Steve Psaila v Arc Infrastructure Employment Pty Ltd T/A Arc Infrastructure

[2021] FWC 5925

[2021] FWC 5925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Steve Psaila
v
Arc Infrastructure Employment Pty Ltd T/A Arc Infrastructure
(C2021/1046)

COMMISSIONER WILLIAMS PERTH, 21 SEPTEMBER 2021

Dispute resolution.

[1] This decision concerns an application made by Mr Steve Psalia (Mr Psalia or the Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Arc Infrastructure Employment Pty Ltd T/A Arc Infrastructure (Arc or the Respondent).

Background

[2] The dispute concerns the Arc Infrastructure Enterprise Agreement 2018 [AE428429] (the Agreement).

[3] Clause 30 of the Agreement sets out the ‘Dispute Resolution Procedure’. It provides that concerns not settled may be referred to the Commission for conciliation but those which are not resolved may then proceed to arbitration at the request of either party. 1

[4] The Respondent does not object to the Commission resolving this dispute by arbitration. 2

[5] Specifically, the parties are in dispute about the application of clause 5.1 of Schedule 3 of the Agreement.

[6] Relevantly, Schedule 3 of the Agreement reads as follows:

“Schedule 3 – Former BRE Arrangements

The provisions of this Schedule will only apply to Employees employed with Arc before the commencement date of this agreement in the positions of Signal Maintainer, Signal Technician, Communications Technician and Per Way Patroller and who continue to be employed since the commencement date of the Agreement. The provisions of this schedule do not apply to any other Employee including Employee’s commencing employment on or after the commencement date of this Agreement.

…

5. Permanent Transfer

5.1 Former WAGRC Employee’s (as defined) who is required by Arc to permanently transfer away from the Employee's appointed work location as at December 17 2000, can elect to refuse the transfer and, if no other suitable positions are available with ARC in Western Australia, the employee's employment can be terminated pursuant to clause 1 of Schedule 3.”

[7] Relevantly, clause 5 outlines the ‘Definitions of the Agreement’ and includes the following:

“Former WAGRC employees means an employee who was a former employee of WAGRC and commenced employment with ARGE on 17 December 2000.”

“WAGRC means the Western Australian Government Railways Commission.”

[8] At the Commission’s direction, the Applicant has characterised the questions in dispute as follows:

“Does clause 5.1 of Schedule 3 of the Agreement operate so as to:

(i) give the Applicant a right to refuse a direction from his employer to relocate his appointed work location from Midland to Canning Vale in the circumstances in this matter; and

(ii) if “Yes” to (i), is the role based in Canning Vale an 'other suitable position' as referred to in clause 5.1 of Schedule 3 of the Agreement; and

(iii) if “No” to (ii), and the Applicant’s employment is terminated by the Employer because of his refusal, would the Applicant have a right to a redundancy payment under clause 1 of Schedule 3 of the Agreement?”

Factual findings

[9] The Applicant’s evidence was that he started work with the Western Australian Government Railways Commission (Westrail) on 23 April 1990.

[10] The Applicant was appointed by Westrail to the position of Signal Maintainer on 15 December 1997. His permanent work location was 37 Yelverton Drive, Midland. He has worked as a Signal Maintainer ever since then.

[11] The Applicant was transferred from Westrail to ARGE in December 2000. He later transferred to Brookfield Rail Employment Pty Ltd (BRE), as the Respondent was formerly known. There was no break in his employment between Westrail, ARGE and BRE/Arc.

[12] Throughout the Applicant’s employment with Westrail and Arc his permanent work location has remained at 37 Yelverton Drive, Midland.

[13] In October or November 2020, the Applicant heard a rumour that Arc was planning to relocate a number of positions, including his, to its Canning Vale depot located at 8 Modal Drive, Canning Vale (the Canning Vale Depot).

[14] In late December 2020, the Applicant told Mr Festa, his immediate line manager, that he did not wish to relocate. Mr Festa said that he would contact Human Resources to clarify the situation.

[15] On 14 January 2021, Mr Festa forwarded the Applicant an email from Human Resources which read as follows:

“The move to Canning Vale is not an unreasonable request and there has been previous cases with the commission in which it was decided that under 50km or an additional hour of travel is not an unreasonable amount. They do not look at where the employee lives but look at the distance between the two locations.

So if employees refuse to move than they are failing to follow a directive and may be terminated or they may wish to resign.”

[16] At the Applicant’s request, on 28 January 2021, Ms Martin of the Australian Rail, Tram and Bus Industry Union (the RTBU or the Union) sent an email to Mr Festa and Mr Atwell, the next line manager, putting his concerns into disputes and asserting his rights under clause 5.1 of Schedule 3 of the Agreement.

[17] On 4 February 2021, Ms O’Meara replied to Ms Martin by email rejecting the Union’s interpretation of the Agreement as follows:

“Arc does not consider Schedule 3, clause 5 was intended to deal with relocations between metropolitan locations (i.e. Midland to Canning Vale), therefore the entitlement to the redundancy payment in clause 1 does not arise.

In any event, Schedule 3, clause 5 only applies 'if no other suitable positions are available with Arc in Western Australia'. In this instance there is another suitable position available with Arc in Western Australia, being the position in Canning Vale. Arc does not consider the additional travel lime for Mr Psaila to Canning Vale to be onerous.

If Mr Psaila refuses to comply with the direction to perform his role from Canning Vale, this may constitute a failure to comply with a lawful and reasonable direction, which may form a valid basis for Arc to consider his ongoing employment.”

[18] After considering the email, the Applicant remained unhappy with the response and asked the RTBU take the matter to the Commission.

[19] The Applicant says that his usual travel time from home to work in Midland is 12 minutes in the morning and 15 minutes coming home. The distance is 8.2 km each way, totalling 16.4 km.

[20] The Applicant has driven between his home and the Canning Vale Depot a few times to test the journey length. He calculated this trip to be 30 km.

[21] On average, the travelling time from the Applicant’s home to the Canning Vale Depot is about 35 minutes in the morning and about 45 minutes on the way back in the afternoon. He says that relocating to Canning Vale will require an additional driving distance of about 44 km each day, with additional travel time of about 55 minutes each day.

[22] The Applicant says that he is not willing to relocate to Canning Vale without compensation because of the additional travel time and expense it would involve.

[23] Evidence for the Respondent was given by Mr Daniel John Ellis (Mr Ellis), who is employed by the Respondent as the Head of Maintenance, and by Ms Maryanne Franse (Ms Franse), who is employed by the Respondent as the Facilities and Services Lead. Neither witness was cross examined.

[24] Relevantly their evidence is that the Applicant is currently employed by the Respondent as an Advanced Signal Maintainer in the metropolitan team.

[25] Signal maintainers in this team, including the Applicant, work eight hours per day on a standard five-day on, two day off roster. They are also rostered to be on the 28 day on-call roster, where they are required to be on-call after hours, from 15:30 to 07:00, along with a signal technician for a seven-day rolling.

[26] The Applicant is responsible for maintenance and servicing of signalling equipment on the railways in the metropolitan region, which covers approximately 320 km of track from Mogumber in the north to Kwinana in the South and to Northam in the east. The overall area is known as “the field”.

[27] Currently, the Applicant is required to commence work each day at the Respondent’s Midland depot at 37 Yelverton Drive, Midland (the Midland Depot).

[28] The Applicant would typically attend the Midland Depot at 07:00 to prepare for the day with the rest of the team before heading out to the field. The team takes a company vehicle to perform their scheduled tasks and returns to the Midland Depot at approximately 15:00 hours, where the company vehicle would be returned. The Applicant would then undertake any post-work administrative tasks and finish work at around 15:30 hours.

[29] The Applicant would usually spend approximately one hour in total at the Midland Depot each day with the majority of his time spent in the field.

[30] For reasons that are not critical to the determination of this matter, in or around December 2020 the signals team, including the Applicant, were verbally advised that they would attend pre and post work meetings at the Canning Vale Depot rather than the Midland Depot from around May 2021. However, this has been delayed.

[31] Arc signed a lease on the Canning Vale Depot in December 2020. The Canning Vale Depot lease is for three years with an option for a two-year extension.

[32] Due to building delays, there is currently no fixed date for the signals team to attend pre and post-work meetings at the Canning Vale Depot.

[33] Once the Canning Vale Depot is ready, the majority of the metropolitan team will attend pre and post work meetings there.

[34] However, the Canning Vale Depot is not a permanent solution. It is being leased while Arc searches for a more suitable facility. Ms Franse is currently exploring the options for an alternate facility, including in Midland.

[35] If Arc finds a suitable facility, it will most likely break the Canning Vale Depot lease. If that occurs, then the signals team will attend pre and post-work meetings at that new facility rather than the Canning Vale Depot.

[36] When the Canning Vale Depot is appropriately fitted out for the signals team, the Applicant will be required to attend brief pre and post-work meetings at the Canning Vale Depot rather than at the Midland Depot.

[37] There will be no substantive changes to the Applicant’s day to day job. His duties, hours of work, the nature of his work, reporting lines and the area within which he works, will be the same. The majority of his working day will continue to be at the exact same locations in the field, working on the rail network in the same region as he has always done. The only change will be where the Applicant parks his car and signs on in the morning and leaves from in the afternoon.

[38] The Applicant’s evidence was that according to Google Maps, the distance between the Canning Vale Depot and the Midland Depot is 26.4km. This equates to a driving time of approximately 25 to 30 minutes, depending on the traffic at the times of day the Applicant is on the road (before 07:00 and at/after 15:30).

[39] The Applicant’s evidence was that he has considered the distance from the Midland Depot to the Canning Vale Depot and does not consider it to be an unreasonable distance to travel.

[40] Ms Franse’s evidence was that over the past 12 months, she has been looking for a permanent site that brings the metropolitan team all together in one location. This was part of Arc’s long-term strategy to reduce the number of leased premises and bring teams together.

[41] Ms Franse has looked at sites in Midland, Belmont, Kenwick, Wattle Grove, Forrestfield and High Wycombe however, she is yet to find one that meet all of their requirements. Due to the time constraints associated with various works she was required to expedite finding a suitable alternative location for the metropolitan team.

[42] Arc entered into a lease at the Canning Vale Depot for a three-year term as of 1 December 2020 because it was the best option at the time.

[43] The Canning Vale Depot meets some but not all of Arc’s specifications. It is very central to the parts of the rail where the metropolitan team perform work and the land size is sufficient. However, it is more expensive than corridor land and it is leased land (rather than land that Arc owns).

[44] Therefore, ever since the Canning Vale Depot lease commenced, Ms Franse has continued to look for a more appropriate site for the metropolitan teams’ base. Ms Franse will continue to look for a more suitable site for the duration of the lease term.

[45] If Arc is unable to find any corridor land, rail reserve land, or a suitable piece of land to purchase by the end of the Canning Vale Depot’s three-year lease, it is possible Arc will exercise its option to extend the Canning Vale Depot lease for a further two years, while they continue looking for suitable land in the metropolitan zone.

[46] If, at the end of the further two-year extension, Arc has still not identified any suitable corridor land, rail reserve land, or land available for purchase in the metropolitan zone, Arc may, at that point, consider exercising its option to purchase the Canning Vale Depot.

Principles for Interpreting agreements

[47] The parties agree the proper approach to interpreting agreements was summarised in the Full Bench decision of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd  3(Berri) as follows:

“[114] 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.”

Submissions

The Applicant

[48] The Applicant submits that it is self-evident that a move to Canning Vale would be a move away from his appointed work location.

[49] However, the Respondent essentially contends that a change to the place where the Applicant starts and finishes work is not a relocation if there is no change to the broader area in which he goes out from the depot to work.

[50] The Applicant submits that this interpretation should not be adopted for the following reasons.

[51] Clause 5.1 of the Agreement refers to ‘appointed work location’. On the natural and ordinary meaning of the words this must be a single place where an employee attends for work. The Respondent’s evidence shows that the Applicant’s work in the field ranged across the metropolitan area in multiple locations.

[52] The Applicant submits that a large region with multiple worksites cannot be an ‘appointed work location’. If the Respondent’s interpretation was correct, a relocation from Northam to Kwinana would not be a transfer for the purposes of clause 5.1, so long as the Applicant continued to work within the metropolitan area. The Applicant submits that this cannot have been the intention.

[53] This leaves the issue of whether a move to Canning Vale would be a permanent transfer within the meaning of clause 5.1 of Schedule 3 of the Agreement.

[54] The Applicant submits that the words in the Agreement are not ambiguous when given

their ordinary meaning.

[55] The ordinary meaning of permanent relevantly includes ‘lasting or intended to last indefinitely’. The ordinary meaning of ‘indefinitely’ relevantly includes ‘not clearly defined or determined; not precise’. The ordinary meaning of ‘transfer’ is, relevantly, ‘to convey or remove from one place, person, etc, to another’

[56] The Respondent’s communications to the Applicant make it clear that the intention is that his place of work will move from Midland to Canning Vale. The Respondent has not clearly or precisely determined the duration of the move. This meets the definition of a permanent transfer on the ordinary meaning of the words.

[57] The Applicant submits that because there is no ambiguity there is no need to consider surrounding circumstances, such as the subjective intentions of any of the parties involved in making the Agreement.

[58] For these reasons, the Applicant submits that the move to Canning Vale would be a permanent transfer, and that his circumstances are covered by clause 5.1 of Schedule 3 of the Agreement, so he may elect to refuse to move to Canning Vale.

[59] The Applicant submits that Schedule 3 of the Agreement is intended to provide special benefits to defined former employees of other entities who became employed by the Respondent.

[60] The Applicant submits that on a purposive approach and having regard to the context, the provisions should be interpreted in a beneficial way. On a plain reading, the provision provides an employee a right to refuse to transfer from their pre-existing work location, provided that they may be made redundant if they exercise this right and there is no ‘other suitable position’.

[61] The Applicant says that this means a position that is suitable to him.

[62] It is consistent with the intention of the Agreement, interpreted beneficially, that ‘other suitable position’ means a position that he considers suitable, having regard to his own circumstances.

[63] If the meaning of ‘other suitable position’ was such that it could include the position originally refused by an employee exercising rights under the Agreement, then the right of refusal would be meaningless. The Applicant submits that this cannot be the intention of the Agreement.

[64] If suitability was determined by the Respondent alone, then the Respondent could simply determine that any relocation involves a suitable position. The employee’s right of refusal would then be meaningless.

[65] If suitability was intended to be determined by reference to an external standard, the Applicant submits that the difficulty is that there is no indication in the Agreement as to what that standard should be. If, for instance, suitability means ‘other acceptable employment’ as defined in the Act, it is difficult to understand why the drafters of the Agreement did not use those words.

[66] Alternatively, the drafters could have simply included words to the effect that the suitability of a position was to be determined by reference to certain criteria that included the interests or views of the Respondent. The Applicant submits that the absence of such words weighs in favour of a conclusion that such meanings were not intended.

[67] For the above reasons, the Applicant submits that his personal difficulties with travel to Canning Vale mean that it is not an ‘other suitable position’.

[68] Alternatively, if ‘other suitable position’ should be given a broader meaning, the Applicant submits that the extra travel time and cost of travel involved in a move to the Canning Vale Depot are such that it would not be reasonable to decide that this is a suitable position.

[69] If the Respondent is correct, and suitability is to be determined objectively, this is not inconsistent with a result that favours the Applicant.

[70] The Applicant submits that on a beneficial interpretation of clause 5.1, even if suitability is not determined solely by reference to the Applicant, objective factors causing detriment to the Applicant, such as additional travel time and costs, should be given greater weight.

[71] The substantial impact of the relocation on him is the additional travel time and cost involved. This, the Applicant submits, means that the Canning Vale Depot is not suitable.

[72] The Applicant submits that the natural and ordinary meaning of the words does not require repudiatory conduct by the employer to engage clause 5.1 as the Respondent submits.

[73] Alternatively, if repudiation is required, the Applicant’s employment contract provides that he will be based in Midland and makes no provision to vary the location at which he would be based. Changing the Applicant’s base to Canning Vale would be a unilateral variation imposed outside of the terms of the contract, which would be repudiatory.

[74] The Applicant in conclusion submits that the Agreement provides that if an employee refuses a transfer and there is no suitable position available, the employment can be terminated pursuant to the redundancy provisions in clause 1 of Schedule 3.

[75] The Applicant submits that the correct interpretation of the Agreement is that if the Respondent decides to terminate his employment after he refuses a transfer, he will be entitled to redundancy benefits in accordance with clause 1 of Schedule 3.

The Respondent

[76] The Respondent submits that the evidence of Ms Franse, the Facilities and Service Lead, shows that the direction for Mr Psaila to attend pre and post-work meetings at Canning Vale, rather than Midland is not a permanent change to his appointed work location.

[77] Even if it is found that the proposed move to the Canning Vale Depot is intended to be permanent then a role that commences at Canning Vale is a “suitable position” available to Mr Psaila within the meaning of clause 5.1.

[78] The effect of the Applicant’s submission is that “suitability” of another position is to be determined by reference to the employee’s subjective opinion.

[79] The Respondent says there is law with respect to the meaning of “suitable alternative positions” 4 and it is clear that suitability cannot be a matter entirely subjectively determined by the employee. An alternative may not be desired by the employee but, this does not mean that the alternative must therefore be characterised as unsuitable. The test is therefore an objective one. It is not to be determined solely at the whim of either the employer or the employee.

[80] It is submitted that a role that commences at Canning Vale is a “suitable position” available to Mr Psaila within the meaning of clause 5.1.

[81] In a sense the position has not changed. The only real change for Mr Psaila is where he parks his car and signs on in the morning and leaves from in the afternoon with an additional travelling time of approximately one hour. Given that, and given the circumstances that Arc finds itself in, the proposed change is entirely suitable.

[82] Furthermore, the proposed change is objectively suitable when one considers the conditions of Mr Psaila’s current employment contract signed by him on 8 February 2013 which stated that his position as Advanced Signal Maintainer “will be based at Midland”. The contract expressly states that it was a condition of Mr Psaila’s employment that he would be required “to travel and work away from home at other locations”.

[83] This broad expression plainly includes new base locations. In any event the existence of this term is an important piece of the factual matrix, known to both parties, that should inform a conclusion that a change to the home base, from Midland to Canning Vale, constitutes suitable alternative employment.

[84] In the alternative to the above the Respondent submits that clause 5.1 is only directed to a change in location of the field in which Mr Psaila is performing the majority of his work and not to a change in the home base where the pre and post-work meetings occur.

[85] The Agreement has to be construed in context, considering its terms as a whole.

[86] The final sentence of clause 5.1 contemplates termination by way of redundancy pursuant to clause 1 of Schedule 3 if the employee refuses the transfer and there are no other suitable positions available.

[87] It suggests that the transfer is not in accordance with the contract of employment and thus if imposed unilaterally would constitute a repudiation of the contract of employment. Thus, the concept of redundancy appears linked to the transfer of an employee to a new location under clause 5.1. The Respondent submits that this is instructive for the proper construction of clause 5.1.

[88] Under the Agreement redundancy occurs when Arc decides that the job the employee is engaged to perform is to no longer be done by anyone and this is not due to the ordinary and customary turnover of labour. Ordinarily if there is a reduction in duties it is necessary for the employee claiming to have been made redundant to show that the changes in the duties and responsibilities of a position are so substantial that for practical purposes the position no longer exists. It is the substantiality of the changes that is key. Small changes in duties and responsibility do not dissolve the position – it is still required to be done by the Respondent.

[89] Following that line of logic if a change in work location was to occur in respect of a position, then it would have to be a change to the location where a substantial proportion of the work (in a temporal sense) was performed. A mere change to a pre and post-reporting locations, if the primary location and substance of the work did not change, does not suffice to amount to a change in the position itself.

[90] That is precisely what has occurred in the present case. The evidence is that Mr Psaila attends at the Midland Depot for approximately 30 minutes in the morning and 30 minutes in the evening for pre and post-work meetings and spends the rest of his day out in the field attending to his substantive duties. Therefore, any change to the location of his pre and post-work meeting location spot cannot accurately be characterised as a substantial change to their location to engage clause 5.1.

[91] The Respondent submits that for the above reasons the Applicant’s claim should be dismissed.

Consideration

[92] The term of the Agreement that is in dispute is found in Schedule 3 – Former BRE Employees and is a s follows.

“5. Permanent Transfer

5.1 Former WAGRC Employee’s (as defined) who is required by Arc to permanently transfer away from the Employee's appointed work location as at December 17 2000, can elect to refuse the transfer and, if no other suitable positions are available with ARC in Western Australia, the employee's employment can be terminated pursuant to clause 1 of Schedule 3.” (sic)

[93] I am satisfied, and it is not in dispute, that the Applicant is a former WAGRC employee as defined in the Agreement.

[94] In my view the words of this clause have a plain meaning.

What is the Applicant’s appointed work location?

[95] The Applicant’s evidence, which is unchallenged, is that when he was appointed by Westrail in 1997 his permanent work location was the Midland Depot located at 37 Yelverton Drive, Midland. He was later transferred to a new employer ARGE and then transferred again to BRE, as the Respondent was formerly known.

[96] The letter of offer of employment from BRE dated 13 November 2012 states in paragraph 2 as follows,

“This position will be based Midland with a requirement to travel to other locations from time to time, as and when the duties and responsibilities of your position dictate.”

[97] The evidence is there was no break in his employment through the course of these transfers and throughout his employment up to the present day his permanent work location has remained as the Midland Depot.

[98] I do not accept the Respondent’s arguments that the metropolitan region, which is the area or field in which the Applicant carries out his work throughout the day, is the Applicant’s “appointed work location”.

[99] The metropolitan region, which the Respondent’s witnesses explained covers approximately 320 km of railway track from Mogumber in the north to Kwinana in the South and to Northam in the East is a region that extends well beyond the limits of the Perth metropolitan area to the North and to the East.

[100] The meaning of “location” according to the Macquarie dictionary is,

“1. A place of settlement or residence: a good location for a doctor.

2. A place or situation occupied: a house on a fine location.

3. A tract of land located, or of designated situation or limits: a mining location.”

[101] The plain meaning of “location” does not include a region that covers 326 km of railway track.

[102] I find that the Applicant’s appointed work location, as at 17 December 2000, was the Midland Depot.

[103] The evidence is that in the near future the Respondent will require the Applicant to attend pre and post-work meetings at a newly leased Canning Vale Depot rather than at the Midland Depot as the Applicant has done since 1997.

[104] This was to have occurred in May 2021 but has been delayed.

[105] The respondent entered into a three-year lease of the Canning Vale Depot as of 1 December 2020.

[106] The evidence is that the Respondent, notwithstanding it has leased the Canning Vale site, is continuing to look for a more suitable alternative site for a depot in the metropolitan region because the Canning Vale site does not meet all of the Respondent’s specifications.

[107] In the future the Respondent may find a more suitable site for its depot and move the Applicant to this location or, if it is unable to find a more suitable piece of land by the end of the three-year lease on the Canning Vale site, the Respondent may possibly exercise its option to extend the lease at the Canning Vale Depot for a further two years and continue looking for a more suitable site in the metropolitan region.

[108] The evidence then is that if after that further two-year extension the Respondent has still not identified any more suitable site it may at that point to consider exercising its option to purchase the Canning Vale Depot.

Is the Applicant being required by Arc to permanently transfer away from his appointed work location as at 17 December 2000 ?

[109] The Respondent argues that in the circumstances above the Applicant is not being required to “…permanently transfer away from…” the Midland Depot.

[110] The meaning of “permanent” according to the Macquarie dictionary is,

“adj. lasting or intended to last indefinitely; remaining unchanged; not temporary; permanently, adv.”

[111] I accept there is no certainty that the Applicant will remain at the Canning Vale Depot forever because there is the possibility the Respondent will find a more suitable site elsewhere at some time in the future. The Applicant may, or may not, be at the Canning Vale Depot permanently.

[112] However, there is no suggestion the transfer away from the Midland Depot is temporary and that the Applicant will be transferred back to the Midland Depot.

[113] Whatever happens after moving to Canning Vale, the Applicant is being required to permanently transfer away from the Midland Depot. (Emphasis added)

[114] It is the case that the Respondent is requiring the Applicant to “permanently transfer away from the employee’s appointed work location”.

[115] That being so the Applicant can elect to refuse the transfer and, if no other suitable positions are available with Arc in Western Australia the Applicant’s employment can be terminated pursuant to clause 1 of Schedule 3 of the Agreement.

Is working at Canning Vale an ‘other suitable position’?

[116] The Respondent argues that the position at the Canning Vale Depot is an “other suitable position” that is available with Arc in Western Australia and so if the Applicant refuses the transfer his employment cannot be terminated pursuant to clause 1 of Schedule 3 of the Agreement.

[117] The meaning of “other” according to the Macquarie dictionary is,

“1. additional or further: he and one other person.

2. Different or distinct from the one or ones mentioned or implied: in some other city.

3. Being the remaining one or two more: the other hand…”

[118] It is readily apparent that the words “other suitable position” must refer to a position that is not the position currently occupied by the employee who is being transferred. The other position is additional or different from the ones mentioned or implied.

[119] The evidence is that being required to attend pre and post-work meetings at the Canning Vale Depot will involve no substantive changes to the Applicant’s day-to-day job. His duties, hours of work, the nature of his work, reporting lines in the area within which he works, will be the same. The majority of the Applicant’s working day will continue to be at the exact same locations in the field working on the rail network in the same region as he has always done. The only change will be where he parks his car and signs on in the morning and leaves from in the afternoon. 5

[120] The position the Respondent points to as an “other suitable position” is the same position the applicant currently occupies. The role at the Canning Vale Depot is not a different or additional position, it is not an “other” position at all.

[121] I find that there is not other suitable position within Arc in Western Australia.

Conclusion

[122] The circumstances of this Applicant are that he is to be required by Arc to permanently transfer away from his appointed work location as at 17 December 2000. Consequently, the Applicant can elect to refuse this transfer in which case his employment can be terminated pursuant to clause 1 of Schedule 3 of the Agreement.

[123] The answers to the questions are as follows,

(i) Yes,

(ii) No,

(iii) Yes.

Appearances:

J. Theodorsen of Theodorsen Consulting Pty Ltd for the Applicant.
R. French of counsel for the Respondent.

Hearing details:

2021:
Perth (by Telephone):
June 28.

Printed by authority of the Commonwealth Government Printer

<PR734001>

 1   Arc Infrastructure Enterprise Agreement 2018 [AE428429], clause 30.8.

 2   The Respondent’s response filed 16 March 2021, paragraph 2.

 3   [2017] FWFB 3005.

 4   Rogan-Gardiner v Woolworths Ltd [2010] WASC 290 at [143].

 5   Exhibit R1, paragraphs 31 and 32.