Qube Logistics (Rail) Pty Ltd T/A Qube Logistics v Australian Rail, Tram and Bus Industry Union

[2023] FWC 2318

[2023] FWC 2318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Qube Logistics (Rail) Pty Ltd T/A Qube Logistics
v

Australian Rail, Tram and Bus Industry Union

(AG2023/2561)

DEPUTY PRESIDENT CROSS SYDNEY, 11 SEPTEMBER 2023

Application for variation of the QUBE Logistics (Rail) Train Crew and RTBU NSW Enterprise Agreement 2019 and the QUBE Logistics (Rail) Train Crew and RTBU NSW Enterprise Agreement 2015- application to vary an agreement to remove an ambiguity or uncertainty- application pursuant to s.587(c) to dismiss parts of application to vary – application pursuant to s.587(c) dismissed.

1. On 28 July 2023, Qube Logistics (Rail) Pty Ltd T/A Qube Logistics (Qube) filed an application pursuant to s.217 of the Fair Work Act 2009 (Cth)(the Act) to vary two agreement (the QUBE Logistics (Rail) Train Crew and RTBU NSW Enterprise Agreement 2015 (the 2015 EA), and the QUBE Logistics (Rail) Train Crew NSW Enterprise Agreement 2019 (the 2019 EA)), to remove ambiguity or uncertainty (the Application).

1. The Australian Rail, Tram and Bus Industry Union (the RTBU) is the Respondent to the Application, and is a party covered by the 2015 EA and the 2019 EA.

1. Prior to the Application, and on 23 June 2023, the RTBU filed a claim in the Federal Court alleging historical and ongoing underpayment pursuant to the 2015 EA and the 2019 EA (the Underpayment Claim). The Underpayment Claim alleges Qube failed to pay allowances and penalties that were incorporated into the 2015 EA and the 2019 EA by the terms of those agreements and s.257 of the Act.

1. In the Application, Qube seeks to retrospectively vary the 2015 EA and 2019 EA such that accrued entitlements to the allowances and penalties claimed by the RTBU in the Underpayment Claim above are removed. Qube seeks the following relief in the Application.

1. Pursuant to section 217 of the FW Act, Qube Logistics (Qube) seeks the Fair Work
Commission (Commission) to:

a. find that ambiguity or uncertainty arises in the 2015 EA and in particular, the

interaction between clauses 4.2, 5.2 and the definition of “Hourly Rate” in clause

6.1;

b. upon finding that ambiguity or uncertainty arises in the 2015 EA, exercise its

discretion to remove that ambiguity or uncertainty by varying the 2015 EA in the

manner proposed by Qube at Annexure A;

c. find that ambiguity or uncertainty arises in the 2019 EA and in particular, the

interaction between clauses 4.2, 5.2 and the definition of “Hourly Rate” in clause

6.1; and

d. upon finding that ambiguity or uncertainty arises in the 2019 EA, exercise its

discretion to remove that ambiguity or uncertainty by varying the 2019 EA in the

manner proposed by Qube at Annexure B.

2. Any order varying the 2015 EA comes into force on and from 5 April 2016.

3. Any order varying the 2019 EA comes into force on and from 18 September 2020.

4. Such other orders as the Commission sees fit.

1. On 8 August 2023, the RTBU filed an application (the s.587 Application) that sought, in relation to s.587 of the Act, the following orders:

Orders under s 587

1. An order pursuant to s 587(c) of the Fair Work Act 2009 (Cth) (FW Act) dismissing Qube Logistic (Rail) Pty Ltd’s application pursuant to s 217 of the FW Act of the FW Act to the extent that it seeks variation of the QUBE Logistics (Rail) Train Crew and RTBU Enterprise Agreement 2015 (2015 EA) as Qube does not have standing to apply to vary the 2015 EA as it is no longer covered by it.

2. An order pursuant to s 587(c) of the FW Act dismissing Qube’s application to vary the 2015 EA and to retrospectively vary the QUBE Logistics (Rail) Train Crew and RTBU NSW Enterprise Agreement 2019 (2019 EA) in the terms sought in the application as the orders sought are not within power under s 217 of the FW Act as they will effect the acquisition of property other than on just terms from employees to whom those agreements cover and apply.

1. The grounds advanced for Order 1 of the s.587 Application are that the 2015 EA ceased to operate when the 2019 EA commenced operation on 18 September 2020. The Full Bench of the Commission found in Qube Ports Pty Ltd v CFMMEU[1] that an employer does not have standing to apply to vary an agreement which has ceased to cover it. Qube Ports Pty Ltd v CFMMEU is, however, the subject of an application for judicial review in the Federal Court of Australia (VID597/2023), filed on 1 August 2023.

1. The grounds advanced for Order 2 of the s.587 Application are:

(a)       Qube’s application seeks to vary terms of the 2015 EA and 2019 EA which incorporated the Rail Industry Award 2010 and Rail Industry Award 2020 (Award) respectively to avoid paying employees to whom those agreements covered and applied weekend penalty rates, on call allowances, meal allowances and shift allowances.

(b)       Qube has, in breach of s 50 of the Act, failed to pay such penalty rates and allowances to employees.

(c)       Qube’s application, insofar as it concerns the 2015 EA and seeks to retrospectively vary the 2019 EA, seeks a direct financial benefit by extinguishing vested causes of action of employees without payment or other satisfaction.

(d) The express power under s 51(xx) of the Constitution is subject to the restriction or safeguard contained in s 51(xxxi) of the Constitution. The legislature could not, in enacting the Act in reliance on s 51(xx) of the Constitution, have conferred power on the Commission to make orders that would effect an acquisition of property other than on just terms.

(e) Properly construed, s 217 of the Act does not authorise or permit the Commission to make an order that, in substance, effects an acquisition of property other than on just terms.

1. The RTBU submits the Application is without reasonable prospects of success and should be dismissed.

1. A hearing of the s.587 Application occurred on 8 September 2023 (the Hearing).

Consideration

1. In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others[2], the Full Bench of the Commission considered the application of s.587 of the Act. The Full Bench held:

Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.”

(Footnotes omitted)

(a)       Order 2

1. At the Hearing the parties relied on detailed written and oral submissions regarding the s.587 Application. Those submissions disclose that it is far from a clear case that the Commission is precluded from varying agreements with retrospective operation. Indeed, in Aged Care Services Australia Group Pty Ltd v Health Services Union & Australian Nursing and Midwifery Federation[3], the Full Bench of the Commission, relying on other Full Bench decisions, confirmed the ability to retrospectively vary agreements, and found:

The Commission has the power to vary an existing enterprise agreement with retrospective effect in circumstances where a decision to vary matters giving rise to an ambiguity or uncertainty is made.

In the present matter, having determined that it was the objective intention of the parties that the 2014 Agreement would, from its commencement, cover employees of ACSAG as described in Schedule 3 of the Agreement and that are employed in Tasmania, it necessarily follows that the Variation Order that we make apply from the commencement of the 2014 Agreement; that is to say, the Variation Order that we make should apply retrospectively.

1. As to the submission of the RTBU regarding s.51(xxxi) of the Constitution, for the purposes of the s.587 Application it is only necessary to observe that there is a complete absence of what could be considered a clear case allowing a definite and certain conclusion. Both Qube and the RTBU seek to advance arguments neither of which could, at this early stage, could be described as lacking in substance or prospects of success.

1. The application for Order 2 in the s.587 Application should be dismissed.

(b)      Order 1

1. The application for Order 1 in the s.587 Application is or considerable substance. The Full Bench decision in Qube Ports Pty Ltd v CFMMEU will, if undisturbed, ordinarily result in the Commission dismissing that part of the Application that seeks to vary the 2015 EA.

1. I do not, however, consider that it is appropriate to accede to Order 1 of the s.587 Application at this point in the proceedings for two reasons:

(a)       Firstly, Qube Ports Pty Ltd v CFMMEU is the subject of an application for judicial review in the Federal Court of Australia filed on 1 August 2023. While ordinary timetabling of the Federal Court and the Commission may mean that it is unlikely the application for judicial review will be determined before the Application, there is at least a possibility that Qube Ports Pty Ltd v CFMMEU may not apply at the time of the determination of the Application: and

(b) Secondly, the relevant Clauses 4.1 to 4.3 of the 2019 EA are in identical terms to Clauses 4.1 to 4.3 of the 2015 EA. In ascertaining whether the relevant provisions are ambiguous or uncertain for the purpose of s.217 of the Act, the Commission is obliged to take into account equity, good conscience and the merits of the Application,[4] is not bound by the rules and evidence and procedure, and can take into account the common intention and history of the clauses.[5] Where the provisions of the 2015 EA and the 2019 EA are identical, it is at least probable that the provisions of the 2015 EA will be relevantly considered in the Application insofar as the variation of the 2019 EA, notwithstanding whether Qube Ports Pty Ltd v CFMMEU remains as good authority, and any perceived efficiency from not dealing with the Application as it relates to the 2015 EA would not arise.

1. The application for Order 1 in the s.587 Application should be dismissed.

Conclusion

1. I do not consider that at this stage of the Application there exists a clear case for a definite and certain conclusion for either of the Orders sought in the s.587 Application. Accordingly, the s.587 Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Follet, Counsel, on behalf of the Applicant
Mr P Boncardo, Counsel, on behalf of the Respondent

Hearing details:

2023
Sydney (in person)
08 September 2023

[1] [2023] FWCFB 102.

[2] [2019] FWCFB 1314, at [17].

[3] [2017] FWCFB 2806, at [22].

[4] S.578.

[5] S.591; Bianco Walling v CFMMEU 294 IR 458.

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