submit that the fact that the PF Payment was made prior to the expiration of the Agreement and completion of all initiatives detailed at clause 1.8 did not absolve the parties to the Agreement of their commitments to support the Company or Government initiatives listed at clause 1.8. At the time the Agreement was reached, parties were aware that Government projects were to be ongoing for the life of the Agreement and beyond. Therefore, the Company submit that the parties are under an obligation to provide a level of support for altered or new work practices as a result of the changes contemplated in the Agreement.

[21] The Company also rely on clause 2.24 of the Agreement which is titled “Amenities.” This clause details the minimum standards for existing and new meal facilities. The Company submit that it is evident that clause 2.24 does not exclude Drivers and that the introduction of an additional meal location is permissible as long as the standard of amenities to be used complies with what is set out at clause 2.24 of the Agreement. The Company draw attention to the final sentence of clause 2.24 as being of particular significance as it specifically refers to the requirements of new meal facilities (emphasis added). The Company submit that this line clearly anticipates that new meal facilities may be established throughout the life of the Agreement and Mernda is an example of this. The Company submit that an opposing interpretation would provide a somewhat absurd outcome whereby clause 2.24 would be unable to be affected in the manner clearly contemplated.

[22] The Company also refer to clause 9 of Schedule 1 of the Agreement in support of its preferred interpretation. This clause details all the known Depots, however expressly contemplates at sub-clause (c), the “consideration” of altered or additional depots arising out of Government initiatives or timetable changes. The Company submit that the inclusion of Mernda and various other stations triggered a major timetable change which resulted in Mernda being considered a new depot where drivers will be allocated to. The Company further submit that this result is supported by the terms of the Agreement, as clause 9 of Schedule 1, which highlight Government initiatives which may “necessitate” additional Depots. 2

[23] The Company submit that clause 18 of Schedule 1 of the Agreement details all meal locations that were known at the time the Agreement was made, as well as lists some foreshadowed locations. The Company submit that the locations listed at clause 18 are not ‘agreed locations’ as they were not negotiated during bargaining for the Agreement. They are simply known meal locations and listing them in the Agreement does not prevent the inclusion, addition or removal of meal locations.

[24] The Company submit that the provisions of the Agreement do not prevent the Company from introducing a new meal location as long as the location complies with the amenities required by clause 2.24 of the Agreement. On a plain reading of the Agreement, the intention of the 3% PF Payment was to facilitate changes in work practices which capture the inclusion of new meal locations. The Company submit that the clauses relating to altered work arrangements cannot be read in isolation and must be read in conjunction, with the PF Payment underpinning approaches to changes in work practices.

The RTBU’s Submissions

[25] The RTBU filed written submissions on 28 November 2018.

[26] The RTBU rely on the “No Extra Claims” provision found at clause 1.5 of the Agreement. The RTBU submit that the introduction of Mernda as a new meal location contravenes this provision of the Agreement. The RTBU refer to the decision of Toyota Motor Corporation Australia Ltd. v. Marmara 3 (Toyota). In Toyota, clause 4 of the relevant Agreement was a similar no further claims provision. Toyota sought to vary the Agreement with the employees’ agreement. The Full Court found that the no further claims provision was valid, however could not displace the right of a party to seek to vary the Agreement by agreement in accordance with the provisions of Division 7 of Part 2.4 of the Act. The RTBU draw a distinction to Toyota’s approach and submit that the Company is not seeking variation by agreement, but rather attempting to unilaterally impose a change. The RTBU submit that they key to interpreting the ambit of clause 1.5 of the Agreement is the definition of “claim” and refer to the Full Federal Court’s assessment of the meaning of “claim” in Toyota:

“•  aside from claims which involve an assertion of a legal right or entitlement, it is not difficult to envisage circumstances in which a party to an employment relationship might advance to the other party the need to make some presumptively advantageous alteration to the existing state of affairs. A small group of employees may, for example, request an alteration of their roster without having any legal or industrial means at their disposal to force their employer to agree. But, if it were what they wanted, and they put it to their employer in the expectation of it being seriously considered, the request would not, in our view, be disqualified from being regarded as a “claim” by reason only that there were no such means.” 4

The RTBU submit this passage can be readily adapted to the Company’s proposal to introduce Mernda as a new meal location. The Company make a “claim” to introduce Mernda as a new meal location as a “presumptively advantageous alteration to the existing state of affairs.”

In Toyota, at [71], the Full Court recognised the importance of no further claims provisions:

“•  Such a provision delivers stability and predictability in the matter of terms and conditions of employment, generally regarded as essential characteristics of a successful business in a market economy. It was submitted, in effect, that Toyota, as the employer and the paymaster, would have regarded this provision, in itself, as fundamental to the bargain which it reached with its employees and their representatives.”

As a result, the RTBU submit that the Company must have regard to the No Extra Claims clause as fundamental in the Agreement reached between parties when the Agreement was made.

[27] The RTBU submit that clause 18 of Schedule 1 identifies 26 existing meal locations and a further six intended meal locations. The RTBU submit that parties agreed on a degree of flexibility due to anticipated change during the life of the Agreement, which was captured by identifying the six “intended meal locations.” Mernda is not identified as either an existing or intended meal location. Therefore, the RTBU submit that the Company’s proposal to introduce Mernda as a new meal location equates to making a new industrial claim which contravenes clause 1.5 of the Agreement.

[28] The RTBU submit that the other provisions of the Agreement on which the Company rely (notably, clauses 1.8 and 2.24) do not, on proper interpretation permit them to introduce Mernda as a new meal location. It is argued that on the disputed issue, the specific provisions as to meal locations must be given greater weight than the general provisions as to supporting the implementation of Government initiatives and the PF Payment. It is said that clause 1.8 operates at a high level of generality, setting out “high level initiatives,” 5 whereas the meal location clause at clause 18 of Schedule 1 is said to be “highly specific.” On that basis, it is submitted that where the Agreement makes a very specific provision as to meal locations and intended meal locations as at clause 18 of Schedule 1 then that specific provision ousts the general provisions of clause 1.8.

[29] The RTBU agree with the submissions of the Company that clause 2.24 anticipates the introduction of “new meal facilities,” however point out that this interpretation is harmonious with the RTBU interpretation of clause 18 of Schedule 1 as it includes a list of “intended meal locations,” which would require the minimum required standard of facilities set out in clause 2.24. In any case, the RTBU also submit that clause 2.24 is aimed at amenities standards and is a different subject matter from intended meal locations.

[30] The RTBU also rely on the terms of the predecessor agreement, the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2012-2015 (the 2012 Agreement), as a surrounding circumstance which was known to both parties at the time the Agreement was made. In particular, that the 2012 Agreement at clause 13 (a) of Schedule 1 which deals with “meal locations” included the words “other locations may be identified and developed as new timetables are proposed”. As an “analogue provision” is absent from the current Agreement, it is argued that that the current provision affords less flexibility as to the introduction of new meal locations.

[31] The RTBU also rely on the post Agreement conduct of the Company in making the PF Payment required by the terms of clause 1.8, and in doing so advising employees by letter that “all that needed to be done had been done” for the payment to be made. It is argued that this action of making the payment meant that clause 1.8 had no work to do as to the introduction of new meal locations and that the applicant, “…now seeks to revive that clause as a source of power to introduce a new meal location.” 6

Witness statement of Jim Chrysostomou

[32] In addition to the submissions filed by the RTBU, a witness statement of Mr Jim Chrysostomou has been provided. Mr Chrysostomou is the current Assistant Secretary of the Victorian Locomotive Division of the RTBU.

[33] Mr Chrysostomou’s witness statement provides some context as to the background and ramifications of the dispute at hand. At Metro, drivers must have breaks between the third and fifth hour of the shift. The break inclusive of travelling to meal room, preparing meals and clean-up, is either 46 or 49 minutes depending on location. Mr Chrysostomou draws on his own experience and asserts that drivers prefer to have meals at a location where they have the ability to purchase food, undertake errands, go shopping or meet someone during their break. Most drivers use their meal break to tend to personal matters rather than eating in the meal room. Mr Chrysostomou says that drivers have advised him that they do not wish to have their meal break at Mernda as there is nowhere to purchase a meal. The station is in a remote location, surrounded by paddocks, with the closest shop being a Coles Express which he claims is a ten minute walk along a major highway, which may be dangerous if drivers had to walk there at night.

[34] Mr Chrysostomou also provides some background in relation to the PF Payment. On 26 May 2016, the Company circulated a memorandum to all staff stating that the requirements of the 3% PF Payment had been made because “all the requirements had been met.” Mr Chrysostomou states that the Company only made the payment after all the initiatives found at clause 1.8.1 of the Agreement had been fulfilled. His view is that since the PF Payment has been made, the obligations under that clause have been discharged and cannot not be relied upon for the purposes of further initiatives.

[35] Mr Chrysostomou also refers to the Company’s submissions of 7 September 2018, in which it was stated that the meal locations found at clause 18 of Schedule 1 of the Agreement were not subject to negotiation. Mr Chrysostomou refutes this assertion as it “does not reflect the history of negotiating between the parties. Mr Chrysostomou states this has always been “an issue of discussion” 7 and was included in both the current and previous Agreements.

Law to be applied

[36] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 8 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.9.

[37] I refer to the principles relevant as summarised by Berri and outlined below:

“The principles relevant to the task of construing a single enterprise agreement may be summarised 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.” 10
[38] Both the Company and the RTBU rely on the interpretive principles summarised in Berri. I will apply those principles as relevant in determining the matter.

Consideration

[39] The construction of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words. This is a dispute about the right of the Company to introduce a new meal location. Clause 18 of Schedule 1 of the Agreement is the only clause in the Agreement that deals directly with meal locations. Schedule 1 is headed “Drivers Rostering, Training and Work Practice Changes.” Clause 18 of Schedule 1 is headed “Meal Locations” and lists 26 meal locations from (a) to (z). There is then a further sub-clause (aa) which has the sub-heading “intended meal locations” and under that heading, six further locations are listed. Other than providing a list of meal locations and intended meal locations, clause 18 of Schedule 1 provides no other indication as to the purpose of the list. In contrast, for example, clause 9 of Schedule 1 headed “Depots,” provides a list of other intended locations “where it is agreed employees can commence/ cease duty at their allocated location.” Clause 18 of Schedule 1 is devoid of any such text. Considering the text of clause 18 of Schedule 1 in its own right, it is no more than a record or list of the meal locations that existed at the time the Agreement was made. Similarly, the list of intended meal locations is no more than a list of locations where the parties recorded their intention to create a meal location. The definition of “intend” is “to have in mind something to be done or brought about.” 11 Importantly, there is nothing in the text of clause 18 of Schedule 1 that provides any sort of prohibition on the introduction of a meal location at any other location beyond those listed in clause 18. It is not apparent and nor was I taken to any other part of the Agreement that deals specifically with meal locations.

[40] The concern that arises from this construction is that it begs the question, what work does the clause have to do? In the Berri decision [at 44], the Bench said that there was “considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect.” 12 The inclusion of the list of meal locations and intended meal locations at clause 18 of Schedule 1 should not then, using the language in Berri, be regarded as “superfluous or insignificant.”13 Taking this into account, the effect of including the list is to oblige the parties to take meal breaks at the meal locations listed. Put another way, it would be inconsistent with the terms of clause 18 of Schedule 1 for the Company to declare that a particular meal location listed is no longer to be a meal location. Clause 18 of Schedule 1 also records an intention to provide meal locations at various new locations, though no time frame for doing so is provided. It would be straining the words in the clause 18 of Schedule 1 to give them a meaning or effect that prohibits new (previously unlisted) meal locations being created.

[41] The required standard of meal facilities is dealt with in the main body of the Agreement at clause 2.24. This clause is headed “Amenities.” It sets out the equipment and facilities that must be supplied, including a microwave, toaster, ice machine, toilets etc. It also provides that “new meal facilities” are subject to installation of all of the listed items above, and must be divided from toilet and work area” (emphasis added). To that extent, it is clear that the clause contemplates there may be new meal facilities introduced during the life of the Agreement. However, a new meal facility is not the same as a new meal location. To make the point, it may be for example that the Company might renovate and alter the facilities at an existing meal location listed in clause 18 of Schedule 1. In these circumstances, there would be a new meal facility in a meal location which would not be a new meal location. Of course, it may also be that a new meal facility could be built in a new meal location. It is also possible that a new meal location might have an existing meal facility that is put in to use. In those circumstances, the meal facility would not be a new meal facility. Essentially, clause 2.24 does nothing more that prescribe what infrastructure is to be included in a new meal facility, whether it be in an existing meal location or a new meal location, including but not limited to the list of “intended” meal locations. To the extent that the clause contemplates the building of new meal facilities (which may or may not be at a new meal location) it is consistent with the submission of the Company that the clause anticipates that new facilities may be established throughout the life of the Agreement and that Mernda, the particular location that is the catalyst for this dispute, would be one such facility. However, I do not agree with the submission of the Company that clause 2.24 would have no work to do if it were otherwise, for the reasons set out above. In any case, it is apparent that the terms of clause 2.24 deal with “meal facilities” as opposed to “meal locations” and confirms that the creation of new meal facilities have clearly been contemplated by the parties when making the agreement. For the reasons set out above, this does not provide confirmation that the parties were contemplating new meal facilities in new meal locations. However, nor does it lend support to an interpretation that the terms of the Agreement prohibit new meal locations, beyond those in the list of intended locations in clause 18 of Schedule 1.

[42] Clause 1.8 provides further relevant context. Clause 1.8 is in the main body of the Agreement and sets out the terms for provision of a payment to employees (the PF Payment). The PF Payment is to be made, “In consideration for the commitments made at 1.8.1 (a) (b) and (c) by the employees and the unions” and is to be paid after the successful “commencement of the HomeSafe/Night Network Trial” and “full implementation” of other matters set out in clause 1.8.2 . The Company and Government initiatives particularly relevant to this dispute are “Rail Construction and Renewals Projects.” These are defined as “… being any rail construction and removals project, including the Level Crossing removals project announced by the Victorian Government. (emphasis added)

[43] Further, clause 1.8.2 (a) states that “Meeting the above initiatives may include supporting the implementation of new rosters or workplace arrangements, including workplace location (both temporary and permanent) to support any of the above.” As set out earlier, this particular dispute arose as a result of the Company advising the RTBU of its intention to utilise Mernda as a meal facility. Mernda train station is a new station which was established as part of the extension of the South Morang Line. Clause 1.8.1 (c) makes clear that it captures any rail construction and renewal project. It is apparent the South Morang extension and creation of Mernda station is a Rail Construction Project as contemplated in clause 1.8.1. It follows that the parties are obligated by the terms of clause 1.8.2 (a) to support Mernda as a new meal location as it is clearly a new workplace arrangement or location that supports the South Morang extension.

[44] It is clear the language of the Agreement, having regard to its context and purpose, is to commit the parties to support changes to workplace arrangements including workplace location to support the initiatives in clause 1.8.1. Considering clause 1.8 and clause 18 of Schedule 1 together, and having regard to the consideration above, it is certainly clear that the Company has the right to introduce a new meal location where it is associated with supporting a Rail Construction Project. The South Morang extension and creation of Mernda railway station is such a project.

No extra claims consideration

[45] The Agreement contains a No Extra Claims provision at clause 1.5. The RTBU argue that the introduction of a new meal location at Mernda constitutes a new claim. The RTBU submit that it at least falls into the category of one where a party to an employment relationship might “advance to the other party the need to make some presumptively advantageous alteration to the existing state of affairs.” 14

[46] Having regard to what I consider the proper construction of the Agreement as set out above, I do not agree that the addition of a new meal location constitutes a new claim. It is not presumptive for the Company to introduce a new meal location in Mernda where it is apparent the terms of the Agreement permit them to do so. The existing state of affairs is that where it not for the objections from the RTBU, the Agreement does not prohibit the Company from introducing a new meal location. The fact that there is a dispute about the terms of the Agreement does not necessarily mean that what the Company is seeking to do is an extra claim.

Consideration of specific and general terms

[47] The RTBU submit that the meal locations set out in clause 18 of Schedule 1 are highly specific. Therefore, it is submitted that in circumstances where the Agreement makes a very specific provision as to meal locations and intended meal locations as it does at clause 18 of Schedule 1, these provisions provide a much more direct answer to the interpretation question than the more general provision of clause 1.8.

[48] I do not agree with this submission. While clause 18 of Schedule 1 provides a specific list of meal locations and intended meal locations, it provides nothing more. As indicated earlier, it is evident from the text of clause 18 of Schedule 1 that while it provides a list of known and intended meal locations, there is nothing in the text of the provision that acts to prohibit the creation of new meal locations that are not on the list irrespective of the further obligations in clause 1.8. In any case, for the reasons set out above, it is apparent that clause 1.8 provides the right for the Company to introduce a new meal location to support a rail construction project, and the ordinary meaning of the terms of clause 18 of Schedule 1 do not provide any “carve out” or limitation of that right, 15 specific or otherwise.

Post agreement conduct. The PF Payment has been made.

[49] The RTBU draw attention to the fact that the payment specified in clause 1.8 was made on 16 June 2016 prior to the completion to the South Morang rail extension of which Mernda is a part. When the payment was made, a letter was sent to staff advising that “all the requirements that are necessary for the 3% project facilitation payment to be made have now been completed.” 16

[50] The RTBU argue that all of the matters identified at Schedules 1, items 1, 2 and 5 “have transpired within the EA’s currency.” 17 The fact that the PF Payment has been made, the RTBU argue, “suggests that clause 1.8 had no work to do as to the introduction of new meal locations” and that what the Company is now doing is seeking to “revive” that clause as a source of power to introduce a new meal location.18 This argument relies on the fact that the Company had made the PF Payment prior to the South Morang project being completed.

[51] I do not accept this proposition. The PF Payment is to be made, according to clause 1.8, is “In consideration for the commitments…” reflected in sub-clauses (a), (b) and (c) of clause 1.8.1, following the successful completion of the “HomeSafe/ Night Network” travel, implementation of efficiencies and associated rosters including the separation of the network into three operating groups, the decentralisation of FSS and the implementation of “New Rules” associated with certain “Weekly Master Rosters” and day of “Day of Operations” shift management. It is clear the payment is associated with the completion of these matters as well as for the commitments made to (a), (b) and (c). It follows that, even if the RTBU is right that the obligation to do some things came to an end when the payment was made, the payment was not linked to the completion of Rail Construction and Renewal Projects. This is not the case for (a) and (b), which require “successful commencement” and “full implementation.” It follows that, at the very least, the commitment of the parties (which includes the Union and employees (see clause 1.2) is to support the Rail Construction and Renewals Projects including new workplace arrangements and locations throughout the life of the Agreement irrespective of when the payment was made. This interpretation is reinforced when one considers the terms of clause 1.8.3: “To avoid doubt, the Agreement confirms the· agreement of the Parties to the implementation of HomeSafe/Night Network and Operating Groups, and the PF Payment is only payable for meeting all of the initiatives in clause 1.8.2.” In any case, there is no basis to read the first sentence of clause 1.8.2 of the Agreement as providing as anything other than an ongoing commitment to support the initiatives in 1.8.1 (a) (b) and (c) by the employees and the unions, including the obligations in 1.8.2 (a), irrespective of when the PF Payment is made.

[52] Further, there is no basis to find that the fact that the PF Payment has been made demonstrates some “meeting of the minds” as to the meaning of the Agreement as it pertains to the introduction of meal locations outside those listed in clause 1.8. 19 The view of the RTBU that the payment having been made changes the obligations of the parties under the terms of the Agreement is clearly not one shared by the Company.

Evidence of Mr. Chrysostomou

[53] The evidence of Mr Chrysostomou is that the time allowances for meals and walking time are set out in clause 30 (d) of the Agreement and that there are different times prescribed for each meal location. However, it is apparent that this is not accurate. South Morang and Calder Park do not have associated time allowances at clause30 (d), nor do three of the intended meal locations, Williamstown, South Kensington and Flemington. Thus, it is apparent that the parties have not seen it as necessary to have all listed meal locations listed in clause 18 of Schedule 1 to have an associated time allowance allocated and included in the Agreement. A new meal location introduced without such times provided for in the Agreement would not be a new or unique outcome.

[54] Mr Chrysostomou’s evidence is that the claim of the Company that meal locations were “not negotiated” is incorrect and does not reflect the history of negotiating between the parties. Mr. Chrysostomou refers to the 2012 Agreement which included clause 13 in Schedule 2 titled “Meal Locations.” Unlike the current clause, there is a sub-heading of “Agreed Meal Locations” with a list of 11 locations. There is then a list of 13 locations under the heading “Intended Meal Locations.” At sub-clause (c) other agreed meal locations are listed for drivers rostered for maintenance or wash requirements. At sub-clause (d), Special Events, occupation or line closure permit the use of alternative locations subject to consultation with the RTBU. Sub-clause (e) provides “other locations may be identified as developed as new timetables are proposed.”

[55] The RTBU submit that an “analogue provision” equivalent to clause 13 (e) of the 2012 Agreement is absent from the current Agreement. 20 It is submitted that clause 13 (e) of the 2012 Agreement “afforded greater flexibility as to the introduction of new meal locations.” I do not agree. Firstly, it provides a right to “identify and develop.” This falls short of the language in (d), which permits locations to be “utilised subject to consultation with RTBU.” In contrast, the current Agreement provides no prohibition on the introduction of new meal locations and indeed, in the case of a project such as the South Morang extension, expressly permits it to occur.

[56] While it was not referred to in the submissions of either party to these proceedings the terms of clause 1.6 of the Agreement provides further context and purpose of the Agreement. It is in the following terms:

Clause 1.6

“Clause 1.6 Aim of Agreement

In making the Agreement, the Parties aim to:

(a) Promote a cooperative working relationship between the Company, the Employees and their representatives;

(b) Work together to enhance and grow the business;

(c) Embrace change as a means of securing jobs, income and profitability;

(d) Remain focused on the needs of customers, recognising customer satisfaction and increased patronage are integral to securing the future; and

(e) Establish an environment where equity, trust, partnership and service are shared values.”

Sub-clause (c) of clause 1.6 is relevant. The Macquarie dictionary definition of “embrace” is “to take or receive (an idea, etc.) gladly or eagerly, accept willingly.” 21 Change is seemingly not constrained to any particular sort of change but that change generally is to be embraced by the parties.

Therefore, the introduction of a new meal location would be such a change as contemplated within the meaning of this clause and to that extent, the terms of this clause indicate the parties aimed in making the Agreement to embrace it.

Of course sub-clause (c) is a broad and general provision reflecting the “Aim” of the parties as opposed to any obligation. However, a consideration of its terms provides further context that supports the interpretation of the Agreement favoured by the Applicant.

Conclusion

[57] It is apparent that the Agreement provides a list of meal locations and intended meal locations. The list provides no further indication as to its purpose and includes no text indicating in any way that meal locations can only be provided at those locations listed. The work the list has to do is to provide a record of the actual meal locations and intended meal locations at the time the Agreement was made. The clause provides an obligation on the parties to establish or maintain meal locations consistent with the list throughout the life of the Agreement. A plain reading of the terms of clause 18 of Schedule 1 does not support the position of the RTBU that it acts as a barrier to the introduction of a new meal location.

[58] Considering the text of the Agreement as a whole, this interpretation does not change. The operation of clause 1.8 makes clear that new workplace arrangements including new workplace locations are to be supported by the parties as part of their commitments to support the implementation of Company and Government initiatives. The introduction of a new meal location would be such a new workplace arrangement or workplace location. The language of the Agreement, having regard to its context and purpose is to support these new arrangements where they are associated with the implementation of Company and Government initiatives as described above. The South Morang rail extension and new station at Mernda is such an initiative. Considering these provisions, it is apparent that the Agreement does not prohibit the introduction of new meal locations. Indeed, when the introduction of a new meal location is associated with a Company and Government initiatives, the parties have agreed to support such a change as an express term of the Agreement. This interpretation is further reinforced by the terms of clause 1.6 (c) which reflects that an aim of the parties in making the Agreement to, among other things embrace change. The No Extra Claims commitment that forms part of the Agreement does not alter this interpretation of the terms of the Agreement.

[59] In consideration of the support of the parties for Company and Government initiatives, the Company committed to make a 3% payment. For the reasons set out above, I do not accept the fact that this payment has been made has altered the obligations of the parties to continue to support the implementation of new workplace arrangements or workplace locations.

[60] While the Agreement has a plain meaning, I have nevertheless considered the evidence of Mr. Chrysostomou in construing the terms of the Agreement. Mr Chrysostomou’s evidence is that the list was “negotiated.” 22 Mr. Chrysostomou has a view about what the outcome of the negotiation was. However, 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.23 A reasonable person would not understand, from the language the parties have used, that the Agreement prohibits the establishment of new meal locations. The evidence of Mr. Chrysostomou reflects his subjective intention as to what the Agreement means as opposed to providing any objective facts, nor does the consideration of the terms of the predecessor Agreement support the RTBU interpretation.

The determination

[61] The question posed in this arbitration to be answered to resolve the dispute is:

“Do the terms of the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019 allow the company to introduce a new meal location (that is, a location other than one listed in clause 18 at Schedule 1) on the suburban network?”

[62] It follows from the consideration above that the answer to the question posed is yes.

[63] In the alternative, having regard to the consideration above and the genesis of this dispute, the answer to the question posed is “Yes, if the new meal location is associated with a Company or Government initiative as contemplated in clause 1.8 of the Agreement.” Therefore, for the reasons set out above, the company can introduced a new meal location at Mernda rail station.

[64] I note that, consistent with terms of clause 1.12.5 and clause 1.12.9 of the Dispute Resolution term of the Agreement, this decision is a determination that is binding on the parties and it is a decision of the Fair Work Commission with which the parties have agreed to be bound.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR704848>

Appearances

Ms Gillam for the Applicant

Ms Dawson-Field of Counsel for the Respondent

Hearing details:

2018

Melbourne (Mention):

24 October.

 1   AE417210.

 2   Submissions of the Applicant, filed 7 November, [30]

 3 [2014] FCAFC 84 at [61].

 4 [2014] FCAFC 84 at [61].

 5   Respondent’s submissions, filed 28 November, [38].

 6   Respondent’s submissions, filed 28 November, [47].

 7   Witness Statement of Jim Chrysostomou, filed 28 November, [24].

 8   [2017] FWCFB 3005.

 9   [2017] FWCFB 4487.

 10   [2017] FWCFB 3005 at [114].

 11   Macquarie Dictionary, fifth Edition

 12   [2017] FWCFB 3005 at [44].

 13   [2017] FWCFB 3005 at [44].

 14   Toyota Motor Corporation Australia Lt. v Marmara [2014] FCAFC 84 at [61].

 15   Respondent’s submissions, filed 28 November, paragraph 13.

 16   Respondent’s submissions, filed 28 November, [20].

 17   Respondent’s submissions, filed 28 November, [39].

 18   Respondent’s submissions, filed 28 November, [47].

 19   [2017] FWCFB 3005

 20   Respondent’s submissions, filed 28 November, [19].

 21   Macquarie Dictionary, fifth Edition.

 22   Witness Statement of Jim Chrysostomou, filed 28 November, [23]

 23   [2017] FWCFB 3005.