Necdet Tarakci, Marin Cikes v KDR Victoria Pty Ltd T/A Yarra Trams
[2022] FWC 2669
•5 OCTOBER 2022
| [2022] FWC 2669 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Necdet Tarakci, Marin Cikes and others
v
KDR Victoria Pty Ltd T/A Yarra Trams
(C2022/6141)
| COMMISSIONER O’NEILL | MELBOURNE, 5 OCTOBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES – application for interim orders
On 7 September 2022, the Applicants referred a dispute to the Commission concerning the content and implementation of new graduated rosters for tram drivers that Yarra Trams intend to commence on 16 October 2022. The four Applicants are tram drivers.
This decision deals with an application for interim orders pending final determination of the dispute, which has been set down for hearing commencing on 10 October 2022.
Principles for interim orders
Section 589 of the Fair Work Act 2009 (Cth) (the Act) provides for the making of interim orders, and the relevant principles are well established. In short, the Commission must determine whether there is a serious issue to be tried and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.
With one qualification, the parties broadly agree on the principles to be applied. Drawing on the reasoning of the High Court in the Hoyts[1] and Patrick Stevedores No 2[2] decisions, the Applicants submit that the terms of an interim order need not be the same as any final order sought and that the purpose of interlocutory relief goes to preserving the Commission’s jurisdiction where the possibility “that conditions will be altered so as to render the Commission’s decision irrelevant or so as to defeat its jurisdiction” are powerful considerations favouring relief.[3] The Respondent contends that reliance on these decisions is misplaced and that the Commission cannot grant interim relief that it could not order by way of final relief, including any order that would contravene s.739(5) of the Act.
Factual context
The current roster arrangements for tram drivers have been in place since the 1980s. They involve alternating morning and afternoon shifts on a weekly basis.
The rosters are created to align with the tram service timetable, known as the Master Timetable. The Master Timetable is developed by Yarra Trams working with the Victorian Department of Transport and is subject to the Department’s authorisation and approval.
In late 2021, following a discussion about how the current rostering arrangements make it difficult to comply with stricter fatigue management rules under the Rail Safety National Law, Yarra Trams decided to explore other roster models, including a graduated roster. Under a graduated roster, a driver gradually commences work later each week over a 20-week cycle.
In January 2022, Yarra Trams commenced discussions with the Department for the development of a new Master Timetable (MTT22c) which was formally approved by the Department on 17 June 2022. It is due to commence operation on 16 October 2022.[4] There are significant differences between the current Master timetable (MTT22b) and MTT22c, including amended journey times on up to 40 per cent of the network. New graduated rosters to align with the new Master Timetable were developed between July and September 2022 and posted at all depots by 16 September. Developing the rosters is complex and time-consuming.
Between 28 February 2022 and 19 April 2022, Yarra Trams undertook consultation about the introduction of a graduated roster structure. On 19 April, Yarra Trams advised drivers that it had made a definite decision to introduce the new graduated roster structure. Further consultation then occurred in relation to its decision. Between 19 April and 15 June, no issues were raised by either the Applicants or the Australian Rail, Tram and Bus Industry Union (RTBU). From 16 June onwards, there were various communications between the RTBU and Yarra Trams, with the RTBU advising Yarra Trams on 7 July 2022 that it considered that the consultation undertaken did not comply with the obligations under the Agreement.
On 28 July 2022, each of the Applicants notified their managers of this dispute and that Mr Tarik Koc was their representative. Mr Koc is the Secretary of the Tram & Bus Division of the RTBU. Subsequent meetings between Mr Koc and management did not resolve the dispute, and the dispute was referred to the Commission on 7 September.
Relevant provisions of the Enterprise Agreement
The Yarra Trams Enterprise Agreement 2019 – Operations (the Agreement) is structured into 3 parts. Part One is titled “Common Conditions”, Part Two is titled “Operations” and Part Three titled “Administration, Technical & Professional.” Part Two applies to employees including tram drivers, and Part Three is not relevant to the dispute. There are also 3 appendices, of which Appendix One headed “Tram Operations” applies to tram drivers.
Clause 2 of the Agreement provides that subject to an exception not presently relevant, Part Two prevails over Part One to the extent of any inconsistency, and the provisions of Part One and Two prevail over the provisions of an Appendix.
Part One includes clauses 8 and 11. Clause 8 provides for consultation over major change, including changes to regular rosters. Clause 11 provides a disputes procedure which provides for attempts to resolve a dispute initially at the workplace level detailed in subclauses 11.4 and 11.5. Subclause 11.8 provides that during this workplace level process the status quo is to be maintained for a defined period. Subclauses 11.6 and 11.7 provide for the referral of disputes to the Commission. The Commission is empowered to arbitrate the dispute when the methods in stage one such as conciliation, have been unsuccessful. A note to subclause 11.7 provides that in arbitrating the dispute, the Commission may use the powers available to it under the Act.
Clause 8 of Part Two contains provisions dealing with various aspects of rostering of trams drivers. Clause 8.18 titled “Flexible rostering” provides:
“Tram Drivers covered by this agreement, confirm their commitment to flexible Rostering and no other rostering restrictions, nor will restrictive work practices apply. Employees will be rostered in accordance with the initiatives outlined in this Agreement.”
Clause 19 of Appendix One of the Agreement which is titled “Hours of Duty” provides:
“19.1 Thirty-eight hours divided into not more than five shifts shall constitute the weekly hours of duty to be paid at ordinary time. Daily ordinary hours of duty shall not exceed 8 hours 15 minutes on any day excluding Sundays and all days which are paid at double rate.
19.2 An employee shall work such shifts as may be allotted to him/her. As far as practicable traffic employees shall work morning and afternoon shifts on alternate weeks, and shall equally share the broken shifts.
19.3 Except to meet emergencies, special traffic, or on the day following a holiday, no traffic employee shall be called upon to begin a new shift without having been off duty for 10 consecutive hours.”
Serious question to be tried
The dispute centres on the correct meaning and effect of clause 19.2.
The Applicants contend that there is a strong prima facie case that implementing the new graduated rosters would breach clause 19.2 of Appendix One. They contend that clause 19.2 obliges Yarra Trams to maintain a roster that involves morning and afternoon shifts on an alternating basis “as far as practicable”. They submit the fact that such a roster has been maintained for several decades shows that it is plainly practicable to do so and that the qualification “as far as practicable” does not allow for an entirely new model of rostering arrangements. They contend that clause 19.2 can be read harmoniously with the major change clause in Part One, if clause 8 is construed as allowing for changes to rosters within the parameters set by clause 19.2. The Applicants submit that clause 19.2 can also be read harmoniously with clause 8.18, when the reference to ‘rostering restrictions’ is understood to refer to restrictions other than a roster recognised by the Agreement itself. That the provisions can be read harmoniously, indicates a strong serious question to be tried.
The Respondent acknowledges that there is a serious question to be tried. However, it contends that the making of the interim orders would contravene s.739(5) of the Act in 3 respects. As a result, the Commission has no power to make the interim order sought and/or establishes that there is only a weak serious issue to be tried.
Firstly, Yarra Trams submits that the interim order would be inconsistent with the limited status quo provision in clause 11 of the Agreement because the effect of the interim order is to maintain the status quo by compelling it to maintain the current roster. It says that the Agreement confines any obligation under the disputes procedure to maintain the status quo to the workplace level stage of the process. The Applicants contend that in relation to disputes that are referred to the Commission, the Agreement is silent on whether the status quo is to be maintained. Therefore, no issue under s.739(5) arises. Further, that clause 11 expressly provides that the Commission has available to it the powers under the Act, and this includes the power to make interim orders. I am satisfied that the Commission is not precluded from making interim orders in relation to a dispute referred to it under clause 11, including in an appropriate case, orders maintaining the status quo. If the exercise of the Commission’s powers was intended to be confined in such a way, an explicit qualification to that effect would likely be present in subclause 11.7 rather than an express unqualified statement that the Commission may use available powers under the Act, which include the making of interim orders in s.589.
Secondly, Yarra Trams claims that the interim order sought would compel Yarra Trams to implement some new roster which would result in it contravening other obligations in the Agreement, namely the obligation to give 28 days’ notice of a roster change in clause 8.3 of Part Two and to consult about the proposed roster change in clause 8.9 of Part One of the Agreement. I am not persuaded that this is so. As the Applicants submitted, the trigger for the obligation to consult over roster changes in clause 8.1 is a decision of Yarra Trams. An order of the Commission is not a decision of Yarra Trams and would not impose an obligation on it to consult. As to the requisite notice of a roster change, clause 8.3 reserves the right for Yarra Trams to change the roster at short notice in emergency circumstances, including unplanned special events. I consider it likely that compliance with an order of the Commission would constitute such circumstances.
Yarra Trams also puts that the interim order sought, to the extent that it would impose rostering restrictions or restrictive work practices, would be inconsistent with clause 8.18 of the Agreement. However, I do not consider that an interim order of the Commission would constitute the imposition by tram drivers of either form of restriction. There are competing claims as to the correct meaning of clause 18.8, and this demonstrates there is a serious question to be tried.
Additional arguments put by Yarra Trams to demonstrate that there is a weak prima facie case to be determined by arbitration relate principally to contested claims about how the relevant clauses are to be contextually construed.
I am satisfied that the Commission is empowered to issue the interim order sought by the Applicants, and that there is a serious question to be tried as to the correct construction of the relevant clauses of the Agreement.
Balance of convenience
The Applicants contend that the balance of convenience favours making the interim order sought because there is a strong prima facie case and because the Commission will otherwise be unable to remedy the detriments that would arise between the implementation of the new roster on 16 October and the final determination of the dispute. Further, that the interim order will ‘protect and preserve’ the Commission’s jurisdiction until the matter is determined. Otherwise, the obligation in clause 11.7(b) of the Agreement would be robbed of practical utility if Yarra Trams were able to implement the graduated roster and having done so, resist relief on the ground that it could not be implemented. If interim orders are not issued and the Applicants succeed on the merits, it is not clear to me that Yarra Trams would, based solely on the fact that it has for a relatively short period of time operated under a graduated roster, be able to contend that final relief was not able to be granted. That is not to deny that in such a scenario, any detriment actually experienced by tram drivers between 16 October and final determination, would not have been avoided.
As to the detriments that would arise pending final determination of the dispute if interim orders are not made, the four Applicants and another three tram drivers gave evidence of their assessment of the detrimental impact of working the new graduated roster for them and their families. Their evidence went to anticipated difficulties in arranging shift swaps and the consequential impact on their familial and social relationships, caring responsibilities, mental health and travel arrangements to attend work.
The Respondent disputes these contentions and asserts that the weak serious issue to be tried weighs against the issuing of an interim order. Yarra Trams contends that the Applicants have had ample notice of the change to the graduated roster and opportunity to ventilate their concerns, and their concerns that shift swapping will be more difficult are speculative at this point. Ms Barletta provided evidence that 1,136 proposed shift swaps have been recorded and 931 shift swaps have been accepted by Yarra Trams as of 20 September 2022.
The Respondent submits that the interim order would place Yarra Trams in an invidious position of having to either comply with the interim order or to breach its obligations under the Agreement to consult and give notice of roster changes. As discussed above, I do not agree that this is the case.
The Respondent further submits that the interim order would lead to significant disruption to Melbourne’s public transport network for around 14 weeks. Because of the differences between the current Master Timetable and MTT22c, Yarra Trams can’t simply continue to apply the current roster which was designed for the current Master Timetable. It would need to discard the proposed roster and commence preparing a new alternating roster to align with MTT22c. This would take approximately 3-4 months, comprising 3-4 weeks to construct rosters, followed by six weeks’ consultation and provision of 28 days’ notice required under the Agreement.
In addition to the risk of service disruption, Yarra Trams submitted that other consequences of the interim order include a risk of Yarra Trams not meeting performance requirements under its contract with the State of Victoria, resulting in reputational damage and financial and contractual impacts. Additionally, public announcements about the introduction of MTT22c have been made by the Victorian Government, which if not met would further reflect on the reputation and performance of Yarra Trams, and indirectly, the Victorian Government. Impacts on tram drivers are also identified, including having to change the arrangements they have put in place for the commencement of the graduated roster (including the 931 approved shift swaps) and impacts on driver training and recruitment.
In essence, the Applicants claim that the potential difficulties raised by Yarra Trams can be avoided by not implementing the new Master Timetable. They contend that there is no evidence of any legal obligation to do so, or at least not one that trumps Yarra Trams’ obligations to comply with clause 19.2 of the Agreement. The effect of the interim order sought is to preserve the current alternating roster and Master Timetable. Further, they submit that it would be unfair to refuse relief on the basis that Yarra Trams claims to not have sufficient time to make alternative arrangements because of its own conduct when the dispute has been on foot since July and escalated to the Commission on 7 September.
In response, Yarra Trams contends that the conduct of the RTBU by not engaging with Yara Trams about its concerns, especially between April and June 2022, has contributed to the situation where there is insufficient time to develop and implement an alternative roster to align with MTT22c. In turn, the Applicants say that it would be unfair to deny relief to the Applicants because of any (unconceded) inaction by the RTBU. However, whilst that may be the case in respect of the RTBU, it is significant that the situation Yarra Trams would face if an interim order were issued may have been avoided had the Applicants acted earlier. There is no evidence of any action taken by the Applicants between April 2022 when Yarra Trams made the definite decision to move to the graduated roster, and when they notified their managers of the dispute on 28 July 2022. For example, had they done so in April 2022, their dispute may have been heard and determined by the Commission in a timeframe that would have provided substantially more time for Yarra Trams to make alternative arrangements. Such alternative arrangements may have included engaging with the Department about amending the Master Timetable or developing an alternating roster to align with the Master Timetable.
In my view the balance of convenience weighs significantly against the granting of interim orders. Whilst the Applicants and three other tram drivers believe that they will experience some significant detriment under the graduated roster, such detriment may not transpire. None of the tram drivers gave evidence that they had unsuccessfully sought to swap shifts under the graduated roster, in circumstances where 1,136 proposed shift swaps have been requested. Even if the assessed detriment does occur, it is outweighed by the other potential impacts of the orders sought, particularly on tram services. The potential difficulties the seven tram drivers who gave evidence may experience must be weighed against the need to discard the very substantial work that has been undertaken to develop the graduated roster, and additional work that would need to be done to develop an alternating roster.
In the context of an interlocutory proceeding, I consider that the absence of evidence that Yarra Trams is legally required to implement the new Master Timetable on 16 October is of limited significance. What is clear, is that the Master Timetable MTT22c has been approved by the Department, public announcements (and therefore expectations) of service changes have been made and it has been designed to accommodate immutable time-specific events including the Spring Racing Carnival, disruptions due to network construction, and school holidays.
Conclusion
I am satisfied there is a serious question to be tried that by introducing the new graduated rosters Yarra Trams will breach clause 19.2 of the Agreement. However, I find that the balance of convenience weighs strongly against the making of interim orders.
The application for interim orders is dismissed.
COMMISSIONER
Appearances:
M Harding SC with Y Bakri of counsel for the Applicants.
C O’Grady KC with A Pollock of counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video):
September 26.
[1] Re Media, Entertainment and Arts Alliance; Ex Parte the Hoyts Corporation Pty. Limited (1993) 178 CLR 379 (‘Hoyts’); CFMEU v Lend Lease Building Pty Ltd[2014] FWC 3547.
[2] Patrick Stevedores Operations No 2 Pty Ltd v MUA (No 3) (1998) 195 CLR 1.
[3] Hoyts at [28].
[4] MTT22c and the aligned rosters were originally intended to commence on 25 September 2022.
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